Delhi District Court
State vs 1 Dhananjay Singh Bhadoria on 16 November, 2010
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE -VI
cum ADDL.SESSIONS JUDGE (EAST), KARKARDOOMA
COURTS, DELHI.
SC No.135/06/04
Unique Case I.D. No.02402R0060242004
FIR No.349/2003
Police Station Anand Vihar
Under Section 302/392/397/201/404 IPC & 25/54/59 Arms Act.
SC No.136/06/04
Unique Case I.D. No. 02402R0060302004
FIR No.367/2003
Police Station Anand Vihar
U/s 25 Arms Act and 4/5/6 of Explosive Substances Act.
State Versus 1 Dhananjay Singh Bhadoria
S/o Sh. Rajender Singh Bhadoria
R/o R.H.N.I. Friends Colony,
Jhansi Road, P.S. Kotwali, Jhansi.
2 Shailender Kumar Singh @ Kapil
@ Kranti
S/o Sh. Virender Kumar,
R/o H.N. 12, Patel Nagar near
Railway Hartala Colony,
Muradabad.
( Since deceased).
S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 1 of 75
Date of Institution : 14.01.2004
Date of order reserved : 23.10.2010
Date of order : 08.11.2010
JUDGMENT
Vide this common judgment, I shall decide two cases bearing S.C. No.135/06/04 and S.C. No.136/06/04 arising out of two FIRs bearing Nos.349/2003 and 367/2003. The accused persons, namely, Dhananjay Singh Bhadoria (in judicial custody) and Shailender Kumar Singh (since deceased) have been sent to face trial by the police of PS Anand Vihar, for the offences punishable under Sections 302/392/397/201/404 IPC, 25/54/59 Arms Act & 4/5/6 of Explosive Substances Act.
2 During the course of trial, accused Shailender Kumar Singh expired on 09.03.2004, accordingly, proceedings against him stood abated.
3 Briefly stating, the facts of the prosecution case are that on 7.9.2003 at about 3.02 AM, Addl. SHO Ram Raj Singh (PW36) of P.S. Farsh Bazar had given an information through wireless to HC Satish Kumar (PW15) in PS Anand Vihar and he S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 2 of 75 passed the information to duty officer HC Madan Kumar (PW20) who recorded the same vide DD No.5A, Ex.PW20/A to the effect that a dead body was lying near Yojna Vihar, Bus Stand. The said information was received by the Duty Officer HC. Madan Kumar (PW 20). The said DD was assigned to ASI Jai Parkash (PW14). ASI Jai Parkash (PW14) along with Ct. Ashok Kumar (PW21) reached at the spot. The SHO of P.S. Anand Vihar Inspector Satyavir Singh (PW47) along with driver Devender (PW27) and wireless operator Ct. Sanjay (PW28) also proceeded for the spot in government vehicle. The SHO (PW47) met ASI Jai Parkash (PW14) and Ct. Ashok (PW21) at the spot i.e. Master Somnath Marg, near Bus Stand, Yojna Vihar, Delhi where they found a dead body of a young boy aged about 30 years, facing downward, lying on the ground at the distance of 2030 paces from Yojna Vihar Bus Stand. There was a round wound mark on the back of the neck of the deceased from which blood was oozing out. Blood was found scattered on the ground. A wound was also there below the left eye of the deceased. Cash Rs.115/, three tickets of DTC bus and an envelope of ICICI Bank containing documents, Ex.PW30/15 (collectively) were found from the pockets of the deceased on which S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 3 of 75 Raj Kumar Sharma was written. The same were taken into possession vide seizure memo Ex.PW30/B. The Investigating officer prepared a rukka Ex.PW47/A U/s 302 IPC and sent the same to PS through ASI Jai Parkash (PW14) for registration of the case. The Duty Officer HC Madan Kumar (PW20) registered the FIR Ex.PW20/B vide DD No.8A, Ex.PW20/D. The Duty Officer made his endorsement Ex.PW20/C on the rukka Ex.PW47/A and handed over the same to ASI Jai Parkash (PW14). The Duty Officer lodged DD No.9A, Ex.PW20/E in this regard. The copy of FIR was delivered to the senior police officers as well as to area MM by Special Messenger Ct. Yogender Kumar (PW18) and in this regard DD No.14A, Ex.PW20/E1 was recorded.
4 After registration of the FIR, the investigation of the case was taken over by Inspector Satyavir Singh (PW47). The crime team was called at the spot. Photographs Ex.PW13/A1 to A13 of the deceased were taken by photographer Ct. Satya Prakash (PW13) and its negatives are collectively Ex.PW13/A14. The investigating officer (PW47) lifted earth control Ex.PW30/1, blood stained earth Ex.PW30/7 and blood in gauze Ex.PW30/3 from the spot and same were seized vide memo Ex.PW30/A. The Investigating Officer tried S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 4 of 75 to get the dead body identified and then dead body was sent to mortuary in the custody of Ct. Bhanu Partap (PW17) and Ct. Naresh with application Ex.PW47/F for preservation of dead body. The Investigating officer (PW47) inspected the spot and prepared a rough site plan Ex.PW47/D of the place where the dead body was found. He also prepared the inquest papers Ex.PW47/E. He recorded statement of witnesses U/s 161 Cr.P.C. The investigating officer (PW47) deposited the exhibits lifted from the spot and the belongings of the deceased with HC Ramvir Singh (PW33). The same were deposited in the malkhana by PW33 vide entry no.1474, Ex.PW33/A in register no.19.
5 On 7.9.2003, during investigation, Shiv Kumar @ Bobby (PW2) met the Investigating Officer who identified the dead body of deceased Naresh Kumar and told that crime was committed by accused Dhananjay Bhadoria and Shailender @ Kapil @ Kranti. He further informed that on 6.9.2003 at night near police picket of Shakar Pur, accused Shailender put a knife on his neck, but he managed to escape. Accused Dhananjay Bhadoria shot at neck of deceased Naresh and looted his car. He further informed that his purse containing money and credit cards was also looted. At the S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 5 of 75 instance of Shiv Kumar (PW2), the investigating officer (PW47) prepared the unscaled site plan Ex.PW47/H of the place where the deceased was shot at. The Investigating Officer conducted the proceedings U/s 174 Cr.P.C. And got the postmortem on the dead body of the deceased conducted vide letter Ex.PW47/G. Postmortem over the dead body was conducted by Dr. K. Goel and gave his report Ex.PW5/A. After conducting the postmortem, the doctor handed over blood stained clothes, viscera and blood sample of the deceased to the investigating officer. The investigating officer (PW47) seized one pant, one shirt, one underwear, one vest (all having cut marks), one pair of socks and one pair of shoes Ex.PW47/1 (collectively) which was wearing by the deceased. The clothes, blood sample, blood cloth piece Ex.PW30/2 and viscera handed over by the doctor, were seized vide seizure memo Ex.PW30/C and thereafter the same were deposited in malkhana vide entry no.1476, Ex.PW33/B. The dead body after postmortem was handed over to Jagbeer Singh (PW7) and Rajesh Kumar (PW8) vide handing over memo Ex.PW7/A and their statement Ex.PW7/B and Ex.PW8/A respectively were recorded in this regard. Thereafter, the Investigating Officer added sections 392 and 201 IPC in the case. The Investigating Officer made efforts to S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 6 of 75 apprehend the accused persons but in vain.
6 On 21.09.2003 at about 5.45 PM, SI Vinay Tyagi (PW31), SI Atul Tyagi (PW42), ASI Majid Khan (PW43), HC. Nagender Kumar (PW48), Ct. Sohanveer (PW24), Ct. Banbir (PW19), Ct. Satya Parkash (PW46), Ct. Hari Om (PW49), Ct. Jeet Pal (PW40) and Ct. Sudhir (PW51) were present in the industrial area, Patpar Ganj, Anand Vihar. A secret informer came there and informed SI Vinay Tyagi (PW31) that a criminal, namely, accused Dhananjay was present near entry gate of ISBT, Anand Vihar on a black coloured Bajaj Pulsor Motorcycle, having number plate UP 16D 2299. The Secret Informer also informed that accused Dhananjay was having explosives and illegal arms and ammunition and was waiting for his associate for committing crime. SI Vinay Tyagi (PW31) disclosed the secret information to accompanying police personnel. He requested 45 passers by to join the investigation, out of which one public witness, namely, Sanjay Singhal (PW54) agreed to join the proceedings. A raiding party was prepared and at about 6.20 PM, they reached at Bus Stand opposite Maharajpur Check Post, Anand Vihar where on the pointing out of secret informer, they apprehended one boy sitting on the black colour Bajaj Pulsor motorcycle bearing S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 7 of 75 registration No.UP 16D 2299 from the entry gate of ISBT, Anand Vihar. The said boy was having a black colour bag, Ex.PW19/19 on his right shoulder. On inquiry, he disclosed his name as Dhananjay Bhadoria. From the search of accused, one loaded countrymade pistol of 12 bore, Ex.PW19/14 was recovered from his right pant pocket. The pistol was unloaded and 12 bore cartridge was taken out. Sketch Ex.PW19/A of the same was prepared. On checking the black coloured bag, nine live cartridges of 12 bore Ex.PW19/15, one loaded countrymade pistol of 32 bore, Ex.PW19/16 and one live cartridge of 32 bore Ex.PW19/17 were recovered. The pistol was unloaded and 32 bore cartridge was taken out. Sketch Ex.PW19/B of the pistol of 32 bore was prepared. The sketch Ex.PW19/C of nine cartridges of 12 bore was also prepared. From the bag itself, one sweet box, Ex.PW19/18 was also recovered. On opening the same, six ball shaped suspected articles wrapped with plastic tapes were recovered. The accused disclosed that same were six crude bombs. SI Vinay Tyagi (PW31) flashed message to call crime team and bomb detection team at the spot. At about 7.30 p.m. Mobile Crime Team and Bomb Detection Team came at the spot and bombs were got photographed. Inspector Banwari Lal (PW53), Incharge of Bomb Detection Team S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 8 of 75 inspected the spot and opined that the recovered bombs were crude bombs vide his report Ex.PW52/D. The sketches of the recovered cartridges and countrymade pistols were prepared. The same were converted into sealed pullandas. CFSL form was filled at the spot. The black coloured bag, Ex.PW19/19 was also converted into sealed pullanda. The pulanda of countrymade pistol of 32 bore, Ex.PW19/16 was marked as K1, pulanda of countrymade pistol of 12 bore, Ex.PW19/15 was marked as K2, pulanda of cartridges was marked as 'X' and pulanda of bag, Ex.PW19/19 was marked as 'Y'. Six jars, Ex.PW19/7 to Ex.PW19/12 of gun powder were marked as A to F and the jars of splinters and stones, Ex.PW19/1 to Ex.PW19/6 were marked as A1 to F1. The plastic tapes, Ex.PW19/13 were converted into sealed pulanda and same were marked as G. The 12 bore countrymade pistol and cartridges were seized vide seizure memo Ex.PW19/E. The 32 bore countrymade pistol and cartridge were seized vide seizure memo Ex.PW19/F. The crude bombs were seized vide seizure memo Ex.PW19/D. The bag was seized vide seizure memo Ex PW19/G. 7 SI Vinay Tyagi (PW31) prepared the rukka Ex.PW31/A and sent the same to PS through Ct. Banbir (PW19) on S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 9 of 75 the basis of which Duty Officer HC Madan Kumar (PW20) registered the FIR No.367/03 Ex.PW20/F. The Duty Officer made his endorsement Ex.PW20/G on the rukka regarding registration of the FIR.
