Delhi District Court
State vs Ravi Tyagi & Anr// U/S. 302/34 Ipc//Sc ... on 31 October, 2013
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IN THE COURT OF SHRI SANJEEV KUMAR: ADDITIONAL SESSIONS
JUDGE01: NORTH: ROHINI:DELHI
S. C. NO:55/08.
FIR NO:52/08.
PS :ALIPUR.
U/S.302/34 IPC
STATE
VERSUS
1. PRADEEP KHATRI, S/O. SHRI SWAROOP SINGH
R/O. VILLAGE - SHAHPUR GARHI, DELHI.
ORDER ON SENTECE
31.10.2013.
Present: Shri Harvinder Kumar, ld. Special PP for the State assisted
Shri Ravinder Chadha, ld. Counsel for complainant.
Convict Pradeep Khatri is in JC.
Shri Javed Alvi, ld. Counsel for the convict.
1. Arguments heard on sentence. The convict has been
convicted under Section 302/34 IPC for committing murder vide
judgment dated 29.10.2013.
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2. It is argued by Shri Javed Alvi, ld. Counsel for the
convict Pradeep Khatri that, he is a young man of age about 41
years and he has old aged parents alongwith wife and two school
going children aged about 13 and 11 years respectively. He is only
bread winner of his family. ld. Counsel for the convict further submits
that convict is not involved previously in any crime.
3. On the other hand, ld. Special Addl. PP for the State
submits that convict committed the murder of victim Ajay Maan on
the day of his Engagement Ceremony. Hence, the act convict is
quite grave and thus he should be given maximum sentence, as
prescribed under the statute.
4. I have heard the rival submissions and gone through
the record.
5. The protection of society by stamping out criminal
activity is essential function of State. It can be achieved by imposing
appropriate sentence. The facts and given circumstances in each
case, the nature of the crime, the manner in which it was planned
and committed, the motive for commission of the crime, the conduct
of the convict, the nature of weapons used and all other attending
circumstances are relevant facts for imposing appropriate sentence.
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Any definite formula relating to imposition of sentence cannot be laid
down. The object of sentencing is that the offenders does not go
unpunished and the justice be done to the victim of crime and the
society. It is, therefore, the duty of every court to award proper
sentence having regard to the nature of the offence and the manner
in which it was executed or committed etc. The measure punishment
in a given case must depend upon the gravity of the crime; the
conduct of the offender and the defence less and unprotected state
of the victim. Imposition of appropriate punishment is the way
adopted by the courts for responding the society's desire for justice
against the criminals. Justice demands that courts should impose
punishment fitting to the crime. The Courts must not only keep in
view the rights of the criminal but also the rights of the victim of crime
and the society at large while considering imposition of appropriate
punishment.
It was held in the case of Siddarama & Ors. V State
of Karnataka, (2007) 1 SCC (Cri) 72 :
the object should be to protect the society and to
deter the criminal in achieving the avowed object to
law by imposing appropriate sentence. It is
expected that the courts would operate the
sentencing system so as to impose such sentence
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which reflects the conscience of the society and the
sentencing process has to be stern where it should
be. Imposition of sentence without considering its
effect on the social order in many cases may be in
reality a futile exercise. The social impact of the
crime e.g. where it relates to offences relating to
narcotic drugs or psychotropic substances which
have great impact not only on the health fabric but
also on the social order and public interest, cannot
be lost sight of and per se require exemplary
treatment. Any liberal attitude by imposing meagre
sentences or taking too sympathetic view merely on
account of lapse of time or personal inconveniences
in respect of such offences will be result wise
counterproductive in the long run and against
societal interest which needs to be cared for and
strengthened by a string of deterrence inbuilt in the
sentencing system.
6. Section 302 IPC provides only two sentences i.e.
Death Sentences and imprisonment for life and fine.
7. It is now settled by the Higher Courts that Death
penalty is to be awarded in those cases, which falls within the
category of "rarest of rare cases".
8. In the case Bachan Singh V State of Punjab, AIR
1980 SC 898 it was observed that a real and abiding concern for the
dignity of human life postulates resistance to taking a life through
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law's instrumentality. That ought not to be done save in the rarest of
rare cases when the alternative option is unquestionably foreclosed.
9. In case Machhi Singh V State of Punjab, AIR 1983
SC 957, the guidelines are laid down which are to be kept in view,
considering the question whether the case belongs to the rarest of
rare category. It was observed that the following questions may be
asked and answered as a test to determine the 'rarest of the rare'
case in which death sentence can be inflicted:--
a) Is there something uncommon about the
crime which renders sentence of
imprisonment for life inadequate and calls for a
death sentence?
b) Are the circumstances of the crime such
that there is no alternative but to impose
death sentence even after according maximum
weightage to the mitigating circumstances which
speak in favour of the offender?
10. In case Machhi Singh, the guidelines were culled
out which are to be applied to the facts of each individual case where
the question of imposition of death sentence arises. The following
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preposition emerges from the Bachan Singh's case:
i. The extreme penalty of death need not be
inflicted except in gravest cases of extreme
culpability.
ii. Before opting for the death penalty the
circumstances of the 'offender' also required to
be taken into consideration along with the
circumstances of the 'crime'.
iii. Life imprisonment is the rule and death sentence
is an exception. Death sentence must be
imposed only when life imprisonment appears to
be an altogether inadequate punishment having
regard to the relevant circumstances of the crime,
and provided, and only provided, the option to
impose sentence of imprisonment for life cannot
be conscientiously exercised having regard to the
nature and circumstances of the crime and all the
relevant circumstances.
iv.A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing
so the mitigating circumstances have to be
accorded full weightage and a just balance has to
be struck between the aggravating and the
mitigating circumstances before the option is
exercised.
11. In case Bablu @ Mubarak Hussain V State of
Rajasthan, AIR 2007 SC 697, the Supreme Court observed as
under :-
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In rarest of rare cases when collective conscience
of the community is so shocked that it will expect
the holders of the judicial power center to inflict
death penalty irrespective of their personal opinion
as regards desirability or otherwise of retaining
death penalty, death sentence can be awarded.
The community may entertain such sentiment in the
following circumstances:
i. When the murder is committed in an extremely
brutal, grotesque, diabolical, revolting or dastardly
manner so as to arouse intense and extreme
indignation of the community.
ii. When the murder is committed for a motive which
evinces total depravity and meanness; e.g
murder by hired assassin for money or reward or
a coldblooded murder for gains of a person vis
avis whom the murderer is in a dominating
position or in a position of trust, or murder is
committed in the course for betrayal of the
motherland.
iii. When murder of a member of a Scheduled Caste
or minority community etc., is committed not for
personal reasons but in circumstances which
arouse social wrath, or in cases of 'bride burning'
or 'dowry deaths' or when murder is committed in
order to remarry for the sake of extracting dowry
once again or to marry another woman on
account of infatuation.
iv.When the crime is enormous in proportion. For
instance when multiple murders, say of all or
STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 7 OF 82
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almost all the members of a family or a large
number of persons of a particular caste,
community, or locality, are committed.
12. In this case, convict has been convicted for
convicting murder of Ajay Maan, who was according to him was his
friend. Thus he has breach the trust of his friend and converted
occasion of happiness into sorrow. The entire hope and happiness of
young girl, who was going to married with the victim Ajay Maan got
shattered due to the act of the convict. Further the parents of the
victim Ajay Maan had also lost their son. However, the convict is
young man and has family with two children alongwith old aged
parents to look after. Prosecution has not produced any evidence
that convict is involved in any crime previous, therefore, it cannot be
said that convict has no chance of reformation.
13. Therefore, taking into account aggravating and
mitigating circumstances, I am of the view this case does not fall in
the category of "rarest of rare cases" to impose death penalty.
14. Therefore, I sentence the convict for Life
Imprisonment for offence punishable under Section 302 IPC and
also fine of Rs.60,000/ in default of payment of fine, he shall further
undergo SI for six months, and if fine is realized, out of the fine
STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 8 OF 82
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amount Rs.50,000/ shall be paid to the parents of the victim as
compensation.
15. The case property is confiscated to the State.
Benefit of Section 428 Cr.P.C be given to the convict. Committal
warrants be issued against the convict. A copy of the judgment and
that of order on sentence be supplied to the convict free of cost
forthwith. File be consigned to the record room.
ANNOUNCED IN OPEN COURT (SANJEEV KUMAR)
ON 31.10.2013. ADDL. SESSIONS JUDGE 01 (NORTH)
ROHINI:DELHI.
STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 9 OF 82
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IN THE COURT OF SHRI SANJEEV KUMAR: ADDITIONAL SESSIONS
JUDGE01: NORTH: ROHINI:DELHI
S. C. NO:55/08.
FIR NO:52/08.
PS :ALIPUR.
U/S.302/34 IPC & 25/27/54/59 ARMS ACT.
STATE
VERSUS
1. RAVI KUMAR TYAGI S/O. SATYA PRAKASH TYAGI
R/O. VILLAGEHOLAMBI KALAN, DELHI110082.
2. PRADEEP KHATRI, S/O. SHRI SWAROOP SINGH
R/O. VILLAGE - SHAHPUR GARHI, DELHI.
Date of Institution:26.07.2008
Date of Argument :13.09.2013
Date of Decision :29.10.2013
JUDGMENT
1. The brief facts of the prosecution case are that, on 09.03.2008 DD No.3B was recorded on the information receiving from PCR from phone number 9213729883 that one person has received bullet injury in marriage at Carnival Farm House at G.T.K. Road, Alipur. The said DD was assigned to SI Krishan Kumar. On STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 10 OF 82 11 receiving of said DD SI Krishan Kumar alongwith HC Hari Prakash reached there. The information of the said DD also received by Inspector Surender Sand and he reached at the spot. Where at the spot he found double barrel gun one empty cartridge and blood lying on the floor and he did not find any eyewitness, but on inquiry he came to know that injured Ajay Maan was taken to the Saroj Hospital. Thereafter he reached at the Saroj Hospital alongwith SI Shri Krishan.
In the Saroj Hospital Inspector Surender Sand collected the MLC of Injured Ajay Kumar on which Doctor has mentioned brought dead. He recorded statement of complainant Rajesh Kumar Maan. In his statement complainant had stated that, "On 08.03.2008 his cousin's (chacha's son) engagement ceremony was going on at Carnival Farm House, GTK Road, Alipur. At about 11.15 pm when Ajay Mann alongwith other persons were dancing on the DJ Floor at that time accused Pradeep Khatri and Ravi Kumar Tyagi R/o. Shahpur Garhi and Holambi Kalan respectively came there and started an altercation with Ajay Maan and at about 11.30pm he saw Ajay Maan going towards parking and he followed him in the parking, where at the gate of the farm house one Ford STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 11 OF 82 12 Fiesta Car was parked and accused Pradeep Khatri and Ravi Kumar Tyagi were standing there and they on seeing Ajay Maan started saying something with each other and in the meanwhile, accused Pradeep Khatri took out one double barrel gun from the dicky of the car and same was taken by Ravi Kumar Tyagi and he shot bullet on the Ajay Maan and hit on the chest of the Ajay Maan, which hit on the chest of the Ajay and he fell down. In the meanwhile, some other person also came there and on seeing them both the accused persons have fun away from the spot. Thereafter, he alongwith his brother Antesh Maan and some other friends took Ajay Maan to the hospital in vehicle number DL4CT0468 Honda City.
