Delhi District Court
State vs . (1) Chanderjeet Kumar @ Kishan on 25 August, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE
II (NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 158/2013
Unique Case ID No.: 02404R0164202007
State Vs. (1) Chanderjeet Kumar @ Kishan
S/o Sh. Ram Avtar Mandal
R/o Village Simraha, PO Bakor,
District Supol, Bihar
(Convicted)
(2) Sachin @ Pandit @ Chinku
S/o Brij Bihari Sharma
R/o Mohalla Purana Bazar,
Khurja, Uttar Pradesh
(Proclaimed Offender)
(3) Udai
S/o Not Known
R/o Not Known
(Not Arrested)
FIR No.: 21/2007
Police Station: Sataswati Vihar
Under Sections: 302/384/506 IPC & 25/54/59 of Arms Act
Date of committal to sessions court: 6.8.2007
Date on which orders were reserved: 14.8.2014
Date on which judgment pronounced:14.8.2014
St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 1
JUDGMENT:
(1) As per the allegations on 8.1.2007 at about 6:00 PM at D499, JJ colony, Shaur Pur, Delhi the accused Chanderjeet @ Kishan in furtherance of his common intention along with coaccused Sachin Pandit (Proclaimed Offender) and Udai (not arrested) intentionally put Arun Mandal in fear of instant death in order to commit extortion of Rs. 50,000/ from him and on his refusal committed the murder of Arun Mandal. It has also been alleged that the accused also criminally intimidated Raj Nath Mandal by threatening to kill him. BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 08.01.2007 at about 8:20 PM DD No.32A was received at Police Station Saraswati Vihar to the effect that at D499, Shakurpur, Samrat Cinema, SBI Wali Gali, one person had been shot at and the dead body was lying at the spot. Pursuant to the said information Inspector Dharambir, SI Anuj Nautiyal, Ct. Jagdev and Ct. Rajender reached at the spot where the dead body of a person namely Arun Mandal was lying on the ground floor. Blood was lying on the stairs upto third floor and thereafter the Investigating Officer went to the room on third floor where he found that bed was in scattered condition, one fired cartridge was lying near the iron almirah and one fired cartridge was lying near the bed and two leads of the cartridges were lying near the door of the room, blood was lying on the bedsheet, St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 2 mattress and clothes. Further, there was a bullet mark on the iron almirah. The statement of Arvind Mandal the brother of deceased Arun Mandal on the basis of which the present FIR was registered. Crime Team was called at the spot and the spot of incident was got inspected and photographer by the Crime Team. Thereafter the various exhibits i.e. blood samples, blood from the mattress, blood stained jacket, Tshirt and pant of the deceased, blood stained bed sheet and mattress, fired cartridges and leads were taken into possession. The portion of iron almirah where the bullet mark was shown was got cut and was also taken into possession. Witness has further deposed that he made inquiry from public persons residing in adjoining houses and the dead body was sent to BJRM Hospital through Ct. Jagdev. One Rejnath an employee of the deceased informed the Investigating Officer that he had seen the incident and disclosed that accused Kishan, Sachin and Udai had come at the spot at about 6.00 PM and it was the accused Kishan who fired shots at the deceased and the accused persons had also threatened him not to disclose this fact to anyone. Thereafter the police also went in search of accused Kishan at his house i.e. B67, Qutab Vihar, PhaseI, Goela Dairy, Najafgarh, Delhi but since the said premises was found locked hence they returned back.
(3) On 11.01.2007 during investigations the postmortem on the dead body of the deceased was got conducted and inquest proceedings were conducted by the Investigating Officer. On 13.1.2007 Inspector St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 3 Dharambir along with SI Anuj Nautiyal and Ct. Radha Krishan went to J.J. Colony for investigations of the case and on the gate of Police Station they met witness Rejnath who informed him that he had seen accused Kishan at the bus stop, Shakurpur, near Ring Road on which he also joined the investigations with them. Thereafter the police team along with Rejnath went to the bus stand on the service road, near Ring Road Shakurpur where Rejnath pointed out towards one person as Kishan, who was sitting on a wall who was apprehended by the police and was interrogated during which he confessed his involvement in the present case. Thereafter the accused Kishan was arrested, his personal search was also conducted vide personal search memo Ex.PW4/B and the witness Rejnath was recorded after which he was relieved. The accused Kishan was interrogated in detail during which he made disclosure statement wherein he disclosed that that he could get arrested his associates Sachin @ Chinku and Udai and could also get recovered the weapon used in the offence from Goela Dairy, Najafgarh from the house of his father. The accused Chanderjeet @ Kishan also disclosed that the weapon used in the crime was got purchased from Khurja through his associate Sachin and in the year 2006 he had used this weapon for firing at Gurgaon and in that case his brother i.e. son of the maternal uncle was involved and was in the custody whereas he had absconded and was hence in need of money for pursuing that case and for that reason he demanded money from Arun Mandal but he refused and then he committed murder St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 4 of Arun Mandal. Thereafter the accused led the police party to the spot (place of occurrence) i.e. house no. D499, JJ Colony, Shakurpur (Third floor) and pointed out the room on the third floor, where he had committed the murder pursuant to which a pointing out memo was prepared by the Investigating Officer. The accused then led the police party to his house i.e. B67, Goela Dairy, Qutab Vihar, PhaseI, Najafgarh, Delhi and from the ground floor, he got recovered one pistol and attached magazine containing seven live cartridges, one spare magazine containing nine live cartridges and nine live cartridges in loose from one iron box.
The above arms and ammunition were then taken into possession by the Investigating Officer after preparing the sketch of the same. Efforts were made to trace the accused Sachin @ Pandit but he could not be traced and has been declared Proclaimed Offender whereas the accused Udai whose parentage and address were not known to the Investigating Agency was put in Column No.2. After completion of investigations charge sheet was filed in the Court against the accused Chanderjeet @ Kishan. CHARGES:
(4) Charges under Sections 302/387/506/34 Indian Penal Code and under Sections 27 of Arms Act have been settled against the accused Chanderjeet @ Kishan who has pleaded not guilty and claimed trial.
(5) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution, the documents St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 5 proved by them and the various case properties are hereby put in a tabulated form as under:
List of Prosecution Witnesses:
Sr. PW No. Name of the witness Details
No.
1. PW1 Arvind Kumar Mandal Public Witness - Brother of the deceased
2. PW2 Smt. Ranjana Devi Public Witness - Wife of the deceased
3. PW3 Dr. Upender Kishore Autopsy Surgeon
4. PW4 Rejnath Mandal Public Witness - Employee of the
deceased and an alleged eye witness
5. PW5 Modh. Safik Public Witness who had cut the iron piece
having bullet mark from the almirah
6. PW6 Ramesh Kumar Mandal Public Witness - Employee of the
deceased
7. PW7 Pradeep Kumar Mandal Public Witness - Employee of the
deceased
8. PW8 HC Satyapal Police Witness - Duty Officer
9. PW9 HC Radha Krishan Police Witness who had joined
Investigations with Inspector Dharambir
10. PW10 HC Jagdev Kumar Police Witness who had reached the spot
along with SI Anuj Nautiyal
11. PW11 SI Satpal Singh Police Witness - Crime Team Incharge
12. PW12 HC Mahendra Singh Police Witness - Crime Team
Photographer
13. PW13 Ct. Surajvir Police Witness who had taken the
pullandas to FSL
14. PW14 SI Manohar Lal Police Witness - Draftsman
15. PW15 Ct. Sidheshwar Dubey Police Witness - Special Messenger
16. PW16 HC Rajinder Singh Police Witness who had reached the spot
with Inspector Dharambir
17. PW17 ASI Ashok Kumar Police Witness - MHCM
St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 6
Sr. PW No. Name of the witness Details
No.
18. PW18 HC Sahab Singh Police Witness who had executed the
proceedings under Section 82/83 Cr.P.C.
against the accused Sachin.
19. PW19 SI Raj Singh Police Witness from Haryana Police who
has proved the FIR No. 464/06 u/s 307/34
IPC and 25/54/59 Arms Act against the
accused
20. PW20 Sh. A.K. Srivastava FSL Expert (Biology)
21. PW21 Sh. Puneet Puri FSL Expert (Ballistics)
22. PW22 SI Anuj Nautiyal Police Witness who had joined
investigations with Inspector Dharambir
23. PW23 Sh. Sanjay Kumar The then Addl. DCP (NW) who has
proved having accorded sanction under
Section 39 Arms Act against the accused
24. PW24 HC Mahender Singh Police Witness - PCR Official
25. PW25 Insp. Inder Raj Singh Police Witness who had filed the
supplementary charge sheet
26. PW26 Insp. Dharamvir Singh Police Witness - Investigating Officer of
the present case
List of Documents Exhibited:
Sr. Exhibit No. Details of the documents Proved By
No.
1. PW1/A Statement of Arvind Kumar Mandal Arvind Kumar Mandal
2. PW1/B Seizure memo of Blood sample
3. PW1/C Seizure memo of piece of Almirah
4. PW1/D Seizure memo of mattress (Gadda)
5. PW1/E Seizure memo of T Shirt Jacket and
Jeans pant
6. PW1/F Seizure memo of empty cartridges and
deformed bullets
St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 7
Sr. Exhibit No. Details of the documents Proved By
No.
7. PW1/G Dead body identification statement
8. PW1/H Seizure memo of Blood sample
9. PW2/A Dead Body identification Statement Ranjana Devi
10. PW3/A Postmortem report Dr. Upender Kishore
11. PW3/B Copy of FIR
12. PW3/C DD No. 32A
13. PW3/D Application for Autopsy
14. PW3/E Death Report
15. Mark PW4/A Statement u/s. 161 Cr.P.C. of Rejnath Rejnath Mandal Mandal
16. PW4/A Arrest memo
17. PW4/B Personal search memo
18. PW6/A Statement of Ramesh Kumar u/s. 161 Ramesh Kumar Cr.P.C. Mandal
19. PW7/A Statement of Pradeep u/s. 161 Cr.PC. Pradeep
20. PW8/A Copy of FIR HC Satyapal
21. PW8/B Endorsement on Rukka
22. PW8/C DD No. 34A
23. PW8/D DD No. 35A
24. PW8/E DD No. 5A
25. PW9/A Disclosure statement of accused HC Radha Krishan
26. PW9/B Pointing out memo
27. PW9/C Sketch of Pistol and Cartridges
28. PW9/D Seizure memo of Pistol and Cartridges
29. PW10/A Seizure memo of clothes of deceased HC Jagdev Kumar
30. PW11/A Crime Team Report SI Satpal Singh St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 8 Sr. Exhibit No. Details of the documents Proved By No.
31. PW12/A1 to Photographs of the scene of crime HC Mahendra Singh PW12/A23
32. PW12/B1 to Negatives of the photographs PW12/B23
33. PW14/A Scaled Site Plan SI Manohar Lal
34. PW17/A Copy of entry at Sr. No. 3344 ASI Ashok Kumar
35. PW17/B Copy of entry at Sr. No. 3352
36. PW17/C Copy of entry at Sr. No. 3358 37. PW17/D Endorsement on Register No. 19
38. PW17/E Copy of RC No. 90/21/07
39. PW17/F FSL Receipt
40. PW17/G Endorsement on Reg no. 19
41. PW17/H Endorsement on Reg no. 19
42. PW19/A Copy of FIR No. 464/06, PS Udyog SI Raj Singh Vihar, Gurgaon
43. PW20/A Biological Report Sh. A.K. Srivastava
44. PW20/B Serological Report
45. PW21/A Ballistic Report Sh. Puneet Puri
46. PW21/B GSR Report
47. PW22/A Rukka Anuj Nautiyal
48. PW22/B Sketch of Cartridges
49. PW22/D Statement of SI Anuj Nautiyal u/s. 161 Cr.P.C.
50. PW23/A Sanction U/s 39 Arms Act Sh. Sanjay Kumar
51. PW24/A PCR Form HC Mahender Singh
52. PW26/A Rough Site plan Inspector Dharambir Singh St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 9 List of Case Properties:
Sr. No. Exhibit No. Name of case Property 1 P1 Full Sleeves sweater 2 P2 One Full Sleeves Jacket 3 P3 Full Sleeves T Shirt 4 P4 Jeans Pant 5 P5 One mattress 6 P6 One Bed Sheet 7 P7 One Torn Polythene Sheet 8 P8 Two Bullet pieces 9 P9 Piece of Iron Almirah having a bullet mark 10 P10 Blood Stained Earth 11 P11 Blood sample lifted from the floor 12 P12 Blood sample lifted from the bed 13 P13 Pistol (Ex.P13A) with Magazine (Ex.P13B) 14 P14 Another Magazine 15 P15 Twenty five cartridges (Collectively) 16 P16 Baniyan 17 P17 Underwear 18 P18 Tabiz with black thread EVIDENCE: (6) In order to prove its case the prosecution has examined as many as Twenty Six witnesses as under: Public witnesses: (7) PW1 Arvind Kumar Mandal is the brother of the deceased
who has deposed that he along with his brothers Dharam Mandal and St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 10 Arun Mandal used to run a dental lab at D499, JJ Colony, Shakurpur, Delhi where they used to work from 10:00 AM to 10:00 PM. He has further deposed that on 08.01.2007 between 6.00/6.30 PM Ramesh came to him at his address i.e. at G754, Shakurpur, Delhi and informed him that his brother Arun was lying unconscious in the room on the 3rd Floor D499, JJ Colony, Shakurpur, Delhi. According to the witness, on this he went there and touched his brother Arun but Arun spoke nothing after which he opened Arun's cloth and his hands got stained with blood. He has further deposed that he saw wounds in Arun's chest and underarm, on which he took his brother to Muni Maya Ram hospital where he was declared dead by the doctor. Thereafter he brought his brother back to the house and laid him down on the ground floor. According to the witness he then informed the police on telephone on which police came and recorded his statement which is Ex.PW1/A. He has further deposed that the police lifted the blood lying on the floor and the blood stained earth sample and put them in a plastic jar and sealed them with surgical tapes and then put the seal on them after which the same was seized vide seizure memo Ex.PW1/B. He has further deposed that the piece of Almirah having bullet mark was also cut by the police and sealed in a pullanda by the police after which it was seized vide seizure memo Ex.PW1/C. According to the witness, the mattress (gadda) along with chaddar was also taken into police possession by the Investigating Officer after sealing the same vide seizure memo Ex.PW1/D. The witness has testified that St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 11 the sweater of his brother Arun, black colour TShirt, jacket and jeans pant were also taken into police possession by the Investigating Officer after sealing the same vide seizure memo Ex.PW1/E. He has further proved that two bullet shells were also seized from the spot by the Investigating Officer after sealing the same into the pullandas vide seizure memo Ex.PW1/F. He, however, does not remember the initial of the seal.
He further deposed that dead body of his brother Arun Kumar was taken to Babu Jagjeevan Ram hospital for postmortem and police also made inquiries from Ramesh, Pradeep, Rejnath. Witness has further deposed that he identified the dead body of his brother in mortuary vide identification statement Ex.PW1/G and after postmortem dead body was handed over to him. According to the witness Investigating Officer took the blood sample from the mattress (gadda) at the spot and kept in a jar and sealed it with a seal and then seized the same vide memo Ex.PW1/H. He has deposed that Investigating Officer recorded his statement. (8) The witness has correctly identified the case property i.e. one full sleeves sweater Ex.P1, one full sleeves jacket Ex.P2, full sleeves T shirt Ex.P3 and jeans pant Ex.P4 as belonging to his deceased brother; one mattress Ex.P5, one bed sheet Ex.P6 and one torn polythene sheet Ex.P7; two bullet pieces lifted from the spot which are Ex.P8; piece of iron almira which is Ex.P9; blood stain earth control Ex.P10 and blood sample lifted from the floor which is Ex.P11; blood sample lifted from St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 12 the bed of the deceased which is Ex.P12.
(9) With the permission of the Court leading questions were put by Ld. Addl. PP to the witness, wherein the witness has admitted that the initial of the seal were DS. The witness has further admitted that Pradeep Mandal had told him that about 4042 days prior to the incident Kishan along with his two associates visited his brother Arun and threatened him to give Rs.50,000/ otherwise he would be killed. A specific question was put to witness as to whether he knew Kishan to which he replied that Kishan was known to him following which the witness has correctly identified the accused Chanderjeet @ Kishan in the court.
(10) In his cross examination by the Ld. Defence Counsel the witness has deposed that Arun was 10th pass but he is not aware when his brother (deceased) had come to Delhi initially and stated that he (witness) has deposed that he was very young at that time. He has further deposed that his brother was married to Ranjana and at the time of incident/ his death, the wife and child were in village. According to the witness, the wife of his brother was living in village since her marriage with his brother and she along with child came to Delhi after the death of his brother on 11.01.2007. He has deposed that after four days, they all including Ranjana and her child went to the village. He has testified that Ranjana has not remarried till date. He admits that he used to see his sisterinlaw Ranjana frequently. He has further deposed that the dental St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 13 lab bearing No. 499 (property) & House No. G754, Shakurpur, Delhi are in the name of his deceased brother. The witness has also deposed that Santro car is also in the name of his deceased brother and there is another property bearing No. D505, Shakurpur, Delhi which is also in the name of his deceased brother and whatever properties are present in Delhi, were purchased by his deceased brother. The witness has deposed that he is married and he came to Delhi in 19961997 and at that time he was unmarried. He has deposed that he got married in March 2000 and his wife joined his company in Delhi after the birth of his first child who was born after two years of marriage in the village. According to the witness, his wife is living with him in Delhi since 2004 with children and he along with his family are living in G754. He has testified that Arun was living in H. No. D499 and the distance between the above said two houses is half a kilometer. He has further deposed that his eldest brother Dharmu was also living with him and his family and that he was married at that time but his family was living in village. According to him, he (witness) is illiterate and he learned the job of dental work at the Dental Lab of his brother but he does not have any diploma in this regard. He has deposed that his eldest brother Dharmu is also an illiterate. The witness has further deposed that the property (Dental Lab) bearing No. D499 is of 25 sq. yds. is built upto 3rd floor excluding ground floor and there is only one hall room comprising of WC cum bathroom and stairs are from outside the room. He has admitted that person going upstairs is not visible to the St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 14 person sitting inside the hall room. He has also deposed that the plan of the first floor is also the same but the stairs are from inside, hence, the person going from there is visible to the person sitting the room on the first floor, as there is a window. He has deposed that the position of the plan of second floor is also the same but there is no window and hence, the persons going upstairs is not visible to the persons sitting in the room on the second floor. He has further deposed that on the third floor, there is one room and separate WC cum bathroom which is the top floor. According to the witness all the plots are in the area of 25 sq. yds. and built up. He has testified that he used to prepare the teeth at the ground floor and Ramesh used to help him off and on at the ground floor but Ramesh was not regular. He has further deposed that he (witness) was working regularly with his brother Arun since the time of his coming to Delhi and he was working with him till his death. He has further testified that Pradeep also used to work with them. He has deposed that he (witness) was not paid salary by his brother and his brother used to take care of his needs and needs of his family. He is not aware whether his brother was paying salary to the workers or how much he was paying. He is also not aware whether any attendance register of workers was being maintained by his brother and states that he did not see any register at any time. He has deposed that ceramic work was being done at first floor and grinding of metal was being done at the second floor. According to the witness, Ramesh used to do all jobs of ceramic and grinding whereas St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 15 Pradeep used to do only grinding of metal. He has deposed that there was no fixed hours of their working and after finishing of their job, they used to go to their house. He has also deposed that workers used to live in the dental lab. He has denied the suggestion that he and his bhabhi Ranjana had purchased or sold any plot in Rama Vihar. The witness has testified that Ranjana is living in H. No. D499, Shakurpur at present with her brother since last fivesix months. He is not aware whether the relation between his brother and Ranjana were cordial or not. He has denied the suggestion that the relationship between his brother and Ranjana were not cordial. According to the witness, workers usually did not go to the top floor but as and when Arun called them, they used to go. He has further deposed that no worker used to do washing or cooking for the deceased Arun and has voluntarily added that meals for Arun used to come from house. He is not aware how many workers were present at the dental lab at the time of incident as he was not present at the spot at the time of incident. He has deposed that he visited the dental lab in the morning on that day and after finishing his job, he returned his house at about 5/5:30 PM. The witness has also deposed that after about half an hour or 45 minutes of his reaching his house, he received information and at that time he and his wife were present in the house. He has further testified that Dharmu was not present as he had gone to the village fourfive days ago. According to the witness, Ramesh informed him about the incident but he is not aware whether Ramesh came on feet or some vehicle nor he St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 16 noticed any blood on the clothes of Ramesh at that time. The witness has also deposed that he telephoned police at around 7:00 PM through mobile phone of Arun bearing no. 9811587569.
(11) According to the witness Arvind Mandal, his injured brother was removed from the room by him with the help of threefour persons who were neighbors but he cannot give their names. He has deposed that when he had removed his injured brother to the hospital, his (witness's) shirt and pant were smeared with the blood of his deceased brother. He has also deposed that he did not notice or care to notice whether the clothes of other persons were also smeared with blood or having blood stains or not. According to the witness, he had shown his clothes to the police but they did not seize it. The witness has testified that police reached at the spot after half an hour of making of the call and remained there for about 30 to 45 minutes. He has further deposed that the police seized the empty cartridges and one led simultaneously while recording his statement. He has further deposed that apart from official of Police Station Saraswati Vihar, media persons also came. He has clarified that no other police officials except from Police Station Saraswati Vihar had come. He has testified that one Safiq was called by police officials for cutting the door of steel almirah having bullet marks but in his presence police officials did not record Safiq's statement. According to the witness, apart from him, statements of Ramesh and Pradeep were recorded by police officials at that time.
St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 17 (12) The witness has further deposed that he did not lodge any complaint in respect of the threat given to Arun Mandal by accused Kishan about 4042 days prior to above incident. According to the witness he has no knowledge whether the deceased Arun Mandal lodged any complaint with the police about the threats given by the accused Kishan. He has further deposed that he had told the police in his statement that Pradeep Mandal had told him about the threat given around to 4042 days prior to the above incident. He has deposed that he had told this fact to the police in his initial statement Ex.PW1/A. However, when confronted with his statement Ex.PW1/A the above fact was not found so recorded. He has further deposed that he had stated to the police that when he went at the spot, he then touched his deceased brother and he (deceased) did not speak then he (witness) opened his deceased brother's cloths and his hands got stained with the blood. When confronted with his statement Ex.PW1/A the above fact was not found so exactly recorded. He does not remember whether he had told to the police while recording his statement that he had telephoned to the police and whether he had stated when his statements were recorded by police that the police used the seal of "DS". He has deposed that he had stated the fact that the pullandas were sealed with the seal of DS but when confronted with statement Ex.PW1/A the above fact was not found so recorded. According to the witness, he never joined investigation with police after receiving the dead body of Arun i.e. after threefour days of the incident. He has also deposed that the house St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 18 bearing No. G754 is their house and D499 is their laboratory. He has denied the suggestion that he had not brought his deceased brother back to house no. D499, Shakurpur from the hospital. He has explained that Maya Muni Ram hospital is situated at a distance of threefour kms from D499 which hospital is situated in Pitampura. The witness has testified that he had never seen deceased Arun smoking, eating paan and drinking alcohol. He has deposed that it is possible that the name Kishan belongs to so many persons residing in Delhi and Bihar. He has denied the suggestion that accused is not known with the name Kishan or that he had not given any statement to police and police obtained his signatures in blank papers. He has further denied the suggestion that he had not taken his deceased brother to Maya Muni Ram hospital or that Pradeep had not told about the threats advanced by the accused to his brother at any time, to him. He has denied the suggestion that Ramesh, Pradeep and Rejnath were not working at his deceased brother's laboratory or that no recovery was effected in his presence. The witness has also denied the suggestion that the wife of his deceased brother Smt. Ranjana was also present at Delhi at the day of incident. He admits that Ranjana was living with him (the witness) at G754. He has however denied the suggestion that as Ranjana was living with him the relation between his sisterinlaw and his brother was strained. He has also denied the suggestion that many public persons including women friends used to meet his deceased brother at his house. The witness has also denied the suggestion that Pradeep and St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 19 Ramesh are his cousins. He has denied the suggestion that he was deposing in the court as tutored by his counsel.
(13) PW2 Smt. Ranjana Devi is the wife of the deceased who has deposed that on 11.01.2007, she identified the dead body of her husband Arun Kumar in mortuary BJRM hospital vide statement Ex.PW2/A. (14) In her cross examination by the Ld. Defence Counsel the witness has deposed that her signatures appear at point A on death report i.e. From No. 25.35 MarkX. She has deposed that the police obtained her signatures only and no writing work was done in her presence by them. She has testified that she used to stay at her village and was not living with her husband in Delhi. She has also deposed that she has not remarried till her deposition in the court, however, her inlaws had suggested her to marry her brotherinlaw Arvind Kumar. The witness has admitted that one son is born out after the death of deceased Arun. According to the witness the son was born on 14.08.2008. She has denied the suggestion that a plot of land belonging to her husband was sold by her along with brotherinlaw Arvind Kumar and has voluntarily added that there was a dispute between Arun and her regarding the said plot of land. She has further deposed that there was no dispute in respect of properties bearing no. D499 and G754 situated in Shakur Pur, Delhi. The witness has admitted that Arvind Kumar, her brotherinlaw was married prior to this incident. She has also deposed that she is living with Arvind since her elders and community asked her to live with Arvind St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 20 after this incident. She has deposed that Arvind's wife is also residing with them. She has denied the suggestion that the wife of Arvind is not residing with Arvind at present or that she (the witness) was living with Arvind. She has denied the suggestion that her relations with her husband were strained and due to that he used to drink and quarrel in the locality. She has also denied the suggestion that deceased had more enemies in the locality because of his habit of calling the girl friends at his house in Delhi.
(15) PW4 Rejnath Mandal has deposed that in the year 2007 he used to reside at Shakurpur and at that time he was working in the lab of Arun Mandal at D499, J.J. Colony, Shakurpur, Delhi. He has further deposed that on 8.1.2007 at about 6:00 PM he saw three persons, who caught hold Arun Mandal. According to the witness one of those three persons had fired upon Arun Mandal on which he fell down and all the assailants left the spot and thereafter Arun Mandal was shifted to the hospital by Arvind. He has deposed that thereafter police came there and lifted him to Police Station Saraswati Vihar where he was confined for about 17 days. He has further deposed that after twothree days of the incident, police officials brought one person and told him to identify that person as the assailant, who fired bullet at Arun Mandal. He has further deposed that thereafter he was released by the police officials. (16) This witness was cross examined by the Ld. Addl. PP for the State after seeking permission from the court since the witness was St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 21 resiling from his earlier statement recorded under Section 161 Cr.P.C. In his cross examination the witness Rejnath Mandal has admitted that one of the assailants had fired bullet upon Arun Mandal. He has further deposed that he had told to the police whatever happened in his presence. According to the witness, he had not stated in his statement Mark PW4/A to the police that on the date of incident Ramesh Mandal S/o Ram Avtar Mandal who was resident of his neighbouring Village was working in the Lab at Ground Floor whereas he alongwith Arun Mandal were present at 3rd Floor and at about 6:00 PM one person who was a resident of Supol District namely Kishan S/o Ram Avtar Mandal whom he knew previously came to the Lab alongwith his two associates, whose name he (Kishan) was telling Sachin (since PO) and Udai (since not arrested). The witness has further deposed that he had not stated in his statement Mark PW4/A to the police that on seeing all the three persons Arun told them that, "....you have again come..." on which Krishan asked Arun if he was giving money or not on which Arun refused to give any money on which Sachin exhorted saying, "Maar Saale Ko", on which Udai pushed Arun and Kishan took out a pistol from his pant and told Arun that he himself was responsible for his death and said, "Agar Meri Baat Maan Leta To Aaj Tujhe Na Bhugatna Padta.". He has also deposed that he had not stated to the police in his statement Mark PW4/A, that thereafter Udai told Arun as to why he was wasting his time and to finish him immediately and Sachin also Arun that they had already informed St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 22 him that in case if he does not pay the amount then they will not spare him on which Kishan fired two bullets upon the Arun who fell down on the bed. According to the witness, he had not stated in his statement Mark PW4/A to the police that, thereafter all the three persons lifted the legs of Arun and kept him on the bed and Udai told Krishan to kill him i.e. witness by saying "Ise Bhi Maar De" on which he got terrified and fell on the feet of Kishan and Kishan left him after warning him (witness) not to open his mouth before anyone about the incident (Jo Mai Bahut Dar Gaya Aur Kishan Ke Per Par Liya, phir Krishan Ne Mujhe Kaha ki Aagar Is Ghatna Ke Bare Me Kisi Ke Aage Muh Khola to Tera Bhi Yahi Anjaam Hoga, Jo Arun Ka Hua Hai aur Teeno Wahan Se Chale Gaye). The witness has further deposed that he had not stated in his statement Mark PW4/A that he sat there for five to seven minutes due to fear and thereafter he went downstairs and told Ramesh that Arun was lying unconscious after which he alongwith Ramesh came upstairs and checked Arun, after which Arvind was called and accordingly Arvind came there and checked the wounds of Arun after stripping his clothes and brought Arun to down stairs and thereafter Arvind and Ramesh took him to the hospital and after some time they brought back Arun at the spot and made him lie down on the ground floor and thereafter police was called. The witness has also deposed that he had not stated to the police in his statement Mark PW4/A that till the reaching of the police due to fear, he did not want to disclose anything as all three namely Krishan, Sachin and St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 23 Udai had threatened him with dire consequences if he would disclose the incident to anyone, they would also kill him. However, when confronted with his statement Mark PW4/A, the above facts were found so recorded. (17) According to the witness, on 13.1.2007 he had not stated in his statement Mark PW4/B to the police that when he was passing through near Bus Stop, Shakurpur, near Ring Road, he saw accused Krishan S/o Ram Avtar Mandal and when he was going to the Police Station to tell the same, meanwhile Investigating Officer met him outside the Police Station. He has further deposed that he had not stated to the police in his statement Mark PW4/B that thereafter he alongwith Investigating Officer and Police Officials reached at Shakurpur Bus Stop at about 4 P.M. where behind the bus stop on the wall of service lane he pointed out Krishan who was sitting on the wall and on seeing the police, Krishan tried to run away but he was overpowered and during the interrogation he (Krishan) disclosed his full and complete name as Chanderjeet Kumar @ Krishan S/o Ram Avtar Mandal, R/o VillageBhimraha, P.O. Bakaur, Police Station & District Supol, Bihar and also confessed his involvement in the offence and told them that on 8.1.2007, he alongwith his associates Sachin @ Pinku (Proclaimed Offender) and Udai (since not arrested) had committed murder of Arun Mandal in his house Number D499, Shakurpur with a bullet fire and threatened him (the witness). He has further deposed that he had not stated to the police in his statement Mark PW4/B that thereafter accused Chanderjeet @ Krishan was arrested and St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 24 thereafter his statement was recorded and read over and found to be correct. However, when confronted with his statement Mark PW4/B, the above facts were found so recorded.