8 After registration of the FIR Ex.PW20/G, the investigation of the same was assigned to Inspector K.P. Rana (PW52) who reached at the spot and prepared the site plan Ex.PW31/D1. The accused Dhananjay was arrested vide arrest memo Ex.PW19/I and his personal search was carried out vide memo Ex.PW19/J. The accused was interrogated and he made disclosure statement Ex.PW19/K. Insp. K.P. Rana (PW52) seized the motorcycle, Ex.PW31/Article1 from the spot vide seizure memo Ex.PW19/H. 9 On 22.09.2003, accused Dhananjay was produced in the court and sent to J/C vide application Ex.PW47/J moved by the investigating officer. On 28.09.2003, accused Shailender Kumar was arrested and he disclosed that he purchased the material from Javed. Accused Shailender Kumar and Javed were formally arrested vide arrest memos Ex.PW52/Y and Ex.PW52/Y1. Both of them were interrogated and they made their disclosure statements Ex.PW52/X S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 10 of 75 and Ex PW52/X1. Inspector K.P. Rana (PW52) got accused Javed and Shailender discharged as no recovery was effected at their instance. Inspector K.P. Rana (PW52) got the exhibits to CFSL, Chandigarh through Ct. Avinash. He collected the CFSL reports. 10 On the basis of disclosure statement of accused Dhananjay in case FIR No.367/03, he was arrested in FIR No.349/03 vide memo Ex.PW30/D. During disclosure statement, accused disclosed that he could point out the place where crime was committed and the dead body of Naresh was thrown. The accused Dhananjay pointed out the place of occurrence vide pointing out memo Ex.PW30/E. He also pointed out the place where the dead body was thrown vide pointing out memo Ex.PW30/F. He also disclosed that he could get recovered the looted car. The accused was produced before the court and his PC remand was obtained. 11 On 23.09.2003, SI Udayvir Singh (PW29) along with SI Yogesh Kumar (PW30) and other police personnel and accused Dhananjay had gone to Muradabad. At Muradabad, the accused pointed out near Eastern Gate of Sai Hospital as the place where they had parked Santro Car, Ex.P1 after committing the crime vide pointing out memo Ex.PW29/A. Thereafter, it was revealed from S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 11 of 75 rehri and khokhe wala that the car was taken to Police Station Manjhola, District Muradabad. The car was taken into possession by the police of police station Manjhola, Muradabad, UP vide DD No.11, Ex.PW39/A. Then, the police party along with accused had gone to said police station and seized the car, Ex.P1 vide memo Ex.PW29/B. After their return to Delhi, the car was deposited in the malkhana. On 1.10.2003, Aslam Ali (PW10) was called by the Investigating Officer in the police station. Aslam Ali (PW10) checked Santro Car and on opening the dash board Ex.P7 (Ex.PW30/17) one brass bullet was recovered from the lower pipe. The bullet, Ex.PW30/12 was kept in a match box and converted into sealed pulanda. The same was seized vide seizure memo Ex.PW10/A. The dash board Ex.P7 (Ex.PW30/17) of the car was seized vide seizure memo Ex.PW10/B. The dash board and bullet were deposited in malkhana by Insp. Satyavir Singh (PW47) vide entry no.1515, Ex.PW33/E. 12 In pursuance of supplementary disclosure statement Ex.PW30/G, on 25.9.2003 the accused Dhananjay led the police party and the independent witness Rajnish Kumar (PW9) to his rented house No.13/63 Raj Nagar, Ghaziabad and got recovered countrymade pistol 0.315 bore, Ex.P4 (Ex.PW30/10) loaded with S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 12 of 75 fired cartridge, Ex.P5 (Ex.PW30/11). Sketch Ex.PW9/A of the same was prepared and thereafter the same were seized vide memo Ex.PW9/B. The accused also got recovered one jeans pant and shirt Ex.PW30/4 & Ex.PW30/5 (Ex.P6) which were seized vide seizure memo Ex.PW9/C. The accused also got recovered the purse of Shiv Kumar (PW2) from his house containing ATM cards, Ex.P2 and Ex.P3 (collectively) and the same was seized vide seizure memo Ex.PW9/D. The sealed pulandas of countrymade pistol and cartridge were deposited in the malkhana and Section 25/27 Arms Act was added in case FIR No.349/03.
13 On 25.09.2003, on the basis of a secret information Inspector Satyavir Singh arrested accused Shailender vide arrest memo Ex.PW30/H and his personal search was conducted vide memo Ex.PW30/I in which cash and articles Ex.PW30/14 were recovered. During interrogation, his disclosure statement Ex.PW30/J was recorded. Accused Shailender pointed out the place of incident i.e. Shakarpur vide pointing out memo Ex.PW30/K. He also pointed out the place i.e. Yojna Vihar where dead body of Naresh was thrown vide pointing out memo Ex.PW30/L. On 26.09.2003, accused Shailender got recovered one knife, Ex.PW30/8 used in the incident, S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 13 of 75 one key Ex.PW30/16 of car and two credit cards, Ex.PW30/13 which were taken into possession vide memo Ex.PW30/N after converting the knife into a sealed pulanda. The sketch of the knife Ex.PW30/M was prepared. The investigating officer (PW47) got deposited the knife, keys and credit cards and personal search of accused Shailender in malkhana vide entry no.1505, Ex.PW33/C. 14 Accused Shailender was produced before the Court and his PC remand was obtained. On 27.09.2003, accused Shailender pointed out the place i.e. Sai Hospital, Muradabad where the car was abandoned vide pointing out memo Ex.PW16/A. In pursuance of disclosure statement Ex.PW30/O, accused Shailender pointed out the place i.e. Gang Nahar, Masoori near Hapur Road, Ghaziabad where the blood stained clothes were thrown vide pointing out memo Ex.PW16/B. The draugtsman Ct. Sonu Kaushik (PW22) prepared the scaled site plans Ex.PW22/A and Ex.PW22/B of Shakarpur and Yojna Vihar on the pointing out of Inspector Satyavir Singh (PW47). The Investigating Officer obtained the priority letter and got deposited the exhibits in FSL, Malviya Nagar.
15 On 17.10.2003 a request was received from FSL, Malviya Nagar to provide three live cartridges for test fire. Inspector S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 14 of 75 Satyavir Singh (PW47) purchased three live cartridges from Laxmi Nagar and sent the same to FSL after obtaining permission from DCP, Licensing.
16 During investigation, on 29.9.2003, Santro Car Ex.P1 was taken to FSL where it was examined by Dr. Rajinder Singh (PW44) who submitted his report on 1.10.2003. Dr. Rajinder Singh (PW44) lifted blood stains from the piece of seat cover, Ex.PW30/6. The seat cover, Ex.PW30/9 was converted into sealed pullanda by SI Yogesh Kumar (PW30) and the same was seized vide seizure memo Ex.PW21/A and the same was deposited in malkhana vide entry no.1512, Ex.PW33/D. The exhibits were deposited in FSL vide RC Nos.95/21, 96/21, 97/21 and 120/21, Ex.PW33/F to Ex.PW33/H. The photographs Ex.PW25/A1 to A8 were taken by Ct. G. Ganesh (PW25) and its negatives are Ex.PW25/A9 to A16. During investigation, Inspector Satyavir Singh (PW47) obtained photocopies of documents Ex.PW11/A to Ex.PW11/C regarding ownership of the car from Baljeet Singh (PW11), Manager, Orion Automobiles, Gurgaon. The record of call details of mobile phone no.9818524955 for the period 1.9.2003 to 10.9.2003 is Ex.PW23/A. The record of call details of phone no.56087690 is Ex.PW34/A. The said phone S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 15 of 75 was issued in the name of the deceased vide documents Ex.PW34/B to Ex.PW34/D. The exhibits in FSL were examined by Dr. Anita (PW3) who proved the reports as Ex.PW3/A to Ex.PW3/C. Viscera was examined in FSL Rohini by Dr. Kavita Goyal (PW41) vide her report Ex.PW41/A. The exhibits i.e., pistols and cartridges were examined in CFSL Chandigarh by Sh. B.P. Singh (PW35) vide his report Ex.PW35/A. The pistol and cartridges were examined in FSL Rohini by Sh. K.C. Varshney (PW37) vide his report Ex.PW37/A. The sanction Ex.PW38/A under Section 39 of Arms Act for prosecution of the accused Dhananjay under Arms Act for possessing country made pistol of .315 bore was granted by Sh. Alok Kumar (PW38), the then Addl. DCP (East District). The sanction Ex.PW52/A under Section 39 of Arms Act for prosecution of the accused Dhananjay under Arms Act for possessing country made pistol of 32 bore and cartridges was granted by Sh. Ajay Chaudhary, the then Addl. DCP (East District). On the application Ex.PW52/Z of IO Insp. K.P. Rana (PW52), the sanction, Ex.PW52/B under Section 7 of Explosive Substances Act was accorded by Sh. D.M.Sapolia(PW55) the then DM, Delhi vide forwarding letter Ex.PW52/C. Sh. A.K. Dalela (PW50) examined the explosives in S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 16 of 75 CFSL Chandigarh vide his report Ex.PW50/A. During investigation, the investigating officer obtained the copy of FIR No.602/2003 Ex.PW45/A, PS Kavi Nagar, Ghaziabad regarding kidnapping of accused Dhananjay Singh Bhadoria.
17 After completion of the investigation, the challan was put up in the court of the Metropolitan Magistrate, where the accused was supplied with the copies of the chargesheet and the documents of the prosecution and then, the case was committed to the Sessions Court for the trial of the accused.
18 The charge was framed against the accused Dhananjay Singh Bhadoria on 27.11.2004 under Section 392/397/ 302/34 and 201/404 IPC. The accused has also been charged under Section 25/54/59 of Arms Act for possessing country made pistol and one empty cartridge. Vide separate charge of even date, the accused has been charged u/s 25/54/59 Arms Act for possessing two country made pistols and 12 live cartridges and also u/s 4/5/6 of Explosive Substances Act. The accused pleaded not guilty to the charges framed and claimed trial.
