Delhi District Court
State vs . : 1). Nitin Dabas on 10 March, 2017
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT,
ROHINI COURTS: DELHI
Sessions Case No: 57677/16
FIR No. : 125/10
U/s : 302/34 IPC
P.S. : Kanjhawala
State Vs. : 1). Nitin Dabas
son of Sh. Ved Prakash
H.No.172, Rasul Pur
Rani Khera, Delhi
2) Rakesh @ Sonu
son of Bijender Dabas
Vill. Rasulpur,
Rani Khera, Delhi.
3) Kapil @ Sunny
son of Sh.Dalbir Singh
r/o Vill.Bamdoli, PS Sadar
Bahadurgarh, Distt.Jhajjar
Haryana.
Offence complained of : 302/34 IPC
Plea of accused : Pleaded not guilty
Final Order : Convicted
Date of committal : 28.03.2011
Date of Judgment : 10.03.2017
JUDGMENT
1. On 08.07.10 on receiving DD no.4 A regarding quarrel SI Ravi Kumar along with Ct. Udey reached the place of SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 1 : occurrence i.e. Rani Khera Gaon main road near cremation ground. By the side of the road they found large quantity of blood, a pair of slippers of red colour on which in English "Walk Star London Burlin and Paris, 10" No. was lying there. One mobile phone make HAUWEI Tata Indicom black colour and two empty cartridges were also found there, on the base of the cartridges there was marking of KF 7.65. They came to know that injured had already been removed to Jaipur Golden hospital. Ct. Vikas was called on the spot from the police station, who was deputed there to protect the scene of crime. Thereafter, SI along with Ct. Udey reached Jaipur Golden hospital where Rahul was found admitted vide MLC no.10144/10. The doctor declared the injured unfit for statement. During investigation SI received another DD 10B dt.08.07.10 that injured had died. SI Ravi prepared the death summary and seized the blood stained clothes of the deceased which werre handed over by the doctor. The dead body was given in the custody of Ct. Udey to be shifted to the mortuary of Sanjay Gandhi Memorial Hospital where it was got preserved. Thereafter SI reached on the spot and crime team was also called. The exhibits were lifted from there. SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 2 : One eye witness Ravi Dabas met them, who told that on 07.07.10 he was present in his office of Royal Finance, Mubarakpur Moad, Soni Builders along with his friend Neeraj @ Bunty and Rahul at evening time. They were taking drinks. At about 10/10.30 PM Kapil @ Sunny, who is nephew (bhanja) of their village and resident of Vill. Bamdoli, Bahadurgarh came to his office. Kapil @ Sunny was already drunk. On some issue Rahul and Kapil have exchanged hot words with each other and also abused with each other. Thereafter Kapil @ Sunny went away extending thrats to Rahul. Thereafter many phone calls came on the mobile phone of Rahul from Kapil, Nitin and Rakesh. They were talking at loud pitch and using abusive language. After about two hours of that Kapil along with Nitin and Rakesh both residents of Rasulpur, Delhi came to his office. They started talking with Rahul about compromise. After saying that they have compromised, they said that now they will take more drinks. Rahul said that there is no more drinks in the office and drink has to be brought from somewhere. On this all the three accused along with Rahul went out of the office. Ravi Dabas and Neeraj thought that they had gone to purchase SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 3 : liquor. When they did not return for about an hour, Ravi Dabas made a call on the phone of Rahul but he did not respond. Calls were made many times but remained unanswered. Thereafter Ravi Dabas and Neeraj in order to search Rahul went on main road towards Mundka. Ravi Dabas made a call on the mobile phone of Rahul and while passing near cremation ground, Rani Khera Village, from the side of the road, they heard the ring of the mobile phone and also the light of the mobile phone. They went there and found Rahul lying by the side of road and bleeding from his head. Neeraj informed Narender Kumar, father of Rahul, who reached there along with Anuj cousin of Rahul. They removed Rahul to Jaipur Golden Hospital. Rohit brother of Ravi also went to Jaipur Golden hospital. After about two hours of that Rohit informed him about death of Rahul. He said that all the three accused Kapil, Nitin and Rakesh due to some old animosity in furtherance of their common intention by taking a false excuse took Rahul with them and murdered him. On this statement of Ravi, FIR was registered. Post mortem was got conducted, wherein the doctor opined the cause of death is cranio cerebral damage consequent to SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 4 : penetrating injury to the head via injury no.1 caused by a projectile discharged from a firearm weapon. Two bullets were also retrieved from the head of the deceased which were seized.
2. During investigation, Nitin Dabas and Rakesh were arrested. From the possession of Nitin Dabas one pistol along with five live cartridges was recovered. Both of them also got recovered the motorcycle of deceased Rahul and pointed out the place of occurrence. Call detail records were collected. Later on accused Kapil surrendered in the Court and was arrested. The pistol along with empty shells recovered from the scene of crime were sent to FSL for analysis. According to the FSL report, the individual characteristics of firing pin marks and breach face marks present on the empty cartridges cases found on the spot tallied with the test fire cartridges with the pistol recovered from the possession of accused Nitin Dabas. Charge sheet against all the three accused persons was filed. Ld. MM after complying with the provisions of Sec.207 Cr.PC committed the case to the Sessions Court as the offence punishable under Sec.302 IPC is exclusively triable by the Sessions SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 5 : Court. All the three accused were charged for the offence punishable under Sec.302/34 IPC. Accused Nitin Dabas was also charged for the offence punishable under Sec.25 and 27 Arms Act to which they pleaded not guilty and claimed trial. Thereafter the case was fixed for prosecution evidence.
3. Prosecution in order to prove its case examined 30 witnesses.
4. Ravi Dabas the complainant was examined as PW-1. He deposed that on 07.07.10 he was present in his office of Soni Builders situated at Mubharak Pur Road, his friend Neeraj and Rahul were also present. They were taking drinks since 8 PM onwards. At about 10/10.30 PM Kapil @ Sunny, who was already drunk came in his office. On some old dispute hot words were exchanged between Rahul and Kapil @ Sunny and they also exchanged abuses. Kapil @ Sunny left the office extending threat "mai tujhe dekh loonga". After some time Rahul started receiving phone calls on his mobile phone from accused Kapil, Nitin and Rakesh. Witness stated that Nitin and Rakesh are his co-villagers. Kapil is bhanja of one of the resident of co-villager. The witness also identified all the three accused persons. After about two hours, all the SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 6 : accused persons reached in his office and they started talking with Rahul for compromise. All the accused also said that they will drink more. Rahul said that there were no drinks in the office and that it has to be arranged from out side. Thereafter Rahul, Nitin, Kapil and Rakesh went out to arrange more liquor. After long time when they did not return, he made a call on the phone of Rahul but Rahul did not respond. He continuously made calls on his phone but Rahul did not respond. Thereafter this witness closed his office and he along with Neeraj went in search of them on main road towards Mundka. He was continuously making phone calls to Rahul. When they reached near cremation ground, Rani Khera Village, he noticed the light of mobile phone and also heard the ring of mobile phone. On this he along with Neeraj reached near the phone and noticed Rahul lying in injured condition on the side of the road and he was profusely bleeding from his head. Neeraj made a call at 100 No. and also to the father of the Rahul. Father of Rahul and Anuj, cousin of Rahul, came there and took Rahul in their car to Jaipur Golden Hospital. Rohit brother of this witness also followed them in his car. After two hours his brother Rohit SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 7 : informed him that Rahul had died. At dawn, in the next morning, police came and recorded his statement Ex.PW- 1/A. Police lifted two empty cartridges from the spot, prepared the sketch Ex.PW-1/C empty cartridges were put in pullanda, sealed with the seal of RC and seized vide memo Ex.PW-1/B. Pair of slippers lying on the spot were also put in pullanda sealed with the seal of RK and seized vide memo Ex.PW-1/D. Mobile phone of Rahul was put in a pullanda, sealed with the seal of RK and seized vide memo Ex.PW- 1/D. From the spot blood, earth control and earth stained with blood were lifted sealed with the seal of RK and seized vide memo Ex.PW-1/F1 to F5. He identified the two cartridges found on the spot as Ex.P-1 collectively, mobile phone as Ex.P-7 and pair of slippers as Ex.P-8.
5. During cross examination for accused Nitin, he stated that initially Kapil @ Sunny came alone to their office at about 8/8.30 PM. He remained in the office for about 20-25 minutes. Nitin came to the office after about two hours after Sunny had left. Nitin, Sonu and Sunny all came together. The three accused remained in the office for about 10-15 minutes. No quarrel took place with Nitin in his office. The three SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 8 : accused and Rahul left at about 12/12.15 AM. This witness along with Neeraj left the office after about one hour of their leaving the office. They were on the motorcycle. The mobile phone was lying at a distance of 1 km. from their office. They must have reached there within two minutes. Since this witness was calling on the phone of Rahul, so the light of mobile phone was on and they could see the mobile lying on the road side. He did not pick the mobile phone of Rahul. Neeraj made the phone call from that place at the house of Rahul. This witness was carrying mobile phone having no.9811390716 but he does not remember the mobile phone no.of Neeraj and Rahul. Father of Rahul and cousin reached there within 4-5 minutes of making call. Police reached there after Rahul had already been removed to the hospital. They met the police on the spot. He made the call to the police at about 12.45 AM. He did not accompany Rahul to the hospital as police asked him to stay back. He denied the suggestion that in order to save him, he falsely implicated the accused persons and became witness. No call was made by anybody from the mobile of Rahul. His statement was recorded on the spot only once. When father and cousin of Rahul came to the SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 9 : spot Neeraj told them that Rahul had received injury on his head, so they removed him to the hospital. He informed the PCR that Rahul had received injury on his head but did not tell the reason. He denied the suggestion that Rahul sustained head injury in road accident. He admitted that Nitin was having no dispute with Rahul.
6. During cross examination for accused Rakesh, he deposed that by the time Sunny reached their office, they have consumed more than half of the bottle. Sunny did not consume liquor with them. They had consumed the bottle and were sitting in the office, when Sunny came again along with the other accused persons. They were not having any other bottle of liquor when the accused persons came. He is not aware where they had gone to purchase liquor. Rahul received calls from the mobile phone of Sunny.
