Delhi District Court
State vs . Rajesh @ Jagdish @ Pauwa & Anr. on 9 May, 2022
IN THE COURT OF SH. VISHAL SINGH, ADDITIONAL SESSIONS
JUDGE-03: WEST DISTRICT, THC, DELHI.
SC No. 56214/2016
State Vs. Rajesh @ Jagdish @ Pauwa & Anr.
FIR No. 835/2015
U/s. 302/34 IPC
PS: Nihal Vihar
JUDGMENT
1. Sr. No. of the case : 56214/2016
2. Date of Committal to Sessions : 14.12.2015
3. Name of the complainant : Sh. Anil Singh
4. Date of Commission of Offence : 31.08.2015
5. Name and Parentage of Accused : 1. Rajesh @ Jagdish @ Pauwa
S/o. Sh. Kishan Lal
R/o. W12, B76, Camp No.5,
Nangloi, Delhi.
: 2. Sanjay @ Jagdish @ Judi
S/o. Sh. Bhim Singh
R/o. 1592, Bapa Nagar, Tank Road,
Karol Bagh, Delhi
6. Offence Complained of : U/s. 302/34 IPC &
Section 25 & 27 Arms Act.
7. Offence Charged : Both the accused persons charged
U/s. 302/34 IPC r/w Section 27
Arms Act.
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: Accused Sanjay @ Jagdish @
Ramu @ Judi additionally charged
U/s. 25/27 Arms Act.
8. Plea of Guilt : Not guilty.
9. Final Order : Both Rajesh @ Jagdish @ Pauwa
and Accused Sanjay @ Jagdish
@ Ramu @ Judi convicted U/s.
302/34 IPC.
: Accused Accused Sanjay @
Jagdish @ Ramu @ Judi
additionally convicted U/s. 25 &
27 Arms Act.
10. Date on which Order Reserved : 26.04.2022
11. Date on which Order Announced : 09.05.2022
BRIEF FACTS AND REASONS FOR DECISION:
1. The case against accused Rajesh @ Jagdish @ Pauwa and Sanjay @ Jagdish @ Judi is that on 31/08/2015, at about 10:30pm, on road, in front of H. No. B 738, Ambika Enclave, Nihal Vihar, they, in furtherance of their common intention, shot victim Suresh Singh on his forehead with an illicit firearm and murdered him at the spot in presence of his brother Anil Singh. The accused persons fled after committing the offence. Accused Rajesh @ Jagdish @ Pauwa was arrested on 07/09/2015, whereas, accused Sanjay @ Jagdish @ Judi was arrested on 14/10/2015. The weapon of offence i.e. illicit country made pistol used in commission of murder, loaded with three live cartridges, UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 2 of 44 was recovered from possession of accused Sanjay @ Jagdish @ Judi on his arrest on 14/10/2015. Both the accused persons refused to join judicial TIP proceedings.
2. Detailed arguments were heard on charge from Ld. defence counsel and Ld. Addl. PP for State. Vide order dated 23/02/2016, the Court charged accused Rajesh @ Jagdish @ Pauwa and Sanjay @ Jagdish @ Judi for the offence U/s. 302/34 IPC r/w Section 27 Arms Act. The Court framed additional charge for the offence U/s. 25 & 27 IPC against accused Sanjay @ Jagdish @ Ramu @ Judi, on 23/07/2018. The accused persons pleaded not guilty to the charge and preferred trial.
3. The prosecution led evidence and examined 24 witnesses to bring home the charged offence against the accused persons.
4. PW1 Gopal Gupta deposed that on 31/08/2015 one police official visited his house on whose request he accompanied him to crossing (chauraha) near his house, where he saw blood on the road. He deposed that on being inquired by police official, he denied having knowledge about commission of any murder. He deposed that he did not see any dead body at the spot, neither heard sound of gunshot. He deposed that he had no knowledge about the present case, nor saw any person near his grocery shop. Since PW1 resiled from his statement recorded U/s. 161 CrPC, he was cross examined by Ld. Addl. PP for State.
In cross examination by Ld. Addl. PP, PW1 admitted that on 31/08/2015, at about 10:00pm, he alongwith other relatives returned to his UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 3 of 44 home from Udhyog Nagar Metro Station. He denied that he saw 45 persons near his grocery shop but voluntarily stated that the said persons were standing at crossing near his house. He denied the suggestion that he asked the said persons to go away from near his grocery shop. He voluntarily stated that when the said persons were standing at crossing near his house, he asked them to go away from there. He denied the suggestion that at around 10:30pm he heard noise of gunshot. He voluntarily stated that on his request the said persons had already left from there. He denied the suggestion that on hearing the noise of gunshot, he saw that dead body of a person was lying near his house. He denied the suggestion that on inquiry he came to know from the public persons who gathered near his house that one of the 45 persons fired gunshot due to which one person had expired (upon confrontation with statement U/s. 161 CrPC Mark 'C', the witness denied the whole version except the date of incident). Ld. Addl. PP pointed out towards the accused persons for identification, however, the witness stated that he never saw them. He denied the suggestion that he deposed falsely under the influence of accused persons.
5. PW2/complainant Anil Singh deposed that on 31/08/2015 after dropping his mother and sister, who were going to Gorakhpur, U.P., at Nangloi Railway Station, when he and his brother Suresh were returning to their house, they saw that four persons were quarreling with a person on the way. He deposed that when his brother Suresh (since deceased) reasoned with the said four boys for quarrel, one of them said to Suresh "bhag jha nahi to goli mar doonga" (run away or I will shoot you). In return, Suresh asked that boy to shoot at him "Suresh ne kaha maar do goli". He deposed that one of the four offenders exhorted another associate "maar de goli", on which the person carrying the UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 4 of 44 pistol fired gunshot at the temple of his brother Suresh. PW1 identified accused Sanjay as the person who fired gunshot at his brother Suresh and also identified accused Rajesh as the person who exhorted accused Sanajy stating that "maar de goli" (shoot him with gun).
PW2 deposed that on seeing condition of his brother Suresh, he got perplexed and rushed towards his home. He intimated about the incident to his bhabhi (sisterinlaw), who arranged for a vehicle and his brother was taken to Sanjay Gandhi Hospital, where the doctor declared Suresh as brought dead. He deposed that police recorded his statement Ex. PW2/A in hospital and he pointed out the place of incident to police. He identified the dead body of his brother vide statement Ex. PW2/B and, after postmortem, the body was handed over to him and his relatives vide memo Ex. PW2/C. Two parcels - parcel no.1 sealed with the seal of FSL and parcel no. Ex:1 sealed with the seal of CFSL (SSM), containing case property were produced by MHC(M). Parcel No.1 containing blood stained clothes [Ex. P19 (Colly.)] were shown to PW2, who identified the same as belonging to his deceased brother. Parcel No. Ex:1 containing a plastic jar having a pistol, two used cartridges and one live cartridge in it, were shown to PW2 who stated that the pistol used in committing the offence was similar to pistol Ex. P20, produced in Court. He deposed that he could not say if the pistol Ex. P20 produced in Court was the same as used in committing the offence.
