Delhi District Court
State vs . : 1) Mohd. Imran on 8 December, 2017
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT, ROHINI
COURTS: DELHI
Sessions Case No: 388/17
FIR No. : 141/17
U/s : 302/34 IPC & 25 Arms Act
P.S. : Adarsh Nagar
State Vs. : 1) Mohd. Imran
S/o Sh. Mohammad Arif
R/o C-113, Jahangir Puri, Delhi
Delhi.
2) Rohit
S/o Sh. Mangal Singh
R/o D-222, Village Bhadola,
Delhi.
3) Devender @ Lalu
S/o Sh. Chhote Lal
R/o B-15, Rama Road, Mool
chand colony, Adarsh Nagar,
Delhi.
Offence complained of : 302/120B/34 IPC 25/27 Arms Act
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of committal : 10.07.2017
Date of Judgment : 08.12.2017
JUDGMENT
1. Neeraj On 01.04.2017 at about 8:20 pm an information was received that on Nanda Road near transformer, Bank of India ATM a dead body is lying and State Vs. Mohd. Imran etc. SC No.388/17 :: 1 ::
perhaps shocked. On this information DD No.35A was recorded and Inspector Shishpal was asked to carry out the necessary proceedings who left for the scene of crime along with Ct. Sunil. There they found a male dead body lying. The body was identified by Ravi as of his brother. Statement of Ravi was recorded who told that at about 5:00 pm Rohit S/o Sh. Mangal Singh and Devender @ Lalu along with two more boys came to their house and ask about Vijay. He called Vijay from inside. All the four boys talked with Vijay and thereafter, they all went away. After 2-3 hours the body of Vijay was found in the DDA Park, Moolchand Colony and he suspected that all the four boys committed murder of Vijay. Statement of one more person Pawan was recorded who stated that on 01.04.2017 he had gone towards DDA Park Moolchand Colony and at about 6:30 pm when he reached the park. He saw Imran, Rohit, Shankar, Devender @ Lalu and Vijay eating chowmin. This witness also to take chowmin and he also took chowmin with them and thereafter he left the park at about 7 pm leaving all five of them in the park. Statement of one Omkar Singh was recorded who told that on 01.04.2017 he on scooty No: DL 8S BZ 3739 was going to Jahangir Puri to the house of his uncle Vijay Singh. At about 8 or 7:30 pm when he reached near the park of Moolchand Colony Devender @ Lalu, Imran, Rohit and Hari State Vs. Mohd. Imran etc. SC No.388/17 :: 2 ::
Shanker whom he was already knowing came running from the car and got his scooty stopped. Imran and Rohit asked him to drop them at Burari side but he refused and asked what is the hurry. Thereafter, all four started threatening him but he refused that he will not drop them. On which they said that they have just murdered Vijay and they would also kill him. Against his wishes Imran, Devender @ Lalu and Rohit sat on his scooty and Hari Shanker fled away on foot. He drove the scooty and at some distance Rohit also got down from the scooty. Devender @ Lalu and Imran took him upto Burari and he dropped them at Petrol pump. All the accused were got arrested. TIP was got conducted but they refused to join TIP. The witnesses identified them during PC remand. During P/C remand Mohd. Imran got recovered one pistol used as weapon in the commission of offence by Devender @ Lalu. Exhibits were sent to FSL for analysis. Hari Shanker was found to be CCL and his charge sheet was filed before Juvenile Justice Board. Charge sheet against remaining accused persons were filed before Ld. MM. who after complying with the provisions of section 207 Cr.PC committed the case to the Sessions Court as the offence punishable u/s 302 IPC is exclusively triable by the Sessions Court.
2. All the accused were charged for the offence State Vs. Mohd. Imran etc. SC No.388/17 :: 3 ::
punishable u/s 302 r/w 34 IPC. Accused Md. Imran was also charged for the offence punishable u/s 25 Arms Act. The accused persons pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
3. Ravi was examined as PW-1. He deposed that on 01.04.2017 at about 5:00 pm. He along with his uncle Suresh was standing outside their meat shop. There is a distance of about 20 to 30 ft in his house and the shopt and his house is visible from the meat shop. At that time Rohit and Devender @ Lalu and two more persons came to the place and Rohit asked him about his brother Vijay. He told him that Vijay is at home. Rohit requested him to call his brother vijay from the house. He went to his house and his brother accompanied him to the meat shop where Rohit, Devender @ Lalu and two more boys were standing. Rohit, Devender @ Lalu and other two boys and his brother left the meat shop and went ahead and started talking. After about 5 minutes all those 4 persons along with Vijay. On the same day at about 8:00/ 8:30 pm some police officials reached at his house where they asked him about his brother Vijay. Those police officials shown him the photograph of his brother in the mobile phone and he identified the photograph. He reached at DDA Park, Moolchand colony where his brother Vijay was lying dead. He identified dead body of his brother Vijay. He proved his State Vs. Mohd. Imran etc. SC No.388/17 :: 4 ::
statement as Ex.PW1/A. The dead body was removed to the hospital. The witness pointed out towards Rohit and Devender and also correctly identified accused Imran. He also received the dead body after the post mortem.
4. During cross-examination he stated that he is running a meat shop in Badola village along with his maternal uncle Suresh. They used to remain on the shop upto 11 pm and thereafter go home. His statement was recorded only once i.e. on 02.04.2017. He told in his statement that Rohit, Devender @ Lalu and two other persons came outside his meat shop and that Vijay also came to the meat shop. He was confronted with his statement where it was not so recorded. He was also confronted with his statement where it was not found mentioned that on the same day at about 8:00/8:30 pm some police official reached his house and asked about his brother Vijay and they have shown him the photograph of his brother in the mobile phone, on that he identified the photograph as of his brother Vijay. He was also confronted with his statement where it was not found mentioned that he reached DDA Park, Moolchand colony on the motorcycle where dead body of his brother was lying. He was not having any mobile phone during the relevant time but presently he is having mobile phone No. 7834819645 which he has purchased 3-4 months back. His brother Vijay State Vs. Mohd. Imran etc. SC No.388/17 :: 5 ::
was not having any mobile phone with him. His uncle Suresh was having a mobile phone during the relevant time. His brother was neither studying nor working. His brother used to return back at about 10 pm normally whenever he used to go out with his friends. He had not told his mother or any of his family members that Vijay had gone with Devender and Rohit, but after the death of Vijay he informed them. He told the police that Devender, Rohit and two other boys had taken his brother Vijay on their bikes along with them. He cannot tell the registration numbers, make and colour of those bikes. Just adjacent to their shop there is an ATM of bank. He denied the suggestion that none of the accused had come to his meat shop to call his brother Vijay on 01.04.2017 or that he had not seen his brother Vijay in the company of accused persons or leaving along with Vijay. He denied that after coming to know about death of his brother he concocted a story.