(18) The witness has testified that he is an illiterate and can only put his signatures. He has deposed that he can identify his signatures if shown to him. The witness has admitted that Ex.PW4/A i.e. the Arrest Memo and personal search memo Ex.PW4/B bear his signatures at point A respectively. He has denied the suggestion that he had signed the abovesaid memos after the arrest of the accused Chanderjeet Kumar @ Krishan. He has stated that he can identify the assailant who fired upon Arun Mandal, if shown to him when the witness was asked to identify that person who fired at deceased Arun Mandal on the day of incident, he refused to identify the accused stating that the said person was not present. He has denied the suggestion that accused Chanderjeet Kumar @ Krishan present in the court, was the person who had fired at Arun Mandal. He has further denied the suggestion that due to fear he is not identifying him or that accused Chanderjeet Kuamr @ Krishan is his relative or that he was won over by the accused. He has also denied the suggestion that accused Chanderjeet Kumar @ Krishan was apprehended by the police on his identification or that accused Chanderjeet Kumar @ Krishan had fired two bullets upon Arun Mandal in his presence. He has denied the suggestion that accused Chanderjeet Kumar @ Krishan and his associates Udai and Sachin since PO had threatened him of dire St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 25 consequence, if he would disclose the scene of incident to anyone, he would also be killed like Arun Mandal. The witness has further denied the suggestion that due to fear to his life he is not deposing true facts before the court as he wants to save the accused from the clutches of law. He has also denied the suggestion that Arrest Memo of accused Chanderjeet Kumar @ Krishan Ex.PW4/A and his personal search memo Ex.PW4/B were prepared by the police in his presence after the arrest of the accused on his pointing out. He has further denied the suggestion that being a relative of accused he was instructed by the villagers/relatives not to depose against the accused Chanderjeet Kumar @ Krishan. He has denied the suggestion that he was deposing falsely.
(19) In his crossexamination by the Ld. Defence Counsel the witness has admitted that deceased Arun Mandal belonged to his native village.
(20) PW5 Mohd. Safik has deposed that he used to prepare balti, kanastar, almari with the help of iron stripes. According to the witness on 8.1.2007 he was called by the police at House No. D499, J.J. Colony, 3rd Floor, Saraswati Vihar and they showed him an almirah. He has further deposed that he observed that on the right door of the almirah there was a hole looking like the mark of the bullet on which the police directed him to cut the piece of that door and accordingly, he had cut the piece of door containing the hole with the help of hammer and cheni and handed over the same to the Investigating Officer. He has also St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 26 deposed that the Investigating Officer recorded his statement. The witness has identified the piece of door almirah having a bullet mark pit which is Ex.P9.
(21) In his crossexamination by the Ld. Defence counsel the witness has deposed that he had accompanied the police and reached the house at 3rd floor. He has also deposed that he used to work at Patri at E Block, in front of Dispensary, Saraswati Vihar and used to keep his tools and iron materials etc. with him at patri. The witness admitted that he does not keep any Almirah at Patri. He has deposed that his job is only for repairing the iron articles and he does not make Almirah. He does not remember the time when he accompanied the police. He has also deposed that two police officials came on a motorcycle and that one of them remained at his Thia and other had left with motorcycle. The witness has further deposed that he had accompanied the police person on foot and reached at the house and he took about 15 minutes in reaching there. He has deposed that the distance between his Thia and spot was about 500 meter. He is unable to tell the name of the police official with whom he accompanied and also unable to tell the name of the Investigating Officer who instructed him to cut the piece of Almirah and has voluntarily added that he was present in the court. He is also unable to tell the exact time for cutting the piece and has voluntarily explained that first of all he removed the entire door then cut the piece then again repaired the door and fixed with the almirah. He is unable to tell the time when he left the said St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 27 house. He has further deposed that at that time his statement was not recorded but later on the next day same was recorded. He has further deposed that his statement was recorded at patri, however, he is unable to tell the time when his statement was recorded. He does not remember how many police officials came to patri for recording his statement and has voluntarily added that the incident pertains to the year 2007. He has denied the suggestion that he did not cut down any piece of almirah at the instance. According to the witness, the colour of the almirah was metallic but he cannot tell the height of the almirah. He has also deposed that he did not try to see inside the almirah as to what was kept. He does not remember the exact location of the almirah kept in the room and except almirah he did not try to notice anything else in the room. (22) PW6 Ramesh Kumar Mandal a permanent resident of Village Belahi, Police Station Marona, District Supol, Bihar has deposed that in the year of 2007, he was working in Dental Laboratory at D499, JJ Colony, Shakur Pur, Delhi. According to the witness, on 08.01.07 he finished his job in the lab at about 5.00 PM at first floor of the said lab and went away to the market. He has deposed that on the said date Arvind and Rejnath were working at ground floor whereas Arun Mandal was also working in the same dental lab and was the owner. Witness has further deposed that on that day, Arun left for market for some work. The witness has testified that at about 6.15 PM he came to know about the incident on telephone. He has deposed that somebody called him may be St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 28 from the lab but he does not remember his name. He has deposed that the person who informed him told that somebody came to D499, JJ Colony and shot fire on the person of Arun. According to the witness, when he reached the lab he found Arun on the ground floor and was unconscious at that time. He has deposed that he noticed some blood on the back of Arun. The witness has testified that he remained there for half an hour. According to the witness somebody called at 100 number and Police officials came there and first they checked at third floor but he is not aware what they checked. According to him, prior to his reaching at the spot, Arun was removed to Muni Maya Ram Hospital where doctor declared Arun dead. He has further deposed that police made inquiries from him and took him to Police Station. He is unable to tell whether police recorded his statement or not. He has deposed that he did not inform any relative of deceased Arun.
(23) After seeking permission from the Court, this witness was cross examined by the Ld. Addl. PP for the State since he was resiling from his earlier statement recorded under Section 161 Cr.P.C. In his cross examination by the Ld. Addl. PP for the State the witness has denied the suggestion that he had told to the police in his statement that on 08.01.2007 in the evening he was preparing artificial teeth at ground floor in the said factory and Pradeep Mandal was also working on the same day with him, went for some work to the market. The witness has voluntarily explained that he was not present there on 08.01.07 and went to his native St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 29 place. He has further denied the suggestion that he had told the police in his statement that Arund Mandal and Rejnath Mandal were present at third floor of the lab and that Rejnath informed him at about 6.15 PM that Arun was lying unconscious at the third floor, on which he reached at the third floor and found that deceased Arun was lying on the bed and there was no movement in his body and due to fear he immediately informed Arvind, brother of Arun to his house G754, Shakurpur. He has further denied the suggestion that he told to the police in his statement that Arvind also reached there and they checked and found that blood was lying on the bed as well as scattered on the back side of Arun; that Arvind removed the cloth of Arun and found that blood was oozing out from the back. The witness has further denied the suggestion that he told to the police in his statement that he along with Arvind and Rejnath removed Arun from the third floor to the ground floor and then took him to Muni Maya Ram Hospital where doctor declared him dead or that thereafter they brought deceased Arun from the hospital and his dead body was kept at ground floor and then the police reached there. He has further denied the suggestion that police removed the dead body to the hospital in his presence for postmortem. However, when confronted with his statement Ex.PW6/A all the above facts were found so recorded. (24) The witness has denied the suggestion that accused Krishan belongs to his native village i.e. Simrah, Post Office Bakkar, Police Station Supol, Village Supol, Bihar and he knew him. According to the St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 30 witness, at the time of incident he was getting salary of Rs.5,000/ per month and he used to spend Rs.500700/ for his expenditure and remaining amount were sent to his native place. He has deposed that he used to reside in the lab itself and that there was a kitchen for all the employees of deceased Arun. He has deposed that he used to spend money for purchasing the daily use articles. The witness has further deposed that at the time of incident his father, his mother, his three sisters and one brother were residing at his native place. He has deposed that his father used to work as agriculturist and that they have no land in the native place and his father used to work in the field of others. The witness has admitted that he is the eldest one in the family and that the responsibility of his family is on his shoulder. He has denied the suggestion that he has been paid by the accused for deposing falsely before the court or that he accepted the amount from the accused to fulfill the desires of his family and deposing falsely before the court. He has further denied the suggestion that due to fear of the accused he was deposing falsely in his examination in respect of the facts as disclosed to the police by him. He has further denied the suggestion that whatever statement recorded by the police as Ex.PW6/A is the correct one and that he was deposing falsely in the court.
(25) This witness was not cross examined by Ld. Defence counsel, despite opportunity granted.
St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 31 (26) PW7 Pradeep Kumar Mandal has deposed that he was into the profession of preparation of artificial teeth. He has deposed that he does not remember the exact, date, month and year but he was working three years back at D499, JJ Colony, Shakurpur which lab belongs to Arun Mandal (since deceased). He has further deposed that Arun Mandal was the son of his uncle Ram Dev Mandal and about two months he remained at his village in the year 2007.
(27) Here, I may observe that the Ld. Predecessor of this Court has made a specific observation on the demeanor of the witness to the extent that the witness was intentionally and deliberately ignoring the questions put by Ld. Addl. PP and not giving proper answers. Witness was directed to specify the two months when he was residing at his village after which the witness deposed that those two months were of summer and while saying so it was again observed by the Ld. Court that the witness was avoiding to give complete and true answers and his facial expression showed that he was under some pressure and threat. (28) The witness has deposed that he received a telephone call at his native place about the murder of Arun Mandal which information was furnished by his Uncle Ram Dev on which they came to Delhi and reached at D Block, Shakurpur. He has deposed that thereafter, he attended the funeral of deceased Arun Mandal and remained there for some days and then left for his native place. He has further deposed that police never met him. According to the witness, he inquired from Ram St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 32 Dev who was working in the Canteen of the said lab and due to fear he left the job from the lab of deceased Arun because of murder of Arun. He has deposed that he developed fear and left the job. (29) With the permission of the Court, the witness was cross examined by the Ld. Addl. PP for the State since he was resiling from his earlier statement recorded under Section 161 Cr.P.C. In his cross examination by the Ld. Addl. PP for the State the witness has denied the suggestion that he told the police in his statement that on 08.01.2007 at about 5.00 PM he went to Shakurpur Market and has voluntarily added that at that time he was at his village. He has further denied that he told the police in his statement that when he returned at 7.30 PM, he came to know that somebody fired on the person of Arun; that about one and half month prior to the incident when he along with Arun were present, at that time one person namely Krishan who belongs to village Simrah and used to reside at Najafgarh came to Arun with his two friends and demanded Rs.50,000/ for managing his case pending in Gurgaon on which Arun refused to give him money on which Krishan had threatened saying that he (Arun) should not become such a big person because he (accused) had even previously committed an incident of firing at Gurgaon (Tu Paise Kamakar Itna Bada Aadmi Mat Ban, Main Pehle Bhi Gurgaon Mein Goli Chala Chuka Hun) and he further threatened if he refused to give money then he would kill him and he further introduced his friends as Sachin @ Chinku who is a Bad Character/ dus numberi and involved in many St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 33 crimes and further introduced his another friend as Udai who would not take a minute to kill a person and further threatened him to give the money. He has further denied that he told to the police in his statement that when Arun refused to give money, then while leaving, Krishan extended threats to Arun that he would come back within ten days and if he did not pay the money then he would kill Arun and thereafter he (witness) informed Arvind about this fact. He has also denied that the deceased Arun told him about 67 days prior to 08.01.07 that Krishan came to him and threatened him for dire consequences and that he (witness) had suspicion that Arun was killed by Krishan and his associates. However, when confronted with his statement Mark PW7/A, the above facts were found so recorded.
(30) He has further denied the suggestion that after the murder of Arun and after attending his last rites and ceremonies he left for his native place for two months. He has denied the suggestion that accused Krishan present in the court extended threats to Arun in his presence about one and a half month prior to the incident. The witness has admitted that he came to know about the murder on 08.01.07. The witness has denied the suggestion that he was very much present in Delhi and working in the lab of Arun Mandal (since deceased) on the day of incident as well as on the day of threat given by accused Krishan to Arun demanding money. He has also denied the suggestion that he was won over by the accused as the accused belongs to District Supol which is also the native place of the St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 34 witness or that accused Krishan is a hardened criminal and due to fear he was deposing falsely or that due to fear of the accused Krishan the witness left the job from the lab of Arun after his murder. The witness has voluntarily explained that his father had insisted upon him to leave the job and his father further told him that the area of Shakurpur is not good as many Bad Characters were residing there. He has deposed that after leaving the job of Arun he joined the Star Dental Laboratory of Kumar Mandal and Rajiv Mandal situated at Sukhbir Nagar. The witness has denied the suggestion that due to fear of accused Krishan he left the job from the lab of Arun and joined the other dental lab at Sukhbir Nagar. He has denied the suggestion that he has fabricated a false story regarding instigation of his father to leave the job from the lab of Arun but actually the witness was in fear of Krishan as Krishan threatened Arun in his presence. He has also denied that he came to the court from Sukhbir Nagar and has deposed that he came to Delhi from his native place about three months back. The witness has also deposed that he did not receive any summons at Sukhbir Nagar address and that his father told him over phone about the summons. He has further denied the suggestion that associates of accused Krishan brought him before the court for deposing in their favour. He has further denied the suggestion that he was won over by accused persons due to which he was deposing falsely. He has denied the suggestion that he never visited his native place for two months from November, 2006 to January, 2007 being winter season. He has futher St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 35 denied the suggestion that due to fear of accused he was deposing falsely and he was deliberately not identifying him. The witness has further denied the suggestion that whatever the witness told to the police they recorded and that the statement of witness was read over and explained to him which is Mark PW7/A. (31) In his crossexamination by the Ld. Defence Counsel the witness has deposed that police never recorded his statement regarding the present case. According to the witness, on 08.01.07 his uncle telephoned him and at that time he was at his native village. He has deposed that the accused Krishan never met him. He has deposed that nobody threatened him on behalf of accused Krishan. Witnesses of Medical Record:
(32) PW3 Dr. Upender Kishore Asst. Officer, Department of Forensic Medicine, Safdarjung Hospital, Delhi has deposed that on 11.01.2007, he was posted at BJRM hospital as Junior Specialist and on that day, he conducted the postmortem on the dead body of Arun Kumar Mandal S/o Ramdev Mandal aged about 30 years. Witness has further deposed that the dead body was identified by Arvind Kumar and Ranjana Devi and the dead body was brought by Ct. Jagdev of Police Station Saraswati Vihar with alleged history of being found unconscious at B499, Third Floor at about 6.30 pm on 08.02.2007, was taken to Muni Maya Ram hospital, where he was declared brought dead. The witness St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 36 has deposed that the deceased was wearing baniyan (blood stained and teared in front), underwear and a black thread; the deceased was averagely built, rigor mortis in passing off phase, postmortem staining at the back, eyes closed, conjunctivae pale, cornea hazy, mouth closed and tongue inside mouth. He has proved that on examination there were following external antemortem injuries on the body of the deceased:
1. Firearm entry wound of size 0.3 x 0.3 cms with abrasion collar present over the left side middle front of chest placed 6 cm inside horizontally to the left nipple, the projectile going inwards, slightly backwards horizontally into the cavity of the chest piercing the edge of sternum at the four intercoastal margin. Left and right atrium of heart through and through into the right chest cavity, piercing the middle lob of lung and coming out from the chest cavity right side at the anterior axillary line placed 14 cms below and outwards to the right nipple of size 0.5 x 0.5 cms and placed 27 cms above the anterior superior iliac point. No singeing, blackening, tattooing present.
2. Firearm entry size 0.3 x 0.3 cms present over the left side chest outer aspect in the anterior axillary line placed 9 cm outwards and downwards to the left nipple, abrasion collar present. The projectile going inside the chest cavity after piercing the skin subcutaneous tissues, third intercoastal space into the parenchyma of left lung, upper middle lower pierces through and through and coming out St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 37 from the exit wound at the back of the left side chest of size 0.5 x 0.5 cms placed 10 cm below the scapular spine and 5 cm middle to the midline. The direction is inwards, backwards and downwards. No blackening, singeing and tattooing present.
3. Reddish abrasion of size 2 x 0.5 cms present over the middle of forehead.
4. Reddish abrasion of size 1 x 1 cms present over the left side inner middle front of forehead.
(33) He has further deposed that on internal examination brain was pale, both chest cavities contained about 1.5 litre of fluid and clotted blood, pericardial cavity contained 500 ml of fluid and clotted blood, all internal organs were pale, Stomach was empty and time since death was about Three days.
(34) He has proved having opined that the cause of death in this case was shock due to haemorrhage as a result of antemortem injuries to the multiple internal organs (heart and both lungs) produced by projectiles of rifled fire arm which Injuries were sufficient to cause death in ordinary course of nature. According to the witness he also preserved clothes and blood in gauze piece and both sealed with the seal of the hospital and handed over to the Investigating officer. He has proved his detailed report in this regard which is Ex.PW3/A. The witness has also deposed that prior to postmortem, he received fifteen inquest St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 38 papers which are Ex.PW1/A, Ex.PW3/B, Ex.PW3/C, Ex.PW1/G, Ex.PW2/A, Ex.PW1/H, Ex.PW1/B, Ex.PW1/E, Ex.PW1/D, Ex.PW1/C, Ex.PW3/D and Ex.PW3/E and all these inquest papers were returned with the postmortem report.
(35) The witness has identified the case property i.e. one blood stained white baniyan, one underwear and one black thread as the same which were removed from the body of the deceased.
(36) In his cross examination by Ld. Defence counsel witness has deposed that he did not mention the holes on the baniyan of the deceased in his postmortem report.
FSL Experts:
(37) PW20 Sh. A.K. Srivastava Assistant Director (Biology), FSL, Rohini, Delhi has deposed that on 19.03.2007, eleven sealed parcels as per forwarding letter were received in the FSL from the SHO, Police Station Saraswati Vihar, Delhi in connection with case FIR No. 21/07 dated 08.01.2007 u/s 302/384/506/34. He has further deposed that he examined the parcels and prepared his report. He has proved that on biological examination, blood was detected on exhibits 1, 2, 2A, 3a, 3b, 3c, 3d, 4a, 4b, 7, 8a, 8b and 8c and blood could not be detected on exhibits 4c, 5a, 5b and 6 and the biological report prepared by him in this regard is Ex.PW20/A. According to the witness, on serological examination, human blood of 'O' Group wad detected on exhibits was detected on St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 39 exhibits 1 (gauze piece), 2 (gauze piece), 3a (full sleeved sweater), 3b (jacket), 3c (jeans pants), 3d (Tshirt), 4a (mattress with cover), 4b (bed sheet), 7 (gauze piece of the deceased), 8a (sandow banian), 8b (under wear) and 8c (black thread piece) whereas Exhibit 2A (broken floor material) failed to show any reaction in relation to Species of Origin and ABO Grouping. He has proved the serological report prepared by him which is Ex.PW20/B. He has testified that after examination, the remnants of the exhibits except in parcel 3,5,6,8, 10 and 11 were sealed with the seal of AKS, FSL, DELHI.
(38) In his crossexamination by the Ld. Defence Counsel the witness has denied the suggestion that the parcels were tampered with when the same remained in his custody.
(39) PW21 Sh. Puneet Puri Senior Scientific Officer (Ballistics) has deposed that on 05.09.2007 six sealed parcels, parcel Nos. 3, 5, 6 & 8 were sealed with the seal of AKS, FSL, DELHI, Parcel No. 10 & 11 were sealed with the seal of DS of this present case were received in their Division through the Biology Division of FSL, Rohini. He has further deposed that the seals on the parcels were intact as per the specimen seal.
He has further deposed that on opening the parcel no. 3, one full sleeves double sided jacket which was marked as Ex.C1 having three holes, one hole marked as H1 on the left portion of front side, second hole marked as H2 on the left portion of back side and the third hole marked as H3 on the back portion of right sleeves; one full sleeves sweater marked as St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 40 Ex.C2 having four holes, two holes marked as H4 and H5 on the left portion of front side, the third hole marked as H6 on the left portion and H7 on the right portion of backside; one full sleeves round neck Tshirt marked Ex.C3 having four holes, two holes marked as H8 & H9 on the left portion of front side, third hole marked as H10 on the left portion and H11 on the back portion of right sleeves and one grey colour jeans marked as Ex.C4 were taken out.
(40) According to the witness, on opening the parcel No. 5, two 9 mm cartridge cases, one bullet and one deformed bullet were taken out and marked as Ex.EC1, Ex.EC2, Ex. EB1 and Ex.EB2 respectively by him. He has further deposed that on opening the parcel No. 6 one metallic sheet was taken out, marked as Ex. MS1 having a dent mark, marked as DM1; on opening the parcel No. 8 one while colour baniyan in torn condition, marked as Ex.C5, having a region mark H12 on the front side and a hole mark H13 on the backside and one blue colour underwear marked Ex. C6 were taken out. According to the witness, on opening the Parcel No. 10, one improvised pistol 9 mm caliber bearing No. N44337 and one spare magazine were taken out and marked as Ex.F1 and Ex.M1 by him. He has also deposed that on opening the Parcel No. 11, twenty five 9 mm cartridges were taken out and marked as Ex.A1 to Ex.A25 by him. He has proved that on examination, it was found that the improvised pistol marked Ex.F1 was in working order, test fire was St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 41 conducted successfully by using the two cartridges marked Ex.A1 and Ex.A2, the test fired cartridges cases were marked as TC1, TC2 and the two recovered test fired bullets were marked as TB1 and TB2. According to the witness, the cartridge cases marked Ex.EC1 and Ex.EC2 were fired empty cartridges and had been fired through the improvised pistol marked Ex.F1 since the individual characteristic of firing pin marks present on Ex.EC1, Ex.EC2 and on test fired cartridge case marked TC1 were found identical when examined under the comparison microscope. He has proved having opined that the bullets marked Ex.EB1 and Ex.EB2 corresponds to the bullets of 9 mm cartridge and had been discharged through the improvised pistol marked Ex.F1 as the individual characteristic of rifling marks present on Ex.EB1, Ex.EB2 and on test fired bullets marked as TB1 and TB2 were found identical when examined under the comparison microscope. He has further proved that the spare magazine marked Ex.M1 is the magazine of improvised pistol 9 mm caliber like Ex.F1. According to the witness, the improvised pistol marked Ex.F1 was a firearm; the cartridges mark Ex.A1 to Ex.A25, cartridge cases marked Ex. EC1, Ex. EC2 and the bullets marked Ex. EB1 and Ex. EB2 were ammunition as defined under the Arms Act, 1959. He has proved his detailed report dated 27.09.2007 in this regard which is Ex.PW21/A. St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 42 (41) The witness has further deposed that from the holes marked H1 to H11, around the region mark H12 and the hole mark H13 and control sample from Jacket marked Ex.C1, sweater marked Ex.C2, T shirt mark Ex.C3 and baniyan marked Ex.C4, the swab around the holes from the abovesaid clothes were taken and the same were separately examined by him and report in this regard was prepared by him on 09.10.2007. He has testified that after examination, the holes marked H1 on the jacket marked Ex.C1; H4 on the sweater marked Ex.C2; H8 on the Tshirt marked Ex.C3 and H12 a region on the baniyan marked Ex.C5, could have been caused by a cupro jacketed bullet discharged through a firearm but no opinion could be given regarding the holes marked H2, H3 on the jacket marked Ex.C1, H5, H6 and H7 on the sweater marked Ex.C2, H9, H10 and H11 on the Tshirt marked Ex.C3 and H13 on the baniyan marked Ex.C5 due to insufficient data. He has also deposed that the dent marked DM1 on the metallic sheet marked as MS1 could have been caused by a Cupro Jacketed Bullet discharged through a firearm. He has proved his GSR Report dated 09.10.2007 in this regard which is Ex.PW21/B. (42) The witness has correctly identified the case property i.e. one full sleeves sweater, one full sleeves jacket, one full sleeves Tshirt and Jeans pant which are Ex.P1, Ex.P2, Ex.P3 and Ex.P4 respectively; two bullets and two fired cartridge cases as the same which were marked as EB1, EB2, EC1 and EC2 by him, which are collectively Ex.P8; one St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 43 piece of iron almirah (metallic sheet)which is Ex.P9; one baniyan in torn condition which is Ex.P16; one underwear of blue colour which is Ex.P17; one improvised pistol bearing No. N44337 with magazine which are collectively Ex.P13 (Pistol is Ex.P13A and Magazine is Ex.P13B); one spare magazine which is Ex.P14 respectively; twenty three live cartridges and two test fired cartridges and two test fired bullets which are Ex.P15 collectively.
(43) This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard. Police/ Official Witnesses:
(44) PW8 HC Satyapal has deposed that on 08.01.2007 he was posted at Police Station Saraswati Vihar as Duty Officer from 5.00 PM to 1.00 AM night. According to the witness on that day, at about 8.20 PM he received information on wireless that one person had been killed by firing at D499, Shakurpur, Near Samrat Cinema, SBI and dead body was lying at the spot and the crime was committed at about one hour prior.
He has proved having recorded DD No. 32 in this regard, copy of which is Ex.PW3/C which was handed over to Inspector Dharamvir Singh who left the Police Station with ASI Anuj, Ct. Jagdev and Ct. Rajinder. According to the witness, on the same day at about 9.30 PM he received a rukka from Ct. Rajinder sent by Inspector Dharamvir Singh for registration of FIR. He has deposed that he got recorded the FIR through St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 44 computer operator and that the computer generated copy kept in judicial file is Ex.PW3/B. He has deposed that he also prepared FIR in his own handwriting, photocopy of which is Ex.PW8/A. He has proved having made his endorsement on the rukka which is Ex.PW8/B. He has deposed that after registration of FIR, he recorded DD No.34A and proved its copy as Ex.PW8/C. He has deposed that he had also recorded DD No.35 A in respect of completion of FIR and handing over the copies to the special messenger Ct. Sidheshwar for handing over the same to the senior officers and Ld. Area Magistrate and the witness proved its copy as Ex.PW8/D. The witness has also proved DD No.5A in respect of arrival of Ct. Sidheshwar after delivering the copies as a special messenger, copy of which DD is Ex.PW8/E. (45) In his crossexamination by the Ld. Defence Counsel the witness has deposed that he had recorded DD No. 34A at about 9.30 PM. He has admitted that there is an overwriting at point X on Ex.PW8/A and has voluntarily explained that since the pen was tilted while writing there is an overwriting. He has deposed that the FIR is in his handwriting. According to the witness, the special messenger left the Police Station at about 10:10 PM after registration of FIR.
