Delhi District Court
State vs . Mohit Chhabra @ Gauri & Ors. (Sc ... on 6 July, 2019
State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), &
State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016)
IN THE COURT OF SH. GORAKH NATH PANDEY
ADDITIONAL SESSIONS JUDGE FAST TRACK COURT,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
CNR No.DLWT010002612010
Sessions Case No. :57779/2016
FIR No. : 108/2009
Under Section : 302/34 IPC & 27 Arms Act
Police Station : Mianwali Nagar
IN THE MATTER OF:
STATE Vs. (1) Mohit Chhabra,
S/o late Sh. Harbans Lal,
R/o C2/182, West Enclave,
Pitampura, Delhi.
(2) Krishan Antil @ Bholu,
S/o Sh. Karan Singh,
R/o Village Khevda,
District Sonipat, Haryana.
(3) Paramjeet Dalal @ Monu,
S/o Sh. Ishwar Singh,
R/o Village Jakhoda,
PS Bahadurgarh,
District Jhajjar, Haryana.
(Declared PO)
FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.1/115
FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act
State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), &
State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016)
(4) Ravi Malik @ Bhura,
S/o Sh. Raghubir Singh,
R/o Flat No.37, Nav Vikas
Apartment, Sector15,
Rohini, Delhi.
(Declared PO)
Date of receiving the case upon committal : 30.04.2010
Date on which judgment was reserved : 24.05.2019
Date of pronouncement of judgment : 06.07.2019
Decision : Acquitted
AND
CNR No.DLWT010000832010
Sessions Case No.56895/2016
FIR No. : 614/2009
Under Section : 25/54/59 Arms Act
Police Station : South Rohini
IN THE MATTER OF:
STATE Vs. (1) Mohit Chhabra,
S/o late Sh. Harbans Lal,
R/o C2/182, West Enclave,
Pitampura, Delhi.
FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.2/115
FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act
State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), &
State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016)
(2) Paramjeet Dalal @ Monu,
S/o Sh. Ishwar Singh,
R/o Village Jakhoda,
PS Bahadurgarh,
District Jhajjar, Haryana.
(Declared PO)
(3) Ravi Malik @ Bhura,
S/o Sh. Raghubir Singh,
R/o Flat No.37, Nav Vikas
Apartment, Sector15,
Rohini, Delhi.
(Declared PO)
Date of transfer the case to Session Court : 04.02.2011
Date on which judgment was reserved : 24.05.2019
Date of pronouncement of judgment : 06.07.2019
Decision : Acquitted
JUDGMENT
1. By this common judgment, I shall decide the following two cases:
(i) Sessions Case No.57779/2016, FIR No.108/2009, P.S. Mianwali Nagar, under Section 302/34 IPC & 25 Arms Act; &
(ii) Sessions Case No.56895/2016, FIR No.614/2009, P.S. South Rohini under Section 25/54/59 Arms Act.FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.3/115
FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016)
2. The accused Mohit Chhabra, Krishan Antil @ Bholu, Paramjeet Dalal @ Monu and Ravi Malik @ Bhura were charge sheeted in case FIR No.108/2009, P.S Mianwali Nagar for the commission of offence punishable under Section 302/34 IPC on the allegation that on 30.11.2009 at about 10:30 pm, opposite St. Mark Senior Secondary School, Meera Bagh, they in furtherance of their common intention committed murder of Satish Yadav by gun shots. Accused Ravi Malik and Mohit Chhabra were also chargesheeted for the commission of offence under Section 27 Arms Act.
3. The accused Mohit Chhabra, Paramjeet Dalal and Ravi Malik @ Bhura were chargesheeted in case FIR No.614/2009, P.S. South Rohini for the commission of offence punishable under Section 25/54/59 Arms Act on the allegation that on 09.12.2009 at about 06:05 pm near Jaipur Golden Hospital on the road coming from Nahar Pur towards Jaipur Golden Hospital, Tpoint, Sector3, Rohini, they were found in unlawful possession of one pistol and three cartridges of 7.65 mm without any license (from Mohit Chhabra), one magazine and two live cartridges of 7.65 mm without any license (from Paramjeet Dalal) and one pistol and three live cartridges of 7.65 mm without license (from Ravi Malik) respectively.
FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.4/115FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016)
4. Prosecution Version in case FIR No.108/2009: The case of the prosecution in brief is noted as below:
The Police Control Room (PCR) received the information by telephone no.1145565656 (informant name blank) at 23:41:57 hours on 30.11.2009 to the affect that "Meera Bagh St. Marks ke pas chicken rehdi per khade the jisko White Swift gadi mei 34 aadmi aaye or goli markar chale gaye hai 67 firing hue hain baki hulia or information namalum". The said PCR form is exhibited as Ex.PW53/J. The said information was noted in DD No.38A at about 11:45 pm at P.S. Mianwali Nagar and was assigned to ASI Ranvir Singh for inquiry. PW39 ASI Ranvir Singh alongwith PW26 Ct. Ravinder reached the spot. Information of the said DD No.38A was also given to Insp. Dharampal (PW53) and he went to the spot. At the spot, he met with ASI Ranvir Singh and Ct. Ravinder. At the spot, one pistol was found lying near pavement on road in front of St. Mark Sr. Sec. School. One lead (bullet) and four empty cartridges were also found lying at the spot from some distance to each other. Insp. Dharampal left Ct. Ravinder to guard the spot and he alongwith ASI Ranvir Singh went to Sehgal Nursing Home, Outer Ring Road, Meera Bagh, Delhi. In Sehgal Nursing Home, the doctor concerned informed them that the relatives of the injured had taken him to Maharaja FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.5/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) Agrasen Hospital, Punjabi Bagh. Delhi. In the mean time, ASI Ranvir Singh also received DD No.3A and on receipt of the same, he alongwith Insp. Dharampal reached at Maharaja Agrasen Hospital where Insp. Dharampal collected the MLC No.209 of deceased Satish. On the MLC, the doctor has opined "patient brought dead after gun shot having injuries no.(1) entry wound over RT atillary region C exit wound over chest near Lt. nipple (2) One entry wound over near abdomen near umblicale region and exit wound L/S region (3) One entry wound over right thigh (4) abrasion elbow right knee. In the hospital, Vikram Arora/PW1, who claimed to be an eye witness of the incident, met Insp. Dharmapal/PW53, who recorded his statement Ex.PW1/A. Insp. Dharmapal/PW53 prepared rukka on the basis of statement of PW1 Vikram Arora and gave it to PW39 ASI Ranvir for registration of FIR. PW8 H. Ct. Ram Niwas recorded FIR No.108/2009 PS Mianwali Nagar vide Ex.PW8/A and made endorsement on the rukka vide Ex.PW8/B. During investigation, Insp. Dharmapal also came to know from Amit Yadav that the Pajero car no.HR26AU7494 of the deceased is parked in the parking of Maharaja Agrasen Hospital. He called the crime team and got inspected the Pajero car. Incharge of Mobile Crime Team also FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.6/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) prepared his scene of crime report and handed over it to Insp. Dharampal. Insp. Dharampal also lifted the blood from the middle seat of the Pajero car from the help of cotton and after it dried, seized the same after taking it into police custody. He also seized the above said Pajero car. Amit Yadav also handed over two mobile phones of deceased make N95 of black colour and N97 of white colour to Insp. Dharampal, who seized the same. Insp. Dharampal also seized the clothes of the deceased handed over to him by the doctor concerned. He also got photographed the spot from private photographer and prepared the site plan of the place of occurrence at the instance of complainant. He also seized the pistol, magazine and bullet (lead) from the spot.
On 01.12.2009, during the investigation, Insp. Dharampal got preserved the dead body of the deceased in Mortuary of Sanjay Gandhi Memorial Hospital for postmortem. After the postmortem, the doctor concerned handed over the parcels containing three bullet leads taken out from the body of the deceased, blood gauze of deceased alongwith sample seal to Insp. Dharampal, who seized the said exhibits vide separate memos. Insp. Dharampal also collected the postmortem report. On postmortem report, the doctor has opined "cause of death is hemorrhage and shock subsequent to penetrating FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.7/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) injury to the chest via injury no.1 caused by a projectile discharge from a fire arm weapon capable of discharging the projectile. Injury no.1 is sufficient to cause death in the ordinary course of nature and time since death about 12 hours.
During the investigation, Insp. Dharampal received DD No.7A dated 10.12.2019 informing that the accused Paramjeet @ Monu, Ravi Malik @ Bhura, Mohit Chhabra @ Gauri and Krishan Antil @ Bholu have been arrested in FIR No.614/2009 under Section 25/27/54/59 Arms Act PS South Rohini wherein they had disclosed that they had murdered the deceased of this case. Hence, Insp. Dharampal met with H. Ct. Rohtash (IO) of case FIR No.614/09 and collected the photocopies of relevant documents from him. He also got obtained the production warrant of the accused persons for 12.12.2009 from the concerned Ld. M. M. On 12.12.2009, all the four accused persons were produced before the court of concerned Ld. M. M. and Insp. Dharampal with the permission of court, interrogated and formally arrested them. He also prepared the relevant documents pertaining to the arrest of accused persons. He also recorded the disclosure statements of the accused persons. Thereafter, he moved an application for the TIP of the accused persons in the concerned court of Ld. M. M. Thereafter, accused persons were produced for their TIP FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.8/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) but they refused to participate in the same. PC remand of all the four accused persons were got obtained. During PC remand, all the four accused persons pointed out the place of occurrence. During the said proceedings, complainant Vikram Arora was also present and he identified the accused persons as assailants of this case, who had murdered the deceased.
During PC remand, efforts were made to find out empty shells of bullet used in the commission of crime at the instance of accused Ravi Malik but nothing could be found. During PC remand, the accused Ravi Malik led the police party to Dehradun where he had stayed after the commission of crime but he did not identify the place where he had stayed. Efforts were also made to search out the clothes and monkey cap worn by accused Ravi Malik at the time of incident as per his disclosure statement but nothing could be recoverd. Search was also made to trace out Manish, who had supplied the weapon to the accused persons but to no avail.
During PC remand, accused Mohit Chhabra further disclosed that he had purchased the cell phone and sim cards which were used by him in the commission of crime from Rohtak, Haryana and Pitampura, Delhi and after the incident, he had thrown the cell phone in the field of Muzzafar Nagar. Accused Mohit Chhabra led the FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.9/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) police team to Muzzafar Nagar, U. P. to show the places where he had thrown the mobile phones and sim cards but he did not show the same. Accused Mohit Chhabra also led the police team to Rohtak Haryana to show the shop from where he purchased the mobile phones and sim cards but he did not show the shop. During PC remand, accused Mohit Chhabra also got recovered three mobile phones which he was carrying at the time of commission of crime.
During the investigation, IO H. Ct. Rohtash of FIR No.614/2009 also got deposited the arms and ammunition which were recovered in FIR No.614/2009 in the office of FSL Rohini. Exhibits of FIR No.108/2009 were also deposited with FSL Rohini. Swift car bearing No.DL9CS2116 which was used in the commission of crime and recovered in FIR No.614/2009 was deposited with Malkhana, Paschim Vihar by the IO concerned. During the investigation, Insp. Dharmpal collected the relevant documents pertaining to Swift car from the MHC (M) of PS Paschim Vihar.
On 02.12.2009, during the investigation, Insp. Dharampal recorded the statement of wife of deceased namely Smt. Rita under Section 161 Cr. P. C. In his statement, she stated that on 30.11.2009 at about 11:05 pm, her husband Satish Yadav told her that he was eating egg roll near St. Mark School, Meera Bagh Road and suddenly, she FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.10/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) heard the voice of other person who was asking money from her husband and on this, her husband told that "gauri tere koi paise nahi nikalte" and why you are having a pistol in your hand. She further stated that when she carefully heard and revealed that it was the voice of Gauri. Her husband told her to keep the phone on hold and he takes the transaction clear from Gauri. Thereafter, she heard the noise of firing and remained on phone by saying hello hello. Thereafter, she came to know that her husband had been killed in indiscriminate firing. She stated that Mohit Chhabra @ Gauri and Ravi Malik @ Bhura were the friends of her deceased husband and they involved in money transaction with her husband. She knew them very well and they were extending threats for the last about 12 months to kill her husband and his husband told her about the same many times. Her husband used to tell her that accused Mohit Chhabra and Ravi Malik used to chase him and want to kill him. She claimed that her husband has been killed by accused Mohit Chhabra and Ravi Malik.
During investigation, Insp. Dharmpal got inspected the spot through draftsman Insp. Mahesh Kumar, who prepared the scaled site plan. He also recorded the statements under Section 161 Cr. P. C. of the witnesses. He also collected the call details record of mobile phone of accused Mohit Chhabra, deceased Satish Yadav and wife of FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.11/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) deceased namely Reeta. He also collected the electricity report from the BSES office Guru Harkishan Nagar Delhi. He also obtained the details and particulars from the concerned authority regarding the pistol of deceased recovered from the spot. Insp. Dharampal also recorded the statements of the witnesses who joined the investigation. After completion of investigation, Insp. Dharampal filed the charge sheet against all the four accused persons in FIR No.108/2009.
5. Prosecution version in case FIR No.614/2009: The case of the prosecution can be culled out from the charge sheet of case FIR No.614/2009 is that on 09.12.2009 at about 05:10 pm, one secret informer came to the office of Special Staff and informed H. Ct. Surender that the accused persons who are wanted in case of PS Mianwali Nagar, PS Mourya Enclave and PS Prashant Vihar would come near Jaipur Golden Hospital with arms in a white colour Swift car. The said accused persons would assemble there for going to threaten the witnesses against them and if raid is conducted, they can be apprehended. Thereafter, H. Ct. Surender produced the secret informer before Insp. Samarjeet Singh of Special Staff. Insp. Samarjeet Singh conveyed the said information to the senior officers and after consultation with them, Insp. Samarjeet Singh directed H. Ct.
FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.12/115FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) Surender to conduct raiding party. Accordingly, H. Ct. Surender constituted a raiding party consisting of H. Ct. Bal Kishan, H.Ct. Naresh, Ct. Pawan, Ct. Parveen, Ct. Anoop, Ct. Surender, Ct. Inderjeet, Ct. Virender and briefed them about the information. At about 05:30 pm, H. Ct. Surender recorded DD No.9 with regard to secret information and raiding party left for the spot. At the spot, H.Ct. Surender requested 4/5 public persons, who were passing from the road, to join the raiding party but none agreed and left from there without disclosing their names and identity and after giving reasonable excuse. At about 05:45 pm, the raiding party reached at the spot. H. Ct. Surender briefed the raiding party and directed them that the raid be conducted when he puts his hand on his head and thereby giving indication for conducting the raid. The members of raiding party took position at the entry gate of Jaipur Golden Hospital on road coming from the side of village Naharpur, Sector3, Rohini, Delhi. At about 06:05 pm, one swift car having registration no.DL9CS2116 of white colour came from the Naharpur side to the service road near entry gate of Jaipur Golden Hospital and two persons were sitting in the said car. Secret informer pointed out that this is the car of accused persons. The said vehicle stopped near the entry gate of Jaipur Golden Hospital and three persons came there and sat on the back seat of the said Swift car.
FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.13/115FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) The secret informer pointed out towards the accused persons who wanted in number of cases registered at PS Mianwali Nagar, Mourya Enclave and Prashant Vihar. After confirming the same from the secret informer, H. Ct. Surender gave indication to the members of raiding party for conducting raid by putting his hand on his head. The members of raiding party surrounded the car. H. Ct. Surender removed the key of Swift car and overpowered the person sitting on the driver seat. The person, who was sitting beside the driver seat pulled out a pistol and tried to cock the same for the purpose of firing on the raiding party but he was apprehended by H. Ct. Naresh. H. Ct. Naresh snatched the pistol from the hand of the said person. Later on, the person sitting on the driver seat revealed his name Krishan Antil @ Bholu and the person who was sitting with the driver seat also revealed his name as Mohit Chhabra @ Gouri. Three persons who were sitting on the back seat of the said Swift car also came out from the said car and one of the boys tried to cock his pistol in order to fire the raiding party but he was overpowered by Ct. Pawan. Ct. Pawan also snatched the pistol from his hand. Later on, the said person revealed his name Ravi Malik @ Bhura. One another boy who was sitting on the back seat of the car also tried to run away but he was overpowered by H. Ct. Bal Kishan. Later on, the said person revealed FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.14/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) his name Sh. Bhagwan @ Azad. Another boy, who was sitting on the back seat of the car also tried to run away but he was overpowered by Ct. Praveen. Later on, the said person revealed his name as Paramjeet Dalal @ Monu. H.Ct. Surender requested some passersbys to join the proceedings but they refused to do so and left from their without disclosing their names and identity. The pistol recovered from accused Mohit Chhabra @ Gauri was handed over to H. Ct. Surender by H. Ct. Naresh. He opened the same and found three live cartridges in the magazine. He measured and prepared the sketch of pistol and three live cartridges. He also seized the pistol and live cartridges. He filled up the FSL form and sealed the same.
Ct. Pawan handed over the pistol which was recovered from accused Ravi Malik @ Bhura to H. Ct. Surender. H. Ct. Surender opened the same and found three live cartridges in the magazine of the pistol. He measured and prepared the sketch of pistol and cartridges. He seized the pistol and cartridges. He also filled up FSL From and sealed the same. The total length of barrel of pistol was 7 cms, butt 9 cm and angular length is 18cm. The word Made in USA was engraved on the barrel of pistol.
One magazine recovered from accused Paramjeet Dalal @ Monu was handed over to H. Ct. Surender by Ct. Praveen. H. Ct.
FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.15/115FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) Surender opened the same and found two live cartridges in the magazine. He measured and prepared the sketch of magazine and two live cartridges and seized the same. He also filled up FSL form and sealed the same.
White colour Swift Car bearing registration No.DL9CS 2116 was also seized from the spot after taking it into police possession.
At about 08:30 pm, H. Ct. Surender prepared rukka under Section 25/27 Arms Act & under Section 411/34 IPC and handed over the same to Ct. Pawan for registration of FIR. Ct. Pawan left for registration of FIR to PS South Rohini. Thereafter, H. Ct. Rohtash came to the spot to whom H. Ct. Surender handed over all the documents prepared by him, case properties and custody of all five accused persons. He also briefed H. Ct. Surender about the facts of the case. H. Ct. Rohtash prepared site plan of the spot at the instance of H. Ct. Surender. After registration of FIR, Ct Pawan came back at the spot and handed over the copy of FIR and original rukka to H. Ct. Rohtash for further investigation. H. Ct. Rohtash interrogated the accused persons and on confessing guilt, arrested accused Mohit Chhabra @ Gauri, Ravi Malik @ Bhoora, Krishan Antil @ Bholu and Paramjeet Dalal @ Monu. He also conducted the personal search of all FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.16/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) the accused persons and also recorded their disclosure statements.
Thereafter, H. Ct. Rohtash, members of raiding team and all the accused persons left the spot for PS South Rohini. H. Ct. Rohtash deposited the case property with the copy of seizure memos and FSL form with MHC (M). All the accused persons were got medically examined from SGM Hospital. Thereafter, H. Ct. Rohtash, members of raiding team and the accused persons reached the office of Special Staff at Sector1, Rohini, Delhi where all the accused persons were interrogated. On 10.12.2009 at about 03:40 am, H. Ct. Rohtash informed the Duty Officer of PS Mianwali Nagar regarding arrest of accused persons who confessed regarding their involvement in case FIR No.108/2009. Duty Office of PS Mianwali Nagar recorded the said information in DD No.7A. H. Ct. Rohtash handed over the photocopies of all the relevant documents required in case FIR No.108/2009 to Insp. Dharampal. Thereafter, H. Ct. Rohtash produced all the accused persons including Azad in the court of Ld. M. M. in Rohini District Court from where they were sent to JC.
On 17.12.2009, during the investigation, H. Ct. Rohtash sent Ct. Inderjeet to the office of FSL with sealed parcels alongwith FSL form through road certificate for depositing the same. Accordingly, Ct. Inderjeet received the same from MHC (M) and deposited at FSL FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.17/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) Rohini.
During the investigation, H.Ct. Rohtash has also recorded the statements of PWs who joined the investigation. After completion of investigation, he filed the charge sheet against the accused persons namely Mohit Chhabra, Ravi Malik and Paramjeet Dalal @ Monu before the Ld. M. M. on 06.02.2010.
6. Before proceeding, it is relevant to note that in the case FIR bearing No.614/2009, an application was filed by the IO for committal of the case before Ld. ASJ, Tis Hazari on the ground that weapon used in the case was used as a weapon of offence in case FIR No.108/2009 under Section 302/34 IPC PS Mianwali Nagar. Further, vide order of Ld. Sessions Judge dated 04.02.2011, in view of the fact that the weapon of offence is common in both the cases, both the cases were transferred/assigned to same court for disposal in accordance with law. Thereafter, trial of both the cases was conducted together; common evidence of both the cases was recorded in case FIR No.108/2009 under Section 302/34 IPC and 27 Arms Act PS Mianwali Nagar and the same was taken up main case for disposal of both the cases together.
FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.18/115FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016)
7. It is noted that that during the course of trial, the accused Ravi Malik @ Bhura and Paramjeet Dalal @ Monu were declared proclaimed offender as they jumped the interim bail.
8. Charges: In case FIR No.108/2009 PS Mianwali Nagar, charges for the commission of offence punishable under Section 302 read with Section 34 IPC was framed against accused (i) Mohit Chhabra @ Gauri, (ii) Ravi Malik @ Bhura, (iii) Paramjeet Dalal @ Monu and Krishan Antil @ Bholu and the charges under Section 27 Arms Act, 1959 was framed against accused Ravi Malik and Mohit Chhabra @ Gauri on 05.08.2010. The accused persons pleaded not guilty to the charges framed against them and claimed trial.
Further, in case FIR No.614/2009 PS South Rohini charges for the commission of offence punishable under Section 25/54/59 Arms Act, 1959 were framed against accused (i) Mohit Chhabra @ Gauri, (ii) Ravi Malik @ Bhura, (iii) Paramjeet Dalal @ Monu on 28.09.2011. The accused persons pleaded not guilty to the charges framed against them and claimed trial.
9. At the time of trial, prosecution examined following PWs: FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.19/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) PW1 Vikram Arora PW2 Jitender Arora PW3 Rameshwar Yadav PW4 H. Ct. Narender Kumar PW5 Smt. Rita PW6 Jai Ram PW7 Tushar PW8 H. Ct. Ram Niwas PW9 Anuj Kumar PW10 Rajpal Yadav PW11 H. Ct. Jai Singh PW12 Amit PW13 Sumit Yadav PW14 H. Ct. Naresh PW15 H. Ct. Surender Dahiya PW16 H. Ct. Rohtash Singh PW17 H. Ct. Om Prakash, MHC (M) PW18 Manoj Sharma PW19 Ct. Surender Singh PW20 Dr. Anil Jindal PW21 ASI Sri Niwas MHC (M) PW22 Sh. K. Manivasagam PW23 H. Ct. Ratti Ram Meena PW24 Retd. SI Jai Singh FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.20/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) PW25 Pawan Singh, Nodal Officer Idea PW26 Ct. Ravinder PW27 H. Ct. Kailash Chand PW28 H. Ct. Jagdish Prasad PW29 Insp. Mahesh Kumar, Draftsman PW30 Ct. Hari Kishan PW31 Retd. SI Mahender Singh PW32 Dr. Manoj Dhingra PW33 Sh. Suvashish Chaudhary PW34 Insp. Ajay Solanki PW35 Ct. Vinod PW36 Amit Kumar Sehrawat PW36A Daleep Singh PW37 Dr. J. V. Kiran Kumar PW38 Ct. Azad Singh PW39 SI Ranvir Singh PW40 Ms. Shelly Arora, Ld. ASCJ PW41 Puneet Puri PW42 V. R. Anand, Ballistic Expert PW43 Ct. Bijender Singh PW44 ASI Hawa Singh PW45 Rakesh Yadav PW46 H. Ct. Pawan Kumar PW47 H. Ct. Praveen FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.21/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) PW48 Krishan PW49 H. Ct. Navratan PW50 ASI Bal Kishan PW51 R. K. Singh, Nodal Officer Airtel PW52 H. Ct. Inderjeet PW53 Insp. Dharampal PW54 ASI Ami Chand PW55 ASI Ajay Pal (1) PW1 Vikram Arora/complainant is the eye witness of the case. He has proved his statement recorded by the police as Ex.PW1/A; site plan prepared by IO at his instance as Ex.PW1/B; sketch memo of four empty bullets and piece of lead signed by him as Ex.PW1/C; seizure memo of bullets and piece of lead as Ex.PW1/D; rough sketch of pistol of deceased and bullets as Ex.PW1/E and its seizure memo as Ex.PW1/F. He also identified the four empty bullet shells and one lead seized by the police from the spot as Ex.P1/A (Colly) and Ex.P1/B respectively; pistol of deceased as Ex.P2; three bullet shells as Ex.P 3/A (Colly) and three bullets as Ex.P3/B (Colly). (2) PW2 Jitender Arora is the brother of complainant/PW1. He has also been examined as an eye witness of the case. (3) PW3 Rameshwar Yadav is the uncle of deceased. He is also the FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.22/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) eye witness of the incident (4) PW4 H. Ct. Narender Kumar was posted as Duty Officer at PS Mianwali Nagar on 30.11.2009. At about 11:45 pm, he recorded DD No.38A regarding the admission of Satish in the emergency of Sehgal Nursing Home. The said DD No.38A has been proved by him as Ex.PW4/A. (5) PW5 Smt. Rita is the wife of deceased Satish. (6) PW6 Jai Ram is the private photographer. He deposed that on the intervening night of 30.11.2009 and 01.12.2009, he was called by the police at the spot where he took the photographs of the place of occurrence and handed over the developed photographs and CD to the police. He has proved the photographs as Ex.PW6/A1 to Ex.PW6/A7 and CD as Ex.PW6/B. (7) PW7 Tushar was present at the spot at the time of occurrence. He stated that he hid himself under the rehries when someone shouted 'goli chali' and thereafter, he alongwith PW1 Vikram Arora took Satish to Shegal Nursing Home in the Pajero car of deceased.
(8) PW8 H. Ct. Ram Niwas is the Duty Officer. He proved the copy of FIR No.108/09 under Section 302/34 IPC & 25/27/54/59 Arms Act, PS Mianwali Nagar as Ex.PW8/A and endorsement made by him FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.23/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) on rukka as Ex.PW8/B. (9) PW9 Anuj Kumar is the owner of sim no.9911140009 of Idea Cellular. He deposed that on 02.05.2008, he had given the said sim to Satish at the request of his friend Pramod Sethi and an affidavit Ex.PW9/A dated 27.08.2008 was also executed in this regard. (10) PW10 Rajpal Yadav, father of the deceased has proved the identification memo of dead body of his son as Ex.PW10/A and his statement recorded by police in this regard as Ex.PW10/B. (11) PW11 H. Ct. Jai Singh, Duty Officer has proved the computerized copy of FIR No.226/09, under Section 379 IPC, PS Paschim Vihar as Ex.PW11/A. (12) PW12 Amit/brother of Sumit (PW13 and brother in law of the deceased Satish) has deposed that on 30.11.2009 at about 11:00/11:30 pm, he was informed by his Bhabhi Pinki and brother Sumit that Satish had been shot and is taken to Sehgal Nursing Home, Meera Bagh, Paschim Vihar, Delhi. He visited Sehgal Nursing Home alongwith Rameshwar Yadav/PW3 after the information of the incident. In Sehgal Nursing Home, PW1 Vikram Arora and Tushar met him and Vikram Arora handed over the key of the Pajero car with one mobile N97 of white colour of Satish to him. Thereafter, he alongwith his brother Sumit and other relatives took Satish Yadav to Maharaja FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.24/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) Agrasen Hospital in his Pajero car bearing registration No.HR26AU 7494. He deposed that the police officials also lifted the blood from the middle seat behind the driver seat of the said Pajero car in his presence and seized the same. He also handed over the mobile phone make N97 to the police officials. He proved the seizure memo of blood as Ex.PW12/A; seizure memo of mobile phone make N95 as Ex.PW12/B, seizure memo of mobile phone make N97 as ExPW12/C and seizure memo of Pajero car seized by the police as Ex.PW12/D. PW12 Amit also deposed that in the month of January near the festival of Lohri may be on 13/14.01.2010, he was called by the police in the PS and he handed over the Arm License of the pistol of deceased Satish Yadav to the police officials. He proved the seizure memo of Arm License as Ex.PW12/E. He has also identified the Arm License as Ex.PW12/1; mobile N95 as Ex.P4; mobile N97 as Ex.P5 and Pajero car as Ex.P6 and photographs showing the chassis and engine number of the said car as Mark A1 to A4.
(13) PW13 Sumit Yadav is the brother in law (jija) of deceased Satish. He has came to know about the incident from PW3 Rameshwar. Then, he alongwith his wife reached at Sehgal Nursing Home. Thereafter, he alongwith his brother PW12 Amit and other relatives took Satish to Maharaja Agrasen Hospital from Sehgal FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.25/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) Nursing Home in Pajero car.
(14) PW14 H. Ct. Naresh, PW15 H. Ct. Surender Dahiya, H. Ct. PW46 Pawan Kumar, PW47 H. Ct. Praveen, PW50 ASI Bal Kishan and PW52 H. Ct. Inder Jeet are the recovery witnesses being the members of raiding team of Special Staff who conducted raid on 09.02.2009 near Jaipur Golden Hospital on the basis of secret information and arms/pistols were recovered from the accused persons.
PW14 H. Ct. Naresh has overpowered the accused Mohit Chhabra and also snatched the pistol from his hand, who pulled out from his dub with the intent to fire. He has proved the sketch of pistol and cartridges recovered from accused Mohit Chhabra as Ex.PW14/A; their seizure memo as Ex.PW14/B; seizure memo of Swift car as Ex.PW14/C; arrest memo, personal search memo and disclosure statement of accused Mohit Chhabra as Ex.PW14/D to Ex.PW14/F. He has also identified the pistol recovered from accused Ravi Malik as Ex.P14/1; pistol and three empty/fired cartridges recovered from the accused Mohit Chhabra as Ex.P14/2 and one magazine and two live cartridges recovered from accused Paramjeet Dalal as Ex.PW14/3.
PW15 H. Ct. Surender has proved the DD No.9 regarding the secret information as Ex.PW15/A; sketch of pistol and cartridges recovered from accused Ravi Malik and prepared by him as FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.26/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) Ex.PW15/B; seizure memo of pistol and cartridges as Ex.PW15/C; sketch of magazine and cartridges recovered from accused Paramjeet Dalal as Ex.PW15/D; their seizure memo as Ex.PW15/E; seizure memo of key of Swift car as Ex.PW15/G and rukka Ex.PW15/H. He has also identified the pistol recovered from accused Ravi Malik as Ex.P14/1; pistol & three empty/fired cartridges recovered from the accused Mohit Chhabra as Ex.P14/2 and one magazine and two live cartridges recovered from accused Paramjeet Dalal as Ex.PW14/3.
