State vs Dhirpal @ Kana & Ors on 29 April, 2023

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Delhi District Court

State vs Dhirpal @ Kana & Ors on 29 April, 2023

FIR no.153/14
State vs Dhirpal @ Kana & Ors
PS Najafgarh
U/s 307/452/506/34 IPC & 174A IPC

IN THE COURT OF VIPLAV DABASS:
ADDL. SESSIONS JUDGE : FAST TRACK COURT:
SOUTH-WEST DISTRICT
DWARKA COURTS: NEW DELHI

SC No. 20/2014 (909/2018)
CNR No.DLSW01-000760-2014
Name, Parentage and 1. Dhirpal @ Kanna @ Dheela s/o
addresses of the Sh. Satnarayan r/o RZ-33, Chauhan
accused persons Enclave, Old Khera Road, Najafgarh
2) Vikas @ Vikas Lagarpuria s/o
Sh. Surender Singh r/o VPO
Lagarpur, Teh. Bahadurgarh, District
Jhajjar, Haryana
3) Paramjeet s/o Sh. Gian Singh r/o
A-16, Hari Vihar, Gurudwara Road,
Dwarka Delhi.
FIR No. 153/14
Police Station Najafgarh
Under Sections 307/452/506/34 IPC & 174-A IPC
Plea of accused Pleaded not guilty
Final Order Acquitted
Date of institution 21.05.2014
Date of committal to Sessions 30.05.2014
Court
Date of transfer to this court 01.09.2022
Date on which judgment was 29.04.2023.
reserved
Date on which Judgment 29.04.2023.
pronounced

1 Of 63
FIR no.153/14
State vs Dhirpal @ Kana & Ors
PS Najafgarh
U/s 307/452/506/34 IPC & 174A IPC

JUDGMENT

FACTUAL MATRIX

1. On 23.02.2014, accused persons namely Dhirpal @ Kanna @ Dheela, Vikas @ Vikas Lagarpuria and Paramjeet in furtherance of their common intention committed house trespass by entering into house/office of complainant Bijender i.e RZ-2, Nehru Garden Colony, Near Reliance Fresh, Main Gurgaon Road, Najafgarh. The accused persons had criminally intimidated the complainant by threatening him with injury to his person with intention to cause alarm to the complainant. In furtherance of their common intention, the accused persons, after having made preparation for causing hurt to or assaulting or wrongfully restraining the complainant or to put him in fear of hurt or of assault or of wrongful restraint, fired upon complainant with such intention or knowledge and under such circumstances, that if death is caused, accused persons would have been guilty of murder. On the basis of aforesaid facts, present FIR No. 153/2014 under section 307/452/34 IPC & 25/27 Arms Act was registered against all the accused persons.

INITIAL COURT PROCEEDINGS AND CHARGE

2. After completing the investigation, charge sheet was filed in the court. The Court of Ld. Magistrate took cognizance of the alleged offences and committed the matter to Ld. Sessions Court after compliance of provisions of section 207 Cr.P.C.

2 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC

3. After hearing detailed arguments on behalf of the accused persons and the State, as a prima facie case was made out, charge for the offences punishable under Section 307/452/506/34 IPC was framed against all the accused persons to which they pleaded not guilty and claimed trial. Thereafter, the matter was listed for prosecution evidence. It is pertinent to mention that accused Vikas Lagarpuria absconded during trial and separate charge for the offence punishable under section 174-A IPC was framed against accused Vikas Lagarpuria on 23.02.2023 on his apprehension.

4. In order to prove the guilt of the accused persons for offence punishable u/s 452/307/506 IPC read with 34 IPC, the prosecution has to prove the following essential ingredients of the said Sections:

Section 452 IPC:- That the accused persons committed house-trespass, and that the trespass was made after having made preparation for causing hurt to any persons or for assaulting any person, or for wrongfully restraining any person, or for putting and person in fear of hurt, or of assault, or of wrongfully restraining any person, or for putting and persons person in fear of hurt, or of assault, or of wrongful restraint.

Section 307 IPC:-Attempt to Murder That the accused persons did some act and such act was done with such intention or knowledge and under such circumstances, that if death is caused, accused persons would have been guilty of murder Section 34 IPC:-

i) That the criminal act or a series of acts which include omissions and need 3 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC not necessary be an overt act should have been done not by one person but by more then one person.

ii) That the doing of every such individual act cumulatively resulting into the commission of criminal offence should have been in furtherance/ advancement/ promotion of common intention of all such persons. Section Section 506 IPC:- Criminal Intimidation

i) the accused threatened someone with injury to his person, reputation or property, or to the person, reputation or property of another in whom the former was interested;

ii) the accused did so with intent to cause alarm to the victim of offence;

iii) the accused did so to cause the victim to perform any act which he was not legally bound to do.

Sectio 174-A IPC:-Non appearance in response to a proclamation under section 82 of Act of 1974.

i) that despite a warrant the accused has absconded or is concealing, and thereby preventing execution of the warrant;

ii) that a proclamation has been issued under section 82(1) of the CR.PC against the accused;

iii) that the accused has been asked by that proclamation to appear at a specified place and at a specified time;

iv) that the accused has failed to comply with the requirements of the proclamation PROSECUTION EVIDENCE

5. During the course of the trial, prosecution examined 18 witnesses to substantiate the accusations levelled against the accused persons.

6. PW 1: Sh. Bijender Singh is the victim & main eye witness of the incident. He deposed that he is permanent resident of village Lalipur, New Delhi, that he was working as a building material supplier, that on 23.02.2014 4 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC he alongwith his friend Santosh Kumar, Ashwini Schrawat and his brother Prem Singh were sitting on the plastic chairs at their plot at RZ-2, Nehru Garden Colony near Reliance Fresh Main Gurgoan Road, Nazafgarh New Delhi, that they were playing cards, that some chairs were also lying there, that at about 6.00 pm one person came their and stated his name as Vikas lagarpuria, that he sit on a chair beside him and asked him that who was Bijender among them, that PW-1 replied that he was Bijender, that the said person then asked who was Prem, that he asked the said person to go from he was misbehaving with them, that the said person took out a pistol and fired towards him, that the bullet did not hit him, that the said person run away from there, that he informed the police on telephone no. 100, that police came at the spot and that his statement was not recorded by police. He voluntarily deposed that his signatures were obtained by the police on some paper. He further deposed that he does not know anything more about this case and that the person who had fired on him is not present in the court today.

Court permitted Ld. Addl. PP for State to cross examine the witness as he was resiling from his previous statement given to the police. During his cross examination conducted by Ld. Addl. PP For State he denied that his statement was recorded by the police. He admitted that statement Mark PW1/A bears his signature at point A. He voluntarily deposed that he had already stated that his signatures were obtained by the police on some papers and the same were not read over by him.

He denied that accused Vikas @ Vikas Lagarpuria present in the court 5 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC today is the person who had fired towards him, that accused Dhirpal @ Kana present in court today was also with the accused Vikas, that accused Vikas had fired twice at the spot, that when accused Vikas Lagarpuria was running towards outside accused Dhirpal was standing at the gate having a pistol in his hand, that accused Dhirpal had threatened him, that he had seen that both the persons present in the court today had come in a Tata Safari car, that he had seen that both these accused persons (present in court) going in Tata Safari car alongwith one person namely, Paramjeet, that he had noted the number the said Tata Safari vehicle or that its no. is HR-13-H-3792, that he had seen another car of the associates of the accused persons which was a Honda City car and that police had prepared a site plan at his instance.

He admitted that site plan mark PW1/B bears his signature at point A. He denied that one empty cartridge which was lying on the spot was sealed and seized by the police in his presence. He denied that he had stated the aforesaid facts to the police in his statement confronted with statement mark PW1/A where the aforesaid facts are recorded. He admitted that seizure memo of empty cartridge mark PW1/B bears his signature at point A. He voluntarily deposed that he already stated that his signature was obtained by police on some papers.

He denied that mark PW1/A and mark PW1/B were read out to him by the police before obtaining his signatures and that he was not deposing against the accused persons deliberately as he had been won over by them.

He further deposed that he cannot identify any cartridge. He denied that 6 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC he was deliberately saying that he cannot identify the cartridge. He voluntarily deposed that how can he identify any cartridge when the same was not seized in his presence. He denied that he had compromised the matter with the accused persons outside the court and hence not deposing against them.

He deposed that he did not make any complaint to the senior police officer regarding obtaining his signature on some papers by police. He deposed that he did not make any such complaint because his statement was recorded by the police and on the same his signature were obtained.

He denied that he was deposing falsely. During his cross examination conducted by Ld. Defence counsel he deposed that his signatures were obtained on blank papers and that he does not have any pressure upon him.

PW- 1 Bijender Singh was also examined as PW-1 during de-novo trial qua accused Vikas Lagarpuria upon apprehension of accused Vikas who had absconded during trial. He deposed that he was working as building material supplier at Plot No. 6, main Gurgaon Road, Near Reliance Fresh, Najafgarh, that he was permanent resident of village Ghalib Pur, that he does not remember the date, month or year, however about 1 ½ - 2 years ago, in the evening at about 5:00 PM, when he was present at his afore said plot, one boy came to him and he asked him if he was the brother of Prem and he replied him in affirmative, that thereafter, an altercation took place between them and the said boy who took out a gun and while he tried to fire at him, that he/PW1 hit his hand as a result of which the bullet hit the ground and that the said offender introduced himself as Vikas Lagarpuria but he does not know him as 7 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC he had not seen him earlier.

The witness was shown the accused Vikas Lagarpuria, who is seen on the TV screen as he was being produced through Video Conferencing and he stated that the accused was not the said assailant. He deposed that he made a call at no. 100 and accordingly, the SHO, ACP and other police personnels reached at the spot and he was inquired about the incident by them, that he had stated them as he stated above and that beside the aforesaid facts, he does not know anything else regarding this case.

Court permitted Ld. Addl. PP for State to cross examine this witness as he was resiling from some material facts of his statement recorded by the police. During his cross-examination conducted by Ld. Addl. PP for the State he admitted that police had recorded his statement on 23.02.2014 and the same is already Mark PW-1/A and it bears his signatures at point A. He voluntarily deposed that his signatures were obtained by the police on blank papers.