(46) PW9 HC Radha Krishan has deposed that on 13.01.07 he was posted at Police Station Saraswati Vihar. According to the witness on that day he joined the investigation of this case and he along with SI Anuj St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 45 Nautiyal and Inspector Dharambir Singh left the Police Station for investigation of this case. He has further deposed that when they reached at the gate of Police Station, Rejnath Mandal met them there who told that the person who committed the murder at D499, JJ Colony, Shakurpur is present at Shakurpur Bus Stand on which they all along with Rejnath Mandal reached at bus stand of Shakurpur where Rejnath Mandal pointed out towards a person who was sitting near the wall near the bus stand and on seeing them, the said person tried to run away but they apprehend him and on interrogation he disclosed his name as Chanderjeet @ Kishan. According to the witness, Chanderjeet @ Kishan also confessed his crime about the murder after which he was arrested vide memo Ex.PW4/A, his personal search was conducted vide memo of Ex.PW4/B after which the accused Chanderjeet @ Kishan was thoroughly interrogated and he made his disclosure statement vide Ex.PW9/A wherein he had disclosed that he could get arrested his associates Sachin @ Chinku and Udai and can also get recovered the weapon used in the offence from Goela Dairy, Najafgarh from the house of his father. The witness has testified that accused Chanderjeet @ Kishan also disclosed that he can also point out the place of occurrence and also disclosed that weapons used in the crime were got purchased from Khurja through his associate Sachin. According to him, the accused Chanderjeet @ Kishan also disclosed that in the year 2006 he used this weapon for firing at Gurgaon and in that case his brother i.e. son of the maternal uncle was involved and was in the custody whereas he St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 46 was absconded from that place and he was in need of money for pursuing that case and for that reason he demanded money from Arun Mandal but he refused and then he committed murder of Arun Mandal. The witness has testified that the accused then pointed out the place of occurrence at third floor of H. No. D499, JJ Colony, Shakur Pur where the accused along with his associates committed the murder of Arun Mandal, pursuant to which the Investigating Officer prepared pointing out memo vide Ex.PW9/B. He has also deposed that thereafter accused led them to H. No. B67, PhaseI, Qutub Vihar, Goyala Dairy, Najafgarh in pursuance of his disclosure statement and took out one pistol loaded, one loaded magazine and nine live cartridges after lifting from a box which was lying in the room just near the entrance and produced before the Investigating officer. The witness has testified that the accused disclosed that these weapons were used in the murder of Arun Mandal on which the Investigating Officer unloaded the pistol by removing the magazine which magazine found containing seven live cartridges whereas the other magazine was having nine live cartridges. He has deposed that the Investigating Officer prepared sketch of the pistol and magazines and also prepared sketch of one live cartridge and five cartridges from the bottom vide Ex.PW9/C. According to him, the pistol was having engraved words PETRO & SROATA Made in Italy and total length of the barrel was 18.6 cm Butt was 10.4 cm and total length was 22.2 cm, both the magazines were having length of 11.5 cm and the width was 3 cm and the length of St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 47 the cartridge was 2.9 cm and the cartridges recovered out of which 21 cartridges having words engraved KF 0 29 MM 2 Z whereas remaining four cartridges one of them having engraved word KF 04 9 MM 2Z, another cartridge having word KF 96 9 MM 2Z, another cartridge KF 93 9MM 2Z and another cartridge having word engraved KF 989MM 2Z. The witness has also deposed that all the cartridges were having radius of 9 MM at their bottom and both the magazines having engraved words 44337. He has also deposed that Investigating Officer prepared cloth parcel of pistol and both the magazines and sealed the same with the seal of DS whereas remaining live cartridges were turned into a box and again turned into cloth parcel and sealed with the seal of DS. The witness has further deposed that the seal after use was handed over to Arun Nautiyal and the case property was taken into possession vide memo Ex.PW9/D. According to the witness thereafter, they all returned to Police Station along with the accused where the accused was confined in the Lock Up and Investigating Officer deposited the case property with MHC (M) and thereafter the Investigating Officer recorded his statement. (47) The witness has correctly identified the accused Chanderjeet @ Kishan in the Court and also identified the case property i.e. one pistol of 9 mm caliber with magazine and one another magazine, the pistol having engraved the words PETRO and SROATA Made in Italy on the barrel and the magazine was having number 44337 which pistol with magazine the witness has identified as the same which were recovered at St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 48 the instance of Chanderjeet @ Kishan which are collectively Ex.P13; another magazine bearing no. 44337 as the one got recovered by accused Chanderjeet @ Krishan containing nine live cartridges which magazine is Ex.P14; twenty three live cartridges and two used cartridges which are collectively Ex.P15 (two cartridges were used by FSL). The witness has clarified that four cartridges having words KF 02 9 MM 2Z, KF 04 9 M 2Z, KF 96 9 MM 2Z, 0K 93 9 MM 2Z and 0K 98 9 MM 2Z and inadvertently he disclosed prior KF instead of 0K about two cartridges and the remaining twenty one cartridges are having same number KF 02 9MM 2Z.
(48) In his crossexamination by the Ld. Defence Counsel the witness has deposed that he left the Police Station on 13.01.07 at about 4.00 PM along with SI Anuj Nautiyal regarding investigation of this case and Investigating Officer also accompanied them. He has further deposed that Investigating Officer can tell about departure entry and that he had no knowledge as to where he had to go. He has further deposed that they were on foot and that he was in uniform but he does not remember whether others were in uniform or not. He has also deposed that they met Rejnath at the gate of Police Station and then Investigating Officer told him that they would go to the Shakurpur Bus Stand. According to the witness they started from gate after about ten minutes after meeting Rejnath. He has testified that in his presence he did not write the information given by Rejnath. He has denied the suggestion that they St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 49 themselves went to Shakurpur Bus Stand and Rejnath did not meet them at the gate of Police Station. He does not remember the type and colour of clothes worn by Rejnath nor is he able to approximate height of Rejnath. He has deposed that the body complexion of Rejnath was Sanwala but he does not remember his physique and states that Rejnath was having the same physique as of accused. He has deposed that he did not know Rejnath prior to that day. The witness has further deposed that they reached at Shakurpur Bus Stand at about 4.30 PM on foot which bus stand is situated at half kilometer from Police Station Saraswati Vihar. The witness has admitted that on the way they found several shops but the Investigating Officer did not ask any shopkeeper to join investigation as they had very short time. According to the witness there were no shops at the Bus Stand and some people were waiting at Bus Stand but Investigating Officer did not ask any public person to join the investigations prior to arrest of accused and has clarified that after the arrest of accused at the pointing of Rejnath, Investigating Officer asked public person to join proceedings. He has further deposed that the wall where the accused was sitting at the distance of 1520 feet from the bus stand and accused was having his face towards bus stand. He has further deposed that they approached him from a side but he does not remember the direction of the side. He has also deposed that the wall was plastered and having five feet height. According to the witness Rejnath pointed out towards the accused from the distance of 100 meter but he does not St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 50 remember the sequence of their approach who was at the first place and who was at the last place and states that they all three apprehended accused simultaneously. He is unable to tell in what direction accused tried to run away nor can he tell the type and colour of clothes worn by accused. He has denied the suggestion that no such proceedings were carried out by officials and he did not join investigation on 13.01.07 that is why he could not tell the colour and types of clothes. He has deposed that the accused was arrested at about 5.30 PM and all written work was carried out at the spot. He has testified that SI Anuj Nautiyal conducted the personal search of accused but he does not remember as to what was recovered from the personal search of the accused. He is not aware whether any family member or relative of accused was informed by Investigating Officer about his arrest. He has deposed that Investigating Officer started writing work after five minutes of apprehending the accused after 4.30 PM. According to the witness the Investigating Officer first of all prepared arrest memo, search memo and conviction slip and thereafter disclosure statement. He does not remember what address was given by accused about his residence. He has deposed that accused disclosed the address of his father, Village Supol but he does not remember another address which was disclosed by the accused. He does not remember who signed the arrest memo at the first and who signed at the last and has voluntarily added that SI Anuj Nautiyal, Rejnath and himself signed the arrest memo.
St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 51 (49) The witness has further deposed that the disclosure statement was written at the spot but he does not remember in whose writing it was written. He has also deposed that writing work was done by himself, SI Anuj Nautiyal and Investigating Officer. He has admitted that SI Anuj Nautiyal and himself were not the Investigation Officer. He has also deposed that disclosure statement was signed by himself and SI Anuj Nautiyal and the witness Rejnath was relieved after arrest of the accused and after recording his statement he left the spot and hence the disclosure statement was not signed by him. He does not remember who had written the statement of Rejnath. He has denied the suggestion that on the personal search memo there is cutting of date or that the accused was lifted prior to 13.01.07 and falsely implicated in this case. He has further deposed that no site plan of place of arrest was prepared. The witness has also deposed that Shakurpur Bus Stand area comes within the jurisdiction of Police Station Saraswati Vihar. He has testified that they remained at the place of arrest for about 30 minutes after arrest of accused. He has further deposed that the Investigating Officer asked public persons to join proceedings but none joined the proceedings and no notice was given by Investigating Officer to such public persons as there was paucity of time. He is unable to tell the duration for which inquiry was made from accused after apprehension. He has further deposed that they started from place of arrest at about 6.00 PM and accused led them to D499, Third Floor, JJ Colony, Shakurpur which took about seveneight minutes. The witness St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 52 has admitted that they had seen D499, Third Floor, JJ Colony prior to 13.01.07. He does not remember the name of person who met there and nor does he remember as to how many persons were present at that time. He has deposed that the Investigating Officer asked them to join investigation but none agreed. He has further deposed that at third floor there was a room in front of which the varandha was situated. According to the witness the total area of this house is 2022 sq. yds and the room may be of 10 sq. yds. area. He does not recollect how many windows were there but states that there was only one door. He has deposed that no neighbour was joined in the investigation by the Investigating officer. He also does not remember till what time they remained at D499, Third Floor, JJ Colony Shakurpur. Witness has further deposed that thereafter, they went to Goela Dairy, Najafgarh, Qutub Vihar where no other public person or police official joined the investigation up to that place. He does not remember the exact time when they reached at Goela Dairy. He has deposed that one person was present in the house at Qutub Vihar, Goela Dairy, Najafgarh and the accused got himself opened door of the house. He is unable to tell in how much area this house was built nor can he tell as to how many storied this house was. He has deposed that they did not search the house of accused and hence he is unable to tell how many rooms were there. He is also unable to tell the direction in which the front door of the house of accused was situated. He has further deposed that Investigating Officer asked the neighbours to join the investigation but St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 53 none joined the investigations and no notice was given to them by the Investigating Officer. He is unable to tell the dimensions of the room where the box was lying nor can he tell the dimensions and colour of box but states that the box was of iron. He has deposed that no site plan of the place of recovery was prepared by the Investigating Officer. He has denied the suggestion that he had not joined the investigation on 13.01.07 and that is why he had given wrong number engraved on the recovered cartridges as KF in place of 0K. He is unable to tell the route taken by them to reach the house of accused from Shakurpur. He is also unable to tell whether local police was informed or not by the Investigating Officer after the above said recovery. The witness is unable to tell as to how many windows and doors were there in the room from where recovery was effected nor can he tell up to what time they remained at the house of accused and at what time they left the house of the accused. He has deposed that he did not enter any separate arrival entry at Police station. He has deposed that his statement was recorded by the Investigating Officer at Police Station but he cannot tell the time. He has further deposed that Investigating Officer also recorded statement of SI Anuj Nautiyal in his presence at Police Station. He has denied the suggestion that he did not join any investigation on 13.01.07 and all the proceedings were conducted by Investigating Officer while sitting at Police Station. He has further denied the suggestion that no recovery was effected at the instance of accused or that the accused was not arrested in his presence. St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 54 (50) PW10 HC Jagdev Kumar has deposed that on 08.01.2007 he was posted at Police Station Saraswati Vihar as Constable and was on Emergency Duty on that day. According to the witness, he had received DD No. 32A from Duty Officer regarding firing and murder on which he along with SI Anuj Nautiyal and Ct. Rajender reached at D4999, JJ Colony, Shakurpur where they found a dead body lying at the ground floor smeared with the blood and SI Anuj Nautiyal inspected the dead body. He has deposed that the dead body was lying towards the left chest and on the right back side they observed a bullet wound. He has further deposed that SI Anuj Nautiyal left them with the dead body and he (SI Anuj Nautiyal) went to third floor. According to the witness, after some time Crime Team reached at the spot and inspected the spot and photographs were taken. He has further deposed that he was instructed to take the dead body to BJRM hospital for depositing the same in the mortuary and accordingly he went to Mortuary, BJRM Hospital and deposited the dead body and remained on duty at mortuary. The witness has further deposed that on next day the dead body was identified by wife and brother of deceased and thereafter, postmortem was got conducted after which dead body was handed over to its claimants. He has further deposed that after postmortem two parcels with sample seal were handed over to him containing vests and underwear of deceased and also blood sample of deceased which parcels were sealed with the seal of FMT, BJRM Hospital and SI Anuj Nautiyal took into possession both parcels St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 55 and sample seal vide seizure memo Ex.PW10/A. The witness has also deposed that he went to Police Station and deposited the parcels in the Malkhana. According to the witness, the dead body was not tampered till it remained in his custody and SI Anuj Nautiyal recorded his statement. He has further deposed that SI Anuj Nautiyal prepared seizure memo and his statement at the instructions of Investigating officer. He has deposed that during all the proceedings Inspector Dharambir Singh, Addl. SHO was also present and that Inspector Dharambir Singh, Addl. SHO also signed the documents prepared in his presence.
(51) The witness has identified the case property i.e. the baniyan which is Ex.P16, underwear which is Ex.P17 and Tabiz with black thread which is Ex.P18 which were belonging to the deceased. (52) In his crossexamination by the Ld. Defence Counsel the witness has deposed that on 08.01.2007, he was on Emergency Duty from 8.00 AM to 8.00 PM. He has deposed that DD No. 32A was received by him at about 6.30 PM and at that time, he was standing outside the Police Station. He has further deposed that he left the Police Station at about 6.30 PM and reached the spot within ten minutes along with Investigating Officer SI Anuj Nautial. The witness has also deposed that about 15/20 persons were standing outside the house no. D499 and two persons standing besides the dead body inside the house no. D499. He does not remember, if crime team lifted chance prints from the spot. He has deposed that he remained at the spot till 10.30 PM and removed the dead St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 56 body from the spot after 10.30 PM. The witness has also deposed that the injured had already expired, when they reached the spot and he did not see any doctor at the spot, who had reported injured to have expired. He has deposed that he was told by persons present at the spot and also from appearance of the injured that he had already expired. He has denied the suggestion that injured was still alive, when police reached the spot or that he was not taken to hospital. According to him, till the time he remained on the spot, he was not informed by anyone about the name of the assailants. He has denied the suggestion that he was deposing falsely. (53) PW11 SI Satpal Singh has deposed that on 08.01.2007 he was posted as Incharge Crime Team N/W District, Pitampura. According to the witness on that day, he received a call from Control Room NW District and after receiving the aforesaid call, he along with his team went to the spot i.e. D499, JJ Colony, Shakurpur where Investigating Officer and SHO along with their staff were already present. The witness has deposed that on the ground floor of the said premises, a dead body of male person aged about 2530 years whose name was revealed as Arun Kumar was found lying inside the room and there were three injuries on the chest of said dead body which injuries were seemed to be caused by firearms/ bullet. He has deposed that one injury was also seen on the back of dead body and it was also seemed to be caused by firearms/bullet. According to the witness, the deceased was wearing white colour baniyan and blue colour underwear. He has testified that thereafter, he went on St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 57 the top floor of said premises where one blood stained bedsheet was found on the bed in a room and one black colour Tshirt (baniyan), one sweater (woolen) and two empty shells of cartridges and two bullets were also found lying in the said room at the top floor. He has deposed that the above mentioned Tshirt (baniyan) and sweater were having the bullet marks. The witness has testified that two bullet marks were also seen on the door of an almirah kept in the said room at top floor. According to the witness, he tried to lift the finger prints from the spot but could not succeed. The witness has further deposed that Ct. Mahender (Photographer) took the photographs of the spot i.e. ground and top floor of the said premises. He has proved having prepared the Inspection Report which is Ex.PW11/A. According to the witness, he advised the Investigating Officer to get the dead body preserved in the mortuary and also take the exhibits from the spot.
(54) In his cross examination by the Ld. Defence Counsel the witness has deposed that he received the information at about 8:50 PM in his office at Maurya Enclave, Pitampura and after receiving the call, he along with team immediately left the office for the spot. He has deposed that the Crime Team was comprised of himself, Ct. Suresh (fingerprint proficient), Ct. Mahender (photographer), Ct. Ajay (Driver) and reached the spot at about 9:10 PM and remained there till 10:30 PM. He has also deposed that many public persons were present there but he cannot tell them in number nor can he tell as to how many police officials were there. St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 58 The witness has admitted that in his Crime Team Report Ex.PW11/A, the column no. 11 pertaining about the chance print is blank. The witness has denied the suggestion that they did not try to lift the chance print from the spot and that is why column no. 11 was blank. He is unable to tell the area in which the house in question is constructed nor can he tell as to how many windows were there in the said room at top floor. He does not remember the colour and height of almirah. He has testified that the bed sheet was of brown and white in colour which was found on the bed smeared with blood. He is unable to tell which portion of the said bed sheet was smeared with blood. The witness has testified that he inspected the clothes in the room itself at top floor. He has also deposed that no seizure memo was prepared in his presence. He is also unable to tell as to how many photographs were taken by the photographer. He has deposed that till the time he remained at the spot, the name of the assailant/ accused was not revealed. He has denied the suggestion that he never visited the spot or that he prepared crime team report Ex.PW11/A while sitting in the office.
(55) PW12 HC Mahendra Singh has deposed that on 08.01.2007, he was posted in Mobile Crime Team (NW) District as Constable and working as a Photographer. He has deposed that on that day, ASI Satpal Singh received a call from Control Room NW District and after receiving the said call, he alongwith other members of team accompanied ASI Satpal to the spot i.e. H. No. D499, JJ Colony, Shakurpur, Delhi. He has St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 59 deposed that on reaching the spot, local police from the Police Station was found present there. According to the witness, one dead body of male was lying on the ground floor and at third floor of said house, one blood stained bed sheet and some clothes were found on the bed. He has further deposed that he took 23 photographs in total from both the floors of the said house at the directions of the Investigating Officer and after developing the same, he handed over the said photographs to the Investigating Officer which photographs are Ex.PW12/A1 to Ex.PW12/A23 and the negatives of the said photographs are Ex.PW12/B1 to Ex.PW12/B23. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard.
(56) PW13 Ct. Surajvir has deposed that on 19.03.2007, he was posted at Police Station Saraswati Vihar. According to the witness on that day, MHCM handed over eleven sealed parcels along with sample seal of FMTBJRM hospital to him and he took the same to FSL Rohini vide RC but he do not remember the RC number and deposited the same there. He has deposed that after depositing the above said parcels, he handed over the acknowledgment receipt to MHCM. He has proved that as long as the parcels remained in his possession, he did not tamper with the same and the same remained intact.
(57) This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard. St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 60 (58) PW14 SI Manohar Lal has deposed that on 7.3.2007, he was posted as Draftsman at NW District and on that day, on the request of Investigating Officer Inspector Dharamvir Singh, he visited the spot i.e. H. No. D499, JJ Colony, Shakurpur, Delhi where at the instance of Investigating officer, he inspected the spot and took the rough notes and measurements. He has deposed that on the basis of rough notes and measurements, he prepared Scaled Site Plan on 8.3.2007 which is Ex.PW14/A and same was handed over to Investigating Officer. He has further deposed that after preparation of the scaled site plan, he destroyed the rough notes and measurements.
(59) This witness was not cross examined on behalf of the accused, despite being granted an opportunity in this regard. (60) PW15 Ct. Sidheshwar Dubey has deposed that on 8.1.2007, he was posted at Police Station Saraswati Vihar and on that night, Duty Officer handed over three envelopes containing the copies of FIR No. 21/07 to him and he delivered the same to the residence of concerned Ld. MM at Gulabi Bagh, residence of Joint C.P. and at the residence of ACP concerned. He has deposed that after delivering the said envelopes, he came back to the Police Station and his statement in this regard was recorded by the Investigating Officer.
(61) This witness was not cross examined on behalf of the accused, despite being granted an opportunity in this regard. St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 61 (62) PW16 HC Rajinder Singh has deposed that on 8.1.2007, he was posted at Police Station Saraswati Vihar. According to the witness on that day, Insp. Dharamvir Singh received DD No. 32A on which he alongwith SI Anuj Nautiyal and Ct. Jagdev accompanied Inspector Dharamvir Singh to B499 JJ Colony, Shakurpur at ground floor of the said house where they found that one dead body of male person was lying in a room and on inquiry its name was revealed as Arun Mandal S/o Ramdev Mandal. Witness has further deposed that on the body inspection of the said dead body, the injuries of bullets were found on the left side chest, left armpit and on back side of right armpit and on its back. He has also deposed that thereafter, Insp. Dharamvir, SI Anuj Nautiyal and himself went upstairs at third floor of the said house after leaving Ct. Jagdev near the dead body. He has further deposed that in a room at third floor, one bullet was found lying near the door and another bullet was also found near the bed (Palang) and two empty cartridges were also found lying in the said room. According to the witness, blood smeared clothes i.e. Tshirt and other clothes were also lying on the bed. Blood was also lying on the stairs. The witness has testified that bullet shot mark was also seen on the left door of iron almirah which was kept in the said room. He has further deposed that one Arvind Kumar brother of deceased also came there and got recorded his statement Ex. PW1/A and on the basis of said statement, Insp. Dharamvir prepared rukka and he took the same to Police Station for registration of the case. He has St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 62 testified that after getting the case registered, he came back to the spot and handed over the original rukka and computerized copy of FIR which is Ex. PW8/A and handed over the same to the Investigating Officer Insp. Dharamvir. He has further deposed that he was directed to remain present outside the house in gali. According to the witness thereafter, he alongwith SI Anuj Nautiyal and Insp. Dharamvir went to B67, Qutub Vihar Phase I, Goela Dairy, Najafgarh, Delhi where the said house was found locked. He has deposed that Investigating Officer Insp. Dharamvir Singh made inquiry from the neighbourhood but no clue of Kishan was found and thereafter they came back to Police Station where his statement was recorded by the Investigating Officer.
(63) This witness was not cross examined on behalf of the accused, despite being granted an opportunity in this regard. (64) PW17 ASI Ashok Kumar has deposed that on 9.1.2007, he was posted at Police Station Saraswati Vihar and working as MHC (M). He has deposed that on that day, Investigating Officer Insp. Dharamvir Singh had deposited seven parcels sealed with seal of DS with him and he made entry in register no. 19 vide serial no. 3344, copy of which entries are Ex.PW17/A. He has further deposed that on 11.1.2007, Investigating Officer Insp. Dharamvir Singh had again deposited two parcels sealed with seal of FFT BJRM hospital alongwith sample seal with him and he made entry in register no.19 vide serial no. 3352, copy of which entries are Ex.PW17/B. According to the witness, on 13.1.2007, Investigating St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 63 Officer Inspector Dharamvir Singh had again deposited two parcels sealed with seal of DS with him and he made entry in register no.19 vide serial No. 3358, copy of which entries are Ex. PW17/C. The witness has testified that on 19.3.2007, eleven parcels alongwith sample seal were sent to FSL, Rohini through Ct. Surajvir vide RC No. 90/21/07 and he made entry in register no.19, copy of which entry is Ex. PW17/D. He has also deposed that on the same day, Ct. Surajvir handed over the acknowledgment receipt to him regarding depositing the aforesaid parcel at FSL Rohini. He has proved copy of RC No. 90/21/07 which is Ex.PW17/E and copy of acknowledgment receipt which is Ex.PW17/F. The witness has further deposed that on 4.10.2007, Ct. Vijayan handed over the FSL report and the parcels sealed with the seal of FSL and he made entry in register no.19, copy of which is Ex.PW17/G. According to the witness, on the same day i.e. 4.10.2007, he handed over the FSL report to Insp. Indiraj Singh and he made entry in register no.19 copy of which entry is Ex.PW17/H. He has proved that as long as the exhibits remained in his possession, he did not tamper with the same and the same remained intact.
(65) This witness was not cross examined on behalf of the accused, despite being granted an opportunity in this regard. (66) PW18 HC Sahab Singh has deposed that on 22.03.2007 he was posted as Constable at Police station Saraswati Vihar and on that day, the process u/s 82 Cr.P.C qua accused Sachin Pandit (since P.O) was St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 64 marked to him for execution and accordingly, he went to Khurja, District Bulandshar where he conducted the proceedings in respect of the process under Section 82 Cr.P.C and thereafter, he came back to Delhi. He has deposed that later on, his statement was recorded by the Investigating Officer in this regard.
(67) This witness was not cross examined on behalf of the accused, despite being granted an opportunity in this regard. (68) PW19 SI Raj Singh from Haryana Police has brought the summoned record i.e. FIR No. 464/06 u/s 307/34 IPC and 25/54/59 Arms Act. He has deposed that the said FIR was registered on 26.07.2006 by ASI Ram Phal, the then Duty Officer against Chanderjit @ Kishan @ Charanjit and after registration of the case, the investigation was assigned to SI Raj Singh. He has proved photocopy of the above said case FIR which is Ex.PW19/A. He has deposed that SI Raj Singh, Investigating Officer of the above said case has since retired.
(69) In his crossexamination by the Ld. Defence Counsel the witness has deposed that as per the endorsement in FIR register, the above said accused Charanjit Singh has been acquitted in the above said case by the court of Sh. Subhash Goel, ASJ, Gurgaon vide order dated 08.08.09. (70) PW22 SI Anuj Nautiyal has deposed that on 08.01.2007, he was posted at Police Station Saraswati Vihar as Sub Inspector and on that day, DD No. 32A Ex.PW3/C was received that at D499, Shakurpur, Samrat Cinema, SBI Wali Gali, one person had been shot at and the dead St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 65 body was lying at the spot. He has deposed that after receiving the said DD, he along with Ct. Jagdev, Ct. Rajender and Ins. Dharambir went to the spot i.e. D499, Shakurpur where they found that one dead body was lying on the ground floor of the aforesaid house and some persons including brother of deceased and employees of deceased were present there. He has further deposed that there were gun shot injuries on the left side chest, right side of the back and from both the arm pits of the body and blood was also found lying on the floor near the dead body and they came to know that the deceased Arun Mandal was residing at third floor and was working in the said house and his job was to manufacture of artificial teeth. He has testified that Ct. Jagdev was left near the dead body while they all went to the third floor, where the deceased was living and they found that blood was lying on the steps of the stair upto third floor. According to the witness on reaching at third floor, when they entered in the room, they found that one bed was lying in the said room and the bed sheet, mattress and clothes of the deceased on the said bed were found lying smeared with blood. Witness has further deposed that two empty cartridges cases were found lying in the said room i.e. one was lying near the bed and other was lying near the door and they also found two leads in the room. According to the witness, one bullet mark was also noticed by them on the right side door of the iron Almirah in the room. He has testified that he recorded the statement of the brother of deceased namely Arvind which is Ex.PW1/A which was duly attested by Inspector St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 66 Dharambir Singh. According to the witness thereafter, on the basis of his above said statement, he recorded a rukka on the directions of Inspector Dharambir Singh and it was attested by Inspector Dharambir Singh which rukka is Ex.PW22/A bearing the signatures of Inspector Dharambir at point A and thereafter the said rukka was sent to Police Station through Ct. Rajender for registration of the case and thereafter, Crime Team was called at the spot. He has further deposed that the Crime Team inspected the spot and took the photographs of the scene of crime from different angles and thereafter the exhibits i.e. blood sample (from the mattress, from the ground floor) and blood stained earth from the ground floor were lifted and kept in three plastic containers which were sealed with the seal of DS and the said containers were taken into possession vide seizure memos Ex.PW1/H and Ex.PW1/B. Witness has further deposed that thereafter, the blood stained clothes, which were lying on the bed i.e. one black colour full sleeves Tshirt, one sweater of black colour, one jacket of white and black colour and one jeans of gray colour, were also lifted and were converted into a cloth parcel and were sealed with the seal of DS and the parcel was seized vide memo Ex.PW1/F. He has also deposed that thereafter the blood stained bed sheet and mattress were converted into a cloth parcel and sealed with the seal of DS which parcel was seized vide memo Ex.PW1/D after which both the leads and empty cartridge cases were also lifted from the spot. According to the witness the sketch of the above said leads and cartridge cases was prepared by him on the St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 67 instructions of Inspector Dharambir Singh which is Ex.PW22/B and the said sketch was attested by Inspector Dharambir Singh. Witness has further deposed that thereafter, all the above said leads and empty cartridges cases were kept in one plastic container and were taken into possession vide seizure memo Ex.PW1/F. The witness has further testified that a piece of iron almirah door which had a bullet mark was got cut through one person who was called by the Investigating Officer and the said piece of iron having bullet marks was converted into a cloth parcel and sealed with the seal of DS which parcel was taken into possession vide seizure memo Ex.PW1/C. The witness has clarified that the dead body had already been shifted to mortuary of BJRM hospital, prior to lifting of exhibits from the spot through Ct. Jagdev and after registration of FIR, the statements of members of the Crime Team and other witnesses present at the spot were recorded by the Investigating Officer and after recording their statements, they were discharged. He has also deposed that one Rejnath had informed that he had seen the incident and disclosed that accused Kishan, Sachin and Udai had come there at about 6.00 PM and it was the accused Kishan who fired shots at the deceased and the accused persons had also threatened him not to disclose this fact to anyone. According to the witness thereafter they went in search of accused Kishan at his house i.e. B67, Qutab Vihar, PhaseI, Goela Dairy, Najafgarh, Delhi but since the said premises was found locked hence they returned back and his statement was recorded by the St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 68 Investigating Officer in this regard.