After recording the statement of complainant Rajesh Maan, Inspector Surender Sand alongwith complainant came to the spot and there he made endorsement on the statement of the complainant Rajesh Maan and prepared the rukka and gave the same to the Ct. Virender for registration of FIR u/s. 302/34 IPC and 27/54/59 Arms Act. Ct. Virender Singh went to the PS for registration of FIR and got the FIR No.52/08 registered at PSAlipur.
In the meanwhile, at the spot crime team arrived and inspected the spot. Inspector Surender Sand prepared the site plan at the instance of the complainant, seized the weapon of offence i.e. STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 12 OF 82 13 Dunali Bandook (double barrel gun), fired cartridge, one another cartridge lying in the gun and Ford Fiesta Car and other articles lying in the car, the blood lying on the floor. Later on he deposited the seized articles in the Malkhana. He recorded the statement of the witnesses. Later on, he collected the postmortem report.
On 10.03.2008, he arrested both the accused persons Ravi Kumar Tyagi and Pradeep Khatri. Both the accused persons pointed out towards the spot, where they committed the crime and he also recorded the confessional statement of both the accused persons and during investigation, he sent the exhibits to the FSL, Rohini for examination, got prepared the scaled site plan, collected the postmortem report. He also obtain sanction u/s. 39 Arms Act. Finally after the completion of the investigation filed the chargesheet against the accused persons u/s. 302/34 IPC and 25/54/59 Arms Act and accused were put to trial.
2. After compliance of the provisions of Section 207 Code of Criminal Procedure, Ld. MM committed the case to the Court of Sessions. Thereafter, it was assigned to this court.
3. Vide order dated 13.04.2009, by my ld. Predecessor framed charge for offence punishable u/s. 302/34 IPC against both STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 13 OF 82 14 the accused and also u/s 27 Arms Act against framed against both accused persons, to which they pleaded not guilty and claimed trial.
4. In order to proved its case, prosecution examined as many as 28 witnesses.
PW1 Antish Kumar, PW2 Dr. Surya Kant, PW3 Ct.
Dalbir Singh, PW3A HC Praveen Kumar, PW4 Satish Maan, PW5 SI Anil Kumar, PW6 Ct. Surya Parkash, PW7 HC Sanjay, PW8 Om Prakash, PW9 Ashok Kumar, PW10 R.K. Sharma, PW11 Ct. Chetan, PW12 SI Mohd. Ismail, PW13 HC Mahender Singh, PW14 HC Balwan Singh, PW15 SI Mahesh Kumar, PW16 SI Baljit Singh, PW17 Ct. Virender Kumar, PW18 SI Shamim Khan, PW19 Rohit Maan, PW20 Amar Pal Singh, PW21 Ct. Kuldeep, PW22 SI Shri Krishan, PW23 Dr. Anita Chari, PW24 Rajesh Maan, PW25 Kuldeep Kumar, PW26 Dr. Munish Wadhawan, PW27 Satya Prakash and PW28 Retired Inspector Surender Sand.
5. After completion of evidence, statement of accused persons were recorded and in which they denied all the incriminating evidence put to them and pleaded their innocence and did not prefer to lead any evidence in their defence.
6. I have heard Shri Harvinder Singh, Special PP for the State assisted by Shri Sunil Mittal and Shri Ravinder Chadha, ld. Counsels for complainant and also Shri Ramesh Gupta alongwith Shri Javed Alvi, ld. Counsel for accused Pradeep Khatri and Shri STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 14 OF 82 15 Pradeep Arya alongwith Shri C.L. Sharma ld. Counsel for accused Ravi Kumar Tyagi and also gone through the record very carefully.
7. In order to prove its case, prosecution had examined 28 witnesses.
PUBLIC WITNESS
8. PW1 Antish Maan, PW4 Satish Maan, PW19 Rahul and PW24 Rajesh Maan are the eyewitnesses.
SCIENTIFIC EVIDENCE
9. PW2 Dr. Suryakant had deposed that on 09.03.08 at about oo:50am, one Ajay Kumar S/o. Om Prakash was brought to the Saroj Hospital by his brother Antesh Maan with the alleged history of gunshot injury on the left side chest. He medically examined Ajay Maan and found a big hole of uneven margin of sized approx 3x3 inch at the left side of chest. No vital sign found. ECG straight line. Patient declared brought dead. The MLC was prepared by him, same is Ex.PW2/A. In his cross examination he admitted that history of patient was narrated to him by Antesh Maan, brother of the victim.
10. PW23 Dr. Anita Chari, Senior Scientific Officer and she proved FSL Report as Ex.PW23/A and Ex.PW23/B STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 15 OF 82 16
11. PW26 Dr. Munish Wadhawan has conducted the post mortem of victim Ajay Maan and proved the PM Report as Ex.PW26/A. POLICE OFFICIAL
12. PW3 Ct.Dalbir Singh is the crime team photographer, he deposed that on 09.03.2008 he alongwith SI Baljeet Singh reached at the spot i.e. Carnival Farm House at about 5amand took the photographs of the spot Ex.PW3/A1 to Ex.PW3/A23. He also proved the negatives of the said photographs as Ex.PW3/A24 to Ex.PW3/A45. He was also not cross examined by the defence.
13. PW3A HC Parveen Kumar is not a material witness, he only deposed that on 09.03.08 at about 3.15am, he took the dead body of the victim Ajay Kumar to the mortuary of the BJRM Hospital from Saroj Hospital and after Postmortem examination doctor handed over to him sealed parcel which he gave to the IO and IO seized the same Ex.PW3/A. He was not cross examined.
14. PW5 SI Anil Kumar is not a material witness as he has only proved the record of Armed License of Dunali Bandook Ex.P1. He deposed that accused Pradeep Khatri was issued Armed License No. NWNA/8/2007/98/053007/ACNW and he identified the STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 16 OF 82 17 photograph of the same as Ex.PW5/A. Said fact is undisputed.
15. PW6 Ct. Satya Prakash is a formal witness, as he was DD Writer on 08.07.2008 from 8 pm to 8am and proved DD No. 61B Ex.PW6/A, DD No.66B Ex.PW6/B and DD No.3B Ex.PW6/C. The recording of said DD entries were not disputed by ld. Counsels for the accused persons.
16. PW7 HC Sanjay is PCR operator and is a formal witness. He deposed that on 09.03.2008 at about 00:35:36 hours he got information from the mobile phone number 9213729883 to the fact that ( Carnival Farm House GTK Road, Alipur sadi me ek ladke ko goli lag gayi). He recorded the said information in the PCR form Ex.pW7/A from portion A. He also deposed that portion B encircled in red ink also of PCR is also in his handwriting. He further deposed that said information was conveyed to PCR Alipur, Net of District Alipur Control Room, Control Room DO of PCR, PCR Command Room and Network of CAT. In his cross examination he stated that original PCR form 3565 is maintained in PCR Head Quarter. He further stated that he filled only portion A and B on the PCR form Ex.PW7/A and cannot tell writing of the remaining contents of Ex.PW7/A. He denied the suggestion that he has personal STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 17 OF 82 18 knowledge of entire contents of PCR form and stated that he has only personal knowledge of portion A and B.
17. PW11 Ct. Chetan is special messenger, who delivered the copy of FIR, he deposed that on 09.03.2008 he collected four sealed pullandas to deliver to DCP, ACP, Joint CP and concerned MM and deposed that departure entry was recorded vide DD No.9A as Ex.PW11/A. He further deposed that upon his arrival DDNo.39B as Ex.PW11/B was recorded. In his cross examination, he stated that he had delivered the sealed envelop on the residence of the area MM at about 6:45 am. He denied the suggestion that he did not deliver the sealed envelop at the residence of area MM on 09.03.2008, but it was delivered on 11.03.2008 and he denied that DD No.9A and 11A are ante dated.
18. PW12 SI Mohd. Ismail participated in the investigations with the IO with respect to arrest of both the accused persons. He deposed that on 10.03.2008 he alongwith IO Inspector Surender Sand reached near the house of accused Ravi Kumar Tyagi on the secret information and on the pointing out by informer he arrested the accused Ravi Kumar Tyagi, vide memo Ex.PW12/B and accused Ravi Kumar Tyagi was interrogated and his disclosure STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 18 OF 82 19 statement was recorded same is Ex.PW12/C by the IO. He further deposed that thereafter, they alongwith accused Ravi Kumar Tyagi went to Shahpur Garhi where at the instance of secret informer, accused Pradeep was arrested from his house at village Shahpur Garhi and he was arrested vide memo Ex.PW12/D and his personal search was taken vide memo Ex.PW12/E and accused Pradeep Khatri had made his disclosure statement as Ex.PW12/F. In his cross examination he had stated that they started from PS Alipur at about 9am. He further stated that secret informer met them at about 1020 paces from the house of accused Ravi Kumar Tyagi. He further stated that they reached at Shahpur Garhi in between 11.25 to 12 noon. In his cross examination he admitted that house of accused Ravi is situated in a residential area. He stated that SHO asked public persons to join the investigations but none agreed and left without disclosing their names and addresses and no notice was given to them. He stated that they reached at Shahpur Garhi at 11.45 to 12 noon. SHO asked public persons to join the investigations of the case but none agreed.
19. PW13 HC Mahender Singh is the MHC(M) and he deposed that 14 parcels and cars bearing number DL4CAF1633 STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 19 OF 82 20 were deposited by the SHO Inspector Surender Sand on 09.03.2008 and he made entries in this regard in Register No.19 and he proved entries vide Ex.PW13/A and further deposed that, on the same day SHO handed over to him four pullandas sealed with the seal of FMT and car no. DL3CW9294 he made entries in this regard in register no.19 Ex.PW13/B. He also deposed that said pullandas were sealed with the seal of BJRM Hospital were sent to the FSL, Rohini on 31.3.2008 vide RC Ex.PW13/C. Further he sent eight pullandas to FSL through Ct.Praveen vide RC Ex.PW13/D and made entries in register no.19 and proved entry Ex.PW13/E to Ex.PW13/F and deposed that Ct. Praveen gave acknowledgment is Ex.PW13/G and Ex.PW13/H. He further deposed that on 01.04.2008 one pullanda sealed with the seal of FMT BJRM Hospital alongwith FSL form to FSL Rohini vide Ex.PW13/D through ASI Shamim Khan and made entry in register no.19 Ex.PW13/K and deposited acknowledgment receipt is Ex.PW13/L.
20. PW14 HC Balwan Singh is the duty officer and a formal witness and he proved the FIR Ex.PW14/A. He further deposed that he recorded the same on 09.03.08 at about 5.45pm. He also deposed that he recorded DD No.3A, 4A dated 08.03.2008 STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 20 OF 82 21 as Ex.PW14/C and Ex.PW14/D. In his cross examination he stated that, he handed over copy of FIR to Ct. Chetan at 6/7pm on 09.03.08 to deliver the same to DCP, ACP, Joint CP and concerned MM, but he could not say when the same were delivered or not. He further admitted that next FIR of this case in PS Alipur was recorded at 6.15pm on 10.03.2008.