He admitted that in his statement, he had told the police that on 23.02.2014 in the evening, he was present at Plot No. 6, Main Gurgaon Road, Near Reliance Fresh, Najafgarh alongwith his friend Santosh, Ashwani Sehrawat, his brother Prem Singh and Devender and that they were playing cards.

He denied that on that day at about 6:00 PM, accused Vikas Lagarpuria, whom he was seeing on TV Screen through Video Conferencing, had come to him and asked about PW-1 and also about his brother Prem.

8 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC Witness was Confronted with the statement Mark PW-1/A, where it is so recorded. He denied that when he raised alarm, accused tried to run away towards the main gate or that in the meantime, he had also seen that associates of accused Vikas namely Dhirpal @ Kana present in the court, was also standing at the main gate or that accused Dhirpal had also pointed a pistol towards him by giving threat for dire consequences or that thereafter accused Vikas and Dhirpal boarded into parked Tata Safari car. Witness was Confronted with the statement Mark PW-1/A, where it is so recorded.

He denied that the accused Paramjeet present in the court, was sitting on the driving seat of the said Tata Safari car bearing no. HR 13 H 3792. PW1 was confronted with the statement Mark PW-1/A, where it is so recorded.

He denied that he had been won over by the accused persons Vikas, Dhirpal and Paramjeet, that due to fear of his life, he was not supporting the correct version of his statement recorded by the police as per his narration and that due to fear of his life, he was not identifying the accused persons being the culprits in this case.

The witness was not cross examined by the Ld. Defence counsel for accused-Vikas and Dhirpal despite opportunity. During his cross-examination conducted by Ld. Defence counsel for accused-Paramjeet he admitted that he had not seen the number of the above said Tata Safari car, that his statement Mark PW-1 was not read over to him by the police and that his signatures were obtained on various blank papers.

9 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC

7. PW-2 Sh. Prem Singh is the another star/eye witness of the prosecution. He deposed that he does not remember the date of incident but it may be 23.02.2014, that on that day one boy arrived in front of his office who fired upon someone, that hearing the sound of firing he came outside from his office and that could not see the assailants.

Court permitted the Ld. Addl. PP for State to cross examine the witness as he was resiling from his previous statement given to the police.

During his cross-examination conducted by Ld. Addl. PP, he deposed that police had not recorded his statement. Statement of witness Prem Singh is mark X was read over to the witness who after reading over and understanding the same stated that such type of statement was not given by him to the police.

He denied that statement mark X was given to police by him, that on 23.02.2014 when he was playing with cards at his plot located in Nehru Colony at about 6.00 pm a boy arrived there and got seated on a vacant chair and asked about him and Bijender, that Bijender was seated on a chair adjacent to him, that aforesaid boy asked from Bijender that you slapped one Bhartey on which Bijender told that it was their election matter, that on this the aforesaid boy got annoyed and told that firstly he would kill Manjeet Mahal and thereafter will kill him, that immediately thereafter aforesaid boy took out a pistol from the right side of his pant and pointed the same towards Bijender, that seeing this they all got up and aforesaid boy fired from the aforesaid pistol on this Bijender who gave his hand blow on the pistol 10 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC promptly due to which bullet collided on the floor and that thereafter aforesaid boy fired on one Santosh who gave hand blow to pistol due to which bullet had gone into air.

He denied that the boy who had fired was having the name of Vikas Lagarpuria fled away from the spot and they chased him, that on the main gate they found that one Dhirpal Kana having a pistol was standing near the main gate, that Vikas and Dhirpal Kana fled away from the spot in Tata Safari bearing no. HR 13 H 3792 and one Paramjeet was seated on the driving seat of aforesaid Safari, that on the other side of road a Honda City car was standing wherein 2-3 persons were seated and that this Honda City car accompanied the aforesaid Tata Safari in fleeing away from the spot. He further deposed that he does not identify the accused persons Dhirpal and Vikas.

Witness was asked to identify accused Dhirpal Kana and Vikas (present in the court ) but after seeing them witness stated that he does not identify them as he had never seen both of them.

He denied that he was not identifying both the accused persons as he had been won over by them for the reasons best known to him and that he was not deposing truly as he had been won over by them in order to save them from legal punishment.

8. PW-3 Ct. Rupender Kumar assisted the Investigating Officer during arrest proceedings of accused.

11 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC He deposed that on 22.03.2014, he was assisting the IO in the investigation of the present case, that on that day he alongwith IO reached in court room No. 10 where with the permission of the court accused Dhirpal Kana was arrested vide arrest memo Ex. PW 3/A bearing his signature at point A and his disclosure statement was recorded vide memo Ex. PW3/B bearing his signature at point A and that thereafter accused Dhirpal Kana was taken of 2 days PC remand and other accused was searched but he could not traced.

He further deposed that on 24.03.2014, he was assisting the IO in the investigation of the present case, that on that day he alongwith IO and accused Dhirpal Kana went to Nazafgarh and its nearby areas to trace out the companions of Dhirpal Kana.

He further deposed that during the course of search accused Dhirpal Kana gave his disclosure statement Ex. PW 3/C and that same was recorded by IO.

During his cross-examination conducted by Ld. Defence counsel he admitted that nothing was recovered in pursuance to disclosure statements, that whatever have been mentioned in the disclosure statement was known to them prior to recording the disclosure statement, that accused had not made any disclosure statement at any point of time and that the Exhibited Documents were signed by him at the police station at the instance of IO.

9. PW:4 Sh. Devender is also one of the eye witnesses. He deposed that he does not remember the date of the incident, however, it happened in the 12 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC month of February 2014, that on that date, at about 5-6 PM, he alongwith Prem and 2-3 other persons were sitting in the office of Bake, elder brother of Bijender, that after hearing the sound of gun shot, he alongwith other persons sitting in the office of Bake, immediately came out of the office and found many public persons gathered there, that he enquired from some persons as to what happened who in turn told him that someone had fired gun shot but no one told the name of any person who had fired gun shot, that thereafter, someone called the police and accordingly some police officials reached there and that the police official did not make enquiry from him nor his statement was recorded by the police.

Court permitted the Ld. Addl. PP for State to cross examine the witness, as the witness was resiling from his previous statement dated 23.02.2014 recorded U/s 161 Cr.P.C During his cross-examination conducted by Ld. Addl. PP counsel he denied that on 23.02.2014 he alongwith Bijender, Prem Singh and Santosh were playing cards while sitting on the chair inside the office of Bijender, that at around 6.00 PM one young boy who revealed his name as Vikas lagarpuria entered in the office of Bijender Singh and sat on the chair which was lying unoccupied besides them and he enquired as to who is Bijender Singh and who was Prem Singh and that he stated the same fact to the police in his statement which is now Ex.PW4/A (witness was confronted with the statement Ex.PW4/A from portion A to A where it is so recorded).

He further denied that thereafter accused Vikas Lagarpuria spoke to 13 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC Bijender Singh, "After slapping Bharte, you are considering yourself as a goonda of big stature", whereupon Bijender spoke to accused Vikas Lagarpuria that it is their election matter and who is he to question him.

He further deposed that on hearing this, Vikas Lagarpuria got infuriated and he took out a pistol from right side of his pant and exhorted by saying that he would kill first Manjit Mahal and thereafter Bijender Singh and he had stated the same fact to the police in his statement which is now Ex PW4/A (witness was confronted with the statement Ex.PW4/A from portion B to B where it is so recorded), that thereafter accused Vikas Lgarpuria and Bijender stood up in front of each other and accused Vikas Lagarpuria fired a gun shot aiming towards Bijender but Bijender hit the hand of accused Vikas Lagarpuria as a result of which the bullet hit against the ground, that thereafter, accused Vikas Lagarpuria fired another gun shot, but one Santosh who was present there caught hold of hand of accused Vikas Lagarpuria and changed the direction of pistol as a result of which, the fire went in the air and he had stated the same fact to the police in his statement which is now Ex.PW4/A (witness was confronted with the statement Ex.PW4/A from portion C to C where it is so recorded), that thereafter accused Vikas Lagarpuria ran towards outside of the office and they also chased him and they found one another boy namely Dhirpal while standing near the main gate of the office having a pistol in his hand and both the accused ran away from the spot after sitting in a Tata Safari bearing No.HR13H/3792 which was being driven by one another person namely Paramjeet and he also noticed a 14 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC Honda City car parked near the office of Bijender Singh in which 2-3 persons were sitting and those persons were also followed the Tata Safari car and he had stated the same fact to the police in his statement which is now Ex.PW4/A (witness was confronted with the statement Ex.PW4/A from portion D to D where it is so recorded) At this stage, the attention of witness was drawn towards the accused persons namely Vikas Lagarpuria and Dhirpal, who were present, saying that these are the same persons who filed gun shots on the day of incident, that after seeing towards the accused persons, the witness states that he had not seen any of the assailants at the spot on that day and he saw the accused persons for the first time in the court.

He denied that deliberately he was not disclosing true facts being won over by them or that he was deposing falsely.

The witness was not cross-examined by the Ld. Defence counsel despite opportunity.

10. PW:-5 Ct. Suraj Bhan was Posted in the Crime Team in the South West District as photographer on 23.02.2014. He deposed that on that day on receiving information he alongwith In-charge Crime Team Surender Hooda and other members of the Crime Team reached at the spot i.e. RZ. - 2, Nehru Garden, Gurgoan Road, Najafgarh where on the direction of the IO he took the photographs of the spot from the different angles and during the course of photography he found one empty cartridge which was also photographed by 15 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC him at the spot, that he can identify those photographs if shown to him at this stage and that he had brought the negatives of all the photographs taken by him on the spot. He further deposed that he had seen six photographs lying with judicial file, which he correctly identified to be the same that were clicked by him at the spot, that the said photographs are Ex. PW-S/P-I to P-6 and that he had brought the negatives of the aforesaid photographs and the same are Ex. PW-5/N-1 to N-6.

The witness was not cross examined by the Ld. Defence counsel despite opportunity.

