Delhi District Court
State vs . on 27 September, 2012
1
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE II, OUTER DISTRICT
ROHINI COURTS : DELHI
IN RE : Sessions Case No. : 23/10
FIR No. : 385/09
P.S. : Mangol Puri
U/s : 302 IPC
Date of registration : 30032010
Reserved for Judgment on: 07092012
Judgment Announced on : 27092012
State
Vs.
Pawan Garg
S/o Ishwar Singh Garg
R/o H. No. C29,
Mubarak Pur,
Kirari Chowk, Prem Nagar1,
Nangloi, Delhi86
JUDGMENT
1. Briefly stated the present case was registered on the statement of complainant Anil Kumar S/o Late Sh. Prem Singh who is the alleged eye witness of the incident. As per the complainant on 13112009, at about 10:00 a.m he came to Sessions Case No. : 23/10 Page 1 of 56 2 Furniture Market Mangol Pur for purchasing some furniture for his house but he could not get the furniture according to his choice. Therefore, he was going back towards his house from market on his motorcycle. When at about 12:15 p.m the complainant took a left turn from Jagat Chowk and reached in front of the Majar on Sanjay Gandhi Road, he saw that on white colour Scorpio which was coming from the side of Sanjay Gandhi Hospital suddenly hit the bullet motorcycle with force as a result of which the motorcyclist crossed the railing after breaking the same and fell towards the other side of the road and Scorpio also crossed the railing after breaking it and came on the other side of the road.
2. As per the complainant when the driver of the Scorpio car got down, the complainant identified him as Pawan Garg as he was known to the complainant before hand. As per the complainant Pawan Garg reached near the motorcyclist who was lying on the road; Pawan Garg stood on the chest of the motorcyclist and started abusing and saying that "Mai Jeet Gaya, Main Jeet Gaya". As per the complainant when he parked his motorcycle, he saw that accused Pawan Garg again crushed the motorcyclist who was lying on the road with his Scorpio. Sessions Case No. : 23/10 Page 2 of 56 3
3. In the meantime many public persons gathered there. Complainant also went there and found that motorcyclist was his cousin brother Sanjit @ Sanju. It is alleged by the complainant that Pawan Garg used to suspect about illicit relationship of his wife with Sanjeet @ Sanju and some altercation had also taken place earlier between two of them on this issue. As per the complainant Pawan Garg had also threatened his brother Sanjit @ Sanju to kill. It is further alleged by the complainant that alongwith Pawan Garg his wife Parul, father Ishwer, and his bhabi were also sitting in the Scorpio. PCR came at the spot, and complainant got his brother sent to Sanjay Gandhi Hospital in the PCR with the help of other persons. Thereafter complainant also reached at Sanjay Gandhi Hospital on his motorcycle.
4. F.I.R. bearing No. 385/09 was registered at P.S. Mangol Puri and investigation went underway. Accused was arrested. After completion of investigation final report U/s 173 Cr.P.C. was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.
5. On 06/07/2010, a charge U/s 302 IPC was Sessions Case No. : 23/10 Page 3 of 56 4 framed against the accused to which he pleaded not guilty and claimed trial.
6. In order to prove the guilt of the accused, the prosecution examined as many as 25 witnesses.
7. PW 1 Anil Kumar is the eye witness of the case. He is a material witness, I will discuss his testimony in the later part of the judgment.
8. PW 2 Ms. Shakuntala Devi deposed that Sanjeet @ Sanju was her younger son. Her house is in front of the house of accused Pawan Garg. Accused has three brothers and they are in the business of utensils. Almost every day there used to be a quarrel between her son Sanjeet and Pawan Garg accused over parking of vehicles. Three, four vehicles of the accused used to be parked in front of their gate and it used to obstruct their exit and entry gate and her son used to find it difficult to take out his motorcycle.
9. She further deposed that a major quarrel took place between Pawan Garg and her son one year prior to the date of incident. Again a major quarrel took place between her son and Pawan Garg six months and three months prior to the date of incident. On the day of the incident also quarrel took Sessions Case No. : 23/10 Page 4 of 56 5 place between her son Sanjeet and the accused and family members of both the parties had to intervene.
10. She further deposed that all the quarrels narrated above were witnessed by her. Accused Pawan Garg always used to threaten her son by saying " Me tujhe dekh lunga , upne din gin le Main tujhe jaan sa mar dunga". She further deposed that on 13.11.2009, her son went to drop her husband at Nangloi on his motorcycle. When her son returned, he saw that accused Pawan Garg had parked his Scorpio in front of the gate. Her son came to her and said look Pawan Garg has again done the same thing. She made her son understand. After some time her son left on his motorcycle and within seconds Pawan Garg also left in his scorpio. Some family members of Pawan garg were also sitting in his scorpio at that time.
11. She further deposed that after about 45 minutes she received a telephone call from her son and she talked to him. She asked from him about his whereabouts. He told her that he was somewhere in Peera garhi. He told her that he had quarrel with Pawan Garg. She asked her son to come back home. After some time Balkishan elder brother of Pawan Garg came to her house. He told her that a quarrel had taken Sessions Case No. : 23/10 Page 5 of 56 6 place between Sanjeet and Pawan and that his family members are calling her at their house. She went to the house of Pawan Garg where she met Jagdish. She asked Jagdish about the whereabouts of Pawan Garg and Sanjeet. He told her that both of them are coming back. She told him let them come back then they would undertake a joint sitting of family members of both the families and make them understand. She had called Mahesh a friend of Sanjeet to her house. A call was received from the mobile phone of her son on the phone of Mahesh but the caller was an unknown person. The caller told that a incident had taken place with Sanjeet near Mangol Puri Mazzar and some member from the family should reach there. Mahesh and Sanjay left immediately on the motorcycle. She alongwith her son Sudhir left in a car and started for spot but she received a call from Sanjay who told her to reach at hospital as her son Sanjay had expired.
12. PW 3 Sudhir Kr. deposed that Sanjeet @ Sanju was his younger brother. In his neighbourhood Garg family used to reside in house No: C29 and are in the business of utensils. Ishwer Chand had four sons and one daughter. Accused Pawan Garg is the youngest son of Ishwer Chand. He Sessions Case No. : 23/10 Page 6 of 56 7 further deposed that usually loaded vehicles of big sizes used to come for unloading the consignment. Whole day two or three threewheelers used to come and after loading the consignment of utensils used to go. In the meanwhile, there used to be obstruction in the street in coming and going of other vehicles.
13. He further deposed that his younger brother Sanjeet usually used to ask members of Garg family to give instructions to the three wheelers and the vehicles to park at one side of street so that other vehicles may pass from there but members of Garg family did not pay any heed to his request and continued in the same manner. About five six months prior to 13.11.2009 a big vehicle loaded with consignment of utensils was parked in the street and his younger brother Sanjeet called at the door of Garg family to remove the vehicle. Accused Pawan Garg came from inside the house and he started abusing his brother and asked that the vehicles would be parked there as usual.
14. He further deposed that on 11.11.2009, his brother Sanjeet tried to take out his motor cycle from his house but loaded vehicle was parked in the street in front of their gate. Accused was going out of his house on foot, his brother asked him to ask the driver to remove the vehicle from front side of their Sessions Case No. : 23/10 Page 7 of 56 8 gate but he caught hold of the collar of his brother and further told that he would see him. On that day both the family members sorted out the matter and matter was pacified.