5. Onkar Singh was examined as PW-2. He stated that on 01.04.2017 at 5:00/5:30 pm he was going to his house on rickshaw from Chhatersal statdium after playing Kushti. He reached his home. His mother was not at home as she had gone to Raibaraely UP. At about 5:45/6:00 pm he left his house on scooty No. DL 8S BZ 3739 for going to the house of his uncle Vijay Singh residing in Jahangir Puri Delhi. When State Vs. Mohd. Imran etc. SC No.388/17 :: 6 ::
he reached at Moolchand colony near park, he saw Vijay and 4-5 boys standing near the park at Moolchand colony. He reached at the house of his uncle Vijay and took food. While he was at the house of his uncle, he received call of his father who called him to his house. He reached his house on the scooty. His father gave him fast food and he ate the same. Thereafter, he along with his father and friend of father left for Haridwar in scorpio and at about 6:00 /7:00 am on
02.04.2017 they reached Haridwar. At Haridwar his father received a telephone call from our neighbour who informed that their scooty has been taken away by the police. On 02.04.2017 they returned to Delhi at about 6:00/7:00 pm. They reached PS: Adarsh Nagar. Police made inquiries from him and he narrated the above said facts. After 4-5 days scooty was released to them. The witness was cross- examined by Ld. Addl. PP. but he did not support the prosecution case at all. He was confronted with his statement Ex.PW2/A but still he did not say anything supporting prosecution case. Testimony of this witness has gone unchallenged and uncontroverted.
6. Suresh Kumar was examined as PW-3. He stated that on 01.04.2017 at about 5:00 pm he along with his nephew Ravi were standing in front of their meat shop situated about 10 steps away from his house. Devender @ Lalu and Rohit State Vs. Mohd. Imran etc. SC No.388/17 :: 7 ::
along with two other boys came to their gali. They requested his nephew Ravi to call Vijay. Ravi went to his house and came back with Vijay. Devender @ Lalu, Rohit and the other two boys along with Vijay went away talking with each other. Devender @ Lalu, Rohit and Imran are identified by him as the persons who along with one more boy came and went away along with Vijay. After about 2-3 hours police officials came to the house of Ravi who called this witness also. Police official had shown the photograph of one person in the mobile phone. He along with Ravi identified him as Vijay. They also informed the police that Vijay had accompanied with the above named persons at about 5:00 pm. Ravi accompanied the police and went to DDA Park Moolchand colony where dead body of his nephew Vijay was lying. Ravi identified dead body of Vijay. Ravi informed him that Vijay had been killed. Witness stated that he was knowing Rohit and Devender @ Lalu prior to the incident.
7. During cross-examination he stated that brother of Ravi namely Rakesh and Bunty also used to sit with him at the meat shop. Usually they opened their meat shop in the morning at 10 am and closed at 10 pm. Police recorded his statement only once. He was confronted with his statement where it was not mentioned that he along with Ravi was standing in front of his meat shop or that Ravi went to his State Vs. Mohd. Imran etc. SC No.388/17 :: 8 ::
house and came back along with Vijay or that the police had shown him the photograph of his nephew Vijay in the mobile phone or that he on seeing the photo identified the photo as of Vijay. At that time he was having mobile phone No.9891052307. He does not know if Ravi and Vijay were having mobile phone. He does not know if Vijay was working or studying. He does not know at what time Vijay used to leave home and return. He does not know who other family members were present at home when Vijay left on 01.04.2017 at about 5:00 pm. He had not seen by what means the accused persons reached the house on 01.04.2017. He had seen the accused persons along with Vijay leaving on foot. He does not know by what mode of transport they went away. He did not ask Vijay as to where he was going with the accused persons. He along with Ravi remained on their shop upto 8 pm. Thereafter, they went to the place where dead body of Vijay was lying. He along with Ravi reached DDA park on foot. They informed their family members with regard to death of Vijay and all of their family members and about 50 villagers accompanied them to the place where the dead body of Vijay was lying. He denied the suggestion that none of the accused has come to their meat shop to call Vijay on 01.04.2017 or that he had not seen Vijay in the company of accused persons or leaving Vijay State Vs. Mohd. Imran etc. SC No.388/17 :: 9 ::
along with the accused persons.
8. Ajay was examined as PW-4. He deposed that on 01.04.2017 he along with his relatives went to DDA Park, near Nanda road where the dead body of his younger brother Vijay was lying. He identified the dead body vide statement Ex.PW4/A.
9. During cross-examination he denied the suggestion that he did not visit the place where the dead body of Vijay was lying.
10. Pawan was examined as PW-5. He deposed that on 01.04.2017 at about 5:30 or 6;00 pm he was passing near the DDA Park, Moolchand Colony where he saw Vijay standing with 4-5 strongly built boys. Those boys were speaking in Haryanavi Language. Vijay was eating chowmin.
Vijay asked him as to why he is not coming to ground for playing cricket with him. I told Vijay that he does not like to play cricket. Thereafter, he left for his house. He stated that he can identify those 4-5 boys with whom he had seen Vijay standing there and after taking a look in the court he stated that those 4-5 boys are not present in the court. He was cross-examined by Ld. Addl. PP but he denied the suggestion that he had seen accused Imran, Rohit, Devender @ Lalu and Shankar with Vijay who were eating chowmin. Or that Lalu offered him chowmin. He was also State Vs. Mohd. Imran etc. SC No.388/17 :: 10 ::
confronted with his statement Ex.PW5/A. But nothing material came on record supporting the prosecution case.
11. Ajay Singh was examined as PW-6. He is the registered owner of scooty having registration No: DL 8S BZ 3739 which he got released on superdari vide superdginama Ex.PW6/A. The panchnama is Ex.PW6/B. At the time of release of scooty the four photographs were taken the same are Ex.PW6/C1 to C4. He identified the scooty in the photographs as Ex.PW6/Article-1.
12. Defence has also no objection if the scooty is proved only in the photographs. The testimony of this witness has gone unchallenged and uncontroverted.
13. Inspector Manohar Lal was examined as PW-7. He prepared the scaled plan of the scene of crime at the instance of the IO and proved the scaled plan as Ex.PW7/A.
14. During cross-examination he stated that he reached the spot at about 2:30 or 3:00 pm. No public person was present at that time at that place. No hawker of chowmin was present at the spot at that time.
15. Sh. Manoj Kumar Gupta was examined as PW-8. He deposed that he is running a studio by the name of Gupta colour lab in Azad pur commercial complex GTK road. On 26.05.2017 he received CD Ex.PW8/A from Inspector Shishpal of PS: Azad Pur and he developed 42 photographs. State Vs. Mohd. Imran etc. SC No.388/17 :: 11 ::
The same are Ex.PW8/B1 to Ex.PW8/B42. The certificate u/s 65B is Ex.PW8/C.
16. During cross-examination he admitted that Exhibit PW8/C is not in his handwriting. He denied the suggestion that he did not take the print out of the photographs.
17. Vinay Kumar was examined as PW-9. He stated that on 01.04.2017 at about 8:00 8:15 pm he was going to his house via Moolchand colony. When he reached DDA park he saw many public persons gathered there. He went there and saw a dead body lying in pool of blood. It seem that he had been shot. He made a call at 100 number from his mobile No.8459152386.
18. During cross examination he stated that he remained on the spot for about 10 minutes. More than 100 persons had gathered on the spot. No person present there told him anything as to whether the person lying dead is related to any one of them. He had not seen any rehriwala selling chowmin near the DDA park.