In cross examination by Ld. defence counsel, PW2 replied that police UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 5 of 44 seized the pant, shirt and pistol in his presence, however, he did not remember the date when police seized the pistol. He replied that police showed him the pistol in police station after one month of the incident. He replied that police did not record his statement when called him at police station to identify the pistol. He replied that he did not identify the pant and shirt in police station. He replied that the pant and shirt were seized by police in hospital on the day of incident; police recorded his statement on 31/08/2015. He replied that police recorded his statement thrice. He replied that he did not know the names of accused persons, therefore, their names were not mentioned in his first statement, recorded by police. He replied that police recorded his second statement on 01/09/2015. He replied that he did not know the addresses of accused persons, therefore, they were not mentioned in his second as well as in third statement. He replied that after one month of recording of his second statement, police recorded his third statement. He replied that he was not called at police station to show photographs of the assailants, neither were their sketches prepared by police at his instance. He replied that he did not receive any summons from any of the Courts of Tis Hazari for identification of the assailants. He voluntarily stated that he visited Tihar Jail for identification of the assailants. He replied that he did not remember if the IO recorded his statement after TIP at Tihar Jail. He replied that he did not know Ct. Jagdish and ASI Jai Bhagwan or that ASI Jai Bhagwan prepared any document at his instance. He replied that he did not remember if he was called at police station on 14/10/2015 and 45 persons were shown to him. He replied that he did not know if Ct. Bahadur Singh prepared any document on 14/10/2015. He replied that the accused persons were not arrested in his presence but he identified all UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 6 of 44 of them. He replied that prior to 14/10/2015 he did not give any description of the accused persons to police. He voluntarily stated that he had identified the accused persons on the date of incident. He replied that in his statement Ex. PW2/A, he gave description of 45 accused persons to police (he was confronted with statement Ex. PW2/A, wherein no description was mentioned). He replied that he did not know any person namely Manoj and there was no transaction between his deceased brother and Manoj. He replied that his bhabhi (sisterinlaw) accompanied him to hospital, however, he did not remember if police recorded her statement there. He replied that statement of his bhabhi was not recorded by police in his presence. He replied that the place of incident was a residential area, however, he did not raise alarm at the time of incident as he got terrified on seeing condition of his brother and ran towards his house that was situated at a distance of 200 paces from there. He replied that he did not remember the time but he immediately called at 100 number after the gunshot. He replied that police came to hospital when he reached there with his brother. He replied that police did not reach the spot immediately after his call but police officials visited the hospital, with whom he returned to the spot. He replied that he did not remember the time but it were night hours when he returned to the spot alongwith the police officials, however, his brother sustained gunshot injury at 10:30pm. He replied that on being asked he told the doctors that his brother had sustained gunshot injury.
PW2 replied that he took his brother in a Maruti vehicle, however, he did not remember if it was a car or van. He replied that he called at 100 number from his mobile no. 9911967844 of Idea Cellular company. He denied the suggestion that no call was made at 100 number from mobile no. 9911967844.
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He replied that he stated to police regarding making of call at 100 number from mobile no. 9911967844, however, he did not remember if the police official, who recorded his statement, mentioned his mobile number in his statement. He replied that he signed the seizure memos of clothes of his brother and collection of blood samples at PS Nihal Vihar on 01/09/2015. He replied that he did not remember if he signed the rough site plan on 01/09/2015. He voluntarily stated that the scaled site plan also got prepared by police after around 45 days. He replied that he did not remember if he signed the scaled site plan. The attention of witness was drawn towards seizure memos of blood stained earth control and clothes of deceased to which he stated that they did not bear his signature. He replied that he did not count the number of boys who were fighting with each other. He voluntarily stated that two boys were standing in front of him whilst the others were standing in street near electric pole. He replied that the police did not show him photographs of any of the culprits at PS; neither showed their sketch during investigation. He replied that the weapon of offence was not recovered in his presence. He denied the suggestion that he deposed falsely being real brother of deceased. He denied the suggestion that he was not present at the spot on 31/08/2015 and no incident had occurred in his presence.
6. PW3 Vishnu was a hostile witness and deposed that he did not know anything about the present case. He deposed that he did not know any person by the name of Rajesh @ Pauwa, Sanjay @ Judi and Pawan. He deposed that he resided at Rajasthan. On having resiled from his previous statement, PW3 was cross examined by Ld. Addl. PP.
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In cross examination by Ld. Addl. PP, PW3 denied the suggestion that on 31/08/2015 he received telephone call of Pawan, who intimated him that accused Rajesh @ Pauwa had stolen his mobile phone. He denied the suggestion that on 31/08/2015 he alongwith Pawan visited the house of accused Rajesh @ Pauwa at around 08:30pm, from where they reached in front of shop of Gupta Ji. He denied the suggestion that on 31/08/2015, at about 10:00pm, he again reached in front of shop of Gupta, where he found accused Rajesh and Judi. His statement recorded U/s. 161 CrPC was read over to PW3, to which he denied having made any such statement before the police. He denied the suggestion that he deposed falsely being won over by the accused persons.
7. PW4 Manoj deposed that one year prior to his deposition he gave his mobile phone to his friend Handu for two days. After two days, when he asked Handu to return his mobile phone, Handu told him that he had given the said mobile phone to accused Judi and gave him contact number of Judi stating that he should have himself called Judi. He deposed that he called Judi who promised him to return his mobile phone within 23 days. He deposed that on the day of incident, Judi called him and asked him to reach Mangol Puri to take his mobile back. However, being on duty, he requested Judi to give his mobile phone to Handu or to collect himself whenever he would visit Nihal Vihar. He deposed that on the day of incident he came back to his house at about 08:45pm - 09:00 pm and after taking dinner when he went outside for walk, he saw that some mob (crowd) had gathered around a person who was killed by someone, and the police officials were lifting the dead body from there. He deposed that on next day police called him to police station and UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 9 of 44 interrogated/inquired him about the incident. He deposed that he did not meet accused Rajesh @ Pauwa on the day of incident. On having resiled from his previous statement, given to police, PW4 was cross examined by Ld. Addl. PP.
In cross examination by Ld. Addl. PP, PW4 admitted that on 31/08/2015, at about 08:15pm, he received call of accused Judi. Ld. Addl. PP pointed out towards accused Judi and asked PW4 if Judi had called him, to which PW4 replied that he never met accused Judi. He admitted that accused Judi asked him through telephone to come to Mangol Puri Theka. He denied the suggestion that on receiving the call, he reached Mangol Puri Theka on motorcycle (he was confronted with statement Mark A, from portion A to A1, wherein it was so recorded, however, PW4 denied having made any such statement to police). He denied the suggestion that he met accused Rajesh @ Pauwa and accused Judi (he was confronted with statement Mark A, from portion B to B1, wherein it was so recorded, however, PW4 denied having made any such statement to police). He denied the suggestion that from Mangol Puri Theka, both the accused persons reached P2, Sultan Puri, on his motorcycle, where accused Rajesh @ Pauwa visited a house. He denied the suggestion that after about 1015 minutes, accused Rajesh @ Pauwa came out of that house and the accused persons asked him to drop them at Nihal Vihar stating that they would give his mobile phone there. He denied the suggestion that he took the accused persons to Ambika Enclave, opposite H. No. B738, near Diama Dispensary, where 12 boys were already present. He denied the suggestion that when he asked accused Judi to return his mobile, he asked him to wait and to see a 'Tamasha'. He denied the suggestion that two persons came UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 10 of 44 from the side of Diama Dispensary and accused Judi, being in drunken condition, hit against one of the two boys. He denied the suggestion that the person with whom accused Judi collided, asked Judi to walk properly and an altercation took place between them. He denied the suggestion that accused Rajesh @ Pauwa asked accused Judi to fire gunshot at that person. He denied the suggestion that upon exhortation of accused Rajesh @ Pauwa, accused Judi took out pistol from his pant and fired gunshot on the forehead of that person. He denied the suggestion that on seeing the incident, the person accompanying the victim as well as accused persons fled from the spot (he was confronted with statement Mark A, from portion C to C1, wherein it was so recorded, however, PW4 denied having made any such statement to police). He replied that he could not identify the pistol if showed to him as he was not present at the spot. He denied the suggestion that he deposed falsely being won over by the accused.
8. PW5 Vijay Kumar deposed that on 31/08/2015 his neighbour Anil and wife of Suresh (victim) visited him at his home and told him that someone had fired at Suresh. On request, he accompanied them to the spot, where he found Suresh lying unconscious having bullet injury in his forehead. He deposed that they first took Suresh to his home and then to SGM Hospital, in his car.
In cross examination by Ld. defence counsel, PW5 replied that four of his neighbours brought deceased Suresh to his home, however, he did not know their names, neither did they tell him anything as to what happened with Suresh. He replied that police did not inquire him about the names and address of those four persons. He replied that he did not disclose registration number of UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 11 of 44 his vehicle that was used to take deceased Suresh to hospital. He replied that he did not know about the discussion between Anil (PW2) and doctor at the hospital. He replied that statement of Anil was not recorded in his presence. He replied that police never attempted to obtain blood stains from his vehicle in which he rushed Suresh to hospital. He replied that police recorded his statement 23 days after the incident.