19 In order to prove its case, prosecution has examined as many as 55 witnesses in support of its case. Out of those S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 17 of 75 witnesses, PW2 Shiv Kumar is the eyewitness of the incident and PW6 Smt. Madhvi is the wife of the deceased. PW7 Jagbeer Singh, brother in law of deceased, PW8 Rajesh Kumar, brother of the deceased have identified the dead body. PW12 Amit Kumar, brotherinlaw of the deceased had searched for accused with PW2 Shiv Kumar. PW1 Sant Ram arranged shop No.2 Madhu Vihar for deceased.
20 PW36 Inspector Ram Raj Singh had noticed the dead body of deceased on Yojna Vihar Bus Stand while he was working as Addl SHO PS Farsh Bazar and was performing duty of Checking Officer in Vivek Vihar Subdivision and was going to Ramprastha on the intervening night of 6/7.09.2003. He is deposed to have flashed a message on wireless. PW15 HC Satish Kumar received the said information and recorded the same vide DD No.5A. ASI Jai Prakash (PW14) who along with Ct. Ashok(PW21) reached Yojna Vihar Bus Stand on receipt of DD No. 5A regarding presence of a dead body. 21 PW47 Inspector Satyavir Singh was the Investigating Officer of FIR No. 349/03. He was accompanied by PW27 HC Devender(driver) and wireless operator PW28 Ct. Sanjay. PW9 Rajnish Kumar, PW16 HC Malkhan Singh, PW30 SI Yogesh Kumar S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 18 of 75 and PW52 Inspector K.P.Rana also joined investigation of the said case. PW13 Ct. Satya Parkash took photographs of the deceased at the spot. PW17 Ct. Bhanu Partap took dead body to the mortuary where PW5 Dr. K. Goel conducted postmortem on the dead body of deceased Naresh Kumar. PW22 Ct. Sonu Kaushik, draftsman, prepared scaled site plan of the spots. PW39, retired HC Giriraj Kishore Sharma of PS Manjhola, Muradabad, UP, seized Santro Car from Sai Hospital. PW29 SI Udayvir Singh recovered the said car from Muradabad. PW10 Aslam Ali inspected the car and removed bullet from its dash board. The said car was examined in FSL by PW44 Dr. Rajender Kumar. Photographs of the car were taken in FSL by PW25 Ct. G. Ganesh.
22 PW31 SI Vinay Tyagi and PW52 Inspector K.P. Rana are the Investigating Officers of case FIR No. 367/03 whereas PW19 Ct. Banbir, PW24 HC Sohanveer, PW40 Ct. Jeet Pal, PW42 SI Atul Tyagi, PW43 ASI Majid Khan, PW 46 Ct. Satya Parkash, PW48 HC Nagender Kumar, PW49 Ct. Hari Om, PW51 Ct. Sudhir and PW54 Sanjay Singhal remained associated with the investigation of the said case. PW53 the then Inspector Banwari Lal was the Incharge of Bomb Detection Team.
S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 19 of 75 23 PW 18 Ct. Yogender Kumar delivered special reports to Sr. Officers as well as to area Magistrate. PW20 HC Madan Kumar was the duty officer in PS Anand Vihar at the relevant period. PW26 HC Sushil Kumar proved DD No.32A and 4A. PW33 HC Ramvir Singh was the MHCM at the relevant period. PW32 SI Kishore Pandey deposited exhibits in FSL. PW11 Baljeet Singh handed over documents of ownership of Santro Car to the Investigating Officer. PW23 R.K.Singh is the Nodal Officer of Airtel whereas PW34 Manish Kumar Chugh is the Nodal Officer of TATA who supplied call details of phones to the Investigating Officer. PW41 Ms. Kavita Goel examined viscera of deceased in FSL. PW35 B.P.Singh and PW37 K.C. Varshney are the Ballistic Experts who examined pistols and bullets in FSL. PW50 A.K. Dalela examined explosives in CFSL, Chandigarh. During investigation, PW45 SI P.K. Agnihotri supplied copy of FIR of kidnapping case of accused. PW38 DCP Alok Kumar accorded sanction under section 39 of Arms Act and PW55 D.M. Spolia accorded sanction under Explosive Substances Act. 24 The statement of the accused has been recorded under Section 313 Cr.PC. Accused has denied the entire case of the prosecution and has taken the defence that he was kidapped by S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 20 of 75 Ashwani @ Munna Pandit, Rahul Tyagi, Amit Goel, Chottey Lal Sharma, Gaurav Tyagi, Gyanender Singh etc. According to him, deceased was murdered by his kidnapper gang and he was handed over by them to Special Staff SI Vinay Tyagi who was related to his kidnapper and he has been falsely implicated in this case. According to him, Shiv Kumar was also related to Munna Pandit Gang. In his defence, he has examined as many as four witnesses. 25 DW1 Sanjay Singh Bhadoria is brother of accused Dhananjay Bhadoria. He has testified that accused Dhananjay Singh, was a student in Ajay Kumar Garg Engineering College, Ghaziabad. According to him on 7.8.2003, accused had visited Jhansi, UP. He is deposed to have shown his willingness before accused to purchase a vehicle Qualis on which he told that vehicle should be purchased from Ghaziabad. Thereafter, he gave Rs 2,65,000/ to accused in cash and he returned to Ghaziabad. On 19.08.2003 he telephoned accused but it was picked up by his friend Samrat who told that accused had gone to take vehicle with Munna Pandit, Jitender Tyagi, Saurah Tyagi and Amit Goel. On 20.8.03, this witness is deposed to have come to Greater Noida at the residence of his cousin brother Anil Kumar and then they both went to Raj Nagar, Ghaziabad where accused was S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 21 of 75 residing, however, he did not meet them. Friend of the accused, namely, Samrat met them who told that accused had left with Munna pandit, Jitender Tyagi, Saurabh Tyagi and Amit Goel but Dhananjay did not return. He alng with Anil and Shantrunjay went to house of Munna Pandit at Ashok Nagar who told them that accused did not accompany him and on his further asking, he started giving beating to them. On 21.8.03 at about 8.30 p.m. He along with Shatrunjay and Anil Kumar were present at Raj Nagar where Dhananjay was residing when Munna pandit along with Saurah Tyagi, Amit Goel, Jitender Tyagi and Rahul Tyagi, in total 1516 persons came under the influence of liquor in three vehicles, they caught hold of him and snatched his revolver and mobile Phone No. 9415031483. they also caught hold of Shatrunjay, Anil Kumar and Samrat and started giving beatings to them all. They raised alarm, some one called the police, police came and registered FIR No 602/03. After that accused persons were arrested and from them his looted revolver and mobile phone were recovered. It is deposed that SI Vinay Tyagi is related to accused Rahul Tyagi, Jitender Tyagi and Saurabh Tyagi. He has also deposed that other accused persons were engaged in the business of fraud financing and they had murdered one person and that his S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 22 of 75 brother Dhanjay was handed over to SI Vinay Tyagi from Kotdwar where he was confined/ kidnapped by accused persons and has been falsely implicated in this murder case. He has further testified that recoveries were planted upon him.
26 DW2 Sh K.K. Ajad, Sr. Clerk from ARTO Office, Noida has testified that motorcle Bajaj Pulsor 150 CC bearing registration No. UP16D2299 is registered in the name of Mr. Raju Sharma S/o Sh. S.K. Sharma R/o D73, Sector27, Noida, Gautam Budh Nagar which was got financed from Centurian Bank. DW3 Ct. Anil Kumar Sharma of Kavi Nagar Police Station Ghaziabad has produced case property i.e. revolver and mobile No. 9415031483 in case FIR No. 602/03 registered at PS Kavi Nagar under sections 364/395/397/120B IPC.
27 Mutatis mutandis DW4 Satrunjay Singh has also deposed on the lines of DW1, brother of the accused, on all material points, hence, his deposition is not being reproduced here for the sake of brevity.
28 I have heard Shri Pankaj Sanghi, learned APP for the State and Shri S.K.S. Bhadoria, learned defence counsel for the accused. I have carefully gone through their submissions and the S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 23 of 75 record of the case.
29 During the course of arguments, the learned defence counsel has argued that there is no valid sanction for the prosecution of accused under Arms Act as well as under Explosive Substances Act. It has further been argued that the explosives and arms have been planted upon the accused and there is no independent corroboration thereto. It is further argued that the testimony of PW2 Shiv Kumar cannot be read against the accused in the absence of any independent corroboration thereto. It is further argued that Sanjay Singhal, witness to the alleged recovery of explosives and arms has turned hostile to the case of the prosecution, therefore, the story put up by the prosecution is doubtful.
30 From the facts of the present case, points which emerge for consideration are whether the accused committed robbery of articles belonging to deceased and PW2 Shiv Kumar and that is too at the point of deadly weapons; whether accused committed murder of deceased Naresh Kumar and with a view to screen himself from legal punishment, tried to dispose of his dead body; whether the accused misappropriated or converted to his own use the robbed articles of deceased; whether accused was in possession of S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 24 of 75 unlicensed/ illegal arms and ammunitions; whether accused was found in possession of explosives.
Robbery, use of deadly weapons at the time of robbery and recovery of arms 31 Case of the prosecution is that on the intervening night of 6/7.9.2003, accused along with his coaccused Shailender Kumar(since deceased) committed robbery of articles of the deceased as well as of Shiv Kumar @ Bobby(PW2). It is also case of the prosecution that in commission of the robbery, accused persons used deadly weapons i.e. knife and countrymade pistol 32 In order to prove these allegations, prosecution has examined PW2 Shiv Kumar @ Bobby, eye witness of the incident. In his testimony, he has deposed that he and deceased Naresh Kumar had been doing business of deodrant and perfume at Sanjay Nagar, Ghaziabad and that they suffered losses in the said business. Thereafter, they came to Delhi and started living at H.No. 128 Shivani Apartment, Delhi. Deceased Naresh Kumar is deposed to have been living under a fake name of Raj Kumar Sharma and this witness as Rohit Sharma. They are deposed to have taken a shop on rent in Madhu Vihar in the premises of Sant Ram(PW1). According to this S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 25 of 75 witness, they were to deal in business of financing cars. According to him, he knew accused Dhananjay Singh Bhadoria and Shailender Kumar Singh @ Kapil @ Kranti who both had come on their Pulsar motorcycle to meet Naresh Kumar on 6.9.2003 at about 7.30 p.m. at Madhu Vihar as they knew that they were residing in Delhi. Both the accused persons are deposed to have come with sweets and they told that they had purchased a new car. Accused Dhananjay is deposed to have asked them to go to Gurgaon in New Santro XP Car of Naresh Kumar for fun. Thereafter, both the accused, deceased Naresh Kumar and this witness are deposed to have left for Gurgaon in Sanro Car of Naresh Kumar. Both the accused are deposed to have been sitting on rear seat, deceased Naresh Kumar was sitting near driver's seat and this witness was driving the car. They are deposed to have stopped car at Gurgaon Border. He along with Shailender Kumar went to a local liquor shop and brought half bottle of whiskey which they consumed all. Thereafter, they are deposed to have gone to DT Complex, Gurgaon, roamed around, had two bottles of beer and food in a restaurant. According to this witness, Rs. 500 as bill of bottles of beer and food was paid by accused Shailender Kumar. According to this witness, deceased Naresh Kumar had become intoxicated by that S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 26 of 75 time. On the night intervening 6/7.09.2003 at about 1.00 a.m. after crossing the ITO Yamuna Bridge, he stopped the car on the asking of both the accused persons as they wanted to go for urination. Both the accused persons are deposed to have got down from the car and he along with Naresh Kumar remained seated in the car. Accused Shailender Kumar @ Kapil is deposed to have come to his side, put a knife on his throat and asked him to hand over whatever he had. When he started taking out his purse from back side pocket of his trouser, accused Shailender Kumar snatched the same from him. According to him, his purse, at that time, was containing an amount of Rs. 1200/ in cash and his ATM/ Credit cards. He is deposed to have turned around and saw that accused Dhananjay Singh had put his countrymade pistol on the neck of deceased Naresh Kumar, who was in state of intoxication, and then accused Dhananjay fired upon deceased. Thereafter, blood started oozing out from the wound on the neck of Naresh Kumar. He became afraid and after pushing accused Shailender Kumar @ Kapil, ran away from the car towards Yamuna River in order to save himself. While running, he is deposed to have turned back to see whether accused persons were chasing him or not, then he saw accused persons speeding away from the spot with car S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 27 of 75 and deceased Naresh Kumar.