PW16 H. Ct. Rohtash Singh is the Investigating Officer of case FIR No.614/2009 PS South Rohini. He has proved the site plan prepared by him at the instance of H. Ct. Surender as Ex.PW16/A; arrest memo, personal search memo and disclosure statement of accused Mohit Chhabra as Ex.PW16/B to Ex.PW16/B2 respectively; arrest memo, personal search memo and disclosure statement of accused Ravi Malik as Ex.PW16/C to Ex.PW16/C2 respectively; arrest memo, personal search memo and disclosure statement of accused Krishan Antil @ Bholu as Ex.PW16/D to Ex.PW16/D2 respectively; arrest memo, personal search memo and disclosure statement of accused Paramjeet Dalal @ Monu as Ex.PW16/E to Ex.PW16/E2 respectively; FSL report dated 23.04.2010 as Ex.PW16/G; sanction order under Section 39 Arms Act to prosecute FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.27/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) the accused persons under Arms Act as Ex.PW16/H. He has also filed the charge sheet in case FIR No.614/2009.
PW46 Pawan Kumar is also the members of raiding party. He has proved the arrest memo and personal search memo of accused Ravi Malik as Ex.PW46/A and Ex.PW46/B respectively. He has also identified the pistol and cartridges Ex.P14/1 (Colly) recovered from the possession of accused Ravi Malik.
PW47 H. Ct. Praveen is one of the members of raiding party. He has proved the sketch of magazine and cartridges recovered from the possession of accused Paramjeet Dalal as Ex.PW47/A; seizure memo of the same as Ex.PW47/B; arrest memo and personal search memo of accused Paramjeet Dalal as Ex.PW47/C and Ex.PW47/D respectively. He has also identified the magazine as Ex.PW47/P1; cartridges as Ex.PW47/P2 and photographs of Maruti Swift car in which the accused persons were apprehended as Ex.PW47/A1 to Ex.PW47/A4.
PW50 ASI Bal Kishan has also joined the raiding team at the time of raid. He has proved the seizure memo of key and Maruti Swift car as Ex.PW50/A and Ex.PW50/B; arrest memo of accused Sri Bhagwan @ Azad as Ex.PW50/C, his personal search memo and disclosure statement as Ex.PW50/D and Ex.PW50/E respectively;
FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.28/115FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) disclosure statements of accused Paramjeet Dalal and Krishan Antil @ Bholu as Ex.PW50/F and Ex.PW50/G respectively. He has also identified the Swift car in the photocopies of photographs Mark PW47/A1 to Ex.PW47/A4.
PW52 H. Ct. Inder Jeet has also joined the raiding team on 09.12.2009 at the time of raid. He has proved the arrest memo and personal search memo of accused Krishan @ Bholu as Ex.PW52/A and Ex.PW52/B respectively.
(15) PW17 H. Ct. Om Prakash is the MHC of PS Paschim Vihar. He has proved the relevant entry of Register No.19 as Ex.PW17/A vide which the Swift car no.DL9CS2116 was deposited by Ct. Bijender Singh in the Malkhana of PS Mianwali Nagar on 11.01.2010. He deposed that on 12.03.2011, the said car was released to superdari to Sh. K. B. Raju, Power of Attorney of General Insurance Co. Ltd. and he made the entry in Register No.19 in this regard at point X on Ex.PW17/A. (16) PW18 Manoj Sharma was posted as Arms Clerk, District Magistrate Office, Ghaziabad, U.P. He brought the record in respect of issuing of pistol number RP113531 to deceased Satish Kumar and proved the entries of the same as Ex.PW18/A1 bearing his signatures at point B and Ex.PW18/A2 bearing the signatures and seal of Sh.
FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.29/115FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) Tejpal at point A. He deposed that as per the request of police officials of PS Mianwali, the department has issued letter no.135, arms clerk/DM 2010 dated 10.02.2010. He has proved the said letter bearing his signatures at point B as Ex.PW18/B. (17) PW19 Ct. Surender Singh deposed that on 01.12.2009, he left the PS on his motorcycle no.DL1SN8953 and delivered the copies of FIR to Ld. M. M., Joint CP Range, DCP/West and ACP Punjabi Bagh.
(18) PW20 Dr. Anil Jindal, Casualty Incharge, Maharaja Agrasen Hospital has examined Satish Yadav in the hospital on 30.11.2009 at about 11:55 pm vide MLC No.209/09 which was brought dead after gun shot by Raj Kumar Yadav. He deposed that he examined the patient's B.P. not recordable, pulse - not pulpable, pupils - bilateral fixed dilated, ECG shows straight line. He has examined the patient locally and declared him brought dead at 12:05 am on 01.12.2009. He sealed the clothes of the deceased and handed over the same to the IO. Thereafter, dead body was sent to Mortuary. He has proved the MLC No.209/09 and casualty no.32916 as Ex.PW20/A. (19) PW21 ASI Sri Niwas was posted as MHC (M) at PS Mianwali Nagar on 01.12.2009. He has proved the relevant entry of Register No.19 as Ex.PW21/A1 to Ex.PW21/A8 vide which the IO has FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.30/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) deposited eight sealed pullandas in Malkhana on 01.12.2009; relevant entry of Register No.19 as Ex.PW21/B (OSR) vide which the IO has deposited one pullanda in Malkhana on 18.12.2009; photocopy of RC No.40/21/10 and 41/21/10 as Ex.PW21/C1 and Ex.PW21/C2 vide which the case properties were deposited in the FSL Rohini on 28.01.2010; copy of FSL acknowledgement as Ex.PW21/D1 and D2; photocopy of road certificate No.8/21/10 as Ex.PW21/E vide which the case property was deposited in the office of FSL on 15.05.2010 and copy of FSL acknowledgement as Ex.PW21/F and made entry in Register no.19 on Ex.PW21/A7 at point Z1 in this regard. He deposed that H.Ct. Ami Chand brought the opinion of FSL and he made entry in Register No.19 on Ex.PW21/A7 at point Z2 in this regard. (20) PW22 Sh. K. Manivasagam was posted as Engg. Trainee at GH9, BSES Complaint Centre. He has proved the letter of Police Insp. of PS Mianwali Nagar regarding supplying information status of light around St. Mark School, Meera Bagh, Paschim Vihar, Delhi in the intervening night of 30.11.2009 and 01.12.2009 which was duly received vide stamp/no.429 of BSES, DGM Office vide Ex.PW22/A. He deposed that after due verification, he reported and supplied the requisite information that all the lights were in working order in the intervening night of 30.11.2009 and 01.12.2009 around St. Mark FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.31/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) School, Meera Bagh, Paschim Vihar, Delhi. He has identified his signatures at point A on Ex.PW22/A. (21) PW23 H. Ct. Ratti Ram Meena was posted as Duty Officer on 10.12.2002 at PS Mianwali Nagar. He has recorded DD No.7A on the basis of telephonic information received from H.Ct. Rohtash of Special Staff Sector1, Rohini regarding arrest of accused persons in case FIR No.614/09 by special staff and disclosure made by them. He has proved the said DD No.7A as Ex.PW16/F. Thereafter, he handed over the DD No.7A to MHC (R) for information to the concerned IO. (22) PW24 SI Jai Singh is the Incharge, Mobile Crime Team. He deposed that on the intervening night of 30.11.2009 and 01.12.2009, on receipt of information from Control Room, he alongwith Ct. Naresh/Photographer and H. Ct. Udham Singh (Finger Print Proficient) visited the spot i.e. on road in front of St. Mark Senior Secondary School. Meera Bagh, Paschim Vihar where the incident of firing took place. He inspected the garbage which was lying on the road, one pistol was lying and just ahead of it at two different places four empty cartridges were found and at one another place on the same place one lead was also found. Ct. Ravinder was also met at the spot. SI Jai Singh thoroughly inspected the spot and the photograph of the spot could not be taken due to the fault developed in the camera.
FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.32/115FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) Thereafter, SI Jai Singh received a call to reach Maharaja Agrasen Hospital and he alongwith his team visited there. In the hospital, he met Insp. Dharampal and ASI Ranbir Singh. He inspected the Pajero vehicle no.HR26AU7494 and found blood on the middle seat of the said car. He directed IO Insp. Dharampal to lift the blood from the seat and seized the same and directed Insp. Dharampal to get the place of occurrence photographed. Thereafter, he prepared his scene of crime report which is Ex.PW24/A. (23) PW25 Pawan Singh, Nodal Officer, Idea Cellular Limited produced the record pertaining to mobile number 9891140009 in the name of Mohit Chhabra. He proved the customer application form in respect of the above said mobile number and the supporting documents of identity as driving license as Ex.PW25/A and Ex.PW25/B respectively, self declaration and add on declaration of Idea company in the name of Mohit Chhabra Ex.PW25/C and Ex.PW25/D respectively and CDR of the above said mobile number w.e.f. 20.11.2009 to 31.12.2009 as Ex.PW25/J (Colly).
PW25 also produced the record pertaining to mobile number 9540486466 in the name of Dwarika Prashad Bhatt. He proved the customer application form in respect of the above said mobile number and the supporting documents of identity as identity FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.33/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) card of Nepali Nagrikta as Ex.PW25/E and Ex.PW25/F respectively and CDR of the above said mobile number w.e.f. 28.11.2009 to 12.12.2009 as Ex.PW25/K (Colly) PW25 Pawan Singh further produced the record pertaining to mobile number 9911140009 in the name of Anuj Kumar. He proved the customer application form in respect of the above said mobile number and the supporting documents of identity as driving license as Ex.PW25/G and Ex.PW25/H respectively and CDR of above said mobile number w.e.f. 26.11.2009 to 01.12.2009 as Ex.PW25/L (Colly).
PW25 Pawan Singh also proved the cell ID chart of the above said mobile number as Ex.PW25/M and the certificate under Section 65B of Indian Evidence Act as Ex.PW25/N. (24) PW26 Ct. Ravinder visited the spot alongwith ASI Ranbir Singh upon receipt of DD No.38A on the intervening night of 30.11.2009 and 01.12.2009. At the spot, he found one bullet lead and four empty cartridges were lying at the spot at some distance to each other. He also met Insp. Dharampal at the spot. Thereafter, ASI Ranbir and Insp. Dharampal went to Sehgal Nursing Home after deputing him to guard the spot. He further deposed that ASI Jai Singh, Incharge, Mobile Crime Team alongwith his team also visited the spot for inspection. Thereafter, Insp. Dharampal and ASI Ranbir Singh came to FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.34/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) the spot from hospital and one private photographer also reached the spot. The photographer took photographs of the spot at the instance of Insp. Dharampal. Thereafter, bullet lead and empty cartridges were measured; their sketch was prepared and lead and cartridges were seized. He proved the sketch of the same as Ex.PW1/C and their seizure memo as Ex.PW1/D. He further deposed that one pistol was also lying at the spot containing six cartridges in its magazine. The pistol was measured alongwith its cartridges and sketch was prepared vide Ex.PW1/E and the same were seized vide memo Ex.PW1/F. He has identified four empty bullet as Ex.P1/A (Colly); one lid piece as Ex.P1/B; pistol as Ex.P2, 3 empty bullet shells Ex.PW3/A (Colly) and 3 bullet as Ex.P3/B (Colly).
(25) PW27 H. Ct. Kailash Chand was posted at PS Mianwali Nagar on 13.12.2009. He deposed that on that day, he alongwith Insp. Dharampal and other staff left the PS Mianwali Nagar for PS Paschim Vihar. In PS Paschim Vihar, the accused persons namely Paramjeet, Ravi Malik, Mohit Chhabra and Krishan Antil @ Bholu were taken out from the lockup and the police team alongwith accused persons reached at the place of occurrence where all the four accused persons have pointed out the place of occurrence vide memo Ex.PW27/A to Ex.PW27/D respectively. He further deposed that complainant Vikram FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.35/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) Arora was also present at the spot at that time and he identified the accused persons. He deposed that thereafter, accused Ravi Malik @ Bhura led the police team to near Nala, Kesho Pur Subzi Mandi for the search of empty cartridges but no empty cartridge was found at that place.
(26) PW28 H. Ct. Jagdish Prasad was posted as MHC (M) at PS South Rohini on 09.12.2009. He has proved the entry no.4531/2019 of Register No.19 vide which H. Ct. Rohtash has deposited three sealed pullandas in the Malkhana on 09.12.2012 as Ex.PW28/A; RC No.132/21/09 vide which the said parcels were sent to FSL Rohini as Ex.PW28/C; RC No.1/21/10 vide which the Swift car was deposited with PS Paschim Vihar as Ex.PW28/D; entry at point B on Ex.PW28/A vide which Ct. Harkesh deposited the FSL result and parcels in the Malkhana on 12.05.2010; RC No.38/21/2010 vide which two pullandas were deposited in the office of FSL on 14.05.2010 as Ex.PW28/E and acknowledgement thereof as Ex.PW28/F; entry at point D on Ex.PW28/A vide which H. Ct. Ami Chand deposited the FSL result alongwith parcels in the Malkhana on 28.06.2010. He deposed that on 16.11.2010, Ct. Jitender of PS Prashant Vihar took two pullandas duly sealed for reopinion in case FIR No.664/09 PS Prashant Vihar for depositing the same in FSL Rohini vide road FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.36/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) certificate no.102/21/10 from the then MHC (M) of PS South Rohini. He proved the entry at point E on Ex.PW28/A vide which Ct. Jitender deposited the FSL result alongwith sealed parcels in the Malkhana on 03.12.2010.
(27) PW29 Insp. Mahesh Kumar, Draftsman has proved the scaled site plan prepared by him as Ex. PW29/A. (28) PW30 Ct. Hari Kishan posted at ACP Office Punjabi Bagh on 02.12.2009 obtained CDR of mobile nos.9891140009 and 9811140009 and ownership record of 9811140009 and handed over the printouts of the same to Insp. Dharampal Singh. On 02.03.2010, he obtained the print out of IMEI No.356845/02/975986/5 and 353658/01/833503/2 and handed over the print out of the same to Insp. Dharmpal Singh. He also obtained the CDR details print out of sim no.9999662381 with ownership and ownership details of mobile no.9891140009 and 9811140009 and handed over the same to Insp. Dharampal Singh.
(29) PW31 SI Mahender Singh deposed that on 31.05.2009, complainant Kishore gave complaint regarding theft of his Swift car No.DL9CS2116 and he made an endorsement on the complaint of the complainant under Section 379 IPC and handed over the same to Duty Officer H. Ct. Jain Singh for registration of FIR and after registration FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.37/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) of FIR, investigation was conducted by H. Ct. Hawa Singh on the directions of SHO and efforts were made to search the car but no clue was found.
(30) PW32 Dr. Manoj Dhingra, Medical Officer/Incharge. Mortuary Sanjay Gandhi Hospital proved the postmortem report of deceased prepared by Dr. J. V. Kiran as Ex.PW32/A. (31) PW33 Sh. Suvashish Chaudhary, DCP Licensing, Delhi has proved the sanction under Section 39 Arms Act given by him to prosecute the accused Mohit Chhabra @ Gauri, Ravi Malik @ Bhura and Paramjeet Dalal @ Monu under Arms Act as Ex.PW33/A to Ex.PW33/C respectively.