9. PW6 Ct. Amit deposed that on 01/09/2015 he alongwith crime team members reached the spot i.e. in front of B738, Ambika Enclave, Nihal Vihar, Delhi, where they found blood on the ground. They came to know that the injured was already shifted to hospital. He deposed that on directions of the IO, he clicked nine photographs Ex. P1 to P9 respectively of the spot from different angles. He deposed that from the spot he alongwith ASI Jai Bhagwan as well as crime team members reached SGM Hospital, where, on the direction of ASI Jai Bhagwan, he clicked eight photographs Ex. P10 to Ex. P17 of the deceased from different angles. He produced negative files Ex. P18 (Colly.) of the photographs.
In cross examination by Ld. defence counsel, PW6 admitted that there was a hospital near the spot and he clicked its photo. He replied that he did not notice if any CCTV camera was installed outside the hospital. He replied that he started clicking the photographs from 014 and, thereafter, from 3436. He admitted that apart from residential houses, there were shops at the spot. He replied that he could not tell the DD number by which he visited the spot after receipt of message. He replied that no chance print was lifted in his presence by the experts, who had accompanied him. He denied the suggestion that he UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 12 of 44 deposed falsely at the instance of IO and did not visit the spot on the day of incident.
10.PW7 SI Kalyan Singh deposed that on 01/09/2015, at about 12:15 - 12:30 midnight, on receipt of a call from control room, he alongwith other staff members reached in front of B738, Ambika Enclave, Nihal Vihar, where he met ASI Jai Bhagwan, SHO and other staff of Nihal Vihar. There was blood lying in gali in front of H. No. B738. He deposed that Ct. Amit Kumar (PW6) photographed the spot from different angles. Since the injured was already rushed to SGM Hospital, he alongwith other staff members reached there and found the deceased on a stretcher, in casualty, with injury near left eyebrow. He deposed that on his direction, Ct. Anil took photographs of deceased from different angles. Thereafter, he alongwith other staff members returned to the spot and prepared spot inspection report Ex. PW7/A, that he handed over to ASI Jai Bhagwan in presence of SHO.
In cross examination by Ld. defence counsel, PW7 replied that he did not know the number of photographs clicked by Ct. Amit Kumar. He replied that he made no DD entry regarding reaching the spot as he received the message on his wireless set, however, he did not know if the said fact had been mentioned in his statement recorded U/s. 161 CrPC. He replied that IO lifted nothing from the spot in his presence. He denied the suggestion that the report Ex. PW7/A was prepared to facilitate the prosecution story, while sitting in office. He denied the suggestion that he did not visit the spot on the day of incident.
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11.PW8 Ct. Rakesh Dhawan deposed that on 26/10/2015, on directions of IO, he collected exhibits from MHC(M) in sealed condition for depositing the same with FSL, Rohini. He deposed that he visited FSL, Rohini, vide RC No. 190/21/15 and 191/21/15 and handed over the copy of RC back to MHC(M). He deposed that till the time the exhibits remained in his custody, they were not tampered with.
12.PW9 HC Narender deposed that on 01/09/2015 he was posted at PS Nihal Vihar as Constable and was on patrolling duty with SHO. He deposed that at about 05:00 - 05:15pm, on receipt of secret information by SHO regarding presence of one of the accused at Sakshi TPoint, Nihal Vihar, they alongwith secret informer reached there and apprehended accused Rajesh @ Pauwa, at the instance of secret informer. He deposed that during interrogation, accused Rajesh @ Pauwa confessed his involvement in the present case vide disclosure statement Ex. PW9/A. Accused Rajesh @ Pauwa was arrested vide arrest memo Ex. PW9/B and personally searched vide personal search memo Ex. PW9/C. He deposed that accused Rajesh @ Pauwa led them to the place of incident vide pointing out memo Ex. PW9/D. In crossexamination by Ld. defence counsel, PW9 replied that he did not remember if personal search of accused Rajesh @ Pauwa was conducted. He replied that the place from where accused Rajesh @ Pauwa was apprehended was a thickly populated area, however, no public person had signed the arrest memo of accused. He voluntarily stated that the public persons were asked to join investigation. He replied that he did not remember UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 14 of 44 colour of the purse recovered from possession of the accused. He replied that he could not tell the description of clothes worn by accused Rajesh @ Pauwa at the time of his arrest. He denied the suggestion that he deposed falsely and accused Rajesh @ Pauwa was not arrested in his presence.
13.PW10 Ct. Jagdish deposed that on 31/08/2015 he alongwith ASI Jai Bhagwan was on emergency duty from 08:00pm to 08:00am at K2 Block, Nihal Vihar regarding inquiry pertaining to DD No.96B and, at about 11:00pm, on receipt of telephone call from duty officer in respect of DD No.38A regarding firing, they reached at B738, Ambika Enclave, Nihal Vihar, Delhi, where they found blood strewn (spilled) on road. There were public persons at the spot. He deposed that Ct. Vikram also reached the spot alongwith copy of DD No.38A that he handed over to ASI Jai Bhagwan. They came to know that the injured was already rushed to SGM Hospital. They left Ct. Vikram at the spot and reached SGM Hospital, where ASI Jai Bhagwan collected MLC of deceased Suresh Singh. In the hospital, they met Anil (PW2), brother of deceased, who narrated the incident to ASI Jai Bhagwan. He deposed that the dead body was got preserved for conducting of postmortem examination and, thereafter, they returned to the spot. He deposed that ASI Jai Bhagwan prepared rukka that he handed over to him for getting the FIR registered. After registration of FIR, he returned to the spot and handed over the rukka and copy of FIR to ASI Jai Bhagwan.
PW10 deposed that in the morning of 01/09/2015 he alongwith ASI Jai Bhagwan again visited SGM Hospital and after conducting of postmortem examination, the body was handed over to its relatives. He deposed that the UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 15 of 44 concerned doctor handed over pullanda of clothes of deceased, blood in gauze, sample seal of hospital and a sealed plastic container to ASI Jai Bhagwan, who seized the same vide seizure memo Ex. PW10/A. Thereafter, they returned to PS and deposited the seized exhibits in malkhana. He identified the clothes Ex. P19 (Colly.), produced in sealed pullanda with Court seal and piece of cartridge Ex. P21, produced in a sealed plastic jar.
In crossexamination by Ld. defence counsel, PW10 replied that he did not remember the arrival entry number and its time that were made at PS after completion of investigation on 31/08/2015. He replied that no public person was inquired in his presence, either on the spot or in hospital, where the injured was admitted. He replied that he signed at the bottom of his statement recorded U/s. 161 CrPC. His statement Ex. PW10/DX was shown to PW10 to which he admitted that it did not bear his signature. He replied that the site plan was not prepared in his presence. He replied that neither site plan nor any document were signed by Anil (PW2), brother of deceased, in his presence. He replied that he did not remember if signature of Anil, brother of deceased, was obtained on seizure memo Ex. PW10/A. He denied the suggestion that brother of deceased was not present in hospital, neither his statement was recorded by ASI Jai Bhagwan.
14.PW11 HC Harish Chandra deposed that on 01/09/2015 he was posted at PS Nihal Vihar as MHC(M) and on that day ASI Jai Bhagwan deposited with him three sealed pullandas and sample seal of SGMH, Mortuary, Mangol Puri, alongwith copy of seizure memo, regarding which he made entry in Register UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 16 of 44 No. 19 at Sr. No.1413, Ex. PW11/A. He deposed that on the same day Inspector Sharat Chandra deposited with him two pullandas, sealed with the seal impression of SCN, alongwith copy of seizure memo. He deposed that he endorsed entry no. 1413 from portion A to A1. He deposed that on 07/09/2015 Inspector Sharat Chandra deposited with him the articles recovered from personal search of accused Rajesh @ Jagdish @ Pauwa alongwith copy of personal search memo. In that regard, he made entry in register no.19 at Sr. No. 1423, Ex. PW11/B. PW11 deposed that on 14/10/2015 Inspector Sharat Chandra deposited with him one sealed plastic box containing pistol and cartridges that he entered in register no.19 at Sr. No.1507, Ex. PW11/C, alongwithc copy of seizure memo. He deposed that on the same day Inspector Sharat Chandra also deposited with him the articles recovered from personal search of accused Sanjay @ Ramu @ Judi to which he made endorsement Ex. PW11/C, from portion A to A1.