33 According to him, he was having mobile phone of Naresh Kumar at that time since he was intoxicated. He is deposed to have rung up Madhvi (PW5) wife of the accused on her mobile phone. He is deposed to have told her that accused persons had taken away her husband with them in car of her husband. Thereafter he tried to search for Naresh Kumar but in vain. According to him, on information given by him, Amit Kumar(PW12), brotherinlaw of the Naresh Kumar reached at Maharajpur Checkpoint. They both tried to search for Naresh Kumar but in vain.
34 In his cross examination, PW2 has stated that deceased Naresh Kumar was his friend and also his business partner. He further stated that he was not having any mobile phone prior to the incident but he was having a mobile phone on the day of incident as also at the time of occurrence which was of deceased. He admitted that deceased had informed his wife on telephone on 6.9.03 that they were going to Gurgaon. He stated that he searched for the deceased after the incident for 3040 minutes. He further stated that he along with Amit Chaudhary(PW12) searched for the deceased for about two hours. He further stated that he had taken the police to the place of S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 28 of 75 occurrence and thereafter police had taken him to the police of recovery of dead body. He denied that accused Dhananjay had not come to his office on 6.9.03 along with his associate or that nor had he gone with them to Gurgaon. He has specifically denied that accused Dhananjay had not fired on deceased Naresh. 35 Smt. Madhvi(PW5), wife of the deceased has corroborated the testimony of PW2 Shiv Kumar. In her deposition before the Court, she has stated that her husband i.e. deceased left the house on 6.9.03 and in the night of 6/7.9.03 she received a phone call on her mobile phone from the mobile of her husband. Her deceased husband told her that he was along with accused Dhananjay and Shailender in Gurgaon. He also told her that he had already taken food and would reach home within an hour. He further stated that at about 2.15 a.m. on that very night, she received a phone call from Shiv Kumar(PW2) that accused Dhananjay and Shailender dropped him at ITO and took her husband forcibly in car. She told Shiv Kumar(PW2) to contact her Nandoi Amit(PW12).
36 Sh Amit Kumar( PW12) has also corroborated the testimony of PW2 and Smt Madhvi(PW6). PW12 has deposed that on the night intervening 6/7.9.03 at about 3.00/3.30 a.m., he received S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 29 of 75 a telephone call from Shiv Kumar(PW2) that accused Dhananjay and Shailender had shot at Naresh Kumar and taken away his Santro Car. On this information, he reached Maharajpur Checkpost and they both searched for the dead body but could not find the same. 37 Call details of mobile phone No. 56087690 which was lying with the deceased on the day of incident have been proved as Ex.PW34/A whereas the call details of mobile No. 9818524955 which was in possession of Smt. Madhvi, wife of the deceased, at the relevant time have been proved as Ex.PW23/A. Call details of afore mentioned mobile numbers establish that there was conversation between the users of these mobile phones. As per call records, from mobile No. 56087690, deceased, called his wife on mobile No. 9818524955 at 12.55 a.m. on 7.9.03. It was the time when, as per Smt. Madhvi(PW6), her deceased husband informed her that he was along with accused persons at Gurgaon. Call records further show that at 2.20 a.m. On 7.9.03, call was made from mobile phone of deceased to mobile phone of Smt. Madhvi. It was the time when PW 2 Shiv Kumar informed the wife of deceased Smt. Madhvi(PW6) that accused Dhananjay and Shailender dropped him at ITO and took away her husband in the car.
S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 30 of 75 38 It is matter of record that on a secret information being received, on 21.09.03 accused Dhananjay was apprehended in case FIR No.367/03 for possessing illegal arms, ammunitions and explosives. After his arrest in said case, he made disclosure statement with regard to commission of offences in FIR No.349/03. In pursuance to his disclosure statement Ex.PW47/I, accused Dhananjay led the police party to the place of incident i.e. the place where he committed murder of deceased Naresh on the night intervening 6/7.9.03 vide pointing out memo Ex.PW30/E. Accused Dhananjay also pointed out the place where dead body was thrown vide pointing out memo Ex.PW30/F. In pursuance of his disclosure statement, on 23.09.2003 he led the police party to Sai Hospital, Muradabad where he abandoned Santro Car Ex.P1 which was recovered later on from PS Manjhola, Muradabad. Thereafter, accused Dhananjay made supplementary disclosure statement Ex.PW30/G and in pursuance thereof, on 25.09.03 he led the police party to his house bearing No. 13/63, Raj Nagar, Ghaziabad. He took out key from under a brick and opened the lock of a room. From loft in the room, he took down a grey colour box and from the same, accused produced one countrymade pistol of .315 bore. On unloading the pistol, one empty S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 31 of 75 cartridge was recovered. The same was seized vide seizure memo Ex.PW9/B. Accused Dhananjay also produced the clothes which he was wearing on the day of incident. The same were seized vide seizure memo Ex.PW9/C. Accused Dhananjay also got recovered one purse containing credit cards in the name of deceased Naresh Kumar Sharma R.K.Sharma was written. The same were seized vide memo Ex.PW9/D. 39 Investigating Officer Inspector Satyavir Singh (PW47) had joined a public witness, namely, Rajnish Kumar(PW9) in the recovery of articles from the house of accused Dhananjay at Raj Nagar. He has testified that belongings of deceased Naresh, clothes of accused Dhananjay and countrymade pistol with empty cartridge were got recovered by accused Dhananjay from his H.No. 13/63, Raj Nagar on 25.09.03. He identified his signatures on the memos prepared at the spot. He identified the purse containing credit cards belonging to deceased as collectively Ex.P2. He also identified countrymade pistol and fired cartridge as Ex.P4 and P5 respectively. He further identified the clothes of accused Dhananjay as Ex.P6 collectively. During cross examination, he stated that he was working as Manager in Chaudhary Transport Company. He further stated that S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 32 of 75 deceased Naresh was not his relative. On asking of police officials, he agreed to join the investigation. He further stated that at that time accused was with the police. He further stated that all the writing work was done by the police at the spot. Case property was stitched and sketch of the katta was prepared in his presence at the spot. 40 The associate of the accused Dhananjay i.e. co accused Shailender (since deceased) was arrested on 25.09.03 vide arrest memo Ex.PW30/H. His disclosure statement Ex.PW30/J was recorded by Investigating Officer (PW47). Accused Shailender pointed out the place where the dead body of deceased was thrown vide memo Ex.PW30/L as also the place of incident vide memo Ex.PW30/K. In pursuance to his disclosure statement, on 26.9.03 accused Shailender led the police party to H.No. 53 Harkesh Nagar, Okhla, Delhi. From the first floor of the house, he took out a bag and from the bag he produced one knife, one key of Santro Car Ex.P1 and two credit cards in the name of Shiv Kumar (PW2). The articles were seized vide memo Ex.PW30/N. Accused Shailender pointed out the place i.e. Masoorie Gang Nahar where he threw his clothes and also the place i.e. Sai Hospital where Santro Car Ex.P1 was abandoned by pointing out memos Ex.PW16/B and 16/A respectively. S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 33 of 75 The Investigating Officer Inspector Satyavir Singh(PW47) identified the knife as Ex.PW30/8; key of car as Ex.PW30/16 and credit cards Ex.PW30/13 belonging to Shiv Kumar(PW2).
41 It has been argued by Ld. Defence counsel for the accused that testimony of PW2 Shiv Kumar can not be said to be reliable as he was interested witness being partner of the deceased. It is further argued that disclosure statement made by accused can not be read against him. It is further argued that nothing was recovered at the instance of accused, rather alleged recovery of countrymade pistol and articles belonging to deceased is planted and there is no independent corroboration to the same. In support of his argument, he has relied upon a judgment in case Aslam Parwez etc. vs. Govt. of NCT of Delhi reported in AIR 2003 SC 3547 wherein it was observed that accused could not be said to be in possession of revolver and cartridges which were recovered on the basis of his disclosure and the fact that recovery was made after eight months. In the said case, the public witness joined in the search had not supported the prosecution case and no reason was brought forth as to why they would depose falsely to help accused. Another judgment relied upon is Muthu vs. State of Karnataka reported in 2002(4) Crimes 104(SC) in which the S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 34 of 75 accused was acquitted by the Hon'ble Apex Court while giving benefit of doubt by observing that recovery of knife at the instance of accused was unbelievable as testimony of important witnesses was not inspiring confidence as the accused was after a month of the incident.
42 Contention raised by Ld. Defence counsel that recovery effected in pursuance of disclosure statement made by accused is doubtful, is not compatible with the facts brought on record. Recovery of an article in pursuance of disclosure statement made by accused is admissible under section 27 of the Evidence Act. Hon'ble Supreme Court in a landmark judgment titled Mohd. Inayatullah vs. State of Maharashtra, AIR 1976 SC 483 has observed that section 27 of the Evidence Act mandates that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of the police officer, so much of such information whether it amounts to a confession or not as relates distinctly to the facts thereby discovered may be proved. In recent pronouncement, Hon'ble Supreme Court reaffirmed its view on this point while delivering judgment in case titled Dhananjoy Chatterjee Alias Dhana Versus S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 35 of 75 State of West Bengal reported in 1994 (2) SCC 220 which was later on reaffirmed in Nisar Khan @ Guddu and Others Versus State of Uttaranchal, reported in 2006 (9) SCC 386. It was observed that the entire statement made by the accused before the police is inadmissible in evidence being hit by Sections 25 and 26 of the Evidence Act but that part of his statement which led to the discovery of the articles is clearly admissible under Section 27 of the Act.