19. Dheera was examined as PW-10. He stated that he is using mobile phone No.7982254281. Accused Mohd. Imran and Devender @ Lalu are his friends and they used to play cricket with him. Both of them used to make call on his mobile phone and he also used to make call to them. The mobile phone numbers of Md. Imran and Devender @ Lalu State Vs. Mohd. Imran etc. SC No.388/17 :: 12 ::
were saved in his mobile contact list. Sometime the father of Devender used to pick the call and sometime Devender used to pick the call. Similarly the father of Md. Imran used to pick the call whenever he dialed his number. He identified both the accused persons. He was cross-examined by the Ld. Addl. PP for putting a leading question wherein he admitted that mobile phone number of Md. Imran was 9582956634 and of Devender @ Lalu was 8586891251.
20. During cross-examination by the Ld. Defence counsel he stated that police recorded his statement only once i.e. on 01/02.06.2017. Last time he made call on the mobile phone of Devender @ Lalu and Md. Imran was on Saturday at about 6:00/7:00 pm. He denied the suggestion that only mother of Devener @ Lalu used to pickup the call on the mobile. He stated that sometime Devender also used to pick the call. He admitted that Devnder @ Lalu and Md. Imran had never brought their mobile phones with them when they used to meet him.
21. Bijender Kumar was examined as PW-11. He deposed that on 03.04.2017 he along with relatives of Vijay went to BJRM mortuary where he identified the dead body of Vijay.
The testimony of this witness has gone unchallenged and uncontroverted.
22. Sh. Suarabh Pathak, Junior Forensic Chemical State Vs. Mohd. Imran etc. SC No.388/17 :: 13 ::
examiner was examined as PW-12. He conducted the biological examination on the exhibits and also did the DNA profiling test. He proved his report as ExPW12/A.
23. Sh. Israr Babu, Alternate Nodal Officer Vodafone was examined as PW-13. He brought the record of the mobile phones No:9582956634 and 8586891251. As per the record mobile phone number 9582956634 is registered in the name of Md. Arif S/o Sh. Buniyad Ali R/o H.No.113, C-block near Kushal Cinema, Jahangir Puri, Delhi. The copy of the customer application form is proved as Ex.PW13/A. The copy of Aadhar card in the name of Md. Aarif annexed with the customer application form is Ex.PW13/B. The call detail record of the mobile phone number from 15.03.2017 to 01.04.2017 running into 9 pages is proved as Ex.PW13/C. The certificate u/s 65B of Indian Evidence Act is proved as Ex.PW13/D.
24. As per the record the mobile phone number 8586891251 is registered in the name of Asha Devi w/o Sh. Chhotey Lal resident of H.NoB-15, Moolchand colony Adarsh Nagar, Delhi-110033. The copy of the customer application form is Ex.PW13/E. The copy of the election I-Card annexed with the customer application form is proved as Ex.PW13/F. The call detail record of the above said mobile number from 15.03.2017 to 01.04.2017 running into 6 pages is proved as State Vs. Mohd. Imran etc. SC No.388/17 :: 14 ::
Ex.PW13/G. The certificate u/s 65B of Indian Evidence Act is proved as Ex.PW13/H. The desired documents were supplied to the police of North West district vide letter dt.20.05.2017 Ex.PW13/I. The cell ID chart is proved as Ex.PW13/J.
25. SI Parveen Kumar was examined as PW-14. He deposed that on 01.04.2017 he was posted in mobile crime team as Incharge. On that day on receipt of call from control room he along with HC Sandeep photographer, HC Anil and other staff reached DDA park, Nanda road, Moolchand Colony near electricity pole No.415-15/4, 415-15/40.
Inspector Shish Pal and other staff of PS: Adarsh Nagar met them there. He found one dead body of male lying at the spot. Photographer took the photographs. He inspected the scene of crime and gave his report Ex.PW14/A. They remained on the spot from 9:20 pm to 10:00 pm.
26. During cross-examination he stated that 30 to 40 public persons were present near the scene of crime when they reached there. In his presence no female or any family member of deceased claiming that the deceased Vijay is their relative came there. There was one shop outside the park.
27. HC Sandeep was examined as PW-15. He was the member of the crime team which visited the scene of crime State Vs. Mohd. Imran etc. SC No.388/17 :: 15 ::
and he took the photographs of the scene of crime from different angles with digital camera. He got prepared the CD from the memory card of the digital camera and handed over the same to Ct. Suresh of PS: Adarsh Nagar for presenting the same to the IO. The CD is already ExPW8/A. The 42 photographs clicked by him are already Ex.PW8/B1 to B42. They remained on the spot from 9:20 pm to 10:00 pm.
28. During cross-examination he stated that in his presence no person came forward claiming that deceased is their family member.
29. Ct. Rakesh was examined as PW-16. He deposed that on 01.06.2017 on the direction of the IO he received two sealed envelopes from the MHC(M) having seal of "SP FSL Delhi" for depositing the same in FSL vide RC No.74/21/17. He deposited the envelopes in FSL and obtained the acknowledgement of FSL and also copy of road certificate. He came back and handed over the acknowledgement and the copy of RC to the MHC(M). During the period exhibits remained in his possession nobody tampered with the same. Nothing material came on record during his cross- examination by the defence.
30. HC Muni Lal was examined as PW-17. He was working as MHC(M). During the relevant period in PS:Adarsh Nagar. He proved the entries in register No.19 as ExPW17/A State Vs. Mohd. Imran etc. SC No.388/17 :: 16 ::
to Ex.PW17/E. He proved the entries in register No.21 as Ex.PW17/F, Ex.PW17/H, Ex.PW17/J. He also proved the copies of acknowledgement as Ex.PW17/G, Ex.PW17/I and Ex.PW17/K. On 31.05.2017 he received four envelopes and FSL result from Ct. Vinod and he made entries in register No.19 against entry No.17/C. He stated that no one tampered with the case property till the same remained in his possession.
31. During cross-examination by Ld. Defence counsel he admitted that he filed the copies of road certificate and the FSL acknowledgement only today in the court. He denied the suggestion that record of register No.19 has been tampered with.
32. Ct. Jangbahadur was examined as PW-18. He deposed that on 01.04.2017 he was on patroling duty in the area. On receipt of information regarding dead body lying near ATM of Bank of India, Nanda road DDA park, he reached there. Inspector Shish Pal and SHO along with other staff was already there. One dead body was lying at the scene of crime. There was injury on the left side of the chest seems to be a fire shot. The blood was found on the spot. No eye witness was found. The body was identified as of Vijay. Crime team was called. Photographs of the scene of crime were taken. Crime team inspected the scene of crime. State Vs. Mohd. Imran etc. SC No.388/17 :: 17 ::
Inspector Shish Pal made endorsement on DD No.35A and prepared the rukka. He took the rukka at 11:10 pm to the police station and got the FIR registered. After registration of FIR duty officer handed over him the copy of FIR and the original rukka. He came back on the spot and handed over the same to Inspector Shishpal. IO lifted the blood stained earth from the spot. Put it in the plastic container, wrapped with the doctor tape and sealed with the seal of SPS. This container was seized vide memo Ex.PW18/A. IO also lifted the earth control, put it in a plastic container, wrapped with the doctor tape, sealed with the seal of SPS and seized vide memo Ex..PW18/B.