(32) PW34 Insp. Ajay Solanki was posted at PS Mianwali on 12.12.2009 deposed that on that day, he alognwith Insp. Dharampal and Ct. Azad Sigh went to Court No.179, Tis Hazari Courts of Ld. M. M. of PS Mianwali Nagar in the investigation of this case where the accused persons namely Paramjeet Dalal, Krishan Antil @ Bholu, Mohit Chhabra @ Gauri and Ravi Malik @ Bhura were produced in muffled face and Insp. Dharampal moved an application for their interrogation and arrest. IO Insp. Dharampal interrogated the accused persons and arrested them. The accused persons also made their disclosure statement and IO moved an application for their TIP which FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.38/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) was marked to Link M. M. but the accused persons refused to participate in the same. IO Insp. Dharampal moved an application for PC remand of accused persons which was allowed for 4 days and thereafter, IO called the police staff from PS for conducting investigation and thereafter, took the accused persons to SGM Hospital for their medical examination. He has proved the arrest memos of accused Parajmeet Dalal @ Monu, Krishan @ Bholu, Mohit Chhabra @ Gauri and Ravi Malik @ Bhura as Ex.PW34/A to Ex.PW34/D. (33) PW35 Ct. Vinod Kumar was posted at PS Mianwali Nagar on 28.01.2010. He deposed that on that day, he took six sealed pullandas alongwith sample seals and FSL form from the MHC (M) and deposited the same with FSL vide RC No.40/21/2010 and 41/21/2010 and after depositing the parcels, handed over the acknowledgement of the same to the MHC (M).
(34) PW36 Sh. Amit Kumar J.J.A., Record Room Criminal, Tis Hazari Courts, Delhi produced the record pertaining to case file of FIR No.226/09 u/s 379/411/34 IPC, PS Paschim Vihar, State v. Mohit Chhabra & Anr. decided on 16.05.2011 bearing Goshwara no.204/2011 PS Paschim Vihar. He has proved the photocopies of the documents as Mark PW36/A. (35) PW36(A) Sh. Daleep Singh JJA, Record Room Criminal, FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.39/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) Tis Hazari Courts, Delhi produced the record pertaining to case FIR No.226/09 u/s 379/411/34 IPC PS Paschim Vihar, State v. Mohit Chhabra @ Gauri & Anr. He has proved the charge sheet of the said case as Ex.PW36(A)/1 (Colly); statement of complainant as Mark PW 36/A (Colly); photocopies of documents of PW1 Krishan, PW3 Vinod Kumar, copy of charge sheet, rukka as Ex.PW36(A)/2. (36) PW37 Dr. J. V. Kiran Kumar has conducted the postmortem on the dead body of deceased on 01.12.2009 and proved the postmortem report no.1124/09 dated 01.12.2009 as Ex.PW32/A bearing his signatures at point A. (37) PW38 Ct. Azad Singh deposed on the same line in respect of the investigation dated 12.12.2009 and 13.12.2009 as that of PW34 SI Ajay Solanki and PW27 H. Ct. Kailash Chand. He further deposed that on 16.12.2009, accused Mohit Chhabra was taken out from the lockup and interrogated by the IO after his medical examination. He has proved the disclosure statements made by all the four accused persons on 12.12.2009 as Ex.PW38/A to Ex.PW38/D respectively and supplementary disclosure statement made by accused Mohit Chhabra on 16.12.2009 and 18.12.2009 as Ex.PW38/E and Ex.PW38/F. He deposed that as per the supplementary disclosure statement, the accused Mohit Chhabra led the police team to the house of his FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.40/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) maternal uncle at C2/182, Ground Floor, West Enclave, Delhi and recovered three mobile phones of make Nokia 1600, Nokia 1200 and Nokia 1202 without sim and battery under the bedding lying on the floor and IO seized the same vide memo Ex.PW38/G. He further deposed that on 03.03.2010, one Anuj Kumar produced one affidavit to IO by which he sold the sim of his mobile to deceased and IO seized the same vide memo Ex.PW9/B. He has identified the said affidavit as Ex.PW9/A. He stated that on 14.01.2010, Amit Yadav, relative of the deceased Satish Yadav produced one Arm License in the name of Satish Yadav issued from Ghaziabad, U.P. and the same was taken into possession by the IO vide memo Ex.PW12/A. He has identified the Arm License as Ex.PW12/1 and mobile phone make Nokia 1200, Nokia 1600 and Nokia 1202 as Ex.PW38/1 to Ex.PW38/3 respectively. (38) PW39 SI Ranvir Singh was posted at PS Mianwali Nagar on the intervening night of 30.11.2009 and 01.12.2009. He deposed that on receipt of DD No.38A, he alongwith Ct. Ravinder visited the spot where Insp. Dharampal met them. They found empty cartridges at the spot at some distance from each other. He alongwith Insp. Dharampal went to Sehgal Nursing Home after leaving Ct. Ravinder to guard the spot. He also received DD No.3A Ex.PW39/A regarding taking of injured to Maharaja Agrasen Hospital. Hence, they went to Maharaja FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.41/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) Agrasen Hospital and found injured Satish Yadav there. Insp. Dharmpal collected the MLC of Satish Yadav wherein doctor declared him brought dead after gun shot. They also met with eye witness Vikram Arora in the hospital and IO recorded his statement Ex.PW1/A and made endorsement on the same and handed over the rukka to him and he went to PS Mianwali and registered the FIR through Duty Officer. Thereafter, he went to Maharaja Agrasen Hospital and handed over the copy of FIR and original rukka to Insp. Dharampal for investigation. In the hospital, Amit Yadav met with IO and produced one mobile phone make Nokia N95 Black colour belonged to deceased which was found in Pajero car and IO checked the phone and noted its IMEI number and thereafter seized the same vide memo Ex.PW12/B. Amit Yadav also produced one mobile phone having model Nokia N97 of white colour which was handed over to him by the complainant Vikram Arora. IO checked the phone, noted its IMEI number and seized the same vide memo Ex.PW12/C. He deposed that the IO has lifted the blood from the middle seat of the car which was parked in the parking of hospital and seized the same vide memo Ex.PW12/A. IO also seized the car vide memo Ex.PW12/D. In the hospital, the clothes of the deceased i.e. one shirt, one banyan, one pant sealed in the pullanda alongwith sample seal were handed over to FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.42/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) IO Insp. Dharamapl who seized the same vide memo Ex.PW39/B. Thereafter, he, IO Insp. Dharampal and complainant Vikram Arora left hospital alongwith case property for the spot where Ct. Ravinder met them. IO Insp. Dharampal photographed the spot through private photographer and prepared the site plan of the spot at the instance of the complainant. Near the footpath, on the road opposite to St. Mark School, Meera Bagh, Delhi one pistol was found lying with its magazine having six live cartridges which was picked up by the IO. IO measured the said pistols and cartridges and prepared their sketch which is Ex.PW1/E. IO also seized the pistol and cartridges vide memo Ex.PW1/F. Four empty cartridges and one lead were also found at the spot near the footpath on the road. IO measured the same and seized the cartridges and lead vide memo Ex.PW1/D. Thereafter, he alongwith IO Insp. Dharampal and Ct. Ravinder left for PS where IO deposited the case property with MHC (M).
PW39 SI Ranvir Singh further deposed that he went to Maharaja Agrasen Hospital and obtained the dead body of deceased and preserved the same in Mortuary, SGM Hospital. IO Insp. Dharampal prepared the inquest papers and got conducted the postmortem on the dead body of deceased. After the postmortem, the dead body was handed over to the relative of deceased vide handing FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.43/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) over memo Ex.PW39/C. After postmortem, IO received one plastic jar containing three bullet lead duly sealed with the seal of SGMH, Mortuary, Mangol Puri, Delhi and sample seal from doctor and seized the same vide memo Ex.PW39/D. IO also seized blood on gauze which was handed over to him by doctor concerned vide Ex.PW39/E. SI Ranvir Singh has also identified the four empty bullet shells as Ex.P1/A (Colly); lead Ex.P1/B; three empty bullets Ex.P3/A (Colly) and three bullets Ex.P3/B (Colly); photographs taken by private photographer at the spot as Ex.PW6/A1 to Ex.PW6/A7; mobile phone Nokia N95 as Ex.P4; Nokia N97 as Ex.P5 and photographs of Pajero car No.HR26AU7497 as Mark A1 to A4.
(39) PW40 Ms. Shelly Arora, Additional Senior Civil Judge, Delhi has conducted the TIP proceeding of the accused persons. She has proved the application moved by IO for TIP as Ex.PW40/A; identification made by IO qua accused Paramjeet Dalal as Ex.PW40/1; statement of accused Paramjeet Dalal for refusing TIP proceedings as Ex.PW40/2 and her certificate appended to the proceedings as Ex.PW 40/3; identification made by IO qua accused Ravi Malik @ Bhura as Ex.PW40/4; statement of accused Ravi Malik for refusing TIP proceedings as Ex.PW40/5 and her certificate appended to the proceedings as Ex.PW40/6; identification made by IO qua accused FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.44/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) Krishan Antil as Ex.PW40/7; statement of accused Kishan Antil for refusing TIP proceedings as Ex.PW40/8 and her certificate appended to the proceedings as Ex.PW40/9; identification made by IO qua accused Mohit Chhabra as Ex.PW40/10; statement of accused Mohit Chhabra for refusing TIP proceedings as Ex.PW40/11 and her certificate appended to the proceedings as Ex.PW40/12 and application for IO for obtaining the copy of TIP proceedings as Ex.PW40/B. (40) PW41 Sh. Puneet Puri, Assistant Director Ballistics, FSL, Rohini, Delhi has proved the Ballistic Report as Ex.PW41/A. He deposed that the improvised pistol marked Ex.F1 was in working order. Test Fire was conducted successfully by using the cartridges marked Ex.A1 to A3. The improvised pistol marked Ex.F2 was in working order. Test fire was conducted successfully by using the cartridges Ex.A4 to A6. The spare magazine marked Ex.M1 was a magazine of improvised pistol 7.65 mm caliber like Ex.F1 and Ex.F2. The improvised pistols marked Ex.F1, F2, magazine marked Ex.M1 were firearm as defined in Arms Act, 1959. He further deposed that the cartridges marked Ex.A1 to A8 were ammunition as defined in Arms Act.
(41) PW42 Sh. V. R. Anand, Assistant Director Ballistics, FSL FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.45/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) Rohini has proved the Ballistic Report as Ex.PW42/A. He deposed that the individual characteristic of firing pin marks and breech face marks present on EC1 to EC4 and on TCA1 to TCA4 were examined under comparison microscope and were not found identical. Hence, the cartridges EC1 to EC4 had not been fired through the improvised pistols 7.65 mm marked Ex.F1 and F2 in case FIR No.614/09. (42) PW43 Ct. Bijender Singh deposed that on 11.01.2010, as per the direction of the IO H. Ct. Hawa Singh, he went to PS South Rohini for bringing Swift car bearing registration No.DL9CS2116 which was recovered in the area of PS South Rohini. He met with MHC (M) H. Ct. Jagdish of PS South Rohini and received the key of the car vide RC No.1/21/10 for taking the same to PS Paschim Vihar. He brought the aforesaid vehicle alongwith key in a running condition to PS Paschim Vihar and deposited the same with MHC (M) H. Ct. Om Prakash of PS Paschim Vihar.
(43) PW44 ASI Hawa Singh has conducted the investigation of case FIR No.226/09 PS Paschim Vihar under Section 379 IPC in respect of theft of Swift car bearing no.DL9CS2116. He deposed that during the investigation, he came to know that five persons have been apprehended with the stolen car by the police officials of Special Staff and hence, he moved an application before the Ld. M. M. for FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.46/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) production of accused Mohit Chhabra and Krishan Antil and on their production in the court, he interrogated and formally arrested them in FIR No.226/09. Thereafter, on 11.01.2010, he brought the said car in the PS South Rohini through Ct. Bijender and deposited the same with MHC (M). He also chargesheeted the accused Mohit Chhabra and Krishan Antil in the above mentioned FIR.
(44) PW45 Sh. Rakesh Yadav is the registered owner of Pajero car bearing registration No.HR26AU7494. He has also produced the car Ex.P6 and RC of the same Ex.PW45/A. He has also produced two mobile phones make Nokia N95 and N97 as Ex.P4 and Ex.P5 which were received by him on superdaginama Ex.DW12/DX. He stated that the deceased was his relative and using his car. (45) PW48 Krishan is the registered owner of Maruti Swift car bearing registration No.DL9CS2116 which was purchased by him in the year 2007. He deposed that on 22.05.2009, he had gone to Balaji Action Hospital, Paschim Vihar and had parked his car in the parking of the hospital. On the next day i.e. 23.05.2009 at about 08:30 am, he found that his car was not there and same was stolen by some unknown person. Hence, he made the complaint to the police and on the basis of which FIR No.226/2009 dated 31.05.2009 under Section 379 IPC was registered at PS Paschim Vihar. Later on, he had taken the claim from FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.47/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) the insurance company. He also came to know from the police officials of PS Paschim Vihar that his car had been recovered. He had visited PS Paschim Vihar and identified his car.
(46) PW49 H. Ct. Navratan was posted as Duty Officer at PS South Rohini on 09.12.2009. He has proved the copy of FIR No.614/2009 as Ex.PW49/A and endorsement made by him on rukka as Ex.PW49/B. (47) PW51 Sh. R. K. Singh is Ex. Nodal Officer/Sr. Manager, Bharti Airtel Ltd. He has proved the call details record of mobile phones nos.9560145892, 9805409043 and 9910808964 w.e.f. 28.11.2009 to 12.12.2009 as Ex.PW51/A to Ex.PW51/C; certificate under Section 65B of Indian Evidence Act in respect of the call details record as Ex.PW51/D; customers applications form pertaining to the above stated mobile phones as Ex.PW51/E to Ex.PW51/G respectively and their supporting documents as Mark E1, F1, F2, G1, G2, G3 and G4 respectively.
(48) PW53 Insp. Dharampal is the Investigating Officer of FIR No.108/2009. Apart from the documents proved by the other witnesses, he has proved the endorsement made by him on the statement of complainant as Ex.PW53/A; form 25.35 as Ex.PW53/B; brief facts of the case enclosed with the request at the time of FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.48/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) postmortem as Ex.PW53/C; statement of uncle of deceased in respect of identification of dead body as Ex.PW53/D; CDR of the mobile phones no.9891140009 & 9911140009 of deceased Satish as Mark X1 (Colly) and Mark X2 (Colly) respectively; seizure memo of Pajero car bearing registration No.HR26AU7494 as Ex.PW53/E; DD No.8A as Ex.PW53/G; DD No.40B as Ex.PW53/H; DD No.57B as Ex.PW53/I and PCR Form as Ex.PW53/J. He has also identified the Pajero car bearing registration No.HR26AU7494 in the photographs Mark A1 to A4; Nokia N95 and Nokia 97 in the photographs Mark A9 and Mark A10; pistol, empty shells and bullets which were seized by him from the spot as Ex.P2, Ex.P3/A (Colly) and Ex.PW3/B (Colly) respectively; mobile phones which were recovered at the instance of accused Mohit Chhabra as Ex.PW38/1 to Ex.PW38/C respectively and Arm License of deceased as Ex.PW12/1.
(49) PW54 ASI Ami Chand has proved the copies of RC No.08/21/10 and 38/21/10 as Ex.PW54/A and Ex.PW54/B vide which he deposited the pullandas in the FSL Rohini on 14.05.2010 and the copy of acknowledgement obtained from FSL as Ex.PW54/C. (50) PW55 ASI Ajay Pal, MHC (M) has deposed that on 14.05.2010, as per the direction of SHO, he handed over two sealed pullandas to H. Ct. Ami Chand for deposing the same in FSL vide RC FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.49/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) No.38/21/10 Ex.PW54/B with FSL Form and he has made the entry of the same at point X in Register no.19 at serial no.4531 which is Ex.PW55/A. Thereafter, H. Ct. Ami Chand deposited the pullandas in the office of FSL and handed over him acknowledgement Ex.PW54/C. He further deposed that on 28.06.2010, H. Ct. Amit Chand has handed over him two pullandas and he made entry in Register No.19 at point X1 on Ex.PW55/A and FSL result was handed over to H. Ct. Ami Chand.