43 In the present case, accused Dhananjay made disclosure statement Ex.PW30/F and in pursuance thereof he got recovered robbed Santro Car Ex.P1. He further made disclosure statement Ex.PW30/G before the police that the robbed articles of deceased and weapon used in the murder of deceased were lying at his house. In pursuance thereof he led the police party to his rented house bearing No.13/63 Raj Nagar, Ghaziabad, UP. It is important to note here that accused took out the key of the lock from under the brick. It was in the exclusive knowledge of the accused where keys of the lock were concealed which he took out in the presence of public witness Rajnish Kumar(PW9) and police personnel. After opening the lock, accused took down a grey colour box from loft in the room, opened the box and produced credit cards Ex.P2 belonging to S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 36 of 75 deceased, country made pistol Ex.P4 and fired cartridge Ex.P5 which were seized by the Investigating Officer vide seizure memo Ex.PW9/D and Ex.PW9/B respectively.
44 It is pertinent to mention that sanction u/s 39 of Arms Act for prosecution of the accused for possessing country made pistol of .315 bore and empty cartridge of .315 bore without any license or permit, was accorded by Sh. Alok Kumar(PW38) the then Addl. DCP vide sanction order dated 5.3.04 Ex.PW38/A. 45 Contention of Ld. Defence counsel that there is no independent corroboration to the recovery of articles of deceased and weapon of offence, is unfounded one inasmuch as the Investigating Officer(PW47) joined public witness Rajnish Kumar(PW9) in the recovery of said articles from the rented house of accused. Witness Rajnish Kumar(PW9) has fully supported the case of the prosecution that accused Dhananjay got recovered robbed articles of deceased, country made pistol and fired cartridge from his house. He identified his signatures on the memos prepared at the spot in this regard. He also identified the case property so recovered. Therefore, there is due corroboration of recovery of articles in pursuance of disclosure statement made by accused Dhananjay by the independent witness S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 37 of 75 Rajnish Kumar (PW9) and his presence at the spot has remained unrebutted. Moreover, the time gap between the commission of offence by the accused and recovery of articles from his house, cannot be said to have any bearing on the case of the prosecution, as the recovery of articles has duly been corroborated by the testimony of independent public witness Rajnish Kumar (PW9). 46 The next contention of the ld. Defence counsel is that Shiv Kumar (PW2) alleged eyewitness to the incident cannot be relied upon to convict the accused as he is an interested witness being business partner of the deceased. I do not find any force in the contention of the ld. Counsel for the accused, as no enmity of the witness Shiv Kumar with the accused Dhananjay has been brought forth on record. No suggestion has been put to the witness as to why he would falsely implicate the accused in the present case. The only suggestion put by the accused to the witness is to the effect that the witness murdered the deceased with a view to grab his business. From the careful scrutiny of the statement of Shiv Kumar (PW2), I do not find any force in this contention of ld. Counsel for the accused. In the absence of any animosity with the accused, I am of the considered opinion that his testimony is reliable and trustworthy. My this view S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 38 of 75 gets strength from the judgment in case titled Ashok Kumar Chaudhary vs. State of Bihar, (Reported in 2008 Cr. L.J. 2030 in which it has been held that term "interested" postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either, because he had some animus with the accused or for some other oblique motive. The only rule of cation the Court may adopt with respect to such a witness is to scrutinize his evidence with care and caution but, if on such scrutiny his evidence is found to be reliable, probable and trustworthy, conviction can be based even on the sole testimony of a witness who is related to the victim of a crime.
47 In view of the above discussion, it is hereby held that the prosecution has successfully established on record beyond reasonable doubt that on the night intervening 6/7.9.2003, accused Dhananjay along with his coaccused Shailender (since deceased) committed robbery with deceased Naresh Kumar and Shiv Kumar (PW2). It has also been established on record that accused Dhananjay used country made pistol, a deadly weapon and his coaccused Shailender (since deceased) used knife, deadly weapon at the time of committing the robbery. The prosecution has also established beyond S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 39 of 75 reasonable doubt recovery of country made pistol of .315 bore and empty cartridge from the house of accused Dhananjay which he used and possessed without any permit or license.
Murder of deceased Naresh Kumar 48 Case of the prosecution is that on the intervening night of 6/7.9.2003, accused Dhananjay along with his coaccused Shailender(since deceased), after committing robbery on the point of deadly weapons, committed murder of deceased Naresh. 49 To prove its case, prosecution has examined the eye witness of the incident, namely, Shiv Kumar(PW2). In his deposition in the court, Shiv Kumar has stated that he along with deceased Naresh Kumar were doing business of deodrant and perfume together at Ghaziabad. They were residing in Delhi under fake names. Deceased Naresh Kumar was residing under a fake name of Raj Kumar Sharma and witness as Rohit Sharma. They had taken a shop on rent in Madhu Vihar in the premises of Sant Ram(PW1) where they were dealing in business of financing cars. He knew accused Dhananjay Singh Bhadoria and Shailender Kumar Singh @ Kapil @ Kranti who both had come on their Pulsar motorcycle to meet Naresh Kumar on 6.9.2003 at about 7.30 p.m. at Madhu Vihar. Both the S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 40 of 75 accused persons came with sweets and they told that they had purchased a new car. Witness along with deceased and accused persons had gone to Gurgaon in New Santro XP Car of Naresh Kumar where they had taken liquor and food together. He further stated that by the time of their return to Delhi, deceased Naresh Kumar became intoxicated. On the same night at about 1.00 a.m. after crossing the ITO Yamuna Bridge, witness stopped the car on the asking of both the accused persons as they wanted to go for urination. Both the accused persons got down from the car and he along with Naresh Kumar remained seated in the car. Accused Shailender Kumar @ Kapil came to his side, put a knife on his throat and asked him to hand over whatever he had. Accused Shailender Kumar snatched his purse containing Rs. 1200/ cash and his ATM/ Credit cards. When he turned around, he saw that accused Dhananjay Singh had put his countrymade pistol on the neck of deceased Naresh Kumar, who was in state of intoxication, and then accused Dhananjay fired upon deceased. Thereafter, blood started oozing out from the wound on the neck of Naresh Kumar. He became afraid and after pushing accused Shailender Kumar @ Kapil, ran away from the car towards Yamuna River in order to save himself. While running, he is deposed to have S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 41 of 75 turned back to see whether accused persons were chasing him or not, then he saw accused persons sped away from the spot with car and deceased Naresh Kumar. Thereafter, he informed wife of the deceased, namely, Madhvi(PW6) and brother in law of the deceased, namely, Amit(PW12). This witness and Amit(PW12) searched for the deceased but could not find him.
50 This witness was cross examined at length by Ld. Defence Counsel but he failed to put any dent to his testimony. Accused has tried to establish that he was not present at the scene of the crime on the day of incident inasmuch as he was kidnapped and was in the custody of his kidnappers. To establish this, suggestions were put to Shiv Kumar(PW2) that he was belonging to gang of his kidnappers and he committed murder of deceased, but same have been negatived by the witness. The alibi taken by the accused that he was in the custody of kidnapper on the day of incident, is to be dealt with in later part of the judgment.
51 It is matter of record that dead body of deceased was noticed near bus stand at Yojna Vihar by Inspector Ramraj Singh (PW36) when he was on patrolling duty. He informed about lying of dead body through wireless and thereafter PW 14 ASI Jai Parkash S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 42 of 75 along with Ct Ashok(PW21) reached at the spot. SHO PS Anand Vihar inspector Satyavir Singh(PW47) along with his staff reached at the spot. He got the FIR No. 349/03 Ex.PW20/B registered. He took into possession the clothes of the deceased vide memo. Ex.PW47/1. He also lifted blood earth control from the spot. The articles Ex.PW30/15 belonging to deceased were seized by the Investigating Officer vide seizure memo Ex.PW30/B. He prepared inquest papers Ex.PW47/E wherein he mentioned that there is a wound on the back side of neck and a wound below left eye of the deceased. 52 Postmortem on dead body of deceased was conducted by Dr. K.Goel at Subzi Mandi mortuary vide postmortem report Ex.PW5/A. He observed following external injuries over dead body of deceased: (1)Oval shaped lacerated punctured wound of size 1.75 cm x1.25 cm with abraded collar around.
There was area of blackening all around the wound in area 5cm x 3.25 cm with slight seinging of surround hairs. The wound was situated on the back of neck just left to the S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 43 of 75 midline, about 2 cm below the hair line. Margins were inverted ( entry wound of firearm).
Wound height from heel was 155 cm.
(2) Split laceration with everted margins over medial end of lower lid of left eye, transversely placed of size 1.75 cm x 0.5 cm. No blackening, seinging or tattooing seen( exit wound of fire arm).
53 Doctor also observed following internal injuries: There was slight subarachnoid hemorrhage over cerebellum and medullar part of brain. Doctor found that injury tract starts from the entering wound through the soft tissues below the left side base of skull, extensively communitting the left transverse process of third cervical vertibra complete fracture separation of left most part of maxilla with second and third molars separation fracture left zygomatic arc, fracturing the symphysis mentii due to blast effect and coming out through exit wound. Direction and plain of injury tract was from behind forwards and below upwards. Doctor(PW5) was of S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 44 of 75 the opinion was that cause of death spinal shock consequent upon cervical vertebral and spinal cord injuries as a result of blast effect of firearm injury. Mode of death was homicidal. All injuries were opined to be ante mortem in nature caused by firearm. The firearm was opined to be rifle and range was closed. He further opined that firearm was sufficient to cause death in ordinary course of nature. 54 It is matter of record that the countrymade pistol Ex.P4 and fired cartridge Ex.P5 used by accused Dhananjay for firing at deceased were got recovered by him from his house at Raj Nagar, Ghaziabad. The said country made pistol Ex.P4 and fired cartridge Ex.P5 were seized by the Investigating Officer (PW47) vide seizure memo Ex.PW9/B. The same were sent to FSL for obtaining expert opinion with regard to functioning of the firearm. At FSL, Rohini, Sh K.C. Varshney (PW37) examined the recovered katta Ex.P4 and found the same to be in working order. He conducted a test fire from the said country made pistol, Ex.P4 and a successful fire was shot at from the same. He gave his detailed report Ex.PW37/A. The country made pistol, Ex.P4 (Ex.PW30/10) and fired cartridge, Ex.P5 (Ex.PW30/11) were shown to the witness in the court and he identified the same as they were examined by him in the laboratory. S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 45 of 75 55 It is case of the prosecution that accused persons sped away with deceased in his Santro Car Ex.P1 after committing robbery at the point of deadly weapon and after firing at deceased Naresh Kumar. It has come in evidence that accused Dhananjay fired another shot upon the deceased which did not hit him but hit the dash board Ex.P7( Ex.PW30/17) of the car Ex.P1.