15. He further deposed that on 13.11.2009, at about 10.30 a.m. his brother Sanjeet tried to take out his motor cycle from the house but at that time Scorpio of Garg family was parked in front of their gate. His brother could not take out his motorcycle from the house due to parking of Scorpio outside their house. His brother called at the gate of Garg family to remove the Scorpio from the gate of their house so that his brother could take out his motorcycle. Meanwhile, accused Pawan Garg came out and told "Tero Ko he jayada dikat hoti hai" and he picked up a quarrel with his brother Sanjeet and also did "haatha pai" with his brother Sanjeet.
16. He further deposed that his parents came out of the house and father and other family members of accused Pawan Garg also came out of the house. Both of them intervened and again the matter was sorted out. At that time accused Pawan garg threatened his brother "Tere ko main dekh lunga tere par bahut nikal Ayan hein and tera main AK do din main hisab kar dunga." His Brother Sanjeet did not bother about Sessions Case No. : 23/10 Page 8 of 56 9 the threats of accused and left on his motor cycle to drop his father and accused and family members went inside their house.
17. He further deposed that after some time his brother returned after dropping his father and again left on his motorcycle. After some time accused Pawan Garg came outside the house alongwith his father, his wife and Bhabi, sat in the scorpio and left. He further deposed that thereafter, he came to his house. At about 12 noon his mother came to him, and told him that Balkishan the elder brother of accused Pawan Garg had come to her and told her that a quarrel had taken place between his brother accused Pawan Garg and deceased Sanjeet in Paschim Vihar. His mother had received a phone call from the stranger on mobile phone of his brother Sanjeet that a hadsa had taken place at Mangol Puri with Sanjeet. He alongwith his mother reached Sanjay Gandhi hospital. PW 3 identified the scorpio as Ex.P1 and motorcycle as Ex. P2.
18. PW 4 Rahul is also the eye witness of the incident. He is a material witness and I will discuss his testimony in the later part of the judgment.
19. PW 5 Latafat Ali ranged up the police at No. 100 from his mobile No. 9999738794 after seeing the accident Sessions Case No. : 23/10 Page 9 of 56 10 and thereafter he had left the spot.
20. PW 6 H.C. Moti Ram deposed about the depositing of the exhibits of the instant case in the malkhana and the relevant entries made by him in register No. 19. He also deposed about the sending of the exhibits of the case to FSL Rohini vide RC No. 138/21. He proved on record the photocopies of relevant entries made by him in register No. 19 i.e entry at serial No. 5419, entry at serial No. 5420, entry at serial No. 5421 and entry at serial No. 5421 as Ex. PW 6/A. He deposed that constable Sohanbir deposited the sealed parcels at FSL Rohini vide RC No. 138/21 and thereafter handed over to him receipt copy of RC on his return to PS. He proved on record the endorsement in this regard as Ex. PW 6/B.
21. He further deposed that on 29.12.2009, he handed over constable Sohanbir vide RC NO: 118/21 one Scorpio bearing registration NO: DL4CNB3404 and one motorcycle, two sealed parcels with the seals of AKS and one form FSL for depositing in FSL Rohini and accordingly the case property was deposited in FSL Rohini. Endorsement in this regard is Ex. PW6/C. He also proved on record the copy of the Road certificate as Ex. PW6/D. Sessions Case No. : 23/10 Page 10 of 56 11
22. PW 7 Dr. Shankar Gupta, CMO SGM Hospital attended Sanjeet vide MLC No. 15813 on 13112009 at SGM Hospital. He proved the MLC as Ex. PW 7/A.
23. PW 8 Jitender is also one of the eye witness of the incident. He is also a material witness. I will discuss his testimony in the later part of the judgment.
24. PW 9 Dr. Manoj Dhingra conducted the postmortem on the dead body of the deceased. He proved on record his postmortem report as Ex. PW 9/A.
25. PW 10 is Ct. Bijender who on 13112009, was working as motorcycle rider at PS Mangol Puri. On that day he received the special report from duty officer, kept in three envelopes and delivered the same at the residence of Ld. MM and also at the residence of Joint CP, NR and DCP Outer on his motorcycle.
26. PW 11 Virender Singh deposed that he is a Draftsman in DDA and in his neighbourhood, Garg family resides. Ishwar Singh is head of the family. Pawan Garg accused is the youngest son of Ishwar Singh and he is not having good habits. Garg Family is in the wholesale business of utensils. Big containers of utensils comes in the gali and after that the utensils Sessions Case No. : 23/10 Page 11 of 56 12 from the containers are loaded in small three wheelers/ tempo. The loading and unloading and coming of the containers in the gali causes hindrance to the other resident of the gali and my family as they reside just opposite to the house of the accused. They used to find it very difficult to take out their vehicles from their house because of loading and unloading and coming of tempos in their gali.
27. He further deposed that one or two days prior to 13.11.09, when he reached his home from office at about 6.30 p.m. his son Sanju since deceased was in off colour. When he asked him the reasons, he told him that Pawan Garg had parked a tempo in the middle of the gali. When his son asked him to remove the same, accused Pawan Garg abused him and came to blows.
28. He further deposed that on 13.11.09, when he was getting ready for going to his office, he heard some noise coming from outside of his house. He came out from house and saw that a Scorpio was parked in front of his house and his son Sanju was finding it difficult to take motor cycle out of his house and on this a confrontation started between his son and Pawan Garg. He further deposed that he separated them and sat on the Sessions Case No. : 23/10 Page 12 of 56 13 motorcycle of his son Sanju and went to some distance and thereafter, got down from the motor cycle. Thereafter, Sanju left for his work. Immediately, thereafter, Scorpio of Pawan Garg passed from my side at a very high speed. He further deposed that accused Pawan Garg used to allege that his son Sanju used to have an evil eye on his wife. Thereafter, he went to his office.
29. He further deposed that at about 2 p.m., his two relatives Dharampal and Surender came to his office and told that Pawan Garg had killed Sanju. Immediately, it came to his mind that true to his words in the morning " ek do din main tera (sanju) hisab kitab kar dunga", he had killed his son. Thereafter, he along his colleagues went to PS Mangol Puri and came to know that Sanju had expired.
30. He further deposed that in the mortuary of Sanjay Gandhi Memorial hospital, he identified the dead body of his son and his statement was recorded to this extent. He proved the same as Ex.PW11/A.
31. PW 12 is W/ct. Kamla who on 13112009, was working as DD writer. She recorded DD No. 20 A regarding the injured lying near Mangol Puri drain. She proved on record Sessions Case No. : 23/10 Page 13 of 56 14 the copy of the said DD as Ex. PW 12/A.
32. PW 13 H.C. Rajkumar was posted as duty officer in PS Mangol Puri on 13112009. He recorded the FIR of this case and proved the same as Ex. PW 13/A. He also reduced the information as kayami by DD No. 21 and proved the copy of the same as Ex. PW 13/C. He also made his endorsement on the rukka and proved the same as Ex. PW 13/C.
33. PW 14 Ct. Ravinder is the photographer who on 13112009, took the photographs of the scene of crime from different angles. He proved on record the said photographs as Ex. PW 16/A1 to A16 and the strip of the negative as Ex. P1 collectively.
34. PW 15 Ct. Yogender Singh deposed that on 13.11.09, he was posted in PS Mangol Puri as constable. On that day, on the call of Inspector Satish Yadav, he reached at mortuary Sanjay Gandhi Memorial hospital. There at mortuary, IO had shown him the dead body of Sanjit @ Sanju and deputed him there for the safety of dead body.