10. On conclusion of the prosecution evidence, the statement under Section 313 Cr.P.C. of the accused persons namely Mohit Chhabra and Krishan Antil were recorded on 01.05.2019 wherein all the incriminating evidence and documents on record were put to them to which their stand was of general denial.
Accused Krishan Antil stated that "I am innocent and had suffered long ordeal of the trial.
Accused Mohit Chhabra stated that "I am innocent and I have been falsely implicated. Infact the complainant, after his statement was recorded after due deliberation and the case was FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.50/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) fabricated against me, started blackmailing me after my arrest, demanding money on behalf of himself and other witnesses. The complainant also visited the jail few times for this purpose. He also made telephone calls to my brother Vishal Chhabra @ Binny a few time demanding money. The witnesses and the evidence in the present case are all planted. My signatures were obtained on many papers under duress and I was falsely implicated in the present case.
11. No evidence was led by the accused persons in their defence.
12. I have heard the Ld. Special PP for State and the Ld. counsel for the accused persons. Record has also been perused.
13. Ld. Special PP for the State and the Ld. Counsel for complainant submitted that the testimony of PW1 Vikram Arora is corroborated by testimony of PW2 Jitender and PW5 Rita; the testimony of witnesses is credible and trustworthy. There is direct evidence of the eye witnesses who are the public witnesses; the FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.51/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) presence of PW1, PW2, PW3 and PW7 at the spot is proved. It is further argued that the accused persons were arrested and made disclosure statements regarding commission of the offence; they have identified by PW1 Vikram Arora; they refused to participate in TIP proceedings. It is argued that the prosecution has proved the case against the accused persons beyond reasonable doubt and accordingly, they are liable to be convicted for the offences alleged in this case.
Ld. Spl. PP has further filed written submissions and relied upon the following judgments in support of his contentions:
(i) Criminal Appeal Nos.827 and 829 of 2011 decided on 07.03.2017 titled Himanshu Mohan Rai v. State of U.P. & Ors. by the Hon'ble Apex Court (MANU/SC/0252/2017).
(ii) Criminal Appeal No.1072/2004 decided on 24.07.2008 by the Hon'ble Apex Court titled as Suraj Singh v. State of U.P. (MANU/SC/7866/2008).
(iii) Appeal decided on 10.10.2002 by the Hon'ble Apex Court titled Gangadhar Behera & Ors. vs. State of Orissa. (MANU/SC/0875/2002)
(iv) Criminal Appeal Nos.282 and 310 of 2006 decided on 16.12.2010 by Hon'ble Apex Court (MANU/SC/1069/2010)
(v) Criminal Appeal No.1148/2007 decided on 24.10.2013 by FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.52/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) Hon'ble Apex Court tiled as Joginder Singh v. State of Haryana.
14. Written argument was also filed on behalf of the accused Mohit Chhabra. Further, the Ld. counsel for the accused persons argued that in this case, the genesis of the incident is doubtful and there appears to be inherent contradictions in the testimony of PWs regarding the incident, identity of the accused persons, their presence at the spot at the time of incident, credibility of the witnesses etc. It is argued that despite the claim that the deceased was hit by bullets, there was no blood found at the spot of shooting, the alleged time of the incident does not match with the CDR of the mobile phones of deceased and PW5, the phone of the deceased was active as per the CDR even after the incident; the alleged weapon of offence and the weapon of injury caused to the deceased do not match with the cartridges and bullets recovered from the alleged spot of incident. It is argued that the location of the accused persons during the time of alleged incident is not substantiated from the CDR and the identification of the accused for the first time in the court by PW1 and PW2 after about lapse of one year is not possible when the accused persons were not known to each other and the incident took place infraction of 45 minutes at night. The contradictions, variations and FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.53/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) improvements in the statements of PWs particularly the PW1, who is the star witness/complainant, is read out and relied heavily during the arguments alongwith unnatural conduct of PW1 to PW3, PW5 as well as PW53 IO Insp. Dharampal. The contradictions between the statements of PW53/IO and PW1 and PW2 are also heavily relied in support of contentions that the prosecution has failed to prove the case against the accused persons beyond reasonable doubt. The Ld. counsel for the accused persons also relied upon the lapses in the investigation arguing that the best of the witnesses to the incident has not been produced by the prosecution due to the reasons best known; the blood was not collected from the spot etc. and the same casts shadow on the prosecution story. It is argued that the accused persons have been falsely implicated in this case; the prosecution has failed to prove the contentions and the accused persons are entitled to be acquitted.
The Ld. counsel for the accused Mohit Chhabra relied upon the following judgments in support of his contentions
(i) Pankaj v. State of Rajasthan reported as (2016) 16 SCC 192:
2016 SC Online SC 930
(ii) Kailash Gour and Ors. v. State of Assam, reported as (2012) 2 SCC 34
(iii) Karan Singh v. State of NCT of Delhi reported (2018 (3) FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.54/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) JCC 1388)
(iv) Thulia Kali v. State of Tamil Nadu (1972) 3 SCC 393.
(v) Lallu Manji & Anr. v. State of Jharkhand reported as (2003) 2 SCC 401: 2003 SCC (Cri) 544.
(vi) State of U.P. v. Ramesh Prasad Misra & Anr. reported as (1996) 10 SCC 360: 1996 SCC (Cri) 1278.
(vii) Krishengowda & Ors. v. State of Karnataka and Nanje Gowda & Anr. v. State of Karnataka reported reported as (2017) 13 SCC 98.
Examination of evidence and analysis:
15. In the first place, it requires to be determined as to whether the death of the deceased Satish was homicidal.
PW20 Dr. Anil Jindal, Casualty Incharge, Maharaja Agrasen Hospital has examined Satish Yadav (deceased) in the hospital on 30.11.2009 at about 11:55 pm vide MLC No.209/09 which was brought dead after gun shot by Raj Kumar Yadav. He deposed that he examined the patient's B.P. not recordable, pulse - not pulpable, pupils - bilateral fixed dilated, ECG shows straight line. He has examined the patient locally and declared him brought dead at 12:05 am on 01.12.2009. He stated that the injured has sustained the following injuries:
FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.55/115FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016)
(i) entry wound over RT atillary region C exit would over chest near Lt nipple;
(ii) One entry wound over near abdomen near unblicale region and exit wound L/S region;
(iii) One entry wound over right thigh;
(iv) abrasion elbow right knee.
He sealed the clothes of the deceased and handed over the same to the IO. Thereafter, dead body was sent to Mortuary. He has proved the MLC No.209/09 and casualty no.32916 as Ex.PW20/A. The following injuries were noticed on the body of deceased by Dr. J. V. Kiran Kumar/PW37 who conducted the postmortem on the body of deceased vide Ex.PW32/A as under:
External Examination:
(i) Fire arm entry wound - 0.5 cm x 0.5 cm with surrounding abrasion collar on outer front of left upper chest 4 cm above and outer to left nipple, 8 cm below left anterior axillary fold and 16 cm from a mid line point on front of the chest that is 13 cm below sternal notch. The projectile traveled downward, backward and from left to right piercing that the ribcage through fourth intercostal space, then the pericardium, FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.56/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) heart (lower part of the right ventricle near the apex), left lobe of liver across the parenchyma of liver, out through right lobe of liver and sixth intercostal space coming out of the body through an exit wound 0.5 cm x 0.1 m on outer aspect of the right side of the chest 14.5 cm below right anterior axillary fold and 20 cm from a mid line point, on front of chest, that is 17 cm below sternal notch.
(ii) Fire are entry wound on inner front of left side of abdomen 0.5 cm x 0.5 cm, 3 cm below and outer to unbillicus, 16 cm above and left side from base of penis and 30 cm below left nipple. The entry wound is surrounded by abrasion collar which appears predominantly at upper margin of the wound where it measures 0.5 cm. The projectile travelled downward and from left to right within the abdomen wall and into the right thigh and getting lodged in the subcutaneous tissue of middle front of right thigh producing a localized swelling 4 cm x 3 cm from where a jacketed bullet was removed.
(iii) Fire arm entry wound 0.5 cm x 0.5 cm on the inner neck of left side of abdomen 3 cm from mid line point which is 50 cm below 7th cervical spine prominence and 10 cm above the upper end of the cleft between the buttocks. The wound is FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.57/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) surrounded circumferentially by a reddish pink skin deep laceration. The projectile travelled forward and lodged at the posterior part of L4 vertebra from where a jacketed bullet was removed.
(iv) Fire arm entry wound 0.5 cm x 0.5 cm on the middle back of right thigh 25 cm above the knee joint. The wound is surrounded circumferentially by abrasion collar. The projectile travelled forward into the deep muscle layers of the thigh and lodged inner to the middle of the right femur from where a jacketed bullet was recovered.
(v) Abrasion 7 cm x 2 cm on inner back of upper third of left forearm.
(vi) Abrasion 4 cm x 2 cm on front of the right knee. Internal Examination:
There was one litre blood in the left pleural cavity and the finding in the heart is as mentioned in external injury no.1. Finding in the liver is as mentioned in injury no.1. One litre fluid and clotted blood in the peritoneal cavity.
The opinion on the cause of death was "hemorrhage and shock consequent to penetrating injury to the chest via injury no.1 caused by projectile discharged from a fire arm FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.58/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) weapon capable of discharging the projectile and injury no.1 is sufficient to cause death in the ordinary course of nature. The time of the postmortem was about 01:30 pm on 01.12.2009 and estimated time since death was about 12 hours.
16. From the above, it is evident that the deceased died an unnatural death and his death was homicide.
17. It is a settled proposition of criminal law that prosecution is supposed to prove its case by leading cogent, convincing, reliable and trustworthy evidence beyond reasonable doubt. The case of the prosecution has to fall or stand on its own legs and it can not drive any benefit from the weaknesses, if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubt never shifts and always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal.
It has been held in Sadhu Singh Vs State of Punjab 1997 (3) Crimes 55, that to bring home conviction, the prosecution has to establish its case beyond the pale of reasonable doubt by establishing FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.59/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) an unbroken chains of events, leading to commission of the offence. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, the accused becomes entitled to the benefit of doubt which ultimately leads to his/her acquittal.
18. There is no legal impediment in convicting a person on the sole testimony of a single witness. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise.
19. The Apex Court in Veer Singh & Ors. Versus State of UP reported in (2014) 2 SCC 455, has observed that :
"17. Legal system has laid emphasis on value, weight and quality of evidence rather than on quantity multiplicity or plurality of witnesses. It is not the number of witnesses but quality of their evidence which is important as there is no requirement under FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.60/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. Evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as has been provided Under Section 134 of the Evidence Act. As a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable.
(Vide: Vadivelu Thevar and Anr. V. State of Madras :
AIR 1957 SC 614; Kunju @ Balachandran v. State of Tamil Nadu : AIR 2008 SC 1381; Bipin Kumar Mondal v. State of West Bengal : AIR 2010 SC 3638; Mahesh and Anr. v. State of Madhya Pradesh : (2011) 9 SCC 626; Prithipal Singh and Ors. v. State of Punjab and Anr. : (2012) 1 SCC 10; Kishan Chand v.
State of Haryana : JT 2013 (1) SC 222 and Gulam Sarbar v. State of Bihar (Now Jharkhand) : 2013 (12) SCALE 504).
20. In view of the settled law, I shall now examine whether the evidence of the witnesses examined by the prosecution has a ring of FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.61/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) truth, is cogent, credible and trustworthy or otherwise.
21. At the outset, it is appropriate to pursue the testimony of star prosecution witnesses/eye witnesses i.e. PW1 (complainant Vikram Arora), PW2 (Jitender Arora), PW3 (Rameshwar Yadav) and PW7 Tushar. It is noted that the statement of PW1 was recorded by the police thrice. On the basis of the first statement/complaint of PW1 (Vikram Arora) Ex.PW1/A, rukka Ex.PW53/A was prepared and FIR No.108/2009 Ex.PW8/A was recorded. The said statement Ex.PW1/A is reproduced for reference as below:
"I alongwith my family is residing at GH6, Flat No.122, Paschim Vihar, Delhi for the last four months on rent. I am running a chicken counter on pavement in front of road of St. Marks Sr. Sec. Public School, Meera Bagh, Delhi for the last three years. I open my counter from 06:00 pm to 11:00 pm and my counter remains closed on Tuesday. I knew the deceased Satish prior to the date of incident as he used to take lunch on my counter. On yesterday night at about 10:30 pm, deceased Satish came to my counter in his Pajero car and blow the FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.62/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) horn and on this, I sent my employee to Satish. Satish also called me through Deepak and when I reached near the car, Satish was sat on the driver seat of the car. Satish told me to give the egg roll to him for eating. Since kabab roll was not available at my counter, I told Satish to take chicken egg roll from the next counter. Thereafter, Satish told me to tell the counter owner to serve the good chicken egg roll and parked his vehicle 1015 steps ahead from the road in front of Delicious Egg Roll Counter. Since Satish came from Nangloi to eat the egg roll, I told the owner of Delicious Egg Roll Counter to serve a chicken egg roll in Pajero car of Satish. After giving the order, I came back to my counter and sent some onion with chatni to Satish through one of my employee and thereafter, I started work in my counter. After around 510 minutes, I heard the noise of firing and saw that Satish was walking towards my counter on road and he was having pistol in his hand. I saw that one white colour Swift car was standing in front of the car of Satish and doors of the Swift car were opened. Twothree boys FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.63/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) were firing upon the Satish and while walking towards my counter, Satish fell down on road near the counter. Those 23 boys fled away from there while sitting in the Swift car towards Outer Ring Road Meera Bagh, Delhi. I lifted Satish with the help of my brother Jitender Arora and friend Tushar Gulati. I took the Pajero car of Satish after reversing it and Jitender Arora and Tushar sat Satish on the back seat of the car and I and Tushar took Satish to Sehgal Nursing Home, Outer Ring Road Meera Bagh, Delhi. In the hospital, doctor concerned has examined Satish and told that there is no breath in the person of Satish and hospital staff dialed 100 number call and gave the phone to me and I told the entire incident to the police. I also found the mobile phone of Satish in his car and in the hospital, I received a call on the mobile phone of Satish from one lady and I told her that Satish inflicted gun shot injury and I had taken Satish to Sehgal Nursing Home. I asked her to come Nursing Home at the earliest. After about 1015 minutes, Amit alongwith twothree boys came in FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.64/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) Sehgal Nursing Home. I handed over the phone and key of Pajero car to Amit. In the mean time, Amit and those boys had taken Satish to Maharaja Agrasen Hospital, Punjabi Bagh, Delhi. I also reached Maharaja Agrasen Hospital through private vehicle. In the hospital, doctor has declared Satish dead. I can identify those 23 boys who had fired upon Satish, if shown to him. I want action against those boys.