56 Investigating Officer(PW47) called Aslam Ali (PW10) from Hyundai Motor Company. Aslam Ali(PW10) examined the car Ex.P1 and after opening its dash board Ex.P7, he removed a brass bullet Ex.PW30/12 from the same. The lid Ex.PW30/12 was seized vide seizure memo Ex.PW10/A and dash board Ex.P7 was seized vide memo Ex.PW10/B. The said dash board Ex.P7 was produced in the Court and witness Aslam Ali(PW10) had identified to be same which was removed by him.
57 The lid Ex.PW30/12 was examined by Sh.
K.C.Varshney(PW37) in FSL, Rohini. He examined individual characteristics striations on the lid and test fired bullet and after comparing the same, both were found to be identical. After examining the same, he opined that the lid Ex.PW30/12 was fired from country made pistol Ex.PW30/10.
S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 46 of 75 58 Dr. Rajender Kumar(PW44) examined the Car Ex.P1 in FSL on 29.09.03. He lifted blood stained from the seat cover adjacent to driver's seat. The blood sample and blood stained seat cover, Ex.PW30/6 and 30/9 were seized and deposited in malkhana vide entry No. 1512 Ex.PW33/D. They were sent to FSL for obtaining expert's opinion. It is also matter of record that clothes of the deceased Ex.PW47/1 and blood Ex.PW30/1 to Ex.PW30/3 lifted from the place where the dead body was found lying were also sent to FSL. Description of articles received in FSL are contained in report Ex.PW3/A. As per report, blood was detected on clothes of the deceased. Blood in gauze Ex.PW30/3 lifted from the place where dead body was found to be of 'A' group vide report Ex.PW3/B. As per this report, human blood of group 'A' was detected on the seat cover of the car.
59 Accused Dhananjay has taken plea of alibi that he had not committed offences in the present case as he was in the custody of his kidnappers at the relevant time and period. To prove his defence, accused has produced and examined DW1 Sanjay Singh Bhadoria(his brother). According to DW1, Samrat, friend of accused informed this witness that accused Dhananjay had gone to purchase S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 47 of 75 vehicle with Munna Pandit, Jitender Tyagi, Saurav Tyagi and Amit Goel and since then he did not return. When this witness had gone to the house of Munna Pandit, he told him that accused Dhananjay did not accompany him. Thereafter, the witness along with others searched for the accused but could not find him. Thereafter, he lodged FIR No. 602/03 PS Kavi Nagar under section 364/395/397/120B IPC. Witness further stated that SI Vinay Tyagi (PW31) is related to gang members/ kidnappers and he in connivance with them murdered one person and his brother i.e. accused has been falsely involved in this case. Similar is the deposition of DW4 Satrunjay Singh.
60 The Investigating Officer of the kidnapping case of accused Dhananjay in FIR No. 602/03 Ex.PW45/A was SI P.K. Agnihotri(PW45). He has stated that said FIR was registered on 21.08.03 and after apprehension of accused Dhananjay in the present case, he interrogated the accused and recorded his statement. In his statement, accused had stated that he was kept in confinement for about 15 days by his kidnappers and thereafter he managed to escape from the clutches of his kidnappers.
61 The plea of alibi flows from section 11 of the Indian S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 48 of 75 Evidence Act and is demonstrated by illustration(a). The word'' alibi'' is a latin word and means'' elsewhere''. It is a common term used by an accused that when the occurrence took place, he was so far away from the place of occurrence and it was highly improbable for him to participate in the crime. When the prosecution succeeds in proving the commission of offence by the accused, then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence.
62 In order to prove the plea of alibi, accused has to prove that he was elsewhere and not present at the scene of crime. In the present case, it is case of the accused that he was in the custody of his kidnappers. But he has not specified as to when he was kidnapped, he has not specified the place where he was kept by his kidnappers and as to on which date, he escaped from their custody. where he was kept but for that he has to specify the place, distance, period of stay.
63 A similar situation arose before Hon'ble Supreme Court in case titled as Dudh Nath Pandey vs State of UP reported in 1981 AIR SC 911. Facts of the said case were that accused had taken S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 49 of 75 alibi that he was not present at the place of occurrence where murder had taken place rather he was on his duty at his usual place of work. In the said case, the Trial Court as well as Hon'ble High Court had not accepted the alibi set up by the accused. Hon'ble Supreme Court was also of the view that accused had failed to establish the plea of alibi. Relevant para No. 19 of the judgment is reproduced as under : ''Counsel for the appellant pressed hard upon us that the defence evidence establishes the alibi of the appellant. We think not. The evidence led by the appellant to show'' that at the relevant time, he was on duty at his usual place of work at Naini has a certain amount of plausibility but that is about all. The High Court and the Sessions Court have pointed out many a reason why that evidence can not be accepted as true. The appellant's colleagues at the Indian Telephone Industries made a brave bid to save his life by giving suggesting that he was at his desk at or about the time when the murder took place and further, that he was arrested from within the factory. We do not want to attribute motives to them merely because they were examined by the defence. Defence witness are entitled to equal treatment with those of the prosecution. And Court ought to overcome their traditional instinctive disbelief in defence witnesses. Quite often they tell lies but so do the prosecution witnesses. Granting that DWs 1 to 5 are right, their S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 50 of 75 evidence, particularly in the light of evidence of two court witnesses, is insufficient to prove that the appellant could not have been present near the Hathi Park at about 9.00 A.M. when the murder of Pappoo was committed. The plea of alibi postulates the physical impossibility of presence of accused at the scene of offence by reason of his presence at another place. The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed. The evidence of the defence witnesses, accepting it at its face value is consistent with appellant's presence at the Naini Factory at 8.30 A.M. and at the scene of offence at 9.00 A.M. So short is the distance between the two points. The workers punch their cards when they enter the factory but when they leave the factory they do not have to punch the time of their exit. The appellant, in all probability, went to the factory at the appointed hour, left it immediately and went in search of his prey. He knew when, precisely, Pappoo would return after dropping Ranjana at the school. The appellant appears to have attempted to go back to his work but that involved the risk of the time of his re entry being punched again. That is how he was arrested at about 2.30 p.m. while he was loitering near the Panshop in front of the factory. There is no truth in the claim that he was arrested from inside the factory''.
S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 51 of 75 64 Accused, in response to a question specifically put in his statement U/s 313 Cr.P.C., he has only stated that FIR No. 602/03 Ex.PW45/A was registered on the complaint of his brother Sanjay as he was kidnapped. This was the best possible opportunity available with the accused to explain as to under what circumstances he was kidnapped, for how much period, and where he was kept during his alleged confinement with kidnappers. In the absence of such explanation and in the absence of any evidence, it can not be inferred that accused was in the custody of his kidnappers at the time of commission of offences in the present case. It is pertinent to note that Investigating Officer of FIR No. 602/03 has specifically stated that accused remained confined for about 15 days with his kidnappers and thereafter he managed to escape. Date of registration of FIR No. 602/03 is 21.08.03. If period of 15 days is counted from 21.08.03, it can be easily presumed that accused managed to escape by 5.9.03 and there was every possibility to commit the offences of the present case. Thus the accused has failed to prove that he had not committed the crime charged against him or that he was not at the place of occurrence on the intervening night of 6/7.9.03. Therefore, plea of alibi taken by accused appears to be false.
S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 52 of 75 65 It has been argued by Ld. Defence counsel that testimony of solitary eye witness Shiv Kumar(PW2) can not be made basis for conviction of the accused as he was the business partner of deceased and his testimony is not supported by any independent corroboration.
66 In view of unshaken statement made by Shiv Kumar (PW2), I am not inclined to accept the aforesaid argument of Ld. Defence Counsel. In my view, statement of victim of the crime who happened to be eye witness of the incident and had suffered at the hands of the accused, alone is sufficient to base conviction if his solitary testimony inspires confidence of the Court. My this view is strengthened by judgments of Hon'ble Apex Court in Machhi Singh vs State of Punjab 1983 Cr. L.J. 1457, Makan Jivan and Ors. vs. State of Gujarat, AIR 1971 SC 1797; Mori Lal and Anrs. Vs State of U.P. AIR 1970 SC 1969 and Jamuna Chaudhary and Ors. Vs State of Bihar, AIR 1974 SC 1822, in which it has consistently been held that evidence of the victim of the crime alone is sufficient to bring home the guilt of the accused, even if the evidence of other witnesses is excluded from the consideration.
67 From the statement of eye witness Shiv Kumar S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 53 of 75 (PW2), the prosecution has successfully established that on the intervening night of 6/7.9.03 accused Dhananjay along with his co accused Shailender Kumar(since deceased) robbed him and deceased Naresh Kumar at the point of deadly weapon. During commission of robbery, it stands proved, that accused Dhananjay fired a gun shot on the neck of deceased Naresh Kumar which resulted into his death. Testimony of eye witness Shiv kumar(PW2) remained unrebutted and unshaken. The defence has tried its best to doubt the veracity of his version but it fell flat. Testimony of PW2 Shiv Kumar is compatible with medical evidence and evidence of ballistic expert. Medical evidence in the form of postmortem report of deceased establishes that his cause of death was blast effect of firearm injury and injuries were antemortem in nature. From the opinion of ballistic expert K.C. Varshney(PW37), it stands proved on record that the pistol used by accused Dhananjay in firing at deceased Naresh Kumar was in working order at the relevant time which establishes that same weapon was used by accused Dhananjay in firing at deceased which resulted in his death. The ocular statement of Shiv Kumar (PW2) coupled with medical evidence and other incriminating evidence i.e., recovery of weapon used by them in commission of crime, robbed S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 54 of 75 articles belonging to deceased, brought on record by the prosecution, it clearly goes to prove that it was the accused Dhananjay who along with his coaccused Shailender Kumar (since deceased) firstly robbed the deceased and Shiv Kumar (PW2) at the point of deadly weapon and then committed murder of the deceased Naresh Kumar. Disappearance of evidence 68 It has come on record that after commission of robbery and murder, accused Dhananjay along with his coaccused Shailender Kumar (since deceased) fled away from the spot after leaving behind Shiv Kumar (PW2) and then threw the dead body of deceased near Yojana Vihar bus stand. It has also come on record that the car Ex.P1 belonging to the deceased and used by accused persons in the commission of crime, was abandoned by them at Muradabad.