(71) The witness has also deposed that on 13.01.2007, he along with Ct. Radha Krishan again joined the investigation of the present case with the Investigating Officer Inspector Dharambir at about 04:00 PM and they went in search of the accused Kishan. According to the witness when they were coming out of the Police Station, witness Rejnath met them who informed him that he had seen accused Kishan at the bus stop, Shakurpur, near Ring Road on which he also also joined the investigations with them. Witness has further deposed that thereafter they along with Rejnath went at the bus stand on service road, near Ring Road Shakurpur and on reaching there Rejnath pointed out towards one person as Kishan, who was sitting on a wall who was apprehended by them and was interrogated during which he confessed his involvement in the present case. Witness has further deposed that thereafter, accused Kishan was arrested vide arrest memo Ex.PW4/A and his personal search was also conducted vide personal search memo Ex.PW4/B. According to the witness thereafter, statement of witness Rejnath was recorded after which he was discharged and the accused Kishan was interrogated in detail during which he made disclosure statement, which is Ex.PW4/A. He has also deposed that thereafter accused Kishan led them to the spot (place of occurrence) i.e. house no. D499, JJ Colony, Shakurpur (Third floor) and pointed out the room on the third floor, where he had committed the murder pursuant to which a pointing out memo was prepared by the St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 69 Investigating Officer which is Ex.PW9/B. He has further deposed that thereafter accused led the police party at his house i.e. B67, Goela Dairy, Qutab Vihar, PhaseI, Najafgarh, Delhi and from his house, on the ground floor, he got recovered one pistol and attached magazine containing seven live cartridges, one spare magazine containing nine live cartridges and nine live cartridges in loose from one iron box. According to the witness both the magazines were unloaded and thereafter, the sketch of the pistol, both the magazine and cartridge were prepared by the Investigating Officer vide Ex.PW9/C. He has proved that both the magazine and pistol were sealed in a cloth parcel with the seal of DS, while all the live cartridges (25 in number) were put in a plastic container which container was converted into parcel by pasting surgical tape on it with the seal of DS. Witness has further deposed that thereafter, both the parcels were taken into possession vide seizure memo Ex.PW9/E and thereafter, they came back to the Police Station with the accused and the case property and his statement was recorded by the Investigating Officer. (72) The witness has correctly identified the accused Chanderjeet @ Kishan in the Court and has also identified the case property i.e. one full sleeves sweater, one full sleeves jacket, one full sleeves Tshirt and one jeans pant which are Ex.P1, Ex.P2, Ex.P3 and Ex.P4 respectively; one mattress, one bed sheet and one torn polythene sheet which are Ex.P5, Ex.P6 and Ex.P7 respectively; two bullet pieces lifted from the spot which are collectively Ex.P8; one piece of iron almirah which is St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 70 Ex.P9; one improvised pistol bearing No. N44337 with magazine which are collectively Ex.P13 (Pistol is Ex.P13A and Magazine is Ex.P13B); one spare magazine which is Ex.P14 respectively; twenty three live cartridges and two test fired cartridges and two test fired bullets which are Ex.P15 collectively.
(73) In his cross examination by the Ld. Defence Counsel, the witness has deposed that he received DD No. 32 A at about 8:00 PM and remained at the spot till about 12:30 AM (midnight). According to the witness the Investigating Officer had sent a rukka at about 9:20 PM and when they reached at the spot, they found that one dead body was lying on the ground floor of the said house and some persons including the brother of the deceased and employees of the deceased were present there. However, when confronted with his statement under Section 161 Cr.P.C Mark PW22/D, where it is not recorded that some persons including brother of deceased and employees of deceased were present. Witness has further deposed that he had stated to the Investigating Officer in his statement under Section 161 Cr.P.C that he had recorded the statement of Arvind and that he had recorded the rukka which was attested by Inspector Dharamvir Singh. However, when confronted with statement Mark PW22/D where it was not recorded that the witness had recorded the statement of Arvind. Witness has further deposed that he had stated to the Investigating Officer in his statement under Section 161 Cr.P.C that he had prepared the sketch of the lead and the cartridge case of the bullet at St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 71 the instance of Inspector Dharamvir. When confronted with statement Mark PW22/D where it was not recorded that the witness had prepared the sketch of lead and cartridge of the bullet. The witness has voluntarily explained that all the documents were prepared at the spot by him at the instance of Inspector Dharamvir. Witness has further deposed that he had stated to the Investigating Officer in his statement under Section 161 Cr.P.C that he had recorded the statement of the members of the Crime Team and thereafter they were discharged. However, when confronted with statement Mark PW22/D where it was not so recorded. (74) According to the witness, he had recorded the statement of Arvind Mandal before midnight on 08.01.2007 but he does not remember the names of other witnesses whose statement was recorded before midnight on 08.01.2007 and has explained that the statement of all the witnesses were recorded in continuation. The witness has further deposed that before the registration of case, no case property was sealed nor was the same seized by preparing their memos by the Investigating Officer Dharamvir Singh and all the case property was sealed and seized after registration of the case. He has testified that he he did not revert back to PCR officials to inform about the progress on reaching the spot. According to the witness, Investigating Officer did not do so in his presence and he is not aware if the Investigating Officer had so informed about the progress to the PCR officials or not. He has testified that he did not inquire about the informant of Ex.PW3/C i.e. DD No. 32 A. Witness St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 72 denied the suggestion that no eye witness was found at the spot on the day of the incident till 9:15 PM. According to him, the witness Rejnath met them outside Police Station at about 4:00 PM on 13.01.2007. Witness has further deposed that search for accused Chanderjeet was made on the night of 08/09.01.2007 at his residence at B67, Goela Dairy, Najafgarh and thereafter he was searched on 13.01.2007. He has also deposed that witness Rejnath did not accompany them in search of accused Chanderjeet on the night of 08/09.01.2007. He has also testified that witness Rejnath did not disclose about the description of accused Chanderjeet to him nor did he disclose about it to the Investigating Officer in his presence and has explained that he only told name of the accused to the Investigating Officer in his presence. He has testified that he, Inspector Dharambir and Ct. Rajender had gone for search of accused from the place of occurrence itself. Witness has further deposed that they left at about 1:00 midnight and reached the house of accused at about 1:45 AM. The witness has also deposed that no separate DD entry was made regarding the same and at that time, threefour Police officials were left at the spot but he does not recollect their names. He does not remember if any public person was present at the spot when they left for house of accused. Witness has further deposed that they did not find anyone in the house of accused and they had tried to inquire from the neighbourers but nobody opened the door due to late hours. The witness has also deposed that he did not try to search for the accused after 809.01.2007 to St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 73 13.01.2007 and has voluntarily explained that Investigating Officer must have done so. Witness has further deposed that the address of the accused Chanderjeet was known to the Investigating Officer and he came to know about it during inquiry but he is not aware how. According to the witness the address of accused Chanderjeet was not told to the Investigating Officer in his presence at the spot. Witness denied the suggestion that in the intervening night of 08/09.01.2007 they did not go to the house of accused Chanderjeet or that on the day of incident, he had given information, after reaching the spot, to the PCR Control Room about the facts of the case or that till 09:15 PM not witness was found present at the spot.
(75) Witness has further deposed that on 13.01.2007 witness Rejnath was not called to the Police Station but he met them when they were leaving the Police Station. According to the witness the fact that witness Rejnath had met the Police Team including himself, as they left the Police Station, was not recorded in DD entry and has voluntarily added that the DD entry had already been made regarding their departure. He has admitted that they did not return back to the Police Station to record this fact in the DD register while making a separate DD entry. According to the witness, no weapon was got issued by them from the Malkhana before going for search of accused on 13.01.2007 and no vehicle was issued and has explained that they had gone for search on foot. Witness has further deposed that they left Police Station at about St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 74 4:00 PM and did not go to the house of accused but went to a place at Shakurpur Ring Road where Rejnath told them that accused was sitting. According to the witness, all three Police officials i.e. he himself, Inspector Dharamvir and Ct. Radha Kishan were in Police uniform and the witness Rejnath pointed out to accused Chanderjeet from a distance of 50 mtrs and after accused was pointed out to them, they proceeded to the place where he was sitting at normal pace. Witness has further deposed that when accused saw them, when they were at a distance of about 10 to 15 meters from him. According to him, the accused tried to escape but was apprehended by them after a chase of 10 to 15 meters and it was he and Ct. Radha Kishan who apprehended the accused first. According to the witness he had not mentioned hit fact in his statement under Section 161 Cr.P.C made to the Investigating Officer. He has also deposed that two to four public persons were also sitting at the bus stop at that time but they were not called by the Investigating Officer in his presence to join the investigations. Witness has further deposed that they remained at that place for about one hour and fifteen minutes and all the writing work was done at the spot itself while sitting on the wall in the presence of witness Rejnath. He is not aware if the Investigating Officer informed any relative of accused Chanderjeet about his arrest and states that no such information was given by him and no separate DD entry was made regarding the arrest of the accused. He has also deposed that the DD entry was made only at 10:00 PM when they returned to Police Station St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 75 after completing the investigations on that day. Witness has further deposed that witness Rejnath was allowed to leave from the place of apprehension of accused after recording the statement of said witness. According to the witness they reached Goela Dairy at about 7:45 - 8:00 PM and did not find anyone at the house of accused Chanderjeet on that day even though the house was found unlocked. He has also deposed that they remained at the house of accused for about 1 ½ hours and the Investigating Officer had asked one or two neighbours to join investigations on that day but none agreed and Investigating Officer did not give any notice to said neighbours for their refusal to join investigations. According to the witness accused had not disclosed to them that he had kept katta and cartridges in an iron box. He has testified that the said iron box contained some clothes besides the Katta, magazine and the cartridges and the box was without a lock lying in one corner of the house and it was opened by the accused himself. Witness has further deposed that there was only one iron box in the house though other articles were also lying there. According to him, there were two rooms on the ground floor of the house and the box was kept in the first room which also had entrance to the house and was lying under the bed next to the wall. He has further deposed that the Investigating Officer did not prepare any site plan of the place of recovery of the box. Witness has further deposed that the seizure memo Ex.PW9/C was prepared at the house of accused itself but he does not remember who had prepared the St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 76 said memo. He has also deposed that the Investigating Officer did not record statement of any witness at the house of accused. According to the witness they returned back to Police Station at about 10:00 PM and no DD entry was made by the Investigating Officer in his presence after returning back to the Police Station. Witness denied the suggestion that Investigating Officer had not recorded statement of any public witness in his presence on the day of incident at the spot. He has also denied the suggestion that accused was not arrested in his presence or that he was not the member of raiding party on 13.01.2007. Witness has further denied the suggestion that the accused had not given disclosure statement in his presence as he was not arrested at the point out of witness Rejnath from Shakurpur. Witness has denied the suggestion that he had signed the papers at the instance of Investigating Officer while sitting in the Police Station, later on. He has further denied the suggestion that no weapon was recovered at the instance of accused Chanderjeet or that no recovery memo thereof was prepared in his presence. The witness has also denied the suggestion that name of accused is Chanderjeet only and not Kishan. He has admitted that Investigating Officer did not make any inquiry in his presence to find out if the name of accused is Chanderjeet or Kishan. Witness has denied the suggestion that he was deposing falsely at the instance of Investigating officer.
(76) PW23 Sh. Sanjay Kumar has deposed that on 18.10.2007, he was working as Addl. DCP, North West District and on that day, the St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 77 papers and the draft charge sheet of case FIR No. 21/07 dated 08.01.2007 under Section 302/384/506/34 IPC & 25/27/54/59 Arms Act, Police Station Saraswati Vihar, were placed before him. According to the witness after going through the documents placed before him, he was satisfied that accused Chanderjeet Kumar @ Kishan S/o Ram Avtar Mandal had committed offence punishable under Section 25/54/59 Arms Act and accordingly, he granted the sanction under Section 39 Arms Act against the accused Chanderjeet Kumar @ Kishan which is Ex.PW23/A. (77) In his cross examination by the Ld. Defence Counsel the witness denied the suggestion that he mechanically accorded the sanction without application of mind. Witness denied the suggestion that before issuing the sanction, he had not gone through the case file properly. (78) PW24 HC Mahender Singh has deposed that on 08.01.2007, he was posted at P.C.R. Control Room CShift and on that day at about 8:15 PM, he received a call from Gopal through his mobile No. 9213498278 that one person received the bullet injury and his dead body was lying at D499, Shakarpur, Rani Bagh, near Samrat Cinema. According to the witness he filled the Police Control Room Form No.1 the and same was handed over to Wireless Operator and informed the concerned PCR. The witness has proved the original Police Control Room Form 1 CRDD No. 1637 which is filled from point "A" to "A1" in his handwriting, photocopy of which is Ex.PW24/A. St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 78 (79) In his cross examination by the Ld. Defence Counsel the witness has deposed that on that day he was on duty from 8:00 PM to 8:00 AM and the PCR form Ex.PW24/A is filled in his handwriting on the front side. According to the witness the entries made after point "A" to "A1" were made after he had handed over the form to "form runner". He is not aware who made the said entries. He does not remember the name of said "form runner" and has deposed that the "form runner" takes the form and hands it over to the Wireless Operator.
(80) PW25 Inspector Inder Raj Singh has deposed that on 25.07.2007, he was posted at Police Station Saraswati Vihar and on that day case file FIR No. 21/07 was entrusted to him for filing of supplementary chargesheet after obtaining FSL result. According to the witness he obtained the FSL result and obtained the sanction under Section 39 of Arms Act and after that he filed the supplementary charge sheet in the Court.
(81) In his cross examination by the Ld. Defence Counsels the witness has deposed that there was no written order issued to him for preparing the supplementary charge sheet. Witness denied the suggestion that the investigation of the above said was not entrusted to him for filing of the supplementary charge sheet.
(82) PW26 Inspector Dharamvir Singh is the Investigating Officer of the present case who has deposed that on 08.01.2007, he was posted at Police Station Saraswati Vihar as Additional SHO and on that St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 79 day at about 8:20 PM, on receipt of DD No.32A, he along with SI Anuj Nautiyal, Ct. Jagdev and Ct. Rajender reached at the spot i.e. House No. D499, J.J. Colony, Shakurpur, Delhi where dead body of a person namely Arun Mandal was lying on the floor and head of the dead body was towards the South side, legs of the dead body were towards North side and face of the dead body was towards the sky. According to the witness he noticed that blood was lying on the stairs upto third floor and he went to the room on third floor where he found that bed was in scattered condition, one fired cartridge was lying near the iron almirah and one fired cartridge was lying near the bed and two leads of the cartridges were lying near the door of the room, blood was lying on the bed sheet, mattress and clothes. Witness has further deposed that he also noticed that there was a bullet mark on the iron almirah. According to the witness, he recorded the statement of Arvind Mandal Ex.PW1/A and thereafter called the Crime Team. Witness has further deposed that he made his endorsement on the statement of Arvind Mandal Ex.PW22/A and same was handed over to Ct. Rajender for registration of the case. Witness has further deposed that Crime Team reached at the spot and inspected the spot and Photographer of the Crime Team took the photographs from different angles. According to the witness at the instance of complainant Arvind Mandal, he prepared the site plan Ex.PW26/A. Witness has further deposed that blood was lifted from the ground floor with the help of cotton which was kept in a plastic container St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 80 and plastic container was sealed with the seal of DS and same was marked Serial No.2 and taken into possession vide memo Ex.PW1/B. According to the witness, he also lifted the blood from the mattress which was kept in a plastic container which was sealed with the seal of DS and same was marked Serial No.1 and was taken into possession vide memo Ex.PW1/H. The witness has testified that the blood stained jacket, Tshirt and pant were kept in a pullanda which were sealed with the seal of DS and same was marked Serial No.3 and taken into possession vide memo Ex.PW1/E. Witness has further deposed that blood stained bed sheet and mattress were also kept in a pullanda which was sealed with the seal of DS and the same was marked Serial No.4 and taken into possession vide memo Ex.PW1/D. The witness has proved having prepared the sketch of fired cartridges and leads vide Ex.PW22/B. According to him, live cartridges and fired cartridges were measured and fired cartridges and leads were also kept in a pullanda which was sealed with the seal of DS and same was marked Serial No.5 and taken into possession vide memo Ex.PW1/F. Witness has further deposed that one portion of iron almirah where the bullet mark was shown was got cut in 8 x 8 inches by him and the same was kept in a pullanda which was sealed with the seal of DS and same was marked Sr. No.6 and taken into possession vide memo Ex.PW1/C. Witness has further deposed that he made inquiry from public persons of nearby houses and the dead body was sent to BJRM Hospital through Ct. Jagdev. According to the witness on 11.01.2007, he went to Mortuary, St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 81 BJRM Hospital where he recorded statement of witness namely Arvind Mandal and Ranjana Devi regarding identification of the dead body Ex.PW1/G and Ex.PW2/A respectively. Witness has further deposed that he filled form No.25.35(1)(b) which is Ex.PW3/E and he got conducted the postmortem of the dead body. Witness has further deposed that after the postmortem, doctor handed over two pullandas sealed with the seal of FMT BJRM Hospital and one sample seal of FMT BJRM Hospital to him which were taken into possession vide seizure memo Ex.PW10/A. According to the witness they came back to Police Station and case property were deposited in the Malkhana.
(83) Witness has further deposed that on 13.01.2007, he along with SI Anuj Nautiyal and Ct. Radha Krishan went to J.J. Colony for investigations of the case and one eye witness met him in the J.J. Colony. According to the witness the said witness also joined the investigations with them and told him that the accused who was wanted in this case, was sitting at Bus Stand, Ring Road, J.J. Colony and if a raid was conducted, accused would be apprehended on which they proceeded towards the Bus Stand. Witness has further deposed that he then requested public persons to join the investigations but none agreed and at the instance of eye witness, accused Chanderjeet Kumar was apprehended and was arrested vide arrest memo Ex.PW4/A and his personal search of accused was also taken vide memo Ex.PW4/B. According to the witness he interrogated the accused and recorded the disclosure statement of the accused vide St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 82 Ex.PW9/A after which the accused led them to the spot i.e. place of incident and pointed out the place of incident vide memo Ex.PW9/B. Witness has further deposed that thereafter the accused led them to his house i.e. B67, Goela Dairy, Qutub Vihar, Najafgarh, Delhi from where the accused got recovered one pistol made Italian with one magazine containing nine live cartridges, from the iron box in his room. According to the witness on checking of said pistol, one magazine was also found in the pistol and he checked the said magazine and found seven live cartridges in it after which he prepared the sketch of pistol and magazines and one sketch of one live cartridge vide Ex.PW9/C. He has testified that the said articles were kept in a pullanda which was sealed with the seal of DS and same was taken into possession vide seizure memo Ex.PW9/D. According to the witness they came back to Police Station where the case property were deposited in the Malkhana and accused was put inside the lockup and he recorded the statement of the witnesses. According to the witness he tried to trace other accused persons but they could not be traced and he obtained NBWs of other accused persons and also obtained proceedings under Section 82 and 83 Cr.P.C against them. Witness has further deposed that later on the MHCM handed over all exhibits and sample seal to a Constable, whose name he does not recollect and on his instructions and Constable deposited the same in FSL Rohini and after depositing the same, he handed over receipt on RC to MHCM and he recorded the statements of Constable and MHCM in this regard. St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 83 According to the witness after completion of investigations, he filed the charge sheet against the accused in the Court.
(84) The witness has correctly identified the accused Chanderjeet @ Kishan in the Court and has also identified the case property i.e. one full sleeves sweater, one full sleeves jacket, one full sleeves Tshirt and one jeans pant which are Ex.P1, Ex.P2, Ex.P3 and Ex.P4 respectively; one mattress, one bed sheet and one torn polythene sheet which are Ex.P5, Ex.P6 and Ex.P7 respectively; two bullet pieces lifted from the spot which are collectively Ex.P8; one piece of iron almirah which is Ex.P9; one improvised pistol bearing No. N44337 with magazine which are collectively Ex.P13 (Pistol is Ex.P13A and Magazine is Ex.P13B); one spare magazine which is Ex.P14 respectively; twenty three live cartridges and two test fired cartridges and two test fired bullets which are Ex.P15 collectively.
(85) In his cross examination by the Ld. Defence Counsel the witness has deposed that he reached the spot within ten minutes of receiving information/ DD and remained at the spot for about 3½ or 4 hours at that time. According to the witness, he sent the rukka at about 9.20 PM and had not seized any article from the spot before sending the rukka. According to the witness Crime Team reached the spot at about 9.25/9.30 PM and he met Arvind Mandal, brother of deceased at the spot, when he reached there. The witness has admitted that in the PCR Form St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 84 Mark X, the name of informant is mentioned as "Gopal Kumar" and his number is mentioned as "9213498278". Witness has further deposed that he did not join said Gopal Kumar, whose name and number was mentioned in Mark X in investigations of the present case to clarify as to how, he had come to know that one person had been shot dead as recorded in Mark X. Witness has admitted that after the police from the local Police Station reaches the spot of a heinous offence, a continuous feed back is given to District Control Room about the true facts of the case. He has also admitted that in the present case, information was given to District Control Room by SI Anuj Nautial as is mentioned from point A to A1 on Mark X. The witness has also admitted that the information regarding portions B to B1 and C to C1 as mentioned on the back side of Mark X was also given to District Control Room. He has admitted that Sh. Manish Aggarwal, was then DCP of their District but he does not remember, if he had apprised about the facts of the case to Sh. Manish Aggarwal, then DCP and he also does not remember if Sh. Manish Aggarwal had held a press conference pursuant thereto. Witness has denied the suggestion that he and SHO had apprised these facts regarding arrest of the accused from Jaitpur Extension, Badarpur, Delhi to Sh. Manish Aggarwal the then DCP or that the DCP had held a press conference wherein he had stated that the accused was arrested from Badarpur. According to the witness he had not verified from any document about the actual name of accused, his parentage and his address St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 85 in the case. Witness has denied the suggestion that accused was not known with the name of Charanjeet @ Kishan or Kishan @ Charanjeet or the accused was only known by the name of Chanderjeet. He does not remember as to when he added Sections 384, 506, 120B IPC but states that within one or two days after recording the statement of Rejnath. He does not remember, whether he had put his signatures and time on register no. 19, while depositing pullandas with MHCM. According to the witness, he had made efforts to search the accused prior to 13.01.2007 in the area of Saraswati Vihar etc. He is unable to tell within how many kilometers from Police Station Saraswati Vihar, he had conducted search of the accused. He does not remember, whether the said search was conducted by him on his own or he was accompanied by other police officials. He also does not recollect, if he had gone for search after making DD entry and if so, number thereof. Witness has further deposed that after arrest, the accused told his residential address as "B67, Goyala Dairy, Najafgarh, Delhi" only and he had mentioned the same very address of the accused in the arrest memo as was told to him by the accused. According to the witness, the JJ Colony is next to the Police Station Saraswati Vihar but the place of arrest of accused was about one kilometer from the Police Station. Witness has further deposed that he had made DD entry regarding his departure from Police Station on 13.01.2007, but he does not recollect its number. He is unable to tell without refreshing his memory from the judicial file, if he had filed copy St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 86 of the said DD entry along with the charge sheet or not. After refreshing his memory from the Judicial File the witness has deposed that no such DD entry has been placed by him on the record. Witness has further deposed that during the night of 8/9.01.2007, he conducted the investigation at the spot of crime only and had not gone outside the jurisdiction of Police Station Saraswati Vihar. He does not remember, whether they got issued any weapon from the Malkhana before going for search of accused on 13.01.2007 and also does not remember, whether they had gone for the search of the accused, by any vehicle or on foot. He also does not remember the exact time, when they left the Police Station on 13.01.2007 for the search of the accused, but states that it was evening time. Witness has further deposed that they all were in uniform and they had seen the accused from the distance of 20 steps and they all police officials after seeing the accused, jointly ran behind the accused and apprehended him on the spot. According to the witness the accused did not try to run away as he got confused. He has also deposed that there were one or two passengers at the bus stop, but he did not call them to become a witness in the present case. Witness has further deposed that they remained at the place of arrest for about one or two hours. He does not remember whether the arrest memo, personal search memo and disclosure memo were recorded in the handwriting of SI Anuj Nautial or in his own handwriting. According to the witness he had not obtained the signatures of eye witness on the disclosure statement and has explained St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 87 that he might have been relieved before the recording of disclosure statement. Witness denied the suggestion that the alleged eye witness had not signed the alleged disclosure statement as he was not joined the investigation at the time of arrest. He has also denied that all the papers were prepared by him while sitting at the Police Station or signatures of alleged eye witness were obtained in the Police Station on blank papers. Witness has further deposed that they had returned back to the Police Station at about 10:00 or 11:00 PM after conducting the investigation on 13.01.2007. According to the witness, on 13.01.2007, all police officials and the accused left the spot at 7:00 PM and reached at Goyala Dairy at 8:00/8:30 PM by a private vehicle, but he does not remember the make or registration of the said vehicle. According to the witness he did not record any DD entry about their departure in the private vehicle. He does not remember whether any family member of accused was present at his house on 13.01.2007. Witness has further deposed that when they reached at the house of accused, only the door were closed, but there was no lock on the door. He has testified that they remained at the house for about 30 to 45 minutes and thereafter, they left for Police Station. According to the witness he did not call any of the neighbour of the accused at that time. He has further deposed that the accused had disclosed in his disclosure statement that he had kept the pistol and magazine and cartridges in an iron box at his house. After refreshing his memory the witness has explained that this fact regarding pistol and magazine and cartridges in an St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 88 iron box, was not mentioned in his disclosure statement Ex.PW9/A. He does not remember, whether said iron box was locked or not. He has further deposed that there were other articles in the said iron box, but he does not remember, their details and has voluntarily explained that the accused had himself taken out pistol, magazine and cartridges from the iron box. Witness has further deposed that the iron box was of the size of 3 x 2 x 2 feet, approximately and he did not seize the iron box and other other articles found in it nor he made any sketch of said iron box. He does not remember the number of the rooms in the house and the directions of the rooms in the house. Witness has further deposed that the said box was lying in the corner of the room. According to the witness he did not prepare any site plan of the room and the place, where the box was lying in the room nor he prepared any site plan of the room and the place, where the box was lying in the room. Witness has further deposed that there were some other household articles in the room. He does not remember the location of the room in the house, where the box was lying. He has testified that he prepared the sketch Ex.PW9/C of pistol, magazine and cartridges at the spot itself. Witness has further deposed that the said memo was prepared by SI Anuj Nautiyal on his directions. He has also deposed that he did not record statement of any witness at the house of the accused at the time of recovery of pistol, magazine and cartridges. According to the witness he recorded the statement of SI Anuj Nautiyal and Ct. Sobhnath regarding the said recoveries at Police Station St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 89 on the same day. Witness denied the suggestion that on that day, no raid was conducted with SI Anuj Nautiyal and Ct. Sobnath or that all the documents were prepared by him while sitting in the Police Station. According to the witness during the investigation, he came to know that the family of the deceased was not living at house no. D499, Shakurpur, JJ Colony, Delhi. Witness denied the suggestion that the deceased was not of good character or that he used to call the girlfriends at his workshop. Witness has further denied the suggestion that the deceased was in habit of consuming liquor or that he has many enemies in locality. Witness denied the suggestion that wife of deceased was living with witness Arvind Mandal, who was the brotherinlaw of Ranjana (Wife of deceased) and due to this fact, the deceased was living alone or that relations between the witness Arvind and the wife of deceased were not cordial. Witness has also denied the suggestion that during the investigation, he had come to know about the relations of the wife of the deceased with brother of the deceased, which were doubtful or that at the instance of wife and brother of the deceased, he did not conduct a fair investigation and has falsely implicated the accused in the present case. Witness denied the suggestion that the pistol, cartridges and magazine were found by him on the spot on 08.01.2007 before reaching of the crime team or the same were not shown to the crime team at the spot. Witness denied the suggestion that due to this fact, he called the crime team at the belated stage intentionally. Witness has also denied the suggestion that on St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 90 13.01.2007, he had not recorded the statements of the witnesses or the same were recorded by him, later on, just to clear the objections raised by the Prosecution Branch. He has also denied the suggestion that no eye witness was present on the spot on the day of murder or that no statement was given at any time by any of the eye witness to him. He has further denied the suggestion that he had lifted the witness Rejnath or that he was forced to give statement in the case as the eye witness. Witness has also denied the suggestion that the accused was not arrested in the manner and place deposed by him or that he did not make any disclosure statement. Witness further denied the suggestion that no raid was conducted joining the witness Rejnath on 13.01.2007 or that the accused was not arrested at his pointing out. Witness has also denied the suggestion that initially there was a suspicion about the murder over the wife and brother of the deceased, but he did not conduct the investigation on that line. STATEMENT OF ACCUSED/ DEFENCE EVIDNECE:
(86) After completion of prosecution evidence the statement of the accused Chanderjeet @ Kishan was recorded under Section wherein all incriminating evidence was put to him which he has denied. According to the accused Chanderjeet @ Kishan he is innocent and has been falsely implicated in the present case by the police after lifting him from his house at B67, Qutab Vihar, PhaseI, Goela Dairy, Nafajgarh, Delhi.