7. During cross examination on behalf for accused Kapil, he deposed that liquor was arranged by him. Kapil came alone initially and he was on his bike. He denied the suggestion that Kapil was not in a position to move as he had met with an accident and was also operated upon a month back. The old dispute due to which the quarrel took place SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 10 : was not discussed in his presence and hence cannot tell about the same. He intervened in that matter. Accused Kapil is bhanja of one Mangal. All the accused came on one motorcycle but he cannot tell the make and no. of that motorcycle. He had not come out of his office to see off Kapil, Nitin, Rahul and Rakesh. They left on two motorcycles. He did not disclose this fact to the police as the same was not asked from him. The make of Rahul's motorcycle was Glamour, Hero Honda but he cannot tell its no. This witness was having mobile no. of Kapil but not of the other accused persons. They all left to bring the liquor from Tikri Border which is at a distance of 20 minutes drive from his office. He did not make any phone call to Kapil to inquire as to why Rahul was not picking up his phone. He had not looked for Rahul on the other roads. He was not knowing that Rahul was lying in injured condition on the road leading to the village. Neeraj informed father of Rahul about exchange of hot words and that Rahul had received head injury. The exhibits were seized after recording his statement. He left the spot about 8-9 AM. Police visited his office on the same day. Police has also seized the bottle and glasses from his office. SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 11 : He denied the suggestion that he had monetary dealings with Rahul and on that account, an argument had taken place between him and Rahul. He denied the suggestion that Kapil did not visit his office on that day or that no altercation took place between Rahul and Kapil. He denied the suggestion that he along with his friend is involved in the murder of Rahul and later on manipulated the story in connivance with his friend Neeraj. He denied the suggestion that Rahul did not leave the office for the last time in the company of accused Kapil and others.
8. Narender Singh was examined as PW-2. He is father of the deceased. He deposed that on 07.07.10 after taking meal Rahul went for a walk. Next morning at about 4 AM he received phone from Neeraj son of Kaptan Singh that Rahul is lying in injured condition near cremation ground on the side of road at Rani Khera Road and bleeding profusely from his head. He reached there along with his nephew Anuj. They noticed Rahul lying in injured condition. Neeraj and Ravi were also present there. They took Rahul to Jaipur Golden hospital. Rohit brother of Ravi also reached the hospital. At about 6 AM Rahul was declared dead. He was informed by SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 12 : Ravi and Neeraj that Nitin, Rakesh and Kapil had shot his son Rahul. Body of Rahul was shifted to the mortuary of SGM hospital. After post mortem he received the dead body.
9. During cross examination on behalf of accused Kapil, he deposed that his statement was recorded in PS Kanjawala by the SHO on 08.07.10. He received the call on mobile no.9312359784. When he reached the spot, Ravi and Neeraj told him that Nitin, Rakesh and Kapil had shot his son Rahul. He did not notice if there was blood on the clothes of Ravi. Ravi and Neeraj did not accompany him to the hospital. He had not told the doctor that Nitin, Rakesh and Kapil had shot his son. He did not tell the doctor that it is a suspected case of road accident. He denied the suggestion that no one met him on the spot or that his son was lying unconscious all alone or that he suspected it a case of road accident and removed him to the hospital or that he gave the same history to the doctor.
10. During cross examination for accused Nitin Dabas, he deposed that his son was not having animosity with Nitin or any body else. When his son did not return till early morning he made call to his son Rahul. He does not remember the SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 13 : exact time of making call and also the mobile no.on which he made the call.
11. Dr. J.V.Kiran was examined as PW-3. On 08.07.10 he conducted post mortem on the body of Rahul, aged 18 years, vide PM no.655/10. He found one stitched fire arm entry wound 1.5 x 0.5 cm present on front aspect of left temporal region of scalp with the margins showing contused abrasion. The wound was directed forward and inward fracturing and penetrating the left temporal wound, left frontal lobe upto the front of corpus callosum in between the cerebral hemispheres from where a bullet was retrieved. Firearm entry wound 0.5 x 0.5 cm present on back aspect of left temporal region with an oval fracture of underlying part of temporal bone followed by sliding of the projectile under the scalp layers in forward direction up to the left temporals muscle within which a bullet is found entangled and is retrieved. Abrasion 4 cm x 0.5 cm along lower border of left side of mandible present 1 cm left to chin. Cause of death in this case was cranio cerebral damage consequent to penetrating injury to head via injury no.1 caused by a projectile discharged from a firearm weapon capable of discharging SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 14 : such a projectile. Time since death was about 12 hours. Specimen preserved were blood on gauze and two bullets. He proved the post mortem report as Ex.PW-3/A having his signature at point B.
12. During cross examination on behalf of accused Kapil he deposed that his finding to the effect that time since death was 12 hours is based upon the history of the case and his personal observation of the body. The injuries were fresh in duration. The injuries no.1 and 2 can not be self inflicted. The injury no.3 is possible by blunt force.
13. Neeraj Dabas was examined as PW-4. He corroborated the testimony of PW-1 and also identified the accused persons. He also stated that he is receiving threats from father of accused Nitin that who so ever would depose against his son, he would kill him. Once he had got him arrested by the police when he (father of Nitin) came to his house with pistol. Family members of accused have got murdered his brother and FIR has been registered to this effect. He had identified all the accused persons.
14. During cross examination for accused Kapil he deposed that in the year 2010 he was working in room SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 15 : service department in Mourya Hotel. His duty hours were from 7 AM to 4.30 PM. He reached the office of Ravi Dabas at 9 PM, who was running his office in the name and style of Royal Finance at Mubarakpur Moad. His statement was recorded on 08.07.10 in the PS. He does not know why hot words were exchanged between deceased Rahul and Kapil and also cannot tell the reason, but they were arguing. This witness, Ravi, Rahul and Kapil were present in the office at that time. Rahul had told him that he had been receiving threatening calls from Kapil, Rakesh and Nitin. On that day this witness was carrying his mobile phone no.9990853838. He left the office of Ravi between 1 AM to 3 AM. He made call to the police on seeing Rahul in injured condition and narrated all the facts. He does not remember if he narrated the fact of Rahul leaving the office of Ravi Dabas in the company of Kapil and others. When the father and cousin brother of Rahul removed Rahul to the hospital, he also left the spot. At that time he had not disclosed the entire facts to the father and cousin brother of Rahul. He informed father of Rahul that Rahul is lying in injured condition and asked him to come. Rahul went with Kapil, Nitin and Rakesh to fetch SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 16 : liquor but can not tell how they had gone as he was sitting inside the office. He can not tell the time when Rahul left the office. Rahul was lying at a distance of about half kilometer from the office. He left the office on motorcycle as the way to his house and liquor Vend is on the same road. He denied the suggestion that on 07.07.10 Kapil did not visit the office of Ravi or that no altercation took place in his presence. He further denied the suggestion that an altercation took place between Rahul on one hand and this witness and Ravi Dabas on the other side. He denied the suggestion that he informed the police that it was a case of road accident.
15. During cross examination for accused Rakesh, he deposed that he was not taking drinks. He does not remember if he called on the mobile of Rahul between 9 PM till he left with Kapil. He have not received any call from the phone of Rahul after he saw him lying in injured condition. He does not remember if he received any call from the mobile phone of Rahul at 5.30.34 AM. He denied the suggestion that Rahul was not having any mobile phone.
16. During cross examination for accused Nitin, he deposed that he had gone to his job on 07.07.10 and SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 17 : thereafter he had not joined his duty. He denied the suggestion that he absconded after the incident and that is why he did not join the duty. He denied the suggestion that Nitin had not come to the office on that day. He denied the suggestion that he was not present in the office of Ravi Dabas or that he is deposing falsely.
17. Dr. Pradeep Dua CMO Jaipur Golden hospital was examined as PW-5. He deposed that on 08.07.10 at about 4.15 AM patient Rahul 18 years male was brought to the hospital by Narender Singh father and Anuj, brother with suspected road traffic accident. Patient was found lying unconscious on road. He examined the patient vide MLC Ex.PW-5/A having his signature at point A. Patient was unfit for statement.
18. During cross examination on behalf of accused Nitin he deposed that the suspected history of road traffic accident was disclosed by Sh.Narender Singh and Anuj.
19. Anuj Dabas was examined as PW-6. He deposed that on 07.07.10 he was present at his house. At about 4 AM he received phone call from Rohit, who told him that Rahul son of Narender had sustained injury and is lying in unconscious SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 18 : condition at Rani Khera Road, near cremation ground. In the mean time he also received telephone call from his uncle Narender, father of Rahul. He told him that Rahul had sustained injuries and called him. He along with his uncle Narender in vehicle reached at Rani Khera Road, near cremation ground and found Rohit, Ravi and Neeraj present there. Rahul was lying unconscious. Blood was oozing out of his head. He along with his uncle Narender shifted Rahul to Jaipur Golden Hospital. Rohit also reached hospital while Rahul was being treated. Rahul died in the hospital. He identified the dead body vide document Ex.PW-6/A. Post mortem was conducted at SGM hospital, Mangol Puri. After the post mortem dead body was received by them.
20. During cross examination for accused Kapil, he deposed that when he reached the spot police was not there. Ravi, Neeraj and Rohit told him as well as uncle that Rahul had a quarrel with Nitin, Kapil and Rakesh. He had not told the doctor that Rahul had received injury in quarrel. Rahul was taken to hospital in santro car no.DL8CN 9557. He was driving the car. He helped in lifting the injured and putting him in the car. His clothes were not stained with blood. Rohit SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 19 : reached Jaipur Golden hospital just after them in his own car. Police did not seize the seat cover of his car. The other accused persons also adopted the same cross examination.