33. On 02.04.2017 he along with IO went to mortuary where they met Ct. Sunil who handed over one yellow colour chain attached with the locket of 'Sai Baba'. The said yellow colour chain and the locket were put in a plastic container wrapped with the doctor tape, sealed with the seal of SPS and seized vide memo Ex.PW18/C. Seal after use was handed over to him.
34. During cross-examination by defence he stated that no document regarding identity of body was found in possession of the deadbody at the scene of crime. IO came to know from public persons that the body is of Vijay. In his presence IO did not record the statement of any public State Vs. Mohd. Imran etc. SC No.388/17 :: 18 ::
person. IO made inquiries regarding identity from the public persons present at the scene of crime but none came forward. He reached the spot at about 8:15 or 8:20 and remained there till 11:10 pm. 30 to 40 public persons were present on the spot. He denied the suggestion that FIR and rukka are ante dated and ante timed.
35. Ct. Sunil was examined as PW-19. On 01.04.2017 he was on emergency duty with Inspector Shish Pal. On that day after getting information of DD No35A he along with Inspector Shish Pal reached the spot. There was injury mark on the left side of the chest of the body. No eye witness was found. Body was identified as of Vijay. Crime team was called, they inspected the scene of crime. Photographer of crime team took the photographs of scene of crime. IO Inspector Shish Pal prepared application for preservation of the dead body and this witness took the body to BJRM hospital. The hospital staff handed over him yellow metal colour chain attached with the locket of Sai Baba. On 02.04.2017 IO along with Ct. Jungbahadur met him outside the mortuary where he handed over the yellow colour chain attached with the locket. It was put in a plastic container wrapped with the doctor tapes, sealed with the seal of SPS and seized vide memo Ex.PW18/C.
36. During cross-examination he stated that he reached State Vs. Mohd. Imran etc. SC No.388/17 :: 19 ::
the spot at about 8:30 pm and remained there till 11:30 pm. No document with regard to identity of dead body was found in possession of the body or at the scene of crime. One public person informed the IO that the body is of Vijay. He does not know if IO recorded the statement of that person. He does not know if any family member of the deceased reached the spot.
37. ASI Dev Dutt was examined as PW-20. On 01.04.2017 he was working as duty officer from 4 pm to 12 midnight. At about 8:20 pm an information was received from wireless operator that one dead body either of male or female is lying and it seems that body is having fire shot injury. Body is near transformer near Bank of India ATM, Nanda road. He recorded DD No.35A on this information and handed over to Inspector Shish Pal who left for the spot with Ct. Sunil. He proved the copy of DD as Ex.PW20/A.
38. At about 11:25 pm Ct. Jung Bahadur brought the rukka on the basis of that he got entered the rukka in the computer and registered the FIR. Copy of FIR is proved as Ex.PW20/B. He proved his endorsement on the rukka as Ex.PW20/C. He handed over the original rukka and the copy of FIR to Ct. Jung Bahadur for handing over the same to the IO. He sent the copies of FIR to the senior police officials and the area MM through Ct. Shanker. Nothing material came on State Vs. Mohd. Imran etc. SC No.388/17 :: 20 ::
record during his cross-examination.
39. Ct. Naveen was examined as PW-21. On 03.04.2017 he joined the investigation along with IO and Ct. Naresh. On that day accused Rohit was interrogated and arrested by the IO vide arrest memo Ex.PW21/A. His personal search was conducted vide memo Ex.PW21/B. Accused Rohit made the disclosure statement Ex.PW21/C. Accused Md. Imran was interrogated and arrested by the IO vide arrest memo Ex.PW21/D. His personal search was conducted vide memo Ex.PW21/E. Accused Md. Imran made the disclosure statement Ex.PW21/F. Accused Imran was found wearing a black colour shirt having blood stains. It was taken put in a plastic jar wrapped with the doctor tape, sealed with the seal of SPS and seized vide memo Ex.PW21/G. Both the accused pointed out the place of occurrence vide memo Ex.PW21/H1 and H2 respectively. Witness has identified both the accused persons and he identified the black shirt of Md.Imran also as Ex.PW21/Article-1.
40. During cross-examination he stated that he did not join the investigation of the case property on 03.04.2017. He first time saw the accused Rohit and Imran at about 7:30 am on 03.04.2017 in the police station. He joined the investigation from 7.30 am to 12:30 pm. He cannot tell who actually recorded disclosure statement of accused Md. Imran State Vs. Mohd. Imran etc. SC No.388/17 :: 21 ::
and Rohit. Their disclosure statements were recorded in the presence of each other. The shirt of Imran was seized at about 9:30 am. He denied the suggestion that no disclosure was recorded or that he did not join the investigation or that the shirt of accused Md. Imran was also not seized.
41. HC Ram Pal was examined as pw-22. On 20.04.2017 on the directions of SHO he received five sealed parcels and two sample seals from MHC(M) for depositing the same with FSL vide RC No.49/21/17. He deposited the exhibits in FSL except Ex.No.3 i.e. country made pistol and obtained the acknowledgement from the FSL. He came back to police station and handed over the acknowledgement, the copy of road certificate and the exhibit No.3 to the MHC(M). No one tampered the case property till it remained in his possession.
42. Ct. Vinay Tiwari was examined as PW-23. On 29.05.2017 on the directisons of IO he received one plastic container sealed with the seal of SPS and one plastic container containing cartridges and sample seal from MHC(M) for depositing the same in FSL vide RC No;73/21/17. He deposited the exhibits in FSL and obtained the acknowledgement and copy of road certificate. He returend to the police station and handed over copy of acknowledgement and road certificate to MHC(M). During the period exhibits remained in his possession no one State Vs. Mohd. Imran etc. SC No.388/17 :: 22 ::
tampered with the same.
43. W/Ct. Seema was examined as PW-24. She deposed that on 01.04.2017 she was working in CPCR PHQ at extension No.109. On that day at 20:11:55 hours she received an information from mobile phone No:8459152386 that, "yahan per ek dead body padi hui hai, caller ko nahi pata hai yeh male hai ya female. Caller ko lag reha hai ki goli lagi hui hai, near Nanda road transformer near Bank of India ATM, Adarsh Nagar. He recorded this information and despatched the same at 20:14:41 hrs. she proved the PCR form No.1 as Ex.PW24/A.
44. Sh. Chandresh Kumar was examined as PW-25. He deposed that he was working as a computer teacher in Human Foundation Computer Centre, Bada Bagh near Azad Pur where Devender s/o Sh. Chhotey Lal used to learn computer. He has brought the admission record of Devender.
The Admission form is Ex.PW25/A. Photocopy of the Aadhar card is Ex.PW25/B. The copy of admission register is Ex.PW25/C1 and C2. Accused Devender has mentioned his mobile phone No.8586891251 in the admission form and same number was also mentioned in the admission register.