PW11 deposed that on 26/10/2015 the sealed case properties were sent to FSL, through Ct. Rakesh, vide RC No. 190/21/15, Ex. PW11/D and RC No. 191/21/15, Ex. PW11/E. After depositing the case properties with FSL, Ct. Rakesh handed over to him the receiving copy of RC and acknowledgements Ex. PW11/F and Ex. PW11/G, respectively. He deposed that on 14/06/2016 he reached PS Saket, from where he collected two sealed pullandas of pistol and cartridges alongwith one sealed envelop containing result of forensic expert, that were sent from FSL, Rohini, to other centre for obtaining expert opinion. He deposed that regarding collection of exhibits from PS Saket, he made UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 17 of 44 endorsement from portion A to A1 in register no. 19 against Sr. No.1507 (Ex. PW11/C). He deposed that till the case property remained in his possession, it was not tampered with.
In crossexamination by Ld. defence counsel, PW11 replied that he received a wireless message from South Police District regarding deposit of case property at PS Nihal Vihar. He replied that he did not remember the date of such wireless message, neither did he place its copy on record nor made any departure entry in that regard. He replied that he made no DD entry regarding his arrival at PS Nihal Vihar with case property. He denied the suggestion that the case property was not tampered with and was not collected by him. He denied the suggestion that no wireless message was ever received by him to collect the case property from PS Saket. He replied that he did not know about the seal affixed on case property when he obtained it from PS Saket, neither he mentioned it in his statement recorded U/s. 161 CrPC by IO. He denied the suggestion that no seal was affixed on pullandas and envelop collected by him.
15.PW12 ASI Om Prakash deposed that on 19/10/2015 he alongwith IO Inspector Sharat Chandra visited the spot i.e. in front of H. No. B738, Ambika Enclave, Nihal Vihar, where they met eye witness Anil Singh. He deposed that at the instance of Anil Singh, he prepared rough notes and measured the spot. He deposed that on 23/10/2015, on the basis of rough notes and measurement, he prepared scaled site plan Ex. PW12/A and, thereafter, destroyed the rough notes and measurements.
In crossexamination by Ld. defence counsel, PW12 replied that his UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 18 of 44 statement was recorded on 19/10/2015 at about 01:00pm. He replied that Anil (PW2) did not sign any paper in his presence. He replied that he destroyed the rough notes on 23/10/2015, regarding which IO did not record his statement. He denied the suggestion that Anil Singh was not present at the spot. He replied that he did not remember the DD entry number by which he made arrival in PS after completion of work. He denied the suggestion that he did not visit the spot alongwith the IO.
16.PW13 ASI Sushil Kumar, Duty Officer, deposed that on 21/08/2015, at around 11:12pm, wireless operator visited in his room at PS Nihal Vihar and informed about receipt of call from control room regarding death of a person with bullet injury at CBlock, Chandan Vihar, Nihal Vihar. On the basis of said information, he made entry in roznamcha against DD No.38A, Ex. PW13/A and handed over its copy to Ct. Vikram, to be given to ASI Jai Bhagwan. He also shared the said information with SHO concerned.
17.PW14 Ct. Bahadur Singh deposed that on 14/10/2015 he alongwith IO Inspector Sharat Chandra as well as other staff members reached at Ganda Nala, near Desi Sharab Theka, Nihal Vihar, and, on pointing out of secret informer, apprehended accused Sanjay @ Judi from DDA Park, Nihal Vihar. He deposed that during interrogation, accused Sanjay @ Judi confessed his involvement in the present case. He deposed that on cursory search of accused Sanjay @ Judi, a loaded country made pistol (desi katta) was recovered from right side pocket of his wearing pant. The magazine of the pistol was found containing three live cartridges and the word "KF 7.65" was engraved on their base. He deposed that the pistol and cartridges were taken into possession and UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 19 of 44 their sketch Ex. PW14/A was prepared. He deposed that a pullanda of pistol was prepared, the cartridges were kept in a small plastic jar, both of them were sealed with the seal of SCN and were seized vide memo Ex. PW14/B. During interrogation, disclosure statement Ex. PW14/C of accused Sanjay @ Judi was recorded. He deposed that accused Sanjay @ Judi led them to place of occurrence vide pointing out memo Ex. PW14/D. He was arrested vide memo Ex. PW14/E, personally searched vide memo Ex. PW14/F, medically examined at SGM Hospital and the case property was deposited in malkhana. IO recorded his statement. He identified the case property i.e. pistol Ex. P20 and cartridges Ex. P21 (Colly.).
In crossexamination by Ld. defence counsel, PW14 replied that he alongwith IO reached the spot on official vehicle, however, he did not remember the vehicle number. He replied that he did not know the DD entry number regarding departure or arrival. He replied that he did not remember if the IO had obtained chance print/fingerprint from the alleged recovered weapon Ex. P20. He replied that the accused had signed the document in Hindi language that were prepared at the time of his apprehension. He replied that no relative of the accused was called at the spot by IO. He voluntarily stated that IO called them later. He denied the suggestion that guidelines of Hon'ble Apex Court were not followed by IO during seizure and arrest of the accused. He replied that he did not remember if IO prepared any sketch of recovered weapon/pistol at the spot. He replied that he did not know if IO informed to police station regarding arrest of the accused. He replied that the weapon was recovered from right pocket of wearing pant of accused, however, he did not remember the colour of clothes worn by accused at the time of his UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 20 of 44 arrest. He replied that the personal search memo of accused was signed by him as well by the accused himself. He denied the suggestion that he did not visit the place of occurrence, as mentioned in pointing out memo. He replied that he signed his statement recorded U/s. 161 CrPC, after going through it. His statement U/s. 161 CrPC was shown to PW14 to which he admitted that it did not bear his signature. He denied the suggestion that he was not part of raiding team. He denied the suggestion that the weapon Ex. P20 was not recovered from possession of accused Sanjay @ Judi. He denied the suggestion that accused Sanjay @ Judi was falsely implicated in the present case.
18.PW15 Manish Gupta, Junior Forensic Chemical Examiner, Forensic Science Laboratory, Rohini, deposed that on 26/10/2015 four sealed parcels were received in the office of FSL from PS Nihal Vihar in connection with the present FIR. He examined the parcels and prepared his report Ex. PW15/A. He deposed that in regard to examining the exhibits biologically and serologically, he prepared report no. FSL 2015/B6959 dated 30/06/2016, Ex. PW15/B. He deposed that after examination, remnants of exhibits were put in respective parcels and were sealed with the seal of MG FSL Delhi.
In crossexamination by Ld. defence counsel, PW15 denied the suggestion that proper care and measurements were not adopted while examining the parcels. He denied the suggestion that the reports Ex. PW15/A and Ex. PW15/B were prepared in a mechanical manner. He denied the suggestion that he had no specific degree to examine the exhibits.
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19.PW16 Dr. Manoj Dhingra, Incharge Mortuary, SGM Hospital, deposed that on 01/09/2015 he conducted postmortem examination on the body of deceased Suresh Singh, brought by ASI Shri Bhagwan and Inspector Mukhtiyar Singh from PS Nihal Vihar with alleged history of found dead on 31/08/2015 at 10:30pm, vide MLC No. 16416 of SGM Hospital. He opined that the cause of death was shock as a result of head injury due to firearm weapon and all the injuries were antemortem in nature. He proved his detailed postmortem report no. 811/15 (running into four pages), Ex. PW16/A. In crossexamination by Ld. defence counsel, PW16 replied that at the time of postmortem examination, the stomach of deceased was found containing 100ml brownish fluid. He replied that he could not give any opinion about consumption of fluid by deceased. He replied that he did not remember if any police official/IO had ever produced weapon of offence for his opinion in the present case. He replied that during postmortem examination he took out bullet from body of deceased for which he prepared a pullanda, sealed it and handed it over to IO. He replied that IO did not record his separate statement in that regard. He voluntarily stated that he sealed pullanda of one bullet with the seal of SGM Mortuary, that he handed over to IO. He denied the suggestion that he did not hand over bullet to the IO on the day of postmortem.