Though the accused initially stated that he wanted to lead defence St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 91 evidence, yet no witness was examined by the accused in his defence despite being granted an opportunity in this regard. FINDINGS:
(87) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written memorandum of arguments filed by the parties and the evidence on record. I first propose to deal with all the averments made by the various witnesses individually in a tabulated form as under
and later on comprehensively.
Sr. Name of the Details of deposition
No. witness
Public witnesses:
1. Arvind Mandal He is the brother of the deceased Arun Mandal and has
(PW1) deposed on the following aspects:
1. That he along with his brothers Dharam Mandal and Arun Mandal used to run a dental lab at D499, JJ Colony, Shakurpur, Delhi where they used to work from 10:00 AM to 10:00 PM.
2. That on 08.01.2007 between 6.00/6.30 PM Ramesh came to him at his address i.e. at G754, Shakurpur, Delhi and informed him that his brother Arun was lying unconscious in the room on the 3rd Floor D499, JJ Colony, Shakurpur, Delhi.
3. That on this he went there and touched his brother Arun but Arun spoke nothing after which he opened Arun's cloth and his hands got stained with blood.
4. That he saw wounds in Arun's chest and underarm, on which he took his brother to Muni St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 92 Maya Ram hospital where he was declared dead by the doctor.
5. That he brought his brother back to the house and laid him down on the ground floor.
6. That he then informed the police on telephone on which police came and recorded his statement which is Ex.PW1/A.
7. That the police lifted the blood lying on the floor and the blood stained earth sample and put them in a plastic jar and sealed them with surgical tapes and then put the seal on them after which the same was seized vide seizure memo Ex.PW1/B.
8. That the piece of Almirah having bullet mark was also cut by the police and sealed in a pullanda by the police after which it was seized vide seizure memo Ex.PW1/C.
9. That the mattress (gadda) along with chaddar was also taken into police possession by the Investigating Officer after sealing the same vide seizure memo Ex.PW1/D.
10. That the sweater of his brother Arun, black colour TShirt, jacket and jeans pant were also taken into police possession by the Investigating Officer after sealing the same vide seizure memo Ex.PW1/E.
11. That two bullet shells were also seized from the spot by the Investigating Officer after sealing the same into the pullandas vide seizure memo Ex.PW1/F.
12. That dead body of his brother Arun Kumar was taken to Babu Jagjeevan Ram hospital for postmortem and police also made inquiries from Ramesh, Pradeep, Rejnath.
13. That he identified the dead body of his brother in mortuary vide identification statement Ex.PW1/G and after postmortem dead body was handed over to him.
St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 93
14. That the Investigating Officer took the blood sample from the mattress (gadda) at the spot and kept in a jar and sealed it with a seal and then seized the same vide memo Ex.PW1/H.
15. That Pradeep Mandal had told him that about 4042 days prior to the incident Kishan along with his two associates visited his brother Arun and threatened him to give Rs.50,000/ otherwise he would be killed.
16. That the accused Chanderjeet @ Kishan was known to him previously.
The witness has correctly identified the accused Chanderjeet @ Kishan in the court and also identified the case property i.e. one full sleeves sweater Ex.P1, one full sleeves jacket Ex.P2, full sleeves Tshirt Ex.P3 and jeans pant Ex.P4 as belonging to his deceased brother; one mattress Ex.P5, one bed sheet Ex.P6 and one torn polythene sheet Ex.P7; two bullet pieces lifted from the spot which are Ex.P8; piece of iron almira which is Ex.P9; blood stain earth control Ex.P10 and blood sample lifted from the floor which is Ex.P11; blood sample lifted from the bed of the deceased which is Ex.P12.
2. Smt. Ranjana She is the wife of the deceased who has proved that on Devi (PW2) 11.01.2007, she identified the dead body of her husband Arun Kumar in mortuary BJRM hospital vide statement Ex.PW2/A.
3. Rejnath Mandal He is the employee of the deceased and is stated to be an (PW4) eye witness to the incident. He has proved the incident but has turned hostile on the identity of the accused. He has deposed as under:
1. That in the year 2007 he was working in the lab of Arun Mandal at D499, J.J. Colony, Shakurpur, Delhi.
2. That on 8.1.2007 at about 6:00 PM he saw three persons, who caught hold Arun Mandal.St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 94
3. That one of those three persons had fired upon Arun Mandal on which he fell down and all the assailants left the spot and thereafter Arun Mandal was shifted to the hospital by Arvind.
4. That thereafter police came there and lifted him to Police Station Saraswati Vihar where he was confined for about 17 days.
5. He has further deposed that after twothree days of the incident, police officials brought one person and told him to identify that person as the assailant, who fired bullet at Arun Mandal.
The witness has resiled from his earlier statement given to the police on the following aspects:
1. That on the date of incident Ramesh Mandal S/o Ram Avtar Mandal who was resident of his neighbouring Village was working in the Lab at Ground Floor whereas he alongwith Arun Mandal were present at 3rd Floor.
2. That at about 6:00 PM one person who was a resident of Supol District namely Kishan S/o Ram Avtar Mandal whom he knew previously came to the Lab alongwith his two associates, whose name he (Kishan) was telling Sachin (since PO) and Udai.
3. That on seeing all the three persons Arun told them that, "....you have again come..." on which Krishan asked Arun if he was giving money or not on which Arun refused to give any money on which Sachin exhorted saying, "Maar Saale Ko", on which Udai pushed Arun and Kishan took out a pistol from his pant and told Arun that he himself was responsible for his death and said, "Agar Meri Baat Maan Leta To Aaj Tujhe Na Bhugatna Padta.".
4. That thereafter Udai told Arun as to why he was wasting his time and to finish him immediately and Sachin also told Arun that they had already informed him that in case if he does not pay the St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 95 amount then they will not spare him on which Kishan fired two bullets upon the Arun who fell down on the bed.
5. That all the three persons lifted the legs of Arun and kept him on the bed.
6. That Udai told Krishan to kill him (witness) by saying "Ise Bhi Maar De" on which he got terrified and fell on the feet of Kishan and Kishan left him after warning him (witness) not to open his mouth before anyone about the incident (Jo Mai Bahut Dar Gaya Aur Kishan Ke Per Par Liya, phir Krishan Ne Mujhe Kaha ki Aagar Is Ghatna Ke Bare Me Kisi Ke Aage Muh Khola to Tera Bhi Yahi Anjaam Hoga, Jo Arun Ka Hua Hai aur Teeno Wahan Se Chale Gaye).
7. That he sat there for five to seven minutes due to fear and thereafter he went downstairs and told Ramesh that Arun was lying unconscious after which he alongwith Ramesh came upstairs and checked Arun, after which Arvind was called and accordingly Arvind came there and checked the wounds of Arun after stripping his clothes and brought Arun to down stairs and thereafter Arvind and Ramesh took him to the hospital.
8. That after some time they brought back Arun at the spot and made him lie down on the ground floor and thereafter police was called.
9. That till the reaching of the police due to fear, he did not want to disclose anything as all three namely Krishan, Sachin and Udai had threatened him with dire consequences if he would disclose the incident to anyone, they would also kill him.
10. That on 13.1.2007 when he was passing through near Bus Stop, Shakurpur, near Ring Road, he saw accused Krishan S/o Ram Avtar Mandal and when he was going to the Police Station to inform about the same, meanwhile Investigating Officer met him outside the Police Station.St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 96
11. That thereafter he alongwith Investigating Officer and Police Officials reached at Shakurpur Bus Stop at about 4 P.M. where behind the bus stop on the wall of service lane he pointed out Krishan who was sitting on the wall and on seeing the police, Krishan tried to run away but he was overpowered and during the interrogation he (Krishan) disclosed his full and complete name as Chanderjeet Kumar @ Krishan S/o Ram Avtar Mandal, R/o VillageBhimraha, P.O. Bakaur, Police Station & District Supol, Bihar.
12. That the accused also confessed his involvement in the offence and told them that on 8.1.2007, he alongwith his associates Sachin @ Pinku and Udai had committed murder of Arun Mandal in his house Number D499, Shakurpur with a bullet fire and threatened him (the witness).
13. That thereafter accused Chanderjeet @ Krishan was arrested.
The witness Rejnath has, however, admitted his signatures on the arrest memo of the accused which is Ex.PW4/A and the personal search memo of accused which is Ex.PW4/B. He has refused to identify the accused Chanderjeet @ Kishan in the Court.
4. Mohd. Safiq This witness has deposed on the following aspects:
(PW5) 1. That he used to prepare balti, kanastar, almari with the help of iron stripes.
2. That on 8.1.2007 he was called by the police at House No. D499, J.J. Colony, 3rd Floor, Saraswati Vihar and they showed him an almirah.
3. That he observed that on the right door of the almirah there was a hole looking like the mark of the bullet on which the police directed him to cut the piece of that door.
4. That accordingly he had cut the piece of door containing the hole with the help of hammer and cheni and handed over the same to the Investigating Officer.
St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 97 He has identified the piece of door almirah having a bullet mark pit which is Ex.P9.
5. Ramesh Kumar He is also an employee of the deceased but has resiled Mandal (PW6) from his earlier statement given to the police and has deposed on the following aspects:
1. That in the year of 2007, he was working in Dental Laboratory at D499, JJ Colony, Shakur Pur, Delhi.
2. That on 08.01.07 he finished his job in the lab at about 5.00 PM at first floor of the said lab and went away to the market.
3. That on the said date Arvind and Rejnath were working at ground floor whereas Arun Mandal was also working in the same dental lab.
4. That at about 6.15 PM he came to know about the incident on telephone.
5. That somebody called him may be from the lab but he does not remember his name.
6. That the person who informed him told that somebody came to D499, JJ Colony and fired shots on the person of Arun.
7. That when he reached the lab he found Arun on the ground floor and was unconscious at that time.
8. That he noticed some blood on the back of Arun and he remained there for half an hour.
9. That somebody called at 100 number and Police officials came there and first they checked at third floor but he is not aware what they checked.
10. That prior to his reaching at the spot, Arun was removed to Muni Maya Ram Hospital where doctor declared Arun dead.
11. That police made inquiries from him and took him to Police Station.
This witness has resiled from his earlier statement given to the police on the following aspects:
1. That on 08.01.2007 in the evening he was preparing artificial teeth at ground floor in the St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 98 said factory and Pradeep Mandal was also working on the same day with him, went for some work to the market. The
2. That Arund Mandal and Rejnath Mandal were present at third floor of the lab and that Rejnath informed him at about 6.15 PM that Arun was lying unconscious at the third floor, on which he reached at the third floor and found that deceased Arun was lying on the bed and there was no movement in his body and due to fear he immediately informed Arvind, brother of Arun at his house at G754, Shakurpur.
3. That Arvind also reached there and they checked and found that blood was lying on the bed as well as scattered on the back side of Arun.
4. That Arvind removed the cloth of Arun and found that blood was oozing out from the back.
5. That he along with Arvind and Rejnath removed Arun from the third floor to the ground floor and then took him to Muni Maya Ram Hospital where doctor declared him dead.
6. That thereafter they brought deceased Arun from the hospital and his dead body was kept at ground floor and then the police reached there.
7. That police removed the dead body to the hospital in his presence for postmortem.
6. Pradeep Kumar He is also the employee of the deceased and resiled from Mandal (PW7) his previous statement given to the police. He has deposed on the following aspects:
1. That about three years back at D499, JJ Colony, Shakurpur which lab belongs to Arun Mandal (since deceased).
2. That Arun Mandal was the son of his uncle Ram Dev Mandal and about two months he remained at his village in the year 2007.
3. That he received a telephone call at his native place about the murder of Arun Mandal which information was furnished by his Uncle Ram Dev on which they came to Delhi and reached at D St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 99 Block, Shakurpur.
4. That thereafter he attended the funeral of deceased Arun Mandal and remained there for some days and then left for his native place.
5. That he inquired from Ram Dev who was working in the Canteen of the said lab and due to fear he left the job from the lab of deceased Arun because of the murder of Arun.
This witness has resiled from his earlier statement given to the police on the following aspects:
1. That on 08.01.2007 at about 5.00 PM he went to Shakurpur Market and when he returned at 7.30 PM, he came to know that somebody had fired on the person of Arun.
2. That about one and half month prior to the incident when he along with Arun were present at the lab, at that time one person namely Krishan who belongs to village Simrah and used to reside at Najafgarh came to Arun with his two friends and demanded Rs.50,000/ for managing his case pending in Gurgaon on which Arun refused to give him money.
3. That on this Krishan had threatened saying that he (Arun) should not become such a big person because he (accused) had even previously committed an incident of firing at Gurgaon (Tu Paise Kamakar Itna Bada Aadmi Mat Ban, Main Pehle Bhi Gurgaon Mein Goli Chala Chuka Hun).
4. That Kishan further threatened if he (Arun) refused to give money then he would kill him and he further introduced his friends as Sachin @ Chinku who is a Bad Character/ dus numberi and involved in many crimes and further introduced his another friend as Udai who would not take a minute to kill a person and further threatened him to give the money.
5. That when Arun refused to give money, then while leaving, Krishan extended threats to Arun that he would come back within ten days and if he did not St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 100 pay the money then he would kill Arun and thereafter he (witness) informed Arvind about this fact.
6. That the deceased Arun told him about 67 days prior to 08.01.07 Krishan came to him and threatened him with dire consequences.
7. That he had suspicion that Arun was killed by Krishan and his associates.
(The Ld. Predecessor of this Court has made a specific observation on the demeanor of the witness to the extent that the witness was intentionally and deliberately ignoring the questions put by Ld. Addl. PP and not giving proper answers. Witness was directed to specify the two months when he was residing at his village after which the witness deposed that those two months were of summer and while saying so it was again observed by the Ld. Court that the witness was avoiding to give complete and true answers and his facial expression showed that he was under some pressure and threat.) Witness of Medical Record:
7. Dr. Upender He is the Autopsy Surgeon who has proved that on Kishore (PW3) 11.01.2007 he conducted the postmortem on the dead body of Arun Kumar Mandal S/o Ramdev Mandal aged about 30 years vide postmortem report which is Ex.PW3/A. He has proved that there were following external injuries on the body of the deceased:
1. Firearm entry wound of size 0.3 x 0.3 cms with abrasion collar present over the left side middle front of chest placed 6 cm inside horizontally to the left nipple, the projectile going inwards, slightly backwards horizontally into the cavity of the chest piercing the edge of sternum at the four intercoastal margin. Left and right atrium of heart through and through into the right chest cavity, piercing the middle lob of lung and coming out from the chest cavity right side at the anterior axillary line placed 14 cms below and outwards to the right nipple of size 0.5 x 0.5 cms St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 101 and placed 27 cms above the anterior superior iliac point. No singeing, blackening, tattooing present.
2. Firearm entry size 0.3 x 0.3 cms present over the left side chest outer aspect in the anterior axillary line placed 9 cm outwards and downwards to the left nipple, abrasion collar present. The projectile going inside the chest cavity after piercing the skin subcutaneous tissues, third intercoastal space into the parenchyma of left lung, upper middle lower pierces through and through and coming out from the exit wound at the back of the left side chest of size 0.5 x 0.5 cms placed 10 cm below the scapular spine and 5 cm middle to the midline. The direction is inwards, backwards and downwards. No blackening, singeing and tattooing present.
3. Reddish abrasion of size 2 x 0.5 cms present over the middle of forehead.
4. Reddish abrasion of size 1 x 1 cms present over the left side inner middle front of forehead.
The witness has further proved that on internal examination brain was pale, both chest cavities contained about 1.5 litre of fluid and clotted blood, pericardial cavity contained 500 ml of fluid and clotted blood, all internal organs were pale, Stomach was empty and time since death was about Three days.
He has proved having opined that the cause of death in this case was shock due to hemorrhage as a result of antemortem injuries to the multiple internal organs (heart and both lungs) produced by projectiles of rifled fire arm which Injuries were sufficient to cause death in ordinary course of nature. According to the witness he also preserved clothes and blood in gauze piece and both sealed with the seal of the hospital and handed over to the Investigating officer. The witness has proved that prior to postmortem, he received fifteen inquest papers which are Ex.PW1/A, Ex.PW3/B, St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 102 Ex.PW3/C, Ex.PW1/G, Ex.PW2/A, Ex.PW1/H, Ex.PW1/B, Ex.PW1/E, Ex.PW1/D, Ex.PW1/C, Ex.PW3/D and Ex.PW3/E and all these inquest papers were returned with the postmortem report.
FSL Experts
8. Sh. A.K. He is the Assistant Director (Biology), FSL, Rohini, Delhi Srivastava (PW20) who has proved the Biological Report which is Ex.PW20/A according to which blood was detected on exhibits 1, 2, 2A, 3a, 3b, 3c, 3d, 4a, 4b, 7, 8a, 8b and 8c and blood could not be detected on exhibits 4c, 5a, 5b and 6. he has also proved the Serological Report which is Ex.PW20/B according to which human blood of 'O' Group wad detected on exhibits was detected on exhibits 1 (gauze piece), 2 (gauze piece), 3a (full sleeved sweater), 3b (jacket), 3c (jeans pants), 3d (Tshirt), 4a (mattress with cover), 4b (bed sheet), 7 (gauze piece of the deceased), 8a (sandow banian), 8b (under wear) and 8c (black thread piece) whereas Exhibit 2A (broken floor material) failed to show any reaction in relation to Species of Origin and ABO Grouping.
9. Sh. Puneet Puri He is the Senior Scientific Officer (Ballistics) who has (PW21) proved the Ballistic Report which is Ex.PW21/A and has also proved the following aspects:
1. That on 05.09.2007 six sealed parcels, parcel Nos.
3, 5, 6 & 8 were sealed with the seal of AKS, FSL, DELHI, Parcel No. 10 & 11 were sealed with the seal of DS of this present case were received in their Division through the Biology Division of FSL, Rohini.
2. That the seals on the parcels were intact as per the specimen seal.
3. That on opening the parcel no. 3, one full sleeves double sided jacket which was marked as Ex.C1 having three holes, one hole marked as H1 on the left portion of front side, second hole marked as H2 on the left portion of back side and the third hole marked as H3 on the back portion of right sleeves; one full sleeves sweater marked as St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 103 Ex.C2 having four holes, two holes marked as H4 and H5 on the left portion of front side, the third hole marked as H6 on the left portion and H7 on the right portion of backside; one full sleeves round neck Tshirt marked Ex.C3 having four holes, two holes marked as H8 & H9 on the left portion of front side, third hole marked as H10 on the left portion and H11 on the back portion of right sleeves and one grey colour jeans marked as Ex.C4 were taken out.
4. That on opening the parcel No. 5, two 9 mm cartridge cases, one bullet and one deformed bullet were taken out and marked as Ex.EC1, Ex.EC2, Ex. EB1 and Ex.EB2 respectively by him.
5. That on opening the parcel No. 6 one metallic sheet was taken out, marked as Ex. MS1 having a dent mark, marked as DM1.
6. That on opening the parcel No. 8 one while colour baniyan in torn condition, marked as Ex.C5, having a region mark H12 on the front side and a hole mark H13 on the backside and one blue colour underwear marked Ex. C6 were taken out.
7. That on opening the Parcel No. 10, one improvised pistol 9 mm caliber bearing No. N44337 and one spare magazine were taken out and marked as Ex.F1 and Ex.M1 by him.
8. That on opening the Parcel No. 11, twenty five 9 mm cartridges were taken out and marked as Ex.A1 to Ex.A25 by him.
9. That on examination it was found that the improvised pistol marked Ex.F1 was in working order, test fire was conducted successfully by using the two cartridges marked Ex.A1 and Ex.A2, the test fired cartridges cases were marked as TC1, TC2 and the two recovered test fired bullets were marked as TB1 and TB2.
10. That the cartridge cases marked Ex.EC1 and Ex.EC2 were fired empty cartridges and had St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 104 been fired through the improvised pistol marked Ex.F1 since the individual characteristic of firing pin marks present on Ex.EC1, Ex.EC2 and on test fired cartridge case marked TC1 were found identical when examined under the comparison microscope.
11. That the bullets marked Ex.EB1 and Ex.EB2 correspond to the bullets of 9 mm cartridge and had been discharged through the improvised pistol marked Ex.F1 as the individual characteristic of rifling marks present on Ex.EB1, Ex.EB2 and on test fired bullets marked as TB1 and TB2 were found identical when examined under the comparison microscope.
12. That the spare magazine marked Ex.M1 is the magazine of improvised pistol 9 mm caliber like Ex.F1.
13. That the improvised pistol marked Ex.F1 was a firearm.
14. That the cartridges mark Ex.A1 to Ex.A25, cartridge cases marked Ex. EC1, Ex. EC2 and the bullets marked Ex. EB1 and Ex. EB2 were ammunition as defined under the Arms Act, 1959.
15. That from the holes marked H1 to H11, around the region mark H12 and the hole mark H13 and control sample from Jacket marked Ex.C1, sweater marked Ex.C2, Tshirt mark Ex.C3 and baniyan marked Ex.C4, the swab around the holes from the abovesaid clothes were taken.
16. That the same were separately examined by him and report in this regard was prepared by him on 09.10.2007 which is Ex.PW21/B.
17. That after examination the holes marked H1 on the jacket marked Ex.C1; H4 on the sweater marked Ex.C2; H8 on the Tshirt marked Ex.C3 and H12 a region on the baniyan marked Ex.C5, could have been caused by a Cupro Jacketed St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 105 Bullet discharged through a firearm.
18. That no opinion could be given regarding the holes marked H2, H3 on the jacket marked Ex.C1, H5, H6 and H7 on the sweater marked Ex.C2, H9, H10 and H11 on the Tshirt marked Ex.C3 and H13 on the baniyan marked Ex.C5 due to insufficient data.
19. That the dent marked DM1 on the metallic sheet marked as MS1 could have been caused by a Cupro Jacketed Bullet discharged through a firearm.
The witness has correctly identified the case property i.e. one full sleeves sweater, one full sleeves jacket, one full sleeves Tshirt and Jeans pant which are Ex.P1, Ex.P2, Ex.P3 and Ex.P4 respectively; two bullets and two fired cartridge cases as the same which were marked as EB1, EB2, EC1 and EC2 by him, which are collectively Ex.P8; one piece of iron almirah (metallic sheet)which is Ex.P9; one baniyan in torn condition which is Ex.P16; one underwear of blue colour which is Ex.P17; one improvised pistol bearing No. N44337 with magazine which are collectively Ex.P13 (Pistol is Ex.P13A and Magazine is Ex.P13B); one spare magazine which is Ex.P14 respectively; twenty three live cartridges and two test fired cartridges and two test fired bullets which are Ex.P15 collectively.
Police / Official witnesses:
10. HC Satyapal He is a formal witness being the Duty Officer who has (PW8) proved having recorded DD No. 32 copy of which is Ex.PW3/C; computer generated copy of the FIR which is Ex.PW3/B; FIR in his own handwriting, photocopy of which is Ex.PW8/A; endorsement on the rukka which is Ex.PW8/B; DD No.34A copy of which is Ex.PW8/C;
DD No.35A copy of which is Ex.PW8/D and DD No.5A which is Ex.PW8/E. St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 106
11. HC Radha Kishan This witness has joined investigations with SI Anuj (PW9) Nautiyal and Inspector Dharambir. He has deposed on the following aspects:
1. That on 13.01.07 he joined investigation of this case and he along with SI Anuj Nautiyal and Inspector Dharambir Singh and left the Police Station for investigation of this case.
2. That when they reached at the gate of Police Station, Rejnath Mandal met them there and informed that the person who committed the murder at D499, JJ Colony, Shakurpur was present at Shakurpur Bus Stand.
3. That they all along with Rejnath Mandal reached at bus stand of Shakurpur where Rejnath Mandal pointed out towards a person who was sitting near the wall near the bus stand and on seeing them, the said person tried to run away but they apprehend him and on interrogation he disclosed his name as Chanderjeet @ Kishan.
4. That Chanderjeet @ Kishan also confessed his crime about the murder after which he was arrested vide memo Ex.PW4/A, his personal search was conducted vide memo of Ex.PW4/B after which the accused Chanderjeet @ Kishan was thoroughly interrogated and he made his disclosure statement vide Ex.PW9/A.
5. That the accused disclosed that he could get arrested his associates Sachin @ Chinku and Udai and can also get recovered the weapon used in the offence from Goela Dairy, Najafgarh from the house of his father.
6. That accused Chanderjeet @ Kishan also disclosed that he can also point out the place of occurrence and also disclosed that weapons used in the crime were got purchased from Khurja through his associate Sachin.
7. That the accused Chanderjeet @ Kishan also disclosed that in the year 2006 he used this weapon for firing at Gurgaon and in that case his St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 107 brother i.e. son of the maternal uncle was involved and was in the custody whereas he absconded from that place and he was in need of money for pursuing that case and for that reason he demanded money from Arun Mandal but he refused and then he committed murder of Arun Mandal.
8. That the accused then pointed out the place of occurrence at third floor of H. No. D499, JJ Colony, Shakur Pur where the accused along with his associates committed the murder of Arun Mandal, pursuant to which the Investigating Officer prepared pointing out memo vide Ex.PW9/B.
9. That thereafter the accused led them to H. No. B67, PhaseI, Qutub Vihar, Goyala Dairy, Najafgarh in pursuance of his disclosure statement and took out one pistol loaded, one loaded magazine and nine live cartridges after lifting from a box which was lying in the room just near the entrance and produced before the Investigating Officer.
10. That the accused disclosed that these weapons were used in the murder of Arun Mandal on which the Investigating Officer unloaded the pistol by removing the magazine which magazine found containing seven live cartridges whereas the other magazine was having nine live cartridges.
11. That the Investigating Officer prepared sketch of the pistol and magazines and also prepared sketch of one live cartridge and five cartridges from the bottom vide Ex.PW9/C.
12. That the pistol was having engraved words Petro & SROATA Made in Italy and total length of the barrel was 18.6 cm Butt was 10.4 cm and total length was 22.2 cm, both the magazines were having length of 11.5 cm and the width was 3 cm and the length of the cartridge was 2.9 cm and the cartridges recovered out of which 21 cartridges St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 108 having words engraved KF 0 29 MM 2 Z whereas remaining four cartridges one of them having engraved word KF 04 9 MM 2Z, another cartridge having word KF 96 9 MM 2Z, another cartridge KF 93 9MM 2Z and another cartridge having word engraved KF 989MM 2Z.
13. That all the cartridges were having radius of 9 MM at their bottom and both the magazines having engraved words 44337.
14. That the Investigating Officer prepared cloth parcel of pistol and both the magazines and sealed the same with the seal of DS whereas remaining live cartridges were turned into a box and again turned into cloth parcel and sealed with the seal of DS.
15. That the seal after use was handed over to Arun Nautiyal and the case property was taken into possession vide memo Ex.PW9/D.
16. That thereafter they all returned to Police Station along with the accused where the accused was confined in the Lock Up and Investigating Officer deposited the case property with MHC (M).
The witness has correctly identified the accused Chanderjeet @ Kishan in the Court and also identified the case property i.e. one pistol of 9 mm caliber with magazine and one another magazine, the pistol having engraved the words PETRO and SROATA Made in Italy on the barrel and the magazine was having number 44337 which pistol with magazine the witness has identified as the same which were recovered at the instance of Chanderjeet @ Kishan which are collectively Ex.P13; another magazine bearing no. 44337 as the one got recovered by accused Chanderjeet @ Krishan containing nine live cartridges which magazine is Ex.P14; twenty three live cartridges and two used cartridges which are collectively Ex.P15 (two cartridges were used by FSL). The witness has clarified that four cartridges having words KF 02 9 MM 2Z, KF 04 9 M 2Z, St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 109 KF 96 9 MM 2Z, 0K 93 9 MM 2Z and 0K 98 9 MM 2Z and inadvertently he disclosed prior KF instead of 0K about two cartridges and the remaining twenty one cartridges are having same number KF 02 9MM 2Z.
12. HC Jagdev Kumar This witness has deposed on the following aspects:
(PW10) 1. That on 08.01.2007 he received DD No. 32A from Duty Officer regarding firing and murder on which he along with SI Anuj Nautiyal and Ct.