45. During cross-examination by the defence he stated that Devender filled up the admission form in his presence and took the same to his house for obtaining the signature of State Vs. Mohd. Imran etc. SC No.388/17 :: 23 ::
his father. He filled column No.6 in Ex.PW25/A with regard to the qualification of Devender after inquiring from the accused. The other details except column No.6 and signature of father and teacher were filled in his presence by the accused. He denied the suggestion that phone number mentioned in the form is of the father of accused. He voluntiered that accused told him that it is the phone number available at his house.
46. Yadh Ram Meena was examined as PW-26. He brought the record regarding admission and study of Md. Imran s/o Mohd. Arif and Rohit s/o Sh. Mangal Singh pertaining to 12th class. As per record Md. Imran was studying in Govt. Boys Sr. Secondary School No.1 Delhi. In the year 2014-15 and Rohit was studying in 12 th class in the year 2015-16. As per the record Imran S/o Md. Arif had given his mobile No.9582956634. On the request of the police he supplied the document Ex.PW26/A running into two pages which was duly attested and signed by him at point A. He also gave the information regarding Md. Imran who was admitted vide admission No.6097 vide letter Ex.PW26/B. He also gave the information with respect to Rohit S/o Sh. Mangal Singh he was admitted in 6 th class vide admission No.6625 dt. 02.04.2007 vide letter Ex.PW26/C.
47. During cross-examination he deposed that as per State Vs. Mohd. Imran etc. SC No.388/17 :: 24 ::
admission form Md. Imran took admission in XI class vide admission form Ex.PW26/DX. He did not recollect if parents of Md. Imran were with him at the time of filling up the form. He vol. That usually they give the form to the students who get it filled from their house. He does not know who used the mobile number mentioned in PW26/DX and Ex.PW26/A. He admitted that Incharge teacher of board examination filled up the entries in Ex.PW26/A and the entries are in the handwriting of Om Parkash Sharma Board Examination Incharge. The mobile No.9582956634 was not filled in his presence. He vol. That when the students collect their 12 th class result they mention the same before the Board examination Incharge. He does not know in whose name mobile No.9582956634 was issued. He cannot say if this mobile phone number is in the name of father of Md. Imran. Students are not allowed to keep mobile phone in the school.
48. Ct.Suresh was examined as PW-27. He deposed that on 05.04.2017 he joined the investigation with Inspector Shish Pal. They went to BJRM Hospital. From the hospital Inspector Shish Pal received one wooden box, one polythene, one envelope duly sealed with the seal of hospital along with two X-ray films and two sample seals which were seized vide memo Ex.PW27/A.
49. On 09.04.2017 he again joined the investigation with State Vs. Mohd. Imran etc. SC No.388/17 :: 25 ::
Ct. Neeraj and Inspector Shish Pal. Accused Md. Imran was taken out from the lockup and interrogated. Accused made the supplementary disclosure statement Ex.PW27/B. Accused led them to H.No.C-113 Jahangir Puri and from the room on the first floor, from an iron box lying on the slab accused produced one country made pistol. The sketch of the same was prepared which is Ex.PW27/C. The country made pistol was put in a plastic container wrapped with the doctor tape sealed with the seal of SPS. IO also filled the FSL Form and seized the container as well as form vide memo Ex.PW27/D. Seal after use was handed over to Ct. Neeraj. IO also prepared the site plan of the place of recovery of country made pistol which is Ex.PW27/B witness correctly identified Md. Imran. He also identified the country made pistol as Ex.PW27/Article-1.
50. During cross-examination by the defence he stated that his duty hours were from 8 am to 8 pm on 09.04.2017. They left the police station at about 9:30 or 10:00 am. He did not make any DD entry . They used the private car but he cannot tell its colour, make and registration number. He also does not know who was the owner of the car. They reached the house of accused at about 12:00/ 12:30 noon. The distance between the house of accused and police station is about 4 to 5 kms. On the way to the house of accused they State Vs. Mohd. Imran etc. SC No.388/17 :: 26 ::
also visited the scene of crime in search of any fired cartridge. They remained there for about half an hour. There is a police booth at a distance of about 50 to 100 meters from the scene of crime. The house of accused is constructed upto three storied. 2-3 persons were present in the house of accused but he does not know if they were related to the accused. He does not know the name of those 2-3 persons. He does not know if IO called the neighbours or any notice was given to the public persons to join the investigation. He does not know who was residing at the ground floor and at the second floor. He does not know who opened the door of the first floor. He does not know how many rooms were there on the first floor of that house. No neighbour was called to join investigation. He denied the suggestion that accused had not led them to his house or that no country made pistol was recovered from the possession or at his instance.
51. Sh. V.R. Anand Asstt. Director Ballestic FSL Rohini was examined as PW-28. He examined the exhibits and gave his report which is proved on record as Ex.PW28/A.
52. Ct. Vinod Kumar was examined as PW-29. He deposed that on 31.05.2017 on the direction of IO he went to FSL Rohini and received 4 envelopes and one envelope having FSL result. He came back and handed over the exhibits to the MHC(M) along with the result. During the State Vs. Mohd. Imran etc. SC No.388/17 :: 27 ::
period exhibit remained in his possession nobody tampered with the same. The testimony of this witness has gone unchallenged and uncontroverted.
53. Ct. Virender Singh was examined as PW-30. He deposed that on 03.04.2017 he joined the investigation with Inspector Shish Pal who interrogated the accused Md. Imran and Rohit and recorded their supplementary disclosure statements Ex.PW30/A and Ex.PW30/B respectively. He identified both accused persons also.
54. During cross-examination he denied the suggestion that no disclosure statement was recorded or that he did not join the investigation as deposed by him.
55. Dr. Anshul Saxena was examined as PW-31. He conducted the post mortem on the body of Vijay. On external examination he found that there were four external injuries which he detailed in his post mortem report. He opined that the deceased died due to hemorrhage secondary to gunshot injury to left lung and heart. Injury No.4 is sufficient to cause death in ordinary course of nature. Clothes and blood sample on gauze piece, vicera in saturated common salt and blood with sodium floride as preservative and two X-ray films with seal of AS FMT BJRM Hospital were handed over to the IO. He proved the post mortem report as Ex.PW31/A. The testimony of this witness has gone unchallenged and State Vs. Mohd. Imran etc. SC No.388/17 :: 28 ::
uncontroverted.
56. Retd. ASI Technician Devender Kumar was examined as PW-32. On 05.04.2017, on the request of Inspector Shish Pal he mechanically inspected Honda Activa Scooty No.DL 8S BZ 3739 at PS: Adarsh Nagar. There was no damage on the scooty and it was fit for road test. He proved his inspection report as Ex.PW32/A.
57. SI Himanshu Baliyan was examined as PW-33. He deposed that on 03.04.2017 he was working as Juvenile officer. He was called by Inspector Shish Pal at H.No.B-15, Rama Road, Adarsh Nagar. He reached there. IO was already there along with Ct. Naveen. One child Devender @ Lalu was apprehended vide apprehension memo Ex.PW33/A. He identified Devender as the same person who was apprehended by him. Thereafter, they also apprehended one child Hari Shankar from B-11, Gujrati Gali, Moolchand Colony Adarsh Nagar, Delhi vide apprehension memo Ex.PW33/B.
