Delhi District Court
Sc No: 242/13 State vs . Sandeep & Ors. on 4 September, 2015
SC No: 242/13 State Vs. Sandeep & Ors.
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 242/13
FIR No. 62/06
Police Station Bawana
Under Section 302//201/34 IPC
ID No. 02404R0-345712013
State
Versus
1. Sandeep Kumar
S/o Sh. Dattar Singh
R/o Patasa Wail Gali, Auchandi Road,
Bawana, Delhi.
2. Amit @ Babloo
S/o Sh. Mahender Singh
R/o VPO Ghoga, PS Narela, Delhi.
2. Sunder @ Surender @ Sonu
S/o Sh. Dharampal
R/o VPO Saragthal, District Sonipat, Haryana.
Judgment 1 of 66
SC No: 242/13 State Vs. Sandeep & Ors.
4. Naresh
S/o Sh. Jai Prakash
R/o Village Bapdola, Delhi.
5. Rajesh @ Imran
S/o Sh. Dhrambir
R/o Village Silana, PS Kharkhoda,
District Sonipat, Haryana.
6. Surender @ Nitu (Proclaimed Offender)
S/o Sh .Zile Singh
R/o VPO Saragthal,
District Sonipat, Haryana.
7. Gurbachan @ Bobby (Expired)
S/o Sh. Prem Singh
R/o , 492, Village Bapdola,
Delhi.
......Accused Persons
Date of institution 17/07/2006
Judgment reserved on 11/08/2015
Judgment Pronounced on 04/09/2015
Decision Acquitted
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JUDGMENT
1. Accused Sandeep is facing trial in the present case for abetting the murder of his uncle Jai Prakash and on allegations that he entered into a conspiracy with other accused persons namely Amit @ Babloo, Sunder @ Surender, Rajesh @ Imran, Amit @ Babloo, Surender @ Nitu (proclaimed offender) and Gurbachan (since expired) to murder Jai Prakash. Additionally, accused Sunder, Naresh, Rajesh @ Imran, Surender @ Nitu and Gurbachan are facing trial for using a pistol in commission of crime in contravention of the provisions of Arms Act.
2. FIR was registered on the complaint of Kaptan Singh who alleged that on 22.02.2006 at about 10 AM, he went to meet his brother Jai Prakash (deceased) at Bharat Dharam Kanta, Narela Road. There one Dhillu and the deceased met him and thereafter he left that place at about 11 AM. He went to post office Bawana and then to Delhi Co-operative bank, Auchandi Road to re-pay the Judgment 3 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
installment of his car loan. At about 11.25 AM, the complainant left the Bank and when he reached at the statue of Ex. Counselor Ishwar Singh, Auchandi Road he saw that four persons were firing on a blue Maruti Car and when the driver of the said car came outside the car then the said persons fired upon the Driver. Thereafter, all the four assailants escaped from there in a silver Ikon car towards Auchandi Road. Then the complainant went to the spot and saw that his brother Jai Prakash (who sustained bullet injuries) was lying on the road and died at the spot. Complainant stated that he can identify the assailants as he had seen all of them.
3. IO recorded the statement of one Sant Ram who stated that she knows the deceased for 8 years as he had some property dealings with him. Accused Sandeep was not happy with the relations of the accused and Sant Ram and after the cancellation of the agreement in respect of Aare Wali Land, the accused Sandeep became irritated with the deceased. On the date of incident, the deceased took the car No. DBG 5487 in which the Judgment 4 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
accused was murdered. Sant Ram suspected the role of accused Sandeep in the murder of deceased. Brothers of deceased Kaptan Singh (complainant), Pushpraj and Hari Om also stated that there was some verbal altercation between the accused Sandeep and the deceased. Accused Sandeep threatened the deceased to kill him. IO also recorded the statement of other persons who pointed towards the accused Sandeep to be the person involved in the murder of deceased. Sandeep was arrested who disclosed his role in the murder of the deceased by stating that he murdered the deceased by hiring the criminals with the help of one Ravinder @ Dhillu (got expired before filing of the charge-sheet) who introduced him to the other accused persons and then all of the came in two cars and murdered the deceased.
4. Accused persons were arrested and charge-sheeted in the present case. Accused Sandeep was charged for the offence punishable u/s 302 IPC. Accused Amit @ Babloo, Gurbachan (since expired), Surender @ Nitu (proclaimed offender), Sunder @ Judgment 5 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
Surender, Naresh and Rajesh @ Imran were charged for the offence punishable u/s 302/120B IPC. Besides this, the accused Gurbachan, Sunder, Surender @ Nitu and Naresh were charged for the offence punishable u/s 27 of Arms Act and accused Rajesh @ Imran u/s 25/27 Arms Act. Accused persons pleaded not guilty and claimed trial.
5. Prosecution in all examined 72 witnesses.
6. PW1 Kaptan Singh is the brother of deceased. He deposed that he saw four persons firing on a person and after that they fled in a Qualis. When he reached the spot, he saw that the deceased was his brother. Thereafter, somebody called the police. Police came at spot and the dead body of the brother of complainant sent to mortuary at BJRM Hospital. He along with police officials went to hospital where his statement Ex. PW1/A was recorded. An empty cartridge was lifted from the spot and same was seized vide memo Ex. PW2/B. The blood and earth control was seized from the Judgment 6 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
spot vide memo Ex. PW2/A. The car driven by the deceased was also taken into possession vide memo Ex. PW1/B. After the postmortem, the dead body was handed over to his younger brother Pushpraj. However, he failed to identify the assailants who fired on the deceased and deposed that the accused persons present in the court were not those persons who fired on his brother.
7. PW2 Ct. Pawan Kumar reached at the spot along with ASI Rajbir and Ct. Ravinder where a Maruti Car no. DBG 5487 (Ex P-1) was found in damaged condition. In his presence blood stained earth and blood was lifted from the spot as per memo Ex. PW2/A and broken cartridge and empty cartridges were also seized vide memo Ex. PW2/B. Witness proved the earth control seized from the spot as Ex. P-2 & P-3. The blood which was taken from the spot sealed in a container Ex. P-4. Nine empty cartridges on the back of which 7.65 NKF was written as Ex. P-5. One empty cartridge of 8 MM on which KF was written as Ex. P-6. Broken pieces of glass as Ex. P-7.
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8. PW3 Dr. Upender Kishore conducted the
postmortem on the body of deceased as per postmortem report Ex. PW3/A. He deposed that all the injuries on the body were ante- mortem in nature and affected by projectile of rifled fire arm.
9. PW4 Satya Pal deposed that his niece Suman was married to accused Sandeep and he is not aware about facts of the case. Witness turned hostile to the case of prosecution and during his cross-examination by Ld. APP, he denied the suggestion that the accused was having any property dispute with the deceased or that he gave any money to the accused Sandeep.
10. PW5 Kishan Kumar deposed that he purchased a plot measuring 600 yards from accused Sandeep for which he gave Rs. 5 lacs in advance to him. However, the documents of the plot were not found in order so he took the advance back from the accused.
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He denied the suggestion that there was any dispute between the deceased and accused Sandeep on the issue of Aare Wali Zameen or the accused threatened the deceased in a panchayat.