Rajender reached at D4999, JJ Colony, Shakurpur.
2. That there they found a dead body lying at the ground floor smeared with the blood and SI Anuj Nautiyal inspected the dead body.
3. That the dead body was lying towards the left chest and on the right back side they observed a bullet wound.
4. That SI Anuj Nautiyal left them with the dead body and he (SI Anuj Nautiyal) went to third floor.
5. That after some time Crime Team reached at the spot and inspected the spot and photographs were taken.
6. That he was instructed to take the dead body to BJRM hospital for depositing the same in the mortuary and accordingly he went to Mortuary, BJRM Hospital and deposited the dead body and remained on duty at mortuary.
7. That on next day the dead body was identified by wife and brother of deceased and thereafter, postmortem was got conducted after which dead body was handed over to its claimants.
8. That after postmortem two parcels with sample seal were handed over to him containing vests and underwear of deceased and also blood sample of deceased which parcels were sealed with the seal of FMT, BJRM Hospital.
9. That SI Anuj Nautiyal took into possession both parcels and sample seal vide seizure memo Ex.PW10/A. St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 110
10. That he went to Police Station and deposited the parcels in the Malkhana.
11. That the dead body was not tampered till it remained in his custody and SI Anuj Nautiyal recorded his statement.
12. That SI Anuj Nautiyal prepared seizure memo and during all the proceedings Inspector Dharambir Singh, Addl. SHO was also present who had also signed the documents prepared in his presence.
The witness has identified the case property i.e. the baniyan which is Ex.P16, underwear which is Ex.P17 and Tabiz with black thread which is Ex.P18 which were belonging to the deceased.
13. SI Satpal Singh He is the Crime Team Incharge who has proved the (PW11) following aspects:
1. That on 08.01.2007 he received a call from Control Room NW District and after receiving the aforesaid call, he along with his team went to the spot i.e. D499, JJ Colony, Shakurpur where Investigating Officer and SHO along with their staff were already present.
2. That on the ground floor of the said premises, a dead body of male person aged about 2530 years whose name was revealed as Arun Kumar was found lying inside the room.
3. That there were three injuries on the chest of said dead body which injuries were seemed to be caused by firearms/ bullet.
4. That one injury was also seen on the back of dead body and it was also seemed to be caused by firearms/ bullet.
5. That the deceased was wearing white colour baniyan and blue colour underwear.
6. That thereafter he went on the top floor of said premises where one blood stained bedsheet was found on the bed in a room and one black colour Tshirt (baniyan), one sweater (woolen) and two empty shells of cartridges and two bullets were St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 111 also found lying in the said room at the top floor.
7. That the above mentioned Tshirt (baniyan) and sweater were having the bullet marks.
8. That two bullet marks were also seen on the door of an almirah kept in the said room at top floor.
9. That he tried to lift the finger prints from the spot but could not succeed.
10. That Ct. Mahender (Photographer) took the photographs of the spot i.e. ground and top floor of the said premises.
11. That he prepared the Inspection Report which is Ex.PW11/A.
12. That he advised the Investigating Officer to get the dead body preserved in the mortuary and also to lift the exhibits from the spot.
14. HC Mahendra He is the Crime Team Photographer who has deposed on Singh (PW12) the following aspects:
1. That on 08.01.2007, ASI Satpal Singh received a call from Control Room NW District and after receiving the said call, he alongwith other members of team accompanied ASI Satpal to the spot i.e. H. No. D499, JJ Colony, Shakurpur, Delhi.
2. That on reaching the spot, local police from the Police Station was found present there.
3. That dead body of a male was lying on the ground floor and at third floor of said house, one blood stained bed sheet and some clothes were found on the bed.
4. That he took 23 photographs in total from both the floors of the said house at the directions of the Investigating Officer.
5. That after developing the same, he handed over the said photographs to the Investigating Officer which photographs are Ex.PW12/A1 to Ex.PW12/A23 and the negatives of the said photographs are Ex.PW12/B1 to Ex.PW12/B23.St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 112
15. Ct. Surajvir He is a formal witness who has proved that on 19.03.2007 (PW13) he took eleven sealed parcels along with sample seal of FMTBJRM and deposited the same to FSL Rohini.
16. SI Manohar Lal He is a formal witness being the Draftsman who has (PW14) proved having prepared the Scaled Site Plan of the spot of incident which is Ex.PW14/A.
17. Ct. Sidheshwar He is a formal witness being the Special Messenger who Dubey (PW15) has proved that on 8.1.2007, he delivered the copies of FIR to the residence of concerned Ld. MM at Gulabi Bagh, residence of Joint C.P. and at the residence of ACP concerned.
18. HC Rajinder This witness has deposed on the following aspects:
Singh (PW16) 1. That on 8.1.2007, Inspector Dharamvir Singh received DD No. 32A on which he alongwith SI Anuj Nautiyal and Ct. Jagdev accompanied Inspector Dharamvir Singh to B499 JJ Colony, Shakurpur at ground floor of the said house.
2. That they found that one dead body of male person was lying in a room and on inquiry the name of the deceased was revealed as Arun Mandal S/o Ramdev Mandal.
3. That on the body inspection of the said dead body, the injuries of bullets were found on the left side chest, left armpit and on back side of right armpit and on its back.
4. That thereafter, Inspector Dharamvir, SI Anuj Nautiyal and himself went upstairs at third floor of the said house after leaving Ct. Jagdev near the dead body.
5. That in a room at third floor, one bullet was found lying near the door and another bullet was also found near the bed (Palang) and two empty cartridges were also found lying in the said room.
6. That blood smeared clothes i.e. Tshirt and other clothes were also lying on the bed and blood was also lying on the stairs.
7. That bullet shot mark was also seen on the left door of iron almirah which was kept in the said St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 113 room.
8. That one Arvind Kumar brother of deceased also came there and got recorded his statement Ex.PW1/A and on the basis of said statement, Insp. Dharamvir prepared rukka and he took the same to Police Station for registration of the case.
9. That after getting the case registered, he came back to the spot and handed over the original rukka and computerized copy of FIR which is Ex.PW8/A and handed over the same to the Investigating Officer Insp. Dharamvir.
10. That he was directed to remain present outside the house in gali. According to the witness thereafter, he alongwith SI Anuj Nautiyal and Inspector Dharamvir went to B67, Qutub Vihar Phase I, Goela Dairy, Najafgarh, Delhi where the said house was found locked.
11. That the Investigating Officer Insp. Dharamvir Singh made inquiry from the neighbourhood but no clue of Kishan was found and thereafter they came back to Police Station.
19. ASI Ashok Kumar He is a formal witness being the MHCM who has proved (PW17) the following aspects:
1. That on 9.1.2007, Inspector Dharamvir Singh had deposited seven parcels sealed with seal of DS with him and he made entry in register no. 19 vide serial no. 3344, copy of which entries are Ex.PW17/A.
2. That on 11.1.2007, Inspector Dharamvir Singh had again deposited two parcels sealed with seal of FFT BJRM hospital alongwith sample seal with him and he made entry in register no.19 vide serial no. 3352, copy of which entries are Ex.PW17/B.
3. That on 13.1.2007, Inspector Dharamvir Singh had again deposited two parcels sealed with seal of DS with him and he made entry in register no. 19 vide serial No. 3358, copy of which entries are Ex. PW17/C. St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 114
4. That on 19.3.2007, eleven parcels alongwith sample seal were sent to FSL, Rohini through Ct.
Surajvir vide RC No. 90/21/07 and he made entry in register no.19, copy of which entry is Ex.PW17/D.
5. That on the same day, Ct. Suraj Vir handed over the acknowledgment receipt to him regarding depositing the aforesaid parcel at FSL Rohini, the copy of RC No. 90/21/07 is Ex.PW17/E and copy of acknowledgment receipt which is Ex.PW17/F.
6. That on 4.10.2007, Ct. Vijayan handed over the FSL report and the parcels sealed with the seal of FSL and he made entry in register no.19, copy of which is Ex.PW17/G.
7. That on the same day i.e. 4.10.2007, he handed over the FSL report to Insp. Indraj Singh and he made entry in register no.19 copy of which entry is Ex.PW17/H.
8. That as long as the exhibits remained in his possession, he did not tamper with the same and the same remained intact.
20. HC Sahab Singh He has proved that on 22.03.2007 the process under (PW18) Section 82 Cr.P.C qua accused Sachin Pandit (since P.O) was marked to him for execution and accordingly, he went to Khurja, District Bulandshar where he conducted the proceedings in respect of the process under Section 82 Cr.P.C and thereafter, he came back to Delhi.
21. SI Raj Singh This witness from Haryana Police has brought the (PW19) summoned record i.e. FIR No. 464/06 u/s 307/34 IPC and 25/54/59 Arms Act which FIR was registered on 26.07.2006 by ASI Ram Phal, the then Duty Officer against Chanderjit @ Kishan @ Charanjit and after registration of the case, the investigation was assigned to SI Raj Singh. He has proved photocopy of the above said case FIR which is Ex.PW19/A and has also proved that the accused Chanderjeet has been acquitted from the said case.
St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 115
22. SI Anuj Nautiyal This witness has deposed on the following aspects:
(PW22) 1. That on 08.01.2007, DD No. 32A Ex.PW3/C was received that at D499, Shakurpur, Samrat Cinema, SBI Wali Gali, one person had been shot at and the dead body was lying at the spot.
2. That after receiving the said DD, he along with Ct. Jagdev, Ct. Rajender and Inspector Dharambir went to the spot i.e. D499, Shakurpur where they found that one dead body was lying on the ground floor of the aforesaid house and some persons including brother of deceased and employees of deceased were present there.
3. That there were gun shot injuries on the left side chest, right side of the back and from both the arm pits of the body and blood was also found lying on the floor near the dead body and they came to know that the deceased Arun Mandal was residing at third floor and was working in the said house and his job was to manufacture artificial teeth.
4. That Ct. Jagdev was left near the dead body while they all went to the third floor, where the deceased was living and they found that blood was lying on the steps of the stair upto third floor.
5. That on reaching at third floor, when they entered in the room, they found that one bed was lying in the said room and the bedsheet, mattress and clothes of the deceased on the said bed were found lying smeared with blood.
6. That two empty cartridges cases were found lying in the said room i.e. one was lying near the bed and other was lying near the door and they also found two leads in the room.
7. That one bullet mark was also noticed by them on the right side door of the iron Almirah in the room.
8. That he recorded the statement of the brother of deceased namely Arvind which is Ex.PW1/A which was duly attested by Inspector Dharambir Singh.
St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 116
9. That on the basis of the statement of Arvind, he recorded a rukka on the directions of Inspector Dharambir Singh who attested the rukka which is Ex.PW22/A bearing the signatures of Inspector Dharambir at point A.
10. That thereafter the said rukka was sent to Police Station through Ct. Rajender for registration of the case and thereafter, Crime Team was called at the spot.
11. That the Crime Team inspected the spot and took the photographs of the scene of crime from different angles and thereafter the exhibits i.e. blood sample (from the mattress, from the ground floor) and blood stained earth from the ground floor were lifted and kept in three plastic containers which were sealed with the seal of DS and the said containers were taken into possession vide seizure memos Ex.PW1/H and Ex.PW1/B.
12. That the blood stained clothes, which were lying on the bed i.e. one black colour full sleeves T shirt, one sweater of black colour, one jacket of white and black colour and one jeans of gray colour, were also lifted and were converted into a cloth parcel and were sealed with the seal of DS and the parcel was seized vide memo Ex.PW1/F.
13. That the blood stained bed sheet and mattress were converted into a cloth parcel and sealed with the seal of DS which parcel was seized vide memo Ex.PW1/D after which both the leads and empty cartridge cases were also lifted from the spot.
14. That the sketch of the above said leads and cartridge cases was prepared by him on the instructions of Inspector Dharambir Singh which is Ex.PW22/B and the said sketch was attested by Inspector Dharambir Singh.
15. That all the above said leads and empty cartridges cases were kept in one plastic container and were taken into possession vide seizure memo Ex.PW1/F. St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 117
16. That a piece of iron almirah door which had a bullet mark was got cut through one person who was called by the Investigating Officer and the said piece of iron having bullet marks was converted into a cloth parcel and sealed with the seal of DS which parcel was taken into possession vide seizure memo Ex.PW1/C.
17. That the dead body had already been shifted to mortuary of BJRM hospital, prior to lifting of exhibits from the spot through Ct. Jagdev and after registration of FIR, the statements of members of the Crime Team and other witnesses present at the spot were recorded by the Investigating Officer and after recording their statements, they were discharged.
18. That one Rejnath had informed that he had seen the incident and disclosed that accused Kishan, Sachin and Udai had come there at about 6.00 PM and it was the accused Kishan who fired shots at the deceased and the accused persons had also threatened him not to disclose this fact to anyone.
19. That thereafter they went in search of accused Kishan at his house i.e. B67, Qutab Vihar, Phase I, Goela Dairy, Najafgarh, Delhi but since the said premises was found locked.
20. That on 13.01.2007, he along with Ct. Radha Krishan again joined the investigation of the present case with the Investigating Officer Inspector Dharambir at about 04:00 PM and they went in search of the accused Kishan.
21. That when they were coming out of the Police Station, witness Rejnath met them who informed him that he had seen accused Kishan at the bus stop, Shakurpur, near Ring Road on which he also also joined the investigations with them.
22. That they along with Rejnath went at the bus stand on service road, near Ring Road Shakurpur and on reaching there Rejnath pointed out towards one person as Kishan, who was sitting on a wall who St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 118 was apprehended by them and was interrogated during which he confessed his involvement in the present case.
23. That thereafter, accused Kishan was arrested vide arrest memo Ex.PW4/A and his personal search was also conducted vide personal search memo Ex.PW4/B.
24. That the statement of witness Rejnath was recorded after which he was relieved and the accused Kishan was interrogated in detail during which he made disclosure statement, which is Ex.PW4/A.
25. That accused Kishan led them to the spot (place of occurrence) i.e. house no. D499, JJ Colony, Shakurpur (Third floor) and pointed out the room on the third floor, where he had committed the murder pursuant to which a pointing out memo was prepared by the Investigating Officer which is Ex.PW9/B.
26. That accused led the police party at his house i.e. B67, Goela Dairy, Qutab Vihar, PhaseI, Najafgarh, Delhi and from his house, on the ground floor, he got recovered one pistol and attached magazine containing seven live cartridges, one spare magazine containing nine live cartridges and nine live cartridges in loose from one iron box.
27. That both the magazines were unloaded and thereafter, the sketch of the pistol, both the magazine and cartridge were prepared by the Investigating Officer vide Ex.PW9/C.
28. That both the magazine and pistol were sealed in a cloth parcel with the seal of DS, while all the live cartridges (25 in number) were put in a plastic container which container was converted into parcel by pasting surgical tape on it with the seal of DS.
29. That both the parcels were taken into possession vide seizure memo Ex.PW9/E and thereafter, they St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 119 came back to the Police Station with the accused and the case property.
The witness has correctly identified the accused Chanderjeet @ Kishan in the Court and has also identified the case property i.e. one full sleeves sweater, one full sleeves jacket, one full sleeves Tshirt and one jeans pant which are Ex.P1, Ex.P2, Ex.P3 and Ex.P4 respectively; one mattress, one bed sheet and one torn polythene sheet which are Ex.P5, Ex.P6 and Ex.P7 respectively; two bullet pieces lifted from the spot which are collectively Ex.P8; one piece of iron almirah which is Ex.P9; one improvised pistol bearing No. N44337 with magazine which are collectively Ex.P13 (Pistol is Ex.P13A and Magazine is Ex.P13B); one spare magazine which is Ex.P14 respectively; twenty three live cartridges and two test fired cartridges and two test fired bullets which are Ex.P15 collectively.
23. Sh. Sanjay Kumar This witness has proved that on 18.10.2007 the papers the then Addl. and the draft charge sheet of case FIR No. 21/07 dated DCP (PW23) 08.01.2007 under Section 302/384/506/34 IPC & 25/27/54/59 Arms Act, Police Station Saraswati Vihar, were placed before him and after going through the documents placed before him, he was satisfied that accused Chanderjeet Kumar @ Kishan S/o Ram Avtar Mandal had committed offence punishable under Section 25/54/59 Arms Act and accordingly, he granted the sanction under Section 39 Arms Act against the accused Chanderjeet Kumar @ Kishan which is Ex.PW23/A.
24. HC Mahender He is a formal witness being the PCR official who has Singh (PW24) proved that on 08.01.2007 at about 8:15 PM, he received a call from Gopal through his mobile No. 9213498278 that one person received the bullet injury and his dead body was lying at D499, Shakarpur, Rani Bagh, near Samrat Cinema. He has proved having filled the Police Control Room Form No.1 which is Ex.PW24/A.
25. Inspector Inder This witness deposed that on 25.07.2007 case file FIR No. Raj Singh (PW25) 21/07 was entrusted to him for filing of supplementary St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 120 chargesheet after obtaining FSL result. He has proved that he obtained the FSL result and obtained the sanction under Section 39 of Arms Act and after that he filed the supplementary charge sheet in the Court.
26. Inspector He is the Investigating Officer of the present case and has Dharambir Singh deposed on the following aspects:
(PW26) 1. That on 08.01.2007 at about 8:20 PM, on receipt of DD No.32A, he along with SI Anuj Nautiyal, Ct.
Jagdev and Ct. Rajender reached at the spot i.e. House No. D499, J.J. Colony, Shakurpur, Delhi.
2. That dead body of a person namely Arun Mandal was lying on the floor and head of the dead body was towards the South side, legs of the dead body were towards North side and face of the dead body was towards the sky.
3. That he noticed that blood was lying on the stairs upto third floor and he went to the room on third floor where he found that bed was disarrayed, one fired cartridge was lying near the iron almirah and one fired cartridge was lying near the bed and two leads of the cartridges were lying near the door of the room, blood was lying on the bed sheet, mattress and clothes.
4. That he also noticed that there was a bullet mark on the iron almirah. According to the witness, he recorded the statement of Arvind Mandal Ex.PW1/A and thereafter called the Crime Team.
5. That he made his endorsement on the statement of Arvind Mandal Ex.PW22/A and same was handed over to Ct. Rajender for registration of the case.
6. That Crime Team reached at the spot and inspected the spot and Photographer of the Crime Team took the photographs from different angles.
7. That at the instance of complainant Arvind Mandal, he prepared the site plan Ex.PW26/A.
8. That blood was lifted from the ground floor with the help of cotton which was kept in a plastic container and plastic container was sealed with the seal of DS and same was marked Serial No.2 St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 121 and taken into possession vide memo Ex.PW1/B.
9. That he also lifted the blood from the mattress which was kept in a plastic container which was sealed with the seal of DS and same was marked Serial No.1 and was taken into possession vide memo Ex.PW1/H.
10. That the blood stained jacket, Tshirt and pant were kept in a pullanda which were sealed with the seal of DS and same was marked Serial No.3 and taken into possession vide memo Ex.PW1/E.
11. That blood stained bed sheet and mattress were also kept in a pullanda which was sealed with the seal of DS and the same was marked Serial No.4 and taken into possession vide memo Ex.PW1/D.
12. That he prepared the sketch of fired cartridges and leads vide Ex.PW22/B.
13. That empty cartridges and deformed bullets were measured and were also kept in a pullanda which was sealed with the seal of DS and same was marked Serial No.5 and taken into possession vide memo Ex.PW1/F.
14. That one portion of iron almirah where the bullet mark was shown was got cut in 8 x 8 inches by him and the same was kept in a pullanda which was sealed with the seal of DS and same was marked Sr. No.6 and taken into possession vide memo Ex.PW1/C.
15. That he made inquiry from public persons of nearby houses and the dead body was sent to BJRM Hospital through Ct. Jagdev.
16. That on 11.01.2007, he went to Mortuary, BJRM Hospital where he recorded statement of witness namely Arvind Mandal and Ranjana Devi regarding identification of the dead body Ex.PW1/G and Ex.PW2/A respectively.
17. That he filled form No.25.35(1)(b) which is Ex.PW3/E and he got conducted the postmortem of the dead body.
St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 122
18. That after the postmortem, doctor handed over two pullandas sealed with the seal of FMT BJRM Hospital and one sample seal of FMT BJRM Hospital to him which were taken into possession vide seizure memo Ex.PW10/A.
19. According to the witness they came back to Police Station and case property were deposited in the Malkhana.
20. That on 13.01.2007, he along with SI Anuj Nautiyal and Ct. Radha Krishan went to J.J. Colony for investigations of the case and one eye witness met him in the J.J. Colony.
21. That the said witness also joined the investigations with them and told him that the accused who was wanted in this case, was sitting at Bus Stand, Ring Road, J.J. Colony and if a raid was conducted, accused would be apprehended on which they proceeded towards the Bus Stand.
22. That he requested public persons to join the investigations but none agreed and at the instance of eye witness, accused Chanderjeet Kumar was apprehended and was arrested vide arrest memo Ex.PW4/A and his personal search of accused was also taken vide memo Ex.PW4/B.
23. That he interrogated the accused and recorded the disclosure statement of the accused vide Ex.PW9/A after which the accused led them to the spot i.e. place of incident and pointed out the place of incident vide memo Ex.PW9/B.
24. That thereafter the accused led them to his house i.e. B67, Goela Dairy, Qutub Vihar, Najafgarh, Delhi from where the accused got recovered one pistol made Italian with one magazine containing nine live cartridges, from the iron box in his room.
25. That on checking of said pistol, one magazine was also found in the pistol and he checked the said magazine and found seven live cartridges in it after which he prepared the sketch of pistol and magazines and one sketch of one live cartridge St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 123 vide Ex.PW9/C.
26. That the said articles were kept in a pullanda which was sealed with the seal of DS and same was taken into possession vide seizure memo Ex.PW9/D.
27. That they came back to Police Station where the case property were deposited in the Malkhana and accused was put inside the lockup.
28. That he tried to trace other accused persons but they could not be traced and he obtained the NBWs of other accused persons and also obtained proceedings under Section 82 and 83 Cr.P.C against them.
29. That later on the MHCM handed over all exhibits and sample seal to a Constable, whose name he does not recollect and on his instructions and Constable deposited the same in FSL Rohini and after depositing the same, he handed over receipt on RC to MHCM.
30. That after completion of investigations, he filed the charge sheet against the accused in the Court. The witness has correctly identified the accused Chanderjeet @ Kishan in the Court and has also identified the case property i.e. one full sleeves sweater, one full sleeves jacket, one full sleeves Tshirt and one jeans pant which are Ex.P1, Ex.P2, Ex.P3 and Ex.P4 respectively; one mattress, one bed sheet and one torn polythene sheet which are Ex.P5, Ex.P6 and Ex.P7 respectively; two bullet pieces lifted from the spot which are collectively Ex.P8; one piece of iron almirah which is Ex.P9; one improvised pistol bearing No. N44337 with magazine which are collectively Ex.P13 (Pistol is Ex.P13A and Magazine is Ex.P13B); one spare magazine which is Ex.P14 respectively; twenty three live cartridges and two test fired cartridges and two test fired bullets which are Ex.P15 collectively.
St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 124 (88) Coming now to the microscopic evaluation of the evidence against the accused.
Medical Evidence:
(89) The case of the prosecution is that the deceased Arun Mandal had been shot at point blank range with an intention to kill him instantaneously. In this regard the prosecution has placed their reliance on the postmortem report of the deceased and the testimony of Dr. Upender Kishore (PW3) who had conducted the postmortem examination on the dead body of the deceased Arun Kumar Mandal.
(90) Dr. Upender Kishore (PW3) has proved that on 11.01.2007 while posted at BJRM hospital as Junior Specialist, he conducted the postmortem on the dead body of Arun Kumar Mandal S/o Ramdev Mandal aged about 30 years vide Postmortem Report Ex.PW3/A. He has proved that the dead body was brought by Ct. Jagdev of Police Station Saraswati Vihar with alleged history of being found unconscious at B499, Third Floor at about 6.30 PM on 08.02.2007, was taken to Muni Maya Ram hospital, where he was declared brought dead. He has further proved that on examination there were following external antemortem injuries on the body of the deceased:
1. Firearm entry wound of size 0.3 x 0.3 cms with abrasion collar present over the left side middle front of chest placed 6 cm inside horizontally to the left nipple, the projectile goes inwards slightly St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 125 backwards horizontally into the cavity of the chest piercing the edge of sternum at the four intercoastal margin. Left and right atrium of heart through and through into the right chest cavity, pierces the middle lobe of lung and coming out from the chest cavity right side at the anterior axillary line placed 14 cms below and outwards to the right nipple of size 0.5X0.5 cms and placed 27 cms above the anterior superior iliac point. No singeing, blackening, tattooing present.
2. Firearm entry size 0.3 x 0.3 cms present over the left side chest outer aspect in the anterior axillary line placed 9 cm outwards and downwards to the left nipple, abrasion collar present. The projectile goes inside the chest cavity after piercing the skin subcutaneous tissues, third intercoastal space into the parenchyma of left lung, upper middle lower pierces through and through and comes out from the exit wound at the back of the left side chest of size 0.5X0.5 cms placed 10 cm below the scapular spine and 5 cm middle to the midline. The direction is inwards and backwards and downwards. No blackening, singeing and tattooing present.
3. Reddish Abrasion of size 2 x 0.5 cms present over the middle of forehead.
4. Reddish Abrasion of size 1 x 1 cms present over the left side inner middle front of forehead.St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 126
(91) He has also proved having opined that the Cause of Death in this case was shock due to haemorrhage as a result of antemortem injuries to the multiple internal organs (heart and both lungs) produced by projectiles of rifled fire arm which Injuries were sufficient to cause death in ordinary course of nature. Dr. Upender Kishore (PW3) has not been crossexamined by the Ld. Defence Counsel except to the extent that he had not mentioned the holes on the baniyan of the deceased in his postmortem report.
(92) The postmortem report Ex.PW3/A confirms that two shots were fired on the deceased and the fact not only there are entry wounds but also the exit wounds thereby confirming that the shots had been fired from a point blank range. I may observe that both the firearm injuries are present on the left side of chest. The first injury was present over the left side middle front of chest whereas the second injury was present over the left side chest outer aspect in the anterior axillary line. The track of both the injuries show that the directions are inwards, backwards and downwards. Further, there is no blackening, singeing or tattooing. It is apparent from the evidence on record that the incident in question had taken place in the winter months i.e. 8.1.2007 and the deceased at the relevant point of time was wearing woolen clothes including sweater and shirt and as per the FSL Report these clothes had corresponding holes on the same confirming the entry and exit points. The nature of injuries St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 127 show that the shots had been fired at extreme close range perhaps by putting the firearm on or near the chest and that too in quick succession leaving little time for the victim to raise an alarm, thereby confirming that the intent of the assailants was to cause his death. The medical evidence confirms and conclusively establishes that the cause of death was shock due to hemorrhage as a result of antemortem injuries to the multiple internal organs (heart and both lungs) produced by projectiles of rifled firearm which injuries were sufficient to cause death in ordinary course of nature. Further the presence of two abrasion marks on the forehead of the deceased confirms that it was the work of more than one person and perhaps there was some kind of scuffle between the deceased and the assailants before the deceased was shot which aspect finds due confirmation from the testimony of Rejnath Mandal (PW4) who was working in the lab of the deceased and had seen three assailants entering the lab and had caught hold of Arun Mandal out of which one of them had fired upon Arun Mandal.
(93) Therefore, in view of the above, I hereby hold that the medical evidence on record is compatible to the prosecution case. Forensic Evidence:
(94) The case of the prosecution is that after the deceased Arun was shot and his brother Arvind Mandal (PW1) rushed to the spot, he immediately removed the clothes of his brother Arun Mandal and saw the St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 128 wounds on his chest. Thereafter Arvind Mandal rushed his brother Arun to Maya Muni Ram Hospital where Arun was declared dead and thereafter Arvind brought his brother Arun back to the dental lab and informed the police. When the police reached the spot in the presence of Arvind Mandal the various clothes i.e. sweater (Ex.P1), Jacket (Ex.P2), T shirt (Ex.P3) and Jeans Pants (Ex.P4) were lifted and sealed with the seal of DS and then taken in to possession. Further, two bullet shells/ cartridge cases (Ex.P8) were found in the room had also been lifted and seized in the presence of Arvind Mandal (PW1). The mattress (Ex.P5), bed sheet (Ex.P6) and one torn polythene sheet (Ex.P7) have blood stains were also taken into possession. Also, signs of bullet were also noticed on the iron Almirah which piece of iron almirah (Ex.P9) was broken.