11. PW:-6 HC Sultan Singh was the Duty Officer posted at Police Station Najafgarh. He deposed that on that day he registered the present FIR, as Ex. PW 6/A (OSR) bearing his signature at point A, that after registration of the case, he made endorsement Ex. PW 6/B on the Tehrir whereon present case was registered. The witness was not cross examined by the Ld. Defence counsel despite opportunity.

12. PW-7 Santosh is also one of the eye witnesses. He deposed that he does not remember the date, that at the time of incident he was playing cards in the room along with three other persons namely Prem and another person known as captain, that nothing happened in his presence and that he had no knowledge of the present case.

Court permitted the Ld. Defence counsel to cross-examine the witness 16 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC as he was resiling from his previous statement.

During his cross-examination conducted by Ld. Addl. PP for State, he admitted that he knows one Bijender Singh, that on 23.2.2014 for playing cards he had gone in the meeting/office of Bijender Singh and that he along with Bijender Singh, Prem Singh, Ashwani Sehrawat and Devender were playing cards. He denied that at one side he was along with Bijender and on the other side Ashwani Sehrawat was with Devender. He admitted that Prem was watching the game. He denied that at about 6 PM a young boy had visited there and seated on vacant chair adjacent to Vijender or that he asked about Vijender and Prem Singh, that above said boy introduced himself as Vikas Lagarpuria, that hot words were exchanged between Bijender Singh and Vikas on the point of election, that above said boy took a pistol from the right dub of his pant or that he pointed the same on Bijender or that he threatened him, that Vikas fired two times on Bijender and that above said boy fled away after firing.

He admitted that he heard the sound of firing. He denied that above said boy fled away towards the gate, that at the gate another boy was standing there having pistol or that in front of the gate Tata Safari was parked and on its driver seat Paramjeet Badli was sitting, that all the above said three persons fled away in that safari, that the no. of Tata safari was HR13-H-3792, that another honda city car was also parked on the other side of the road, that honda city fled away towards Chhawla and that police had recorded his statement.

17 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC Statement U/S 161 Cr.P.C. of witness Santosh Kumar dated 23.2.2014- mark A was put to him, after reading over and understanding the same the witness stated that such statement was not given by him to police. He denied that statement mark A was given by him to the police.

He deposed that he does not identify the accused persons namely Dhirpal Kana and Vikas Lagarpuria. Both the accused persons were shown to the witness who on seeing them stated that he cannot not identify both of them. He denied that he was deposing falsely and he was not identifying the accused persons intentionally as he had been won over by them. The witness was not cross examined by the Ld. Defence counsel despite opportunity.

13. PW-8: Ct. Rajesh was the DD Writer. He deposed that on 14.3.2014, while working as DD writer, he recorded DD No. 73 B at about 8.15 pm, on receipt of information from SI Sandeep Dhankhar of Haryana police from Hissar regarding the arrest of accused Dhirpal @ Kana in case FIR No. 60/14 dated 24.01.2014 u/s 302/148/149/120B IPC and 25 Arms Act PS Civil Line, Hissar. The witness exhibited true and attested copy of said DD entry as Ex. PW-8/A (OSR). The witness was not cross examined by the Ld. Defence counsel despite opportunity.

14. PW:-9 HC Yatender Malik accompanied the IO during raid. He deposed that on 24.3.2014, during his posting at PS Najafgarh, he joined the investigation of the present case with ASI Hukam Chand and other police staff 18 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC and conducted a raid at village Chhawla, Firni road in pursuance of a secret information, that when they reached at the aforesaid place, one Tata Safari vehicle of white colour bearing No. HR 13H 3792 was found there, that the information was about Vikas Lagarpuria and Paramjit Singh, that when they reached at the spot, both the aforesaid accused persons had already gone leaving the aforesaid Tata Safari and that the Tata Safari was seized by the IO SI Rakesh Kumar at PS in his presence vide seizure memo Ex. PW-9/A, which bears his signatures at point A. The identity of the vehicle Tata Safari is not disputed by the Ld. Defence counsel. The witness was not cross examined by the Ld. Defence counsel despite opportunity.

15. PW-10 Ct. Satyawan was on emergency duty from 08.00 am to 08.00 pm on 23.02.2014 at police station Najafgarh. He deposed that he was on emergency duty from 8:00 AM to 8:00 PM alongwith SI Ranbir Singh and during the same, on receipt of telephonic information pertaining to the factum of DD No. 72-B dated 23.02.2014 of PS Najafgarh by SI Ranbir Singh, he alongwith him reached at the place of incident i.e. RZ-2, Nehru Garden, Roshan Pura, main Gurgaon Road, near Reliance Fresh Mall, Najafgarh, Delhi, where a crowd had gathered and there was commotion at the spot, that on inquiry, they came to know that accused Vikas Lagarpuria & Dhirpal @ Kana came at the spot in a vehicle of Paramjeet and they had fired at the complainant-Sh. Bijender Singh, who was also found at the spot and during his examination statement of the complainant was recorded and on the basis 19 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC of the same, a tehrir was prepared by SI Ranbir Singh and on his instructions, that he got the present case registered at PS Najafgarh, that thereafter, he came back at the spot with copy of FIR and its original rukka which he handed over to the IO, that during inspection of the spot, one empty shell of cartridge was found and that it was kept in a container, sealed with the seal of RS and was taken into possession vide its seizure memo already Ex. PW-1/B which bears his signatures at point X. Witness correctly identified the empty shell of cartridge as Ex. P-1.

During his cross examination conducted by Ld. Defence counsel for accused -Vikas and Dhirpal he denied that there is no office by the name of Bijender at the spot.

He further deposed that he does not know for what purposes the said office had been opened by Bijender, that he does not know what kind of activities were carried out by Bijender from the said office, that he does not know if there was any office of Banke Pehalwan at the spot or not, that he cannot tell the distance between the Reliance Fresh Mall and the spot, that IO made inquiries from the persons, who had gathered at the spot but he cannot tell the names or addresses of the said persons, that he cannot tell the name of the public person, who had named accused Vikas Lagarpuria to be the person who had fired at the spot and that the vehicle number was not told by any public person. He voluntarily deposed that the vehicle number was told by the complainant.

He further deposed that he cannot tell the distance between the place 20 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC where the empty shell of the cartridge was lying and the office of Bijender at the spot, that he does not know if senior officers had come to the spot or not, that he alongwith the IO reached at the spot withing 10-15 minutes on receipt of telephonic information, that he alongwith the IO left the spot and reached the PS at about 11:45 PM, that he does not remember, if any senior police officer had arrived at the spot during his stay at the spot, that he also does not remember if IO had called any public person from the Reliance Fresh Mall or from the office at the spot to join the investigation, that the address of the office at the spot was RZ-2 Nehru Garden, Roshan Pura, Main Gurgaon Road, N4 Reliance Fresh Mall, Najafgarh, Delhi, that he does not know if the said address pertained to office of Banke Pehalwan, that as far as, he knows Bijender Singh might be called as Banke Pehalwan but he was not sure about it, that he does not know if Banke Pehalwan and Bijender Singh are two separate and distinct persons, that there was a shop at the spot but he does not know if it was a cloth shop or not, that there was a vacant plot behind the said shop, that he does not know if there was office of Banke in the remote side of the said vacant plot, that he does not remember how many documents were prepared by the IO at the spot in his presence, that he had signed one memo at the spot but he cannot tell the time when he had signed it and that signatures of any public person were not obtained on the said memo. He voluntarily deposed that only the signatures of the complainant were obtained.

He further deposed that the name and address of the complainant was also written by him below his signatures on the said seizure memo. He denied 21 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC that the above said seizure memo was prepared at PS and the signatures of the complainant were also obtained at the PS and later on the name and address of the complainant was mentioned under his signatures by the IO. He admitted that name and address of the complainant on the memo are in the handwriting of the IO.

He further deposed that the container was dibbi type but he does not remember its colour. He denied that he does not remember the colour of the container as it was not sealed in his presence.

He further deposed that the colour of the container was not mentioned in the seizure memo of the same, that the seal after use was given by the IO to him and later on he returned to the IO and that the fact regarding handing over the seal is mentioned in his statement (witness was confronted with the statement, where it is not so recorded). He denied that he never went to the spot or that all the proceedings were conducted while sitting in the PS, that nothing was recovered from the spot in this case and that he was deposing falsely.

Ld. Defence counsel for accused Paramjeet adopted the above said cross examination, conducted on behalf of accused- Vikas and Dhirpal.

During further cross-examination conducted by Ld. Defence counsel for accused Paramjeet on 08.05.2018, he deposed that TATA Safari No. HR13-H 3792 was falsely implicated in this case or that he had deposed falsely.

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16. PW- 11 ASI Virender Singh was posted with CIA Special Staff at Hissar on 14.05.2014. He deposed that on 06.03.2014, he was posted in the aforesaid office and on that day, that he alongwith PSI Sandeep Dhankar and HC Sandeep reached at Jhajjar in connection with an information that the accused Dhirpal @ Kana @ Dhila s/o Sh. Sat Narain would meet in the house of Vikas at village Lagarpur, that when they reached there, accused Dhirpal @ Kana @Dhila was found present who is present in the court and correctly identified by this witness, that during his superficial search, one 9 mm pistol and one empty cartridge were recovered from his possession and sketch of the same was prepared on a plain paper, that the measurement of the same was done, that thereafter, the said pistol was sealed/seized and it was taken into possession vide its seizure memo Mark-A, that thereafter, accused Dhirpal Kana @Dhila was arrested vide arrest memo Mark-B in case bearing FIR No. 60 of PS Civil Line Hissar, that thereafter, accused was interrogated and that his disclosure statement was also recorded vide disclosure statement Mark-C wherein he had specifically disclosed about the commission of offence pertaining to this case.

During his cross examination conducted by Ld. Defence counsel for accused Vikas and Dhirpal he deposed that he cannot say whether the said secret information about the presence of accused Dhirpal was received by the IO, that he also cannot say when it was received to him or if he had reduced the same into writing, that he had signed the registered while leaving their office FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 23 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC 307/452/506/34 IPC & 174-A IPC 25 Of 62 and that he cannot tell the DD number of the same. He voluntarily deposed that it remained with the IO.