21. PW15 SI Mahesh Kumar is a formal witness as he only prepared the scaled site plan Ex.PW15/A.
22. PW16 SI Baljeet Singh is the incharge Crime Team and deposed that on 09.03.2008 at about 4.30am he received call from control room, "goli maar di hai at Carnival Farm House" and he reached there with Ct. Dalbir (Photographer) and ASI Narender (Finger Print Expert) reached at the spot and inspected the spot and prepared the report Ex.Pw16/A.
23. PW 17 Ct. Virender had participated in the investigation with the IO. He deposed that on 08.03.2008 he alongwith SHO and driver went to spot i.e. Carnival Farm House. There SI Krishan and Ct. Hari Singh met him. SHO left Ct. Hari Prakash at the spot, he alongwith SHO went to Saroj Hospital, where SHO collected the MLC of the deceased. Recorded statement of STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 21 OF 82 22 Rajesh Maan and made endorsement on the rukka and he left the hospital and went to PS. SI Sri Krishan was left at the hospital and went to PS. SI Sri Krishan was left at the hospital and SHO left for the spot. He reached at PS at about 4.45 am and got FIR registered and thereafter he came back with original rukka and copy of FIR and handed over to SHO at the spot. In specific question of ld. Addl. PP for the State he stated that he reached at PS at 4.45am, but the case was registered at 5.45am. In cross examination, he says that when they reached at the spot 15/20 persons present and they remained at the spot for about 15 minutes first time. He further stated that when he reached at the spot at about 6.00am with FIR, no public person was present. He denied the suggestion that statement of Rajesh Maan was not recorded at hospital.
24. PW18 SI Shamim Khan is a formal witness and he deposed that on 01.04.2008 he took the sealed parcels to FSL Rohini, vide RC No.Ex.PW18/A and proved the acknowledgment receipt of FSL as Ex.PW18/B.
25. PW20 Amar Pal Singh, Senior Scientific Officer and proved FSL Report as Ex.PW20/A. He was not cross examined.
26. PW21 Ct. Kuldeep is also a formal witness, he was STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 22 OF 82 23 also posted in the PCR control room. He deposed that on 09.03.2008 at about 1:05:06am he received the message from telephone number 27557205 and he made entry in this regard in PCR form No.3726 Ex.PW21/A. In his cross examination he stated that portion was recorded by the Communication Department on the basis of information received.
27. PW22 SI Shri Kishan participated with IO in the investigations of this case. He deposed that on 09.03.2008 at about 12:45 he received DD No.3B Mark X that, "ek ladke ko chati me goli lagi at Alipur Carnival". He alongwith Ct. hari Parkash reached there, where he came to know Ajay Maan received injury and taken to Saroj Hospital. After some time SHO Inspector Surender Sand reached there and he alongwith SHO went to Saroj Hospital, when they came to know that Ajay Maan has declared dead. Inspector Surender Sand collected the MLC of victim and recorded statement of Rajesh Maan. Thereafter, they came back to the spot. Crime Team reached at the spot and inspected the spot. The blood sample and other exhibits lifted and seized. He further deposed that one Ford Fiesta Car No. DL4CAF1433 was parked and IO lifted one cartridge lying near the right tyre of the said car. In the barrel of the STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 23 OF 82 24 gun one cartridge was found, IO seized the same after preparing sketch. He also deposed that one another car bearing registration number DL3CW9294 was also parked in suspicious condition, which was also seized.
In his cross examination he stated that he reached at Carnival Farm house at 1.00am and SHO arrived after half an hour, but he did not carry out any investigations during this period. He further stated that when he reached at the spot relative of injured Antesh Maan, Satish and Rajesh Maan were present at the spot and they informed him that injured was shifted to the hospital. Which appear to be a conflicting statement with PW1 Antesh Maan, who had stated that he went to hospital with his brother Ajay Maan, hence, he either cannot see Antesh Maan at the spot or Antesh Maan is not the person who took the injured to hospital.
He further stated that SHO after the spot left for hospital with him and relative of the injured also accompanied SHO to the hospital. He further stated that they remained at hospital for about 1 - 1 ½ hour and again reached at the spot at about 6am. Crime Team lifted finger print from the vehicle as well as from Dunali Bandook. He remained at the spot till 9am and when he left SHO STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 24 OF 82 25 Inspector Surender Sand was still at the spot..
28. PW25 Kuldeep Kumar is a formal witness and he is superdar of vehicle number DL4CA1433 belonging to the accused Pradeep. He was not cross examined.
29. PW27 Satya is a formal witness and he took the vehicle No.DL3CW0204 on superdari.
30. PW28 Inspector Surender Sand is the IO of the case.
He deposed that on 08/09.03.2008 he was on petrolling duty and received information on wireless from DO that, one person was shot at Carnival Farm House. He went there and found SI Sri Krishan and Ct. Hari Prakash. At parking lawn no.1 there was vehicle no. DL4CAF1433 and one double barrel gun and one fired cartridge was found, blood also found. He did not find any eyewitness. He came to know that injured was taken to Saroj Hospital. He found Ajay Maan dead in casualty. He collected the MLC of Ajay maan on which brought by Antesh Maan was mentioned. He further deposed in the hospital Antesh Maan, Rajesh Maan and Satish Maan and some other persons were present and they told that they are eyewitnesses. Rajesh Maan voluntarily came forward to give statement because the brother of deceased were weeping. He STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 25 OF 82 26 recorded statement of Rajesh Maan Ex.PW1/B in the presence of Antesh Maan and Satish Maan. He further deposed that after perusal of the place of occurrence MLC and statement of eyewitnesses , he made endorsement u/s. 302/34 IPC and 27/25/59 Arms Act and handed over the rukka to Ct. Virender Singh at 4.30am. He further deposed that Rajesh Maan, Satish Maan and Antesh Maan followed him at the spot. He further deposed that, at the spot crime team inspected the spot, he prepared the site plan Ex.PW28/C. He seized the blood, cartridges, dunali bandook. He also seized Car No. DL4CAE1433 and DL3CW9224. He recorded the statement of Anil Kumar, Rohit Maan, Satish Maan, Sudhir Rana, Antesh Maan, SI Sri Krishan, SI Baljeet, Ct. Vinod, Ct. Dalbir u/s. 161 Cr.P.C. He further deposed that, he got conducted the postmortem examination and handed over body. He further deposed that on 10.03.2008, he arrested the accused Ravi Tyagi and Pardeep Khatri from their respective house and arrested them. He further deposed that he got sent the exhibits on 31.03.2008 (The detailed discussion of same is not mentioned).
In his cross examination, he stated that at about 12.55am, he came to know that, Ajay Maan was taken to Saroj STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 26 OF 82 27 Hospital. He stated that Dinesh Gupta ACP of the SubDivision also reached there. He further deposed that 30 minutes of recording statement of Rajesh Maan, he made endorsement Ex.PW28/B. He made endorsement on at Carnival Farm House. It took 10/15 minutes to reach at Carnival Farm House. He tried to find out some new facts before he made endorsement and sent the case for registration. Hence, there is a contrast in his statement and statement of PW17 Ct. Virender who stated he took rukka from Saroj Hospital. He admitted that on the endorsement he had not mentioned Antesh Maan, Rajesh Maan and Satish Maan were present at the spot. He admitted that he has not mentioned in the case diary or report to senior officer that, statement of Rajesh Maan was recorded in the presence of Antesh Maan and Satish Maan and that time he stated the said fact in the court.
He further stated that he recorded statement of Antesh Maan between 6.30 to 8.30am at Carnival Farm House and during this period recorded statement of Satish Maan. He denied the suggestion that during investigations he came to know that deceased received injury accidentally. He admitted that in the site plan, he has not mentioned the position of eyewitnesses. STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 27 OF 82 28 In his cross examination by accused Ravi Kumar Tyagi initially he remained at the spot for about 30 minutes. He stated that he during investigations did not came to know that deceased and accused persons have friendly relations. He admitted that in no photograph registration number of Tata Indica Car is visible. He further stated that Tata Indica car and Ford Fiesta Car were parked at a distance of 1015 steps.
OTHER WITNESSES
31. PW8 Om Prakash, record keeper, Transport Authority is a formal witness and proved that vehicle No. DL3CW9294 is in the name of Ravi Kumar Tyagi. He proved the computerized copy of the registration certificate Ex.PW8/B. He was not cross examined. Hence, it is undisputed fact that vehicle no. DL3CW9294 is owned by accused Ravi Tyagi.
32. PW9 Ashok Kumar, Assistant Dealing Clerk, STA, West ZoneII, Raja Garden, Delhi is also a formal witness and only deposed that vehicle number DL4CAF1433 is in the name of accused Pradeep Khatri. He proved the computerized copy of the RC as Ex.PW9/B, but he was not cross examined. Hence it is also undisputed fact that aforesaid vehicle is owned by accused Pradeep STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 28 OF 82 29 Khatri.
33. PW10 R.K. Sharma is a partner of M/s. Kewal Krishan Sharma Arms and Ammunition Dealer situated at C6, Aruna Park, Laxmi Nagar, Delhi and is formal witness as he only proved that cash memo serial number 3714 dated 09.02.2008 was issued in the name of Pradeep Kumar s/o. Swaroop Singh. Said cash memo was issued for selling of 25 gun cartridges.12bore Shaktiman @ Rs. 35/ each.
STATEMENTS OF ACCUSED PERSONS U/S 313 Cr.P.C.
34. In his statement u/s. 313 Cr.P.C. accused Pradeep Khatri had denied all the incriminating evidence against him and he had stated that he has been falsely implicated in this case. He further stated that he and deceased Ajay Maan were doing the business of property dealing and both of them were friends. He was invited in the function of engagement ceremony of Ajay Maan by Ajay Maan and he received invitation card to this effect from Ajay Maan duly written my name on the slip affixed on the plastic cover of the invitation card Mark A. He never objected the Engagement Ceremony with the daughter of Nawal Singh Shokeen. Nawal Singh Shokeen is not known to him nor he has any concern with him or his STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 29 OF 82 30 family members. He never threatened Ajay Maan or anybody regarding this Engagement. He only came to know about the Engagement when he got the invitation card from Ajay Maan. The deceased Ajay Maan had asked him to carry some money as in case of need to be paid for clearing the dues of the Carnival Farm House, where the reception of the engagement ceremony was held and Ajay Maan would have taken the same from him. He came in the function at Carnival Farm House, At G.T. Karnal Road, Alipur in his Ford Fiesta Car and the car was parked in the parking area and attended the function with other friends. When function was almost over, Ajay Maan told gun to give Rs.1lakh and he also told him that the same were required to settle the account of invitation hall. The deceased Ajay Maan accompanied him in his car, when he opened the dickey of his car to take out the briefcase to hand over Rs.1 lakh to the deceased Ajay Maan and Ajay Maan saw his dunali bandook lying in the car. He insisted him that, he wanted to celebrate the occasion of his engagement ceremony should have celebrate by firing in the air. Ajay Maan took out dunali bandook from the dickey of his car and fired one shot in the air. Ajay Maan triggered another shot but the said shot could not be fired because of some fault in the dunali STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 30 OF 82 31 bandook. When the second shot could not be fired, Ajay Maan lowered down the dunali and started inspecting the nasal of the dunali and in the process, fire took place accidentally, which hit Ajay Maan. He helped Rajesh in lifting Ajay Maan in the car to take him to the hospital and later on he was taken to the PS. He has been falsely and wrongly implicated by the police at the instances of family member of Ajay Maan, as they wanted to extort compensation from him. He is totally innocent and have not committed the offence and have been falsely and wrongly implicated by the police.