This fact finds independent corroboration from the testimony of Mohd. Safiq (PW5) who had broken the piece of almirah and thereafter it was taken into possession. Blood samples were also lifted from the spot i.e. blood stained earth (Ex.P10), blood sample from the floor (Ex.P11) and blood sample from bed (Ex.P12). Here, I may observe that the seizure of two empty cartridges and deformed bullets from the spot of incident vide Ex.PW1/F has been duly proved by Arvind Mandal (PW1), SI Anuj Nautiyal (PW22) and Inspector Dharambir Singh (PW26). Further, the presence of these empty cartridges and deformed bullets at the spot of incident stands established from the testimony of Crime Team Incharge SI Satpal (PW11) and is duly reflected in the photographs Ex.PW12/A1 to St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 129 Ex.PW12/A6 duly proved by HC Mahender (PW12).
(95) Later on the arrest of accused Chanderjeet @ Kishan he got the recovery of firearm along with magazine containing seven cartridges, another magazine containing nine live cartridges and nine live cartridges in loose condition, effected from the house of his father which firearm and cartridges was duly sealed and seized. Thereafter all these exhibits were sent to FSL Rohini for expert opinion. In order to substantiate its case the prosecution has placed its heavy reliance on the testimonies of forensic experts i.e. Assistant Director (Biology) Sh. A.K. Srivastava (PW20) and Ballistic Expert Sh. Puneet Puri (PW21) and the reports given by them.
(96) Coming first to the testimony of Sh. A.K. Srivastava (PW20), he has proved the Biological and Serological Reports which are Ex.PW20/A and Ex.PW20/B. He has proved that on biological examination blood was detected on exhibits 1 (gauze piece), 2 (gauze piece), 2A (broken floor material), 3a (full sleeved sweater), 3b (jacket), 3c (jeans pants), 3d (Tshirt), 4a (mattress with cover), 4b (bed sheet), 7 (gauze piece of the deceased), 8a (sandow banian), 8b (under wear) and 8c (black thread piece). He has also proved that on serological examination, human blood of 'O' Group wad detected on exhibits 1 (gauze piece), 2 (gauze piece), 3a (full sleeved sweater), 3b (jacket), 3c (jeans pants), 3d (Tshirt), 4a (mattress with cover), 4b (bed sheet), 7 (gauze piece of the deceased), 8a (sandow banian), 8b (under wear) and St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 130 8c (black thread piece) whereas exhibit 2A (broken floor material) show no reaction in relation to Species of Origin and ABO Grouping. The above reports prepared by Sh. A.K. Srivastava (PW20) establishes that the blood group of the deceased Arun Mandal was 'O' Group and also establishes the spot of incident.
(97) Coming next to the Ballistic Expert Sh. Puneet Puri (PW21)who has proved that on 05.09.2007 six parcels bearing no. 3, 5, 6 & 8 duly sealed with the seal of AKS, FSL, DELHI; Parcel No. 10 & 11 duly sealed with the seal of DS were received in their Division through the Biology Division of FSL, Rohini. According to the witness the seals on the parcels were intact as per the specimen seal. He has proved deposed that on opening the parcel no. 3 one full sleeves double sided jacket which was marked as Ex.C1 having three holes, one hole marked as H1 on the left portion of front side, second hole marked as H2 on the left portion of back side and the third hole marked as H3 on the back portion of right sleeves; one full sleeves sweater marked as Ex.C2 having four holes, two holes marked as H4 and H5 on the left portion of front side, the third hole marked as H6 on the left portion and H7 on the right portion of backside; one full sleeves round neck Tshirt marked Ex.C3 having four holes, two holes marked as H8 & H9 on the left portion of front side, third hole marked as H10 on the left portion and H11 on the back portion of right sleeves and one grey colour jeans marked as Ex.C4 were taken out. He has also proved that on opening the parcel No. 5 two St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 131 9 mm cartridge cases, one bullet and one deformed bullet were taken out and marked as Ex.EC1, Ex.EC2, Ex. EB1 and Ex.EB2 respectively by him; on opening the parcel No.6 one metallic sheet was taken out marked as Ex. MS1 having a dent mark, marked as DM1; on opening the parcel No. 8 one while colour baniyan in torn condition, marked as Ex.C5, having a region mark H12 on the front side and a hole mark H13 on the backside and one blue colour underwear marked Ex.C6 were taken out; on opening the Parcel No. 10, one improvised pistol 9 mm caliber bearing No. N44337 and one spare magazine were taken out which were marked as Ex.F1 and Ex.M1 by him and on opening the Parcel No. 11 twenty five 9 mm cartridges were taken out and marked as Ex.A1 to Ex.A25 by him.
(98) Sh. Puneet Puri has proved has proved that on examination, it was found that the improvised pistol marked Ex.F1 was in working order, test fire was conducted successfully by using the two cartridges marked Ex.A1 and Ex.A2, the test fired cartridges cases were marked as TC1, TC2 and the two recovered test fired bullets were marked as TB1 and TB2. He has further proved that the cartridge cases marked Ex.EC1 and Ex.EC2 were fired empty cartridges and had been fired through the improvised pistol marked Ex.F1 since the individual characteristic of firing pin marks present on Ex.EC1, Ex.EC2 and on test fired cartridge case marked TC1 were found identical when St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 132 examined under the comparison microscope. He has also proved having opined that the bullets marked Ex.EB1 and Ex.EB2 corresponds to the bullets of 9 mm cartridge and had been discharged through the improvised pistol marked Ex.F1 as the individual characteristic of rifling marks present on Ex.EB1, Ex.EB2 and on test fired bullets marked as TB1 and TB2 were found identical when examined under the comparison microscope. He has further proved that the spare magazine marked Ex.M1 is the magazine of improvised pistol 9 mm caliber like Ex.F1 and the improvised pistol marked Ex.F1 was a firearm; the cartridges mark Ex.A1 to Ex.A25, cartridge cases marked Ex.EC1, Ex.EC2 and the bullets marked Ex.EB1 and Ex.EB2 were ammunition as defined under the Arms Act, 1959. The witness has proved his detailed report in this regard which is Ex.PW21/A. (99) The Ballistic Expert Sh. Puneet Puri (PW21) has also proved that swabs from the holes marked H1 to H11, around the region mark H12 and the hole mark H13 and control sample from Jacket marked Ex.C1, sweater marked Ex.C2, Tshirt mark Ex.C3 and baniyan marked Ex.C4, were taken and were separately examined by him and the report in this regard is Ex.PW21/B. He has proved having opined that the holes marked H1 on the jacket marked Ex.C1; H4 on the sweater marked Ex.C2; H8 on the Tshirt marked Ex.C3 and H12 a region on the baniyan marked Ex.C5 could have been caused by a cupro jacketed St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 133 bullet discharged through a firearm but no opinion could be given regarding the holes marked H2, H3 on the jacket marked Ex.C1, H5, H6 and H7 on the sweater marked Ex.C2, H9, H10 and H11 on the T shirt marked Ex.C3 and H13 on the baniyan marked Ex.C5 due to insufficient data. He has also proved having opined that the dent marked DM1 on the metallic sheet marked as MS1 could have been caused by a cupro jacketed bullet discharged through a firearm. (100) The Ballistic Expert (PW21) has not been crossexamined by the Ld. Defence Counsel at all and hence his testimony has gone uncontroverted. It is these Ballistic Reports which conclusively connects the pistol allegedly got recovered by the accused Chanderjeet @ Kishan with the two empty cartridges recovered from the spot of incident. The Ballistic Reports establishes the following aspects:
➢ That the improvised pistol (Ex.P13) marked Ex.F1 was in working order, test fire was conducted successfully by using the two cartridges marked Ex.A1 and Ex.A2 which test fired cartridges cases were marked as TC1, TC2 and the two recovered test fired bullets were marked as TB1 and TB2.
➢ That the cartridge cases marked Ex.EC1 and Ex.EC2 were fired empty cartridges and had been fired through the improvised pistol marked Ex.F1 since the individual characteristic of firing pin marks present on Ex.EC1, Ex.EC2 and on test fired cartridge case marked TC1 were found St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 134 identical when examined under the comparison microscope.
➢ That the bullets marked Ex.EB1 and Ex.EB2 correspond to the bullets of 9 mm cartridge and had been discharged through the improvised pistol (Ex.P13) marked Ex.F1 as the individual characteristic of rifling marks present on Ex.EB1, Ex.EB2 and on test fired bullets marked as TB1 and TB2 were found identical when examined under the comparison microscope.
➢ That the spare magazine marked Ex.M1 is the magazine of improvised pistol 9 mm caliber like marked Ex.F1 (Ex.P13).
➢ That the improvised pistol marked Ex.F1 (Ex.P13) was a firearm, the cartridges mark Ex.A1 to Ex.A25 (Ex.P15 collectively), cartridge cases marked Ex.EC1, Ex.EC2 and the bullets marked Ex.EB1 and Ex.EB2 (Ex.P8) were ammunition as defined under the Arms Act, 1959.
➢ That the holes marked H1 on the jacket marked Ex.C1; H4 on the sweater marked Ex.C2; H8 on the Tshirt marked Ex.C3 and H12 a region on the baniyan marked Ex.C5 could have been caused by a cupro jacketed bullet discharged through a firearm ➢ That the dent marked DM1 on the metallic sheet marked as MS1 could have been caused by a Cupro Jacketed Bullet discharged through a firearm.St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 135
(101) This being the background, I hereby hold that the forensic evidence on record is compatible to the prosecution case and conclusively establishes that the cartridge cases found at the scene of crime (Ex.P8) were discharged from the projectile (Ex.P13) got recovered by the accused Chanderjeet @ Kishan and hence connects the accused Chanderjeet @ Kishan with the commission of offence.
Motive of Crime and Common Intention:
(102) The case of the prosecution is that both the accused and the deceased were previously known to each other as the deceased Arun Mandal was belonging to the adjoining village as that of accused Chanderjeet @ Kishan (District Supol, Bihar). The accused Chanderjeet @ Kishan was in dire need of money being involved in another case registered against him in Gurgaon (Haryana) in which he was absconding.
Chanderjeet @ Kishan felt that Arun whom he knew previously being from his native place was doing well financially and hence he demanded a sum of Rs.50,000/ from Arun Mandal in order to meet his expenses in the case of Gurgaon. It is alleged by the prosecution that since Arun Mandal had refused to given any amount, the accused Chanderjeet @ Kishan in furtherance of his common intention along with his associates Sachin @ Pandit and Udai had committed the murder of the deceased. (103) I may observe that the Motive has to be gathered from the surrounding circumstances and such evidence should form one of the St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 136 links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is best known to the perpetrator of the crime and not to others. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
(104) Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence. (105) Existence of motive for committing a crime is not an absolute requirement of law but it is always relevant fact, which will be taken into consideration by Courts as it will render assistance to Courts while analysing prosecution evidence and determining guilt of accused. St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 137 [Ref.: IV (2012) SLT 257].
(106) Moreover, in a case where there is clear proof of motive for the commission of a crime, it affords added support to the finding of the court that the accused is guilty of the offence charged with. However, at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone, who knows as to what circumstances prompted him to certain course of action leading to the commission of the crime [Ref.: State of U.P. Vs. Bahu Ram reported in 2000 (4) SCC 515 and Ujjagal Singh Vs. State of Punjab reported in 2007 (14) SCALE 428].
(107) In so far as the aspect of common intention shared by the accused is concerned, I may observe that Section 34 Indian Penal Code has been enacted on the principal of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 138 home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if prearranged or on the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intentions of all" nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in section 34, when an accused is convicted under section 302 read with section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 139 provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy Vs. State of A.P. reported in 1993 Supp (3) SCC 134. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34, it is not necessary to show some over act on the part of the accused. The above position was highlighted in Girija Shankar Vs. State of U.P. reported in 2004(3) SCC 793 and reference in this regard is also being made to the decision of the Delhi High Court in the case of Mohd. Saleem Vs. State, Crl. Appeal No. 484/2011 decided on 31.5.2013 by the Bench headed by Hon'ble Mr. Justice Sanjiv Khanna.
(108) Applying the settled principles of law to the facts of the present case, I may observe that in order to prove the motive the prosecution was placing its reliance on the testimonies of alleged eye witnesses namely Rejnath Mandal (PW4), Ramesh Kumar Mandal (PW6) and Pradeep Kumar Mandal (PW7) but unfortunately they have turned hostile on the identity of the accused. Further, in so far as the incident of Gurgaon is concerned, the same has been duly proved by SI Raj Singh (PW19) from Haryana Police. He has proved that FIR No. 464/06 under Sections 307/34 IPC and 25/54/59 Arms Act was registered on 26.7.2006 at Police Station Udyog Vihar Gurgaon by the then Duty Officer ASI St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 140 Ramphal against the accused Chanderjeet @ Kishan, copy of which FIR is Ex.PW19/A. SI Raj Singh (PW19) has admitted that the accused Chanderjeet @ Kishan has been acquitted in the said case by the court of Sh. Subhash Goel, ASJ, Gurgaon vide order dated 08.08.09. In his disclosure statement the accused Chanderjeet had disclosed that he was involved in the said case of Guragaon along with his cousin (son of his maternal uncle) Ajit. At the relevant point of time Ajit was in the custody of Gurgaon Police whereas Chanderjeet @ Kishan was on run and was absconding and it is for the first time that Chanderjeet @ Kishan had disclosed this fact and the reason as to why he required money and why he had demanded money from Arun Mandal i.e. for meeting the expenses of his case at Gurgaon. It is not disputed by the accused Chanderjeet that he was arrested in that case and also later on acquitted in the said case. I may observe that in a case based on circumstantial evidence, though the absence of motive does not necessarily discredit the prosecution case, yet the existence of motive assumed significance, if the case stands otherwise established by other conclusive circumstances. In the present case on the face of it there was no reason why Chanderjeet @ Kishan would have killed Arun Mandal who was known to him being from the same area and there being no history of animosity except for the fact that he was on the run in Gurgaon case where he was accused of the offence under Section 307 IPC along with his cousin Ajit who was in custody at that time and he required money to meet his litigation expenses and also for himself while St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 141 was running from the police and the victim Arun Mandal who was doing financially well being known to the accused Chanderjeet @ Kishan being from the same District and from the adjoining village, the accused started demanding money which was refused by Arun Mandal on account of which the incident had taken place. The facts of the case speak for themselves. The sole motive of the offence was to extort money under the threat of life and the manner in which it has been committed, confirms that the intention of the accused was to kill the deceased who was running a dental lab in the area who the accused felt was financially well off. Sanction under Section 39 of Arms Act:
(109) I may observe that Sh. Sanjay Kumar (PW23) the then Addl.
DCP, North West District has proved that on 18.10.2007 the relevant papers and the draft charge sheet of case FIR No. 21/07 dated 08.01.2007 under Section 302/384/506/34 IPC & 25/27/54/59 Arms Act, Police Station Saraswati Vihar, were produced before him and after going through the documents placed before him, he was satisfied that the accused Chanderjeet Kumar @ Kishan S/o Ram Avtar Mandal had committed offence punishable under Section 25/54/59 Arms Act. He has proved that accordingly, he granted the sanction under Section 39 Arms Act against the accused Chanderjeet Kumar @ Kishan which is Ex.PW23/A. The sanction so accorded by the Addl. DCP Sh. Sanjay Kumar has not been controverted by the accused at all and hence I hold St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 142 that the prosecution has been able to validly prove the sanction under Section 39 of Arms Act.
Arrest of the accused - Disclosure Statement - Recovery of Weapon of offence:
(110) The case of the prosecution is that the accused Chanderjeet @ Kishan was known to the deceased Arun Mandal being belonging to the same District and of adjoining villages. The accused Chanderjeet @ Kishan along with his cousin Ajit was involved in a case under Section 307 IPC of Police Station Udyog Vihar Gurgaon in which case Ajit was in custody whereas Chanderjeet @ Kishan was on run and he required money to meet his litigation expenses and also for himself while was running from the police. The victim Arun Mandal who was doing financially well and was known to the accused Chanderjeet @ Kishan being from the same District hailing from the adjoining village. The accused started demanding money from Arun Mandal by extending threats to him and by putting him under the instant fear of death. On the date of incident i.e. on 8.1.2007 when the accused Chanderjeet @ Kishan along with his associates Sachin @ Pandit and Udai went to Arun Mandal and again demanded Rs.50,000/ which was refused by Arun Mandal, the accused Chanderjeet @ Kishan committed the murder of Arun Mandal by firing on his chest.
(111) It is also the case of the prosecution that during investigations Rejnath Mandal an employee of the deceased met the Investigating St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 143 Officer and informed that it was Kishan whom he knew previously who had come to the lab along with his associates Sachin and Udai and had killed Arun Mandal. Thereafter efforts were made to trace the accused Chanderjeet @ Kishan but he could not be traced. On 13.1.2007 when HC Radha Krishan (PW9), SI Anuj Nautiyal (PW22) and Inspector Dharambir Singh (PW26) left the Police Station for investigation of this case and when they reached at the gate of Police Station, Rejnath Mandal met them who informed that the person who committed the murder at D499, JJ Colony, Shakurpur was present at Shakurpur Bus Stand on which they all along with Rejnath Mandal reached at bus stand of Shakurpur where Rejnath Mandal pointed out towards a person who was sitting near the wall near the bus stand. On seeing the police team, the said person tried to run away but the police team apprehend him and on interrogation he disclosed his name as Chanderjeet @ Kishan and also admitted his involvement in the crime. The accused Chanderjeet @ Kishan was then arrested vide memo Ex.PW4/A, his personal search was conducted vide memo of Ex.PW4/B after which the accused Chanderjeet @ Kishan was thoroughly interrogated and he made his disclosure statement vide Ex.PW9/A. In his disclosure statement the accused had disclosed that the weapon used in the crime were got purchased by him from Khurja through his associate Sachin and in the year 2006 he used the said weapon for firing at Gurgaon and in that case his brother i.e. son of the maternal uncle was involved and was in the custody whereas he was St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 144 absconding and hence he was in need of money for pursuing that case and for that reason he demanded Rs.50,000/ from Arun Mandal who refused on which he committed murder of Arun Mandal. The accused further disclosed that he could get arrested his associates Sachin @ Chinku and Udai and can also get recovered the weapon used in the offence from Goela Dairy, Najafgarh from the house of his father. Thereafter first of all the accused pointed out the place of occurrence at third floor of H. No. D499, JJ Colony, Shakur Pur where he along with his associates committed the murder of Arun Mandal, pursuant to which the Investigating Officer prepared a pointing out memo vide Ex.PW9/B. The accused Chanderjeet @ Kishan then led the police party to House No. B67, PhaseI, Qutub Vihar, Goela Dairy, Nazafgarh and took out one pistol with magazine containing seven live cartridges, one magazine containing nine live cartridges and nine live cartridges in loose condition from a box which was lying in the room just near the entrance on the corner under the bed. The Investigating Officer then prepared the sketch of the pistol and magazines and also prepared sketch of one live cartridge and five cartridges from the bottom vide Ex.PW9/C. The pistol was having engraved words PETRO & SROATA Made in Italy and total length of the barrel was 18.6 cm Butt was 10.4 cm and total length was 22.2 cm, both the magazines were having length of 11.5 cm and the width was 3 cm and the length of the cartridge was 2.9 cm. The Investigating Officer then prepared the pullandas of the same and seized the pistol and cartridges St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 145 vide memo Ex.PW9/D. (112) Here, I may observe that when the case property (parcel No.
11) was being put to the witness HC Radha Krishan (PW9) an objection was raised by the Ld. Defence Counsel that the same was tampered with since the middle of the envelope was opened and the exhibits could have been taken out. However, it has been observed by the Ld. Predecessor of this Court that the gum in the middle was not fixed. When the envelope was opened by breaking the seals it found to contain one plastic jar bearing case particulars and signatures of the Investigating Officer and hence, it was not possible to tamper the case property and the objection so raised by the defence is thus without any merit.
(113) In order to support its case the prosecution is placing its reliance on the testimonies of HC Radha Krishan (PW9), SI Anuj Nautiyal (PW22) and Inspector Dharambir Singh (PW26). (114) However, before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 146 received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.
(115) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:
1. Anything, state of things, or relation of things, or capable of being perceived by the senses,
2. Any mental condition of which any person is conscious.
(116) It further provides five illustrations as to what would constitute a fact which are as under:
1. That there are certain objects arranged in a certain order in a certain place, is a fact
2. That a man heard or saw something, is a fact.
3. That a man said certain words, is a fact.
4. That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
5. That a man has a certain reputation, is a fact.
(117) A cojoint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 147 difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles". (118) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. KingEmperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under: "......Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......" St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 148
".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S. 27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."
"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.
This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 149 added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"
(119) After considering the settled principles the Hon'ble Apex Court observed as under:
"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 150 actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence. ..."
(120) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 151 Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.
The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence....."
(121) In the said case the Hon'ble Supreme Court further went to explain that:
"..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 152 the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"
(122) In the recent past the Hon'ble Supreme Court has in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 reinforced the above view when it observed that "discovery of fact" should be read with the definition of "fact" as contained in Section 3 of the Evidence Act which defines the "fact" as meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be confirmatory in character guaranteeing the truth of the information given to which facts the police officer had no access earlier which also includes recovery of material object. The Hon'ble Court further observed that so St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 153 much of the information as relates distinctly to the fact thereby discovered is admissible.
(123) Applying the settled principles of law to the facts of the present case, I may observe that in so far as the arrest of the accused Chanderjeet @ Kishan is concerned, HC Radha Kishan (PW9), SI Anuj Nautiyal (PW22) and Inspector Dharambir (PW26) have all deposed about the arrest of accused Chanderjeet @ Kishan from the wall behind the bus stand Shakurpur on the basis of the information given to them by Rejnath Mandal on 13.1.2007 and also about his making a disclosure statement and getting the impugned weapon of offence recovered from the house of his father at H. No. B67, PhaseI, Qutub Vihar, Goela Dairy, Nazafgarh from an iron box lying in a room at the ground floor. They all have been consistent in their deposition as regards the recovery of pistol at the instance of accused and there is nothing on record to discredit their deposition including the testimony of Rejnath Mandal who during his examination in the Court resiled from his earlier statement made to the police to the extent that the accused Chanderjeet @ Kishan was apprehended on his pointed out but has admitted his signatures on the arrest memo and personal search memo of the accused without being able to explain or justify the same. In Khuji Vs. State of M.P. reported in AIR 1991 SC 1853 it was observed by Hon'ble Supreme Court of India that even if a witness has turned hostile, part of his deposition which inspires confidence and has a ring of truth around it can still be relied upon. His St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 154 evidence cannot be treated as effaced or washed off the record altogether. Thus, coming back to the deposition of Rejnath Mandal (PW4) it will be worthwhile to mention that his deposition remained completely unimpeached at the altar of cross examination. A careful perusal of his deposition shows that the entire story of the prosecution regarding the witness Rejnath Mandal having identified the accused and pointed out towards him at Shakurpur Bus Stand and the apprehension of the accused thereafter was not at all a concocted one. Police Party on that day had indeed gone to Shakurpur Bus Stand and apprehended the accused Chanderjeet @ Kishan on his pointing out and prepared the documents of arrest and personal search (Ex.PW4/A and Ex.PW4/B), which memos Rejnath Mandal admits bear his signatures after which he was relieved from the spot and the Investigating Officer then interrogated the accused at length pursuant to which the accused disclosed about the incident and that he could get the weapon of offence recovered. It is evident from the testimonies of police witnesses i.e. HC Radha Kishan (PW9), SI Anuj Nautiyal (PW22) and Inspector Dharambir (PW26) that they had asked public persons to join the proceedings though none agreed. In this background, there can be only two aspects to the deposition of this witness Rejnath Mandal (PW4), that is either Rejnath Mandal has deliberately deviated away from the remaining part of the prosecution story or in fact the proceedings were conducted in the manner in which he has deposed. Certainly there is no reason to conclude that the proceedings St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 155 were in fact conducted in the same manner as stated by him that is that he was lifted by the police and illegally detained for four days and made to sign certain documents and asked to identify the accused as the assailant (which version he has given to the Court for the first time and not having made any complaint to any competent authority in this regard) and it is writ large this witness Rejnath Mandal has deliberately deviated away from the later part of the prosecution story of his having informed the police about the identity of the assailants and also information leading to the arrest of the accused. The reason for me for arriving at such a conclusion is because Rejnath belongs to the same native place as that of the accused Chanderjeet @ Kishan who Rejnath knows is a desperate criminal and does not hesitate to finish anybody who comes in his way and hence in this regard there is no reason to disbelieve the testimonies of police officers i.e. HC Radha Kishan (PW9), SI Anuj Nautiyal (PW22) and Inspector Dharambir (PW26) who have unanimously deposed with regard to the manner in which the accused led them to the house of his father at B67, Qutub Vihar, PhaseI, Goela Dairy, Nazafgarh and got the weapon of offence recovered. Even otherwise, taking the argument of the defence on its face value, the case of the prosecution cannot be made to suffer only because of sheer negligence and carelessness of the police officers in not joining Rejnath Mandal in the interrogation of the accused and for their failure to take Rejnath with them to the actual place of recovery of weapon of offence.
St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 156 (124) In this regard the Hon'ble Apex Court has in the case of State of U. P. Vs. Jagdeo & Others., reported in (2003) 1 Supreme Court Cases 456 and in the case of Rabinder Kumar Pal @ Dara Singh Vs. Republic of India reported in AIR 2011 SC 1436, observed that:
"...... Mere faulty investigations cannot be a ground for acquittal of the accused. For the fault of the prosecution the perpetrators of a ghastly crime cannot be allowed to go scotfree.
(125) Earlier in the case of Ram Bali v. State of Uttar Pradesh reported in (2004) 10 SCC 598, the judgment in Karnel Singh v. State of M.P. reported in (1995) 5 SCC 518 was reiterated and the Hon'ble Apex Court observed that:
"......In case of defective investigation the court has to be circumspect while evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigation officer if the investigation is designedly defective....."
(126) It is writ large from the aforesaid that with the passage of time, the law also developed and the dictum of the Court emphasized that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general.
St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 157 (127) In the recent past the Hon'ble Apex Court (Hon'ble Mr. Justice Swatantra Kumar) in the case of Dayal Singh & Ors. Vs State Of Uttaranchal in Criminal Appeal No.529 of 2010 decided on 3.8.2012 reaffirmed the above principle while placing its reliance on the case of National Human Rights Commission Vs. State of Gujarat reported in (2009) 6 SCC 767 wherein it was observed that:
"......The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of Justice often referred to as the duty to vindicate and uphold the majesty of the law. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 158 possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators...".
(128) Reliance was also placed on the case of State of Karnataka Vs. K. Yarappa Reddy reported in 2000 SCC (Crl.) 61 wherein the Hon'ble Apex Court occasioned to consider the similar question of defective investigation as to whether any manipulation in the station house diary by the Investigating Officer could be put against the prosecution case and observed in Paragraph 19 that:
".........19. But can the above finding (that the station house diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable, should the Court be influenced by the machinations demonstrated by the Investigating Officer in conducting investigation or in preparing the records so unscrupulously? It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. It is well nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and preeminence in criminal trials over the action taken by the investigation officers. Criminal Justice should not be made a casualty for the wrongs committed by the investigating officers in St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 159 the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case.
(129) In the case of Dayal Singh Vs. State of Uttranchal (Supra) it was observed by Hon'ble Mr. Justice Swatantra Kumar that where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained.
The Courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subserved. For truly attaining this object of a fair trial, the Court should leave no stone unturned to do justice and protect the interest of the society as well.
(130) It will be worthwhile to mention again that in so far as the deposition of Rejnath Mandal (PW4) on the manner in which the incident had taken place is concerned, it has remained completely unimpeached at St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 160 the altar of cross examination on the part of accused and the non joining of Rejnath in the interrogation of the accused by the police and in subsequent investigations could also be deliberate in view of the fact that as a matter of experience such witnesses who are neighbours, friends, relatives or otherwise closely associated with accused choose to side with the accused rather than the prosecution and the witness Rejnath being already known to the accused Chanderjeet @ Kishan being from the same native area could not have been trusted in this regard. (131) Therefore, under these circumstances, there is no reason to doubt the deposition of HC Radha Kishan (PW9), SI Anuj Nautiyal (PW22) and Inspector Dharambir (PW26) to the extent that on 13.1.2007 accused Chanderjeet @ Kishan led the police party to the house of his father at B67, Qutub Vihar, PhaseI, Goela Dairy, Nazafgarh and got recovered the impugned pistol along with cartridges from the room on the ground floor, only by virtue of their being police officers. In fact, no substantial contradictions could be pointed out even in the deposition of these police officials by the Ld. Defence counsel which could show that they were deposing falsely in any manner.