22. Subsequently statement of PW1 (Vikram Arora) was recorded by the police vide Ex.PW53/DX1 (PW1/PX1) and Ex.PW1/PX2. PW1 Vikram Arora during his examination in chief deposed as under: "I am running a shop of Meat at Meera Bagh, Paschim Vihar opposite St. Mark School by the name of Kaka Meat Wala. I am running this shop for the past 0405 years. Again said. It is not a proper shop but it is a counter type redi. On 30.11.2009 at about 10.15pm - 10.30 pm Satish Bhaiya came to my shop whom I know from before. Satish Bhaiya stopped his Pajero car near my redi. I sent my FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.65/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) servant Deepak to take the order from Satish Bhaiya. Satish Bhaiya ordered a chicken kebab roll. The item ordered by Satish Bhaiya was over in my redi. I went to the car of Satish Bhaiya and informed him that the item ordered by him was over. He told me that although dinner was prepared at home, he wanted to eat something light so I suggested to him that there was one redi selling egg rolls and other items a bit ahead of my redi by the name Delicious Egg Roll. Satish Bhaiya told me to go to Delicious Egg Roll and get prepared a special chicken egg roll for him and he parked his car in front of the redi of Delicious Egg Roll which was 1015 steps from my redi. I went to the redi of Delicious Egg roll and told the person there whom I call chotu to prepare the special chicken egg roll for Satish Bhaiya. I came back to my shop and told Deepak to prepare salad and give to Satish Bhaiya in the car. Deepak went to the car and gave the salad. Deepak came back and both of us started working at the redi since there were many customers in my redi. There are other redis around my redi and the area is very well lit. After 20 25 minutes I heard the sound of firing. Initially I thought FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.66/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) that it was a bullet motorcycle but then the sound of firing was continuous and I realised that there was firing going on. I immediately told the persons around me to lie down on the ground to protect themselves from the firing. I have three counters together in one the roasted chickens are displayed while on the second the gravy items are displayed and the third is a small cash counter. My attention went towards the car of Satish Bhaiya's Pajero car. I saw there was a white coloured Swift car standing with its doors open. The driver seat door of Satish Bhaiya's car was also open. I saw Satish Bhaiya with a weapon which looked like a pistol or revolver in his hand which he was holding in a firing position and he was walking backwards towards my redi from his Pejero car. His weapon was pointed towards the Swift car where there were three persons standing. One person was standing near the driver seat of the Swift car the other two persons were standing near the dikki of the car. The Swift car was standing in a position where I could see the back of it. The two persons standing near the dikki of the Swift car were having weapons in their hand which looked like a revolver FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.67/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) or pistol and they fired at Satish Bhaiya. Satish Bhaiya was hit and he came near my counter and fell down on the ground near the tree. I clearly saw the faces of the two persons who were standing near the dikki of the Swift car and who fired at Satish Bhaiya. I also clearly saw the faces of the person who was standing near the driver seat of the Swift car. I can identify all the three persons.
(The witness has pointed out towards one of the accused who he says was standing near the driver seat of the Swift car whom he has named as Paramjeet). I came to know the name of this accused on 13.12.2009 (witness has correctly identified accused Paramjeet).
(The witness has pointed out towards two of the accused whom he says were standing near the dikki of the Swift car and had fired at Satish Bhaiya). Their names are Mohit Chhabra and Bhura. I came to know his name on 13.12.2009. The witness has correctly identified the accused Mohit Chhabra and Ravi Malik @ Bhura.
The accused Paramjeet started the Swift car and the other two accused Mohit Chhabra and Ravi Malik sat in the car and they all went towards Meera Bagh Road outer FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.68/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) ring road. I looked at Satish Bhaiya who had fallen on the ground. He was breathing very slowly. I straightened him and pumped his chest to give first aid to him to enable him to breathe. I called out to my brother Jitender and his friend Tushar who were standing nearby for help. I also called out to the other persons around however no one came to help and most of the persons left the spot. With the help of Jitender and Tushar, I tried to make Satish Bhaiya stand up. While Jitender and Tushar were holding Satish Bhiaya, I went and started the Pajero car reversed it and got it near my counter. I with the help of Jitender and Tushar made Satish Bhaiya lie down on the back seat. I left my brother Jitender at the shop to look after my cash counter and I and Tushar took Satish Bhaiya to Sehgal Nursing Home, Outer Ring Road, Meera Bagh. This was in the same direction in which the Swift car went. I and Tushar kept assuring Satish Bhaiya that we would soon reach the hospital and that he should not shut his eyes. On reaching Sehgal Nursing Home, we called for a stretcher. Satish Bhaiya was taken by the hospital staff on the stretcher inside Sehgal Nursing Home. I parked the Pejero car in the service lane near the FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.69/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) Sehgal Nursing Home. I picked up Satish Bhaiya's mobile phone lying near the driver's seat and locked the car and went inside Sehgal Nursing Home. There was a call connected on the mobile phone. When I pressed the red button, the call got disconnected. I dialed on the first number which came in the display which was the number of the disconnected call. One lady picked up the phone from the other side and I told her that Satish Bhaiya was hit by a bullet and I had got him to Sehgal Nursing Home. The lady on the other side shouted out to someone mummy ji mummy ji goli lag gayee and I disconnected the phone. I do not know the name of the lady who had attended the call. Someone from the Sehgal Nursing Home staff dialed on 100 number and made me speak to the police. I told the police what happened. After about 1012 minutes, 0203 boys came who were the relatives of Satish Bhaiya whom I handed over the key of the Pajero car and the mobile of Satish Bhaiya. I knew one of them namely Amit. After that two ladies came who appeared to be from the family of Satish Bhaiya. After handing over the key and mobile, I left the Sehgal Nursing Home. When I was outside Sehgal FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.70/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) Nursing Home, I saw the relatives of Satish Bhaiya taking him in a car towards Maharaja Agrasen Hospital. One of the relatives told me that the doctors here had given up hope so they were taking Satish Bhaiya to Maharaja Agrasen Hospital. While I was inside the Sehgal Nursing Home, Tushar was waiting outside. I and Tushar walked towards the red light and I made a call to my brother Jitender to get the car so that we could go to Maharaja Agrasen Hospital where Satish Bhaiya was taken. Jitender alongwith one friend got the car and we all four went to Maharaja Agrasen Hospital. In Maharaja Agrasen Hospital, we learnt that Satish Bhaiya had expired. The police met me after 15 minutes of my reaching the hospital. The police made enquiry from me and recorded my statement Ex.PW1/A (running into five pages) which bears my signature at point A on each of page. My statement Ex.PW1/A was recorded in one police office near the hospital. The police took me to the spot of crime. The IO prepared the site plan at my instance which is Ex.PW1/B which bears my signatures at point A. There were four to five empty bullet shells on the ground. Four were of the FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.71/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) empty bullet shells were alike while the fifth looked like a lead piece. The place where they were lying was encircled by the police with white chalk. There was also the weapon of Satish Bhaiya lying at the place where he had fallen. The same was picked up and the spot where it was lying was encircled with white chalk by the police. The magazine from the weapon of Satish Bhaiya was removed by the police. It had bullets in it which were taken out and magazines was put back. The sketches of the four empty bullet shells, the lead piece, the weapon of Satish Bhaiya with bullets were made and they were converted into cloth parcels and sealed with the seal of DP and seized by the police. I had signed on the sketch of the four empty bullets and piece of lead which is Ex.PW1/C which bears my signatures at point A. The same were taken into possession and seized vide seizure memo Ex.PW1/D which bears my signatures at point A. The rough sketch of the weapon of Satish Bhaiya and the bullets was prepared before me which is Ex.PW1/E which bears my signatures at point A. The same was seized vide seizure memo Ex.PW1/F which bears my signatures at point A. FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.72/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) On 02.12.2009, I was called by the police to the spot of crime and they made enquiries from me regarding the place of crime and I pointed out the places.
I was taken thereafter to PS Mianwali Nagar where I was the whole night. On 13.12.2009, I was called by the IO Insp. Dharampal to the spot of crime. The IO came with four persons who were in police custody. I identified the accused persons and it is on that day that I learnt their names.
23. PW2 Jitender Arora has deposed that I am working with my brother on a rehri Kaka Meat Wala at Meera Bagh, Paschim Vihar in front of St. Mark Senior Secondary School. On 30.11.09 at about 10:30 pm, Satish Bhaiya came in his Pajero car to our Rehri for eating Mutton Roll. After about 1015 minutes, I heard noise of firing. Then I saw that two boys standing near the white Swift car were firing upon Satish Bhaiya. One other boy was standing near the driver seat of that white Swift car. Satissh Bhaiya was running towards our rehri. Then I heard the voice of Vikram Arora that we should sit down. Then after few minutes when we got up, we saw that Satish Bhaiya was lying in front of our rehri. I alongwith my friend Tushar had joined Vikram FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.73/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) Arora to take Satish Bhaiya to the hospital. We all three took Satish Bhaiya to the back seat of the Pajero car. Vikram Arora came to the steering of Pajero and Tushar remained sit on the back set of the Pajero and both of them took Satish Bhaiya to the hospital and I came back to my Rehri and then came to my house. After sometime, I received a mobile call from Vikram Arora from Sehgal Nursing Home that Satish Bhaiya has expired. After 1015 minutes, I again received call from Vikram Arora that he has left the Sehgal Nursing Home and I picked him from the red light Meera Bagh. Vikram Arora told me that the deceased has to be shifted to Maharaja Agrasen Hospital. I alongwith Vikram Arora, Tushar and one more friend namely Akhil went to the Maharaja Agrasen Hospital. Thereafter, I came to my house in my vehicle. The accused persons namely Mohit Chhabra @ Gouri and Ravi Malik present in the court (correctly identified by the witness) were firing upon Satish Bhaiya. The accused Paramjeet @ Monu present in the court today (witness correctly identified) was standing near the driver seat of the white Swift car. At about 03:30 am (in the midnight), I received a call from Vikram Arora that I should come to the spot of incident. I went there. There police recorded my statement.
24. PW3 Rameshwar Yadav has been examined as another eye FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.74/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) witness who is also the relative of the deceased. The witness has deposed that:
On 28.11.2009, I had gone to the house of Narender Yadav at Khyala for giving 'Lagan' of my niece (Bhanji) Neera. After the Sagai of my niece, I accompanied Satish Yadav to his house at Flat No.885, Paschim Vihar, Delhi. On 30.11.2009 at about 10:30/11:00 pm after distributing the cards of marriage, I was going to the house of Satish on the way I feel hungry and I stopped TSR and got down in front of Sant Marc School. To the other side of the road, I saw that Pajero vehicle of Satish Yadav was stationed. I saw that Satish was sitting in his car and two boys were standing near the driver seat and other was standing to the other side of the car. Witness has pointed out towards the accused persons namely Ravi and Mohit. I was crossing the road and saw that those two boys were firing shot on Satish Yadav. Satish Yadav fell down near one tree and rehri. I also saw one Swift car standing ahead of Pajero and accused Paramjeet was standing near the driver seat of Swift car. Accused Ravi and Mohit came up to the Swift car and accused Paramjeet sat on the driver seat and accused Ravi and Mohit boarded in the Swift car and the said car speed away to Meera Bagh. After 1520 steps away, accused Krishan boarded in the Swift car. I saw rehri walas and other public persons were running FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.75/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) from there. I went up to the place where Satish Yadav was lying and 3 4 boys gathered there. I told them I am mama (uncle) of this injured and I should also be allowed to board in the Pajero but they did not hear me and so I went to the house of Sumit Yadav.
25. Other eye witness PW7 Tushar deposed that in the last days of month of November, 2009, I alongwith my friends had gone to Kaka Meat Shop situated at Paschim Vihar. Vikram and Jitender are my friends and they also run rehri selling chicken. At about 10:00 pm, I heard the noise of pathakhon ki (noise of crackers) and someone shouted "goli chali". All the persons standing there started running here and there and some of them hid themselves under the rehries. I hid myself under the rehri. When I got up, I saw one person was lying on the road. Vikram told me that he is Satish. I and Vikram lifted Satish to Sehgal Nursing Home in Pajero car from where the relatives of Satish took him to another hospital. Police recorded my name and I came back to my home from Sehgal Nursing Home. I had not seen the person who fired on Satish. I had also not seen firing because I hid myself under the rehri. I do not know from which side those persons came who fired on Satish.
FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.76/115FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016)
26. I have gone through the testimony of the star witnesses i.e. PW1, PW2, PW3 and PW7 examined by the prosecution as eye witnesses alongwith their testimony during crossexamination. None of the witnesses deposed regarding the involvement of the other fourth accused who was picked up by other three accused persons when they were going in the Swift car towards the Ring Road after the incident as claimed by the prosecution. The witnesses were crossexamined by the prosecution as well on this aspect but nothing came out in this regard in support of the prosecution.
27. PW1 was crossexamined at length by the defence counsel and the creditworthiness and truthfulness of the witness was challenged with respect to the identity of the accused persons as well as him being interested witness. It is reiterated that the PW1 made three statements to the police which are inconsistent as well as improved version of the other. Nothing has been informed regarding the identity of the accused persons while recording of the DD entry or in his first complaint/statement to the police on the basis of which the FIR was registered. In the next statement, the face of the accused persons covered with mask (monkey cap) is noted by the witness. There is also contradiction in respect of the witnessing of the incident FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.77/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) of firing by the witness.
It is pointed out that the PW1 is interested and unreliable witness. Admittedly, the witness (PW1) is known to the deceased prior to the incident. During crossexamination, it is also proved that the witness was connected and communicated with the family members of the accused persons and was in constant touch with them; no explanation has been furnished by the witness in this regard. The accused persons were not known to the witness as he never seen them before the incident but after having glimpse, he identified them in the court which raises suspicion and doubt. There appears to be also major contradictions in the testimony of PW1 compared to PW2, PW3, PW53 (IO) and PW7. There are major contradictions and improvements with respect to the statement Ex.PW1/A and the testimony of PW1 recorded in examination in chief regarding the time of incident, identity of the accused persons, making of mobile calls and conversation with PW5; handing over of the Pajero car and keys of the car to PW12 Amit; regarding call records by the mobile of the deceased. While PW1 was in constant touch with the family members of the accused persons has not been explained at all by the prosecution and therefore, the contention of the defence regarding blackmailing by the PW1 cannot be ruled out. In one of the complaint case made by the FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.78/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) PW1, it is reported during argument that he became hostile regarding the threat by the family members of the accused persons. PW1 appears to be an interested witness accordingly.
PW1 was confronted during crossexamination with his earlier statement recorded by the police which is Ex.PW1/A including the fact that he has seen the faces of two persons who were standing near the dikky of the car and fired on the person of deceased. The witness was further confronted with his statement Ex.PW1/A, PW1/PX1 and Ex.PW1/PX2 while he claimed that he clearly saw the face of the person who was standing near the driver seat of the Swift car. The statement of PW1 recorded during examination in chief is improved version as compared to his earlier statement (Ex.PW1/A) given to the police regarding the firing as he claimed that he disclosed such fact to the police in his statement. Moreover, there are inherent contractions and inconsistencies in the statements of PW1 recorded vide Ex.PW1/A and examination in chief. The witness failed to explain regarding the questions and statement with which he was confronted during his crossexamination.
28. PW2 during crossexamination deposed in contradictions to the testimony of PW1 regarding the presence of the customers at the FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.79/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) rehri, hearing the noise of firing as well as witnessing the incident of firing by the accused persons. The witness deposed that he sat down after hearing the voice of PW1 and when he got up, he saw the deceased in front of the rehri. Witness deposed that PW1 also sat after hearing the noise of firing and categorically deposed that after he stood up, he could not see the assailants as they had gone in their vehicle. Both PW1 and PW2 failed to depose as to whether the deceased was also firing as they have not seen the incident of firing as came out from their testimony. The blood stained clothes of the witness were not collected/recovered during investigation. Interestingly, neither the PW1 nor the PW2 made any call to the PCR just after the incident at the spot. The witness was also confronted with his earlier statement Ex.PW2/A during his crossexamination to point out the improvement/addition in his testimony recorded before the court. Admittedly, as deposed by PW1, PW2 & PW53, the distance between the spot and Sehgal Nursing Home can be covered within 5 minutes in a vehicle but it took more than one hour for reaching the injured to the hospital/Sehgal Nursing Home and same could not be explained till today. There is also discrepancy regarding the time of the incident and time taken in getting the injured to the hospital. PW2 during crossexamination deposed that "it may be correct that the FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.80/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) firing may have taken place at 10.05, 10.10, 10.15. 10.25 or even 10.30 pm and therefore, there are contradictions and inconsistencies in the testimony of PW1, PW2, PW5 and PW53 IO regarding the time of the incident. The testimony of PW1 and PW2 is further contradictory to the testimony of PW5 regarding information of the incident, call records etc.