20.PW17 Dr. Ajay Kumar, Senior Medical Officer, SGM Hospital, deposed that on 01/09/2015, at about 12:05 midnight, patient Suresh Singh was brought to casualty of aforesaid hospital with alleged history of gunshot injury. He deposed that the patient was unable to arouse even after painful stimuli and UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 22 of 44 was declared as brought dead. He prepared MLC No. 16416, Ex. PW17/A, in that regard.
In crossexamination by Ld. defence counsel, PW17 admitted that there was overwriting on time in MLC and the same was not signed by the concerned person. He replied that he himself wrote the name of Vijay and his mobile number on MLC Ex. PW17/A, but he could not tell if Vijay was a police person or public person. He replied that he himself did not hand over any pullanda to any police official or public person.
21.PW18 ASI Pratap Singh deposed that the present case was assigned to him on 14/06/2018 for investigation. He deposed that he moved application before Competent Authority i.e. Addl. DCP for grant of Sanction U/s. 39 Arms Act. He deposed that on 13/07/2018 he collected Sanction U/s. 39 Arms Act accorded by Addl. DCPI, Outer District, prepared supplementary challan and filed it in Court.
In crossexamination by Ld. defence counsel, PW18 replied that he did not remember the DD number of departure as well as arrival after obtaining the sanction. He admitted that the weapon of offence was not produced before Addl. DCP for inspection.
22.PW19 ASI Mahesh Kumar deposed that on 01/09/2015, at about 02:35 am, on receipt of rukka Ex. PW19/A, from Ct. Jagdish, sent by ASI Jai Bhagwan, he registered the present FIR and made endorsement Ex. PW19/B on it. After UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 23 of 44 registration of FIR, he handed over copy of FIR and original rukka to Ct. Jagdish to be given to IO Inspector Sharat Chandra. He deposed that he also issued Certificate U/s. 65B of Indian Evidence Act.
23.PW20 Rajender Singh Sagar, Addl. DCPI, Outer District, deposed that on 12/07/2018 case file of present case was put before him. He perused the case file, statements of witnesses recorded U/s. 161 CrPC as well as FSL report and gave Sanction U/s. 39 Arms Act, Ex. PW20/A, to prosecute accused Sanjay @ Jagdish @ Judi.
In crossexamination by Ld. defence counsel, PW20 replied that the weapon of offence for which the sanction was given, was not produced before him. He replied that he did not remember if the IO recorded his statement U/s. 161 CrPC. He replied that he did not remember if the ballistic report was from FSL, Rohini, or from some other forensic lab, however, (Vol.) it was produced before him. He denied the suggestion that he accorded the sanction U/s. 39 Arms Act in mechanical manner.
24.PW21 Ms. Swati Singh, Ld. Metropolitan Magistrate02, East District, Karkardooma, deposed that on 22/09/2015 she was posted as Reliever Metropolitan Magistrate and, on that day, an application for conducting TIP of accused Rajesh @ Jagdish @ Pauwa was marked to her by Sh. Harvinder Singh, the then Ld. MM. She deposed that accused Rajesh @ Jagdish @ Pauwa was produced before her in muffled face, who refused to participate in TIP proceedings. She deposed that considering the seriousness of offence and that UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 24 of 44 he was not represented by any counsel, she did not deem it fit to record his refusal. She deposed that the accused was given some more time to think again if he wished to participate in TIP proceedings and the TIP was fixed for 29/09/2015, vide order Ex. PW21/A. She deposed that on 01/10/2015, at about 10:45am, IO moved application Ex. PW21/B for extension of date of TIP proceedings of accused Rajesh @ Jagdish @ Pauwa that she fixed for 02:00pm vide her endorsement on it from A to A1. She deposed that on the same day i.e. 01/10/2015 accused Rajesh @ Jagdish @ Pauwa was produced before her at Tihar Jail, however, he again refused to participate in TIP proceedings. The record of TIP proceedings alongwith certificate Ex. PW21/C. She deposed that she allowed application Ex. PW21/D moved by IO on the same day i.e. 01/10/2015 for copy of TIP proceedings.
PW21 further deposed that on 17/10/2015 an application for conducting TIP of accused Sanjay @ Jagdish @ Judi @ Ramu was marked to her by Sh. Harvinder Singh, the then Ld. MM. She deposed that accused Sanjay @ Jagdish @ Judi @ Ramu was also produced before her in muffled face, who refused to participate in TIP proceedings. She deposed that considering the seriousness of offence and that he was not represented by any counsel, she did not deem it fit to record his refusal. She deposed that the accused was given some more time to think again if he wished to participate in TIP proceedings and the TIP was fixed for 26/10/2015, vide order Ex. PW21/E. She deposed that on 26/10/2015 accused Sanjay @ Jagdish @ Judi @ Ramu was produced before her at Tihar Jail, however, he again refused to participate in TIP proceedings. PW21 proved the record of TIP proceedings alongwith certificate UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 25 of 44 Ex. PW21/F. She deposed that she allowed application Ex. PW21/G moved by IO on the same day i.e. 26/10/2015 for copy of TIP proceedings.
25.PW22 ASI Jai Bhagwan deposed that on 31/08/2015 on receipt of DD No.96B, he alongwith Ct. Jagdish reached at A2 Block, Nihar Vihar, where Ct. Vikram handed over to him DD No.38A, Ex. PW22/A, regarding causing death of a person by firearm. He deposed that on receipt of DD No.38A, he alongwith Ct. Jagdish and Ct. Vikram reached in a gali near H. No. B738, Ambika Enclave, Nihal Vihar, where they found blood scattered on road and no eye witness was present at the spot. Upon inquiry, they came to know that the injured was already shifted to SGM Hospital. He deposed that leaving behind Ct. Vikram at the spot, he alongwith Ct. Jagdish reached SGM Hospital, where he collected MLC of injured Suresh, who was declared as brought dead with alleged history of gunshot injury. He deposed that on inspection he noticed the gunshot injury on left side of the forehead of deceased. He deposed that one Anil, brother of deceased, met him in the hospital, who claimed himself to be an eye witness of the incident. He recorded statement Ex. PW2/A of Anil and returned to the spot alongwith Anil and Ct. Jagdish, where he met SHO with other staff. The crime team was called at the spot, which inspected the spot, photographed the spot and, thereafter, reached the hospital. He deposed that he made endorsement Ex. PW22/B on statement Ex. PW2/A and sent Ct. Jagdish to PS for registration of FIR. He deposed that after registration of FIR, the investigation was conducted by Inspector Sharat Chandra, SHO PS Nihal Vihar, who seized blood and blood stained concrete from the spot. He deposed that the blood in gauze was kept in an envelope, UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 26 of 44 whereas, the concrete was kept in a plastic jar and both were sealed with the seal of SCN. He deposed that the seal, after use, was handed to him and the exhibits were seized vide memo Ex. PW22/C. He deposed that after postmortem examination, the doctor handed over to him three sealed parcels alongwith one sample seal of SGMH Mortuary that he seized vide memo Ex. PW10/A. In crossexamination, PW22 stated that rukka was sent from the spot and not from the hospital as the complainant was brought from the hospital to the spot from where he sent the rukka.
26.PW23 Inspector Sharat Chandra deposed that on 31/08/2015, at about 11:12pm, on receipt of information about DD No.38A he alongwith other staff of PS Nihal Vihar reached the place of incident i.e. near H. No. 738, Ambika Enclave, Nihal Vihar, where he met Ct. Vikram. There was blood lying in street at the spot. Upon inquiry, he came to know that a person had been shot and was shifted to SGM Hospital. After sometime, ASI Jai Bhagwan alongwith Ct. Jagdish and complainant Anil Singh reached the spot. Crime team also arrived. He deposed that, at around 02:10am, ASI Jai Bhagwan prepared Tehrir that he handed over to Ct. Jagdish for registration of FIR. Crime team inspected the spot, photographed it and the incharge, crime team, handed over his report to PW23. He deposed that he lifted blood with the help of gauze and blood stained earth from the spot. He deposed that he kept the blood in gauze in an envelope, while the blood stained earth in a plastic box and sealed both the parcels with the seal of SCN. Thereafter, he prepared seizure memo Ex. PW22/C, prepared site plan Ex. PW23/A at the instance of Anil Singh (PW2), UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 27 of 44 recorded the statement of witnesses and deposited the case property with MHC(M). He deposed that he got the postmortem examination of deceased Suresh conducted through ASI Jai Bhagwan, who handed him over the seizure memo of sealed parcels, given to him by autopsy surgeon.