21. Ct. Ranjan Pershad was examined as PW-7. On 08.07.10 he along with the crime team reached near cremation ground, main Rani Khera Road, Delhi in front of Bhagya Vihar, where Inspector M.C.Meena, SI Ravi Kumar and other staff was present. Blood was lying on the road by the side of the road. One pair of chappal of black and red colour and one mobile phone were lying there. He took the photographs of the spot. He proved the negatives as Ex.PW- 7/A1 to A5 and the photographs as Ex.PW-7/A6 to A12. He also identified the slippers as Ex.P-8 and the mobile phone as Ex.P-7.
22. During cross examination he deposed that he left crime team office vide DD no.5A recorded at 6.30 AM on 08.07.10. Many public persons were present there. They left the spot at 8 AM. He does not have any diploma or specialization certificate in photography.
23. Sh. Rohit Dabas was examined as PW-8. He deposed that on 07.07.10 he was present at home. At about 3.50 AM SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 20 : his younger brother Ravi came and told him that Nitin, Rakesh and Kapil had taken Rahul along with them on the pretext of taking liquor from his office i.e. Royal Finance. Ravi also informed him that Rahul is lying unconscious near cremation ground, Rani Khera road, in front of Bhagya Vihar and bleeding profusely from his head. He along with Ravi and Neeraj reached there. He also made a call to Anuj and told him about the incident. Father of Rahul along with Anuj reached there. Rahul was unconscious. Father of Rahul and Anuj shifted Rajul to Jaipur Golden hospital in their vehicle. He also reached the hospital in his vehicle. Rahul died in the hospital during the course of treatment. He informed Ravi about the death of Rahul. In response to leading question put by Ld.APP, after permission from the court, the witness admitted that his younger brother Ravi Dabas was having mobile phone no.9999813031 and 9811390716 and both the nos.were registered in his name and taken on his ID.
24. During cross examination for accused Nitin, he stated that he does not remember which phone he was carrying on the day of incident. Police did not arrive on the spot in his presence. Anuj and father of Rahul reached there after them. SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 21 : He did not talk with Rahul from mobile phone no.9999813031 or 9811390716. Ravi was about 17-18 years at that time. Ravi used to return home from the office by 9 or 10 PM. On that day Ravi informed that he is out and would be coming late. He did not make any call on the phone of Ravi as he was sleeping. In his presence his brother and friend had never taken liquor. His brother had consumed liquor when he came to him at 3.30 AM. He only informed Anuj from his mobile phone. The spot is visible from his house. Ravi was present at the residence when he returned from the hospital. Police made inquiries from him in the hospital but his statement was not recorded. His statement was recorded once on 08.07.10 in Sanjay Gandhi hospital. He denied the suggestion that he is deposing under the pressure of police that if he did not depose in support of prosecution case his brother would be made an accused.
25. During cross examination for accused Kapil, he was confronted with his statement where it was not found mentioned that his brother Ravi came and told him that Rakesh and Kapil had taken Rahul along with them on the pretext of taking liquor from the office. He had not told to the SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 22 : father of Rahul that Rakesh, Nitin and Kapil had taken Rahul along with them on the pretext of taking liquor.
26. Ct. Anup Kumar was examined as PW-9. On 08.07.10 he delivered the copies of FIR to the Sr. police officials and Area Magistrate on government motorcycle no.DL1SN 4001.
27. HC Vijay was examined as PW-10. He was working as MHC(M) at the relevant time and proved the entries in register no.19 and 21 as Ex.PW-10/A to PW-10/E.
28. During cross examination he denied the suggestion that the case property was tampered with by the IO while it was in his custody.
29. HC Ashok Kumar was examined as PW-11. On 08.07.10 he was working as duty officer at PS Kanjawala. He proved the copy of FIR as Ex.PW-11/A, the endorsement on the rukka Ex.PW-11/B. He recorded DD no.9A regarding registration of FIR, copy of which is proved as Ex.PW-11/C. After registration of FIR he handed over the original rukka and copy of FIR to Ct. Vikas for handing over the same to Inspector Mahesh Chand Meena for further investigation.
30. During cross examination, he stated that it took him 50 minutes in recording the FIR.
SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 23 :
31. Inspector Sanjay Gade was examined as PW-12. He deposed that on 08.07.10 he was posted as Incharge Crime Team, outer District. On that day after receiving information he along with staff reached Rani Khera Road, near cremation ground. SI Ravi Kumar with staff met him there. He inspected the spot. The photographer took the photographs. He prepared the report Ex.PW-12/A having his signature.
32. During cross examination, he stated that in none of the photographs the mobile phone is visible. They remained at the spot till 8 AM. He denied the suggestion that he had not prepared the fair report. He can't say if IO made inquiry from the public persons present there. No vehicle was found at the spot.
33. Ct. Raj Kumar was examined as PW-13. On 19.08.10 on the instructions of IO, he took one sealed plastic container along with FSL form to FSL Rohini vide RC no.61/21/10 after collecting it from MHC(M). He deposited the same at FSL Rohini, obtained the receipt and handed over the same to MHC(M) on return. Sealed pullanda remained intact in his custody.
34. Ct. Vikas was examined as PW-14. On 08.07.10 on the SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 24 : asking of the duty officer he reached the cremation ground, main Rani Khera road, in front of Bhagya Vihar. SI Ravi Kumar and Ct. Udey Singh met him. Blood was found on the road and by the side of the road, one mobile phone Tata Indicom, one pair of chappal and two empty cartridges were found. SI Ravi Kumar along with Ct. Udey Singh went to Jaipur Golden hospital leaving him on the spot. SI Ravi Kumar returned to the spot and got the spot inspected and photographed. The pair of chappal, mobile phone and two empty cartridges were lifted from the spot put in a separate pullanda sealed with the seal of RK and seized. IO recorded the statement of son of Sukhbir, prepared the rukka and handed over rukka to him to get the case registered. He went to the PS got the FIR registered, came back on the spot and handed over the original rukka and copy of FIR to the IO. He proved the seizure memo of chappal as Ex.PW-1/B, mobile phone Ex.PW-1/E and of cartridges of PW-1/B. He also correctly identified the case property seized. In reply to the leading question put by Ld. APP, with the permission of the court, the witness admitted that the IO prepared the sketches of the empty cartridges which is Ex.PW-1/C. SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 25 :
35. During cross examination for accused Kapil, he deposed that he started from the PS at about 3/3.30 AM. The spot was at a distance of about 10 to 12 km. He took lift from bicycle rider for some distance and covered 3-4 km.on foot. He reached the spot at about 4.15 AM.7-8 public persons were present on the spot, but can't say if Ravi Dabas and Neeraj were present on the spot. In his presence SI Ravi did not make any inquiry from public persons. He can't say if any family members of the deceased also came to the spot. Seizure memos were prepared prior to the preparation of rukka. He can't say when and how Ravi came to the spot. He denied the suggestion that Ravi was not there or rukka was not prepared at the instance of Ravi. He left the spot at 9 AM and reached PS at 10 AM. The cartridges recovered from the spot were having marking KF-7.65. The chappals were black and red colour. He does not correctly remember but London was also found written on the chappal.
36. During cross examination for accused Nitin Dabas, he deposed that in his presence the mobile phone found on the spot was not used by any body. He reached the spot along with FIR and rukka at about 11.30 AM. SHO was present on SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 26 : the spot and he handed over the original rukka and copy of FIR to SHO.
37. Ct. Udey Singh was examined as PW-15. He deposed that on 08.07.10 after receiving DD no.4 A regarding quarrel, he along with SI Ravi Kumar reached main road, cremation ground, Rani Khera in front of Banke Vihar at about 4.15 AM. On the spot blood was lying. One pair of chappals, one mobile phone and two empty cartridges were also found there. On inquiry it was revealed that injured had already been shifted to Jaipur Golden hospital. Ct. Vikas was called on the spot and left there to guard the spot. This witness along with SI Ravi Kumar reached Jaipur Golden hospital. Rahul was found admitted in the hospital but was declared unfit for statement by the doctor. Later on it was informed that Rahul has died during treatment. The blood stained clothes of Rahul were produced by the doctor which were seized vide memo Ex.PW-15/A. This witness shifted the dead body to the mortuary of Sanjay Gandhi Memorial hospital. Post mortem was conducted on the body.After the post mortem doctor handed over the exhibits to SI Ravi Kumar, which were given to the IO.
SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 27 :
38. During cross examination, he deposed that Duty officer handed over the DD no.4A to SI Ravi in the PS. Spot is about 6-7 km. from the PS. They reached the spot on the motorcycle of SI Ravi. 4-5 persons were present on the spot but cannot say if they were the family members of the deceased or not. SI Ravi made inquiries from them but did not record their statements. Those persons were not aware about the facts. They also told that injured had already been removed to the hospital. They reached hospital at about 5/5.15 AM. They met the father and 2-3 other persons in the hospital. I O did not record their statement in his presence. IO did not carry out any proceedings in this case in his presence in Jaipur Golden hospital.
39. HC Rajesh Kumar was examined as PW-16. He joined the investigation of this case on 21.08.10 along with inspector M.C. Meena. On that day accused Kapil @ Sunny surrendered in Rohini court. Accused was arrested vide arrest memo Ex.PW-16/A. His personal search was conducted vide memo Ex.PW-16/B. Accused also made the disclosure statement Ex.PW-16/C. Accused pointed out the place of murder i.e. main road, Bhagya Vihar, near cremation SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 28 : ground, Rani Khera, Delhi vide pointing out memo Ex.PW- 16/D.
40. During cross examination for accused Kapil he denied the suggestion that Kapil did not make any disclosure statement or that signature of Kapil were obtained on blank papers under duress.
41. Ct. Bijender Singh was examined as PW-17. He deposed that on 01.09.10 he collected 8 exhibits duly sealed along with two sample seal and FSL form from MHC (M) for depositing the same at FSL Rohini, vide RC no.70/21/10. He deposited the same at FSL Rohini. On return he handed over the receipt to MHC (M). He proved the copy of road certificate as Ex.PW-17/A and copy of acknowledgment as Ex.PW-17/B. He signed in register no.19 at the time of receiving exhibits from MHC (M).