35. He further deposed that on 14.11.09, IO again reached at the mortuary Sanjay Gandhi Memorial hospital and he was already present there. IO recorded statements of Virender Sessions Case No. : 23/10 Page 14 of 56 15 Singh/ father of deceased and Anil Kumar/ cousin of deceased regarding the identification of dead body of Sanjeet @ Sanju after showing them the dead body of Sanjeet. IO got the PM of the dead body of Sanjeet conducted and after the postmortem, the dead body was handed over to the relatives of the deceased. After the postmortem, doctor handed over the clothes of the deceased in a white polythene in sealed condition, one envelope in sealed envelope along with one sample seal. The said exhibits were seized by the IO vide seizure memo Ex.PW15/A.
36. PW 16 is SI Ranbir Singh who on 13112009, was posted in PCR outer zone. On that day he was incharge of PCR L39. He deposed that on that day on receiving the call about an accident which had taken place near Y Block Nala near Peer Baba Magar Mangol Puri, they reached the spot and saw Motorcycle and Scorpio in accidental condition. One person was lying in injured condition. They put the injured in the PCR van and got the injured admitted in Sanjay Gandhi Hospital and thereafter they proceeded on another call. He made the entry in the call book and proved on record the photocopy of the relevant entry as Ex. PW 16/A.
37. PW 17 ASI Prem Raj deposed that on 13.11.09, he was Sessions Case No. : 23/10 Page 15 of 56 16 posted at PS Mangolpuri. On that day he was on emergency duty from 8 am to 8 p.m. On that day he received DD no 28 B , at about 12.30 pm , copy of the same is already ExPW12/A through Ct Raj Kumar, he alongwith Ct Ashok Kumar reached at spot Y Block, near Peer Baba Mazar, Sanjay Gandhi Hospital Road, Mangol Puri where a Scorpio car no., DL 4CLB 3404 of white colour and a motorcycle no. DL 8SNA 6196 were found in accidental condition. On another side of the motorcycle another no. DL 8SNA 6199 was mentioned. The glassess of the Scorpio were broken/smashed.
38. He further deposed that from the spot he came to know that injured has been removed to the hospital by the PCR. In the meantime SHO PS Mangolpuri also came at the spot. SHO left him at the spot. After making the enquiry he proceeded for Sanjay Gandhi Hospital. Thereafter Crime team came at the spot and got the same photographed and the in charge of the Crime team inspected the spot. Photographs are ExPW14A1 to A16. After sometime IO came at the spot and lifted broken piece of central verge and was sealed with the seal of AKS and was seized vide memo already ExPW1/D, door guard strips of Scorpio was also sealed with the seal of AKS from Sessions Case No. : 23/10 Page 16 of 56 17 the spot and was seized vide memo already ExPW1/E. IO lifted the blood from the road which was lying at the spot with the help of cotton and was sealed with the seal of AKS and was seized vide memo ExPW1/K, earth control was also lifted from the spot and was sealed with the seal of AKS and was seized vide memo already ExPW1/G, on the spot a blood stain torn shirt was lying, the same was sealed with the seal of AKS and was seized vide memo already ExPW1/H. Near the motorcycle some mobil oil was lying.
39. He further deposed that IO lifted the same with the help of cotton and was sealed with the seal of AKS & was seized vide memo already ExPW1/F. The said Scorpio was also taken into possession vide memo already ExPW1/B, the motorcycle no. above was also taken into possession vide memo already ExPW1/C, from the spot one pair of black colour leather shoe was also lying which were lying between motorcycle and Scorpio, the same were sealed with the seal of AKS and were seized vide memo already ExPW1/J, in the Scorpio 3 X ray plates, MRI, one printed report and one cash receipt were found, IO seized the same separately vide memo already ExPW1/L. The MRI /X ray and cash receipt are coll. ExPX. Thereafter he Sessions Case No. : 23/10 Page 17 of 56 18 alongwith IO came back to the PS and case property was deposited with the MHC(M).
40. He further deposed that on 16.11.09, IO called the FSL expert in PS Mangol Puri and got the inspection of the said car. After the inspection the expert took blood swab from left side of bonnet, blood swab from right rear tyre, blood swab from driver seat and blood swab from rear bumper. The same were kept in an envelope and were sealed with the seal of AKS & were seized vide memo ExPW17/A.
41. He further deposed that on 16.11.09, the motorcycle of the deceased was also got inspected by the expert of crime team and after the inspection the expert of the FSL handed over the material stick to the break rod of rear wheel ,IO sealed the same with the seal of AKS and was seized vide memo ExPW17/B. PW 17 identified the case property.
42. PW 18 Ashok Kumar brought the summoned record of Scorpio bearing No. DL 4CNB 3404 and deposed that as per the record the Scorpio is in the name of Ishwar Singh Garg. He proved on record the attested copy of the summoned record as Ex. PW 18/A.
43. PW 19 Prem Chand was posted in PS Sessions Case No. : 23/10 Page 18 of 56 19 Mangol Puri as PSI on 18112009, and on that day he alongwith HC Baljeet and SHO alongwith staff of PS Mangol Puri joined the investigation of this case and had proceeded in search of accused. PW 19 is the witness to the arrest of the accused. In his presence the accused was arrested, his personal search was taken, he was interrogated and his disclosure statement was also recorded. PW 19 proved on record the disclosure statement of the accused as Ex. PW 19/A, his arrest memo as Ex. PW 19/B, personal search memo of accused as Ex. PW 19/B 1. PW 19 deposed that accused led them to the place of incident and pointed out the site vide pointing out memo which he proved as Ex. PW 19/C.
44. PW 20 HC Baljeet Singh, deposed that on 18.11.09, he was posted in PS Mangol Puri. On that day, he along with Ct. Jitender and ASI Prem Chand and SHO of PS Mangol Puri were in the investigation of the present case. Prior to this SHO received secret information that accused wanted in the present case will came to M2K Mall, Rohini.
45. He further deposed that on receiving this information, he along with Ct. Jitender and SHO reached at M2K Rohini and the vehicle was parked at a distance from M2K Rohini. Sessions Case No. : 23/10 Page 19 of 56 20 After some time secret informer came and met with the SHO. He along with Ct. Jitender were in civil dress and as per the directions of secret informer, they came to M2K Park. On the pointing out of secret informer accused was apprehended. SHO also came there who made enquiries from the accused who made disclosure statement. Same is Ex.PW19/A. Accused was arrested vide memo Ex.PW19/B. His personal search was carried out vide memo already Ex.PW19/B1 and thereafter, accused led them to the place of incident and he pointed out the site vide pointing out memo already Ex.PW19/C. Thereafter, accused was got medically examined and they returned to the police station along with the accused.
46. On certain leading questions put by the Ld. APP to this witness, he admitted it to be as correct that accused was taken on police remand and he had made disclosure statement Ex.PW20/A. He further admitted it to be as correct that accused led them to his house from where he got recovered two mobile phones make Samsung and Tata Indicom. The same were sealed with the seal of AKS and seized vide memo Ex.PW20/B. Thereafter, they returned to police station and his statement was recorded. PW 20 identified the mobile phone Sessions Case No. : 23/10 Page 20 of 56 21 make Samsung as Ex. P12 and Mobile phone make Tata Indicom as Ex.P13.