58. During cross-examination he stated that they reached the house of Devender at about 11:00/11:15 AM. Devender was already apprehended by Inspector Shish Pal and Ct. Naveen. Father of Devender was also present there. No public person was present. He does not remember how many stories were there in the house. He denied the State Vs. Mohd. Imran etc. SC No.388/17 :: 29 ::
suggestion that he did not join the investigation.
59. Ms. Richa Manchanda was examined as PW-34. She deposed that on 03.04.2017 TIP of accused Md. Imran was assigned to her by her Ld. Link MM Sh. Kapil Kumar vide application Ex.PW34/A. Accused was produced in muffled face. The TIP was fixed for 07.04.2017 vide Ex.PW34/B. She reached District Jail Rohini for conducting TIP. Accused was produced before her. Accused refused to join the TIP. He was warned and caution that if he refused to join TIP an adverse inference may be drawn against him during the trial, but he still refused to join the TIP. His statement to this effect was recorded vide proceedings Ex.PW34/C having her signatures at point A, B, C, D & E. The copy of the proceedings was supplied to the IO on an application Ex.PW34/D. Testimony of this witness has gone unchallenged and uncontroverted.
60. Inspector Shish Pal the IO of the case was examined as PW-35. He deposed that on 01.04.2017 he was posted at PS: Adarsh Nagar as Inpsector Investigation. On that day on reciept of information vide DD No.35A Ex.PW20/A he along with Ct. Sunil reached the spot. He found the dead body there. There was injury on the left side of the chest seem to be a fire shot injury. Blood was found on the spot and also on the body. No eye witness was found on the spot. The body was identified as of Vijay. Crime team was called. Crime State Vs. Mohd. Imran etc. SC No.388/17 :: 30 ::
team Inspected the scene of crime. The photographer took the photographs of the scene of crime. He moved application for preservation of the body and sent the body to BJRM hospital through Ct. Sunil. He made endorsement on the DD. His endorsement is Ex.PW35/A and sent the rukka through Ct. Jang Bahadur to police station for registration of the FIR. Ct. Jang Bahadur left for the police station. He prepared site plan Ex.PW35/B. He made inquiries from the public persons who have gathered there. The search was made to find out the fired cartridge but the same could not be found. Ct. Jang Bahadur came back on the spot and handed over to him the copy of FIR and original rukka. He lifted the blood stained earth and put the same in plastic container, wrapped with the doctor tape, sealed with the seal of SP and seized vide memo Ex.PW18/A. He also lifted the earth control from the scene of crime put it in a plastic container wrapped with the doctor tape and sealed with the seal of SPS. This container was also seized vide memo Ex.PW18/B.
61. On the intervening night of 01/02.04.2017 he went to the mortuary of BJRM hospital where Ct. Sunil met him. Ct. Sunil handed over to him one yellow metal colour chain attached with the locket of Sai Baba. He put the same in the plastic container wrapped with the doctor tape sealed with the seal of SPS and seized vide memo Ex.PW18/C. State Vs. Mohd. Imran etc. SC No.388/17 :: 31 ::
62. He along with Ct. Jang Bahadur went to the house of deceased in Village Badola where he met Ravi brother of deceased and Suresh Kumar uncle of deceased. They were called to the police station. He recorded their statements. He went to the house of Rohit but he was not found there. On 02.04.2017 he prepared inquest papers i.e. application Ex.PW35/C, brief facts Ex.PW35/D. He filled the form 25.35 Ex.PW35/E. The dead body was identified by Ajay and Ravi. The post mortem was got conducted. After post mortem the dead body was handed over to the relatives. He along with staff again reached at the house of accused Rohit at Village Badola but the house was found closed. On the same day on receipt of information they reached at Adarsh Nagar Metro Station. Accused Rohit was seen outside the metro station. He was apprehended and was brought to the police station. He interrogated the accused who revealed the names of his co-accused. On 03.04.2017 accused Rohit was interrogated and arrested vide arrest memo Ex.PW21/A. His personal search was conducted vide memo Ex.PW21/B. Accused made the disclosure statement Ex.PW21/C. Accused Imran was apprehended on the secret information from C-Block Jahangir Puri and he was also brought to the police station. He was interrogated and arrested vide arrest memo Ex.PW21/D. His personal search was conducted vide memo State Vs. Mohd. Imran etc. SC No.388/17 :: 32 ::
Ex.PW21/E. Accused Imran also made the disclosure statement Ex.PW21/F. He identified both the accused persons. Accused Imran was found wearing black colour shirt having blood stains which was taken into possession after putting in a plastic jar, sealed with the seal of SPS and seized vide memo Ex.PW21/G. Both the accused persons pointed out the place of occurrence vide memo Ex.PW21/H1 and H2. Thereafter, he along with Ct. Naveen reched at Mool chand colony where secret informer told that Devender @ Lalu is standing outside his house i.e. B-15 Rama Road Adarsh Nagar. They reached the house of accused he was apprehended vide apprehension memo Ex.PW33/A. Chhotey Lal father of accused was also present at the time the version of accused Devender @ Lalu was recorded. He also prepared social report of accused Devender as he was minor at that time. Thereafter, on receipt of secret information they reached at H.No.B-11/7 Gujrati Gali Moolchand Colony Adarsh Nagar where Hari Shanker was found outside his house. He was also apprehended. He was juvenile and his charge sheet was filed before Juvenile Justice Board. He recorded supplementary disclosure statement of accused Md. Imran and Rohit which are Ex.PW30/A and Ex.PW30/B. He moved application for TIP of accused Md. Imran but accused refused to join the investigation. He recorded the State Vs. Mohd. Imran etc. SC No.388/17 :: 33 ::
statements of witnesses and also seized scooty No. DL 8S BZ 3739 vide memo Ex.PW35/F. On 08.04.2017 police custody remand of Md. Imran was taken on 09.04.2017 accused made a supplementary disclosure statement Ex.PW27/B and the witness corroborated the testimony of PW-27 regarding seizure of the pistol. He sent the case property to FSL, scaled site plan prepared. On the directions of the JJB the ossification test of the CCL Devender was conducted and he was found major. He also collected the call detail records of the mobile phone of accused Devender @ Lalu and Md. Imran and after analysing the same found that on 01.04.2017 the location of mobile phone of Devender @ Lalu and Md. Imran was found at the same tower after 6:33 pm. The location of the tower in which both accused was found was at a distance of 150 to 200 meters from the scene of crime. After about 7:31 and 7:30 pm on 01.04.2017 both the accused switched off their mobile phones. The location of mobile phones of accused Md. Imran was found under the tower of Barhola village from 4:02 pm to 5:27 pm on date 01.04.2017. Both accused Md. Imran and Devender @ Lalu were with each other for the last 15 days as per the CDR.
On 29.05.2017 he procured three live cartridges for the test firing and the same was providied to FSL Rohini. He collected the FSL result. He also collected the admission State Vs. Mohd. Imran etc. SC No.388/17 :: 34 ::
record of the accused persons. He identified all the accused persons and also the case property.