PW23 deposed that on 07/09/2015 he received secret information that one of the assailant namely Rajesh @ Pauwa was standing at Sakshi TPoint, Nihal Vihar, who, if raided, could be apprehended. On this information, he alongwith SI Sri Kishan, HC Sahab Singh, Ct. Narender and other staff reached the said place and apprehended accused Rajesh @ Pauwa at the instance of secret informer. He deposed that he interrogated the accused, arrested him vide memo Ex. PW9/B, personally searched him vide memo Ex. PW9/C and recorded his disclosure statement Ex. PW9/A. He deposed that accused Rajesh @ Pauwa led them to place of incident, where he, at the instance of accused, prepared pointing out memo Ex. PW9/D. He deposed that after arrest, accused Rajesh @ Pauwa was kept in muffled face and was produced before the area Magistrate on next day. He deposed that he moved application for conducting TIP of accused Rajesh @ Pauwa, however, he refused to participate in it.
PW23 deposed that on 14/10/2015, upon secret information, he alongwith SI Sri Kishan, Ct. Bahadur and other staff reached at DDA Park, in front of cremation ground, Nihal Vihar, where he, at the instance of secret informer, apprehended accused Sanjay @ Judi and, on search, one country made pistol, loaded with three live cartridges, was recovered from right side UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 28 of 44 pocket of his wearing pant. He deposed that he prepared sketch Ex. PW14/A of the recovered pistol as well as one live cartridge, kept them in a parcel that was sealed with the seal of SCN and prepared seizure memo Ex. PW14/B. Thereafter, he arrested accused Sanjay @ Judi vide memo Ex. PW14/E, personally searched him vide memo Ex. PW14/F and recorded his disclosure statement Ex. PW14/C. He deposed that accused Sanjay @ Judi led them to the place of incident, where he, at the instance of accused, prepared pointing out memo Ex. PW14/D. He deposed that after arrest, accused Sanjay @ Judi was kept in muffled face and was produced before the area Magistrate on next day. He deposed that he moved application for conducting TIP of accused Sanjay @ Judi, however, he refused to participate in it.
PW23 deposed that on 19/10/2015 he alongwith Anil Singh (PW2) and Assistant Draftsman Om Prakash (PW12) visited the place of incident, where Om Prakash prepared rough notes and measured the spot at the instance of Anil Singh. He deposed that during investigation he sent exhibits to FSL for analysis, recorded statement of witnesses, collected postmortem report and after completion of investigation, filed the charge sheet in Court.
In crossexamination by Ld. defence counsel, PW23 replied that clothes of PW2 Anil Singh were not seized as there was no blood on them. He replied that the signatures of complainant were not obtained on seizure memo. He denied the suggestion that since complainant Anil Singh was not present at the spot, his signatures were not obtained on seizure memo. He admitted that the complaint was not received in his presence, neither attested by him. He UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 29 of 44 voluntarily stated that the complaint was received as well as attested by ASI Jai Bhagwan. He replied that no chance prints were lifted by crime team in his presence. He replied that PW2 Anil did not give any physical description of accused persons in presence of crime team; he inquired about it from the complainant. He voluntarily stated that the complainant described the offenders as young persons. He replied that the complainant did not tell about built and wearing clothes of accused persons. He replied that since the offenders were named by PW4 Manoj, few days after the incident, there was no requirement for preparing their sketch. He replied that he did not remember if the efforts were made to arrest the offenders after revelation their names. He replied that he did not remember the dates and DD entries registered for search of accused persons at their houses. He replied that he did not remember the DD number vide which he left for arrest of accused Rajesh @ Pauwa. He replied that he returned in government gypsy alongwith HC Sahab Singh, Ct. Narender, SI Sri Kishan and driver operator, however, he did not remember the name of driver. He replied that despite efforts, none of the public persons joined investigation at the time of arrest of the accused. He replied that no separate notice was given to complainant for identification of offenders. He voluntarily stated that the complainant identified the accused in Court. He replied that he recorded statement of complainant Anil Singh qua identification of accused Rajesh @ Pauwa in the month of November 2015 but voluntarily stated that he did not remember the exact date. He replied that when accused Rajesh @ Pauwa was produced before the Court, complainant Anil Singh was present with them.
PW23 replied that the finger prints of accused Sanjay @ Judi were not UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 30 of 44 obtained immediately after his arrest. He replied that surface of the butt of the pistol, recovered from pocket of accused Sanjay @ Jagdish @ Judi, was not plain because of which there was no possibility of obtaining finger prints/chance prints from it. He replied that accused Sanjay @ Judi was identified by complainant Anil Singh, when produced in Court. He replied that he did not remember the exact date of production of accused Sanjay @ Judi before the Court, however, he recorded statement of complainant Anil Singh on that day. He replied that no separate notice was served to any independent witness to join the proceedings/investigation. He denied the suggestion that complainant Anil Singh never visited the Court. He denied the suggestion that the complainant did not identify accused Sanjay @ Judi on the day of his production in Court and the identification statement was manipulated. He replied that photograph of none of the accused persons was shown to complainant prior to the date of identification. He denied the suggestion that there were CCTV cameras installed in the shops/clinic at the place of incident. He voluntarily stated that the clinic was 200 meters away from the spot. He replied that complainant Anil did not reveal about taking his brother to clinic at the first instance. He replied that the complainant rushed his injured brother to hospital in a Maruti car but did not disclose its registration number, however, he told the name of driver as Vijay. He replied that he recorded statement of Vijay. He replied that ASI Jai Bhagwan did not obtain signature of Vijay on any seizure memo or statement. He denied the suggestion that the injured was not taken to hospital by Vijay in his car and that he was a planted witness. He replied that there were blood stains on the seat of the car on which the victim was taken to hospital. He replied that immediately after receipt of information, UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 31 of 44 he inspected the vehicle at the house of Vijay, however, he did not remember the exact date and time of inspection. He denied the suggestion that his statement regarding inspection of vehicle of Vijay was false. He denied the suggestion that no bullet was fired by accused persons at the deceased. He denied the suggestion that no recovery was effected from accused Jagdish @ Judi. He denied the suggestion that the evidence was planted upon the accused persons and they were falsely implicated in the present case. He denied the suggestion that he did not conduct proper investigation and all the proceedings were completed while sitting at PS.
27.PW24 Dr. S.S. Murthy, Assistant Director, Ballistics, CFSL, Hyderabad, Telangana, deposed that on 08/03/2016 he was posted as Assistant Director, Ballistics & Scientist 'C' in CFSL, Ramanthapur, Hyderabad, and, on that day, two parcels, one sealed with the seal of SCN and another sealed with the seal of SGMH, Mortuary, Mangol Puri, Delhi83, alongwith request letter of forwarding authority, DCP, Crime (CRO/PRO, Delhi) were received in their division for analysis of exhibits. He deposed that he conducted analysis from 28/03/2016 to 31/03/2016. He deposed that the seals on parcels were intact and were tallying with the respective specimen seal impressions. He deposed that on opening the parcel, sealed with the seal of SCN, it was found containing one country made pistol with magazine, that he marked as Ex.1, and three 7.65mm live cartridges, that he marked as Ex.1(a) to Ex.1(c).