35. In his statement u/s 313 Cr.P.C. accused Ravi Tyagi also denied all the incriminating evidence put to him and stated that, he has been falsely implicated in this case, as he opposed the police officials while they were preparing the FIR, the names of the persons who were not present there, which was opposed by the relatives of the deceased present there. He might have been implicated in this case after due deliberation.
ARGUMENTS
36. It is argued by Shri Harvinder Kumar ld. Special PP for the State duly assisted by Shri Sunil Mittal and Ravinder Chadha ld. Counsels for the complainant that the prosecution has been able STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 31 OF 82 32 to proved its case beyond reasonable doubts, showing the involvement of both the accused persons in commission of murder of deceased Ajay Maan through the testimony of eye witnesses PW1 Antish Kumar and PW4 Satish Maan, who have categorically testified that accused Pradeep Khatri took out double barrel gun from the dickey of his car and gave the same to accused Ravi Tyagi and he fired bullet upon victim Ajay Maan and due to he fell down.
They further argued that there is no ground to disbelieve the testimony that PW1 and PW4 and their testimonies are duly corroborated by the other evidence like recovery of double barrel shot gun from the spot. It was the licensee gun of issued in the name of accused Pradeep Khatri and further argued that FSL Report Ex.PW13/G, proved that the recovered fired cartridge from the spot matches in features with test fired cartridge, which conclusively proved that recovered fired cartridge pellets of which hit victim Ajay Maan was fired from the double barrel gun of the accused Pradeep Khatri. Ld. Special PP for the State further argued that there is no delay in lodging the FIR. The incident is of 11.30pm and at 5.45 am FIR Ex.PW14/A has been registered. He further argued that from the MLC of the victim Ex.PW2/A, it is also proved that PW1 Antish Maan STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 32 OF 82 33 had brought the victim to the hospital which is also proved, he was present at the spot and that is why he brought the victim to the hospital.
Ld. Special PP for the State further argued that accused Pradeep Khatri had enemical relations with the victim as he was threatening the victim not marry with Ruby with whom his marriage was fixed, because the said girl belonged to Shokeen community of Nangloi village and accused Pradeep Khatri was also married with the Shokeen Gotra, therefore, he wanted to marry the said girl to somewhere else in his relation and that is why he had threatened the victim Ajay Maan of dire consequences due to ignoring the said threatening by the victim and further proceedings to have engagement, both the accused persons have conspired together and they came into the Engagement Ceremony and called the victim and thereafter in pursuance of their conspiracy killed him by firing bullet upon him. Hence, there are sufficient evidence to convict both the accused persons.
Ld. Special PP further argued that PW24 Rajesh Maan who was the complainant in this case was won over by the accused persons and that is why he turned hostile and did not STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 33 OF 82 34 support the prosecution case.
Ld. Special PP further argued that though PW19 and PW24 turned hostile but the testimony of hostile witness cannot be considered to be completely washed off and his testimony can be accepted to the extent which is otherwise acceptable. In this regard ld. Counsel for the complainant had relied upon judgment Khujji @ Surender Tiwari Vs. State of M.P. AIR 1991 SC 1853.
Shri Sunil Mittal, ld. Counsel for the complainant has also argued that FIR was registered on the statement of PW24 Rajesh Maan and though witness has denied the contents of his statement Ex.PW1/B, on the basis of which FIR was registered but police cannot imagine those facts. Hence, the statement Ex.PW1/B can be read against the accused persons. In this regard he has also relied upon another judgment Siddarth @ Manu Sharma Vs. State AIR 2010 SC 235 and many other judgments have also been relied upon in support of their contention. He further argued that the accused Pradeep Khatri has taken the false defence that victim was hit accidentally when he was checking why second bullet was not fired from the pistol is a false defence and taking false defence is also an incriminating evidence against the accused. Therefore, in STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 34 OF 82 35 these circumstances, taking into account the testimony of PW1 Antish Maan and PW4 Satish Maan and other connected evidence, both the accused persons are liable to be convicted for offence u/s. 302/34 IPC. In support of their contention they have relied upon following judgments (1) Dasan & Others vs State of Kerala 1987 Cri.L.J. 180, (2) Hazrat Gul Khan Vs. Emperor 1929, Cri. L.J. 546, (3) Pohla's case (1925) 26 PR 791/27 Cr. LJ 241, (4) Kunjan Vasu Vs. State of Kerala 1963 (2) Cri.L.J. 458, (5) State vs Hari Prasad 1974 Cri. L.J. 1274 (SC), (6) Parimal Vs. State 1987 Cri. L.J. 221, (7) Nathuni Yadav and Others vs State of Bihar and Anr. (1989) 9 SCC 238, (8) State of Himachal Pradesh Vs. Jeet Singh (1999) 4 SCC 370, (9) Mani Kumar Thapa Vs. State of Sikkim AIR 2002 SC 2920, (10) Shamsher Singh @ Shera Vs.State of Haryana AIR 2002 SC 3480, (11) Sahadevan @ Sagadevan vs State rep. By Inspector of Police AIR 2003 SC 215, (12) Mahender Singh Vs. State of M.P. (2007) 9 SCC 796, (13) Sanjay and Anr Vs. State (NCT of Delhi) 2011 (2) Crimes 499.
37. On the other hand, Shri Ramesh Gupta, ld. Senior Advocate for accused Pradeep Khatri has argued that the prosecution has miserably failed to prove that accused Pradeep Khatri has committed murder of the victim Ajay Maan. ld. Counsel STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 35 OF 82 36 further argued that as per the FIR, motive of the murder was that there was some KahaSuni between the victim Ajay Maan and accused persons over DJ on the Engagement Ceremony and due to said reason, accused persons have committed murder of victim, but PW24 Rajesh Maan on whose statement, FIR was registered has categorically denied the fact that there was any quarrel had taken placed between victim and accused persons on DJ. Hence, this motive of the prosecution goes.
Ld. Counsel further argued that another motive of the prosecution is that accused Pradeep Khatri was opposing marriage of the victim with girl with whom he had gone to marry as the said girl belonged to Shokeen Gotra and accused Pradeep Khatri was also married in Shokeen Gotra and since accused Pradeep Khatri wanted to perform marriage of said girl in his relation that is why he had been threatening the victim Ajay Maan, but prosecution has miserably failed to prove said facts as there is number of contradictions in the testimony of PW1 Antish Maan with regard to proving of said motive as PW1 Antish Maan had stated that at many places accused only threatened the victim only in the presence of victim and nobody was present. Later on in his cross examination STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 36 OF 82 37 PW1 Antish Maan also stated that accused Pradeep Khatri had threatened the victim in his presence also thus same was improvement. He further argued that no complaint was made in this regard by the victim or family member of the victim either to the police or to the family members of the accused or at least to the girl's family member, so that, they could make accused Pradeep Khatri understand what he was doing was wrong. Hence, in the absence of any independent witness and corroborating evidence, the testimony of PW1 regarding that portion of the motive appear to be false and fabricated and when motive is not proved , entire story of the prosecution goes down. Ld. Counsel further argued that not proving the motive is not fatal to the case, where the eyewitnesses are available, but where the prosecution has specifically attributed some motive for commission of murder in that situation, the prosecution has failed to prove that motive then case of the prosecution falls.
Ld. Counsel further argued that there is a considerable delay in lodging the FIR as incident is of 11.30pm on 08.03.2008 and FIR was registered on 09.03.2008 at 5:45 am and even that time is anti timed, it is evident from the fact that copy of FIR was received by concerned ld. MM at 10am on 11.03.2008 i.e. STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 37 OF 82 38 after almost after 60 hours. Hence, the FIR has been registered after concocting the false story on the legal advise and said delay is fatal to the prosecution case. He further argued that as per FIR, the incident occurred at 11.30pm, but the first information to the PCR has been given at 12.35am (night), which is apparent from the PCR Form Ex.PW7/A and even from the perusal of the said form, it is evident that only fact is mentioned in the said information that, at "Alipur Carnival Farm House in Marriage, Main City Karnal Road, One boy hit by bullet". He further argued that PCR officials who went there till 1.30am (night) is not mentioned the name of the assailants, hence, till that time police did not come to know who had fired bullet upon the victim. He further argued that PW1 Antish Maan is claiming that he took injured to the hospital, but from the perusal of the MLC Ex.PW2/A, it is evident that he has also not mentioned the name of the assailants, which clearly proved that till that time witnesses were not aware about the name of assailants, who fired bullet upon victim. Hence, it is proved that entire story has been concocted.
Ld. Counsel further argued that actually this is not the case of murder, but it is the case of accidental death, as victim had asked the accused Pradeep Khatri to bring some amount as he has STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 38 OF 82 39 to make payment of the farm house and when victim came with the accused in the parking area where accused had parked his Ford Fiesta Car and he opened the dickey of the car go give the money, then, the victim saw the double barrel gun of the accused Pradeep Khatri was lying there and he took out the said gun and stated that "since today it is his Engagement Ceremony, therefore, he should celebrate and fire one bullet in the air and when he tried to fire second shot it did not fire and victim lowered the gun to see why the second shot had not fired and suddenly bullet shot got fired and hit victim. Hence, it is a case of accident. In support of his contention he has relied upon following judgments (1) Kishan Pal Vs. State in Crl. Appeal no.81/1997 dated 26.3.2004 by Division Bench of Justice D.K. Jain and Justice A. K. Sikri, (2) Johnson Vs. State in Crl. A No. 775/11 dated 29.2.2012 by Division Bench of Justice Ravindra Bhat and Justice S.P. Garg, (3) Kali Ram vs State of Himacal Pradesh 1973 2 SCC 808, (4) Lakshmi Singh vs State of Bihar 1976 SCC (Cri) 671, (5) Ravindra Kumar Dev vs State of Orrisa 1976 SCC (Cri.) 576, (6) Sharda Birdichand Sarda vs State of Maharashtra 1984 4 SCC 116, (7) State of U.P. Vs. Lakhmi 1998 SCC (Cri.) 929, (8) M. Abbas Vs. State of Kerala 2001 10 SCC 103, (9) Ashish Batham Vs. State of M.P. 2002 SCC (Cri.) 1718, (10) Stae of M.P. STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 39 OF 82 40 Vs. Nachudas @ Balram & Ors. AIR 2007 SC 1236, (11) State of Goa vs. Pandurang Mohite 2009 I AD (cr.) 523, (12) Babu vs State of Kerala 2010 (3) SCC (Cri.) 1179, (13) C. Mangesh vs State of Karnataka 2010 IV AD (Cri.) SC 33, (14) Paramjeet Singh @ Pamma vs. State of Uttarakhand 2010 10 SCC 439, (15) Ravi Kapur Vs. State of Rajasthan 2013 1 AD (Cri.) SC 65, (16) Jaffar @ Raju vs State 2013 (20 JCC 1175, (17) Jeet Singh Vs. State of Punjab 1976 2 SCC 836.