11. PW6 Rishi Pal photographed the place of occurrence. He proved the photographs as Ex. P-6/A-1 to A-8.
12. PW7 Hari Om younger brother of the deceased, deposed that the deceased entered into a sale transaction in respect of a plot with one Anand through accused Sandeep. Said plot was agreed to be sold in Rs. 73 Lacs and some token money was paid by Anand to his brother Jai Prakash and remaining amount was not paid. Thereafter, the deceased canceled the agreement and told Anand that he would repay the token money to him. A panchayat including accused Sandeep, Anand and deceased took place and during the talks, the deceased refused to sell the plot to Anand. At that time, the accused threatened the deceased that either he should extend the time to pay the money or he would get the deceased Judgment 9 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
killed. These talks took place about 20-22 days prior to the murder of deceased Jai Prakash. He deposed that he feels that accused Sandeep is involved in the murder of deceased.
13. PW8 Ct. Neeraj delivered the copies of FIR to the Ld. MM and the senior officers.
14. PW9 HC Bala Rani registered the FIR and proved it on record Ex. PW9/A and her endorsement over it as Ex. PW9/B.
15. PW10 SI Suraj Bhan examined the crime scene and proved the crime scene report as Ex. PW10/A.
16. PW11 Jagwinder deposed that deceased Jai Prakash and his nephew Sandeep were known to him but he does not know anything else about this case. During cross-examination, he testified that the accused Sandeep was having mobile no. 9868542773 in the year 2006. He denied the suggestion that the Judgment 10 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
accused Sandeep was having some dispute with the deceased in respect of Aare Wali Zameen or that the accused Sandeep told him that he will not leave Jai Prakash. He also denied that the accused Sandeep was using his mobile number 9810349136 on the date of incident.
17. PW12 Pushpraj is the brother of deceased. He deposed that the deceased was having a plot in which Aara Machine was installed which was agreed to sell by him to accused Sandeep and Anand for amount of Rs. 73 lacs and Rs. 5 lacs were received by the deceased as earnest money. Accused Sandeep and Anand were unable to give the balance payment even on the extended dates and later on they made an agreement with some other person to sale the property for Rs. 90 lacs but Jai Prakash refused to execute the sale deed for non-payment of balance amount. In this regard, a panchayat was called in which the accused Sandeep abused Jai Prakash and also called him dishonest. He deposed that the accused Sandeep ran away from his house one day prior to the murder of his Judgment 11 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
brother and he did not come back till he was arrested by the police and he even did not attend the last rites of the deceased who was his real uncle. He deposed that he identified the dead body of his brother vide memo Ex. PW12/A and received the dead body vide memo Ex. PW12/B.
18. PW 13 HC Ram Niwas proved the arrest of accused Sandeep as per memo Ex. PW13/A, his disclosure statement as Ex. PW13/B and his personal search memo Ex. PW13/C.
19. PW14 ASI Rajbir Singh along with Ct. Ravinder upon receipt of DD no. 6A reached at the spot at Bawana Auchandi Road. He deposed on the similar lines of PW2.
20. PW15 Hans Dass Wadhwani witness from MTNL could not produce the call detail record in respect to mobile number 9868542773 as per his report Ex. PW15/A. Judgment 12 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
21. PW16 HC Surinder was beat officer and on receipt of information in respect of the incident he reached the spot. He deposed on the lines of PW2.
22. PW17 Ct. Ravinder along with ASI Rajbir Singh & Ct Pawan (PW2) reached at the spot. He deposed on similar lines as deposed by PW2. He took Tehrir for registration of FIR.
23. PW 18 Sant Ram deposed that he knew the deceased Jai Prakash for many years. Deceased Jai Prakash was having a property in the Daak Khane Wali Gali where Aara Machine was installed. Accused Sandeep introduced a person as purchaser of the aforesaid land to deceased Jai Prakash. An agreement was also executed between accused Sandeep and Jai Prakash. It was settled that the entire payment would be done during the agreed time period. On the date of incident he met the deceased Jai Prakash. Deceased took the key of his Maruti car and both of them went in the said car to Auchandi-Bawana Road. PW Sant Ram got down Judgment 13 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
from the car near the Statue of Ishwar Singh and crossed the road to enter the shop of the barber for a shave. Meanwhile, he heard the sounds of bullets and turned to see as to what happened. He saw 5-7 persons caught hold the deceased Jai Praksh and were firing upon him. He also saw the accused Sandeep while giving blow/kick from his leg on the person of Jai Prakash. He could not identify the assailants except the accused Sandeep who gave kick blow on the dead body of deceased.
24. PW19 HC Umed Singh, was posted as MHC(M) at PS Bawana with whom the case property was deposited by IO as per the entries Ex PW19/A & B.
25. PW19 (numbered again as PW19) Inspector Prem Singh investigated the case FIR No.85/06 PS Samalkha, Panipat in which one accused Tejbir @ Teji was arrested. He made disclosure statement in respect of involvement of accused Neeraj, Bobby & Surender in robbery of Opel Astra car HR-26 X 8240 and mobile.
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26. PW20 Inspector Jai Prakash was posted as SI at PS Nangloi on 19.03.2006. On that day, on a secret information, he arrested accused Sandeep with a country made pistol. He got registered FIR 61/06, PS Nangloi under section 25 Arms Act. He recorded the disclosure statement of Sandeep as Ex PW20/A.
27. PW21 Paramjeet Rai deposed that he purchased a plot measuring 1100 sq. yards from on Anand but the documents of the said plot were in the name of accused Sandeep. An agreement Ex PW21/B was also executed between him and accused Sandeep. He proved the seizure memo of agreement as Ex PW21/A and a photocopy of receipt as Ex PW21/C. But later on, the said deal was canceled due to dispute arose between accused Anand, Sandeep and Jai Prakash.
28. PW22 HC Yudhvir along with SI Suresh Kumar deposited the exhibits of this case at FSL, Rohini.
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29. PW23 Ct Harswarop filled the information in PCR Form that a person in a Silver Accent Car number of which is not known fired on Jai Praksh Pehlwan as per form Ex PW23/D.
30. PW24 Hari Om was land owner on which the Aara Machine was installed. He deposed that the said Aara Machine land was given on rent to brother of deceased Jai Prakash for a period of 21 months. Thereafter, the said land was grabbed by the deceased Jai Prakash. Witness deposed that deceased made him to sell the land to the person of his choice and accordingly, he executed the documents in favor of one Bhardwaj and deceased took all the original documents of the land from him on the next day. On 21.06.2006, IO of this case met him and recorded his statement. He handed over some photocopies of documents to the IO which were seized vide memo Ex. PW24/A and the photocopies of the documents of sale are collectively Ex. PW24/B. Judgment 16 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
31. PW25 Meenu on noticing the dead body of Jai Prakash lying on the road and a Maruti Car bearing no. DBG 5487 in broken condition made a call to 100 from her mobile number 9891112619.
32. PW26 Naresh Kumar, Senior Scientific Officer, FSL examined the five sealed parcels in Biology Division pertaining to the empty cartridges and proved his report Ex. PW26/B.