42. SI Manohar Lal was examined as PW-18. On 06.09.10 he along with IO Inspector Mahesh Chand visited the spot. There he took the rough notes and measurements at the instance of IO. On 07.09.10 he prepared the scaled plan Ex.PW-18/A and thereafter destroyed the rough notes and measurements.
SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 29 :
43. During cross examination, he admitted that scaled plan does not bear his signature. He denied the suggestion that the scaled plan was not prepared by him.
44. SI Ashok Kumar was examined as PW-19. He deposed that he along with IO Inspector Mahesh Kumar Meena and staff reached the spot i.e. main road, Bhagya Vihar, Rani Khera, near cremation ground. SI Ravi Kumar along with complainant Ravi Dabas son of Sukhbir Singh met them there. SI Ravi Kumar handed over one sealed pullanda having clothes of deceased Rahul along with sample seal and three pullands containing a pair of chappals, two empty shells and one mobile phone TATA indicom all having seals of RK. He also produced the seizure memos of the four pullandas. In the mean while Ct. Vikas reached the spot and handed over the copy of FIR and original rukka to the IO. IO lifted the blood from the spot with the help of cotton, blood stained soil, blood stained road piece, earth control of road and of soil, put them in a separate plastic containers converted those in pullandas, sealed with the seal of MM. These were seized vide memo Ex.PW-1/F1 to F5. IO prepared the site plan at the instance of SI Ravi Kumar. SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 30 : Thereafter they went to Sanjay Gandhi hospital where the post mortem on the dead body was conducted after identification by the relatives. After post mortem examination the dead body was handed over to the relatives. Doctor handed over two sealed pullandas one containing the blood in guaze and the other two lead pieces of bullet taken out from the body of the deceased during post mortem. Both the pullandas were having seal of SGMH MORTUARY MANGOLPURI and were seized by the IO.
45. Thereafter they went in search of the accused persons. At about 7 PM near Mundka Railway Station IO inspector Mahesh Meena received secret information that two of the assailants involved in murder of Rahul are trying to abscond from Delhi and could be apprehended. On the pointing out of the secret informer two accused persons Nitin Dabas and Rakesh were apprehending. Nitin Dabas was apprehended by this witness and Rakesh was apprehended by SI Ravi kumar. In the search of Nitin Dabas one pistol was recovered from the left dub of his wearing pants. Accused Nitin Dabas was arrested vide arrest memo Ex.PW-19/A. Accused Rakesh was arrested vide arrest memo Ex.PW-19/B. The SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 31 : personal search were conducted vide memo Ex.PW-19/C and PW-19/D respectively. On checking in the magazine of the pistol 5 live cartridges were found. The sketch of the pistol and live cartridges were prepared which are Ex.PW- 19/E and Ex.PW-19/F. The pistol and live cartridges were put in a pullanda, sealed with the seal of MM and seized vide memo Ex.PW-19/F1. On the base of each cartridge there was marking of KF-7.65. Accused Nitin and Rakesh made the disclosure statement Ex.PW-19/G and PW-19/H. Both the accused led the police team to the side wall near Mundka railway station and got recovered motorcycle no.DL4SAU7679 Glamour Hero Honda. The motorcycle was seized vide memo Ex.PW-19/J. Both the accused persons also pointed out the place of occurrence vide memo Ex.PW- 19/K and 19/L. The witness has identified the pistol and the cartridges as Ex.P-9 collectively. Defence did not dispute the identity of motorcycle and same is Ex.P-10.
46. During cross examination he deposed that they left on 08.07.2010 at about 9 am. Ct.Vikas reached the spot along with FIR and rukka at about 10:00 am some public persons were present on the spot. He denied the suggestion that SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 32 : SHO did not ask any public person to join the investigation. They left for the hospital at about 12:00 or 1:00 pm. IO did not record the secret information. No public person was present nearby when the secret information was received. Secret information was received at a distance of about ½ km from Mundka Railway Station. No employee from railway or any public person was joined. They were in police uniform. On seeing them accused persons tried to escape but both were apprehended. The writing work was done at the railway platform. He denied the suggestion that accused persons were lifted from their respective houses and falsely implicated in this case. He denied the suggestion that nothing was recovered at the instance of accused persons. They reached the police station at about 10:30 or 11:00 pm.
47. W/Ct. Sharda Kumar was examined as PW-20. On 08.07.2010 she was posted at PCR Head quarter on channel No.113. On that day she received information that "Ek ladke ke saath 3-4 ladkey maar peet kar kai bhag gaye" and filled the PCR form. She proved the PCR form as Ex.PW20/A.
48. SI Ravi Kumar was examined as PW-21. He was the first person to reach the spot. He deposed that on receiving SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 33 : DD No.4A Ex.PW21/A, he along with Ct. Uday reached Rani Khera village, main road near cremation ground. He corroborated the testimony of PW15. In the meanwhile DD No.10B Ex.PW21/B regarding death of the injured. He collected the death summary of the deceased, same is Ex.PW21/C. One sealed pullanda containing clothes of deceased with sample seal were handed over to him by the doctor which he seized vide memo ex.PW15/A. He shifted the body through Ct. Uday at Sanjay Gandhi Memorial hospital mortuary vide request Ex.PW21/D. Thereafter, he returned to the spot, called the crime team on the spot, which inspected the scene of crime and also took the photographs. He prepared the sketch of the empty shells Ex.PW1/C. Lifted the mobile phone, chappal and the empty shells and put them in separate pullandas sealed with the seal of RK and seized vide memos Ex.PW1/D and Ex.PW1/B respectively. He recorded the statement of Ravi Dabas made his endorsement Ex.PW21/E and sent the rukka through Ct. Vikas for registration of the case. Further investigation was assigned to Inspector Mahesh Meena who reached the spot along with SI Ashok and other staff. He handed over SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 34 : pullandas and documents to Inspector Mahesh Meena including MLC of deceased Rahul. Inspector Mahesh Meena lifted the exhibits from the spot i.e. blood with the help of cotton, blood stained soil, blood stained road, earth control and the road put them in separate plastic containers sealed with the seal of MM and seized vide memos Ex.PW1/F1 to F5. Inspector Mahesh Meena prepared the site plant thereafter; they went to Sanjay Gandhi Memorial Hospital. He also corroborated the testimony of PW-19 with respect to arrest of accused persons and recovery of the weapon of offence and the motorcycle. He also identified the case property and the accused persons.
49. During cross-examination for accused Nitin he deposed that he received DD No.4A at about 3:50 am. He reached the spot at about 4:30 am. He found Ravi and one more person on the spot for the first time he remained on the spot till 5:30 am. During this period he had only made inquiries from Ravi but did not record his statement. The articles lying at the spot were not preserved on his first visit. He reached the hospital at about 6 am. He received DD No.10B after 6 am but cannot tell the exact time. He cannot SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 35 : tell the time when Ct. Vikas reached the spot. He again reached the spot at about 6:30 or 6:45 am. He was on his motorcycle. The distance between Jaipur Golden hospital and the spot is about 7 to 8 k.m. The crime team reached the spot at about 7 am. SHO was not present when the crime team reached. The crime team concluded the proceedings at about 8 am. As per his knowledge the mobile phone lying at the spot was not used by anyone till the time he left the spot and came back again. He instructed Ct. Vikas to guard the scene properly. SHO reached the spot at about 10:30 am. He does not remember the time when he recorded the statement of Ravi Dabas. Ct. Vikas took the rukka at about 9:00 am. Ct. Vikas came back on the spot at about 10:30 or 10:45 am but he cannot tell which vehicle was used by Ct. Vikas. He reached the police station along with SHO at about 11:00 pm. He does not remember where he left his motorcycle. They reached Mundka in the gypsy of SHO. The secret information was received by Inspector Mahesh Meena at about 7 pm. This witness was also present with Inspector Mahesh Meena at that time. They did not go to any other place before visiting Mundka. Accused persons were not previously known to him SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 36 : and as per his knowledge even Inspector Mahesh Meena was not knowing them. Mundka Railway Station is situated at a distance of about 2.5 km from the place of occurrence. He denied the suggestion that both the accused persons were lifted from their respective houses. No independent public person or employee or railway joined at the time of arrest of accused persons. The disclosure statement was recorded at the place of arrest itself. No public person was joined though public persons were available at that time. No notice in writing was served upon the persons or on the railway employees for not joining the proceedings. He denied the suggestion that the country made pistol and live cartridges have been planted upon accused Nitin in order to create false evidence. He remained at Mundka Railway Station till 10:00 pm. They reached PS: Khanjawala at 11 pm.
50. During cross-examination for accused Kapil he said that Ravi disclosed him the names of suspect when he met him at cremation ground at Rani Khera. He did not record the statement of Ravi then and there as he thought it appropriate firstly to record the statement of victim who had already been removed to Jaipur Golden Hospital. He did not pass on any SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 37 : information to PS: Khanajawala regarding the facts disclosed to him by Ravi. He admitted that in the MLC it has been mentioned that injured had been admitted with the alleged history of suspected road traffic accident. He did not try to ascertain that who had given the said information in the hospital. He had not met father and cousin of injured in the Jaipur Golden Hospital. Ravi did not visit the hospital in his presence. He does not know if father of injured had any conversation with Ravi before coming to the hospital. He did not share the names of the suspect disclosed by Ravi with the father of the injured. He denied the suggestion that Ravi told him that Rahul sustained injury due to road traffic accident. He himself did not check the mobile phone. He did not remember the IMEI number of the said phone. The statement of Ravi Dabas was recorded at about 9 am.
51. W/Ct. Baljeet Kaur was examined as PW-22. On 08.07.2010 she was posted at PCR Head quarter channel No.140 on receiving information that "Kal quarrel mein Nitin and Sunny and Sonu ne hamare ladhey ko bahut maara peeta tha jo Jaipur Golden Hospital mein admit tha ab uski death ho gayee hai". She filled the PCR form, proved the SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 38 : same as Ex.PW22/A.