63. During cross-examination he stated that they reached the scene of crime at about 8:30 pm. Public persons were present at the spot but he cannot tell the number. The dead body was identified by his family members but he does not remember at what time family members of Vijay reached. He does not remember if the crime team members were present when the relatives of the deceased reached there. Ct. Sunil and Ct. Jang Bahadur were with him at the spot when the family members of the deceased met him. Crime team remained on the spot till 10 pm. Police booth is situated about 70 to 100 meters away from the scene of crime. He did not call any police officer from the police booth. He admitted that there is rehri of selling chowmin near the DDA park. He made inquiries from the chowminwala who informed him that some boys had purchased chowmin from him on the date of incident, but he did not record statement u/s 161 Cr.PC. In the night hours of 01/02.04.2017 they reached the house of deceased. He does not remember at what time brother and uncle of deceased reached the police station. Ct. Jang Bahadur and other staff accompanied him to the house of Rohit at village Barohla. He does not remember the DD number vide which they left the police station. State Vs. Mohd. Imran etc. SC No.388/17 :: 35 ::
64. Accused Rohit was caught at 7 pm on the secret information. The information about arrest of accused was given to his Jija. Ct. Naveen and Ct. Naresh were with him when they apprehended accused Imran. The information about arrest of accused Imran was given to his uncle from the police station. He met Pawan @ Prince near the scene of crime. He was called by him. He also visited the house of Omkar @ Vishal as per the supplementary disclosure of accused. They reached the house of accused on 09.04.2017 at about 11:00 - 12:00 noon. He does not remember by what mode of transportation they reached the house of Md. Imran.
He does not remember the names of the family members of Imran who met them on that date. He admitted that the iron box was not seized by him. He requested the neighbours and public persons to join the investigation but none agreed. He had not seized any mobile phone in this case. The mobile phone numbers were issued in the name of the parents of the accused persons and they were using the same. He denied the suggestion that the mobile phones were never switched off after 7:30 pm on 01.04:2017. He denied the suggestion that he recorded the statement of witnesses of his own or that he had not properly/ fairly investigated the case.
65. Ms. Vijyanta Arya was examined as PW-36. She State Vs. Mohd. Imran etc. SC No.388/17 :: 36 ::
accorded the sanction of prosecution of accused Md. Imran S/o Md. Arif for being found in possession of one country made pistol of .315 bore. She proved the sanction order as Ex.PW36/A.
66. During cross-examination she denied the suggestion that she had given the sanction in mechanical manner.
67. Thereafter, prosecution evidence was closed.
68. Statement of accused persons were recorded u/s 313 Cr.PC wherein they have denied the entire prosecution evidence against them and stated that they have been falsely implicated. They did not wish to lead any evidence in defence. Thereafter the case was fixed for final arguments.
69. I have heard Ld. Addl. PP for the State, Ld. Defence counsels for the accused persons and perused the record.
70. The present case is based upon the circumstantial evidence. The prosecution intends to prove the following circumstances for establishing the guilt of the accused i.e. The circumstance of last seen.
The circumstance of recovery of weapon of offence. The circumstance of recovery of wearing clothes of accused Imran.
The call detail record of the accused persons.
71. Now I take up the circumstances one by one. State Vs. Mohd. Imran etc. SC No.388/17 :: 37 ::
Circumstance of last seen:
72. Ld. APP for the State submitted that in this case there are three main witnesses about the last seen PW-1 Ravi/brother of deceased, PW-3 Suresh/uncle of the deceased and PW-5 Pawan, who had seen the deceased eating chowmein with the accused persons near the place where his dead body was found. Ld. APP submitted that both Ravi PW-1 and PW-3 Suresh have fully supported the prosecution case and deposed that Rohit and Devender along with two more boys came to call Vijay. Ld. APP submitted that out of the other two boys he has also identified Imran as the person, who had come along with Rohit and Devender to call Vijay. Ravi called Vijay from house and thereafter Vijay accompanied the accused persons at about 5 PM. There is a distance of only 20-30 feet in between the house and the shop. At that time PW-3 Suresh was also present on the spot and he had also fully corroborated the testimony of Ravi and also identified all the three accused persons. Ld. APP submitted that this testimony of PW-1 and PW-3 remains unrebutted. No doubt PW-5 did not support the prosecution case but he also stated that he had seen the deceased eating chowmein on a rehri near the park where his dead body was found. The fact that there is a rehriwala near that park, who sells chowmein is State Vs. Mohd. Imran etc. SC No.388/17 :: 38 ::
corroborated by the testimony of PW-35. But PW-35 also stated that he had left that place now. Ld.APP submitted that there is not much distance between the house of deceased and where the dead body was found. There is proximity of time at about 8/8.30 police had received the information about the dead body and according to PW-1 and PW-3 they had seen the deceased Vijay lastly in the company of the accused persons at about 5 PM. Therefore, there is proximity of time also between the last seen and the death. Ld. APP submitted that prosecution has fully established this circumstance and prayed that accused persons be held guilty.
73. Ld. Defence counsel submitted that both PW-1 and PW-3 are introduced witness. They have not seen the deceased going with the accused persons and that is why they have contradicted each other. Ld. Counsel submitted that according to PW-1 the accused persons and his brother left on the motorcycle whereas according to PW-3 they left on foot. According to PW-1 police official came to there shop at about 8/8.30 PM, who had shown the photographs of Vijay to PW-1 and he specifically stated that the photographs of his brother was not shown to his uncle, though he was present there. But PW-3 Suresh stated that it was also shown to him. According to PW-1 he went to the spot on the State Vs. Mohd. Imran etc. SC No.388/17 :: 39 ::
motorcycle of the police official whereas PW-3 is silent in this regard. Ld. Counsel submitted that even the police officials including the crime branch officials does not say that any relative of the deceased came on the spot while they were there whereas according to PW-1 and PW-3 they went to the spot along with the police. Even PW-18 & PW-19 did not say that any family member of deceased reached the spot. Both of them remained on the spot till 11:00 pm. Ld. Counsel further submitted that even if the testimony of PW-1 and PW- 3 is believed and there is time gap of three hours between the time when they last saw the deceased and when the dead body was recovered in between. According to the story of prosecution deceased has also taken chowmein as deposed by PW-5. According to PW-5 deceased ate chowmein with 4-5 boys near DDA park, Moolchand Colony.
Those 4-5 boys were strongly built and were speaking Haryanvi language. The witness also stated that those 4-5 boys are not present in the court. Ld. APP has also pointed out the accused persons to this witness but he stated that the accused persons in the court are not those persons with whom he had seen deceased eating chowmein. Ld. Counsel submitted that keeping in view this fact, it is clear that deceased was not with the accused persons when he was lastly seen alive and therefore the theory of last seen is not State Vs. Mohd. Imran etc. SC No.388/17 :: 40 ::
established. It is prayed that the benefit of the same be given to accused persons and they be acquitted.