47. PW 21 SI Mahesh Kumar is the draftsman. On 17112009, he visited the place of incident and took the rough notes at the instance of IO. Thereafter he prepared the scaled site plan of the place of incident on 30112009 and proved on record the same as Ex. PW 21/A.
48. PW 22 Ct. Sohan Vir Singh deposed that on 29.12.09, he was posted in PS Mangol Puri. On that day, he on the direction of the IO of the present case collected the exhibits in sealed condition vide RC No. 118/21 along with FSL form and got deposited the same in FSL, Rohini. After depositing the same he handed over the copy of acknowledgment to MHC (M).
49. He further deposed that again on 18.01.10, he on the direction of the IO of the present case collected the exhibits which were sealed with the seal of SGMH Mortuary along with FSL form from MHC (M) vide RC No. 138/21 and got deposited the same in FSL, Rohini. After depositing the same he handed over the copy of acknowledgment to MHC (M).
50. PW 23 HC Balwan Singh brought PCR Form filled on 13.11.2009 at 12.32 noon by W/Ct. Jyoti. On the basis of Sessions Case No. : 23/10 Page 21 of 56 22 information received from phone no. 9999738794 to the effect "Mangol Puri Y Block Peer Baba Ki Mazar accident or injured". He proved the said PCR Form as Ex. PW23/A.
51. PW 24 Dr. Brijesh, deposed about the MLC of accused Pawan Garg prepared on 18112009, by Dr. Rajeev Ranjan Sinha. He deposed that the nature of injures opined by Dr. Rajeev Ranjan is simple in nature. He proved the MLC as Ex. PW 24/A.
52. PW 25 ACP Satish Yadav is the IO of the case. He unfolded the sequence of investigation done by him. He proved on record the copy of DD No. 16A as Ex. PW 25/A; endorsement made by him on the statement of Anil Kumar as Ex. PW 25/B; site plan prepared by him at the instance of Anil Kumar as Ex. PW 25/C; request for postmortem as Ex. PW 25/D; brief facts as Ex. PW 25/E; form 25.35 (1) (b) as Ex. PW 25/F; seizure memo as Ex. PW 25/G vide which blood sample of accused sealed with the seal of SGM Hospital alongwith sample seal were taken into possession; photographs of the deceased which he had taken from his official camera in the hospital as Ex. PW 25/H1 to Ex. PW 25/H12 and the FSL report as Ex. PW 25/J. After the completion of the investigation, he filed the charge Sessions Case No. : 23/10 Page 22 of 56 23 sheet.
53. After the closing of the prosecution evidence statement of accused U/s 313 Cr.P.C was recorded and incriminating evidence was put to him. Accused denied the same and stated that he has been falsely implicated in this case. The witnesses are interested, relatives of the family of the deceased and have deposed at the behest of the police. No evidence in defence was led by the accused.
54. I have heard Ld. APP for the state assisted by the counsel for the complainant, counsel for the accused and have also gone through the records of the case. Counsel for the complainant as well as counsel for the accused have filed their written submissions which have been perused by me alongwith other material on record.
55. It is submitted by the Ld. APP that on the basis of the evidence recorded and the material available on record accused be convicted. It is further submitted by the Ld. APP that PW 2 who is the mother of the deceased has clearly deposed that accused used to threaten her son and on the date of the incident a quarrel had taken place between her son and the accused. It is further urged by the Ld. APP that the statement of Sessions Case No. : 23/10 Page 23 of 56 24 PW 2 is fully corroborated by the statement of PW 3 and that the motive to commit the murder was that the accused used to suspect that the deceased had evil eye on the wife of the accused.
56. It is further urged by the Ld. APP that PW 4 has clearly established that the accused was driving the Scorpio and he was apprehended at the spot by the public and given beatings. It is further urged by the Ld. APP that PW 1 Anil Kumar is the eye witness who has fully supported the case of the prosecution and he has seen the accused intentionally hitting the motorcycle with his Scorpio and again crushing the injured with his Scorpio with the intention to kill him. It is further submitted that another eye witness PW 8 has also supported the case of the prosecution.
57. It is further urged by the Ld. APP that in the alternative the accused can be convicted U/s 304 A IPC because the defence has itself admitted that accident had taken place between the Scorpio of the accused and motorcycle of the deceased.
58. On the other hand, it is submitted by the Ld defence counsel that the prosecution has miserably failed to Sessions Case No. : 23/10 Page 24 of 56 25 prove the motive for the crime. It is further urged by him that the prosecution has not been able to prove that any quarrel took place on the day of the incident between the deceased and the accused. It is further urged that the prosecution has also not been able to prove that the deceased was having illicit relations with the wife of the accused. It is further urged by the Ld defence counsel that PW 1 and PW 8 are not trust worthy and reliable witnesses and PW 1 is interested witness being related to the deceased and they both are planted by the prosecution.
59. It is further urged that as per the postmortem report, it is a clear case of road accident and there is nothing in the postmortem report to suggest that the Scorpio was run over twice or thrice on the body of the deceased as stated by the witnesses. It is further urged that the accused has been falsely shown to have been arrested on 18/11/09 at 2:30 p.m from Park, Back side of M2K Mall Rohini, rather he was in the illegal detention of the police from the date of the incident because it has come in the testimony of the witnesses that the police had taken two persons to the hospital in the PCR which is evident from the cross examination of PW 16 SI Ranbir Singh.
60. It is further urged that the exhibits were Sessions Case No. : 23/10 Page 25 of 56 26 sealed by the seal of AKS but the prosecution has not examined the person to whom the seal belonged and it is also not understood when the seal was handed over to the complainant on 13112009, then how it came in the possession of the IO on 18112009. It is further urged that PW 4 has not supported the case of the prosecution.
61. It is further urged by Ld defence counsel that no doubt the defence has admitted the accident but there is not an iota of evidence on record to show that the accused was driving his vehicle rashly or negligently. It is further urged that the alleged eye witnesses are planted and they have given contradictory statements.
62. Now the points for consideration which have arisen are as follows :
63. MOTIVE : According to the prosecution, the motive for the offence was two fold. Firstly according to the prosecution the accused suspected that the deceased had an evil eye upon his wife and secondly there used to be quarrels between the two families specially between the accused and the deceased over parking of the vehicles of accused and his family members in front of the house of the deceased which made the Sessions Case No. : 23/10 Page 26 of 56 27 egress and ingress of the deceased and his family difficult.
64. The witnesses who can prove the motive are PW 1 who is also the eye witness of the case, PW 2 Smt. Shakultala Devi, mother of the deceased, PW 3 Sudhir Kumar brother of the deceased and PW 11 Virender Singh who is the father of the deceased.
65. PW 1 has deposed that the accused used to suspect illicit relations of his wife with Sanjeet @ Sanju (deceased) prior to the incident, as he had heard about it from others. Some altercation had already taken place earlier on this issue between the accused and deceased.
66. First of all this part of his testimony is hearsay and he has not disclosed as to from whom and when he came to know about the above said fact which has also been stated by him in the rukka Ex. PW 1/A. Rather in his cross examination he stated that he never came to know that quarrel took place between accused Pawan Garg and deceased Sanjeet on account of affair of wife of accused Pawan Garg with deceased.