38. On the other hand, Sh.C. L. Sharma Ld. Counsel for the accused Ravi Kumar Tyagi has argued that accused Ravi Kumar Tyagi is concerned, prosecution has failed to attribute any motive on the accused Ravi Kumar Tyagi and further argued that prosecution has failed to prove that, accused Ravi Kumar Tyagi had any friendly relationship with Pradeep, so that, he would commit murder of victim. He further argued that accused Ravi Kumar Tyagi name was falsely taken because in the hospital he had opposed the police, when police officials were writing name of innocent persons and due to said reason he was falsely implicated in this case. Ld. Counsel further argued that his car was shown as parked on the day of incident, though same was seized by the police on 10.03.2008, when STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 40 OF 82 41 he brought the same to the PS. In support of his contention, he has relied upon following judgments (1) Thulia Kali Vs. The State of Tamil Nadu (1972) 3 Supreme Court Cases393, (2) Datar singh vs. The Stae of Punjab (1975) 4 SCC 272, (3) Omwati (Smt.)And Ors vs Mahendra Singh And Others (1998) 9 Supreme Court Cases 81, State of Uttar Pradesh Vs. Rajvir (2007) 15 SCC 545.
FINDING
39. I have considered the rival arguments and gone through the record as well as judgement relied upon by respective parties carefully.
40. It is undisputed fact that victim Ajay Maan has died due to injury received from bullet. But even from the testimony of PW26 Dr. Munish Wadhawan, who conducted the postmortem examination on the dead body of the victim and proved that victim has died due to gunshot injuries as he has deposed that victim has following injuries: oval lacerated penetrating wound 10X7 cm with blackening, tattooing around the wound present in left chest 13 cm below left clevical and 5 cm from mid line of chest. Margins are irregular and ragged. On th th exploration 4 to 7 ribs of left side were shattered completely underneath the wound with bruising, cherry STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 41 OF 82 42 red disclolouration, extravasation of blood and blood clots in surrounding tissues. Lower lobe of left lung and apex of heart completely lacerated and ruptured. Multiple pellets recovered from heart and left lung. About 500 ml of fluid and clotted blood present in chest cavity.
All internal organs pale. Stomachsemi digested food with rice, fruity smell, mucosa pale.
Cause of Death: combined effect of hemorrhagic shock and respiratory distress due to injuries to heart and lungs as a result of short gun fire arm injury in close range. All injuries ante mortem in nature. Fire arm injury is sufficient to cause death in ordinary course of nature. Time since death approximately 12 hours.
41. PW2 Dr. Surya Kant has examined the victim and prepared the MLC Ex.PW2/A and also deposed that, he found a big whole of uneven margin of size approximately 3x3inch left side of chest. Hence, from the testimony of both the witnesses, it is proved that the victim died due to injury caused by bullet.
42. As per prosecution both the accused in furtherence of their common intention committed the murder of victim Ajay Maan. In order to prove the case that both the accused had committed the muder in furtherence of their common intention has relied upon testimony of PW1, PW4, PW19 and PW24 .
43. PW24 Rajesh Maan is the most important witness for STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 42 OF 82 43 the prosecution as he is the eye witness as well as complainant. He has testified in his examination in chief that on 08.03.2008 Sagai (Ring) Ceremony of his cousin Ajay Maan was being solemnized at Carnival Farm House, G.T. Road, Alipur, Delhi. He further deposed that at about 11/11.30pm, most of the guests invited in the ceremony have been left at that time and he was roaming in the parking area, as he had come to the parking area to drop one of the guest namely Daljit. He heard the noise bullet shot and he turned around and saw that Ajay Maan was hit by a bullet. Thus he turned hostile and was declared hostile and despite cross examination by Ld Addl.PP though he admitted that statement Ex.PW1/B bears his signatures at point A, seizure memo Ex.PW24/A and Ex.PW24/B bears his signatures at point A. but he denied that he stated in his statement Ex.PW1/B that at about at about 11.5 pm, when he alongwith Ajay Maan and another persons were dancing on the DJ Floor in the Carnival Farm House, at that time accused persons Pradeep Khatri and Ravi Kumar Tyagi were also came on the DJ floor and both the accused persons started altercation with Ajay Maan. He also denied that after altercation both the accused went away from the DJ Floor and he had seen Ajay Maan going towards the parking from the gate STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 43 OF 82 44 and then he followed Ajay Maan and he saw both the accused persons standing near white colour Fiesta Car in the parking in front of the gate of farm house and on seeing Ajay Maan both the accused persons have uttered word and in the meantime accused Pradeep Khatri opened the dickey and from the said dickey he took out a small dunali bandook and thereafter accused Ravi Tyagi took the said bandook from the accused Pradeep Khatri and fired upon Ajay Maan and bullet hit on the chest of Ajay Maan.
Ld. SPP has argued that PW24 was won over by accused persons which is evident from the complaint Ex.PW24/D given by PW24 against PW1 Antesh Maan regarding threatening to him.
The PW24 has turned hostile is evident from his testimony itself, as in which he admitted that statement Ex.PW1/B bear his signatures at point A. He admit that police recorded his statement Ex.PW1/B signed by him at the hospital and Ex.PW24/C at spot. But he again said that, police recorded his 45 statements, which were torn by police one after the another. He denied the suggestion that police recorded his statement Ex.PW1/B correctly and after reading the same and affirmed the same to be correct. He is not an illiterate man as he is running the Medical Store. I failed to STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 44 OF 82 45 understand if police had not recorded his statement correctly, why he had signed on the same. He had not stated that police or someone else has pressurized him. It is his own sweet will to become a witness and signed on the statement, on the basis of which two man were put behind the bar. Therefore, he cannot be allowed to wash off his hand merely by saying that his statement was not recorded correctly. Further in the cross examination he says that, statement Ex.PW1/B may be blank where he put signatures on it. But in his examination in chief he had not stated that he had signed on any blank paper. Further he volunteered that it was like a drama and he do not know the nature of papers on which his signatures were obtained. His cousin was killed , police were taking his signatures on paper and all this seen as there was drama for him. Hence, the testimony of PW24 appears to be highly unreliable. He was conscious of the fact that two witnesses PW1 Antesh Maan and PW4 Satish Maan had deposed that they are eyewitnesses, therefore, he deliberately denied their presence at the spot to put dent to their testimony. This clearly proved that he was won over by the accused persons.
On perusal of testimony of PW24 I found that he has STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 45 OF 82 46 completely turned hostile on all material aspect except that there was engagement ceremony on 08.03.2008 at Carnival Farm House and his cousin brother Ajay Maan was shot with bullet in the parking area of the said farm house at about 11/11.30pm and that police have recorded his statement and also seized various articles including the double barrel gun and ford Fiesta Car from the spot. All these facts are already undisputed.
I am agreed with the contention of the ld. Counsel for the complainant Shri Sunil Mittal that, testimony of a hostile witness cannot be considered to be completely wash off the record and part of his testimony which is other wise acceptable can be accepted and relied upon. But in my view his entire statement EXPW1/B cannot be accepted merely because on the basis of said statement FIR has been registered. The fact of Khujji@ Surender Tiwari case were(supra) were different where PW4 on whose statement FIR was recorded was himself injured and his presence at the spot at the time of actual incident found to be undisputed whereas in the present case even if PW4 had not turned hostile his testimony was required to be scrutinized closely for the reason mentioned later on.
Hence, despite the fact FIR is recorded on signed STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 46 OF 82 47 statement of PW24 Ex.PW1/B, it cannot be relied upon to believe that both the accused persons had quarreled on DJ with victim Ajay Maan and thereafter he saw in the parking area accused Pradeep Khatri gave double barrel gun to accused Ravi Tyagi and accused Ravi Tyagi fired bullet upon victim Ajay Maan particularly considering the fact that first portion of his statement EXPW1/B that accused persons quarrel with victim on DJ is not supported by any witness even by PW1 Antesh Maan brother of victim and PW4 Satish Maan. As far as second part of his statement that he saw acused person fired bullet upon victim is concerned I found that there there ia almost 6 hour delay in registration of FIR and name of assillant is not mentioned in the MLC of victim and in PCR form1. Hence in these circumstances it would not be safe to rely upon his statement EXPW1/B when he himself has not supported the same in his testimony. However since I find that PW24 has been won over by accused persons I also did not find his testimony reliable that PW1 and PW4 were not present at the spot or PW1 did not took victim to the hospital. Said facts need to be assesed on the basis of statements of PW1 and PW24 and other facts and circumstances.
44. PW19 Rohit Maan is not an eyewitness. He has STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 47 OF 82 48 testified that on 08.03.2008 there was engagement ceremony of his friend Ajay Maan at Carnival Farm House. He reached there at 4.30pm. At about 11.30pm he heard the sound of two fire shots from the parking. He came at said parking and saw that Rajesh Maan was holding Ajay Maan, who was smeared with blood. Rajesh Maan told him, "Isko Goli lag gahi', then he asked Rajesh Maan, who shot Ajay Maan and he told "Paata Nahi Idhar Gaye Hain". He went towards that side and found Pradeep Khatri was about to sit in the car make Ford Fiesta bearing registration number DL4CAF1433. He asked Pradeep Khatri to hand over the keys of the car. Pradeep Khatri handed over the key. Thereafter he went back where Ajay Maan was lying injured, he helped in lifting Ajay Maan in the car. Thus he did not support the case of the prosecution, he was cross examined by ld. Addl. PP for the State. He denied the suggestion that accused Pradeep Khatri was trying to flee away from the spot in his Ford Fiesta Car or he also denied that he gave fist blow on the glass of the car and apprehended the accused Pradeep Khatri, which he was trying to fleeing away. In response to question ld. Addl. PP for the State, he took the key of the car of Pradeep Khatri, he stated that, he took key of the car from Pradeep Khatri as he though, key would be STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 48 OF 82 49 required for taking injured to the hospital.
Thus from his testimony it is evident that he himself had not seen firing incident and came later on at the spot. He also did not support the prosecution case that he saw accused Pradeep Khatri fleeing away from the spot and tried to apprehend him. But from his testimony it is proved that PW24 Rajesh Maan was present at the spot and holding victim Ajay Maan when he reached at the spot and Accused Pradeep Khatri was also present near the spot and saw him when accused was about to sit in his car which indicate that accused was about to go away from the spot. Moreover, it look very unlikely that Pradeep Khatri only give his car key to PW19 for taking victim to the hospital. If accused could give key of car he could himself took victim to hospital. Hence, inference can be drawn that accused Pradeep Khatri was trying to flee away from the spot, after the incident. As far as contention of the ld. Counsel for the accused that PW19 has admitted in his cross examination that only Rajesh Maan and accused Pradeep Khatri were present at the spot, does not appear to be much convincing. He further stated that, he took injured to hospital in the car which was given to him by him in law in the ceremony, which means other persons were also present STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 49 OF 82 50 at the spot, who drove the car to hospital, though he deliberately denied, he could not notice who drove the car. Hence, it could not ruled out that, Antesh Maan might be the person who drove the car, in which he took Ajay Maan to the hospital. PW19 has also stated that victim never told him that, accused Pradeep Khatri threatening Ajay Maan over his marriage with Ruby, which also clearly proved that, PW19 was won over by the accused person, therefore, he deliberately giving such answers to demolish the case of the prosecution. I reject the testimony of Even otherwise testimony of PW19 is not much material because accused Pardeep Khatri had himself admitted in his statement U/S 313 Cr. P.C. that he was present at spot when victim Ajay Maan hit with the bullet.