33. PW27 V.R. Anand Ballistic Expert from FSL, proved his detailed report Ex. PW27/A pertaining to a country made pistol.
34. PW28 SI Dhananjay Gupta arrested the accused Amit @ Babloo in case FIR No. 57/06 PS Narela u/s 307/506/34 IPC and produced him before Court. IO of this case arrested the accused Amit @ Babloo vide arrest memo Ex. PW28/A. His disclosure statement in case FIR no. 57/06 is Ex. PW28/B. Judgment 17 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
35. PW29 K.C. Varshney, from FSL examined a improvised pistol of 9 MM caliber with one spare magazine and 5 cartridges of 9 MM along with one country made pistol of .315 inch bore and two cartridges of 8 mm. He gave his detailed report Ex. PW29/A& B respectively.
36. PW30 Ct. Rajender Singh deposed that in his presence, IO Inspector Subhash Tandon interrogated the accused Rajesh @ Imran and proved his disclosure statement Ex. PW30/A.
37. PW31 Raj Kumar @ Raju cousin of deceased Jai Prakash identified dead body of deceased memo Ex. PW12/B.
38. PW32 HC Surender Singh deposited one sealed parcel sealed with the seal of AK & RT vide road no. 111/21/06 with FSL Rohini.
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39. PW33 Devender Kumar deposed that in his presence Ramkishan @ Kishan Kumar entered into an agreement to sell a 600 yards plot to accused Sandeep for Rs. 40 lacs. Rs. 7 lacs were paid to accused Sandeep by Ramkishan. Later on Sandeep refunded the amount to Ramkishan as the deal was canceled. He denied to have knowledge of any panchayat held between Jai Prakash and Sandeep regarding the said plot. He proved the sale document Ex. PW33/A seized from him vide seizure memo Ex. PW21/A.
40. PW34 HC Rajbir proved the arrest of accused Rajesh @ Imran u/s 41.1 Cr.P.C. The arrest memo is Mark PW34/A. Accused made disclosure statement Mark PW34/B. Thereafter, the information regarding the arrest of accused Rajesh was given to IO of the present case.
41. PW35 Satya Dev signed as a witness on two agreements to sell out of which one was between Ram Kishan and and some other person. He signed on another agreement executed Judgment 19 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
between Jai Prakash and Sandeep on asking of Ram Kishan. Same is Ex. PW35/A. An agreement to sell between Sandeep and Ram Kishan is Ex. PW35/B.
42. PW36 HC Ghan Shyam collected case property from PS Bahadurgarh Haryana in case FIR no. 68/06, u/s 25 Arms Act vide authority letter Ex. PW36/A and deposited the same with the MHC(M) PS Bawana. He also proved the copy of RC Ex. PW36/B.
43. PW37 Dattar Singh is father of accused Sandeep. He did not support the prosecution case. He deposed that his son Sandeep never used the said Dolphin mobile number.
44. PW38 Rohtash was a known person of deceased Jai Prakash. On the date of incident he met deceased Jai Prakash at Bharat Dharam Kanta. Deceased gave him a key of Maruti 800 car and told him to take his brother Kaptan Singh in the said car. Thereafter, deceased left the Dharam Kanta and the witness Judgment 20 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
remained there to wait for Kaptan Singh. After about 15 minutes he came to know that the deceased was shot dead.
45. PW39 Ramesh Gupta is the owner of Bharat Dharam Kanta. On the date of incident, at about 10:00 am he was present along with deceased and Sant Ram Dhilla at his Dharm Kanta. After some time he left that place for Narela and he later on come to know that Jai Prakash was shot dead.
46. PW40 Bhim Singh used to run a cycle repairing shop near Bharat Dharam Kanta. On 22.02.2006, he came to know from some passersby that Jai Prakash was shot dead. He told this fact to the servant of Ramesh Gupta and also told him to inform Ramesh Gupta in this regard.
47. PW41 Inspector Suresh Kumar proved the disclosure statement of accused Amit @ Babloo Ex. PW41/A & C respectively and pointing out memo Ex. PW41/B. Judgment 21 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
48. PW42 Dalip Singh Gehlawat proved the agreement to sell executed between Jai Prakash and Sandeep as Ex. PW35/A and identified his signatures on the same being the witness.
49. PW43 Amrit Singh Shanwal, Notary Public attested the agreement to sell Ex. PW35/A executed between Jai Prakash and Sandeep. He also proved the copy of receipts Ex. PW43/A&B respectively. He also proved his attestation on the agreement to sell Ex.PW35/B executed between Sandeep and Ram Kishan.
50. PW44 Jai Kuwar proved the property documents with respect to property no. 102/20 & 102/21 situated in the area of village Bawana. GPA as Ex. PW24/C, SPA as Ex. PW44/A. Agreement to sell between Hari Om and Kapil Bhardawj as Ex. PW44/B, an affidavit as Ex. PW44/C, a possession letter is Ex. PW44/D, 'Will' as Ex. PW44/E and receipt as Ex. PW44/F. Judgment 22 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
51. PW45 Kapil Bhardwaj proved the seizure memo of the property documents as Ex PW45/A with respect to property no. 102/20 & 102/21 situated in the area of village Bawana, Delhi.
52. PW46 Bijender Kumar proved the photocopies of documents pertaining to property no. 102/20 & 102/21 given by Kapil Bhardwaj to the IO and the same were seized vide memo Ex. PW45/A.
53. PW47 Inspector Kuldeep Singh proved the pointing out the place of incident by accused Amit @ Babloo vide memo Ex. PW41/B. He also proved the disclosure statements of accused Amit @ Babloo Ex. PW41/A& C respectively. He also proved the arrest of accused Rajesh @ Imran vide memo Mark PW34/A. He also proved his disclosure statement Ex. PW34/B.
54. PW48 Insp. Dalip Kumar is IO of the case FIR No. 762/06, PS Malviya Nagar. He deposed that during the Judgment 23 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
investigation of the said case, SI Naresh produced accused Karamvir @ Sonu and a pistol and told that the said pistol was recovered from accused Ravinder Dhaiya. He inspected the pistol and found three live cartridges in the magazine and one live cartridge in chamber. He got registered FIR No. 762/06. During investigation, accused Ravinder Dhaiya confessed regarding facts of the present case. PW48 seized a pistol from accused Ravinder Dhaiya of .32 bore which is proved on record as case property as Ex. PW48/Article 1.
55. PW49 Ct. Harinder proved the disclosure statement of accused Naresh @ Sonu as Ex. PW49/A and the pointing out memo as Ex. PW49/B & C. He also deposed that on 19.07.2006, he deposited two exhibits with the FSL.
56. PW50 Hem Chander Dabas produced the leave record of Kaptan Singh as Ex. PW50/A. He also proved his casual leave record as Ex. PW50/B & C respectively.
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57. PW51 ACP Jasbir Singh proved the disclosure statement of the accused Amit @ Babloo as Ex. PW28/B and his arrest in the present case as Ex. PW28/A. He also proved another disclosure statement of the accused as Ex. PW41/A & C and pointing out memos prepared at instance of the accused as Ex. PW41/B.
58. PW52 R. K. Khatri, Advocate denied his stamps and signatures on Ex. PW21/B & C. He was cross-examined by the Ld. APP but he denied all the suggestions put to him.