67. The best witnesses regarding this fact are the relatives of the deceased namely his mother, brother and father who have appeared as PW 2, PW 3 and PW 11. PW 2 and PW 3 Sessions Case No. : 23/10 Page 27 of 56 28 who are the mother and brother of the deceased have not uttered a single word regarding the deceased having evil eye or any sort of illicit relations with wife of the accused. Though PW 11 has deposed that accused Pawan Garg used to allege that his son Sanju used to have an evil eye on his wife. But as already observed herein above this fact has not been stated by PW 2 and PW 3 who are the mother and brother of the deceased and are best witnesses to have deposed about this fact. PW 11 has no where in his testimony has stated that any quarrel took place between deceased and the accused on this score.
68. According to the prosecution accused Pawan Garg got recovered two mobile phones vide seizure memo Ex. PW 20/B. According to the prosecution a mobile phone make SAMSUNG was snatched by accused from his wife and other mobile phone make TATA Indicom according to the prosecution was given by deceased Sanjeet @ Sanju to the wife of the accused.
69. Now these two phones were in the custody of the police, but for the reasons best known to the prosecution it was not verified whether any calls were made from these phones which were in the custody of the wife of the accused to Sessions Case No. : 23/10 Page 28 of 56 29 the phone of the deceased or the deceased ever made any call on these two mobile phones. So in my opinion, the prosecution has miserably failed to show that the deceased had an evil eye on the wife of the accused or they had illicit relation between them which could have been the possible motive for the crime.
70. According to the prosecution, the other motive for the accused to kill the deceased was that there used to be frequent fights over the parking space and a fight took between the deceased and the accused on the day of the incident i.e on 13112009. Now the testimony of witnesses PW 2, PW 3 and PW 4 becomes relevant to see whether the alleged fight took place between the deceased and the accused.
71. The arguments advanced by the Ld defence counsel is that the witnesses have given contradictory statements as far as the incident date 13112009 is concerned which took place in the gali.
72. PW 2 stated in her examination in chief that on 13112009, her son went to drop her husband at Nangloi on his motorcycle. When her son returned he saw that Pawan Garg had parked his Scorpio in front of the gate. She further deposed that her son came to her and said, look Pawan Garg Sessions Case No. : 23/10 Page 29 of 56 30 has again done the same thing. She made her son understand. After some time her son left on his motorcycle and within seconds Pawan Garg also left in his Scorpio.
73. PW 3 Sudhir Kumar who is the brother of the deceased has deposed that on 13112009, at about 10:30 a.m his brother Sanjeet tried to take out his motorcycle from the house and at that time Scorpio of Garg family was parked in front of their gate. He further deposed that he was standing on the gate of his house and his brother could not take out his motorcycle out of the house due to the parking of Scorpio. He further deposed that his brother called at the gate of Garg family to remove the Scorpio from the gate of their house so that his brother could take out the motorcycle. He further deposed that accused Pawan Garg came out and told "Tere Ko Jyada Dikat Hoti Hai" and he picked up a quarrel with his brother Sanjeet and also did Hatapai with his brother Sanjeeet. He further deposed that his parents came out of the house and father and other family members of accused Pawan Garg also came out of the house and with their intervention the matter was sorted out. He further deposed that at that time accused Pawan Garg threatened his brother "Tere ko main dekh lunga tere par bahut nikal ayan Sessions Case No. : 23/10 Page 30 of 56 31 hei and tera main Ak Do din main hisab kar dunga" who did not bother and left on his motorcycle to drop his father. He further deposed that after some time his brother returned and left again on his motorcycle. He further deposed that after some time accused Pawan Garg came out of the house alongwith his father, his wife and Bbahi and they all left in the Scorpio.
74. Now the other witness who was present at the seen of alleged fight is PW 11 father of the deceased. He has deposed that on 13112009, when he was getting ready for going to his office, he heard some noise coming from outside his house. He further deposed that when he came out of his house, he saw that a Scorpio car was parked in front of his house. His son Sanju was finding it difficult to take the motorcycle out of the house and on this a confrontation started between his son and Pawan Garg. He further deposed that he separated them and sat on the motorcycle of his son Sanju and went to some distance and thereafter got down from the motorcycle. He further deposed that thereafter Sanju left for his work and immediately, thereafter Scorpio of Pawan Garg passed from his side at a very high speed.
75. Now this witness has not uttered a single word Sessions Case No. : 23/10 Page 31 of 56 32 that his other son was also present when the alleged fight was going on. He has also not said that the matter was compromised by the intervention of the elders from both the sides as stated by PW 3. This witness has also not stated that the accused used the words "Tere ko main dekh lunga tere par bahut nikal ayan hei and tera main Ak Do din main hisab kar dunga" as stated by PW 3.
76. Further according to PW 2 who is the mother of the deceased her son came back after dropping his father and then he saw the Scorpio parked in front of his gate whereas according to PW 3 and PW 11 the Scorpio was parked outside the gate and the motorcycle could not be taken out. According to PW 11 his son after dropping him midway went for his work but according to PW 2 he came back to his house. Whereas according to PW 3 Sanjeet came back and then left on the motorcycle. PW 2 has not uttered a single word that on 13112009, in the morning the matter between accused and deceased was patched up with the intervention of family members from both sides as has been stated by PW 3. So all the three witnesses i.e PW 2, PW 3 and PW 11 have given different contradictory version about the alleged fight which took Sessions Case No. : 23/10 Page 32 of 56 33 place on 13112009.
77. So to my opinion, the prosecution has failed to prove that the fight over parking of Scorpio took place in the morning of 13112009, as alleged by the witnesses. So the prosecution has failed to show that this alleged fight which took place on 13112009 was the immediate cause of the crime. So the prosecution has failed to prove the motive for the crime.
78. EYE WITNESS ACCOUNT : According to the prosecution there are three eye witnesses of the incident namely Anil Kumar, Rahul and Jitender.
79. Anil Kumar has been examined as PW 1 by the prosecution. He has deposed that he is running a transport business and on 13112009, he had gone to purchase some furniture from Mangol Pur and left his house at about 10:00 a.m. He further deposed that as he could not find any suitable furniture, so he was going back to his house from the market on his motorcycle. And when he reached at bus stop of route No. 901 at about 12:15 p.m and was going towards the side of Sanjay Gandhi Memorial Hospital, while passing near the mazar on the road he saw one Scorpio of white colour coming from the side of Sanjay Gandhi Hospital. He further deposed that one person was Sessions Case No. : 23/10 Page 33 of 56 34 driving a bullet motorcycle parallel to the said Scorpio. He further deposed that immediately driver of the Scorpio had hit the said motorcycle and due to the hit by the Scorpio the motorcycle rider alongwith motorcycle and Scorpio crossed the railing and came on the other side of the road and motorcycle fell down on the road.
80. He further deposed that the driver of the Scorpio stopped the car near the bullet motorcycle and came out from the car. He further deposed that he identified the driver of the said car as Pawan Garg who was known to him prior to the incident as he was running a utensils shop on Kirari Road Prem Nagar. He further deposed that accused Pawan Garg reached near the person who was lying on the road and stood on the chest of that person and started exhorting "Mai Jeet Gaya Mai Jeet Gaya".