45. PW1 Antesh Maan is the most material witness. He deposed in his examination in chief recorded on 05.09.2009 that, his younger brother Ajay Maan had intimacy with the daughter of Naval Singh Shokeen, resident of village Nilothi. On common acceptance family of girl agreed to marry. He further deposed that accused Pradeep Khatri who married in Shokeen Gotra used to threaten his brother not to marry with the said girl. Otherwise, he will have to face the consequences and said fact were STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 50 OF 82 51 told by Ajay Maan to him and other family member but his family member did not come know about the threatening. In his examination in chief on 14.10.2010, he deposed that, he asked him and his brother Ajay Maan to refuse the proposal of the marriage with Ruby as, accused Pradeep Khatri wanted to marry the said girl somewhere else.
46. On appreciation of testimony of PWs I found that, his testimony is important for the prosecution to prove the motive of the murder besides being eyewitness of the incident. First I shall discuss motive part of his testimony of PW1 had deposed that the girl with whom his brother's marriage was fixed was from Shokeen Gotra ( A Gotra in Jaat Community) and accused Pradeep Khatri was also married in the Shokeen Gotra in the Nangloi area (for his brother would be wife belong) and he was opposing the marriage of his brother with said girl purely because he want to marry someone else with said girl. And due to said reason he was threatening his brother. First of all I found that the portion of his testimony to the extent of motive part in full of improvement. In his examination in chief recorded on 05.01.2009 and 14.01.2010 and 21.4.10, he did not deposed that accused Pradeep Khatri asked to him to return the STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 51 OF 82 52 proposal of the marriage with Ruby, as accused went to marry the said girl somewhere else, as he was married in the families of Shokeen, rather in his examination in chief recorded on 5.1.2009 he he deposed that accused used to threat his brother Ajay Maan not to marry with the said girl and said fact told to him and his family by Ajay Maan. Further, PW1 stated in the cross examination from October 2007 itself, accused Pradeep Khatri started threatening his brother but he further stated that, he never met accused Pradeep Khatri for October 2007 till the day of incident, which means accused Pradeep Khatri never asked PW1 to refuse the marriage of victim with the girl and nor his presence accused gave threat to his brother but in his cross examination he stated that accused Pradeep Khatri asked him and deceased Ajay Maan to refuse marriage of Ajay Maan with Ruby. Hence, he has improved his examination in chief. Further I am agree with the contention of ld. Counsel for the accused Pradeep Khatri that PW1 has failed to give any satisfactory explanation why complaint was not lodged in police or at least matter was conveyed to girl's family or family of Pradeep Khatri that accused is threatening his brother Ajay Maan continuously so that accused persons could be made to understand that he is doing STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 52 OF 82 53 wrong act despite the fact that accused was continuously threatening the victim. Hence, the motive part of PW1 testimony does not appear to be much inspiring in the absence of any independent corroborating evidence. It cannot be ruled out that to make case stronger, this false story has been concocted.
Further PW1 has stated that both accused persons were not invited in the marriage. He had stated that Sagan Ceremony function was video graphed and he had seen the video reel and found that both the accused persons had come to the function by hiding or avoiding themselves from the video camera. Both the accused persons were not invited in the function. But prosecution has failed to produce any such videography for the reason best known to prosecution. It could throw light to the fact whether accused persons were actually invited or whether accused persons were hiding their presence. Therefore inference can be drawn in favour of both the accused that they were actually invited in the function, otherwise what could be the reason that victim Ajay Maan wanted to meet with them at 11.30pm. Hence, from the testimony of PW1 previous enmity of accused persons and victim is not established.
STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 53 OF 82 54 The other part of PW1 testimony is that he saw accused Pardeep handing over of dunali bandook to accused Ravi and Ravi firing bullet upon his brother. He has testified that at about 11.30pm he had gone to see of some of his guests at car parking of Carnival Farm House complex. He saw his brother and accused Pradeep Khatri and Ravi Tyagi standing near the Fiesta Car of white colour of accused Pradeep Khatri. Both the accused persons were doing altercation with his brother (KahaSuni). Till he could understood the matter, accused Pradeep took out a small dunali bandook Ex.P1 from dickey of his car and gave it to Ravi Tyagi by saying something to him. Then accused Ravi Tyagi fired on his brother. Thereafter his brother fell on the ground in the pool of blood.
47. Now on further appreciation of his testimony I found there is contradiction in his testimony regarding catching of victim. PW1 in his examination in chief had stated that after receiving bullet injury his brother fell down on pool of blood but in his crossexamination he stated that before victim could fell on ground after being shot, Rajesh and he cought hold him, so he may not fell on the ground hence there is contradiction in his testimony itself further if caught hold is brother it is quite unnatural that his STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 54 OF 82 55 cloths did not stained with blood though from the photograph of spot it is evident that lot of blood fell on ground. the position where victim and accused persons were standing.
Further PW1 in his examination in chief has stated that accused Pradeep Khatri and Ravi Tyagi were standing near the car and his brother was standing in front of them, whereas in cross examination he stated that accused Pradeep Khatri was standing by the side of the dickey of the Fiesta Car towards it left gate (other side of the driver gate) his brother towards left side of bonnet and accused Ravi Tyagi in between , hence, all the three persons were standing in line and they victim was not facing them. Hence, there is contradiction in his testimony itself.
Further from the position of the standing of accused persons, victim and PW1, in my view it is not possible for PW1 to see what the accused persons were doing. PW1 in his examination in chief has stated that accused Pradeep Khatri and Ravi Tyagi were standing near the car and his brother was standing in front of them, whereas in cross examination he stated that accused Pradeep Khatri was standing by the side of the dickey of the Fiesta Car towards it left gate (other side of the driver gate) his brother towards left side of STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 55 OF 82 56 bonnet and accused Ravi Tyagi in between all three facing him and he was coming towards gate of lawn no.1. He further stated that his brother in law's car was parked left side of lawn no.1 and exit gate was also towards left side of gate no.1 and after seeing off his sister he took a turn and saw a fire being shot by accused Ravi Tyagi. Hence, he was busy in seeing off his sister and cannot heard the Kaha Suni of accused persons and even did not saw accused Pardeep Khatri took out gun from dickey. Further from the position of car as stated by PW1 the car of his jija was towards extreme left of the gate of lawn no.1 near the exit gate in between there was Fiesta Car and then there was car of accused Ravi Kumar Tyagi. As per him all the three accused persons were standing towards the left side of the Fiesta car i.e. conductor side in a line hence, they will not be visible to him from the other side of the PW1, she will be seeing driver side of the car only. Hence, in these circumstances, it is not possible for the PW1 to see what accused persons were doing standing other side of the car, it would not be possible for PW1 to see accused Pardeep Khatri taking out the gun from dickey of the car and to see who shot bullet upon victim as height of the first car is about 3 feet towards dickey side and around five feet from center of STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 56 OF 82 57 the car, which will block clear view. He could only see her faces when he came in front of gate of law no.1 as ford fiesta car as per site plan was parked in front of gate no.1. Further some where PW1 says that as soon as he turned back after seeing off his relatives he heard the noise of fire being shot and also said that he saw faces of accused persons while coming to gate no.1 which means he travelled many steps from the place where car of his jija was parked, hence, his testimony is full of contradictions and creates doubt that, he saw the incident of firing himself.
Further, accused Pradeep Khatri was standing on the left side of the car, as per PW1 he took out Dunali Bandook from dickey of the car, but dickey of the car could not opened from left side until person go behind the car and put key in the lock of dickey be visible which would take considerable time and if PW1 was present and hearing kahasuni of accused persons with victim from a distance of 25/30 steps he would have sufficient time to interfere and stop accused persons and even victim Ajay Maan would have also noticed accused Pradeep Khatri to take out the bandook from dickey and he would also have tried to run away.
Moreover, he says that, he saw accused Ravi Tyagi STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 57 OF 82 58 firing shot and when he heard the noise of fire shot, he saw Rajesh at that time coming through gate no.1, if that was the case he was at a distance of 25/30 steps and could see faces of accused which means he was in front of the car, as from side angle he could not see the faces of all three persons, who were standing in line and since car was in front of the gate then he would be near to victim and he should have first hold the victim then PW1 Rajesh Maan. Further PW1 stated that accused Pradeep Khatri tried to run away from the spot and Rohit Maan grappled him but he manage to run away, but no where he or any other witness had stated what accused Ravi Tyagi did after firing bullet upon victim. Why no person tried to apprehend accused Ravi Tyagi despite the fact that he fired a bullet shot upon victim, which creates doubt about the presence of accused Ravi Tyagi at the parking when victim Ajay Maan was shot.
Further if I put his testimony and testimony of PW4 together there is contradiction as he stated that when he saw victim he was going toward parking and his back was visible to him and accused persons were facing toward bushes where as PW1 had not stated they were facing bushes.
Further there are other flaw in his testimony which STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 58 OF 82 59 make his testimony unreliable to the extent that he was present at the spot at the time when victim had received gunshot. . As per his testimony of PW1 and PW4 victim received gunshot injury at 11.30 PM and immediately he took him to Saroj Hospital. The Saroj hospital is hardly at a distance of 8 to 10 km. Therefor it should not have taken more than ½ hour in reaching hospital particularly in night time when usually traffic are less. Even PW28 had stated in his testimony that he reached to spot from Saroj Hospital with in 15 minutes. From the MLC EXPW2/A it is evident that he was brought to hospital at 0.50 am i.e. after one hour and 20 minutes. Such a delay of 1hour and 20 minute create suspicion that either he was not immediately taken to hospital after the incident or he was taken to some other hospital or correct time of victim's arrival in the hospital is not mentioned in MLC or victim was not shot at 11.30 am.
Further, PW1 was eyewitness, it looks very unnatural that case was not registered on his statement, but on the statement of Rajesh Maan. The reason given by him was that, at that time his younger sister was present in the hospital, who was perplexed and, therefore, he took his sister for medical aid and came back at about 3.00/3.,,15am and at that time, police official were recording STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 59 OF 82 60 statement of Rajesh. But, PW28 says that, he did not record statement of family members of the victim as they were weeping. Further as per MLC Ex.PW2/A he has brought the injured to the hospital. But, in the alleged history, no name of assailant is mentioned who shot his brother. Hence, I find substance in the contention of ld. Counsel that till that PW1 was not aware who shot his brother that is why no name of assailant was mentioned in the MLC.
Therefore, taking into account, all the facts and circumstances mentioned above, I do not find testimony of PW1 reliable to the extent that he actually saw accused Pradeep Khatri handing over dunali bandook to accused Ravi Tyagi and accused Ravi Tyagi fired bullet upon his brother. In all probability it look either his attention was drawn after hearing sound of bullet or probably he came at the spot after hearing sound of bullet, and that is the reason his cloth did not stained with blood, despite the fact that so much blood found on the spot.