He deposed that on opening the second parcel, sealed with the seal of SGMH, Mortuary, Mangol Puri, Delhi83, it was found containing one 7.65mm deformed bullet, that he marked as Ex.2. He deposed that two live UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 32 of 44 cartridges Ex.1(a) and Ex.1(b) were test fired through the country made pistol Ex.1 in the laboratory and their bullets were collected. On the basis of test fire, he opined that the country made pistol was in working order and cartridges Ex.1(a) and Ex.1(b) were live one prior to test firing. He deposed that on thorough analysis and comparison of individual characteristic marks present on the deformed bullet Ex.2 and test bullets of Ex.1(a) and Ex.1(b) through comparison microscope, he opined that the deformed bullet Ex.2 was fired through country made pistol Ex.1 and it could not be have been fired through any other firearm because every firearm has its own individual characteristic marks. He deposed that after examination the exhibits were resealed in two separate parcels with his seal of SSM. He prepared report Ex. PW24/A. He deposed that the sealed parcels alongwith his report were received by Inspector PS Saket on 24/07/2016 through his forwarding letter Ex. 24/B. In crossexamination by Ld. defence counsel, PW24 replied that the sealed parcels were received in their division through Inspector Ajmer Singh, No. D1/816. He replied that he did not interact personally about the case, either from Inspector Ajmer Singh or any other police official. He replied that the brief facts of the case were mentioned in forwarding letter. He replied that alongwith forwarding letter, copy of FIR, sample seals, seizure memo, sketch of firearm, ammunition, postmortem report and road certificate were received. He admitted that in copy of sketch of arms and ammunition annexed with forwarding letter, available in their record, only one cartridge was shown. He denied the suggestion that in case of fire from country made pistol, there were no specific characteristic marks on the discharged bullet. He voluntarily stated that if there is rifling in the barrel of firearm, its unique characteristic in the UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 33 of 44 form of land and groove get imprinted on the discharged bullet. He denied the suggestion that he did not analyze the exhibits properly and prepared his report in a mechanical manner.
28.All the incriminating evidence that came on record in the deposition of prosecution witnesses was put in detail to the accused persons and their statements were recorded U/s. 313 CrPC. They denied all incriminating evidence and asserted that they were falsely implicated in the present case. The accused persons did not avail of the opportunity to lead evidence in their defence. I have heard the elaborate final arguments from both sides. The evidence is analyzed as under:
29.Hostile Witnesses:
a) PW1 Gopal Gupta stated that on 31/08/2015, on request of a police official he went to the spot where he saw some blood on the road. However, he was not aware of any murder, neither did he see a dead body at the spot. He did not hear noise of a gunshot, neither noticed 45 offenders near his shop who fired the gun and killed a person. PW1 expressed his ignorance about the incident.
b) PW4 Manoj deposed that around one year ago at around 08:45 -
09:00pm, after taking dinner he went out of his house to take a walk and noticed that a crowd had gathered around a person who was killed by someone. The police officials were lifting the dead body of deceased from there. On seeing the same, he returned to his home. On the next day, he was called by police at the police station to enquire about the incident.
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In crossexamination conducted by Ld. Addl. PP, PW4 expressed his ignorance about the incident.
c) Ld. defence counsel argued that independent public witness did not support the prosecution case. On the other hand, Ld. Addl. PP argued that deposition of PW1 Gopal Gupta and PW4 Manoj does not falsify the prosecution case neither indicate towards the innocence of accused persons. Their testimonies are completely neutral and neither favours the defence of accused persons nor discredit the prosecution case. The said witnesses simply stated that they did not witness the incident. They could neither confirm nor deny the occurrence of incident or the identity of offenders.
30.Whether Testimony of Sole Witness (PW2) can be the basis of Conviction?
a) Ld. Defence counsel argued that key public witnesses did not support the prosecution case, whereas, PW2 Anil Singh was an interested and planted witness; he was not present at the spot at the time of incident. For this reason, testimony of PW2 cannot be relied in proof of prosecution case. Ld. Defence counsel argued that at any rate, the testimony of PW2 remained uncorroborated by evidence and could not form basis of conviction of the accused persons.
b) In this regard, Ld. Addl. PP argued, and rightly so, that depositions of hostile witnesses i.e. PW1 Gopal Gupta and PW4 Manoj are completely neutral and neither favours the defence of accused persons nor discredit the prosecution case. The said witnesses simply stated that they did not witness the UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 35 of 44 incident. They could neither confirm nor deny the occurrence of incident or the identity of offenders.
c) Ld. Addl. PP argued that merely because PW2 Anil Singh was brother of deceased Suresh, his testimony cannot be discarded as that of an interested witness. It is also well established law that the testimony of a single eye witness can form basis of conviction of an accused. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise. It is not the number, the quantity but the quality that is material. The time honored principle is that evidence has to be weighed and not counted.
31.Presence of PW2 Anil Singh at the spot:
a) Ld. Defence counsel argued that presence of PW2 Anil Singh at the spot during the incident is doubtful; he was subsequently planted as an eye witness by the IO. He argued that PW2 Anil Singh would have immediately called police from the spot if he were present there when victim Suresh sustained gunshot injury on his forehead. Instead, PW2 stated that on witnessing the gunshot injury he first rushed to his home and intimated his bhabhi (sisterin law) about the incident, who arranged a vehicle to take injured Suresh to hospital. The conduct of PW2 is not natural and is not consistent with that of an eye witness.
b) It was argued from defence side that the presence of PW2 Anil Singh is not recorded in MLC Ex. PW17/A of victim Suresh. The said MLC reflects that dead body of victim Suresh was brought by one Vijay Kumar (PW5) to SGM UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 36 of 44 Hospital. Ld. defence counsel argued that if PW2 Anil Singh were present at the spot, he would have taken the dead body of victim Suresh to SGM Hospital, rather than, PW5 Vijay Kumar.
c) In this regard, Ld. Addl. PP referred to testimonies of PW5, PW10, PW22 and PW23 and argued that PW5 Vijay Kumar deposed that on 31/08/2015 his neighbour Anil (PW2) and wife of victim Suresh came to his house and told that someone fired at Suresh and requested him to accompany them to the spot of incident. On their request, he accompanied them to the spot and discovered victim Suresh lying unconsciousness with bullet injury on his forehead. He stated that injured Suresh was first taken to his house and, thereafter, he took the injured to SGM Hospital in his car.
d) PW10 Ct. Jagdish and PW22 ASI Jai Bhagwan deposed that on 31/08/2015, at around 11:00pm, they reached the spot of incident where they discovered blood spilled on the road. They were informed that the injured was already rushed to SGM Hospital. They went to SGM Hospital, where they collected MLC of deceased Suresh and met Anil (PW2), the brother of deceased Suresh. They stated that Anil narrated the incident to PW22 ASI Jai Bhagwan, who recorded his statement Ex. PW2/A. Thereafter, PW10 and PW22 went back to the spot alongwith PW2 Anil.
e) PW23 Inspector Sharat Chandra deposed that on 31/08/2015, at about 11:12pm, he was informed regarding the incident. He reached the spot and discovered that a person had been shot and was rushed to SGM Hospital. He UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 37 of 44 stated that, in the meantime, ASI Jai Bhagwan, Ct. Jagdish and complainant Anil Singh reached the spot from hospital.
f) The testimonies of PW5, PW10, PW22 and PW23 reflect that the dead body of deceased Suresh was rushed to hospital, inter alia, by PW2 Anil in the car of PW5 Vijay Kumar. PW10 and PW22 met PW2 Anil in the hospital, where PW22 recorded his statement. Thereafter, they rushed back to the spot, where they met PW23 Inspector Sharat Chandra.
g) Indeed, PW2 Anil does not come across as a planted witness. PW2 explained in his testimony that he did not raise alarm at the time of incident as he was terrified on seeing the condition of his brother and ran towards his house which was situated near to the place of incident. The conduct of PW2 after the incident is not unnatural or unlikely conduct of an eye witness.