81. He further deposed that on seeing the hit he had already stopped his motorcycle about a distance of 50 ft. He further deposed that thereafter accused Pawan Garg after removing himself from the chest of the said person sat on the driver seat of the Scorpio, started the same and thereafter he crushed that injured person under his Scorpio's wheels twice or Sessions Case No. : 23/10 Page 34 of 56 35 thrice. He further deposed that some public persons gathered at the spot and broke the glasses of the Scorpio. He further deposed that he also reached near that person and in the meanwhile police reached there. He further deposed that he identified the said person lying on the ground as Sanjeet @ Sonu his cousin who was residing near the house of accused Pawan Garg. He further deposed that one lady and one gentleman were sitting in the Scorpio alongwith the accused. He further deposed that PCR removed his brother Sanju to SGM hospital and he also reached there on his motorcycle. He further deposed that IO also reached in the hospital and recorded his statement.
82. He further deposed that from the hospital he accompanied the IO to the spot and pointed out the place of occurrence and IO prepared the site plan. Thereafter the exhibits were lifted by the IO from the spot and sealed in his presence.
83. This witness was declared partly hostile by the Ld. APP and in his cross examination by the Ld. APP he stated it to be as correct that the registration No. of Scorpio was DL 4C NB 3404 and the Number of motorcycle was DL 8S NA 6199 and the specimen of the seal was AKS.
84. This witness was cross examined on behalf of Sessions Case No. : 23/10 Page 35 of 56 36 the accused. In his cross examination he stated that on 13112009, it was Friday and his business was closed. He further stated that there is a very big furniture market near his house. He further stated that he wanted to purchase a table and he had gone to fourfive shops in Mangol Pur but he could not tell the names of any such shop. He denied the suggestion that all the shops were closed on 13112009 on account of a bundh call given by BJP.
85. He further stated in his cross examination that he firstly saw the Scorpio from a distance of about 100 / 150 ft. and at that time he was driving his truck at a speed of 3035 Km. per hours. He further stated in his cross examination that he had seen the Scorpio when the incident took place between motorcycle and Scorpio and his position was the same that is he had not crossed the majar. The following question was then put to him by the defence counsel.
Q. I put it to you that in your examination in chief on 06092010 you had stated "I saw one Scorpio of white colour coming from the side of Sanjay Gandhi Hospital, one person who was driving the motorcycle was also driving the said motorcycle parallel to the said Scorpio" and today you have stated that you saw the Scorpio Sessions Case No. : 23/10 Page 36 of 56 37 and motorcycle when the incident took place. Which of two your statement is correct?
Ans. My both the statements are correct.
86. When this witness owned his both these statements then the following Court question was put to him :
CQ Can you explain what is meant by my both the statements are correct?
Ans. Witness again is stating that his both the statements are correct.
87. He denied the suggestion that he was not deliberately speaking the truth and three was discrepancy in his statement as he was not present at the spot.
88. He further stated in his cross examination that he cannot tell whether the motorcycle rider was wearing a helmet or not. He further stated that he cannot tell the speed of motorcycle and Scorpio even by approximation. He denied the suggestion that he could not tell the speed as he was not present at the spot. He further stated in his cross examination that he had neither informed the police nor the family member of Sanjeet. He further stated in his cross examination that he met the police for the first time in the hospital and Sanjeet was not examined by the Sessions Case No. : 23/10 Page 37 of 56 38 doctor in his presence. He further stated that when doctor declared Sanjeet dead Smt. Shakuntala, Sudhir, Sanjy, Balwan and Anand were present in the hospital and his statement was recorded by the IO in the hospital. He further stated in his cross examination that he could not tell on seeing the site plan Ex. Pw 1/DA at which point the accused stood on the chest of Sanjeet and said "Mai Jeet Gaya Mai Jeet Gaya". He further stated in his cross examination that he cannot tell the place in Ex. PW 1/DA where the accused crushed the deceased by Scorpio. He further stated that he cannot say whether the accused was apprehended at the spot or not. He further stated that accused was apprehended by the public but he does not know whether the police had taken into custody accused from the public person.
89. The other eye witness according to the prosecution is one Rahul who has been examined as PW 3. He deposed that on the day of the incident he was not working any where. On 13112009 at about 12 / 12:15 p.m he was present at a pan shop situated at Block Peer Baba Majar and was smoking biri. He deposed that he saw Scorpio banged against the road divider. He ran towards the scorpio and saw one motorcycle and its rider lying there. He further deposed that Scorpio driver Sessions Case No. : 23/10 Page 38 of 56 39 tried to escape but the public caught him and gave him beatings. He identified accused Pawan Garg as a person who was trying to escape from the spot and was given beating by the public. He further deposed that public damaged the Scorpio. He further deposed that the Scorpio was pushed by the public persons and it came on the other side of the divider. He further deposed that in the meanwhile PCR came to the spot and took the driver, deceased and one lady alongwith them.
90. This witness was declared hostile and was cross examined by the Ld. APP. In his cross examination he denied that he had seen Scorpio registration No. DL 4 CNB 3404 coming from the side of Sanjay Gandhi Memorial Hospital or that he had seen one bullet motorcycle bearing No. DL 8 SNA 6196 going ahead of the Scorpio. He was confronted with his statement mark PW 4/A. He denied that the accused was driving the Scorpio at a very high speed and had hit the motorcycle. He further denied that the driver of the Scorpio got down from his Scorpio and reached near the motorcyclist lying on the road and while abusing him stood on his chest and started saying loudly "that he had won he had won". He further denied that the driver sat inside the Scorpio and drove the Scorpio over the body of Sessions Case No. : 23/10 Page 39 of 56 40 motorcyclist.
91. The other eye witness is Jitender who has been examined as PW 8 . He deposed that on 13112009, he had come in his Ascent car to Rohini to meet his maternal uncle. At about 12 / 12:15 p.m he was going towards Sanjay Gandhi Hospital from Rajeev Chowk. He further deposed that he noticed one Scorpio coming from the side of Sanjay Gandhi Memorial Hospital opposite to his direction. He further deposed that a silver colour motorcycle was in front of the Scorpio and when the motorcycle reached near Majar the driver of the Scorpio hit against the motorcycle from the back side. He further deposed that due to the impact the motorcycle rider fell on the road on which he was driving and Scorpio also came on the opposite road after breaking the cement railing. He further deposed that due to the impact the Scorpio struck against a pole and the driver of th Scorpio came out and stood on the neck of motorcycle rider and started shouting "Mai Jeet Gaya Mai Jeet Gaya". He further deposed that the said person than ran towards the Scorpio and backed his Scorpio and ran it twice or thrice over the motorcycle rider. He further deposed that in the meantime crowed had gathered at the spot and gave beatings to the Scorpio driver. He Sessions Case No. : 23/10 Page 40 of 56 41 further deposed that thereafter he went to his house to avoid the crowd.
92. He further deposed that in the meanwhile one person came on a motorcycle and started shouting "Mera Bhai Mar Diya, Mera Bhai Mar Diya." He further deposed that after reaching home he narrated the incident to his family members. He further deposed that he saw the news of the incident on TV on 13112009. He further deposed that on 19112009, on the instructions of his family members he went to PS Mangol Puri to disclose about the incident where his statement was recorded. He further deposed that he saw accused in the police station and identified him.