48. PW4 Satish Maan is another eyewitness. He deposed that on 08.03.2008 there was a ring ceremony of Ajay Maan in Carnival Farm House. At about 11.30pm, he had come STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 60 OF 82 61 come at gate no.1 of said farm house to see off some guests including son of his maternal uncle and his friends. He further deposed that Ajay Maan was going towards parking of vehicles situated in front of gate of farm house. He saw accused Ravi Tyagi and Pradeep Khatri were standing near the Fiesta Car in the parking. He further deposed that accused persons started whispering with each other on seeing Ajay Maan and then Pradeep Khatri took out a dunali bandook from the dickey of the car and handed over to accused Ravi Tyagi. Accused Ravi Tyagi fired two bullets in the chest of Ajay Maan and Ajay Maan fell down on the ground. Antesh Maan, Rohit Maan and Rajesh Maan were also standing near the place of incident. Rohit Maan tried to apprehend accused Pradeep Khatri but, he managed to escape. Antesh Maan and Rajesh Maan took him to Saroj hospital in Honda City Car followed them to hospital alongwith his brother in law (jija) in his car. Police also came and recorded statement of Rajesh Maan. He identified both the accused persons, dunali bandook and Fiesta Car.
On appreciation of his testimony I find same is full of contradictions qua other witnesses. PW4 stated that, he told to the IO that he is an eyewitness of the incident and his statement should STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 61 OF 82 62 be recorded. But, PW1 stated only that he and Rajesh Maan stated they are the eyewitness. Further PW4 stated that in his testimony that, two bullets were fired by the accused Ravi Tyagi, but as per PM Report Ex.PW26/A only one bullet hit on the chest of victim Ajay Maan. Hence, his testimony is contradicting to medical evidence.
PW4 stated that, Ajay Maan was shifted in the Honda City Car of his jija, whereas PW1 stated that Ajay Maan was shifted in Honda City car which was gifted in the marriage. IO did not lifted any blood from the Honda City Car to prove that victim was taken to the hospital in the car. Further PW4 stated that Antesh Maan remained unconscious/ perplexed for 12 minutes in the hospital but PW1 said that, he remained unconscious for 30/45 minutes.
Further PW4 also stated that he did not inform to the police about the incident. It is quite unnatural conduct that he did not inform the police though he knew PW1 Antesh Maan and PW24 Rajesh Maan are busy in taking victim to hospital. No proper explanation has been given for not reporting the incident to the police.
Further both PW1 & PW4 are stating that they have seen the victim and Ajay Maan and accused persons were standing STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 62 OF 82 63 near the Fiesta car. The Iocation of accused persons and victim has not been shown in site plan Ex.PW15/A, therefore, the location has to be assessed from the testimony of eyewitnesses PW19 and PW24 had denied the presence of PW1 and PW4 at the spot. PW4 in his examination in chief stated that he saw victim going towards parking of vehicle situated in front of gate of parking. Hence, both the accused persons were standing near the Fiesta Car. He stated in the cross examination that Ajay Mann crossed him from inside the function and went towards parking area. He also saw accused persons and simultaneously from the distance of 15/20 yards and they were talking each other and they were standing towards left side of the rear side i.e. dickey of car both of them were standing facing towards dickey of the car i.e. towards bushes and their faces were visible to him, but it looks quite improbable, if accused persons were facing bushes side then he can not see their faces by standing at the gate of lawn no.1, as their back will be towards him.
Further, as PW4 stated Ajay Maan back was towards him till the bullet was fired, which means victim was also facing towards bushes. In that position, accused persons while facing bushes cannot shot the victim without turning towards victim. Further STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 63 OF 82 64 PW4 stated that he was standing at gate no.1 of farm house where he saw the incident, but PW1 stated that he saw PW24 Rajesh Maan coming out of the gate no.1 when Ravi Tyagi fired, which means he did not saw Satish Maan. He did not accompanied to the hospital with injured immediately as stated by him. He did not give any reason when he was eyewitness and saw that PW1 Antesh Maan is busy in talking his brother to hospital then why he did not informed to the police what the incident immediately. Record show that first time PCR was informed at 12.31am i.e. after about one hour and five minutes of incident. Hence, in these circumstances, I also did not find his testimony reliable to the extent he actually saw the incident of firing as alleged by him.
49. I also found following grounds which make there testimony of PW1 & PW 4 , PW19 and PW24 unreliable:
(i) The victim was shot as per the testimony of PW1 and at about 11.30pm, but first information report to the police/PCR was given at 12.45pm on 09.03.2008 i.e. after one hour 15 minutes, no explanation has been given, why the delay of 75 minutes in informing to the police.
(ii) Both the PW1 and PW4 are the brother of the victim Ajay Maan, but they did not make call to the STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 64 OF 82 65 police till informing that, accused Pradeep Khatri had given dunali bandook to accused Ravi Kumar Tyagi and Ravi Tyagi fired the bullet shots upon victim Ajay Maan and killed him.
(iii) In the first information given to the police at 12.35pm, which was recorded as DD No.3B, it is not mentioned bullet was hit by someone on victim, but only it is mentioned that bullet hit one person further name of assailant is also not mentioned.
(iv) In MLC Ex.PW2/A prepared by Dr. Surya Kant alleged alleged history is given of gunshot injury, but name of assailants not given. The said MLC was prepared after 00:50am on 09.03.2008 which proved that till 00.50am PWs ware not aware about the name of the assailant who had fired bullet upon Ajay Maan.
(v) The victim was hit with bullet at 11.30pm on 08.03.2009, but he was brought to Saroj Hospital at 00.50am on 09.03.08 that a delay of one hour 20 minutes, it is time of late night. The distance of Saroj Hospital and Carnival Farm House is hardly 810 kms. Hence, in night hours delay of 1 hour 20 minutes though as per PW1 he was immediately taken the injured to the hospital look impossible. It appear either he was not taken to the hospital immediately as the body noticed, or he has been hit and found injured after considerable time as he was taken somewhere else or suggested by ld. Counsel for accused persons during cross STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 65 OF 82 66 examination of PW1 that he was taken to Santom Hospital.
(vi) From the testimony of PW7 HC Sanjay it is proved that information of incident was received at PCR HQ at 00:35:36 hours that one person has received bullet injury at Alipur Carnival Farm House in Shadi in marriage in the from mobile phone number 9213729883 and he recorded the information in the Form Ex.PW7/A. Hence, till 12.35am (09.03.08) it was not in knowledge that who hit bullet. Further Form Ex.PW7/A, it is evident that concerned police officer or necessary inspection reached at the spot and he reported that he was informed that in engagement ceremony injured was hit by his friend ("Sagai ka programme tha, jise uske sathi uaann pata u/k (unknown) ne goli marri hain Jaipur Golden le gaye hain 01.01"). Which means till 1.05, it was not clear who hit the victim. Further from the form it is evident that, at 00:56, Sudhir Rana R/o. Kodipur, complainant has informed to PCR Van driver at00. Ajay Maan was hit and injured, but name is not mentioned that, who hit and police arrive at 00:56 hours.
(vii) Further from the form it is evident that at 1.30am PCR Van offence informed that, Ajay Maan was declared brought dead, who hit Ajay Maan not known till date, mother of the victim suspected in laws of elder brother". Hence, till 1.30am, if not known who hit victim. Which creates doubt about till 1.30pm, it was not known who hit victim.
STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 66 OF 82 67 Similarly other information to PCR was sent from Saroj Hospital at 1.30am from phone number 27557205, which is proved from PCR form Ex.PW21/A recorded by PW21 Kuldeep of PCR HQ. The Van driver has reported that, relative of the victim having an altercation with doctors and they are saying that victim was alive by any means and they are not telling the name of persons who hit bullet (Mritak ke ristedaron ne doctor se kaha suni kar kahe rahen hain ki, kishi bhi tarah se Jinda kar do, goli maarne wala ka naam koi nahi bata raha hai.
01.41 ACP Narela and Rohini Thane ka Staff Hospital mein Hai 2.05 ACP and SHO Alipur with staff Mauka Par stithi normal hai. Hence, from the other PCR form also it is evident that till 2.05 name of assailants was not known. The PCR Van Incharge has no reason to give false information to the PCR HQ. Hence, it also creates doubts that, public persons were aware, who were the assailants till that time. In this regard I rely upon judgment Johnson vs State CRL Appeal No.775/2011 dated 19.02.2012, in para 10 of the said judgment it is held as under: "The PCR form Ex.PW14/A reveals that one Dinesh Kumar had called PCR on mobile No. 9868279231 at about 21.21 i.e. (9.21pm) informing that an individual had been stabbed near Sharma Book Depot. He (Dinesh Kumar ) did not give other particulars i.e. number of assailants or presence of PW5 at the spot etc. Being the informant, he was a crucial witness regarding detailed information about the occurrence. STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 67 OF 82 68 But for unknown reasons, he was not examined during the investigation. Adverse inference has therefore to be drawn against the prosecution for withholding this material witness.
Further I relied upon Kishan Pal Vs. State (Supra) relied by Ld. counsel for the accused is relevant as in that judgment Division Bench of Mr. Justice D.B. Jain and Mr. Justice A.K. Sikri while relying upon judgment Jagir singh Vs. State (NCT of Delhi) has held that non disclosure of the name of the assailants in MLC despite the fact that they were known to the person, who admitted the victim in the hospital creates doubt whether the said person has actually seen the assailants The relevant para no.11 of the said judgment is reproduced as under: "Dealing with the question of delay in disclosing the name of the assailants, in Jagir Singh Vs. State (Delhi) 1975 SCC (Cri) 129, their Lordship of the Apex court held that nondisclosure of name of the assailants, claimed to be previously known, at the first possible instance while admitting the deceased in the hospital and reporting the incident to the police constable on duty would be unnatural conduct, after admitting the deceased in the hospital and the conviction cannot be based on such testimony. In fact the concurrent finding of guilt recorded by the trial court and affirmed by the High Court was set aside by the Supreme court on this ground.
Similar view has been expressed by the Supreme STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 68 OF 82 69 Court in Shivaji Dayanu Patil Vs. State of Maharashtra MANU/SC/0499/1989 : 1989 Cri LJ 2074 and Devinder Vs. State of Haryana , MANU/SC/0127/1997 : 1996 Cri LJ 4461, and it has been held that where the name of the assailant is not disclosed at the earliest available opportunity, the accused was entitled to the benefit of reasonable doubt".
Further, in Johnson vs State CRL Appeal No.775/2011 dated 19.02.2012, in para 12 it is held as under : "The MLC Ex.PW4/A reveals that the victim was taken to DDU hospital at 10.35 P.M. by Ct. Subhash Chander and Harish. However, the alleged history does not reveal details of the incident; the number of assailants and their names. PW5 (Ct. Subhash Chander) did not explain why the names of the assailants were not disclosed to the doctor. No reasons were given why it took more than one hour to reach the DDU Hospital. On a close scrutiny of MLC Ex.PW4/A, it transpires that name of relative or friend who brought the victim mentioned was Harish".