32.Establishing identity of the accused persons:
a) Ld. Addl. PP argued that upon their arrest, the accused persons refused to join judicial TIP on the flimsy pretext that their photographs were taken by the police officials and they may have been shown to the witnesses as well. The accused persons assigned no cogent reason for refusal to join judicial TIP, on account of which necessary presumption is drawn against them that if they had joined the judicial TIP proceedings, they would have been correctly identified as offenders by the witness.
b) PW2 Anil Singh had no prior acquaintance or enmity with the accused
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persons. He had no motive to falsely implicate them either at the stage of investigation or at the stage of trial.
c) During the trial PW2 Anil Singh identified accused Sanjay @ Judi as the offender who fired gunshot at his brother Suresh at the exhortation of accused Rajesh @ Pauwa. In all fairness, PW2 Anil deposed that the seized pistol was similar to the pistol used by accused Sanjay @ Judi at the time of incident but he was not sure if it was the same.
d) Ld. Defence counsel argued that names of accused persons do not find mention in any of the statement of Anil, recorded during investigation. In this regard, Ld. Addl. PP submitted that PW2 Anil explained in crossexamination that at the time of recording of his statements during investigation, he did not know the names of offenders/accused persons, which was the reason why their names did not find mention in his statement. He stated that he was not called at police station to see the photographs of assailants. He stated that he went to Tihar Jail for the purpose of identification of culprits.
e) The Court finds that the testimony of PW2 Anil Singh is reliable and unwavering. From his testimony, the identity of accused persons as the offenders is firmly established.
33.Recovery of weapon of offence and sending the same to FSL for forensic analysis:
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a) PW14 Ct. Bahadur Singh deposed that on 14/10/2015 he was
accompanying IO Inspector Sharat Chandra and other police staff in the government vehicle. When they reached at ganda nala (sewage drain), near desi sharab theka (liquor shop) at Nihal Vihar, Inspector Sharat Chandra received secret information about the presence of one of the offenders at DDA Park, Nihal Vihar. On the identification of secret informer, they arrested accused Sanjay @ Judi and recovered a desi katta (country made pistol) loaded with three live cartridges from the right side pocket of his wearing trouser. On the base of cartridges 'KF 7.65' was inscribed. The outline sketch Ex. PW14/A of recovered country made pistol and cartridges was prepared. A pullanda of country made pistol was prepared and the cartridges were put in a small plastic jar that were sealed with the seal of SCN and seized through seizure memo Ex. PW14/B. He stated that after use, the seal was handed over to him.
b) PW11 HC Harish Chandra deposed about deposit of the sealed plastic box containing pistol and three cartridges in PS Malkaha on 14/10/2015, regarding which he made entry Ex. PW11/C in register no.19 at sl. no. 1507.
c) PW11 deposed that on 26/10/2015 the sealed case property was sent to FSL through Ct. Rakesh vide RC No. 190/21/15 and 191/21/15 vide copies of RC Ex. PW11/D and Ex. PW11/E. He stated that on 14/06/2016 he went to PS Saket and collected the sealed pullandas of pistol and cartridges alongwith one sealed envelope which contained forensic ballistic report of expert.
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34.Causal connection between death of the victim and recovered firearm through postmortem report and forensic evidence:
a) PW16 Dr. Manoj Dhingra proved the postmortem report Ex. PW16/A of deceased Suresh Singh and stated that victim died by shock as a result of gunshot injury on the head.
b) PW16 Dr. Manoj Dhingra stated that he took out bullet from body of deceased Suresh and prepared its sealed pullanda with the seal of SGM Mortuary that was handed over to the IO.
c) PW24 Dr. S.S. Murthy, Assistant Director Ballistics, CFSL, Hyderabad, deposed that on 08/03/2016 he received one sealed parcel sealed with the seal of SCN and one sealed parcel sealed with the seal of SGMH, Mortuary, Mangol Puri, Delhi, at CFSL, Hyderabad, alongwith request letter for analysis of the exhibits. The seal on the parcels were found intact and were tallying with the respective specimen seal impression.
d) The parcel sealed with the seal of SCN was found containing one country made pistol with magazine and three 7.65mm cartridges which he marked as Ex.1, Ex. 1(a) to Ex. 1(c). The parcel sealed with the seal of SGMH, Mortuary, Mangol Puri, Delhi, contained one 7.65mm deformed bullet, which he marked as Ex.2. PW24 test fired two live cartridges Ex.1(a) and Ex.1(b) through country made pistol Ex.1 in the laboratory and collected the fired bullets. On the basis of test fire, he opined that the country made pistol Ex.1 UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 41 of 44 was in working order and cartridges Ex.1(a) and Ex.1(b) were live prior to test firing.
e) PW24 stated that on thorough analysis and comparison of individual characteristic marks present on the deformed bullet Ex.2 and test bullets Ex.1(a) and Ex.1(b) through comparison microscope, he opined that the deformed bullet Ex.2 was fired through country made pistol marked Ex.1 and it could not have been fired through any other firearm because every firearm has its own individual characteristic marks. He proved his report Ex. PW24/A.
f) In crossexamination, PW24 denied the suggestion that fire from country made pistol leaves no specific characteristic marks on the discharged bullet. He voluntarily explained that if there is rifling in the barrel of firearm, its unique characteristics in the form of land and grooves get imprinted on the discharged bullet. He denied the suggestion that he did not properly analyze the exhibits or prepared his report in a mechanical manner.
g) The testimony of PW16 Dr. Manoj Dhingra proved that victim Suresh died of gunshot injury on his head. The bullet lead recovered from head of the deceased was forensically proved to have been discharged from the country made pistol recovered from possession of accused Sanjay @ Judi. Thus, the causal connection between death of victim Suresh and weapon of offence recovered from accused Sanjay @ Judi is medically and forensically established.
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35. Sanction for prosecution under Section 39 Arms Act:
PW20 Rajender Singh Sagar, Additional DCPI, Outer District, deposed that on receipt of forensic ballistic report and on perusal of investigation documents, he gave Sanction under Section 39 Arms Act to prosecute accused Sanjay @ Jagdish @ Judi for offence U/s. 25 Arms Act. He proved the Sanction order Ex. PW20/A.
36. Conclusion: PW2 Anil Singh deposed that on 31/08/2015 he witnessed accused Sanjay @ Judi firing on the temple of his brother Suresh with the pistol, at the exhortation of accused Rajesh @ Jagdish @ Pauwa. PW14 Ct.
Bahadur Singh and PW23 Inspector Sharat Chandra proved the recovery of country made pistol loaded with three live cartridges from possession of accused Sanjay @ Judi on 14/10/2015. PW16 Dr. Manoj Dhingra proved the postmortem report Ex. PW16/A of deceased Suresh Singh, who died by shock as a result of gunshot injury on the head. PW16 took out bullet from body of deceased Suresh and handed it over to the IO in sealed pullanda.
The testimony of PW24 Dr. S.S. Murthy proved that the bullet recovered from the body of deceased Suresh was discharged from the country made pistol recovered from possession of accused Sanjay @ Judi. The ocular account of PW2 Anil is well corroborated by forensic ballistic evidence. The identity of accused Sanjay @ Judi as the murderer of deceased Suresh is firmly established by evidence. It is also proved that accused Sanjay @ Judi fired at Suresh on exhortation of accused Rajesh @ Pauwa, who spoke to him 'maar de UID No. 56214/2016 FIR No. 835/2015 State Vs. Rajesh @ Jagdish & Anr. PS : Nihal Vihar Page No. 43 of 44 goli' (fire the gun). Accused Rajesh @ Pauwa shared common intention with accused Sanjay @ Judi when he instigated him to kill deceased Suresh by firing at him with illicit firearm. The accused persons acted without any excuse or justification while committing the offence. As a necessary consequence, accused Rajesh @ Pauwa and Sanjay @ Judi are hereby convicted for the offence U/s. 302/34 IPC for murdering deceased Suresh in furtherance of their common intention. Accused Sanjay @ Judi is additionally convicted for the offence U/s. 27 Arms Act for committing murder by using country made pistol, without licence, as well as for the offence U/s. 25 Arms Act for being found in possession of country made pistol, without licence. The order on sentence shall be passed on completing necessary procedure.
37. File be consigned to record room after completion of all necessary formalities.
Digitally
signed by
VISHAL
VISHAL SINGH
Announced in the open court SINGH Date:
2022.05.09
dated: 09.05.2022 17:07:19
+0530
(VISHAL SINGH)
ASJ03, WEST/DELHI
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