69 In Budhan Singh Vs. State of Bihar (Reported in 2006 AIR SC 1959), the Hon'ble Supreme Court has held that in order to prove an offence under Section 201 IPC, prosecution is bound to prove (1) that an offence has been committed, (2) accused knew or having reason to believe the commission of such offence, (3) with such knowledge or belief (a) caused any evidence of commission of S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 55 of 75 that offence to disappear, and (4) that he did so with the intention of screening the offender from legal punishment.
70 In the present case, after committing robbery and murder of deceased Naresh near ITO bridge, accused along with his coaccused threw the dead body of deceased near Yojana Vihar bus stand. Thereafter, both the accused persons abandoned the car at Sai Hospital, Muradabad. After the apprehension of accused Dhananjay, he led the police party to the spot i.e. near ITO bridge where he shot the deceased and pointed out the said place vide memo Ex.PW30/E. He also pointed out the place i.e. near Yojana Vihar bus stand where the dead body of deceased Naresh was thrown by them vide pointing out memo Ex.PW30/F. Accused led the police party to Sai Hospital, Muradabad where they abandoned the car Ex.P1 belonging to the deceased and pointed out the said place vide memo Ex.PW29/A. 71 Inspector Ram Raj Singh (PW36) noticed the dead body lying near Yojana Vihar bus stand on the intervening night of 6/7.9.2003 and gave a message. The Investigating Officer (PW47) along with other staff reached near Yojana Vihar bus stand where the dead body was found lying. It is also matter of record that the car Ex.P1 which was abandoned by accused at Sai Hospital, Muradabad S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 56 of 75 was lateron recovered from PS Manjhola, Muradabad as the same was taken by the police officials of PS Manjhola to the police station. All it goes to establish that accused Dhananjay along with his coaccused Shailender Kumar (since deceased) caused the disappearance of dead body of deceased and car Ex.P1 belonging to the deceased with a view to screen himself from receiving legal punishment. Thus, it is held that the prosecution has successfully proved beyond reasonable doubt that accused caused the disappearance of evidence and he is liable to be convicted for the commission of offence u/s 201 IPC. Misappropriation of robbed articles 72 It is also case of the prosecution that robbed articles of deceased Naresh were found in the possession of accused Dhananjay. In order to prove this fact, Investigating Officer Inspector Satyavir Singh (PW47) has stated that in pursuance of disclosure statement Ex.PW30/G, accused Dhananjay led the police party to his tenanted house situated at 13/63, Raj Nagar, Ghaziabad. After reaching there, accused Dhananjay took out key from under a brick and opened the lock of a room. From loft in the room, he took down a grey colour box and from the same, accused produced one countrymade pistol of .315 bore. On unloading the pistol, one empty S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 57 of 75 cartridge was recovered. Accused Dhananjay also got recovered one purse containing credit cards in the name of deceased Naresh Kumar Sharma R.K.Sharma was written. The same were seized vide memo Ex.PW9/D. In the said recovery proceedings, one independent public witness, namely, Rajnish Kumar (PW9) was also joined. He has stated that belongings of deceased Naresh, clothes of accused Dhananjay and countrymade pistol with empty cartridge were got recovered by accused Dhananjay from his H.No. 13/63, Raj Nagar on 25.09.03. He identified his signatures on the memos prepared at the spot. He identified the purse containing credit cards belonging to deceased as collectively Ex.P2.
73 In case titled Ganesh Lal vs State of Rajasthan 2002 Cri.L.J. 967, the Hon'ble Supreme Court held the accused guilty for the commission of offence u/s 404 IPC when after committing rape and murder, he was found in possession of articles of the deceased. Facts of the said case were that accused after committing rape and murder of prosecutrix, was found in possession of silver ornaments worn by her and was charged under section 404 IPC. In that context, in the absence of any satisfactory explanation for possession of silver articles of the deceased, he was held guilty U/s 404 IPC and his S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 58 of 75 conviction was upheld by Hon'ble Supreme Court. It was observed that section 114 of the Evidence Act provides that Court may presume the existence of any fact which it thinks likely to have happened. Illustration(a) provides that a man who is in possession of stolen goods soon after the theft may be presumed by the Court to be either the thief or one who has received the goods knowing them to be stolen, unless he can account for his possession. While relying upon several authoritative pronouncements, it was further observed that murder and robbery were proved to have been integral part of one and the same transaction and the presumption arising under illustration (a) to section 114 of the Evidence Act was applied for holding the accused guilty of not only having committed robbery but also murder of the deceased. It was further observed that ordinarily purpose of section 313 Cr.P.C. is to afford an accused an opportunity of offering an explanation of incriminating circumstances appearing in prosecution evidence against him. If the accused fails to offer any satisfactory explanation for his possession of stolen property, an inference is to be raised against him because the fact being in the exclusive knowledge of the accused.
74 In the present case also, it was in the exclusive S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 59 of 75 knowledge of the accused Dhananjay that where the articles belonging to deceased Naresh were kept by him. His conduct by taking the keys of lock from under the brick shows his exclusive knowledge about the concealment of said articles. It is also pertinent to note here that the articles of deceased were lying in a box hidden on the loft on the room of the accused, which he got recovered. By relying upon the judgment in case of Ganesh Lal (supra), I am of the considered opinion that the said recovery of articles belonging to deceased in pursuance of disclosure statement of accused Dhananjay is clearly admissible under Section 27 of the Evidence Act. So, it is held that the prosecution has successfully established that the accused Dhananjay misappropriated with the property belonging to the deceased for his own use.
Recovery of Arms, Ammunition and Explosives in FIR No.367/03 75 It is also case of the prosecution that on 21.09.03, accused Dhananjay was apprehended on the basis of a secret information. After his apprehension, arms, ammunition and explosives were recovered from him.
76 To prove its case, prosecution has examined SI Vinay Tyagi(PW31). He deposed that on 21.09.03, he along with SI Atul S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 60 of 75 Tyagi(PW42), ASI Majid Khan(PW43), HC Nagender Kumar(PW48), Ct. Banvir(PW19), Ct. Hari Om(PW49) and other police officials were present in Industrial Area, Patparganj, Anand Vihar where one secret informer met him. He informed the SI Vinay Tyagi(PW31) that a criminal Dhananjay Singh was present near entry gate of ISBT, Anand Vihar on his black Pulsar motorcycle bearing No. UP16D 2299, having illegal arms and ammunition. SI Vinay Tyagi(PW31) narrated the information to accompanying staff and asked passersby to join the raiding party but none agreed. One passerby Sanjay Singhal(PW54) joined the raiding party on the asking of SI Vinay Tyagi(PW31). Thereafter, they reached near Entry Gate of ISBT, Anand Vihar at about 6.20 p.m. At about 6.30 p.m., accused Dhananjay was apprehended at the instance of secret informer. Accused was having a black colour bag on his right shoulder. On opening the bag, two country made pistols i.e. 12 bore and .32 bore, 9 live cartridges of 12 bore, 1 live cartridge of .32 bore and one sweet box were recovered. On opening the sweet box, six improvised crude explosive bombs wrapped in Khakhi plastic tape were recovered. Bomb Disposal Squad was called at the spot. Inspector (PW53) Incharge of Bomb Detection Team along with his team reached at the S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 61 of 75 spot and after getting the bombs photographed, defused them by separating the dark grey coloured gun powder, iron splinters and stones. Gun powder was kept in six jars marked A to F whereas iron splinters and stones were kept in jars marked A1 to F1. Khakhi plastic tape was converted into a cloth pulanda marked G. Crude explosive bombs were seized vide seizure memo Ex.PW19/D. From the barrel of .32 bore pistol, one live cartridge was recovered. Country made pistol of .32 bore along with two live cartridges of .32 bore were converted into cloth pulanda marked K1 and were seized vide seizure memo Ex.PW19/F. From the barrel of 12 bore coutrymade pistol, one live cartridge of 12 bore was recovered. Country made pistol of 12 bore along with nine live cartridges of 12 bore were converted into cloth pulanda marked X and were seized vide seizure memo Ex.PW19/E. The black colour bag was also converted into cloth pulanda as marked Y and was seized vide seizure memo Ex.PW19/G. All the cloth pulandas were sealed with the seal of VKT. CFSL form was filled up at the spot and seal after use was given to Ct. Banvir(PW19). Thereafter, SI Vinay Tyagi(PW31) prepared a rukka Ex.PW31/A and got the FIR No. 367/2003 Ex.PW20/F registered in the Police Station.
S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 62 of 75 77 After registration of FIR No. 367/03, further investigation of the case was assigned to Inspector K.P. Rana(PW52) who was handed over the accused Dhananjay along with case property and memos by SI Vinay Tyagi(PW31). Inspector K.P. Rana (PW52) prepared site plan Ex.PW31/D1 at the instance of SI Vinay Tyagi(PW31). Inspector Banwari Lal(PW33) prepared the defusal of bombs report Ex.PW52/D. Accused was arrested vide memo Ex.PW19/I and his personal search as conducted vide memo Ex.PW19/J. Accused Dhananjay made a disclosure statement Ex.PW19/K. Motorcycle bearing No. UP16D 2299 was taken into possession vide memo Ex.PW19/H. Exhibits of the case were sent to FSL Rohini as well as to CFSL, Chandigarh. Permission under section 39 of Arms Ex.PW52/A for possessing illegal arms and ammunition by accused Dhananjay was given by Sh. Ajay Chaudhary, the then Addl DCP. Sanction Ex.PW 52/B under section 4/5 of Explosive Substances Act was collected by the Investigating Officer.
78 Both the Investigating Officers SI Vinay Tyagi (PW31) and Inspector K.P.Rana(PW52) were cross examined at length but nothing material could be culled out. S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 63 of 75 79 Mutatis mutandis, PW19 Ct. Banvir, PW24 HC Sohanvir, PW40 Ct. Jeet Pal, PW42 SI Atul Tyagi, PW43 ASI Majid Khan, PW46 Ct. Satya Parkash, PW48 HC Nagender Kumar, PW49 Ct. Hari Om and PW51 Ct. Sudhir have also deposed on the lines of Investigating Officers(PW31 and PW52).
80 It has been argued by Ld. Defence Counsel that recovery of arms, ammunition and explosives from accused Dhananjay is doubtful as the only independent witness, namely, Sanjay Singhal(PW54) who remained associated with the recovery proceedings, turned hostile to the case of the prosecution. It has further been argued that in the absence of independent corroboration, possibility of plantation of the arms, ammunition and explosives on the accused can not be ruled out.
81 The perusal of statement of Sanjay Singhal(PW54) shows that he witnessed the recovery of illegal arms, ammunition and explosives from the accused Dhananjay. He has stated that on 21.09.03 when he was present at Industrial Area, Patparganj, SI Vinay Tyagi(PW31) and SI Atul Tyagi(PW42) came to him. They requested that they had secret information of a man who would come at ISBT, Anand Vihar and on their request, he accompanied them and reached S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 64 of 75 ISBT, Anand Vihar. He further stated that after sometime, a man came there on a motorcycle and he was got stopped. He identified accused Dhananjay as the same person. He further stated that accused was having a black coloured bag with him and on opening the same, sweet boxes and pistols were recovered. He further stated that after sometime, other police officials and Bomb Squad Team also arrived there.