(viii) Further on perusal of the FIR Ex.PW14/A, I found that FIR has been recoded at 5.45am, PW14 HC Balwan Singh had stated that Ct. Virender produced one rukka before him at about 5.45 am, whereas PW17 Ct. Virender Kumar stated that, he reached at PS at about 4.45am but the case was registered at about 5.45am, why there is a delay of one hour in recording the FIR has not been explained by PW17. Further PW17 says STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 69 OF 82 70 that Rukka was handed over to him in the Saroj Hospital, as he stated "SHO made endorsement on the statement of Rajesh Maan handed over the same to him, thereafter he left the hospital and next to PS. Whereas PW28 Inspector Surender Sand stated that, he recorded statement of Rajesh Maan and come back at the spot and after perusal of place of occurrence, MLC, endorsement or the statement and handed over the rukka to Ct. Virender Singh at 4.30am for registration of case. Hence, rukka was handed over to PW18 at the spot. In my view IO Inspector Surender Sand has falsely deposed the fact that he came on spot and he made endorsement to cover up the delay of almost six hours in recording of the FIR. I do not see any reason why rukka was not sent for registration of FIR immediately after recording statement of Rajesh Maan for only reason that he was taking time to manipulate statement of FIR as alleged by PW24. Delay in FIR creates suspicious about its manipulation. In this regard I rely upon judgment Thulia Kali Vs. State of Tamil Nadu 1973 (3) SCC 393 relied upon by ld. Counsel for the accused, wherein it is held by Hon'ble Supreme Court in para 12 held as under : "First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 70 OF 82 71 respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often result in embellishment wich is a creature of afterthought. On account of delay, the report not only get bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.
50. In these circumstances, I held that, from the testimony of eyewitnesses i.e. PW1, PW4 and PW24 it is not proved beyond reasonable doubt that they saw accused Pradeep Khatri taking out the bandook from dickey of his ford fiesta car and then accused Pradeep Khatri gave the said bandook to accused Ravi Tyagi and accused Ravi fired bullet upon victim Ajay Maan and caused his death.
51. Now if I ignore the statement of PW1, PW4, PW19 and PW24 that they actually saw the accused persons Pradeep Khatri giving Dunali Bandook to the accused Ravi Tyagi, then case STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 71 OF 82 72 become based on circumstantial evidence. In Sharad Birdichand Sarda vs. State of Maharashtra 1984 4 SCC 116. It has been held that while dealing with circumstantial evidence, onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of the this Court, before conviction could be based on circumstantial evidence, must be fully established.
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 72 OF 82 73 In this case, it is undisputed fact that, on 08.03.2008 there was Engagement Ceremony of Victim Ajay Maan and it is also undisputed fact that Victim Ajay Maan got hit with the bullet in the said ceremony, which led to his death. Since accused Pradeep Khatri has taken the defence in his statement u/s. 313 Cr.P.C. that, he has come in the Engagement Ceremony on 08.03.2008 and he and victim came to his car, and victim has seen his Dunali Bandook in his dickey and victim had taken out the gun and fired one shot in air and when he was triggering another shot, but said shot could not fired, because, of some fault in said bandook. Victim lowered down the dunali bandook and started inspecting the nasal of the Dunali Bandook and in this process fire took place and hit Ajay Maan accidentally.
52. Hence, accused Pradeep Khatri has admitted his presence at the spot. Admitted that gun by which bullet was fired which hit victim was his gun. Hence, now only question is to decided whether victim hit accidentally on bullet was found upon him as claimed by accused Pardeep Khatri. From the postmortem report Ex.PW6/A, it is evident that, victim has only one injury i.e. on left chest near shoulder. It look absolutely unbelievable that bullet would STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 73 OF 82 74 accidentally hit on his chest when victim was checking the nasal of the bullet to find out why second shot not got fired. If trigger pressed accidentally while checking the nasal then in all probability, bullet would hit on his face or eyes, as when he will look into nasal of bandook his eyes will be on nasal. Hence, in no circumstances, bullet could hit accidentally him on his chest. The PW26 Dr. Munish Wadhawan, who conducted the postmortem of te victim had stated in his report Ex.PW26/A that, shattering of left side of rib of chest and presence of blackening tattooing shows that bullet was fired on victim from close range. The PW26 has further testified in his cross examination that, the distance of close range means two/three meters. Hence, in these circumstances,if bullet hit accidently while checking gun it should be contact range injury instead of close range. it looks highly improbable that, victim got hit accidentally, when he was checking the nasal of the double barrel gun to find out why second shot not got fired. Moreover, no suggestion has been given to PW26 that, victim was hit accidentally by himself. Further no suggestion has been given to him that, bullet hit from angle going in upward directions. Hence, in these circumstances, I do not find the defence of accused Pradeep Khatri that victim hit accidentally when STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 74 OF 82 75 he was checking the gun. Hence, accused has taken the false defence in his statement u/s. 313 Cr.P.C. which is also an incriminating circumstances against him. In this regard I rely upon In Ashwani @ Sonu Vs State Crl.Appeal 969/2010 Dt 27.05.2013 passed by our own High Court it is held that : The object of recording the statement of the accused under Section 313 of the Code is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the court and besides ensuring the compliance therewith the court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simplicitor denial or in the alternative to explain his version and reasons for his alleged involvement in the commission of crime. This is the statement STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 75 OF 82 76 which the accused makes without fear or right of the other party to crossexamine him.
However, if the statements made are false, the court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the court and the accused and to put to the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain.
In Hirabhai Babubhai Patel V State of Gujrat, Crl. Appeal No.1044/2010 dt.01.07.2013, the Supreme Court in para 22 has held "though all the incriminating circumstances which point to the guilt of the accused had been put to him, yet he chose not to give any explanation under Section 313 Cr.P.C. except choosing the mode of denial. It is well settled in law that when the attention of the accused is drawn to the said circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for building the chain of circumstances."
53. The contention of ld. Counsel for the accused that, prosecution has failed to prove the motive of murder. Therefore, STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 76 OF 82 77 benefit is to be given to accused. Undoubtedly as hold earlier prosecution has failed to prove both the motives have been taken by prosecution i.e. quarrel over DJ and second accused was opposing the marriage of victim with Ruby as she was of Shokeen Gotra girl in which he was wedded and he want to marry that girl to somewhere else, but in my view failure to prove motive is not always fatal to the prosecution because motive is always looked in mind of accused and many time it is difficult to unlock. Moreover, when accused and victim were alone when victim was killed, therefore, the fact that, why the victim was murdered is in the special knowledge of the victim. Hence, onus is on him to explain why victim was killed. Undoubtly in the judgement relied upon by Ld counsel for accused persons it is held that where prosecution relied upon motive and failed to prove the same it affects prosecution case but in my it depends upon fact of each case that how far failure to prove motive affects prosecution case. In State of U.P. V Babu Ram, 2000 (11) AD 285 as under : "No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 77 OF 82 78 showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental imposition of an offender towards the person whom he offered."
Dr. Tarseem Kumar Vs. Delhi Admn (1994) Supp (3) SCC 767 also it is held that: "Normally there is a motive behind every criminal act and that is why investigating agency as well as the Court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. It has been repeatedly pointed out by this Court that where the case of the prosecution has been proved beyond all reasonable doubts on the basis of the materials produced before the Court the motive loses its importance. But in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. Of course, if each of the circumstances proved on behalf of the prosecution is accepted by the Court for purpose of recording a finding that it was the accused who STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 78 OF 82 79 committed the crime in question, even in absence of proof of a motive for commission of such a crime, the accused can be convicted. But the investigating agency as well as possible as to what was the immediate impelling motive on the part of the accused which led him to commit the crime in question."
54. Hence in view of aforesaid facts and circumstances despite the fact that prosecution failed to prove the motive in my view same is not fatal to the prosecution.
55. As far as delay in reporting the matter to police for taking one hour and 20 minutes to hospital is concerned, same is immetarial because accuse has admitted that victim shot himself accidentally in his presence.
56. The conduct of accused Pardeep Khatri not taking the victim to hospital and fleeing away from spot is also relevant. Accused stated in his statement that he helped PW24 Rajesh in lifting Ajay Maan to hospital or why he himself did not go to hospital with victim, as according to him, victim was his friend and he has come in the engagement ceremony to give him Rs.1 lakh, therefore, the conduct of the accused not accompanying with the victim appeared to be highly unnatural. Therefore, the statement of the STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 79 OF 82 80 PW19 given to the police that, he saw the accused Pradeep Khatri fleeing away in his car and he took the key of the car appeared to be much reliable, then the testimony of PW19, then the accused Pradeep Khatri key of the car gave to him to take the injured to the hospital. Further, his conduct of not reporting about the incident to the police that victim got himself hit accidentally by his bandook and his fleeing away from the spot is also incriminating circumstances against him. Therefore, presumption can be drawn that he after firing bullet upon the victim ran away from the spot leaving behind his dunali bandook and car as he might have seen relatives of the victim coming.
57. Hence in these circumstances, the complete chain of incriminating circumstances is proved against him, which established either he himself or in connivance with some other person committed the murder of victim Ajay Maan by firing bullet upon him with him licensee double barrel gun. And no other person has committed the murder of the victim. Hence, I convict him for offence u/s. 302 IPC.
58. As far as accused Ravi Tyagi is concerned since I did not find the testimony of PW1, PW4, PW19 and PW24 that they saw accused firing bullet upon victim Ajay Maan. Moreover, PW1 and STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 80 OF 82 81 PW4 has stated that they saw accused Pradeep Khatri fleeing away immediately after the incident, but they have not stated where accused Ravi Tyagi has gone after firing. Why no public person present there tried to apprehend the accused Ravi Tyagi, which creates doubt about the presence of accused at spot at the time of incident.
59. Prosecution has also not led any evidence to prove that accused Ravi Tyagi was such a good friend of Pradeep Khatri that he would agree to commit murder for him. No reason has been attributed why he will commit murder of victim for accused Pradeep Khatri. It is stated by PW1 and PW28 that, his car was found parked on the spot but I failed to understand if his car was parked at the spot, why photograph of the said car was not taken. Hence, it also creates doubt that accused Ravi Tyagi's car was parked at the spot.
60. Moreover, double barrel gun was of accused Pradeep Khatri it look very unlikely that accused Pradeep Khatri would give gun to him, it would be natural for Pardeep Khatri to fire himself because he would be much better position to handle the gun as same was his gun. Hence, in these circumstances, I held that, there are not complete chain of incriminating circumstances is not STATE VS RAVI TYAGI & ANR// U/S. 302/34 IPC//SC NO. 55/08//FIR NO.52/08// PAGE 81 OF 82 82 established against him, which prove that he took gun from accused Pradeep Khatri and fired bullet upon victim. Undoubtedly, he was admitted in his statement u/s. 313 Cr.P.C. that he was present in the party and came because he opposed the police official who were preparing the FIR and taking name of person who were not present there, which was opposed by relatives of the deceased and he was implicating falsely in this case, much convincing and appear to be false. But that itself is not sufficient to convict the accused. Hence, I give benefit of doubt to accused Ravi Tyagi and acquit him for offence u/s. 302/34 IPC.
61. In view of the aforesaid facts and circumstances, accused Ravi Tyagi stands acquitted being given benefit of doubt from all the charges in which he has been charged. He is in JC. He be released from JC forthwith, if not required in any other case.
While accused Pradeep Khatri stands convicted for offence u/s. 302 IPC, whereas he stands acquitted for offence u/s. 27 Arms Act. Now to come up for order on sentence.
ANNOUNCED IN OPEN COURT (SANJEEV KUMAR) ON 29.10.2013. ADDL. SESSIONS JUDGE 01 (NORTH) ROHINI:DELHI.
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