59. PW53 Rajender Singh Rana Manager, Delhi State Co-Operative Bank, Bawna, Delhi handed over the attested photocopy of pay in slip and ledger of vehicle account no. 69 of the account of Kaptan Singh as per Ex. PW53/A & B respectively. The said account was in the name of Kaptan Singh.
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60. PW54 Virender Singh was a stamp vendor. He deposed that stamp paper on which Ex. PW35/A was executed was purchased from him.
61. PW55 Anand Singh deposed that he is in business of property dealing and a deal was done to purchase Aare Wali Zamin, Bawana, Delhi with deceased through Sandeep for Rs. 72 lacs. He paid Rs. 15 lacs to Jai Prakash as earnest money but no documents were provided by Jai Prakash in respect of the ownership of the land, so the deal could not materialize and no proper agreement was executed between him and Jai Prakash. He denied of having any knowledge of any panchayat held in respect of aforesaid land.
62. PW56 SI Ratan Singh mechanically inspected a weapon in case FIR no. 68/06, u/s 25 Arms Act, PS Bahadur Garh.
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63. PW57 Inspector Ashok was the IO in case FIR no. 68/06. In that case, he recovered a pistol .315 bore from one Manjeet @ Mintu and got it examined from ASI Ratan Singh and obtained the report.
64. PW58 A.S. Cheema as the DCP gave sanction u/s 39 of Arms act to prosecute accused Surender @ Neetu and accused Rajesh @ Imran. He proved the sanction as Ex. PW58/A & B.
65. PW59 HC Sanjeet deposed that on 06.07.2006, accused Surender @ Neetu led the police team to village Dikalara, Samalkha in the fields of accused Sunder from where he got recovered two weapons. One was 9 MM pistol with two magazines and the another one was country made pistol .315 bore along with two live cartridges. He prepared the sketches of the said weapons Ex. PW59/A & PW59/B respectively. He also proved the seizure Judgment 27 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
memo of said weapons as Ex. PW59/C & PW59/D. Pointing out memo is Ex. PW59/E. The pistols are Ex PW59/Article 1 and Ex PW59/Article-2 respectively.
66. PW60 Hari Ram Bhati, Public Relation Inspector, Azadpur Post Office. produced the record with respect to NSC issued in the name of Kaptan Singh on 22.02.2000 in the sum of Rs. 10,000/-. He deposed that the said NSC was encashed by Kaptan Singh on 22.02.2006.
67. PW61 Balbir Singh deposed that he is relative of Anand Singh and an agreement in respect of 2 Bigha land of village Bawana belonging to Jai Prakash was made in year 2005 between Anand and Jai Prakash through Sandeep. Later on deal was canceled as Jai Prakash could not show complete documents of land. He denied having any knowledge as to whether any panchayat was held to resolve dispute between the parties.
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68. PW62 Rtd. SI Raghubir Singh was the second IO in case FIR No. 261/06, PS Nangloi u/s 25 Arms Act. On the intervening night of 19/20.03.2006, he along with other staff reached at main Rohtak Road, in front of Raj Hotel, Camp No. 2 Nangloi where SI Jai Prakash handed over to him the sealed parcel containing pistol along with cartridge, FSL Form, sketch of pistol and cartridge. He recorded the disclosure statement of accused Sandeep as Ex. PW20/A.
69. PW63 R.K. Singh, Nodal Officer, Bharti Airtel produced the call detail record of mobile no. 9810349136 from the period 15.02.2006 to 25.02.2006 as Ex. PW63/A. He deposed that as per Ex PW63/B, the said mobile number was issued in the same of Jogender Singh. He also proved the certificate Ex. PW63/E under section 65(B) Indian Evidence Act in support of record produced.
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70. PW64 Anil Chawla got registered the FIR No. 52/06 at PS New Agra as Ex. PW64/A in respect to theft of Ford I-kon car bearing no. DL3C A 8351. He proved the attested copy of FIR.
71. PW65 P.C. Bhutani a stamp agent deposed about issuance of stamp in the name of Hari Om S/o Sh. Suraj Bhan.
72. PW66 Dr. Vijay Kumar proved the death certificate of accused Ravinder as Ex. PW66/A.
73. PW67 Inspector Surender Kumar filed the charge- sheet in the case FIR 287/06 against accused Surender @ Neetu wherein the name of accused was mentioned as Sunder Malik. He also proved the dossier of accused in case FIR no. 287/06 Ex. PW67/A and the photograph of accused as Ex. PW67/B. Judgment 30 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
74. PW68 SI Dharambir deposed that accused Rajesh @ Imran was interrogated by the IO on 23.11.2006 and his disclosure statements Ex. PW68/A was recorded. Accused got recovered a country made pistol of .315 bore and one live cartridge and disclosed that the weapon was used in the murder of Jai Prakash. IO prepared sketch of the pistol as Ex. PW68/B and seized the same vide memo Ex. PW68/C. Accused also pointed out the place of occurrence vide pointing out memo Ex. PW68/D. Pistol is Ex. PW68/Article-A.
75. PW69 Inspector Rishi Dev was SHO Bawana at the time of the incident. He reached at the spot and found PW Kaptan Singh at the spot. He recorded statement of Kaptan Singh and made endorsement Ex. PW69/A over it. He called the crime team and prepared site plan Ex. PW69/B. He seized the Exhibits as per the testimony of PW2 and also the Car. He got conducted the postmortem and seized 3 sealed parcels handed over to him after the examination of the dead body as per memo Ex. PW69/F. He got Judgment 31 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
recorded the statements of PW Kaptan Singh, Sant Ram and other witnesses. On 20.03.2006, on receipt of information regarding arrest of accused Sandeep in case FIR No. 261/06, he arrested accused Sandeep in this case and recorded his disclosure statement.
76. PW70 SI Ramesh Dabas proved the arrest of accused Sunder @ Surender @ Sonu as Ex. PW70/A and his personal search as Ex. PW70/B. He proved his disclosure statements vide Ex. PW70/E & G. He also proved the arrest of accused Gurbachan @ Bobby as Ex. PW70/C and his personal search as Ex. PW70/D. He proved his disclosure statements Ex. PW70/F, H & Q. He proved the pointing out memo prepared at the instance of the accused persons as Ex. PW70/K-1 to K-4 & L-1 & L-2. He also proved the arrest of accused Naresh vide memo Ex. PW70/M. He proved his disclosure statements vide Ex. PW70/N. He also proved recovery of Skoda Car at the instance of accused Gurbachan as Ex. PW70/R. He proved the disclosure statement of accused Surender @ Neetu as Ex. PW70/S and also pointing out memo prepared at the instance of Judgment 32 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
accused as Ex. PW70/T-1, T-2 & T-3. He also proved recovery of one pistol of 9 mm and two magazines proved on record as Ex. PW59/Article-1. He also proved one country-made pistol and two live cartridges recovery at the instance of accused Surender @ Neetu proved on record as Ex. PW59/Article-2.