He further deposed that they had not made any entry in the PS which covers the jurisdiction of village Lagarpur, that they had not asked any senior person or member of Panchayat of the said village in order to accompany them, that IO was aware of the address of accused Vikas and that no one from the neighbourhood was taken by them in order to assist them in the proceedings.

He admitted that the house of Vikas was installed by big boundary walls having barbed wires and CCTV were installed around the said house. He deposed that the door was opened by mother of accused Vikas and she accompanied them in all proceedings which they initiated there, that he cannot tell how many rooms were there in the house of accused Vikas, that he cannot tell whether the drawing room was there in the house of accused Vikas or not, that he even cannot tell the numbers of room on the ground or first floor, that he cannot tell the distance between the main house and boundary wall of the house, that when they entered the house of accused Vikas, his father was also found present there, that besides parents of accused Vikas, 4-5 boys were also present and he does not know their names, that they also did not ask them their names and identities, that all persons as stated above remained there till they concluded their entire proceedings in the house, that he cannot say IO had taken signatures of the said persons on any documents or proceedings conducted at the house of accused Vikas and that IO must have 24 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC asked the parents of accused FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174-A IPC 26 Of 62 Vikas as to how accused Dhirpal was present in their house. He voluntarily deposed that he was not aware what was asked by IO and what was the answer of the parents.

He further deposed that he has not asked them, that they had neither taken the search of parents of accused Vikas or the other persons present there nor the search of the house of accused Vikas, that he cannot tell how many doors were there in the house of accused Vikas, that the back portion of the house was vacant and fencing was there, that they had not obtained the signatures of father of accused Vikas on arrest memo of accused Dhirpal including other documents, that IO had taken the hard-disc of the CCTV camera installed at the house of accused Vikas, that in his presence, no seizure memo or any document was prepared qua the hard-disc of CCTV camera, that he cannot say if the sketch of recovered pistol prepared by the IO, has been placed on record or not, that they had not visited the PP or PS having jurisdiction of Village Lagarpur even after the arrest of accused Dhirpal and that he had not intimated about arrest of accused Dhirpal on his wireless set.

He further denied that he had not participated in the raid, that nothing was recovered from accused Dhirpal, that no disclosure was made by accused Dhirpal, that accused Dhirpal was not apprehended from the house of accused Vikas, that he cannot tell the details of the house of accused Vikas as he had never visited the said house, that signatures of parents of accused Vikas and other persons are not obtained on the documents as they were not prepared 25 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC there FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174-A IPC 27 Of 62 or they were prepared at PS, that nothing was recovered from or at the instance of accused Dhirpal and that they had not intimated the PP and PS having jurisdiction of village Lagarpur about arrest of accused Dhirpal as he was not arrested from village Lagarpur.

The witness was not cross examined by Ld. Defence counsel for accused Paramjeet.

17. PW- 12 HC Sandeep Kumar was posted at CIA - Special Staff Hissar. He deposed that on 14.5.2014, he was examined by the IO of the present case of PS Najafgarh, who had recorded his statement, that on 06.03.2014, he was posted as above at CIA- Special Staff, Hissar and that on that day, he alongwith PSI Sandeep Dhankar and ASI Virender Singh and other 4-S police officials reached at the house of Vikas at village Lagarpur on the basis of secret information, where accused Dhirpal @ Kana @Dhila was found present alongwith his associates and accused Vikas and other 3-4 persons.

He correctly identified the accused Dhirpal and Vikas Lagarpuria(being seen on the TV screen as he was produced through Video Conferencing), that the photograph of accused Dhirpal was available with the IO PSI Sandeep Dhankar before reaching the house of accused Vikas and that accused Dhirpal was wanted in case FIR No. 60/14 of PS Civil Line Hissar.

He further deposed that thereafter the superficial search of accused Dhirpal was conducted by the IO and during the same, one unloaded 9 mm 26 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC pistol was recovered from his possession and its sketch was prepared and again said magazine of the said pistol was also recovered from him, that thereafter, it was sealed with the seal of SK and taken into possession vide its seizure memo which is already Mark-A which bears his signatures at point X, that seal after use was handed over to ASI Virender Singh, that thereafter, accused Dhirpal was arrested in case FIR No. 60/14 of PS Civil Line Hissar vide his arrest memo already Mark-B which bears his signatures at point X, that thereafter, accused Dhirpal was taken to CIA Staff office at Hissar and he was produced before the court concerned, that on 09.06.2014, again said on 09.03.2014, accused Dhirpal led them to his house at Najafgarh, where a heap of bricks was present near his house and he produced another pistol and 20 live cartridges from the said heap of bricks, that the sketches of said pistol and live cartridges were prepared and the same were sealed with the same seal and were taken into possession vide its seizure memo Mark-X which bears his signatures at point A and that during the interrogation of accused Dhirpal, his disclosure statement was also recorded on 07.03.2014 and the said disclosure statement is already Mark-C which bears his signatures at point B, wherein he had specifically disclosed about the commission offence pertaining to this case.

He further deposed that he joined the investigation of the present case FIR on 14.05.2014 and that IO recorded his statement u/s. 161 Cr.PC.

He correctly identified the case property ie the pistol is Ex.PW12/Pl and 20 live cartridges Ex.PW12/P2 (Colly) and the pistol recovered from the 27 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC possession of accused Dhirpal @ Kana as Ex.PW12/P3.

During his cross-examination conducted by Ld. Defence counsel for accused persons he deposed that he personally did not make any DD entry while leaving the CIA Staff, Hissar, that the same was made by PSI Sandeep Kumar, that he does not sign any register while leaving the said PS, that they reached at the village of accused Vikas Lagarpuria i.e., Vill. Lagarpur at about 3-4 p.m., the said village comes within the jurisdiction of Badli, that he does not remember the name of the chowki where it falls, that he was not aware if the village Lagarpur falls in the jurisdiction of PS Bahadurgarh, that they went to the Police Chowki at Badli prior to going to the house of accused Vikas for seeking assistance, that PSI Sandeep may have recorded the information regarding arrival in the said Chowki, that two Local police officials of the said Chowki were taken with them for raiding at the house of accused Vikas, that he does not remember their names, that PSI Sandeep des not take the signatures of said two local police officials on the proceedings of arrest of accused Dhirpal on 06.03.2014, that they did not inquire about the name of the Pradhan of the said village, that they did not take any local person with them at the time of raiding the house of accused Vikas, that the parents of accused Vikas and accused Dhirpal and 2-3 boys were present at the time of raiding at the house of accused Vikas, that he does not know if any search notice was given to the father of accused Vikas prior to taking search of his house, that he cannot say with full authority that CCTV Camera were installed in the house of accused Vikas, that he does not remember if IO had tried to 28 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC know if any CCTV cameras were installed in the said house, that no hard disk was recovered by the IO and that he does not remember, if IO had taken the signatures of the parents of the accused or of any other person present at the house of accused Vikas on the arrest memo, seizure memo, disclosure statement and other documents prepared at the house of accused Vikas.

He further deposed that he had gone through the contents of arrest memo prior to signing the same. He further submitted that he does not remember if there were any cuttings or corrections made in the said arrest memo of accused Vikas, that he does not remember if IO had given any information of arrest of accused Dhirpal to any other person and that he does not remember, if the column regarding information of arrest to the relatives of the accused was filled up by the IO or not.

He denied that accused Dhirpal was not arrested from the house of accused Vikas or nothing was recovered from the possession of accused Dhirpal or that no documents were prepared at the house of accused Vikas or that accused Dhirpal made no disclosure statement or that all the documents were prepared in our office subsequently.

He further deposed that on 07.03.2014, accused Dhirpal was produced before the learned MM, that IO may have got endorsed the document regarding accused Dhirpal before the Ld. MM, that he does not remember the house no. of accused Dhirpal, that accused Dhirpal was not taken in the PS where his house falls in jurisdiction of said PS, that they does not go the house of accused Dhirpal, that there are several houses situated near the house 29 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC of accused Dhirpal, that he does not remember in whose vacant plot, the heap of bricks was lying, that no family members or any independent persons were called for joining the recovery pistol and cartridges, that IO had prepared the site plan of the place of recovery of pistol and cartridges, that since no site plan was prepared by the IO, therefore, the same is not on record, that IO had not inquired about the ownership of said vacant plot where the pistol and cartridges were recovered, after the said recovery, that it took one hour in the proceedings of recovery, that many public persons were present at the place of recovery, but no family members of accused Dhirpal were present, that IO tried to take signatures of the public persons in the said recovery proceedings, but they refused to the same, that no legal action was taken by the IO against those public persons, who refused to sign the said recovery proceedings, that sketch of both the pistol was prepared by the IO at the spot, that however, no sketch of the cartridges was prepared by the IO, that since nothing was recovered from the possession of accused Dhirpal therefore, no sketch of the said pistols is on record and that accused Dhirpal has not shown any plot nor any heap of bricks were there, nor any cartridge or pistols were recovered.

He further deposed that on 09.03.2014, they did not inform the local police even prior or after the recovery of the pistols and cartridges. He denied that he was deposing falsely.

18. PW:-13 Ct. Santosh was the DD writer posted at police station Najafarh on 23.02.2014. She deposed that on 23.02.2014, she was posted at 30 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC PS Najafgarh, that on that day, she was working as DD writer and at about 7.15 p.m, HC Omkar, Duty Officer, PS Chhawla informed that occupant of Safari Car bearing RC No. HR 13H 3792 had fired near Reliance Fresh, BDO Office, Vikas Nagar, that she reduced the said information in DD register vide DD no. 72-B and informed about the same to SI Ranbir Singh to take appropriate action and that she had brought the original DD register containing DD no. 72-B. True copy of which is Ex.PW13/A (OSR). The witness was not cross examined by the Ld. Defence counsel despite opportunity.