52. During cross-examination she deposed that it was a male person who made the call but she cannot tell the number.
53. W/Ct. Kiran Lakra was examined as PW-23. She was also in PCR Headquarter working on channel No.121 on 08.07.2010 she received information regarding admission of injured Rahul son of Mr. Narender Singh and his serious condition. She filled the PCR form and proved the copy of the same as Ex.PW23/A.
54. Israr Babu, Alternate Nodal Officer was examined as PW-24. He proved the customer application form with respect to mobile No.9811390716 issued in the name of Rohit Dabas son of Sh. S.S. Dabas. The copy of the same is proved as Ex.PW24/A. The copy of driving license is Ex.PW24/A1 and copy of employee card is proved as Ex.PW24/A-2. Mobile phone No.9999813031 was issued in the name of Rohit Dabas and he proved the customer application form as Ex.PW24/B and copy of driving licence as Ex.PW24/B1. Mobile phone No.9811656522 was issued in the name of Ravi Kumar. He proved the copy of customer application form SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 39 : as Ex.PW24/C and of voter ID card as Ex.PW24/C1. He produced the call details of the above said mobile phone numbers for the period 05.07.10 to 09.07.10 as the same were not available with the company being more than 1 year old.
55. During cross-examination for accused Nitin he deposed that the said mobile phone numbers were issued in the name of persons mentioned but he does not know who was using those mobile numbers. Nothing material came during his cross-examination.
56. Sh. Randhir Singh was examined as PW-25. He deposed that accused Kapil is his nephew. Mobile No.9210643710 of Tata company was issued in the name of his wife Anita. But he does not know who was using the aforesaid mobile phone. He was cross-examined by the Addl. PP wherein he said that he did not tell the police that aforesaid phone was used by accused Kapil since the date of issuance of the Sim card. He was confronted with his statement.
57. During cross-examination by the defence counsel he stated that he does not know if the above said Sim card in SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 40 : the mobile phone used to remain with his wife or not. He does not know if the same was in the name of his wife in the year 2010 or not. He stated that he does not know if someone else had misused the phone or misused the I-card and photograph for obtaining the mobile number. His wife never told him that she had obtained the abovesaid number. He was re-examined by Ld. Addl. PP and he deposed that he was salesman of kerosene at that time and at that he was jobless. He does not know how many mobile phone connections are there in the name of his wife. He was briefed by the IO to tell that this mobile phone is in the name of his wife but he did not tell this fact in his examination in chief. He was not pressurized by the IO. His wife is having mobile phone but he does not remember the number. He never lodged any complaint regarding loss or mis-use of any document. He denied the suggestion that he is changing his statement to save his nephew Kapil from punishment.
58. M.N. Vijayan Nodal Officer Tata Tele Services was examined as PW-26. He has proved the customer application forms and the call details of mobile phone numbers 9289829262, 9210702071, 9210707590 and 9210643710. SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 41 : The call details of mobile No.9289829262 is Ex.PW26/ B. The call details of mobile No.9210702071 is Ex.PW26/C. The call details of mobile No.9210707590 is Ex.PW26/D and the call details of mobile No.9210643710 is Ex.PW26/E. The certificate u/s 65B is Ex.PW26/E. He proved the customer application form and ID proof with respect to mobile No.9289829262 as Ex.PW26/G. The customer application along with ID proof of mobile No.9210702071 is Ex.PW26/H. The customer application form and ID proof of mobile No:9210707590 is Ex.PW26/G and the photocopy of the customer application form along with ID proof of mobile No.9210643710 is Ex.PW26/K.
59. During cross-examination he stated that no authentication was carried out with respect to the address mentioned in the customer application form.
60. Ct. Amit Kumar was examined as PW-27. On 08.07.2010 he was working as DD writer. He recorded DD No.10B on that day at 6:01 am and proved the copy of the same as Ex.PW27/A.
61. Dr. Shalinder Kaui was examined as PW-28. He examined the case file and also the body of the deceased SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 42 : Rahul in ICU and thereafter prepared the death summary which is Ex.PW21/C. During cross-examination he admitted that in Ex.PW21/C he has not mentioned as to what was the cause of death. Vol. The cause of death was always given by the doctor who prepared the report. He denied the suggestion that he did not examine the patient personally or has not examined the case file.
62. Sh. Rahul was examined as PW-29. He deposed that he knew accused Nitin resident of village Rasool Pur, Delhi. Nitin is his friend. He gave his ID proof i.e. driving license for obtaining the mobile connection to the accused. The accused was having two mobile Nos.:9210727590 and 9210702071. He identified the customer application form already Ex.PW26/J for mobile connection No.9210707590 and also his driving licence mark-29/A. Witness has also correctly identified his customer application form Ex.PW26/H for mobile connection No.9210702071 and his signature on the application at point A. He also correctly identified copy of his driving license mark Ex.PW29 B and bears his signatures at point A.
63. During cross-examination he denied the suggestion SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 43 : that he is deposing at the instance of IO. He denied the suggestion that accused Nitin never used these numbers or the same were being used by him only. He denied the suggestion that these phone numbers were taken from his possession in order to falsely Implicate the accused.
64. IO of the case was examined as PW-30. He fully supported the statement of PW-19 and PW-21. He also proved the site plan as Ex.PW30/A. Application for autopsy as Ex.PW30/B, brief facts Ex.PW30/C and the death report Ex.PW30/D. He proved the arrest of the accused persons and the recovery from them and also arrest of Kapil who surrendered before the court. He also got prepared the scaled site plan, collected the call details record and customer application forms, sent the exhibits to FSL and collected the reports. The Biological examination report is Ex. PX and the ballistic division report is Ex. PY. He correctly identified all the accused persons and also the case property.
65. During cross-examination he deposed that on 08.07.2010 he reached the spot at about 10:30 am. He made the departure entry. Ct. Vikas reached the spot at about 11:00 am along with copy of FIR and original rukka. SI Ravi SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 44 : Kumar handed over to him 4 sealed pullandas but he did not inquire from SI Ravi Kumar as to whom he had handed over his seal after use. In the MLC Ex.PW5/A the alleged history has been mentioned as suspected road traffic accident. The witness stated that this fact has been inadvertently mentioned in the MLC by the concerned doctor. It is not in his knowledge if Ravi Dabas accompanied deceased to the hospital. He met Ravi Dabas on the spot. Sh. Narender Singh told him that Ravi Dabas had named the assailants as Kapil, Nitin Dabas and Rakesh to him and he also said that this fact was told to him by Ravi Dabas initially on the spot and subsequently at Jaipur Golden Hospital. Ravi Dabas also told him that he has informed Narender Singh about the names of the assailants. He had not inquired from Ravi Dabas about the exact time when he reached the spot. He had not inquired from Ravi Dabas about the exact time or even the approximate time when he informed the parents of Rahul about the occurrence. He did not collect the call detail record of the mobile phone used by Ravi Dabas. He cannot say if Ravi Dabas came to know about Rahul being in injured condition prior to 9 pm, 10 pm or 11 pm. He said that Ravi SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 45 : Dabas had come to know about the aforesaid facts somewhere about 5 or 6 am in the morning of 08.07.2010. Tata Indicom Mobile phone seized in the present case by SI Ravi Kumar was in working order. He does not remember when the last call was made from that Tata Indicom Mobile phone. He cannot say if the last call was made either at 4 am or 5 am on 08.07.2010. Neeraj Bunty had given information to the father of the deceased. He also recorded statement of Neeraj Bunty on 08.07.2010 at about 11 or 12:00 pm on the spot. He requested many public persons to join the proceedings but they declined. He remained on the spot upto 12:30 pm. He did not hand over his seal after use to any independent person. They remained at Mundka Railway Station upto 8:45 pm. He did not inform local GRP regarding the arrest or any recovery proceedings of aforesaid accused persons. He denied the suggestion that he fabricated the statements of the witnesses and planted the case property upon the accused persons. He denied the suggestion that accused persons have been falsely implicated. Thereafter prosecution evidence was closed. Statement of accused persons were recorded wherein they denied the entire SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 46 : evidence. They stated that they have been falsely implicated. They did not wish to lead evidence in defence and thereafter the case was fixed for final arguments.
66. I have heard. Ld. Addl. PP for the State, Ld. Defence counsels for the accused persons and perused the record.
67. The present case is based upon circumstantial evidence. There is no ocular evidence. It is well settled law that even in the absence of an eye witness the accused can be held guilty and convicted only on the basis of circumstantial evidence. However, there are certain guiding principles which have to be kept in mind while dealing the case of circumstantial evidence. The Apex Court has laid down the guide lines in the case titled C. Chenga Reddy v State of M.P., (1996) 10 SCC 193 and it was held that:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence"
In another case titled Padla Veera Reddy v State of SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 47 : A.P. & Ors., AIR 1990 SC 79 it was laid down that:
"When a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently & firmly established;
2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
68. Ld. APP submitted that this is the case based upon circumstantial evidence as there is no ocular evidence. The prosecution intends to establish its case by proving the following circumstances: -
The circumstance of Last Seen.
The circumstance of Recovery of Weapon of Offence The circumstance of Recovery of Motorcycle of Deceased.SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 48 :
68. The circumstance of Last Seen.
68.1 Ld. Addl.PP submitted that in this case prosecution in order to prove the circumstance of last seen examined Ravi Dabas as PW-1 and Neeraj Dabas as PW-4. Both of them stated that they were present in the office of Ravi situated at Mubarakpur Road. They were taking drinks. Rahul was also with them. Both stated that at about 10.30 PM accused Kapil came to the office and he had exchange of hot words and abuses with Rahul. Kapil left the office extending threats to see him later. Both witnesses stated that thereafter Rahul received threatening calls on his mobile phone from accused Kapil, Nitin and Rakesh and about two hours thereafter all the three accused came to their office. They talked about compromise and thereafter said that as matter is now compromised they will take drinks. But as there were no drinks, the bottle from which they were taking drinks were already consumed, therefore, all the three accused and Rahul left the office to fetch liquor. It has come in the evidence that they had left the office at about 12 mid night or 12.30 AM. Ld. APP submitted that when Rahul did not return for about an hour, both PW-1 and PW-4 went in search of SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 49 : Rahul. They were also making calls on the mobile phone of Rahul but there was no response. They were on the motorcycle. They noticed the light of mobile phone and also heard the bell of mobile phone near cremation ground, Rani Khera Road. They reached near the phone and noticed Rahul lying in injured condition by the side of the road. He was profusely bleeding from his head. Ld. APP submitted that Rahul was noticed by PW-1 and PW-4 in injured condition after he had left the office in the company of all the accused persons. There is proximity of time as well as space between the last scene and the place where he was found in injured condition. Ravi Dabas and Neeraj Dabas after noticing Rahul in injured condition immediately informed Rohit Dabas,PW-8 at about 3.50 AM. Ld. APP submitted that the time gap is only of around three hours and the distance between the two places is about half kilometer. There is no explanation from any of the accused persons coming on the record under Sec.