74. After hearing the arguments and going through the record, I found that prosecution is mainly relying on the testimony of PW-1 and PW-3. So far as the other witness Pawan is concerned, he has not supported the prosecution case. Even otherwise it is the Pawan, who had lastly seen the deceased alive at about 6.30 PM outside the park where the dead body was found and he stated that the deceased was with 4-5 strongly built boys, who were speaking Haryanvi language. The witness was also cross examined by Ld. APP and the accused persons were pointed out to him but he stated that the accused persons are not those boys with whom he had seen the deceased eating chowmein. Under the circumstance, even if PW-1 and PW-3 are believed that they had seen the deceased leaving with the accused persons, testimony of PW-5 shows that deceased at 6.30 PM was not with the accused persons. So far as PW-1 and PW-3 are concerned, they have also contradicted with each other as according to PW-1, the accused persons along with deceased left on motorcycle, whereas according to PW- 3 they were on foot. According to PW-1, police officials had shown the photographs of his brother on the screen of mobile phone only to him and not to his uncle but according State Vs. Mohd. Imran etc. SC No.388/17 :: 41 ::
to PW-3, police official had also shown him the photographs of his nephew on the screen of mobile phone. PW-1 also stated that he visited the scene of crime where he identified the dead body of his brother whereas the police officials and also the members of crime team stated that no relative of the deceased arrived on the spot which creates doubt about the fact that they were informed immediately and that they also reached the spot. Record shows that their statements were recorded on 02.04.17 only and not on 01.04.17. Keeping in view the fact that deceased was seen alive even after 5:00 pm after he left with the accused persons by PW-5 and at that time he was in the company of some other person and not the accused persons clearly shows that the accused persons had already left the company of the deceased. The onus was on the prosecution to prove that deceased was lastly seen alive in the company of accused persons which the prosecution has failed to establish. Therefore, this circumstance is not proved and established. The Circumstance of recovery of weapon of offence.
75. Prosecution in this case allegedly that Imran got recovered one pistol from the shelf of the room situated on the first floor of his house. There are only police witnesses with respect to the recovery of this weapon. No public witness has been joined to prove and establish this fact.
State Vs. Mohd. Imran etc. SC No.388/17 :: 42 ::
Prosecution has examined PW-27/Ct. Suresh and PW-35 Inspector Sheesh Pal to prove and establish this fact. Both of them have stood through the test of cross examination and proved that this pistol was got recovered by Imran from his house. The onus was on the prosecution to prove and establish that this pistol was used in the commission of offence which the prosecution has failed to establish. In this case the death of deceased has taken place due to fire arm injury but no bullet or empty cartridge was found or recovered. In the post mortem report also, proved on record as Ex.PW-31/A, there is no mention that any bullet was recovered from the body. There is also no evidence that from the spot any empty cartridge was recovered. The onus was on the prosecution to prove and establish that the weapon got recovered by Imran was used in commission of offence which the prosecution has not been able to prove. Keeping in view the above discussion in my opinion the present circumstance is not established.
Recovery of shirt of accused Imran:
76. In this case when the accused Imran was apprehended he was found wearing one black colour shirt.
Ct. Naveen examined as PW-21 and Inspector Sheesh Pal examined as PW-35 proved the recovery of shirt. Case of prosecution is that accused was wearing the shirt at the time State Vs. Mohd. Imran etc. SC No.388/17 :: 43 ::
of commission of offence and that there were blood stains on the shirt. The shirt was sent to FSL for analysis. The report is Ex.PW-12/A. According to this report no blood stains were found on the shirt of the accused. The onus was on the prosecution to prove and establish that this is the shirt of the accused on which he was wearing at the time of incident. But no such evidence could be adduced, hence this circumstance also does not link the accused with the commission of offence.
The circumstance of the call detail record of accused persons:
77. Ld.PP submitted that in this case accused Mohd.
Imran was using the mobile phone bearing no. 9582956634 which is in the name of his father Mohd. Arif and Devender was using the mobile phone no. 8586891215 issued in the name of his mother Asha Devi. The fact that they were using this mobile phone is also evident from the statements of PW- 26 and PW-25 respectively as the accused persons while submitting their admission form filled this number in their form. Their call detail record stands proved on record by examining PW-13 clearly shows that they were continuously in touch with each other and thus shows that they were regularly contacting each other and immediately after the commission of offence at about 7.30 PM they shut off their State Vs. Mohd. Imran etc. SC No.388/17 :: 44 ::
mobile phones. Ld. APP submitted that the presence of the accused persons is also within that area at the relevant time and thus it shows that they are involved in the commission of offence.
78. Ld. Defence counsel submitted that these mobile phones were not used by the accused persons as only the prosecution witness examined as PW-10 Dheeraj himself stated that accused Devender @ Lalu and Mohd. Imran had never brought their mobile phones with them when ever they used to meet him. Ld. Counsel submitted that so far as mentioning of the mobile phone number in the admission form is concerned, that was the requirement of the institution and that is why they have mentioned these numbers in their forms as these phone numbers were available at home with their parents and for receiving any information from institution. Ld. Defence counsel submitted that onus was on the prosecution to prove that these mobile phones were used only by the accused persons or that they conspired using these mobile phone numbers which the prosecution has failed to do. Ld. Defence counsel submitted that even otherwise this circumstance does not point towards the guilt of the accused persons. Ld. Counsel submitted that it has already come in evidence that they were not present with the deceased at the relevant time, hence no such inference, due State Vs. Mohd. Imran etc. SC No.388/17 :: 45 ::
to this evidence, can be drawn that accused persons were involved in the commission of offence. Ld. Counsel submitted that the onus which was on the prosecution has not been discharged. The benefit of the same be given to the accused persons and they be acquitted.
79. After hearing the arguments and going through the record, I found that according to the prosecution case accused persons were using these mobile numbers but their main witness Dheeraj had stated that he had never seen the phones with the accused persons and that when ever the accused persons came to meet him they never used to carry any mobile phone. So far as the mentioning of the mobile phone number in the admission form is concerned, the form itself shows that the requirement of the form was to mention the number which does not specifically mean that, number was used by him only. So far as the case of Devender is concerned, in the form it was mentioned that what is the contact number? Wherein the number 8586891251 was mentioned. No such inference from these forms can be drawn that they mentioned these mobile phone numbers only because they were using the same. So far as their location near the place of occurrence is concerned, accused Devender is resident of Mool Chand Colony itself and residence of Mohd. Imran is also near Mool Chand colony, State Vs. Mohd. Imran etc. SC No.388/17 :: 46 ::
therefore the location will certainly come in that area only. Even if the mobile phone remains at home, particularly when PW-10 stated that he had never seen any mobile phone in the hands of Mohd. Imran and Devender. In view of above discussion in my opinion the prosecution has failed to prove & establish this circumstance.
80. In view of the above discussions, I found that the onus which was on the prosecution has not been discharged, the chain is not completed, hence all the accused persons are acquitted. They be released on furnishing personal bond of Rs.40,000/- with one surety in the like amount to the satisfaction of court with one surety for period of six months under Sec.437 A Cr.PC. File be consigned to Record Room.
Announced in the open court today on 08.12.2017 (VIRENDER KUMAR BANSAL) ASJ/Pilot Court/North District Rohini Courts/New Delhi.
State Vs. Mohd. Imran etc. SC No.388/17 :: 47 ::