19. PW14- Suveg Singh, is the Ahlmad from the court of Ms. Seema Singhal, Ld. ASJ, Hissar, Haryana. He deposed that he had brought original charge sheet and case file of FIR No. 60 dated 24.01.2014, PS Civil Lines, Hisar U/sec 302/148/149/120B/216 IPC and 25/54/59 of Arms Act, that he had seen today copy of aforesaid FIR in the judicial file which is now is Ex. PW- 14/A and memo of recovery of pistol dated 06.03.2014, arrest form of accused Dhirpal @Dhillu, disclosure statements of accused Dhirpal @Dhillu dated 07.03.2014, 10.03.2014 and 11.04.2014 and another recovery memo of pistol dated 09.03.2014 which are collectively Exhibited as Ex. PW-14/B (colly) and that he had brought today attested/certified copy of exhibit Ex. PW-14/A and Ex. PW-14/B (colly). The witness was not cross examined by the Ld. Defence counsel despite opportunity.

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20. PW15 Dinesh Kumar, he is the Assistant in the court of Sh. Vivek Singhal, Additional Sessions Judge, Hisar, Haryana. He deposed that he had brought the summoned record i.e. case file in case titled as State vs Vinod Pannu Etc in Case FIR No. 60/2014, PS Civil Line Hisar u/s 302/148/149/120-B/216 IPC and that some accused had been convicted and the file was consigned to Record Room. He deposed that the judgment was announced on 13.11.2017, that they were sentenced on 16.11.2017 and that accused Dhir Pal and Vikas were sentenced to imprisonment for a period of 7 years. He deposed that the Judgment and order on sentence is collectively exhibited as Ex. PW-15/A(OSR) (colly). Copies of the same were taken on record. On comparing the copy of FIR No. 60/2014, PS Civil Line Hisar u/s 302/148/149/120-B/216 IPC which was already Ex. PW-14/A with case file, he deposed that the seizure memo of pistol 9 mm made in USA is already Ex. PW-14/B(OSR) and that the arrest memo of Dhir Pal in FIR No. 60/2014, PS Civil Line Hisar u/s 302/148/149/120-B/216 IPC is already Mark B and exhibited as Ex. PW-15/B (OSR). He deposed that the disclosure statement of accused Dhir Pal which was already Mark C is now exhibited as Ex.PW- 15/C(OSR) and the seizure memo dated 09.03.2014 of pistol 9mm with 20 live cartridges recovered from accused Dhir Pal already Mark X is now Ex. PW-15/D(OSR). He deposed that the disclosure statement of accused Dhir Pal dated 10.03.2014 is now Ex. PW-15/E (OSR) and that the disclosure statement of accused Dhir Pal dated 11.04.2014 is Ex. PW-15/F(OSR). The witness was not cross examined by the Ld. Defence counsel despite 32 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC opportunity.

21. PW 16 Inspector Rakesh Sharma participated in some investigation qua accused Dhirpal. He deposed that on 21.03.2014 he was posted as SI at police Station Najafgarh and investigation of this case was assigned to him. He deposed that on 22.03.2014 accused Dhirpal was produced before Ld. MM at Dwarka Courts on production warrants, that he along with Ct. Rupender came to the court and that after taking permission from the court he interrogated him. He deposed that he arrested the accused Dhirpal vide arrest memo already Ex. PW-3/A bearing his signatures at point B and that he recorded disclosure statement of the accused which is already EX.PW-3/B bearing his signatures at point B. He deposed that he took two days' police custody remand of the accused, that he conducted raid on different places in order to arrest co-accused persons but no clue was found and that thereafter, accused was sent to J/C. He deposed that on 24.03.2014 ASI Hukum Chand and HC Yatender Malik had recovered Tata Safari Car bearing registration no. HR13 H 3792 by which accused had run away after the incident. He deposed that he seized the said vehicle vide seizure memo already Ex. PW-9/A bearing his signatures at point B. He deposed that thereafter, investigation of this case was assigned to Inspector Sh Ranbir. This witness deposed that accused Dhirpal is present in court and correctly identified him.

PW16 was cross examined on behalf of Ld. Defence counsel wherein he deposed that departure entry was made while leaving the police station and 33 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC that he also made his arrival entry in the Roznamcha but he does not remember DD number. He further deposed during cross examination that he also made departure and arrival entries in respect of conducting raids in different places and that at that time, accused Dhirpal was with him. He further deposed that he does not remember the time of making above said entries. He denied the suggestion that no such entry was made by him or that due to this reason he was unable to tell DD no. and time, that he had conducted all the proceedings while sitting in the police station and that he is deposing falsely.

22. PW 17 Retired SI Ranvir Singh was the Investigating Officer of this case. He deposed that on 23.02.2014 he was posted as SI at PS Najafgarh and that on that date, on receipt of DD no. 72 B, he along with Ct. Satyawan went to the spot i.e. RZ-2, Nehru Garden, Chhawla Road, Najafgarh. He deposed that complainant Bijender along with his brother and some other persons met him. He deposed that he made enquiries from Bijender and recorded his statement which is already Ex. PW-1/A bearing his signatures at point B. He deposed that he made his endorsement which is Ex. PW-17/A bearing his signatures at point A and that he sent Rukka through Ct. Satyawan to Police Station for registration of FIR. He further deposed that in the meantime, crime team was informed, that he prepared rough site plan already Ex. PW-1/B at the instance of Bijender and that same bears his signatures at point B. He deposed that Crime team came, inspected the spot and crime team 34 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC photographer took the photographs of the spot. He deposed that Ct. Satyawan returned to the spot and handed over him rukka and copy of FIR, that on search one empty cartridge was found at the spot which he converted into a sealed parcel by keeping the same in a plastic container and seized the same vide seizure memo already Ex. PW-1/B bearing his signatures at point D. He deposed that he recorded statements of public witnesses and that he returned to the police station along with case property and deposited the exhibits with MHC(M).

He deposed that on 14.03.2014, he came to know by DD no. 73B that one Dhirpal who was wanted in this case had been arrested in Case FIR no. 60/2014, PS Civil Lines, Hisar and had made disclosure statement regarding his involvement in this case. He deposed that that on 22.03.2014 accused Dhirpal was produced before Ld. MM on production warrants. He deposed that SI Rakesh Kumar was directed to conduct the proceedings regarding formalities of arrest of Dhirpal. He deposed that SI Rakesh Kumar also seized the Tata Safari Car by which accused had run away after committing the incident. He deposed that he obtained NBW in respect of accused Vikas Lagarpuria and Paramjeet Singh and that he also initiated proceedings u/s 82 Cr.PC in respect of them. He deposed that since accused Dhirpal was running in judicial custody he filed charge sheet regarding him in the court.

He deposed that on 28.05.2014, DD no. 75B was assigned to him and he came to know that accused Vikas Lagarpuria was arrested in FIR no. 351/14, PS Sadar, Jhajjar and had made disclosure statement regarding his 35 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC involvement in this case.

He deposed that on 06.06.2014 accused Vikas Lagarpuria was produced before Ld. MM and that he along with Ct. Anoop came to the court and arrested him vide arrest memo Ex. PW-17/B bearing his signatures at point A. He deposed that accused made his disclosure statement and same is Ex. PW- 17/C, bearing his signatures at point A. He deposed that he arranged photocopies of documents of FIR no. 351/14, PS Jhajjar and same are collectively marked PW-17/X. He deposed that four days' police custody remand of the accused was taken and that accused pointed out place of occurrence vide memo Ex. PW-17/D, bearing his signatures at point A. He deposed that he made efforts to arrest other accused also but no clue was found and that he recorded supplementary disclosure statement of the accused which is Ex. PW-17/E bearing his signatures at point A. He deposed that during investigation, he seized weapon from Hisar Police in the court vide seizure memo Ex. PW-17/Y, bearing his signatures at point A. He deposed that he recorded statement of witnesses of Haryana Police, that he filed supplementary charge sheet in respect of accused Vikas Lagarpuria and that he deposited case property with MHC(M). He further deposed that he sent weapon and empty cartage to FSL for comparison.

He deposed that on 22.11.2014, on receipt of DD no. 74B, he came to know that accused Paramjeet Singh was arrested by Special Cell, Rohini and would be produced before the court on 23.11.2014. He deposed that he along with Ct. Rajnish went to Rohini Court and after taking permission, he arrested 36 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC the accused in this case vide arrest memo Ex. PW-17/F. He deposed that accused made his disclosure statement which is Ex. PW-17/G, bearing his signatures at point A. He deposed that two days' police custody remand of the accused was taken, that accused pointed out place of occurrence and that he placed on record documents regarding proceedings of the Special Cell, Rohini. He deposed that after completing investigation, he prepared charge sheet and filed the same in the court, that he can identify the accused persons and that all the three accused persons are present in the court who were correctly identified by the witness. He deposed that he can identify the case property .This witness identified the cartridge as seized by him from the spot and the cartridge is Ex. P-1.

PW17 was cross examined on behalf of Ld. Defence Counsel for accused Dhirpal and Vikas wherein he admitted that nothing was recovered from accused Dhirpal and Vikas by him in this case. PW17 denied the suggestion that above said persons were not arrested in the manner as stated by him above or that accused persons did not make any disclosure statement or that he had taken their signatures on blank papers and converted them into disclosure statement and pointing out memo or that that above said accused persons has no role in the present case.

In the cross-examination conducted on behalf of accused Paramjeet PW17 further deposed that nothing was recovered from accused Paramjeet by him in this case. He denied the suggestion that investigation in this case was not conducted in fair manner or that that accused was falsely implicated in 37 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC this case or that that no such incident has ever been taken place.

23. PW-18 Ct. Dharambir, is the process server who execute the process u/s 82 Cr. PC of accused Vikas Lagarpuria. He deposed that on 04.05.2019, he had received process u/s 82 Cr.P.C against accused Vikas @ Vikas Lagarpuria s/o Sh. Surender Singh r/o Village and Post Office Lagarpur, PP Badli, Police Station Bahadurgarh, District Jhajjar, Haryana, He deposed that he had gone for execution of process u/s 82 Cr.P.C to the aforesaid address of accused on Vikas @ Vikas Lagarpuria s/o Sh. Surender Singh r/o Village and Post Office Lagarpur, PP Badli, Police Station Bahadurgarh, District Jhajjar, Haryana where he met father of accused Sh. Surender Singh who told him that he does not know the whereabouts of accused Vikas @ Vikas Lagarpuria and that the accused was not found there.