313 Cr.PC as to where they parted ways or where the Rahul was dropped by them. Both PW-1 and PW_4 have stood through the test of cross examination. There is also nothing on record that they have any reason to depose falsely SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 50 : against the accused persons or there was any animosity between them. The onus which was on the prosecution has fully been discharged. The prosecution has fully proved and established that deceased was lastly seen alive in the company of accused persons with whom he left the office of Ravi Dabas, PW-1. Ld. APP submitted that this circumstance points towards the guilt of accused persons and is also inconsistent with any hypothesis of innocence of accused persons.
68.2 Ld. Defence counsel submitted that the onus which was on the prosecution has not been discharged. It was for the prosecution to prove and establish, firstly that deceased was in the company of PW-1 and PW-4 and from there he left along with the accused persons. Ld. Counsels submitted that according to PW-1 and PW-4 they were taking drinks since 8 PM onwards meaning thereby that they were sitting together but the call detail record placed on the file and proved by the prosecution show that during this period they were talking with each other on mobile phone which is not possible if they were sitting together. Ld. Counsel submitted that the phone no. of Rahul/deceased as per the story is 9289829262 and SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 51 : the phone no.of Neeraj Dabas is 9990853838. There are three calls made by Rahul to Neeraj Dabas at 21:32:90, 21:37:25 and 21:42:12. During this period two calls were made by Neeraj/PW-4 to deceased i.e. at 21:21:12 and 21:31:23. Ld. Counsel submitted that if they were together sitting in the same room from 8 PM to 10.30 PM then these calls from 9.21 PM onwards which continued upto 11.32 PM would not have been there. Ld. Counsel submitted that this clearly show that they were not there. Ld. Counsel further submitted that the allegations are that deceased left with all the three accused persons but PW-4 is not able to tell as to how they left from the office. Both the witnesses also alleged that there was exchange of hot words between Kapil and Rahul but none of them said as to what was the issue on which those hot words were exchanged between the two. Ld. Counsel also submitted that according to PW-1 and PW-4 Rahul left along with the accused persons around 12.15 or 12.30 AM. But the record shows that Rahul was talking with Rakesh on mobile phone after 1 AM and if deceased was with them then there was no reason for him to talk to Rahul on mobile phone. Record shows that Rakesh and Rahul SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 52 : talked with each other at 12:56:47 in the night. Thereafter, 1:32:32, 1:39:56 and 1:42:27. Ld. Defence counsel submitted that these call details itself falsifies the story of the prosecution that they were together. Ld. Counsel submitted that even otherwise according to PW-1 and PW-4 they went in search of Rahul and accused leaving the office after about one hour. They were on the motorcycle. It has come in evidence that it took them only two minutes to reach there, meaning thereby that they must have reached around 1.30/1.35 AM but the information given by them is only at 3.50 AM that also firstly to Rohit examined as PW- 8. Ld. Counsel submitted that there is no explanation as to where they remained during this period. Ld. Counsel further submitted that there is time gap of more than three hours when the deceased was lastly seen in the company of accused persons, and hence there is every likelihood of intervention of any third person in between. Ld. Counsel submitted that under the circumstances the circumstance is not established and it is prayed that benefit be given to the accused persons. Ld. Counsel in support of his arguments relied upon the judgments State Vs. Ramesh Chand Verma SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 53 : & Others 2007 (1) LRC 329 (Del), where in it was held that, "In a case of 'last seen' evidence the prosecution is required to establish by definite evidence that the victim had been killed and the accused must be aware of that and the death must have been proximate to the time of accused and the deceased being last seen together. Last seen theory comes into play when time gap between the time of death of the deceased and the time when the accused and the deceased were last seen together is so small that possibility of any other person killing the deceased becomes impossible.
Where such time gap is long possibility of some else being the author of the crime cannot be ruled out and in such a situation it is not safe to convict an accused on the evidence of last seen circumstances".
68.3 Ld. Counsel also relied upon the judgment cited as Deepak Chadha Vs. State 2012 (3) LRC 318 (Del) (DB), wherein it was held that, "The last seen theory relates to evidence, which is not direct evidence i.e. is circumstantial evidence. The foundation of last seen theory is based on principles of probability and cause and connection.
Where a fact has occurred with a series of acts, preceding or accompanying it, it can safely be presumed that the fact was possible as a direct cause of the preceding or accompanying acts, unless there exists a fact which breaks the chain upon which the inference depend".
68.4 Ld. Counsel also relied upon the judgment cited as SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 54 : Sahadevan & anothers Vs. Stateof Tamil Nadu, 2012 (3) JCC 1756 SC, wherein it was held that:
"With the development of law, the theory of last seen has become a definite tool in the hands of the prosecution to establish the guilt of the accused. This concept is also accepted in various judgments of this Court. The court has taken the consistent view that where the only circumstantial evidence taken resort to by the prosecution is that the accused and deceased were last seen together, it may raise suspicion but it is not independently sufficient to lead to a finding of guilt. In Arjun Malik Vs. State of Bihar (1994 Supp.(2) SCC 372), this Court took the view that the where the appellant was alleged to have gone to the house of one Sitaram in the evening of 19th July, 1985 and had stayed in the night at the house of deceased Sitaram, the evidence was very shaky and inconclusive. Even if it was accepted that they were there, it would, at best, amount to be the evidence of appellants having been last seen together with the deceased. The Court further observed that it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record a finding that it is consistent only with the hypothesis of guilt of the accused and, therefore, no conviction, on that basis alone, can be founded".
68.5 After hearing the arguments and going through the record, I found that there are two witnesses on the issue of last seen I.e. PW-1 and PW-4. Both these witnesses specifically deposed that they were in their office and taking SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 55 : drinks with Rahul. They are consistent that Kapil came there, who had exchange of hot words with Rahul on some earlier issue. The witness stated that he does not know as to what was the issue due to which there was exchange of hots words and abuses between them. None of them told him about the issue. Both are also consistent that thereafter three accused persons came and Rahul left with them. Thereafter Rahul was found lying in injured condition near cremation ground by the side of the road. Both PW-1 and PW-4 are consistent on this point. Both deposed that as they were continuously making call on the mobile phone of Rahul. They saw the light of mobile phone coming from the side of the road and also heard the bell of the mobile phone. They stopped the motorcycle and noticed Rahul lying there in injured condition. The record also shows that there are certain calls made to each other during the period when they were taking drinks but that exchange of calls does not contradict the witnesses as during this period any one of them could have gone outside for bringing some thing to take with the drinks or for any other reason and due to that reason there can be exchange of calls between them. It is also SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 56 : important to note that the Investigating officer should have tried to find out the reasons for such calls but he did not make any such effort as to how these calls were made and by whom or who attended these calls and in what connection. The investigating officer was negligent in this regard. But it is settled law that no benefit of negligence of Investigating Officer can be given to the accused if otherwise the case of the prosecution against the accused is established. Reliance in this regard can be placed upon judgment cited as State of U.P. v. Hari Mohan, (2000) 8 SCC 598 wherein the Supreme Court has held as follows:
"8. Before appreciating the circumstantial evidence in the case, we are at pain to place on record our displeasure regarding the conduct of the investigation in the case. The investigating officer appears to have left no stone unturned to help the accused- respondents. It appears that the valuable evidence, though available, was not collected apparently for ulterior purposes. The conduct of the investigating officer SI D.P. Tiwari (PW7) was even noticed by the trial Court. On 30th October, 1978 while recording his statement, the trial Court observed that "it appears that the IO was negligent and an irresponsible investigating officer". It was noticed that "the witness giving aforesaid statement and it appears that he wants to damage the prosecution case". It is not disputed that during investigation it had come in evidence that SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 57 : respondent No. 1 was possessed of a licensed gun which was stated to have been used by him on 15.3.1977, the alleged day of occurrence, yet no effort was made by the IO to seize the gun or get it examined by an expert to ascertain whether any shot was fired from its barrel. He also failed to have taken into custody the letter written by the deceased for a sufficiently long period though its mention was made by the PW1 in the FIR itself. However, the defective investigation cannot be made a basis for acquitting the accused if despite such defects and failures of the investigation, a case is made out against all the accused or anyone of them. It is unfortunate that no action can be taken against to IO at this stage who, in all probabilities, must have retired by now."
68.6 So far as the time gap is concerned, as according to the witnesses PW-1 and PW-4 deceased left with the accused persons at about 12.30 AM and they found Rahul in injured condition at about 3.30/3.50 AM but it is important to note that so far as PW-8 is concerned, he is the elder brother of PW-1. PW-1 was only 18 years of age at that time, who had seen his friend lying in injured condition, profusely bleeding from his head and therefore firstly he told his brother whose house was nearby as has come in the testimony of PW8. PW8 deposed that the spot is visible from his house. Coupled with this there is other evidence also to be SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 58 : discussed later on that Rahul died due to fire arm injury and the weapon with which the projectiles were fired is also recovered along with the recovery of motorcycle of the deceased. Keeping in view all these facts, in my opinion the prosecution has proved and established this circumstance. The judgments relied upon by the Ld. Counsel are not applicable in the facts and circumstances of the case. 69 Recovery of weapon of offence at the instance of Nitin Dabas.