77. PW71 ACP Subhash Tandon is the IO of the case. He collected the documents in respect of Aare Wali Machine. He proved the arrest of accused and recording of their disclosure statements and the TIP proceedings carried out in respect of the accused. He also proved the recovery of pistols at the instance of accused Surender @ Nitu and prepared the site plan. He also got deposited the case property to FSL and obtained permission to prosecute accused Rajesh @ Imran under the provision Arms Act.
78. On 10.04.2013 & 12.04.2013, Ld defence Counsels admitted various documents relied upon by the prosecution. Those were TIP proceedings in respect of accused Surender @ Nitu, Judgment 33 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
Sunder @ Surender, Gurbachan & Rajesh @ Imran as Ex C-1, C-2, C-6, C-7 & C-11. Scaled site plan as Ex C-3, PCR Form as Ex C-4, FIR No. 85/06, u/s 392IPC, PS Samalkha as Ex C-5, FIR No. 57/06, u/s 307/506/34 IPC, PS Narela as Ex C-8, Statement of PW Vinod Bansal dated 27.07.2006 recorded u/s 161 Cr.P.C as Ex C-9, Statement of PW Shakuntla dated 14.08.2006 recorded u/s 161 Cr.P.C as Ex C-10.
79. Accused Gurbachan @ Bobby @ Hakla got expired during the trial and as such the case against him was abated vide orders dated 10.09.2012. Accused Surender @ Nitu was declared as proclaimed offender vide orders dated 25.08.012.
80. On conclusion of prosecution evidence, statement of accused persons were recorded u/s 313 Cr.P.C. All the accused persons claimed their innocence.
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81. Arguments have been addressed by learned
Additional PP as well as by Ld. Defense Counsels. I have heard the arguments and also perused the case file carefully.
82. Case of the prosecution is that a dispute arose between the accused Sandeep and his uncle Jai Prakash in respect of the land known as Aare Wali Machine land due to which the accused Sandeep wanted to eliminate the deceased. Accused Sandeep hired the services of other accused persons to murder Jai Prakash. The witnesses examined by the prosecution can be broadly divided into following categories:
Category I - Eye Witness PW NAME Evidence 1 Kaptan Singh Brother of deceased, Seen Incident, proved seizure of Exhibits, failed to identify assailants 18 Sant Ram Saw Sandeep kicking dead body of deceased after the deceased was shot dead Judgment 35 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
Category II - Motive PW NAME Evidence 4 Satya Pal Hostile 7 Hari Om Brother of deceased, Sandeep threatened the deceased 12 Pushp Raj Brother of deceased, Sandeep threatened the deceased Category III - Expert PW NAME Evidence 3 Dr. Upendra Postmortem Ex PW3/A 15 Hans Dass No CDR 9868542773 of @ Sandeep's father (PW37) 26 Naresh Kr. Biology report Ex PW26/A & B 27 VR Aanad Ballistic Report Ex 27/A 29 KC Varshney Ballistic Report Ex 29/A & B Category IV - Police PW NAME Evidence 2 Ct Pawan Reached the spot, seizure from spot, case property 8 Ct Neeraj Transmitted Copy of FIR 9 HC Bala Rani Registered FIR 10 SI Suraj Bhan Crime Team Report 13 HC Ram Niwas Arrest of accused Sandeep 14 ASI Rajbir Reached the spot as PW2 16 HC Surinder Reached at spot as PW2 17 Ct Ravinder Took Tehrir, got registered FIR Judgment 36 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
19 Ins.Prem Singh Disclosure Statement of Tejbeer@ Teji (Haryana) 20 Ins. Jai Prakash Arrest of @Sandeep in 261/06, PS Nangloi 22 HC Yudhvir Deposited exhibits to FSL 23 Ct Harswaroop Filled PCR Form regarding incident 28 SI Dhananjay Arrest of accused Amit @ Babloo 30 Ct Rajvinder Disclosure Statement of Rajesh@ Imran 32 HC Surender Deposited exhibits to FSL 34 HC Rajbir Arrest of accused Rajesh @ Imran under 41.1 Cr.P.C 36 HC Ghanshyam Collected case property from Haryana. 41 Insp. Suresh Disclosure & Pointing out by accused Amit @ Babloo 47 Insp. Kuldeep Pointing out & Disclosure of accused Amit & accused Rajesh 48 Insp. Dalip Kr. Weapon from accused Ravinder Dhaiya 49 Ct Harinder Pointing out, Disclosure of accused Naresh @ Sonu 51 ACP Jasbir Arrest & Disclosure of Amit @ Babloo (PW28) 56 SI Ratan Inspected weapon seized from Manjeet (Haryana) 57 Insp. Ashok Seized weapon from @ Manjeet (Haryana) 58 DCP Cheema Accorded Sanction 39 Arms Act 59 HC Sanjeet Recovered pistol from Surender @ Neetu (Haryana) 62 SI Raghubir Arrest of accused Sandeep in FIR 261/06 as PW20 67 Insp. Surender Dossier of accused Surender @ Nitu 68 SI Dharmvir Disclosure of Rajesh@ Imran, pointing out, pistol recovery 69 Insp. Rishi Dev Went to spot, as PW2, prepared Rukka 70 SI Ramesh Dabas Arrest Sunder@ Surender@Sonu, Naresh , surender @ Nitu, Gurbachan, DS, pointing Judgment 37 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
Category V - Sale Agreement
PW NAME Evidence
5 Krishan Kr Hostile
21 Paramjeet Rai Agreement between him & accused Sandeep (not comp)
24 Hari Om Aare wali land agreement with Jaiprakash
33 Devender Kr Agreement between PW5 & accused Sandeep
35 Satya Dev Agreement between deceased & accused Sandeep
42 Dalip Singh Signed at B, on agreement between deceased & Sandeep
43 Amrit Singh Agreement between deceased & Sandeep at point C, and
Sandeep & Ram Kishan at point C
44 Jai Kuwar Agreement between Hari Om & Kapil Bhardwaj
45 Kapil Purchased land through deceased
46 Bijender Kr. Purchased land through deceased with PW45
55 Anand Singh Agreement between deceased & him (Hostile)
61 Balbir Singh Between PW55 & deceased (Hostile)
Category V - Public
PW NAME PROVED
6 Rishi Pal Photographer of crime scene
11 Jagwinder Hostile, usage of Mobile 9810349136
31 Raj Kumar Dead Body Identification
37 Datar Singh Father of accused Sandeep : Hostile
38 Rohtash Met deceased at Bharat Dharm Kanta on date of incident
39 Ramesh Bharat Dharm Kanta owner met PW1 on date of incident
40 Bhim Singh cycle repair shop, came to know about incident
50 Hem Chander Leave record of PW1 from his office
52 R.K. Khatri Not signed PW21/C; Hostile
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53 RajinderRana Bank Manager, proved ledger account PW1
54 Virender sold stamp paper in deceased & PW5's name
60 Hari Ram Record that PW1 encashed NSC on the date of incident
64 Anil Chawla Theft of Ford Icon car
65 P.C. Bhutani sold stamp paper in Hari Om's name (PW 44)
66 Dr. Vijay Kr. Death of accused Ravinder
83. Eye Witnesses: Now, let us examine the testimony of the witnesses Category I, in order to find out as to whether their testimony is found sufficient enough to bring home the guilt of the accused persons.