93. In his cross examination, he stated that on 13112009, he left his mama's house at 10 / 10:15 a.m. He admitted it to be as correct that the distance between his mama's house and the spot is not covered into 2 and a half hours and it can be covered in much less time. He further deposed that from his mama's house he went to Govind Refrigeration at Rohini but he did not know its address. He further deposed that he took a cold drink there and started for his house. He further stated that the distance between his mama's house and refrigeration shop Sessions Case No. : 23/10 Page 41 of 56 42 can be covered in 20 25 minutes by car. He further stated that he does not know the location of the cold drink shop. He further stated that it took him 1 hour and 45 minutes in car to reach the spot from the cold drink shop. He admitted that his house was near from the place where he had taken the cold drink if he had gone from Peera Gari Chowk instead of taking Rajeev Chowk Road. He denied the suggestion that he had not taken the Rajeev Chowk. He stated in his cross examination that the motorcycle was 10 - 15 ft. ahead of Scorpio. He stated that he could not tell the speed of the motorcycle or the Scorpio. He further stated that the injured after the accident fell in front of his car at a distance of about 15 ft. He further stated that he came out of his car and saw the accused coming out of his Scorpio and sat on the chest of the deceased. He further stated that he was not aware about the PS in which the investigation of the case was going on. But he had come to Mazar and one passer by told him that the investigation was going on in PS Mangol Puri. He stated in his cross examination that he had not stated any reason to the police as to why he had come after about 6 days to give his statement. He was confronted with his statement Ex. PW8/DA where it is recorded that his inner conscious pricked him so he Sessions Case No. : 23/10 Page 42 of 56 43 came to the PS and gave his statement. He stated that his mother has no relationship with the mother of the deceased.
94. The contention of the Ld defence counsel is that the public witnesses PW 1 and PW 8 are planted and PW 3 has not supported the case of the prosecution as he has not seen anything.
95. Now coming to PW 1, who is the alleged eye witness of the incident, it is to be seen as to how far this witness is believable. According to this witness on the day of the incident he had seen one motorcycle and Scorpio running parallel to each other and the Scorpio had hit the motorcycle. Meaning thereby from the testimony of this witness it appears that it was a side hit. PW 4 Rahul who has not supported the case of the prosecution and it has been suggested by the prosecution that the motorcycle bearing No. DL 8 SNA 6196 was going ahead of the Scorpio so this shows that the case of the prosecution is that the motorcycle was ahead of the Scorpio which has not been stated by PW 1.
96. PW 1 has failed to point out the place in the site plan where according to him the accused had stood on the chest of the deceased and shouted "Mai Jeet Gaya Mai Jeet Gaya" nor he is able to point out the place in the site plan where Sessions Case No. : 23/10 Page 43 of 56 44 the accused had crushed the deceased twice / thrice under the wheels of the Scorpio when according to him the site plan was prepared at his instance. To my mind the ignorance of these crucial facts creates doubt about any such thing happening at the spot.
97. PW 1 has not accompanied the deceased to the hospital in the PCR van. He had gone by his own motorcycle and was the first relative to reach there. According to him he was not allowed to enter the emergency ward where the deceased was examined by the doctor. But according to PW 7 one person from the family of the patient is allowed to be present with the patient.
98. The conduct of PW 1 appears to be very abnormal. When the accused was jumping on the chest of the deceased, he did not intervene and tried to desist the accused from doing so. According to him the accused ran over his Scorpio twice or thrice over his cousin but again he made no efforts to stop the accused from doing so. Apart from this he again acts in a very strange manner. After witnessing all this he neither informs the police nor he informs the family members of the deceased, which was at least expected of him.
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99. He also gave contradictory versions about the position of Scorpio and the motorcycle. At one point of time this witness states that he had seen the motorcycle and Scorpio running parallel to each other (as opposed to prosecution's case) and at other point of time he states that he had seen the Scorpio and motorcycle when the incident took place. When he was asked to clarify his two statements he stated that both of them are correct which to my mind cannot be correct in any sense.
100. Now if his first statement that he saw motorcycle and Scorpio running parallel to each other is to be believed then this is contrary to the prosecution's version and contradicts PW 4 and PW 8. Now if his second statement is to be believed where he says that he saw the Scorpio and motorcycle when the incident took place then he had not seen as to how the incident happened.
101. In his examination in chief he states that on the day of the incident i.e on 13112009 he was going to Mangol Pur Market on his motorcycle whereas in the cross examination he states that on that day he was on his truck and he also admits in his cross examination that he owns a Tata 407. This witness has stated in his examination in chief that he is in Transport business Sessions Case No. : 23/10 Page 45 of 56 46 but when asked about the speed of the vehicles, he has completely shown his ignorance about their speeds.
102. PW 8 who is the another eye witness has completely demolished the case of the prosecution and has come out with a new theory. He has stated in his examination in chief as follows : "In the meanwhile one person came on motorcycle and started shouting Mera Bhai Mar Diya Mera Bhai Mar Diya". So from this statement of PW 8 it appears that PW 1 was not present there as stated by him.
103. PW 1 and PW 8 have stated that the accused had stood on the chest of the deceased and shouted "Mai Jeet Gaya Mai Jeet Gaya" and thereafter he ran over his Scorpio twice or thrice over the dead body. One cannot loose site of the fact that Scorpio is a very heavy SUV and must be around 1500 Kg. If such a heavy vehicle is run over twice or thrice over a human being then one can very well imagine what will become of that body. Now in view of these allegations, the testimony of PW 9 Dr. Manoj Dhingra becomes very relevant. He has conducted the postmortem and has proved his report as Ex. PW 9/A. No where in his report Ex. PW 9/A or in his testimony in the Court he has Sessions Case No. : 23/10 Page 46 of 56 47 stated anything about the crushing of the body by any heavy object. The report is totally silent on the aspect that the body was crushed under the wheels of a vehicle. He admitted in his cross examination that the external and internal injuries mentioned in his PM report can happen to motorcycle driver, driving without a helmet who falls on the road after an accident. So the testimony of PW 9 totally belies the story of PW 1 and PW 8 that the accused ran over his Scorpio twice/thrice on the body of the deceased. Here it is pertinent to mention that as per the prosecution's case public persons had gathered at the spot and had given beatings to the accused who was apprehended by them. So to my mind the story of the prosecution that the accused ran over his Scorpio twice or thrice over the dead body is highly unbelievable because had he done so the public persons who were there at the spot would not have spared him.
104. The rukka is Ex. PW 1/A in which it is mentioned that accused always suspected Sanju (deceased) having illicit relations with his wife as there houses were facing each other and both had a fight earlier also because of this issue an the accused had threatened Sanjeet of dire consequences. This is what PW 1 has sated in the rukka but in the cross Sessions Case No. : 23/10 Page 47 of 56 48 examination he categorically stated that he never came to know that quarrel took place between Pawan Garg and Sanjit on account of affair of wife of Pawan Garg with deceased. So when PW 1 was not aware about any quarrel or affair how could then this fact finds mentioned in the Rukka recorded at the instance of PW 1.
105. PW 1 has admitted in his cross examination that the accused was apprehended by the police and window panes of the Scorpio were broken by the public. He has also denied in the same breath that he cannot say whether the accused was apprehended at the spot or not but in the cross examination he had to admit that the accused was apprehended by the public. He further stated in his cross examination that he does not know whether the police had taken accused in custody from the public or not. Whereas PW 16 SI Raghuvir Singh had stated that he had taken two injured persons to the hospital. This uncertanity about the custody of the accused further creates a doubt about the presence of this witness at the spot. In view of the discussions, hereinabove, I have no hesitation in holding that PW 1 was not present at the time of the incident.