He deposed that the proclamation of u/s 82 Cr.P.C was publically read and Munadi was done in the said area, that a copy of the said process was pasted on the door of the house and that a copy there of was also pasted outside the court premises.

He deposed that his report on the process u/s 82 Cr.P.C is Ex. PW-18/A which bears his signature at point A and that he had given his statement in the court regarding execution of process under section 82 Cr.P.C against the accused.

PW18 was cross examined by Ld. Defence counsel for accused, wherein he deposed that he cannot tell the house number of accused Vikas @ 38 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC Vikas Lagarpuria and that he had called the neighbours of accused Vikas @ Vikas Lagarpuria at the time when he went at his house.

PW18 deposed that he had not recorded the statement of those neighbours and he even cannot tell the names of those neighbours. He deposed during cross examination that he had not taken any identity proof of any person who were residing at the house, where he went for the purpose of execution of process under section 82 Cr.P.C and that he was alone at that time. He deposed that he had also not met the children or wife of accused Vikas @ Vikas Lagarpuria.

He deposed that he had not called any person for executing the process by beating up the drums, that he cannot tell how many storeys were there in the house where he went for executing the process under section 82 Cr.P.C and that he had not taken any photographs qua affixation of process on the door of the house of the accused. He deposed that he had also not taken any photograph after affixing the process on the notice board of the court.

He deposed that he had not taken any police officer from the local police station within whose jurisdiction the house of accused was situated and that had even not intimated the Incharge of Police Station Badli, Haryana.

He denied the suggestion that he has wrongly executed the process under section 82 Cr.PC or that he had given false statement in the court in order to get the accused declared as proclaimed offender.

24. During prosecution, accused persons admitted, the factum of 39 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC preparation and genuineness of original FSL report (Ballistic) No. FSL 2014/F-7817 dated 08.12.2015 as Ex. P-1, accused Paramjit also admitted the factum of preparation and genuineness of DD No. 74-B dated 22.11.2014 as Ex. A1 in their statements recorded u/s 294 Cr.PC without prejudice to their defence. Accordingly, relevant witnesses qua aforementioned documents were dropped from the list of witnesses. In view of the admissions made U/s 294 Cr.P.C, the contents of the said documents are deemed to be proved by the prosecution. Perusal of the aforediscussed testimonies of police witnesses reveals that prosecution has proved the various steps taken by the investigating agency during investigation alongwith various documents, seizure memos and other memos prepared by the investigating agency as well as the identity of the accused persons and case property i.e. cartridge, pistol, Tata Safari etc.

25. Thereafter, prosecution evidence was closed vide order dated 23.03.2023 at the request of the Ld. Additional Public Prosecutor as all material witnesses were examined and the matter was fixed for recording statement of accused persons under Section 313 Cr.P.C.

STATEMENT OF ACCUSED PERSONS U/s 313 Cr.PC

26. On 29.03.2023, the statements of accused persons under Section 313 40 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC Cr.P.C. were recorded and all incriminating circumstances appearing in the evidence were put to them and they replied that the facts alleged by the prosecution are incorrect, that they are innocent, that they have been falsely implicated in the present case, that the witnesses are the interested witnesses and that he have been arrested falsely by the police officer. They did not opt to lead defence evidence and therefore, defence evidence was closed. Thereafter, matter was fixed for final arguments.

FINAL ARGUMENTS

27. Sh. Girish Kumar Manhas, Ld. Additional Public Prosecutor argued that the prosecution witnesses have clearly established the prosecution version that on 23.02.2014, accused persons namely Dhirpal @ Kanna @ Dheela, Vikas @ Vikas Lagarpuria and Paramjeet in furtherance of their common intention committed house tresspass by entering into house/office of complainant Bijender i.e. RZ-2, Nehru Garden Colony, Near Reliance Fresh, Main Gurgaon Road, Najafgarh after having made preparation for causing hurt to or assaulting or wrongfully restraining the complainant or to put him in fear of hurt or of assault or of wrongful restraint, that the accused persons had criminally intimidated the complainant by threatening him with injury to his person with intention to cause alarm to the complainant and that the accused persons fired upon complainant with such intention or knowledge and under such circumstances, that if death is caused, accused persons would have been 41 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC guilty of murder. He further argued that the factum of happening of the alleged incident of firing by using pistol in the alleged manner is duly established. He further submitted that the fact that the complainant and other eye witnesses have retracted qua the identity of the accused persons as offenders and the manner of happening of the incident does not in any way effect the veracity of the consistent testimony of the police witnesses as they did not have any previous enmity with the accused persons. He further stated that moreover the complainant/eye witnesses in such cases turn hostile due to fear of future enmity with the offenders, so the firm testimony of the police cannot be discarded in such circumstances . He further stated that the factum of accused Vikas Lagarpuria having absconded during trial and being declared as proclaimed person punishable under section 174 A IPC is also duly proved on record. He submitted that, in these facts, all the accused persons be convicted for the offences charged as the ingredients necessary for completion of alleged offences are established beyond reasonable doubts by the prosecution.

28. Ld. counsels for the accused persons argued that the complainant and other eye witnesses who are the Star witnesses of the prosecution have not supported its version qua happening of the incident in the alleged manner, presence of accused persons at the spot and the identity of the accused persons as assailants. They argued that the testimony of the police witnesses is of no 42 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC consequence in view of hostility of the main eye witnesses/complainant. They further stated that the hostility of the complainant and other eye witnesses substantiates the defence version of false implication of the accused persons by the police witnesses by manipulating the documents for working out the case who have obtained signatures of the eye witnesses on blank documents. Ld. Counsel for accused Vikas Lagarpuria submitted that the proceedings under section 82 Cr. P.C. were not executed properly and hence no offence punishable under section 174A IPC is made out against him. They further stated that the accused persons in these circumstances should be acquitted.

29. This court heard the arguments advanced by the Ld. Additional PP for the State and Ld. Counsel for the accused persons as well as perused the record of the case.

APPRECIATION OF FACTS/CONTENTIONS/EVIDENCE AND REASONING/FINDINGS:

30. The case of prosecution is that accused Vikas Lagarpuria went to the office of PW1 alongwith co-accused Dhirpal @ Kana and Paramjeet in Tata Safari Car bearing no.HR-13H-3792. The accused Vikas Lagarpuria asked PW1 as to who is Bijender and Prem/PW2. Upon confirming about the said facts, the accused Vikas Lagarpuria asked Bijender/PW1 that you slapped 43 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC Bharte and PW1 Bijender stated that it is the election matter, which infuriated the said boy who threatened them that he would first kill Manjeet Mahal and thereafter will kill him. The said accused Vikas Lagarpuria thereafter fired one shot on PW1 Bijender who diverted the same by giving hand blow to the pistol due to which bullet collided on the floor and thereafter the said accused fired on one Santosh who also gave hand blow to the pistol due to which the bullet had gone into air. It is further case of prosecution that after firing, Vikas Lagarpuria ran away from the office, that PW1 Bijender, PW2 Prem, PW4 Devender and PW7 Santosh found accused Dhirpal @ Kana having a pistol in his hand standing near the main gate who intimidated PW1/complainant with injury to his person with intention to cause alarm to the PW1/complainant and that both the said co-accused persons fled away in a Tata Safari car bearing HR-13H-3792 in which co-accused Paramjeet was present on the driver seat and on other side of the road a Honda City car having 2-3 persons was standing which accompanied the aforesaid Safari car in fleeing away from the spot. It is further the case of prosecution that accused Vikas Lagarpuria was declared a proclaimed person during the pending of the trial and the said accused was later on apprehended and produced before the court upon which separate charge u/s 174A was framed against him.

31. The defence version is that accused persons have been falsely implicated in the present case, that the witnesses have deposed falsely against them being 44 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC interested witnesses and that the case of prosecution is incorrect.

32. Keeping in view the aforesaid versions and charge punishable u/s 307/452/506/34 IPC against all the accused persons and also u/s 174A IPC against accused Vikas Lagarpuria, for establishing the guilt of accused persons, it is imperative for the prosecution to establish the factum of sharing of common intention by all of them to commit the alleged offences punishable u/s 307/452/506/34 IPC, the identity of the accused persons as the assailants, their presence at the spot, the alleged manner of happening of the incident and the factum of due execution of process u/s 82 Cr.PC against accused Vikas Lagarpuria. For proving the aforesaid ingredients, the prosecution examined 18 witnesses out of which PW-1/Complainant Bijender Singh, PW2/Prem Singh, PW4 Devender and PW7 Santosh are the most important witnesses being the victims and eye witnesses of the incident and the remaining witnesses are the police officials who carried out the investigation based on the version of the complainant/victim.

Henceforth, this court shall now proceed further to evaluate the evidence available on record to find out if the prosecution has succeeded in its task or not.

33. Perusal of the testimonies of PW1 Bijender, PW2 Prem, PW4 Devender 45 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC and PW7 Santosh as described in the earlier part of the judgment reveals that PW1, PW2, PW4 and PW7 testified in their examination in chief regarding their presence at the spot as they all were playing cards in the office at RZ-2, Nehru Garden Colony, Near Reliance Fresh, Main Gurgaon Road, Najafgarh. PW1, PW2 and PW4 also deposed about the taking place of incident of firing but PW7 simply stated that nothing happened in his presence and did not say anything about the incident of firing. These inconsistent testimonies create serious doubt about their presence at the spot together which further shows that their depositions are not trustworthy. It is further evident from the testimony of PW1 that he simply stated that a boy came in his office and stated his name as Vikas Lagarpuria who later on fired at him but he did not state anywhere that said boy is the same person who is arrayed as an accused in this case and is having the name Vikas Lagarpuria. He further deposed that the person who fired upon him was not present in the court. PW2 did not even take the name of the boy who fired as Vikas Lagarpuria and simply deposed that one boy arrived who fired. PW4 did not even talk about the factum of visit of any boy in the name of Vikas Lagarpuria in the office and simply stated that after hearing the sound of gun shot they all came out of the office. PW7 did not utter a single word about the visit made by boy namely Vikas Lagarpuria on the said day as well as the incident of firing. These incoherent testimonies of the star witnesses show that they did not say anything about the presence of accused Vikas Lagarpuria who is arrayed an accused in this case as well as about the factum of firing made by him. It is also seen that the said 46 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC eye witnesses did not say anything about the presence of remaining accused persons at the spot as well as about their identity. So, these depositions indicate that the identity of accused Vikas Lagarpuria and other accused persons, being the assailants, is not established by these witnesses.