82 Statement of Sanjay Singhal(PW54) clearly shows that he was associated with the proceedings conducted at ISBT, Anand Vihar where illegal arms and explosives were recovered from the possession of accused Dhananjay. Witness has duly identified the accused to be the person who was apprehended at the spot and a black coloured bag containing pistol sweet boxes were recovered. It is consistent case of the prosecution that said sweet box was containing explosives and that was the reason Bomb Disposal Squad was pressed into service, which has specifically been admitted by this independent witness. Being a layman, it was not expected from him to give a parrot like version and his testimony is sufficient to hold that accused was found in possession of illegal arms and explosives and his testimony can not be discarded in totality merely on the ground of S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 65 of 75 his turning hostile on some points. In Radha Mohan Singh @ Lal Saheb & Others Vs. State of U.P. (Reported in (2006) 2 SCC 450), Mahesh Vs. State of Maharashtra (Reported in (2008) 13 SCC 271), Rajender and Another Vs. State of Uttar Pradesh (Reported in (2009) 13 SCC 480) and Govindappa and Others Vs. State of Karnataka (Reported in (2010) 6 SCC 533), it has been held by their Lordships of Hon'ble Supreme Court that evidence of a person does not become effaced or washed of from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of prosecution. It was also held that evidence of such a witness cannot be rejected in toto.
83 Pistols and cartridges recovered from accused were sent to CFSL, Chandigarh for obtaining Expert's opinion. Sh B.P.Singh(PW35), Jr. Scientific Officer( Ballistics) CFSL, Chandigarh, examined the country made pistol of .32 bore and 12 bore along with cartridges of same bore and submitted his report Ex.PW35/A. As per report, expert found that country made pistols of .32 bore and 12 bore were in working condition and the cartridges were test fired in the laboratory and were found to be live. S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 66 of 75 84 Explosives recovered from accused were sent to CFSL Chandigarh for obtaining expert's opinion. At CFSL, Chandigarh, Dr. A.K. Dalela(PW50), Jr. Scientific Officer (Explosives) examined the explosives and submitted his report Ex.PW50/A. During his deposition in the Court, Dr. A.K. Dalela has stated that he analysed the contents of parcel A to F i.e. silver coloured power along with nails in each exhibit. He further stated that he also examined exhibits and parcels A1 to F1 containing stones pieces along with nails quoted with silvery material which was stated to be iron splinters and stones. He carried out various laboratory tests on exhibits A to F and exhibits A1 to F1. After examining the same, he opined that potassium ions, chlorate ions, arsenic ions, sulphide ions and aluminium were detected were detected on exhibits A to F and exhibits A1 to F1. Thus, in view of report of Dr. A.K. Dalela(PW50), it stands established that exhibits sent to him were explosives.
85 Possession of explosive substance is punishable under section 5 of Explosive Substances Act. Whosoever keeps an explosive to endanger life or property is to be punished under section 4 of the Act. Section 7 of the Act provides that trial for possessing S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 67 of 75 explosives can not proceed without the consent of District Magistrate. In the present case, Sh. D.M. Spolia(PW55), the then District Magistrate, has stated that he accorded the sanction Ex.PW52/B under section 4/5 Explosive Substances Act, 1908 for the prosecution of accused Dhananjay. He was cross examined by Ld. Defence Counsel. During cross examination, he stated that he accorded his consent on the basis of documents produced before him as he was of the opinion that the documents shown were sufficient to his satisfaction to accord the sanction. He further stated that documents produced before him were communications made by the police, report of CFSL, seizure memos and the disposal report. Thus, the prosecution has duly complied with provisions of section 7 of the Act which contemplates sanction is required for prosecution of an accused for possessing explosives.
86 Ld. Counsel has relied upon authorities reported as Harpal Singh vs State of Punjab AIR 2008 SC 743 and Mohan Singh vs State of Haryana 1995 JCC 565 wherein conviction and sentence awarded to accused had been set aside while observing that there was no sanction for prosecution of accused under TADA Act. However, this authority renders no assistance to the accused in the S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 68 of 75 present case inasmuch as a valid sanction Ex.PW 52/B under section 4/5 of the Explosive Substances Act has been accorded by Sh. D.M. Sapolia(PW55) the then D.M., therefore, no fault can be found with the sanction accorded in the present case.
87 From the above mentioned facts and circumstances of the case, I am of the considered opinion that the prosecution has successfully established on the record that on 21.9.2003, accused Dhananjay was found in possession of arms, ammunition and explosives which are prohibited under the Arms Act and Explosive Substances Act, 1908. The recovery and possession of arms, ammunition and explosives from the person of accused Dhananjay has duly been proved by the prosecution beyond reasonable doubt. The prosecution has also complied with all the legal formalities under the Arms Act and Explosive Substances Act by obtaining requisite sanctions for the prosecution of accused. Explosives recovered from the accused has potential to endanger human life and property. Conclusion 88 In view of the abovediscussion in detail, it is hereby held that the prosecution has successfully proved its case against the accused Dhananjay that on the intervening night of 6/7.9.2003, he S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 69 of 75 along with his coaccused Shailender (since deceased) committed the murder of deceased Naresh Kumar after committing robbery with him and Shiv Kumar (PW2) on the point of deadly weapon i.e. knife and country made pistol. The said country made pistol and empty cartridge was recovered at the instance of accused Dhananjay, which has duly been established on the record which were used by him in committing the murder of deceased and same were without any licence or permit. It is further held that the prosecution has also successfully proved that accused Dhananjay misappropriated with the articles belonging to the deceased and he also threw the dead body of the deceased near Yojana Vihar bus stand with intention of screening himself from receiving legal punishment. The prosecution has further been able to establish beyond reasonable doubt that accused Dhananjay was found in possession of explosives, country made pistols of .32 bore and 12 bore along with cartridges of same bore without any licence or permit to possess the same. Consequently, accused Dhananjay is hereby held guilty for the commission of offences punishable under Section 302/392/397/201/404 IPC and u/s 24/54/59 of Arms Act in FIR No.349/2003. Accused Dhananjay is also held guilty for the commission of offences punishable under S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 70 of 75 Section 4/5 of Explosive Substances Act, 1908 and u/s 25/54/59 of Arms Act in FIR No.367/2003. He is accordingly convicted for the abovesaid offences.
Announced in the open Court ( P.S. TEJI )
Dated: 08.11.2010 District JudgeVI (East)
cum Addl. Sessions Judge
Karkardooma Courts
Delhi
S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 71 of 75
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE
(EAST) cum ADDL.SESSIONS JUDGE, KARKARDOOMA
COURTS, DELHI.
SC No.135/06/04
Unique Case I.D. No.02402R0060242004
FIR No.349/2003
Police Station Anand Vihar
Under Section 302/392/397/201/404 IPC & 25/54/59 Arms Act. SC No.136/06/04 Unique Case I.D. No. 02402R0060302004 FIR No.367/2003 Police Station Anand Vihar U/s 25 Arms Act and 4/5/6 of Explosive Substances Act.
State Versus Dhananjay Singh Bhadoria etc. ORDER ON SENTENCE
I have heard Sh. S.K.S. Bhadoria, Ld. counsel for convict as well as learned Addl. PP, Shri Ashok Kumar on the point of sentence.
2 The learned counsel for the convict Dhananjay Singh Bhadoria has submitted that he is unmarried person aged about 38 years. Convict was a student of engineering at the relevant time. S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 72 of 75 He is having old parents to support. He is not a previous convict and not involved in any other case. It is prayed that keeping in view the circumstances, a lenient view be taken while awarding sentence to the convict.
3 On the other hand, Ld. Addl. PP for the State has argued that the convict has committed heinous crime of murder of an innocent person apart from robbing him at the point of deadly weapon. It is further argued that accused used and was found in possession of illegal arms and ammunition. It is further argued that the convict has even gone to the extent of throwing the dead body of deceased with a view to screen himself from legal punishment and also misappropriated with the articles of the deceased, possessed by him at the time of his murder. It has also been argued that explosives were recovered from the convict which also shows his intention to endanger human life and property. The offences committed by the convict shows that he is a hardened criminal and he is to be dealt with sternly. In view of the gravity of offences committed by the convict, he does not deserve any leniency and maximum sentence provided under the law be awarded to him.
4 Vide my judgment dated 8.11.2010, convict has S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 73 of 75 been convicted for the commission of offences punishable under Sections 302/392/397/201/404 IPC and under section 25/54/59 of Arms Act in FIR No.349/03 and also for offences under section 4/5 of Explosive Substances Act and under section 25/54/59 of Arms Act in FIR No.367/03.
5 Keeping in view the facts and circumstances of the case, convict Dhananjay Singh Bhadoria is awarded sentences as under:
(i) Life imprisonment with fine of Rs.10,000/ for offence under section 302 IPC in case FIR No.349/03. In default of payment of fine, the convict shall undergo SI for three months.
(ii) Rigorous imprisonment for five years with fine of Rs.5,000/ for offence under section 392 IPC in case FIR No.349/03. In default of payment of fine, the convict shall undergo SI for two months.
(iii) Rigorous imprisonment for five years for offence under section 397 IPC in case FIR No.349/03.
(iv) Rigorous imprisonment for three years with fine of Rs.5,000/ for offence under section 201 IPC in case FIR No.349/03. In default of payment of fine, the convict shall undergo SI for two months.
(v) Rigorous imprisonment for two years with fine of Rs.5,000/ for offence under section 404 IPC in case FIR No.349/03. In default S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 74 of 75 of payment of fine, the convict shall undergo SI for two months.
(vi) Rigorous imprisonment for five years with fine of Rs.10,000/ for offence under section 25/54/59 of Arms Act in case FIR No.349/03. In default of payment of fine, the convict shall undergo SI for three months.
(vii) Rigorous imprisonment for seven years with fine of Rs.10,000/ for offence under section 4/5 of Explosive Substances Act in case FIR No.367/03. In default of payment of fine, the convict shall undergo SI for three months.
(viii) Rigorous imprisonment for five years with fine of Rs.5,000/ for offence under section 25/54/59 Arms Act in case FIR No.367/03. In default of payment of fine, the convict shall undergo SI for three months.
6 All the sentences awarded to the convict shall run concurrently as provided under Section 427 Cr.P.C. The convict shall be entitled for benefit provided under Section 428 of Cr.P.C. Copies of the judgment of conviction and order on sentence be given free of cost to the convict.
File be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 16.11.2010 District Judge (East)
Addl. Sessions Judge
Karkardooma Courts : Delhi
S.C. No.135/06/04 State vs Dhananjay Singh Bhadoria Page 75 of 75