84. Prosecution cited only one eye witness in the present case PW1 Kaptan Singh. He testified that he saw four persons firing on a person after which they fled in a Qualis. When he reached at the spot he found that the person who was shot at was his brother Jai Prakash. Although in his complaint Ex PW1/A he stated that he can identify the assailants but he failed to identify the accused persons as assailants who fired upon his brother.
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85. PW18 Sant Ram was although not cited by the prosecution as eye witness of the incident. However, the witness deposed that on the date of incident, he met the deceased Jai Prakash at Dharam Kanta and then the deceased asked him to accompany him to Rohini. Deceased took the key of his car and then along with the deceased went in the said car to the house of deceased on the understanding that the witness would get down at his house to get himself a shave. When they reached at Ishwar Statue at Auchandi Road, the witness got down from the car and after crossing the road was about to enter the shop of a Barber, he heard a noise of bullets. He saw that 5-7 persons were holding the deceased and were firing upon him. He could not gather the courage to save the deceased and went inside the shop of the Barber. On hearing sound of bullets Barber brought down the shutter of the shop and out of curiosity, when the shutter of the shop was opened a bit, he saw that the assailants were firing in the air and leaving in their vehicle. Thereafter, one more vehicle came there from which the accused Sandeep, Ravinder, a person with curly hair and one Judgment 40 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
more person got down and Sandeep gave a blow/Kick from his leg on the person of Jai Prakash who was lying on the road and thereafter he ran away from the spot in his vehicle. Witness however, was unable to identify any of the accused person except the accused Sandeep who kicked the deceased Jai Prakash.
86. From the above stated testimony of PW18 it becomes evident that he claims to have seen the assailants firing on the deceased and he also saw the accused Sandeep coming at the spot and kicking the deceased.
87. During the course of his cross-examination, the witness deposed that as per his remembrance, his statement was recorded by the police after one month of the incident and police did not make any inquiry from him on the day of incident. However, on the day of incident, he was taken to the PS by the police from the hospital and was retained there for about 3-4 days by the police.
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88. PW18 claims to be the owner of the Maruti Car which the deceased was driving while he was shot at. But the witness could not give any details when he purchased the Car nor could produce any receipt of insurance premium paid by him towards the insurance. He also failed to produce any document to prove that the said Car belonged to him nor did he apply for the supardari of the car during the pendency of the case.
89. PW71 Subhash Tandon, IO, deposed that as per the investigations, the Car in which the deceased was murdered belonged to PW18 Sant Ram. Sant Ram met him in the month of June, 2006 and he recorded his statement. Sant Ram could not produce the documents to show that the car was owned by him. From Transport Authority he came to know that the car was registered in the name of Vinod Bansal.
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90. Statement of one Vinod Bansal (recorded by the IO u/s 161 Cr.P.C) is admitted by the accused persons as Ex C-9. In this statement, Vinod Bansal says that Maruti Car DBG 5487 was registered in his name and he sold it to one Rajesh Sharma. He handed over the delivery receipt & copy of RC to the IO. However, there is no further investigations to find out the trail of the car to establish that it was possessed by Sant Ram on the incident as claimed by the witness.
91. As to the presence of Sant Ram at the spot, the IO deposed that when he asked Sant Ram as to whether he was present at the time of incident, he stated that he was present at the Bharat Dharam Kanta and he came to know about the incident later on.
92. From the testimony of the IO as well as PW18 Sant Ram it becomes evident that the prosecution has not been able to prove that the seized car Ex. P-1 was actually was owned or possessed by PW18 Sant Ram. Investigating agency even did not Judgment 43 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
place on record the RC of the said car nor made any effort to find out the possession or ownership of the said car so as to prove the ownership of the car in which the deceased was traveling while he was shot at. Therefore, the very claim to PW18 Sant Ram that on the date of incident, he handed over this car to deceased is under cloud and is not proved on record.
93. As far as the presence of PW18 Sant Ram at the shop of the Barber and his version that he saw the assailants firing and later on accused Sandeep kicking the deceased is concerned, the same is difficult to be believe as none of the other witness examined by the prosecution have testified about the presence of PW18 Sant Ram at the spot. PW1 Kaptan Singh who witnessed the entire incident also does not mention that PW18 Sant Ram met him at the spot. If at all, Sant Ram who claims to be good friend of the deceased saw the entire incident the natural course for him after the assailants left the spot was at once to leave the shop of the barber and reach at the spot where the dead body was lying. In that case, Judgment 44 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
he would be the first person to meet Kaptan Singh (brother of the deceased) and tell him that he saw accused Sandeep kicking the dead body of the deceased. But nothing came in testimony to Sant Ram to suggest that he met Kaptan Singh at the place of occurrence. Neither Kaptan Singh deposed about presence of Sant Ram at the place of occurrence.
94. More so, as per the IO, Sant Ram met him in the month of June 2006 and at that time he was inquired by the IO in respect of the present case. Had PW18 Sant Ram seen the incident, his conduct ought to have been explained that why despite having good friendship with the deceased he made no effort to lodge any complaint against the accused Sandeep after seeing him at the spot.
95. PW69 Inspector Rishi Dev who carried the proceedings at the spot on the date of incident categorically deposed that PW18 remained the spot with him till 2:45 pm, He recorded the Judgment 45 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
statement of PW18 Sant Ram on the date of incident wherein PW18 stated that he reached at the spot after hearing the news of the incident and at the time of incident he was present at a Dharm Kanta. Similar is the version of IO PW71 Subash Tandon who also deposed that during investigations Sant Ram informed him that he was at Dharm Kanta at the time of incident. Thus, the version of PW18 Sant Ram that he himself saw the accused Sandeep at the spot kicking the deceased is not worthy of any credit and cannot be believed in the light of prosecution story.
96. The fact remains that both these witnesses did not identify the accused persons as the assailants who fired upon the deceased Jai Prakash.
97. Conspiracy to murder Jai Prakash: Hon'ble Apex Court in the decision reported as Kehar Singh v. State (Delhi Administration) AIR 1988 SC 1883 has held that:-
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"The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough.......It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved nor is it necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient......"
98. Thus, it is clear that the proof of offence of conspiracy would require, in most cases, some kind of physical manifestation of agreement. The physical manifestations may not be proved by overt acts but may be evidenced by conscious acts or conduct of parties and reasonably clear to mark their concurrence. Where evidence is clear, offence of conspiracy may be proved by necessary implications. Innocuous, innocent or inadvertent acts and events should not enter the judicial verdict. Since more often than not, conspiracy would be proved on circumstantial evidence.
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99. The prosecution in order to prove the conspiracy between the accused persons has relied upon the following circumstances:
a. Contract killing b. Call Details c. Recovery of Weapons
100. Contract Killing: Accused Amit @ Babloo, Gurbachan (since expired), Sunder @ Surender, Surender @ Nitu (proclaimed offender), Naresh and Rajesh @ Imran are facing allegations that they were hired by accused Sandeep to murder Jai Prakash.