34. It is further pertinent to mention that Ld. Addl. PP for State was permitted to cross examine all these witnesses as they were resiling from their earlier statements but the state failed to extract any material in its favour despite detailed cross examinations. These PWs firmly denied the suggestions put on behalf of the State that accused Vikas @ Vikas Lagarpuria present in the court today is the person who had fired towards him, that accused Dhirpal @ Kana present in court today was also with the accused Vikas Lagarpuria, that accused Vikas Lagarpuria had fired twice at the spot, that when accused Vikas Lagarpuria was running towards outside accused Dhirpal was standing at the gate having a pistol in his hand, that accused Dhirpal had threatened PW1, that they saw that both persons present in the court had come in a Tata Safari car, that they had seen both these accused persons present in the court in Tata Safari car alongwith one person namely, Paramjeet, that they had noted the number the said Tata Safari vehicle or that its no. is HR13-H-3792 and that they had seen another car of the associates of the accused persons accompanying them which was a Honda City car. The aforesaid firm denials of these witnesses show that they do not support the prosecution version qua 47 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC the identity/involvement of the accused persons in the alleged incident as well as qua the alleged manner in which the incident happened.

The firm denial of these witnesses qua the fact that they had compromised the matter with the accused persons outside the court and hence are not deposing against them, that they have been won over by the accused persons, that due to fear of their life they are not supporting the correct versions, that due to fear of their life they have not identified the accused persons as the culprits, substantiates that their testimonies are voluntary in nature and that their non identification of accused persons is not a result of any tutoring/under influence. It follows from the aforestated analysis of testimonies that prosecution could not establish its case through these star witnesses qua the identity of the accused persons as offenders as well as the manner of happening of the alleged incident.

35. Record further shows that PW1 denied factum of recording of statement by the police and voluntarily reaffirmed his deposition as made in the examination in chief that his signature was obtained by the police on some papers which were not read over by him. In the cross examination conducted by Ld. Addl. PP for State, PW1 denied that empty cartridge lying on the spot was sealed and seized by the police in his presence and further denied stating the said facts to the police on being confronted with the statement Mark P1/A. He further admitted that seizure memo of empty cartridge Mark P1/B bears 48 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC his signature but voluntarily explained that his signature were obtained by police on some papers. He further denied that Mark P1/B was read over by the police to him after obtaining his signature. In the cross examination conducted by Ld Defence Counsel, he admitted that his signatures were obtained on blank papers and that he does not have any pressure on him. In the cross examination conducted on behalf of accused Parmjeet, he admitted that he had not seen the number of above said Tata Safari car and that his statement mark Ex. PW1/A was not read over to him by the police and his signatures were obtained on blank papers. These testimonies established that PW1 completely disowned, his participation in the investigation vide aforesaid memos as well as the prosecution version of seeing the number of Tata Safari car by him and thus establishing the identity of the said car.

Similarly, PW2 stated in the cross-examination conducted by Ld. Addl. PP for State that police had not recorded his statement and denied making of any such statement Mark X on being confronted with the same. Similarly, PW4 stated in his examination in chief that police neither made any enquiry from him nor any statement was recorded. In the cross-examination conduced by Ld. Addl. PP for State, PW4 denied having stated the contents mentioned in statement Ex. PW4/A despite being confronted with the same. Similarly, in the cross examination conducted by Ld. Addl. PP for State, PW7 Santosh denied that police had recorded his statement, that the statement u/s 161 Cr.PC with which he was confronted, was not given by him to the police and 49 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC further denied that the statement mark A was given by him to the police.

36. These testimonies of PW-1, PW2, PW4 and PW7 show that they not only failed to identify the accused persons as offenders who had tress passed into the office of PW1 and also fired two gun shots but also shattered the prosecution version with respect to the conducting of fair investigation by disowning their statements PW1/A, Mark X, PW4/A, Mark A, Mark P1/A and Mark P1/B recorded by the police thereby indicating that chances of manipulation of documents by the investigating agency cannot be ruled out benefit of which should accrue in favour of accused persons. It is pertinent to mention that PW1 specifically deposed in the cross-examination conducted by Ld. Addl. PP for State that he cannot identify any cartridge and further denied the suggestion put to him to negate the said deposition. This testimony further demolishes the prosecution version of recovery of empty cartridge at the instance of PW1 and indicates that chances of planting the cartridge cannot be ruled out. It thus creates serious doubt upon the correctness and truthfulness of the investigation conducted by the police.

37. Perusal of testimony of PW9 reveals that the TATA SAFARI vehicle bearing no. HR13H3792 was found at village Chhawla firni road in pursuance of secret information but both the accused persons namely Vikas Lagarpuria and Paramjeet Singh qua whom the secret information was given had already 50 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC gone leaving the aforesaid TATA SAFARI. This testimony alongwith the aforediscussed depositions of eye witnesses who retracted from their versions establishes that there is no material or circumstance to connect the said accused persons with the use of said SAFARI CAR in the alleged incident. Record shows that PW17/IO SI Ranbir Singh admitted that nothing was recovered from the accused persons by him in this case. So, admittedly, there is no recovery of any incriminating material or discovery of facts in pursuance of the disclosure statements recorded by the police. It implies that the disclosure statements are of no use to connect the accused persons with the alleged offences.

38. It is pertinent to mention that even the duly admitted Ballistic Report Ex. P-1 does not come to the rescue of the prosecution version. Perusal of the report reveals that the expert has observed that the firing pin marks present on exhibit empty cartridge case marked EC1(allegedly recovered from the spot) are not similar with the firing pin marks present on test cartridge cases fired through exhibit improvised pistol Mark F2(allegedly recovered from possession of accused Dhirpal@ Kana) and thus it is opined that the exhibit empty cartridge case marked EC1 had not been fired through the exhibit pistol marked F2. Here it is pertinent to mention that PW1 has affirmed in his cross examination conducted by Ld. Additional PP for the state that he cannot identify any empty cartridge and voluntarily explained that how can he 51 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC identify any cartridge when the same was not seized in his presence.This testimony indicates that the factum of recovery of the cartridge from the spot and its identity are highly doubtful which implies that chances of subsequent planting of the same to workout the case as the accused persons have previous criminal antecedents, cannot be ruled out. It shows that there is no material to connect the cartridge recovered from the spot by the police officials with the pistols seized from the possession of the accused Dhirpal which further establishes that the recovery of pistols along with cartridges at the instance of said accused is of no consequence to connect him with alleged offences.

39. Record shows that the testimony of PW-10/ Ct. Satyawan who was the first person alongwith PW17 Retd. SI Ranvir Sing to reach the spot, PW11 ASI Virender Singh, Haryana Police who went to the house of Vikas Lagarpuria on an information that accused Dhirpal @ Kana would meet in that house, PW12 HC Sandeep who accompanied PW11 to the village of Vikas Lagarpuria, PW16 who arrested the accused Dhirpal and conducted proceedings qua him and PW17 Retd. SI Ranvir Singh are full of several omissions and discrepancies (non joinder of public persons during investigation, not telling the DD numbers qua their departure and arrival to an fro police station, failure to tell various basic facts which a police official cannot forget if he has actually participated in the investigation etc.) which, in view of retraction of the victims qua identity of accused persons as assailants, have the impact of creating grave suspicion on the factum of arrest, search, 52 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC seizure and recovery allegedly made at the places stated by the prosecution, as the very presence of said PWs at the spot and place of arrest, search, seizure and recovery, is highly doubtful.

40. It follows from aforesaid testimonies and discussion that factum of commission offence punishable u/s 307/452/506 IPC read with section 34 IPC by the accused persons is not established at all.

41. Record shows that the police officials did not even make any sincere efforts to collect the dump data/CCTV footages of the spot as well as nearby areas so as to establish the presence of the accused persons on the relevant date at or near the spot. This again is an unexplained material omission on the part of the investigating agency which renders the investigation doubtful and substantiates the defence version of false implication of the accused persons.

42. Perusal of the record shows that PW-1, PW2, PW4 and PW7 are the main eye witnesses of the incident being the victim/complainant and his relatives/friends who were playing cards at his office. Mere reading of testimony of police witnesses PW3 Ct. Rupender, PW5 Ct. Suraj Bhan, PW6 HC Sultan, PW8 Ct. Rajesh, PW9 HC Yatender Malik, PW-10/ Ct. Satyawan who was the first person alongwith PW17 Retd. SI Ranvir Singh to reach the spot, PW11 ASI Virender Singh, Haryana Police who went to the house of Vikas Lagarpuria on an information that accused Dhirpal @ Kana would meet 53 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC in that house, PW12 HC Sandeep who accompanied PW11 to the village of Vikas Lagarpuria, PW16 who arrested the accused Dhirpal and conducted proceedings qua him, PW17 Retd. SI Ranvir Singh who is IO of this case and PW18 Ct. Dharambir who executed the process u/s 82 Cr.PC, shows that they are not the eye witnesses of the incident and have merely conducted the investigation based on the version stated by the complainant/victim. Furthermore, it is already established, that no incriminating material was recovered or discovered at the instance of accused persons and that PW-1, PW2, PW4 and PW7 have identified neither the accused persons as assailants nor the case property (Cartridge, Tata Safari car etc). They further firmly denied the factum of recording of their statements and completely disowned their statements PW1/A, Mark X, PW4/A, Mark A, Mark P1/A and Mark P1/B recorded by the police u/s 161 Cr.PC regarding the said identification of accused persons, manner of happening the incident despite confrontation. These testimonies indicate that chances of manipulation of the documents by the police are not ruled out. It further creates grave doubt upon the fairness and impartiality of the investigation which renders the same nugatory. In these facts, submissions made by Ld. Addl. PP for State that the complainant and other eye witnesses have retracted qua the identity of the accused persons as offenders and the manner of happening of the incident does not in any way effect the veracity of the consistent testimony of the police witnesses as they did not have any previous enmity with the accused persons, do not have any force. So, testimonies of the aforesaid police witnesses, in view of the 54 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC retraction of the complainant, are of no consequence to incriminate the accused persons for the alleged offences and the arguments of the Ld. Addl. PP for State.