29. The deceased is nephew of PW3 Rameshwar Yadav who deposed that he witnessed the incident as he was returning after distributing the marriage card but the conduct of the witness is totally in contradiction to the act of reasonable man as despite witnessing the incident of firing and injury to the deceased, he did not raise any hue and cry, did not inform to the police regarding the incident at the first occasion nor accompanied him to the hospital and left to unknown person to take the injured to the hospital. The witness claimed that after the incident he went to the house of Sumit Yadav and thereafter, he alongwith relatives reached at Maharaja Agrasen Hospital but the answer to the query of the court, the witness failed to depose regarding the place where the hospital was situated.
From the testimony of PW3, it is clear that he did not visit to Sehgal Nursing Home and directly visited to Maharaja Agrasen FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.81/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) Hospital with the relatives i.e. Sultan Yadav (father of Sumit), Amit (brother of Sumit) and other relatives and neighbours. The statement of the witness was recorded by the police in the hospital at about 03:00/04:00 am on the same night. The testimony of the witness was further controverted during crossexamination regarding the presence of customers at the rehri of PW1 at the relevant time, number of rehris, number of Pajero car of the deceased; name of the hospital where the deceased was taken etc. The witness during crossexamination deposed that "I do not know in which hospital Satish Yadav was taken from the spot. I came to know that deceased Satish was taken to Agrasen Hospital by some relatives. I was informed about the Agrasen Hospital by my relative Amit and Sumit, who were driving the car in which I was traveling and they were making inquiries from the relatives who made call to him. Sumit came to know about the incident through me". The testimony of PW12 and PW13 are altogether contrary to the testimony of the witness. The witness claimed that he reached at Maharaja Agrasen Hospital at about 11:00/11:15 pm with Amit and Sumit though the record as well as testimony of PWs Amit and Sumit is contrary to the testimony of PW3. The witness failed to depose regarding the registration number of the Swift car and was further confronted with his statement Ex.PW3/DX during cross FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.82/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) examination regarding the incident. He claimed that he met with the father of the deceased in the mid night on the date of incident but did not tell everything in detail to the father of the deceased. Further, the testimony of witness is contrary to the testimony of PW12 who claimed that he alongwith Rameshwar Yadav went to Sehgal Nursing Home and PW Sumit and Amit were intimated regarding the incident by Pinki i.e. wife of Sumit and not by the witness as claimed by PW Rameshwar Yadav. Interestingly, PW12 Amit and PW1 are unknown to each other but PW1 handed over the key of the Pajero car as well as mobile phones to the PW12 Amit whereas PW12 deposed during crossexamination that the mobile phones were handed over to him by the cousin of the deceased whose name he do not know. The testimony of PW13 Sumit Yadav is also as deposed by PW12 but contrary to the deposition of PW3.
30. PW7 who has been examined as an eye witness of the incident and has accompanied the injured to the hospital did not support the case of the prosecution and deposed that "I had not seen the person who fired at Satish. I had also not seen firing because I hid myself under the rehri. I do not know from which side those persons came who fired on Satish". The witness was crossexamined by Ld. FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.83/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) Addl. PP for the State but nothing came out. The witness during cross examination deposed further that Jitender and Vikram i.e. PW1 and PW2 had also hidden themselves after hearing the gun shot and everyone got up after the gun shot was stopped and he took hardly five minutes to reach Sehgal Nursing Home from the spot. The witness deposed contrary to the testimony of PW1 as after leaving the injured at Sehgal Nursing Home, he and Vikram went to their houses.
31. PW5 Smt. Rita/wife of the deceased has deposed that on 30.01.2009 at about 11:05 pm, her husband made a call from mobile number 9911140009 on her mobile number 9999662381 and she heard the voice and abuses by accused Mohit Chhabra @ Gauri and fire shots and thereafter, she did not receive any response from her husband side in conversation and disconnected the mobile phone. She immediately made a telephone call on that number and one unknown person picked up the call who told that the person whose mobile he was attending has been shot and the said unknown person was taking him to the hospital. She claimed that she made telephone calls to her relatives and sister in law Pinki regarding her husband being shot and the place of incident.
The witness was crossexamined and confronted with the FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.84/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) call records of the aforesaid mobile numbers. The claim of the witness is in contradiction to the testimony of PW1 with regard to the time of incident as well as conversation. PW1 claimed that he intimated and received the call from a lady (wife of the deceased) in the hospital whereas PW5 claimed that she heard the noise of live firing and just after the firing had conversation with PW1. The witness came to Delhi on 01.12.2009 or 02.12.2009 after the incident and her statement was recorded by the police and thereafter, she returned to Khoda. The claim of the witness regarding the conversation with the deceased as well as PW1 regarding the incident is contrary to the call records Ex.PW25/L. The witness claimed that on 30.11.2009 after receiving the message, she alongwith parents in law and two devars (brother in law) left for Delhi at about 11:30 pm and reached Delhi at around 12:15/12:30 am and firstly went to Sehgal Nursing Home where they were told that deceased had been taken to Mahararaja Agrasen Hospital and they visited Maharaja Agrasen Hospital at about 12:30 am/01:00 am. The claim of the witness regarding the conversation with the deceased and hearing of the live noise of firing is contrary to the claim of PW1 who informed regarding the incident to the witness in the Sehgal Nursing Home.
FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.85/115FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016)
32. The testimony of PW10 Rajpal Yadav/father of the deceased is contrary to the claim of PW3 and PW5 as the witness claimed that he met with PW3 Rameshwar Yadav for the first time in Mortuary whereas PW3 claimed that he met with PW10 in Maharaja Agrasen Hospital.
33. PW12 and PW13 claimed that they had reached the Sehgal Nursing Home contrary to the deposition of PW3. The testimony of PW22 is altogether different as the deceased was brought in Maharaja Agrasen Hospital on 30.11.2009 at about 11:55 pm by one Raj Kumar Yadav and the said person has not been examined either during investigation or trial by the prosecution.
34. PW53 Insp. Dharampal is the Investigating Officer of case FIR No.108/2009 PS Mianwali Nagar whose testimony is also inconsistent and contrary to the testimony of other material PWs. Admittedly, the statement of other owners of rehris and their employees was not recorded who were present at the spot; there are contradictions regarding the time of incident and information; non verification of the installation regarding the CCTV cameras on the place of incident etc. Further, his testimony regarding the identity of FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.86/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) the accused persons is contrary to the claim of PW1 who did not disclose the name or identity of the accused persons till they were arrested in other case. In Ex.PW1/A, number of assailants has been mentioned 2/3 whereas in DD No.38A Ex.PW4/A, 3 to 4 assailants has been mentioned. IO during crossexamination deposed that as per prosecution case, the incident took place at 10:30 pm but the information was given to the PCR at about 23:41:57 hours through Sehgal Nursing Home which is situated at a distance of 200 meters from the place of incident and a person would reach to the hospital from the spot within 5 to 10 minutes on foot. The cause of delay in reaching the hospital as already noted has not been explained. In nut shell, the IO failed to answer material questions during cross examination and even the concerned doctors at Sehgal Nursing Home has not been examined nor their statement was recorded. As discussed above, there was regular call between 10:28 to 11:43 pm and even thereafter as per the call details record of mobile number 9911140009 (Ex.PW25/L) contrary to the claim of PW1 and PW5 but no inquiry or investigation has been made in this regard including its location. Contrary to the claim of PW2, PW53 deposed that no blood was found on the clothes of any of the eye witness and admittedly during investigation, the IO did not find any corroborative piece of evidence FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.87/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) to the version of eye witnesses in the form of documentary evidence or other evidence. The relevant entries of document Ex.PW53/J are blank which is not explained as well. IO admitted that the registration number of the Swift car was not disclosed by any of the witnesses nor in the FIR or in the statement of eye witnesses, the names of the assailants nor their description was given. Rough site plan Ex.PW1/B has also been assailed for not showing the position of other eye witnesses except PW1 nor the blood at the spot; the place at which the deceased fallen after being hit by the bullet has also not been shown in Ex.PW1/B. IO deposed totally in contraction to PW3 Rameshwar Yadav while deposing that "I recorded the statement of eye witness Rameshwar at the spot".
35. As observed, there are material contradictions in the testimony of PW1, PW2, PW3, PW5 and PW53 regarding the mode and manner of the incident, identity of the accused persons etc. and PW7 has not supported the case of prosecution. After reading the evidence of PW1 to PW3 and PW7, who have been examined as eye witnesses by the prosecution, their evidence appears to be inconsistent and contrary to each other. There are major contradictions in the testimony of these eye witnesses and therefore, the same needs to be FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.88/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) examined with caution. Further, from the testimony of PW10, the criminal background of the deceased as well as the witness is also brought on record. It is reiterated that the PW1 remained in constant touch with the accused persons as deposed by him but no reason has been explained in this regard and accordingly, him being interested witness cannot be ruled out. It is settled law that the court must be cautious in appreciating and accepting the evidence given by the interested witnesses and the primary endeavour of the court must be to look for consistency.
36. In Ramashish Rai v. Jagdish Singh (2005) 10 SCC 498, it was held:
"the requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable, their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well settled principle of law that enmity is a double edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.89/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) inimical witnesses with due caution and diligence".
37. At this juncture, it would be pertinent to note the Supreme Court's observations on the conduct of eyewitnesses. In Harbans Lal v. State of Punjab (1996) 2 SCC 350, the Supreme Court was considering the reliability of the ocular testimony of two purported eyewitnesses who claimed to have witnessed the killing of the deceased therein. In evaluating their testimonies, the Court opined:
"Thus, these two witnesses deposed about two stages of the occurrence they had seen through the window. Their evidence appears to be rather artificial. These two witnesses appear to us to be got up witnesses. They saw a gruesome murder being committed with their own eyes and yet for reasons best known to them, they did not raise any alarm but went their way and did not disclose about the occurrence to anyone, not only that evening but even till the third day after the occurrence. Their conduct was thus, most unnatural. This creates a serious doubt about their creditworthiness".
38. Further, in its decision in Badam Singh v. State of MP FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.90/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) (2003) 12 SCC 792, the following observations were made:
"The mere fact that the witnesses are consistent in what they say is not a sure guarantee of their truthfulness. The witnesses are subjected to crossexamination to bring out facts which may persuade a Court to hold, that though consistent, their evidence is not acceptable for any other reason. If the Court comes to the conclusion that the conduct of the witnesses is such that it renders the case of the prosecution doubtful or incredible, or that their presence at the place of occurrence as eye witnesses is suspect, the Court may reject their evidence."
39. The prosecution has laid much emphasis on the fact that the accused persons refused to participate in Test Identification Parade (TIP) and they were identified by PW1 and PW2 during evidence. According to the prosecution, this conduct of the accused reflects of their guilt. The record shows that the incident in question is of 29.11.2009; the statement of the complainant/PW1 was recorded in the intervening night but nothing has been explained regarding the identity of the accused persons. The supplementary statement of the PW1 was FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.91/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) again recorded on 02.12.2009 without establishing sufficient justification for the delay; the accused persons were arrested in other case i.e. case FIR No.614/2009 South Rohini under Section 411/34 IPC and 25/54/59 Arms Act registered at PS South Rohini on 09.12.2009; the application for issuance of production warrant qua the accused persons was moved by the IO on 11.12.2009; though production warrant were issued returnable on 12.12.2009; the IO was allowed to interrogate the accused persons in court on the same day; the application for TIP was filed before the court on which orders were passed by the Ld. M. M. on 12.12.2009; the accused persons refused to get the TIP conducted on the ground that they have already been shown to the complainant in view of documents Ex.PW40/3, Ex.PW40/9 and Ex.PW40/12; the supplementary statement of PW1 was again recorded on 02.02.2019 and again on 13.12.2009 after the accused persons were allegedly identified by him in police custody on 13.12.2009 and came to know their names as well. PW1 was confronted with his initial statement during his crossexamination and his statement are inconsistent and contradictory and therefore, not reliable and trustworthy.
40. It is settled position of law that the statements that are self FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.92/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) incriminating and made by an accused while in custody are inadmissible in evidence being hit by Section 25 & 26 of Indian Evidence Act, 1872. Any statement made by the accused in police custody which relates to his culpability in the commission of crime is obviously self incriminating and therefore, inadmissible. Section 27 only permits so much of the fact that is discovered, while in custody of a police officer "as relates distinctly to the facts thereby discovered". In the present case, at the time of the so called disclosure statement was made by the accused Mohit Chhabra and Krishan Antil, they were already in police custody and it is only thereafter that their disclosure statement was recorded. The disclosure statement made by the accused persons cannot be relied accordingly being inadmissible in evidence and the same is clearly hit by Section 25 & 26 of the Evidence Act. The prosecution failed to discharge the onus of any recovery within the meaning of Section 27 of Indian Evidence Act. PW14 H. Ct. Naresh, PW15 H. Ct. Surender, PW46 H. Ct. Pawan Kumar, PW47 H. Ct. Praveen, PW50 ASI Bal Kishan and PW52 H. Ct. Inderjeet deposed that on 09.12.2009, accused persons were apprehended on the basis of secret information at the gate of Jaipur Golden Hospital and pistols and cartridges were recovered from their possession. The witnesses further deposed that accused persons made disclosure FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.93/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) statements regarding the commission of crime in case FIR No.108/2009 PS Mianwali Nagar. Pursuance to the disclosure statement in the investigation, no recovery was effected from the accused persons as admissible under the Indian Evidence Act. Moreover, all the witnesses examined by the prosecution regarding apprehension of the accused persons with pistols/arms were police officials only and no public witnesses has been examined despite the presence of public witnesses and the place being a public place. The prosecution even failed to explain as to how the accused persons of the case were suspected and arrested on the basis of secret information being wanted in this case. However, the IO of the case FIR No.614/2009 has moved an application regarding the involvement of the accused persons and used of the weapon of offence in case FIR No.108/2009 and accordingly both the cases were clubbed together on the application of the prosecution and therefore, the alleged recovery does not inspire confidence within the meaning of Section 27 of Indian Evidence Act. The recovery of the country made pistols appears to be false and planted in view of doubtful features and infirmities in prosecution evidence. It is not safe to rely merely upon the testimony of the police official whose evidence needs to be scrutinized with great care and caution. There are fatal infirmities in the entire prosecution FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.94/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) case and the entire genesis and the manner of the incident is doubtful and the entire story deserves to be rejected. The testimony of other witnesses examined by the prosecution is merely formal in nature.
41. Admittedly, no public witness joined in the investigation and recovery of the fire arms from the accused persons. From careful perusal of the testimony of these recovery witnesses, it reveals that several public persons were present at the spot at the time of recovery and arrest but they were not made witness in the present case. It is a serious lapse on the part of the investigating agency. No independent public witness was joined despite availability and sufficient opportunity with investigating agency to join the public witness. Merely stating that they tried to join public witness but public persons refused to join is insufficient as they had not obtained even the names of such public persons and have also failed to explain as to why the provisions of Section 174 IPC read with Section 42 of Cr. P. C. was not brought into action against such public persons.
42. In State of Rajasthan v. Teja Singh reported as 2001 (II) AD (SC) 125, Hon'ble Supreme Court held that the failure of the prosecution to examine independent public witnesses though available FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.95/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) is fatal to their case.