69.1 Ld. APP submitted that in this case at the spot two empty cartridges were found near the dead body. This fact is deposed by PW-1 Ravi Dabas, Ct. Vikas examined as PW-14 and PW-21 SI Ravi Kumar. Besides that there is report of the crime team which is Ex.PW-12/A and according to that report also two empty cartridges were found on the spot and even the photographer examined as PW-7 deposed about the presence of two empty cartridges on the spot. These cartridges were lifted from the scene of crime. The sketches of same were prepared which is Ex.PW-1/C on the base of the empty cartridge there was marking of KF7.65. These cartridges were put in plastic container wrapped in cloth SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 59 : parcel, sealed with the seal of RK and seized vide memo Ex.PW-1/B. All the three witnesses stood through the test of cross examination in this regard and clearly deposed about the recovery and seizure. Ld. APP further submitted that on 08.07.10 itself accused Nitin Dabas and Rakesh were apprehended from Mundka Railway Station. SI Ashok PW19, SI Ravi PW21 and IO Inspector Mahesh Meena examined as PW-30 specifically deposed that when accused Nitin Dabas was apprehended, he was found in possession of a pistol which was found concealed on the left dub of his wearing pants. The pistol was checked and it was found having five live cartridges in its magazine. The sketch of the pistol is Ex.PW-19/E. The sketch of the five cartridges is Ex.PW-19/F. On the base of the cartridges found in the magazine there was marking of KF7.65. This pistol and the cartridges were put in a cloth parcel, sealed with the seal of RK and seized vide memo Ex.PW-19/F1. Ld. APP submitted that this pistol along with the live cartridges recovered and the live cartridges found near the dead body were sent to FSL for analysis. The FSL result of ballistic expert is Ex.P-Y. According to the report the individual characteristics of firing SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 60 : pin marks and breach face marks present on empty cartridges cases found on the spot tallied with the individual characteristics of firing pin marks and breach face marks present on the test fired cartridge cases fired from the pistol Ex.P-9 recovered from the possession of Nitin Dabas. Ld. APP submitted that all the three police witnesses are consistent in this regard. They have stood through the test of cross examination and proved the recovery of Ex.P-9 beyond doubt. Ld. APP submitted that FSL result Ex.P-Y clearly establishes that it is the same weapon with which the projectile was fired on the head of Rahul due to which he died. Ld. APP further submitted that it has come in the post mortem report Ex.PW-3/A that the cause of death is cranio cerebral damage consequent to penetrating injury to the head via injury no.1 caused by a projectile discharged from a fire arm weapon capable of discharging such a projectile. It is also important to note that there were two entry wounds found on the skull of the dead body and two empty cartridges were also found on the spot. Both those empty cartridges as per the report were fired from Ex.P-9 recovered from possession of Nitin Dabas. Ld. APP submitted that this SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 61 : circumstance stands proved and established and also point towards the guilt of the accused. This circumstance is also inconsistent with any hypothesis of innocence of the accused.
69.2 Ld. Defence counsel submitted that in this case according to the prosecution case accused were allegedly arrested from Mundka Railway Station that also after receiving secret information. GRP and the railway employees were present there. Public persons were also present and available on the railway platform. No efforts what so ever was made to join any official of GRP, employee of railways or the public persons who were present on the spot. Ld. Defence counsel submitted that in fact the accused persons were lifted from their respective houses but shown to have been arrested from Mundka Railway station and that is why no public person was joined. Non joining of public witnesses itself creates doubt about the truthfulness of story of prosecution and creates doubt. Not only about their arrest from the alleged place and time but also the recovery of the alleged weapon of offence. Ld. Counsel submitted that in fact the weapon of offence was planted upon the accused at the SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 62 : instance of Ravi Dabas and Neeraj Dabas to implicate the accused. Ld. Counsel submitted that due to non compliance of provisions of Sec.100Cr.PC, it is clear that prosecution has failed to prove and establish the recovery from the accused, the benefit of the same be given to the accused and they be acquitted. Ld. Counsel in support of his arguments relied upon the judgment cited as Manjit Singh v State, 2009 (4) LRC 248 (Del) (DB) wherein it was held that:
35.Where an article is recovered from a place accessible to all, the recovery thereof pursuant to the disclosure statement by an accused is rendered meaningless.
(See the decision of Supreme Court reported as State of H.P. Vs. Inder Singh, AIR 1999 SC 1293). In the instant case, the recovery of the gun from inside the room of Santosh and her husband, at the instance of the appellant, inspires no confidence. The recovery of the used cartridge from the street accessible to all also does not inspire any confidence. The gun and the used cartridge were not found to be concealed and were visible to all. Applying the ratio laid down by the Supreme Court in Inder Singh's case (supra), no sanctity could be attached to the said recoveries.
36.Mere recovery of incriminating articles at the instance of an accused person, without their being any other evidence to connect the accused with the commission of the crime, is insufficient to bring home the guilt of the accused. (See the decisions of the Supreme Court reported as Narinbhai Haribhai Prajapati SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 63 : V. Chhatarsingh & Ors., AIR 1977 SC 1753; Surjit Singh V. State of Punjab, AIR 1994 SC 110 and Deva Singh Vs. State of Rajasthan, 1999 Cri.L.J.265).
69.3 After hearing the arguments and going through the record I found that there are only police witnesses in this case regarding recovery of Ex.P-9 from the possession of accused Nitin Dabas. It has come on record that there were public witnesses also but none agreed to join the investigation. It is now settled law that it is the quality of evidence which is material and not the quantity. Even otherwise, a police witness can not be disbelieved simply because no public witness were joined. Reliance can be placed on the judgment cited as Parmod Kumar v State (Delhi), (2013) 6 SCC 586 wherein it was held that:
"11. Thus, the submission that the whole case should be thrown overboard because of non-examination of independent witness and reliance on the official witnesses cannot be accepted. Presently, we shall proceed to deal with the veracity and acceptability of the testimony of the witnesses. The learned trial Judge and the High Court, after x-ray of the evidence of the witnesses, have come to the conclusion that Pramod Kumar was a proclaimed offender; that information was received by the competent authority that he was hiding in the house of Chander Pal; that a team had gone to apprehend him; that SI Jaswinder Singh along with other members SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 64 : of the team waited at a distance of 100 yards and Maharaj Singh went to the house of Chander Pal; that the accused was found on the verandah of the house and was asked to surrender but he immediately took out a knife from his shirt pocket; that before he could inflict a knife blow, he was overpowered by Maharaj Singh and there was a grapple between the two; and Maharaj Singh, receiving a bullet injury, fell down and eventually succumbed to the injuries in the hospital. It is not in dispute that Pramod Kumar has received some injuries, but that would not be a ground for discarding the prosecution version and acceptance of the plea of the defence. The evidence on record is required to be scrutinized and appreciated. The witnesses, namely, Baljit Singh, PW-6, Samar Singh, PW-8, Jaswinder Singh, PW-9, Rajbir Singh, PW-11 and Md. Iqbal, PW-16, who have been examined in support of the prosecution, have stood embedded in their version. The witness, Samar Singh, PW-8, has vividly described the occurrence and the graphic description has not been, in any manner, dented in spite of the roving cross- examination. It is apt to note that despite searching cross-examination, none of the witnesses has given way to any tergiversation. When their testimony has not been varied from any spectrum, there is no reason to discard them. Thus, the contention that there should have been examination of independent witnesses to corroborate the evidence of the police officials has to be treated as mercurial. Therefore, we unhesitatingly repel the said submission."
69.4 Similar view was expressed by the Apex Court in case titled Kashmiri Lal v State of Haryana, (2013) 6 SCC SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 65 : 595 and held that:
"9. As far as first submission is concerned, it is invincible from the evidence on record that the police officials had requested the people present in the 'dhaba; to be witnesses, but they declined to cooperate and, in fact, did not make themselves available. That apart, there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to reliable and trustworthy, the court can definitely act upon the same. If in the course of scrutinizing the evidence the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle of quality of the evidence weighs over the quantity of evidence. These aspects have been highlighted in State of U.P. v. Anil Singh, 1990(3) R.C.R (Criminal) 585 :
1988 Supp SCC 686, State, Govt. of NCT of Delhi v. Sunil and another, 2001(1) R.C.R.(Criminal) 56 : 2001(1) SCC 652 and Ramjee Rai and others v. State of Bihar, 2006(4) R.C.R.(Criminal) 289 : 2006(13) SCC 229. Appreciating the evidence on record on the unveil of the aforesaid principles, we do not perceive any acceptable reason to discard the testimony of the official witnesses which is otherwise reliable and absolutely trustworthy."
69.5 In this case as pointed out by Ld.APP there are three SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 66 : witnesses examined about the recovery I.e.PW-19, PW-21 and PW-30. All the three witnesses are consistent, corroborated each other and categorically deposed that accused Nitin Dabas and Rakesh were arrested from Mundka Railway station at the instance of the secret informer on 08.07.10. When the search of accused Nitin Dabas was conducted, one pistol Ex.P-9 was recovered from the left dub of his wearing pants. On checking 5 live cartridges were found in the magazine. The pistol has been identified by all the three witnesses along with its cartridges. This pistol was sent to FSL for opinion of the ballistic expert along with two empty shells found on the spot. Witnesses PW-1, PW-14 and PW-21 along with PW-6 and PW-8 all deposed that on the place of occurrence two empty shells were found. Even in the photograph Ex.PW-7/A6 to A12 the empty cartridges are visible lying on the spot. These cartridges were lifted from the scene of crime, put in plastic container, sealed with the seal of RK and seized vide memo Ex.PW-1/B. These two empty cartridges found on the spot and the pistol along with the five live cartridges recovered from Nitin Dabas were sent to FSL for the opinion of the ballistic expert. The report is Ex.P-Y. SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 67 : According to the report, the individual characteristics of firing pin marks and breach face marks on the empty cartridges found on the scene of crime tallied with the individual characteristics of firing pin marks and breach face marks on the test fire cartridges fired from the pistol Ex.P-9 recovered from the possession of accused Nitin Dabas. 69.6 Keeping in view the above discussions, testimony of PW-19, 21 and PW-30 and the report Ex.P-Y, clearly prove and establish that the weapon Ex.P-9 recovered from the possession of accused Nitin Dabas is the weapon of offence from which the two projectile were fired on deceased Rahul, empty shell of which were found on the scene of crime. The circumstance stands proved and established. It point towards the guilt of accused and is also inconsistent with any hypothesis of innocence of the accused.