43. It is already evident from the aforementioned discussion that identity of the accused persons as offenders has not been established. So, question of sharing of common intention by the accused persons to commit house trespass by entering into house/office of complainant Bijender i.e. RZ-2, Nehru Garden Colony, Near Reliance Fresh, Main Gurgaon Road, Najafgarh after having made preparation for causing hurt to or assaulting or wrongfully restraining the complainant or to put him in fear of hurt or of assault or of wrongful restraint, criminally intimidating the complainant by threatening him with injury to his person with intention to cause alarm to the complainant and firing upon complainant with such intention or knowledge and under such circumstances, that if death is caused, accused persons would have been guilty of murder, does not arise and the same needs no discussion. Moreover, the prosecution did not bring any material suggesting the sharing of common intention by the accused persons for commission of the alleged offences. Neither any telephonic record or nor any other electronic evidence or other direct evidence has been brought on record suggesting even their presence at the spot so as to assume that there was ever an occasion for the accused persons to share common intention for committing the alleged offences at the spot.

55 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC

44. With respect to the charge for the offence punishable u/s 174 A Cr.PC framed against the accused Vikas Lagarpuria, the relevant witness examined by the prosecution is PW-18 Ct. Dharambir who executed the process u/s 82 Cr.PC against the said accused in compliance of order passed by Ld. Predecessor Court. Perusal of the testimony of PW18 reveals that he proved his report Ex. PW18/A qua the process u/s 82 Cr.PC.

45. For analyzing the testimony of PW18 regarding the due and proper execution of process u/s 82 Cr.PC, it is pertinent to reproduce the manner of publication of process as prescribed u/s 82 (2) Cr.PC.

Section 82(2) in The Code Of Criminal Procedure, 1973 provides that:

(2) The proclamation shall be published as follows:-

(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;

(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;

(c) a copy thereof shall be affixed to some conspicuous part of the Court- house;

(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper 56 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC circulating in the place in which such person ordinarily resides.

46. In the present case, the Ld. Predecessor Court did not pass an order for execution of process by way of publication in daily newspaper. So, discussion on this aspect is not required. Keeping in view of the aforesaid ingredients, this court is now scrutinizing the testimony of PW18 to see whether the process u/s 82 Cr.PC was actually executed or not as per the prescribed procedure.

47. In the cross examination conducted by Ld. Counsel for accused Vikas Lagarpuria, PW18 stated that he cannot tell the house number of accused Vikas @ Vikas Lagarpuri. He deposed that he had called the neighbours of accused Vikas @ Vikas Lagarpuria at the time when he went at his house but he had not recorded the statement of those neighbours, that he even cannot tell the names of those neighbours and that he cannot tell how many storeys were there in the house where he went for executing the process under section 82 Cr.P.C. The failure of PW18, to tell the house number of accused, the names of neighbours called by him at the time of execution of process u/s 82 Cr.PC, to even record the statements of those neighbours and to tell the number of storeys in the house, creates grave doubt upon his executing the process u/s 82 Cr.PC by actually going to the house of accused. His further testimony that he had not taken any identity proof of any person who were residing at the house 57 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC where he went for the purpose of execution of process under section 82 Cr.P.C, again creates grave suspicion on the due execution of process at the given address as he did not follow normal procedure to establish the identity of the person found on the given address.

48. He deposed that he had not called any person for executing the process by beating up the drums and that he had not taken any photographs qua affixation of process on the door of the house of the accused and on the notice board of the court. It is evident from the said deposition that the normal procedure to be followed to establish the due execution of the said process i.e. beating of drums, publically reading the same in some conspicuous place of the village and taking photographs of the duly affixed process at the house and the court house, is missing in the present case. These testimonies show that the factum of execution of process by PW18 by going to the house of the accused is not believable.

49. Furthermore, he firmly deposed that he was alone at the time of execution, that he had not taken any police officer from the local police station within whose jurisdiction the house of accused was situated and that had even not intimated the Incharge of Police Station Badli, Haryana. Admittedly, the address of the accused where the process was executed is VPO Lagarpur, Teh. Bahadurgarh, District Jhajjar, Haryana which falls in Haryana and the process server is Delhi police personnel who had gone for 58 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC execution from Delhi in compliance of order passed by Ld. Predecessor Court. These testimonies show that his presence at the given address has come under grave doubt as he did not follow the usual procedure of calling/intimating the police officials of the concerned area in case of Interstate execution of process. Furthermore, PW18 did not say anything about recording of DD entry before his departure from Delhi for execution of process u/s 82 Cr.PC in Haryana and arrival entry on his return to Delhi, which being a material omission again indicates that PW18 did not go the house of the accused in Haryana for execution of process u/s 82 Cr.PC. It thus emerges from the aforestated testimonies and observations that prosecution failed to establish the due execution of process u/s 82 Cr.PC which is sine qua non for fastening criminal liability against the accused Vikas Lagarpuria for offence u/s 174 A IPC.

50. The aforesaid finding is fortified from the following observation made by Hon'ble High Court of Delhi in paras no. 8, 9, 10, 11, 12 of judgment tilted as Dr. Shahnawaj V. State & Ors. decided on 22.05.2014 by Hon'ble Mr. Justice, Ved Prakash Vaish "8. It is crystal clear from the bare perusal of the provisions contained in Section 82(1) and (2) of Cr.P.C. that there are certain requirements which have to be complied with and the the requisite procedure as provided therein which needs to be followed.

9. Law is not that once a proclamation is issued against 59 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC any person by the Court of law, there is no option available to the Court issuing such proclamation but to declare said person as a proclaimed offender. Rather, the law prescribes the mode and the manner in which such proclamation has to be published. For the said purpose, it would be useful to refer to sub-section (1) of Section 82 Cr.P.C. which specifically provides that proclamation requiring any person to appear at a specified time, must be given complete thirty days time for his/her appearance from the date of publication of such proclamation.

10. Further, clause (i) of Sub Section (2) of Section 82 Cr.P.C. expressly lays down the manner in which the proclamation has to be published by mentioning that:-

(i) such proclamation needs to be publically read in some conspicuous place of the locality where such person ordinarily resides;

(ii) such proclamation has to be affixed at some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such locality; and

(iii) a copy of such proclamation needs to be affixed at some conspicuous part of the Court room.

11. It is only after the aforesaid conditions together are fulfilled, Court is supposed to make a declaration regarding proclaimed offender. Thus, the Court is enjoined upon to apply its mind and to consider as to whether all the conditions as mentioned in Sub Section (1) and (2) (i) as also envisaged in clause (ii) of Sub Section (2) of Section 82 Cr.P.C., in case direction has been issued for publication of copy of proclamation in daily newspaper has been issued, have been complied with or not.

12. It needs no emphasis that in case any of the aforementioned conditions is not fulfilled or found to have been complied with, then Court is well within its right to reject the report and to issue fresh proclamation against said person according to law.

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51. Regarding the burden of proving the prosecution version it is pertinent to mention the case law reported as "Sadhu Singh Vs. State of Punjab :

1997 (3) Crime 55, wherein the Punjab & Haryana High Court had observed that-

" In a criminal trial it is for the prosecution to establish its case beyond reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".

52. Following the aforesaid observations and considering the inconsistencies and incoherent testimonies, this Court is of the view that prosecution has not been able to travel the entire distance from 'may have' to 'must have' and thus it can not be said that prosecution has been able to prove its case beyond reasonable doubts.

53. It thus emerges from the aforesaid discussion and perusal of testimonies of PWs as well as record that there is neither any reliable eyewitness of the incident nor any other circumstance to prove the sharing of common intention by the accused persons to commit house trespass by entering into house/office of complainant Bijender i.e. RZ-2, Nehru Garden Colony, Near Reliance Fresh, Main Gurgaon Road, Najafgarh after having made preparation for causing hurt to or assaulting or wrongfully restraining the complainant or to put him in fear of hurt or of assault or of wrongful restraint, criminally intimidating the complainant by threatening him with injury to his person with 61 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC intention to cause alarm to the complainant and firing upon complainant with such intention or knowledge and under such circumstances, that if death is caused, accused persons would have been guilty of murder, the identity of the accused persons as the assailants, their presence at the spot, the alleged manner of happening of the incident and the due execution of process u/s 82 Cr.PC against the accused Vikas Lagarpuria, which are essential elements for completion of offence punishable u/s 307/452/506/34 IPC.

54. Considering the afore-discussed testimonies, this Court is of the view that arguments advanced by the Additional Public Prosecutor for the State that the prosecution has proved all the ingredients necessary for completion of the alleged offences do not have any force whereas the arguments made on behalf of defence that the accused persons have been falsely implicated are found to be justified.

55. In view of the aforesaid discussion, this Court is of the view that the prosecution has not been able to prove its case against the accused persons beyond reasonable doubts. Accordingly, accused persons namely Vikas Lagarpuria, Dhirpal @ Kana and Paramjeet are hereby acquitted of charge punishable u/s 307/452/506 read with Section 34 IPC levelled against them and accused Vikas Lagarpuria is further acquitted for the offence punishable under section 174 A IPC levelled against him. Bail bonds stands cancelled and Sureties be discharged, if any. Documents, if any, 62 Of 63 FIR no.153/14 State vs Dhirpal @ Kana & Ors PS Najafgarh U/s 307/452/506/34 IPC & 174A IPC be returned to the rightful person against receiving and after cancellation of endorsement, if any.

56. Bail bonds and surety bonds furnished in compliance of Section 437 (A) Cr.P.C are considered and accepted for a period of six months from today.

57. File be consigned to the Record Room after due compliance.

Announced in the Open Court                    (VIPLAV DABASS)
on 29.04.2023                              Additional Sessions Judge
                                         Fast Track Court, Dwarka Courts,
                                              New Delhi/29.04.2023




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Delhi District Court

State vs Dhirpal @ Kana & Ors on 29 April, 2023