101. As per the prosecution story, Sandeep approached native of his village Ravinder @ Dhila (expired, before filing of the charge-sheet) for purchasing a weapon and for murdering Jai Prakash. In this regard in the evening of 8-9th February, 2006, Judgment 48 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
Ravinder arranged a meeting between Sandeep and Nitu, Bobby & Dhaiya. They demanded Rs. 10 lacs from accused Sandeep for murdering Jai Prakash. On 21.02.2006, Ravinder informed Sandeep that the weapon has been arranged and asked for the delivery of the contract amount. Sandeep handed over Rs. 2 lacs to them. On 22.02.2006, Amit @ Babloo along with Karambir @ Sonu were passing on the information about the movements of Jai Prakash on mobile phone nos. 9810349136, 986842773, 9812309107 and 9812120210 based on those information passed by Amit @Babloo and Karmabir @ Sonu, they killed Jai Prakash. Amit @ Babloo did not come on the front as he was known in the vicinity, so he operated from behind the curtains. Monu was driving the Ford Ikon and Gurbachan @ Boby, Surender @ Neetu and Ravinder Dhaiya fired on the deceased by the weapons they were carrying. The cell ID of mobile phones used in commission of offence matched with the place of occurrence. On 25.02.2006, accused Sandeep paid another installment of Rs. 2 lac to accused Gurbachan @ Bobby and Surender @ Nitu.
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102. Prosecution did not examine any witness to establish the dealing between the accused Sandeep and the other accused persons nor there is any evidence to the effect that Sandeep paid any money to the other accused persons. Although, in the disclosure statement of the accused Sandeep, the name of one Satte from whom the accused brought the amount of Rs. 2 lacs is mentioned but nothing was recovered from the accused persons to substantiate the allegations.
103. PW4 Satpal @ Satte although has been examined by the prosecution to prove that he gave money to accused Sandeep prior and after the murder but he did not support the case of the prosecution at all. He denied to have given any money to the accused and further denied to have identified the accused Surender @ Nitu to be the person to whom the money was given by the accused Sandeep.
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104. In view of the fact that PW4 Satpal @ Satte turned hostile to the case of the prosecution and no other witness has been cited by the prosecution to prove the money transactions between the accused Sandeep and other accused persons, the allegation that any money was exchanged between the accused persons as the contractual amount for killing the deceased stands not proved.
105. Call Details: Prosecution examined PW 15 Hans Dass, Nodal Officer of MTNL, as a witness to prove the CDR and location of mobile number 9868542773 in the name of PW37 Dattar Singh (father of accused Sandeep) for the period 15.01.2006 to 25.02.2006 but as per his report Ex. PW15/A the record could not be produced.
106. As per the prosecution version, mobile number 9810349136 was with the accused at the time of incident. In order to prove this fact, the prosecution examined PW11 Jagvinder who was owning the mobile number 9810349136. PW63 R. K. Singh, Judgment 51 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
Nodal Officer from Bharti Airtel Ltd. proved the call detail record of this mobile number from the period 15.02.2006 to 25.02.2006 as per Ex. PW63/A. The witness also proved that the said number was issued in the name of PW11 Joginder as per the documents Ex. PW63/B to D.
107. CDR of mobile no. 9810349136 reflects that number of calls were made from this number to the number 9868542773 at and around the time of incident, however, PW11 denied to have given his mobile number to accused Sandeep on the date of incident. PW11 is hostile to the case of prosecution and during his cross-examination by the Ld. Defene Counsel, PW11 testified that the used to talk to father of accused Sandeep on mobile number 9868542773.
108. Testimony of PW11 Joginder dents the case of prosecution that the mobile number 9810349136 was in use and occupation of accused Sandeep on the date of incident. Prosecution Judgment 52 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
has also not been able to prove the CDR and ownership of mobile number 9868542773 and thus, the prosecution fails to establish that the accused Sandeep was in continuous contact with the other accused persons through the mobile number 9810349136.
109. No telephonic conversation has been proved between accused Sandeep and the other accused persons nor between one set of accused with the other accused persons who were allegedly at the spot. Thus, I find that the call detail record as relied upon by the prosecution in order to establish the conspiracy of accused persons to commit the crime stands not proved.
110. Recovery of Weapons: Prosecution has heavily relied upon the recovery of weapons from the possession of one Ravinder Dhaiya, Manjeet, accused Surender @ Neetu and accused Rajesh @ Imran to connect the accused persons with the murder of deceased Jai Prakash.
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111. Recovery of a 9 mm pistol with 2 magazines and 5 live cartridges and a country made pistol with two live cartridges were stated to be recovered at the instance of accused Surender @ Nitu. FSL Report in respect of these two weapons and cartridges has been proved on record as Ex. PW29/A and as per this report the cartridges and the weapons are fire arm/ ammunition as defined in the Arms Act, 1959 beyond this the FSL Report does not say anything as to whether these weapons were used in firing on the deceased. Nonetheless there is no other evidence on record to suggest that these weapons were used in the crime. Thus, this recovery does not help the cause of prosecution to prove its case against the remaining accused persons.
112. Recovery of one country made pistol of .315 bore is made at the instance of accused Rajesh @ Imran. FSL Report in respect of this pistol is proved on record as Ex. PW29/B and as per this report the pistol is a Firearm/ Ammunition as defined in the Arms Act, 1959 beyond this the FSL Report does not say anything Judgment 54 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
as to whether this pistol was used in firing on the deceased. Nonetheless there is no other evidence on record to suggest that this pistol was used in the crime. Thus, this recovery also does not help the cause of prosecution to prove its case.
113. Another pistol Ex. PW48/Article-1 of .32 bore was recovered by PW48 Inspector Dalip Kumar in case FIR No. 762/06 registered at PS Malviya Nagar from accused Ravinder Dhaiya(not arrested in this case). FSL report in respect of this pistol has been proved on record as Ex. PW27/B. It has been submitted that as per the FSL Report is Ex. PW27/B, the Nine 7.65 mm cartridge cases exhibits EC1 to EC9 were compared and examined with the test fired cartridge cases from the pistol and on comparison, it was found that the exhibit EC1 to EC9 were fired through the pistol 7.65 mm/ .32 caliber in case FIR No. 762/06, PS Malviya Nagar. Prosecution contends that since it has been proved by the FSL Report that the pistol recovered from accused Ravinder Dhaiya was used for murdering the deceased, hence, the case of prosecution Judgment 55 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
stands proved not only against accused Ravinder but also the other accused persons who were in conspiracy with each other to murder deceased.
114. In my considered opinion, arguments advanced by the prosecution does not meet the requirements of its case for two reasons. The first is that the prosecution is unable to prove that the recovery was effected from Ravinder Dhaiya as no witness of recovery of the weapon from Ravinder has been examined by the prosecution. Another reason which fails the arguments is that no link has been established by the prosecution between accused Ravinder Dhaiya and other accused persons. Even assuming for the sake of the arguments that weapon was recovered from him, even then, it does not connect the other accused persons with the pistol specially when no other accused facing trial in the present case was an accused in case FIR No.762/06 PS Malviya Nagar in which the recovery was effected.
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115. Thus, in the light of the discussions made above it is evident that the prosecution has not been able to prove the alleged contract between the accused persons to eliminate the deceased nor the call detail records prove the conspiracy. Recovery of weapons also does not throw any light on the aspect of the role of the accused persons in commission of crime.