70. Recovery of motorcycle of deceased 70.1 Ld. APP submitted in this case there is another important circumstance i.e. the recovery of motorcycle of deceased Ex.P-10 at the instance of accused Nitin Dabas and Rakesh. Ld. APP submitted that it has come in the testimony of PW-1 that all the three accused came on one SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 68 : motorcycle and when they left with Rahul they left on two motorcycle. It has also come in the evidence of PW-1 and PW-2 that Rahul was having motorcycle no.DL4S AU7679. When Rahul was found in injured condition, that motorcycle of Rahul was not found on the spot or near the spot. None of the witnesses i.e. PW-1, PW-4, PW-6, PW-8, PW-14, PW-21 deposed that motorcycle or any other vehicle was found on the spot i.e. where Rahul was found lying in injured condition. That vehicle i.e. the motorcycle Ex.P-10 was got recovered by both the accused i.e. Nitin Dabas and Rakesh on 08.07.10 which they have parked it behind the side wall of Mundka Railway station. Ld. APP submitted that this recovery of the motorcycle of the deceased immediately after the incident at the instance of both accused persons point towards their guilt and at the same time inconsistent with any hypothesis of innocence of accused.
70.2 Ld. Defence counsel submitted that there is no evidence on record that Rahul left the office of Ravi on motorcycle. PW-4 specifically stated that he does not know how Rahul left the office. None of the witness stated that he went on his motorcycle. Under the circumstances it was SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 69 : never the case that the motorcycle of Rahul went missing. In order to strengthen its case the investigating agency planted the motorcycle on the accused persons in connivance with the father of deceased. Ld. Defence counsel further submitted that Sec.100 Cr.PC is also not complied with and prayed that as no public person was joined, that creates doubt about recovery of the motorcycle Ex.P-10 at the instance of accused persons. Ld. Counsel submitted that even otherwise it is a joint recovery as per the prosecution which is inadmissible under law and prayed that the benefit be given to the accused persons and they be acquitted. 70.3 After hearing the arguments and going through the record, I found that in the testimony of PW-1 it has come that motorcycle of Rahul was Glamour Hero Honda and also that all the accused and Rahul left on two motorcycles. It has also come specifically during cross examination on behalf of accused Kapil that all the accused came on one motorcycle. From this it is clear that they all moved on one motorcycle which was brought by the accused persons and the second motorcycle was of deceased Rahul. It is also important to note that neither PW-1 nor PW-4, who were the first to reach SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 70 : there, deposed that they found the motorcycle of Rahul on the spot. PW-8 was the next person to reach the scene of crime but he stated that his interest was to shift the Rahul to hospital and therefore, he did not notice it there was any article lying on the scene of crime. Thereafter, PW-2 and PW- 6 reached the scene of crime who removed the injured to the hospital and they are also silent about presence of motorcycle of Rahul on the spot. Thereafter PW-15 and 21 reached the spot and they also do not say that motorcycle was found on the spot. Ct. Vikas, PW-14 who was left to guard the scene of crime does not speak about presence of motorcycle on the scene of crime. The photographer who took the photographs also does not speak about the presence of motorcycle and the same is also not visible in the photographs Ex.PW-6/A1 to A7. Crime team report Ex.PW- 8/A also does not mention that any motorcycle was found at the scene of crime. Though, in that report the detail of all other exhibits found lying on the scene of crime is mentioned. Keeping in view these testimonies it is clear that Rahul left the office of PW-1 on his motorcycle but when he was found injured near cremation ground, that motorcycle was not there SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 71 : which was got recovered by both the accused which they have kept concealed near the side wall of the village near Mundka Railway station. All the three witnesses examined i.e. PW-19, PW-21 and PW-30 are consistent on this point and corroborated each other. They have stood through the test of cross examination. There is nothing on record to discredit or disbelieve them. Their testimonies inspires confidence. So far as the contention of the Ld. Defence counsel that it being a joint recovery hence not admissible, I found that this controversy is put to rest by Division Bench of High Court of Delhi in case of State vs Mohd. Afzal And Ors., 2003 VIIAD Delhi 1 and hence the joint recovery at the instance of accused Nitin Dabas as well as Rakesh is admissible under law. As discussed above, the circumstance stands proved and established and is inconsistent with any hypothesis of innocence of accused as the recovery is on the same day when the offence was committed, which point towards the guilt of the accused.
71. Ld. counsel also submitted that in this case from the DD entries and the PCR forms. Ld. Counsel submitted that first information given by at 3.38 AM. According to this SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 72 : information, 3-4 boys were giving beating to one boy and those boys thereafter had fled away. There is another DD no.4A recorded at 3.50 AM, according to this DD Rani Khera Village near cremation ground Karala Mode there is quarrel. There is another DD no.10B of the same date, according to that Rahul son of Narender who was yesterday beaten by Nitin, Sunny and Sonu mercilessly and was got admitted at Jaipur Golden hospital died today. Ld. Counsel submitted that besides that there is also MLC on record where the doctor mentioned that it is a suspected case of RTA. The doctor was examined as PW-5. The MLC is Ex.PW-5/A. The doctor stated that this information was given to him by the person accompany Rahul. Ld. Counsel submitted that all these facts clearly shows that it is not the case of murder as alleged but it is a case of either quarrel or road traffic accident but the facts have been manipulated by the investigating agency to show it a murder. Ld. Defence counsel submitted that keeping in view all these facts, it is clear that it is based on concocted story. The witnesses were roped later on to make out a story of last seen and previous enmity. It is prayed that benefit of same be given to the accused persons. SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 73 :
72. After hearing arguments, I found that in this case so far as the first information is concerned which was received at 3.30 AM, it is not clear as to about which place the informant was talking about. So far as the other informations are concerned, those are certainly with respect to the present incident but none of the witness i.e. PW-1, PW-4, PW-5, PW- 6 or PW-8 deposed before the court that they informed the doctor that it is a case of road traffic accident. Even in the history as mentioned in the MLC Ex.PW-5/A the doctor does not mention that this history was given by the persons accompanying the injured. The only fact which was mentioned is that patient was found lying on road unconscious and from that only the doctor presumed that it is a suspected case of road accident but the post mortem report itself negates the same as two entry wound were found on the skull and doctor observed that these entry wound of fire arm and hence, not a case of road traffic accident. Keeping in view these facts, I found no merit in the contention of the Ld. Defence counsel that it is not a case of murder but was manipulated by the investigating agency.
73. Ld. Defence counsel submitted that there is no motive, SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 74 : prove or even alleged by the prosecution. It is a case based upon the circumstantial evidence and therefore, motive achieved great importance. It is submitted that in the absence of motive, the accused persons can't be held guilty and prayed that the benefit be given to the accused.
74. Keeping in view the submissions, I found that there is clear averment by the prosecution about the motive that Kapil had exchange of hot words with the deceased on some previous issue, which shows that there was some animosity between them, though that controversy has not been brought on record, but the two witnesses specifically stated that Kapil left the office extending threats that he will teach him a lesson and will see him later and two hours thereafter, he along with the other two accused i.e. Nitin Dabas and Rakesh came there and took Rahul with them, who was fired at from Ex.P-
9. From this it is clear that the motive was to take revenge by Kapil, in which the other two accused helped him. Even otherwise, in view of the circumstance of last seen well corroborated by the recovery of weapon of offence from the possession of accused Nitin Dabas and recovery of the motorcycle of the deceased Ex.P-10 at the instance of both SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 75 : the accused, I found that prosecution has successfully proved its case. Even otherwise, merely because the motive is not established does not mean that benefit be given to the accused, if there is overwhelming evidence pointing towards the guilt of the accused as in the present case. Reliance in this regard can be placed upon the judgment titled Nizam v State of Rajasthan, 2015(8) JT 87 wherein the Supreme Court has held that:
"If the prosecution is able to prove its case on motive, it will be a corroborative piece of evidence lending assurance to the prosecution case. But even if the prosecution has not been able to prove the motive, that will not be a ground to throw away the prosecution case. Absence of proof of motive only demands careful scrutiny and deeper analysis of evidence adduced by the prosecution."
75. In another case titled Tarsem Kumar v Delhi Administration, AIR 1994 SC 2585 the Apex Court has held that:
"8. Normally, there is a motive behind every criminal act and that is why investigating agency as well as the Court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. It has been repeatedly pointed out by this Court that where the case of the prosecution has been proved beyond all reasonable doubts on basis of the materials produced SC No.57677/16 FIR No.125/10 PS: Kanjhawala : 76 : before the Court, the motive loses its importance. But in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. Of course, if each of the circumstances proved on behalf of the prosecution is accepted by the Court for purpose of recording a finding that it was the accused who committed the crime in question, even in absence of proof of a motive for commission of such a crime, the accused can be convicted. But the investigating agency as well as the court should ascertain as far as possible as to what was the immediate impelling motive on the part of the accused which led him to commit the crime in question."
76. Keeping in view the above discussions the finding on the circumstances, it is clear that all the circumstances are proved and established. The circumstances so proved and established points towards the guilt of the accused and are also inconsistent with any hypothesis of innocence of accused persons. The circumstances also form complete chain. The onus which was on the prosecution has fully discharged. I, therefore, hold all the accused guilty for the offence punishable under Sec.302 read with 34 of IPC. Accused Nitin Dabas is also held guilty under Sec.25 and 27 of Arms Act.
Let they be heard on the quantum of sentence on 15.03.2017. Announced in the Open Court today on 10.03.2017 (VIRENDER KUMAR BANSAL) ASJ/Pilot Court/North District Rohini Courts/New Delhi.
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