In the case tiled, State of Punjab v. Gurudayal Singh, 1992 (1) RCR (DB) 646; Roop Chand v. State of Haryana, 1989 (2) RCR 504 and State of Punjab v. Sukhdev Singh, 1992 (3) RCR 311, it was held by the Hon'ble Court that:
"where the IO has failed to even note down the names and addresses of the persons, who have refused to join as public witnesses, coupled with the fact that no action was taken against them, the case is rendered doubtful".
This court also find it relevant to refer the judgment titled Ritesh Chakavarti v. State of Madhya Pradesh (SC) 2006 (4) RCR (Crl.) 480 wherein it was observed:
"It was a busy place, the officers would expectedly asked those to be witnesses to the seizure memo who were present at the time in the place of occurrence. But not only no such attempt was made, even no body else who had witnessed the occurrence was made a witness. Even their names and addressed had not been taken. Illustration (g) appended to Section 114 of Indian Evidence Act reads thus FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.96/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) "The court may presume:
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
An adverse inference, therefore, could be drawn for nonexamination of material witnesses." (Emphasis supplied).
43. In the case titled as Nanak Chand v. State of Delhi, 1992 (1) RCR (Crl.) 412, the Hon'ble High Court of Delhi observed as under:
"The recovery was from a street with houses on both sides and shops nearby and yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public specially when they are available, may, as in the present case creates doubt. They have again, churned out a stereo typed version".
44. Hon'ble High Court of Delhi in Anoop Joshi v. State 1992 FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.97/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) (2) C.C. Cases 314 (HC), observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. Ion case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
45. In the case titled as Jagdish Raj Jaggi v. State (Delhi), 1987 (2) R. Cr. R (Criminal) 1, while deciding a case under Arms Act and acquitting the accused due to nonjoining of public witness, the Hon'ble Court observed as under:
FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.98/115FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) "The question is not whether the testimony of police officers should or should not be approached with a suspicion. The question is of being conscious of an inherent danger that is involved in relying upon the evidence of police officers only unless it is supported by some corroborative evidence or unless circumstances of the case sufficiently lend assurance to the court that all that is being stated by the police officers is correct. Normally speaking when a raid of this kind is arranged one should expect the police officer to involve independent witnesses. In this case the court is told that an effort was made but nobody came forward. It has been my unfortunate experience that this explanation is now being tendered in almost all cases. Normal rule is the involvement of public witnesses and if that is not followed it must be sufficiently explained as to why it was not so".
In case FIR No.614/2009, the recovery of pistols is alleged to have been made in the evening in front of the gate of Jaipur Golden Hospital, thus, the recovery is not at the odd hours of the day, rather, it is at a time when admittedly there were people present near the spot FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.99/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) and could have been examined as independent public witnesses. Despite the presence of public witnesses only police witnesses have been examined and not even a single public witness was asked to join investigation. Further, no efforts were made in this respect. In the absence of public witnesses to the recovery and also in view of absence of any explanation as to why a public witness was not joined in the investigation, the prosecution has failed to prove the recovery of the weapon from the accused Mohit Chhabra beyond reasonable doubt.
46. It is reiterated that there is no recovery at all at the instance of the accused persons in this case admissible under Evidence Act. It would be necessary to ascertain that there was no foul play on the part of the Investigating Agency and the prosecution was able to prove its case beyond reasonable doubt. A perusal of the scientific evidence on record in the form of FSL report does not prove the guilt of the accused persons and does not support the prosecution case. It would be relevant and appropriate to reproduce the relevant part of the FSL report, as deposed by PW42 Sh. V. R. Anand, Assistant Director Ballistic, FSL, Rohini, Delhi which reads as under:
"The individual characteristics of firing pin marks and breech FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.100/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) face marks present on EC1 to EC4 and on TCA1 to TCA4 were examined under comparison microscope and were not found identical. Hence, the cartridges EC1 to EC4 had not been fired through the improvised pistols 7.65 mm marked Ex.F1 and F2 in case FIR No.614/09 PS South Rohini. The exhibits EC1 to EC4 were ammunition as defined in the Arms Act, 1959."
Perusal of the FSL report Ex.PW42/A shows that the cartridges 'EC1' to 'EC4' had not been fired through the improvised pistol 7.65 mm marked Ex.F1 and F2 in case FIR No.614/2009. It is clear that from the FSL report that there is no material on record to connect the injury suffered by the victim with the firearm alleged to have been recovered from the accused persons.
47. In Pankaj vs. State of Rajasthan reported in (2016) 16 SCC 192, wherein the Apex Court held that:
"It is a wellsettled principle of law that when the genesis and the manner of the incident is doubtful, the accused cannot be convicted. In as much as the prosecution has failed to establish the circumstances in which the Appellant was alleged to have fired at the deceased, the entire story deserves to be rejected. When the evidence FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.101/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence.
48. The Ld. Special Prosecutor for the State submitted that the accused Mohit Chhabra @ Gauri and Krishan Antil @ Bhoul pointed out the scene of crime and pointing out memos Ex.PW27/B and Ex.PW27/C have been prepared which point to their guilt.
Ld. defence counsel submitted that the scene of crime was already known to the police before the arrest of the accused persons. He submitted that the scene of crime was not discovered at the instance of the accused persons. They further submitted that the accused persons did not get discovered any new fact pursuant to their pointing out memos and the pointing out memos are neither admissible under Section 27 of the Evidence Act nor Section 8 of the Evidence Act.
The arguments on behalf of the defence appears to have substance. Pointing out memo is neither admissible under Section 27 of the Evidence Act nor Section 8 of the Evidence Act. In Mahesh Chand v. State, Crl. A. No.160/2001 decided on 18.08.2009, the Hon'ble Delhi High Court dealing with such contention held as under:
FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.102/115FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) "11. the fourth incriminating circumstance held established by the learned Trial Judge i.e. the appellant identifying the place where the dead body of the deceased was thrown is based on the ignorance of the fact that the dead body of the deceased was recovered much prior to the arrest of the appellant and the place where it was thrown was thus obviously known to the police. The police taking the appellant to the same spot is neither admissible in evidence under Section 27 of the Evidence Act as no new fact got discovered. It is also not a relevant fact under Section 8 of the Evidence Act for the reason the alleged pointing out by the appellant cannot relate to conduct as there is no guarantee that the police, which knew the spot where the dead body was recovered, itself took the appellant to the said spot".
49. Keeping in view the settled law and the material available on record, I am of the considered view that the prosecution failed to establish the circumstances in which the accused persons alleged to have fired at the deceased. The prosecution relied upon with the weapon of offence in the instant case to be the pistols which in view of FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.103/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) the testimony of PW42 is not used for homicide in this case. The disclosure statements of the accused persons Ex.PW38/A (Mohit Chhabra) and Ex.PW38/D (Krishan @ Bhola) and pointing out memos Ex.PW27/B (Mohit Chhabra) and Ex.PW27/C (Krishan @ Bhola) do not ipso facto reveal using of weapons of offence i.e. pistols Ex.F1 and F2 (as deposed by PW42) on the day of incident by the accused persons. It is noted that there was no blood at the spot found during investigation where the deceased was shot; the time of the incident as put forward by the prosecution does not match with the CDR records i.e. Ex.PW25/K & Ex.PW25/L; the weapon of offence allegedly used in the crime and the weapon of the deceased does not match with the cartridges and bullets recovered from the spot; there is no document to prove the location of the accused persons at the spot during the crime/incident. It is claimed by PW1 in crossexamination that blood was oozing out from the body of the deceased when they picked up him from the spot; PW2 also during crossexamination deposed that there was blood at the spot from where the deceased was lifted but PW53 deposed contrary to the testimony of PW1 and PW2 while deposing "I did not find any blood at the spot although I had searched for it at the spot".
FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.104/115FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016)
50. During the course of arguments, it is vehemently argued on behalf of the defence that there is serious lapse in the investigation of the case and the same lapse has disabled the prosecution to prove the culpability of the accused persons. The contentions raised by the defence counsel appears to have substance. This Court has noted following defects / lapses in the investigation i.e. the employees of Delicious Egg Corner where the Pajero car of the deceased was parked and who was the best witnesses who can witnesses the incident has not been examined; blood stained clothes of PW2 and PW7 were not seized nor blood was collected from the spot; location of accused persons by way of mobile phone recovered from the accused persons is not corroborated and proved from the CDR; the delay in reporting the incident to the police not explained as as per PW53, the time of incident is 10:30 pm on 30.11.2009 but the information was given to the PCR at 11:41 pm. The delay in time taken in reaching the Sehgal Nursing Home after the incident is also not explained though admittedly it was five minute distance and most relevant witnesses/staff of Sehgal Nursing Home has not been examined either during examination or during trial. Admittedly, the police during investigation did not record the statements of the employees of Delicious Egg Counter nor the employees of PW1 including Deepak FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.105/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) and other owners of rehris. Non examination of the relevant and best witnesses leads to an adverse inference against the case of the prosecution. In this regard, reference may be made to Pratap Singh and Anr. v. State of Madhya Pradesh, AIR 2006 SC 514; and Musuddin Ahmed v. State of Assam, AIR 2010 SC 3813.
51. The Hon'ble Apex Court very recently, in State of Uttar Pradesh v. Wasif Haider Etc. reported as 2019 2 SCC 303 has held that lacunas in an investigation will fortify the presumption of innocence in favour of the accused. Germane portion of the judgment is extracted below: "24. In the present case, the cumulative effect of the aforesaid investigative lapses has fortified the presumption of innocence in favour of the accused respondents. In such cases, the benefit of doubt arising out of a faulty investigation accrues in favour of the accused. 25. Although we acknowledge the gravity of the offence alleged against the accusedrespondents and the unfortunate fact of a senior official losing his life in furtherance of his duty we cannot overlook the fact that the lapses in the investigation have disabled FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.106/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) the prosecution to prove the culpability of the accused".
52. As held in Vijayee Singh & Ors. Vs. State of U.P. (1990) 3 SCC 190, the prosecution has to prove its case beyond reasonable doubt.
"28 .........the 'reasonable doubt' is one which occurs to a prudent and reasonable man.........
29. ....... the doubt which the law contemplates is certainly not that of a weak or unduly vacillating, capricious, indolent, drowsy or confused mind. It must be the doubt of a prudent man who is assumed to possess the capacity of "separate the chaff from the grain". It is doubt of a reasonable, astute and alert mind arrived at after due application of mind to every relevant circumstance of the case appearing from the evidence. It is not a doubt which occur to a wavering mind."
53. In Harbir Singh v. Sheeshpal & Ors. (2016) SCC 418, it was observed that it is a cardinal principle of criminal jurisprudence FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.107/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. It was further observed that delay in recording of statements of the prosecution witnesses under Section 161 Cr.P.C., although those witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case.
54. Considering the aforesaid facts and circumstances, the benefit of doubt arising out of such inefficient investigation, must be bestowed upon the accused. Further, the motive for the commission of the crime is also not established by the prosecution and testimony of material witnesses i.e. PW1, PW2, PW3, PW5, PW7, PW53 and PW25 appears to be contradictory to each other on material particulars and is not reliable. It is settled law if two views are possible, then the view which favours the accused should be adopted. The Apex Court in FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.108/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) P. Satyanarayana Murthy v. The Dist. Inspector of Police and Ors. (2015) 10 SCC 152, wherein it has been held that if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. Relevant para whereof is being reproduced hereinbelow:
"25. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas v. State of Assam MANU/SC/0564/2013: (2013) 12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused".
55. In the case titled as Jose v. the SubInspector of Police, Koyilandy and Ors.: (2016) 10 SCC 519, the Apex Court has held as under:
FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.109/115FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) "53. It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true". In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or nonexistent but as entertainable by an impartial prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted".FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.110/115
FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016)
56. An analysis of the evidence brought on record reveals that the testimony of the eye witnesses examined by the prosecution is inconsistent and contrary to each other and the same is not corroborated by other independent or expert evidence. Their depositions therefore, do not inspire confidence being contrary to each other and the prosecution case. In A. Shankar v. State of Karnataka reported as (2011) 6 SCC 279, the Supreme Court held as under:
"23. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations as per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions. "The omissions which amount to FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.111/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) contradictions in material particulars, i.e., materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide: State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152;
Arumugam v. State, AIR 2009 SC 331; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334; Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287; Vijay @ Chinee v. State of M. P. (2010) 8 SCC 191; State of U. P. v. Naresh & Ors., (2011) 4 SCC 324; and Brahm Swaropp & Anr. v. State of U. P., AIR 2011 SC 280].
24. Where the omission (s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material imprisonments before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide: State of Rajasthan v. Rajendra Singh, (2009) 11 SCC 106)." (emphasis added).
57. In the facts and circumstances discussed above, nothing FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.112/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) incriminating has been proved by the prosecution against the accused persons to bring home their guilt beyond reasonable doubt. Mere suspicion is not enough to bring home the guilt of the accused persons. In this context, the following observation of the Apex Court in Subhash Chand v. State of Rajasthan reported as (2002) 1 SCC 702 is relevant:
"Human nature is too willing when faced with brutal crimes, to spin stories out of strong suspicions. Between may be true and must be true there is a long distance to travel which must be covered by clear, cogent and unimpeachable evidence by the prosecution before an accused is condemned a convict".
58. Keeping in view the settled law and the material available on record, this court is of the considered view that the prosecution failed to establish the case against the accused persons namely Mohit Chhabra @ Gauri and Krishan Antil @ Bholu beyond reasonable doubt. As the prosecution has failed to bring home the guilt of the accused persons, accused Mohit Chhabra @ Gauri and Krishan Antil @ Bholu are acquitted of all the charges levelled against them in these cases. They be released from judicial custody forthwith, if not required in any other case.
FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.113/115FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016)
59. Family members of deceased Satish Yadav are hereby referred to District Legal Services Authority, West for consideration of suitable compensation amount.
60. In view of Section 365 Cr. P. C., a copy of the judgment be also sent to District Magistrate concerned for information.
61. Personal bond in terms of Section 437A CrPC furnished on behalf of the accused persons shall remain in force for a period of six months from today. The previous personal bond and surety bond, if any, of the accused persons are discharged. Their documents, if any, retained on record be released to them against acknowledgement.
62. Case properties are confiscated to State. If no appeal is preferred by the prosecution against the acquittal of the accused persons within the prescribed period of limitation, the case properties be disposed off as per rules.
63. Copy of this judgment be placed in both the case file i.e.
(i) Sessions Case No.57779/2016, FIR No.108/2009, P.S. Mianwali FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.114/115 FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act State vs. Mohit Chhabra @ Gauri & Ors. (SC No.57779/2016), & State vs. Mohit Chhabra @ Gauri & Ors. (S. C. No.56895/2016) Nagar, under Section 302/34 IPC & 25 Arms Act; and (ii) Sessions Case No.56895/2016, FIR No.614/2009, P.S. South Rohini under Section 25/54/59 Arms Act.
64. Accused Ravi Malik @ Bhura and Paramjeet Dalal @ Monu are proclaimed offender and this file be revived qua them as and when the said accused persons are arrested.
65. File be consigned to Record Room after necessary compliance. Gorakh Digitally signed by Gorakh Nath Nath Pandey Date: 2019.07.06 Pandey 16:13:54 +0530 Announced in the open court (Gorakh Nath Pandey) on 06.07.2019 Addl. Sessions JudgeFTC, (West) Tis Hazari Courts, Delhi.
FIR No.108/09, PS Mianwali Nagar, u/s 302/34 IPC & 27 Arms Act; & Page No.115/115FIR No.614/09, PS South Rohini, u/s 27/54/59 Arms Act