106. PW 4 is the another eye witness according to Sessions Case No. : 23/10 Page 48 of 56 49 the prosecution but he has not supported the case of the prosecution on the point of high speed of the Scorpio; having seen motorcycle going ahead of Scorpio; driver of the Scorpio getting down from his vehicle and standing on the chest of the deceased and shouting Mai Jeet Gaya Mai jeet Gaya"; the driver of the Scorpio running over the Scorpio on the dead body.
107. But he has categorically deposed that the driver of the Scorpio wanted to escape but was caught by the public and given beatings. He further deposed that the Scorpio was pushed by the public persons and it came on the other side of the divider and that the PCR came at the spot and took the driver, deceased and one lady alongwith them. This part of his testimony has gone un rebutted and unchallenged. So from the testimony of this witness, what can be concluded is that he had not seen the incident happening but only came to the scene after the incident had taken place.
108. PW 8 is another eye witness of the incident. He has deposed that the Scorpio had hit against the motorcycle from the back side which is contradictory to the testimony of PW 1 according to which both the vehicles were running parallel. He has also deposed that accused had ran over his Scorpio twice or Sessions Case No. : 23/10 Page 49 of 56 50 thrice over the motorcycle rider which fact is totally contradictory to the postmortem report and this acpect of running over by the Scorpio has already been discussed in detail elsewhere in the judgment and needs no further elaboration. This witness has even demolished the prosecution's case about the presence of PW 1 because according to this witness when he was leaving the spot he saw one person coming there and shouting "Mera bhai mar diya Mera bhai mar diya" meaning thereby according to this witness everything had happened at the spot before the arrival of that oner person who had come and shouted "Mera bhai mar diya Mera bhai mar diya".
109. The conduct of this witness is really surprising because after six days of the incident his conscious suddenly pricks him and he goes to the police station without having any details about the case and the name of the police station. He states that a passerby near the majar had told him that the investigation is going on in PS Mangol Puri. Had he asked some person near the majar having fixed abode then the things would have been different but he asked a passerby about the investigation which makes him totally unreliable and unbelievable. He has also admitted in his cross examination that his mama's Sessions Case No. : 23/10 Page 50 of 56 51 house and the place of the incident is not covered in 2 and a half hours which he took to reach the spot. He kept on roaming for about 2 / 2 ½ hours just to be present at the spot at the right time. So this witness cannot be relied upon.
110. INVESTIGATION : According to the prosecution, accused was arrested on 18112009, from the park at the back side of M2K Mall. According to PW 4 the PCR had come at the spot and took the driver of the Scorpio, deceased and one lady with them. This part of his testimony has gone un rebutted and unchallenged. PW 16 is SI Ranvir Singh who has deposed that he had taken the injured to the hospital after the receipt of a call at 12:21 p.m about an accident. In his cross examination he admitted that he had taken two persons to the hospital in the PCR and he also admitted that he has given message that he was taking two injured to the hospital. In his examination in chief he has deposed that ASI Prem Raj and SHO alongwith staff also reached at the spot when they were putting the injured in the PCR. But smartly this witness in the cross examination stated that he had flashed the message that the other injured who was a public person had escaped from the hospital. He was confronted with Ex. PW 16/DA where it was not Sessions Case No. : 23/10 Page 51 of 56 52 so recorded. So the accused was apprehended at the spot and was handed over to the police. According to PW 16 SHO was there at the spot when the injured was taken to the hospital and PW 16 had to admit in the cross examination that the accused was also taken to the hospital. Now in such a situation, the prosecution has failed to explain when the accused was handed over to the police and was removed to the hospital how come he escaped from there. Prosecution is not coming out with the case that the accused escaped from the hospital to be later on arrested on 18112009. But the case of the prosecution is that the accused was arrested on 18112009. But from the material on record, it appears that the accused was in the custody of the police from the day of the incident. So the arrest of the accused in the manner as alleged by the prosecution is also doubtful.
111. According to PW 1 all the alleged recoveries were made in his presence and the exhibits were sealed with the seal of AKS and the seal after use was handed over to PW 1 after sealing the exhibits on 13112009. But according to the prosecution on 18112009, the accused was arrested from M2K Mall and on 20112009, two mobile phones, have been seized at the instance of accused which were sealed with the seal of AKS. The Sessions Case No. : 23/10 Page 52 of 56 53 prosecution has failed to explain as to how the seal which was with PW 1 on 13112009, became available on 20112009 when it is not the case of the prosecution that PW 1 had joined the investigation on that day nor it is the case that PW 1 handed over the seal to PW 25 i.e the IO at any point of time.
112. PW 25 admits that AKS is the name of Ajay Karan Sharma but he was not a witness to the case but who is this Ajay Karan Sharma has not been brought on record by the prosecution neither his statement has been recorded and it is also not brought on record how the IO was in possession of this seal of ASK and there are no handing over memo or taking over memo of the AKS seal. So all these creates a doubt regarding the investigation as stated to have been conducted by the prosecution.
113. The Ld. APP had argued that in the alternative the accused can be convicted U/s 304 A IPC as he was his vehicle rashly and negligently which has been denied by the counsel for the accused.
114. The witnesses who alleged to have seen the incident are PW 1, PW 4 and PW 8 whose testimony has already been discussed hereinabove.
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115. Section 304 A reads as follows : "[304A. Causing death by negligence. Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.]
116. In the discussions made hereinabove in the judgment the presence of PW 1 and PW 8 has been held to be highly doubtful. There is contradiction in the testimony of PW 1 and PW 8 in the manner in which the motorcycle and the Scorpio were being driven on the road. According to PW 1 both the vehicles were running parallel when the incident took place and according to PW 8 the motorcycle was in front when it was hit by Scorpio of the accused from back. Even according to the case of the prosecution, the motorcycle was in front and the Scorpio was behind it as is evident from the suggestion given by the prosecution to PW 4. PW 4 has also not supported the case of the prosecution and he has deposed in his examination in chief Sessions Case No. : 23/10 Page 54 of 56 55 that he had seen the Scorpio banging against the road divider and when he ran towards the place of incident he saw a motorcycle rider also lying there. In cross examination by the Ld. APP he denied the suggestion that the Scorpio was being driven at a very high speed. PW 1 has not uttered a single word regarding rashness and negligence and he even could not tell the speed at which both the vehicles were being driven.
117. PW 8 who according to the prosecution is one of the eye witness has also not stated about the speed of the vehicle and he has also not stated how the Scorpio driver was rash and negligent. He has simply stated that the driver of the Scorpio had hit against the motorcycle from the back side. There is nothing in the testimony of these witnesses that the Scorpio was driven by the accused in a rash and negligent manner. So in these facts and circumstances, since there is nothing on record to suggest that the vehicle was driven in a rash and negligent manner, it is highly unsafe to convict the accused U/s 304 A IPC.
118. To sum up, the prosecution has failed to prove the motive behind the murder; the presence of the eye witnesses at the time of incident is highly doubtful; the investigation is also not above board; the prosecution has also failed to prove that the Sessions Case No. : 23/10 Page 55 of 56 56 Scorpio was driven by the accused rashly and negligently and by such act of his, he caused the accident as suggested by the Ld. APP. Therefore, in view of the discussions herein above, I am of the opinion, that the prosecution has failed to prove its case beyond reasonable doubt against the accused. The accused is, therefore acquitted File be consigned to Record Room. (Announced in the open Court on 27092012.) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE II, OUTER DISTRICT, ROHINI COURTS : DELHI Sessions Case No. : 23/10 Page 56 of 56