116. In State (NCT of Delhi) v. Navjot Sandhu AIR 2005 SC 3820 it is held that 'few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy'.
117. In the instant case as well, there is no evidence to show that there was any association, much less meeting of minds, between the accused persons. Prosecution has been unable to prove any of the above noted circumstances to prove the conspiracy. Thus, prosecution has not been able to establish that a conspiracy was entered into by the accused persons to murder the deceased.
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118. Motive: Prosecution has relied upon the testimony of Category II & V witnesses in order to prove the motive of murder.
119. PW7 Hari Om, brother of the deceased, testified that a transaction with respect to the sale of plot situated at Bawana was entered into between his brother Jai Prakash and Anand through accused Sandeep. PW55 Anand did not pay the agreed amount and deceased told Anand that he would repay the token amount to Anand. Upon this, a panchayat took place about 20-22 days prior to the murder of the deceased comprising of accused Sandeep, Anand and Jai Prakash during which deceased refused to sell the plot to Anand. He deposed that during the conversation accused Sandeep threatened Jai Prakash that either Jai Prakash should extend time to pay the money or he would get Jai Prakash murdered.
120. Similarly, PW12 Pushpraj brother of the deceased testified that the deceased agreed to sell Ara Machine land to Judgment 58 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
accused Sandeep & Anand for which his brother received Rs. 15 lacs. Sandeep & Anand were unable to pay the remaining amount for which the deceased extended the time to make the payment but even on extended dates they were unable to make the payments. Later on, Sandeep and Anand made an agreement to sell the land for Rs. 90 lacs for which the deceased refused to execute the sale deed. A panchayat was called on this issue and in the said panchayat accused Sandeep abused deceased and called him dishonest and threatened him. He stated that the accused even did not attend the last rites of deceased despite being his nephew.
121. The fact that the accused Sandeep was transacting with the deceased in respect of the Ara wali land stands proved on record not only by the above two witnesses but also PW55 Anand who testified that after the deal was canceled between him and deceased, the deceased returned the amount of earnest money to him through accused. However, this witness denied to have participated in any panchayat where the accused Sandeep allegedly Judgment 59 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
threatened the deceased. PW55 rather deposed that there was no dispute between deceased and accused Sandeep and they always had cordial relations with each other.
122. Similarly, PW61 Balbir Singh testified as to the factum of sale transaction between deceased and PW55 Anand through deceased, however, this witness denied to have stated to the police that in panchayat an altercation took place between accused Sandeep and Jai Prakash where the accused threatened the deceased with dire consequences. During his cross-examination he testified that the accused Sandeep was having cordial relationship with the deceased and he never saw any adversity or dispute between them.
123. In the light of the testimony of PW55 and PW61, the allegation that the accused Sandeep threatened the deceased to murder him comes under cloud specially in view of the fact that both of them deposed that the relationship between the deceased and the accused Sandeep was cordial.
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124. Even otherwise, even if for the sake of arguments, it is assumed that the accused Sandeep had differences with the deceased in relation to a sale agreement of a land, even then, there is no concrete evidence against the accused Sandeep to connect him with the murder of deceased.
125. It is held by Hon'ble Apex Court in Raj Kumar Singh v. State of Rajasthan, (2013) 5 SCC 722 :
Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved and "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large and divides vague conjectures from sure conclusions.
126. In the present case as well the accused Sandeep can not be held guilty merely on the basis of the testimony that in a panchayat held between him & deceased Jai Prakash he threatened Judgment 61 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
the deceased to kill him. More so, when except for the brothers & friend of the deceased, the other prosecution witnesses have not supported the prosecution version as to motive to kill.
127. Thus, the inevitable conclusion of foregoing discussion is that the prosecution has not been able to establish the guilt of accused persons in murdering the accused. Accordingly, they are entitled to be acquitted for the offence punishable U/s 302/120B IPC.
128. Charge under Arms Act : Accused Sunder, Naresh, Rajesh @ Imran, Surender @ Nitu and Gurbachan are also facing trial for the offences punishable under Arms Act.
129. As noted earlier, accused Gurbachan has already got expired and case against him stand abated vide orders dated 10.09.2012 and accused Surender @ Nitu is a proclaimed offender.
Judgment 62 of 66
SC No: 242/13 State Vs. Sandeep & Ors.
130. Allegations against accused Naresh and accused Sunder @ Surender are that they have used .315 mm country made pistol on 22.02.2006 while committing the murder of accused Jai Prakash.
131. It is in the charge itself against accused Sunder @ Surender that he after using .315 mm country made pistol, he gave it to accused Surender @ Nitu which was recovered at his instance on 06.07.2006. Thus, it is evident that the recovery of said pistol has not been effected from accused Sunder @ Surender nor there is any evidence on record to establish that the said pistol was used while firing upon deceased Jai Prakash. Therefore, the charge against the accused Sunder @ Surender under Section 27 Arms Act cannot be sustained.
132. It is also mentioned in the charge framed against accused Naresh that after using .315 mm country made pistol, he gave it to accused Surender @ Nitu and he further gave it to one Judgment 63 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
Mintoo on whose instance the pistol was recovered. It is evident that the recovery of said pistol has not been effected from accused Naresh nor there is any evidence on record to establish that the said pistol was used in firing upon deceased Jai Prakash. Therefore, the charge against accused Naresh under Section 27 Arms Act cannot be sustained.
133. Accused Rajesh @ Imran has been charged for using a country made pistol .315 bore (Ex. PW68/ Article 1) which he used for commission of murder of deceased and later on, he got it recovered on 23.11.2006. As per the deposition of PW68 SI Dharmvir, recovery of pistol was effected at the instance of Rajesh @ Imran from a road leading towards Barwala to Pooth Khurd. Accused led the police party to Shivam Traders, main Bawana Road and pointed out towards a Neem tree situated 50-60 yards towards Barwala. At a distance of 3-4 yards from the said tree, earth was dug, upon which one polythene was found containing the pistol and one cartridge which was seized vide memo Ex. PW68/C. Judgment 64 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
134. Testimony of PW68 would show that the recovery of the said pistol has been made from a open space accessible to all. Police despite knowing the fact that the accused was leading them to get a weapon recovered made no effort to join the public person while effecting the recovery. In these facts, the recovery of pistol at instance of accused Rajesh @ Imran comes under cloud. Nonetheless, there is no evidence on record to establish that the pistol Ex. PW68/Article 1 was used by accused Rajesh @ Imran in commission of the crime. Thus, the charge against the accused Rajesh @ Imran under Section 25/27 Arms Act stands not proved.
135. Conclusion: in the light of aforesaid discussions, it is held that the prosecution has been unable to prove its case against the accused persons for the offences they are charged with. Accordingly, all the accused persons facing trial are acquitted. All Judgment 65 of 66 SC No: 242/13 State Vs. Sandeep & Ors.
the accused persons are directed to furnish personal bonds in sum of Rs. 10,000/- with surety in like amount each under provisions of Section 437-A Cr.P.C.
File be consigned to record room till accused Surender @ Nitu is apprehended.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
04.09.2015
Judgment 66 of 66