(132) In fact it has been argued by the Ld. Defence Counsel that the alleged recovery of the pistol (Ex.P13) at the instance of the accused Chanderjeet @ Kishan is doubtful since no public witness was joined at the time of recovery proceedings despite the availability of the public St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 161 witnesses. In this regard I may observe that the Hon'ble Supreme Court has in numerous cases observed that police officers are competent witnesses. It is common experience that public persons are generally reluctant to join police proceedings. There is general apathy and indifference on the part of public to join such proceedings. This position of law was reiterated in the case of Aslam and Ors. (Mohd.) Vs. State reported in 2010 III AD (Delhi) 133. Further, it was observed by Hon'ble High Court that reluctance of the citizens to join police proceedings is well known and needs to be recognized. It cannot be disputed that public does not want to get dragged in police and criminal cases and wants to avoid them, because of long drawn trials and unnecessary harassment. Similar view was taken in Manish Vs. State, reported in 2000 VIII AD (Scheduled Caste/ Scheduled Tribes (Prevention of Atrocities) Act, 1989) 29 and in the case of A. Bhai vs. State reported in AIR 1989 SC 696, where it was held that we cannot be oblivious to the reluctance of the common man to join such raiding parties organized by the police, least they are compelled to attend police station and Courts umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit.
(133) Moreover, there is no reason to disbelieve testimony of police officials regarding recovery of firearm and live cartridges at the instance of accused Chanderjeet @ Krishan. Their testimonies cannot be rejected St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 162 merely because they happen to be police officers. As observed by the Hon'ble Supreme Court in Tahir Vs. State, reported in 1996 (3) SCC 338, no infirmity attaches to the testimony of police officials merely because they belong to the police force. It was observed in Aner Raja Khima Vs. The State of Saurashtra, reported in AIR 1956 SC 217 that the presumption that a person acts honestly and legally applies as much in favour of police officers as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof.
(134) I may observe that the accused Chanderjeet @ Krishan is a desperate criminal who does not hesitate even for a moment to use force and there is hence a normal hesitance of the public persons to join the investigations particularly the residents of the area who do not want to get themselves involved in the police proceedings. Therefore, the non joining of public witnesses shall not be fatal to the prosecution case, more so when the Ballistic Report Ex.PW21/A establishes the use of this firearm (Ex.P13) so got recovered by the accused in the present crime. (135) I may also observe that the place where the accused Chanderjeet @ Kishan had hidden the pistol was not within the knowledge of the police. What turns on the fact that accused Chanderjeet @ Kishan led the police party to the house of his father at B67, Qutub St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 163 Vihar, PhaseI, Goela Dairy and further to the room on the ground floor where he had hidden the weapon of offence and pointed out the iron box where the firearm was hidden which was not within the knowledge of the police. Thereafter the accused got recovered one pistol of 9 mm caliber having engraved the words PETRO and SROATA Made in Italy on the barrel with magazine containing seven cartridges (two less in the magazine) and another magazine containing nine live cartridges, both magazines bearing no. 44337 and twenty five cartridges (all of 9 mm) which was not in the knowledge of the police previously, which firearm and ammunition so recovered matches with the cartridge cases and leads recovered from the scene of crime as established by the Ballistic Report and when this evidence was put to the accused Chanderjeet @ Kishan he failed to explain as to how he came into possession of this particular firearm. The accused Chanderjeet @ Kishan is the best person who could have offered an explanation with regard to the possession of this firearm and the ammunition which is matching with the cartridge cases found at the spot, without any difficulty (Section 106 of Evidence Act) which he has failed to do.
(136) Now, specifically coming to the disclosure made by the accused and the recoveries pursuant to his disclosure state, for the sake of convenience I am putting the allegations against the accused in a tabulated form as under:
St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 164
S. Name of Disclosure made by the accused Discoveries/ Recoveries No. Accused admissible in evidence u/s. 27 of and witnesses to the Evidence Act and not hit by same Section 25 of Evidence Act
1. Chanderjeet ➢ That on account of his week ➢ The details of the @ Krishan financial conditions he Gurgaon case as S/o Ram planned to extort money from disclosed by the Avtar deceased Arun. accused as FIR No. Mandal ➢ That he came into contact with 464/2006, u/s. 307/34 a criminal of Khurja, UP IPC, PS Udyog Vihar, namely Sachin @ Pandit @ Gurgaon (proved by SI Rinku. Raj Singh - PW19 ➢ That he had taken a pistol and from Haryana Police).
cartridges from Sachin @ ➢ The identity and Pandit. details of the associate ➢ That in July 2006 he along of the accused namely with his cousin Ajit committed Udai and Sachin @ an incident of firing on a Pandit which was not person at Gurgaon. earlier known to the ➢ That in the said case Ajit was police, was discovered apprehended by Gurgaon on account of this Police whereas he was on a disclosure by the run and he had left the house accused Chanderjeet of his father at Goela Dairy. @ Kishan.
➢ That he required money for meeting the expenses of case at Gurgaon and also for securing the release of Ajit.
2. ➢ That Arun Mandal who ➢ This aspect has been belonged to his adjoining confirmed by Arvind native village was running a Mandal who states that dental lab and was financially the employee Pradeep well off and hence he went to told the police about Arun Mandal and demanded the said extortion and Rs.50,000/ from him but that his brother Arun Arun refused. also discussed the ➢ That he informed about the same with him.
same to Sachin who told him that Arun would not give him money and they will have to St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 165 S. Name of Disclosure made by the accused Discoveries/ Recoveries No. Accused admissible in evidence u/s. 27 of and witnesses to the Evidence Act and not hit by same Section 25 of Evidence Act extort money from Arun by threatening him.
➢ That about 1 ½ months prior to the date of incident he along with Sachin and Udai went to Arun Mandal and demanded money from Arun on which he again refused and he threatened Arun to kill if he did not give Rs.50,000/.
➢ That after ten to twelve days he again went to Arun Mandal and demanded money from him but he again refused.
➢ That on 8.1.2007 he along with Udai and Sachin again went to the dental lab of Arun Mandal.
3. ➢ That he was having a pistol ➢ One pistol with with nine live cartridges at that magazine containing time and he knew that Arun seven live cartridges alone would be available at the (Ex.P13), one third floor on which they all magazine containing went to the third floor of the nine live cartridges premises. (Ex.P14) and nine live cartridges were got recovered by the accused from the house of his father at B67, Qutub Vihar, PhaseI, Goela Dairy, Najafgarh.
[Note:The FSL
Report confirms that
St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 166
S. Name of Disclosure made by the accused Discoveries/ Recoveries
No. Accused admissible in evidence u/s. 27 of and witnesses to the
Evidence Act and not hit by same
Section 25 of Evidence Act
the improvised pistol
(Ex.P13) was in
working order; the
empty cartridge cases
(Ex.P8) had been
fired through the
improvised pistol
(Ex.P13) since the
individual
characteristic of
firing pin marks
present on the empty
cartridge cases and
on test fired cartridge
case were found
identical when
examined under the
comparison
microscope; the
deformed bullets
correspond to the
bullets of 9 mm
cartridge and had
been discharged
through the
improvised pistol
(Ex.P13) since the
individual
characteristics of
rifling marks present
on deformed bullets
and on test fired
bullets were found
St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 167
S. Name of Disclosure made by the accused Discoveries/ Recoveries
No. Accused admissible in evidence u/s. 27 of and witnesses to the
Evidence Act and not hit by same
Section 25 of Evidence Act
identical when
examined under the
comparison
microscope; the spare
magazine (Ex.P14) is
the magazine of
improvised pistol 9
mm caliber like
(Ex.P13)].
➢ The magazine which
was inside the Pistol
on recovery when
checked was found to
be having seven live
cartridges i.e. two had
been used which
cartridge cases were
recovered from the
scene of crime and
tallies with the pistol
in the FSL Report.
4. ➢ That at the third floor Arun ➢ Rejnath admits to the
was present along with his manner of incident and
employee Rejnath Mandal also that he is from
who was also belonging to his adjoining village, same
adjoining native village. district as of accused
(District Supol, Bihar)
5. ➢ That he again demanded ➢ Postmortem report
money from Arun Mandal but shows presence of two
he refused on which on the abrasions on forehead
exhortation of Sachin, Udai of deceased confirmed
pushed Arun Mandal. that there was a scuffle
➢ That thereafter on the prior to firing and it
exhortation of Sachin @ was work of more than
Pandit he fired two shots on one person.
St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 168
S. Name of Disclosure made by the accused Discoveries/ Recoveries
No. Accused admissible in evidence u/s. 27 of and witnesses to the
Evidence Act and not hit by same
Section 25 of Evidence Act
the chest of Arun Mandal who
fell on the bed.
➢ That he wanted to finish off
Rejnath Mandal but he fell on
his legs on which he
threatened Rejnath Mandal not
to disclose anything to anyone
or else he would kill him and
thereafter they all fled from
the spot.
(137) It is apparent from the evidence which has come on record
that even before the arrest of accused Chanderjeet @ Krishan the Investigating Agency had been informed that it was the accused Krishan (Chanderjeet) who had threatened the deceased Arun Mandal to kill if he did not pay a sum of Rs.50,000/ to him and was also aware that the crime had been committed by Krishan, Udai and Sachin @ Pandit but it was not known to the Investigating Officer as to Why the accused Chanderjeet was in need of money. It was only when the accused disclosed to the Investigating Officer that he was involved in another case at Gurgaon and he required money for meeting the litigation expenses in the case and also to secure the release of his cousin Ajit, that the Investigating Agency came to know to the same. The details of the Gurgaon case was then disclosed by the accused Chanderjeet @ Kishan and it was then came to be known that he was involved in FIR No. 464/2006, under Section St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 169 307/34 IPC, Police Station Udyog Vihar, Gurgaon (as proved by SI Raj Singh - PW19 from Hayana Police). It was also within the knowledge of the Investigating Agency that the deceased had been fired upon but the details of the firearm used in the crime, from where the accused Chanderjeet @ Kishan had obtained the firearm and where it was concealed was not known. It was only pursuant to the disclosure that the accused Chanderjeet @ Krishan got recovered the pistol (Ex.P13) from the house of his father at B67, Qutub Vihar, PhaseI, Goela Dairy, Nazafgarh along with the magazine containing seven cartridges, another magazine containing nine live cartridges and nine live cartridges and disclosed that it was the same firearm which he had used in the present crime and had purchased the same from one criminal of Khurja, Uttar Pradesh namely Sachin @ Pandit. All the above facts so disclosed by the accused Chanderjeet @ Krishan in his disclosure statement are disclosure of relevant facts and admissible in evidence as contemplated under Section 27 of Evidence Act. The Forensic Evidence on record in the form of Ballistic Report Ex.PW21/A confirms that cartridge cases lifted from the spot were fired through the improvised pistol Ex.P13 got recovered by the accused since the individual characteristic of firing pin and breech marks and the rifle marks present on the empty cartridge cases lifted from the spot and on the test fired cartridge case were identical and matching when examined under the comparison microscope. Further, the deformed bullets recovered from the spot corresponds to the bullets of 9 St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 170 mm cartridge and had been discharged through the improvised pistol (Ex.P13) since the individual characteristic of rifling marks present on the deformed bullets and on test fired bullets were found identical when examined under the comparison microscope.
(138) In view of my aforesaid discussion I hereby hold that the disclosure made by the accused Chanderjeet @ Kishan leading to the recovery of firearm are all incriminating qua the accused and conclusively establishes his involvement in the crime.
Circumstantial Evidence/ Ocular Evidence:
(139) Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspect connected with the offence, there is no reason to reject their testimonies.
(140) The case of the prosecution is that the deceased Arun Mandal was running a dental lab at D499, JJ Colony, Shakurpur, Delhi where his brother Arvind Mandal and other employees including Rejnath Mandal, Ramesh Kumar Mandal and Pradeep Kumar Mandal were also working. The accused Chanderjeet @ Kishan was known to the deceased St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 171 prior to the incident being from the same District i.e. District Supol, Bihar. The deceased was an original resident of village Mohanpur, PO Barhara, PS Marona, District Supoal, Bihar whereas the accused Chanderjeet @ Kishan is an original resident of village Simraha, PO Bakor, District Supol, Bihar i.e. the adjoining village as that of the deceased. The accused Chanderjeet @ Kishan along with his cousin Ajit was involved in a case under Section 307 IPC of Police Station Udyog Vihar Gurgaon in which case Ajit was in custody whereas Chanderjeet @ Kishan was on the run and he required money to meet his litigation expenses and also for himself while he was concealing himself from the police and absconding. The victim Arun Mandal who was doing financially well and was known to the accused Chanderjeet @ Kishan being from the same District i.e. adjoining village, the accused started demanding money from Arun Mandal by extending threats to him and by putting him under the instant fear of death. On the date of incident i.e. on 8.1.2007 the accused Chanderjeet @ Kishan along with his associates Sachin @ Pandit and Udai went to Arun Mandal and again demanded Rs.
50,000/ which was refused by Arun Mandal, the accused Chanderjeet @ Kishan committed the murder of Arun Mandal by firing shots on his chest while his associates Sachin and Udai caught him The incident had been allegedly witnessed by Rejnath Mandal who was working with Arun Mandal but was left by the accused after threatening him not to disclose anything to anybody.
St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 172 (141) In order to prove its case the prosecution has examined Rejnath Mandal (PW4), Ramesh Kumar Mandal (PW6) and Pradeep Kumar Mandal (PW7). The prosecution is also placing its reliance on the testimony of Arvind Kumar (PW1) the brother of the deceased. In so far as the witnesses Rejnath Mandal (PW4), Ramesh Kumar Mandal (PW6) and Pradeep Kumar Mandal (PW7) are concerned, they have not completely supported their earlier versions given by them to the police at the first instance.
(142) Coming first to the testimony of Arvind Mandal (PW1) who is the brother of the deceased. Though he is not an eye witness to the incident but he is the person who first intimated about the incident by the employees of the deceased on which he reached the spot and immediately shifted his brother Arun to Maya Muni Ram Hospital where Arun was declared 'brought dead' on which the body of Arun was brought back and information was given to the police and the FIR was registered on his statement which FIR was registered promptly by 9:30 PM i.e. within three and a half hours of the incident. There is nothing on record to show that any of the employees present at the spot had informed Arvind Mandal of the details of the assailant rather at the time of recording of the statement Arvind Mandal would himself have been in a state of shock to have given the exact details of whatever had transpired. The investigations at the spot of incident had taken place in his presence and he has proved the same and his signatures on the various documents. In his testimony St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 173 Arvind Mandal has corroborated the testimonies of the various police witnesses SI Anuj Nautiyal and Inspector Dharambir Singh regarding taking of photographs, lifting of exhibits including the empty cartridge cases and bullet leads, piece of iron almirah having a bullet mark which portion was cut by Mohd. Safiq (PW5) in his presence. Here, I may note that the presence of bullets and cartridges is established from the Crime Team Report Ex.PW11/A wherein the specifications of the cartridge cases present at the spot with the words 02KF 9MM 2Z inscribed on the same marked K1 and K2 in the photographs and two leads near the bed marked L1 and L2 in the photographs finds a specific mention and the details of these cartridge cases tally with the details mentioned by the Forensic Expert regarding the Examined Cartridges EC1 and EC2 thereby ruling out any swapping/ changing/ tampering of the same at any later stage. I further note that the photographs Ex.PW12/A1 to Ex.PW12/A6 duly proved by HC MahenderPW12 also confirm the presence of the cartridge cases at the time of Crime Team Inspection which was completed by 10:30 PM thereby lending credence to his testimony.
(143) Further, in his testimony in the leading question put to him by the Ld. Addl. PP the witness Arvind Mandal has deposed that it is the accused Chanderjeet who is known to him previously to whom he is referring to as Kishan. He has also stated that it was the employee Pradeep Mandal who had told to him that about 4042 days prior to the incident St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 174 Kishan along with his two associates visited his brother Arun and threatened him to pay Rs.50,000/ and has also identified the accused Chanderjeet in the Court as the person whom he is referring to as Kishan. The relevant portion of his testimony is reproduced as under:
"...... It is correct that Pradeep Mandal had told to me that about 4042 days prior to the incident Kishan along with his two associates visited his brother Arun and threatened him to pay Rs.50,000/ otherwise he would be killed.
Q: Do you know Kishan? (objected to by Ld. Counsel for accused on the ground that witness no where stated in any statement that Kishan was known to him. Objection reserved and will be decided at the time of final arguments) Ans: Kishan is known to me. He is present in court today. Witness as correctly identified the accused by pointing out towards him....."
(144) Further, in his crossexamination Arvind Mandal has given the occupational details of his deceased brother Arun Mandal and other employees working in the lab as under:
"...... I was working with regularly with my brother Arun since the time of my coming to Delhi and I was working with him till his death. Pradeep also used to work with us. I was not paid salary by my brother. My brother used to take care of my needs and needs of my family. I am not aware whether my brother was paying salary to the workers or how much he was paying. I do not know whether any attendance register of workers was being maintained by my brother. I did St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 175 not see any register at any time. Ceramic work was being done at first floor and grinding of metal was being done at the second floor. Ramesh used to do all jobs of ceramic and grinding. Pradeep used to do only grinding metal. There was no fixed hours of our working. Workers used to live in the dental lab......"
(145) He has denied that there was a dispute between his deceased brother and the wife of the deceased because of him (witness). He has also been crossexamined at length with regard to what he had seen and has explained that the empty cartridges had been simultaneously seized by the police while his statement was being recorded there at the spot itself. He has also explained that in his presence the piece of iron almirah with the bullet mark was got cut through one Safiq. I may note that he has also been exhaustively crossexamined on the aspect of the alleged threats which were extended to Arun and he has stood by his version which he had given to the police in this regard and I have observed that in his supplementary statement recorded on 9.1.2007 this aspect of threat finds a specific mention. It is necessary to observe that the details of these threats were not given by the witness in the examination in chief but it was only in the crossexamination by the Ld. Defence Counsel that he explained the details, the relevant portion of which is as under:
"....... I did not lodge any complaint in respect of threat given to Arun Mandal by accused Kishan about 4042 days prior to the above incident. I have no knowledge whether deceased Arun Mandal lodged St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 176 any complaint to the police about the threat given by accused Kishan....."
(146) The Ld. Defence Counsel had put a specific suggestion to the witness Arvind that the accused Chanderjeet was not known as Kishan which Arvind Mandal has denied.
(147) Coming next to the most important witness of the prosecution i.e. Rejnath Mandal (PW4), I may observe that he has supported the version of the prosecution in so far as the manner in which the crime had been committed is concerned but has refused to identify the accused Chanderjeet @ Kishan as the assailant. He has proved that on 8.1.2007 at about 6:00 PM he saw three persons who caught hold of Arun Mandal and one of those persons had fired upon Arun Mandal after which all the assailants left the spot. When crossexamined by the Ld. Addl. PP for the State he has denied having informed the police the names of the assailants as Kishan, Sachin and Udai. He has also denied that he had not given the correct version as regards the details since he had been threatened to kill by the accused Chanderjeet @ Kishan if he discloses the incident to anybody. He has however admitted his signatures on the arrest and personal search memo of the accused which are Ex.PW4/A and Ex.PW4/B. I may observe that all the police witnesses HC Radha Krishan (PW9), SI Anuj Nautiyal (PW22) and Inspector Dharambir Singh (PW26) have corroborated each other on material particulars. What is important is the statement of Rejnath Mandal (PW4) who has resiled from St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 177 his earlier statement in so far as the identification of assailant/ accused is concerned has yet proved the incident and manner in which the crime was committed. I may note that according to the prosecution it was the witness Rejnath Mandal who had actually pointed out the accused Chanderjeet @ Kishan who was apprehended on his information and pointing out but Rejnath Mandal has not supported this version despite his signatures on arrest memo and personal search memo of the accused and the reasons for the same are writ large. He belongs to the same district as that of the deceased and was previously known to the accused Chanderjeet @ Kishan who is a desperate criminal who does not in any manner hesitate to use criminal force on any one. Rejnath Mandal (PW4) in his testimony has admitted that he had seen three persons who had caught hold of Arun Mandal out of whom one had fired upon Arun Mandal while the other two had caught hold of the deceased and also hit him and initially claimed that he could identify all the assailants, however, in the court when the accused was put to him, he refused to identify him as the assailant. In his crossexamination by the Ld. Addl. PP for the State he has admitted that one of the assailant had fired a bullet but has denied having named the accused Chanderjeet @ Kishan whom he had known previously as the person who had come along with his two associates i.e. Sachin and Udai. He has also denied that in his presence it was Sachin (Proclaimed Offender) and Udai who had caught hold of St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 178 Arun Mandal and it was on the exhortation of Sachin and Udai that it was the accused Chanderjeet @ Kishan who had fired two shots on Arun Mandal since Arun had refused to give Rs.50,000/ as demanded to him. He has further denied that on 13.1.2007 he had informed the police that when he was passing through the Bus Stop, Shakurpur near Ring Road he saw accused Krishan on which he informed the police about the same and also pointed out Krishan to the police after which the accused was apprehended by the police in his presence and during his interrogation the accused admitted having committed the offence along with his associates Sachin and Udai, after which the accused was arrested. He has, however, admitted his signatures on the arrest memo Ex.PW4/A and his personal search memo vide memo Ex.PW4/B, though he has denied having signed the above memos after the arrest of accused Chanderjeet @ Krishan but has failed to satisfactorily explain as to how his signatures had come on these documents which he has identified. The only inference which can be drawn is of the presence of the witness Rejnath Mandal at the time of apprehension and arrest of the accused on his identification as proved by HC Radha Kishan, SI Anuj Nautiyal and Inspector Dharambir as Chanderjeet @ Kishan was already known to him previously or else there was no other way how the police could have identified Chanderjeet and I find no reason to disbelieve these police officers. The murder of Arun Mandal was a blind murder in so as the police was concerned and it was only after the employees of the deceased St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 179 particularly the eye witness namely Rejnath Mandal had disclosed the details of the assailants within a few hours of the incident that Police came to know of the same or else there was no reason how the police would have known the identity of the assailants. The statement of Rejnath under Section 161 Cr.P.C. was recorded on 9.1.2007 within a few hours of the incident in which he not only described the manner in which the incident was committed but also the identity of Kishan (known to him previously) and his associates Udai and Sachin (which aspect he has not supported in the Court) and it only pursuant to this, that on the intervening night of 89.1.2010 at about 1:30 AM the investigating team had even gone to the house of Chanderjeet @ Kishan at B67, Qutub Vihar, PhaseI, Goela Dairy, Nazafgarh looking for him (an aspect which has not been disputed by the accused rather admitted by him and put to witness SI Anuj Nautiyal in his crossexamination). This only confirms that the statement made by Rejnath Mandal to the police at the first instance naming the accused Chanderjeet @ Kishan (statement proved by SI Anuj Nautiyal and Inspector Dharambir) is correct or else there was no other way the police could have known of the same and later again joined the investigations on 13.1.2007 when he informed the police about the presence of accused Chanderjeet @ Kishan at Bus Stand Shakur Pur and pointed him out on which the accused was apprehend. Though Rejnath Mandal has resiled from his earlier statement made to the police to the extent that the accused Chanderjeet @ Kishan was apprehended on his St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 180 pointed out but has admitted his signatures on the arrest memo and personal search memo of the accused without being able to explain or justify the same. In this regard reference is being made to the case of Khuji Vs. State of M.P. reported in AIR 1991 SC 1853 wherein it was observed by Hon'ble Supreme Court of India that even if a witness has turned hostile, part of his deposition which inspires confidence and has a ring of truth around it can still be relied upon and his testimony cannot be treated as effaced or washed off the record altogether. While considering the testimony of Rejnath Mandal (PW4) as a whole it would be necessary to observe that his deposition remained completely unimpeached at the altar of cross examination and a careful perusal of his deposition shows that the entire story of the prosecution regarding the witness Rejnath Mandal having identified the accused and pointed out towards him at Shakurpur Bus Stand and the apprehension of the accused thereafter was not at all a concocted one. Police Party on that day had indeed gone to Shakurpur Bus Stand and apprehended the accused Chanderjeet @ Kishan on his pointing out and prepared the documents of arrest and personal search (Ex.PW4/A and Ex.PW4/B), which memos Rejnath Mandal admits bear his signatures after which he was relieved from the spot.
(148) In so far as the witness Ramesh Kumar Mandal (PW6) is concerned, he has never claimed of having seen the incident and it was only when he returned from the market and was on ground floor it was St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 181 Rejnath who disclosed to him of the incident (as per statement under Section 161 Cr.P.C.). However, in the Court he has not supported his earlier version given to the police in this regard and has stated that he came to know of the incident when he was still in the market and then came back. He does not say that he had given information to Arvind Mandal, though Arvind Mandal states that it was Ramesh who gave information to him. He too belongs to the same District as of the accused and the reasons for not supporting the earlier version are apparent. (149) Coming next to the witness Pradeep Kumar Mandal (PW7) who has also not supported his earlier version given to the police of being an eye witness to the incident. However, what is important is the observations made by the Ld. Predecessor of this Court during the examination of the witness wherein it was observed that the witness was intentionally and deliberately ignoring the questions put by the Ld. Addl. PP for the State and was not making proper answers. Further, it was observed by the Ld. Predecessor Court that he was avoiding to given complete and true answers and his facial expressions showed that he was under some pressure or threat. Pradeep has claimed that he attended the funeral of the deceased and remained there for some days after which he left for his native village and has explained that it was due to fear because of the murder of Arun Mandal. Here, I may observe that according to Arvind Mandal (PW1) this witness Pradeep Mandal was the person who had told to him that about 4042 days prior to the incident the St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 182 accused Chanderjeet @ Kishan had come to the lab and demanded a sum of Rs.50,000/ for managing his case pending in Gurgaon on which Arun Mandal refused and thereafter the accused threatened Arun Mandal to kill. Arvind Mandal (PW1) has supported the case of the prosecution to this extent that it was Pradeep Mandal who had informed him about the incident wherein Chanderjeet @ Kishan had threatened Arun Mandal. Pradeep Mandal (PW7) has turned totally hostile and has simply stated that he was not even present in Delhi. I may observe that Pradeep Mandal (PW7) belongs to a poor family of the same District and native place as that of the accused which he admits whereas the accused Chanderjeet @ Kishan is a hardened criminal. Though in his examination in chief Pradeep Mandal denies that due to fear of the accused he was not disclosing the true facts yet a combined reading of his examination in chief and crossexamination would show that he is known to the accused Chanderjeet @ Kishan being from the same native village and even in the crossexamination by the Ld. Defence Counsel a specific suggestion had been put to this witness whether he had met the accused prior to the date of his examination to which the witness has denied, thereby confirming that they were known to each other previously.
(150) One of the defence raised by the accused throughout is that his name is only Chanderjeet and he is not known by the name of Kishan. I may observe that this defence so raised by the accused falls flat in view of the specific identification of the accused Chanderjeet @ Kishan by the St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 183 witness Arvind Mandal. I may observe that the date of incident is 8.1.2007 and within a few hours i.e. intervening night of 89.1.2007 the Investigating Officer recorded the statement of Rejnath Mandal wherein he had named Kishan and in the crossexamination SI Anuj Nautiyal has on a question put by the ld. Defence Counsel not only admitted that they had gone to the house of the accused at B67, Qutub Vihar, PhaseI, Goela Dairy, Najafgarh but has explained that they reached there at about 1:30 AM and found the premises locked (a fact which finds due confirmation from the case diaries written by the Investigating Officer). (151) Ld. Defence counsel has vehemently argued that Smt. Ranjana Devi the wife of the deceased Arun was not in good terms with him and it is evident from her crossexamination that even after the death of her husband, she is now residing with Arvind Mandal and a son was born to her on 14.8.2008 after the death of Arun Mandal on 8.1.2007. In this regard I may observe that Ranjana Devi (PW2) in her cross examination has explained that prior to the this incident she has been residing in the native village and had some differences with her husband Arun Mandal over a property which was sold by him but in so far as the question of relationship between Arun Mandal and Smt. Ranjana are concerned the same is nothing but a figment of imagination of the Ld. Defence Counsel. It is evident from her crossexamination that after the incident she was residing with Arvind Mandal as his wife since her elders and community had asked her to live with Arvind. I may note that the St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 184 family of the deceased belongs to Supol District, Bihar and it is nothing unusual. As a matter of practice existing in various cultural societies after the death of one of the brother, the widow often marries the other brother of the deceased. This aspect cannot be introduced for creating motive on the part of Arvind Mandal (PW1) and his wife where none exists. The circumstantial evidence on record confirms that the accused Chanderjeet @ Kishan was known to the family of the deceased previously being from the adjoining village and was involved in a case at Gurgaon where he was absconding from the police. It independently lends confirmation to the disclosure statement made by the accused Chanderjeet @ Kishan which finds independent corroboration from the testimony of Arvind Mandal (PW1) who has confirmed that the police had recorded the statement of Pradeep Mandal in his presence and Pradeep was the person who had told about the incident of accused Chanderjeet @ Kishan giving threat to Arun Mandal when he refused to give Rs.50,000/ to the accused. (152) This being the background, I hereby hold that though there is no direct ocular evidence to the incident but the circumstantial evidence on record in the form of testimonies of the brother of the deceased (Arvind Mandal) and the employees of the deceased (Rejnath Mandal) coupled with the Forensic Evidence which has come on record in the form of Ballistic Report is a strong pointer towards the guilt of the accused and lends an independent confirmation to the version put forth by the prosecution in this regard.
St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 185 Defence of the accused:
(153) One of the defence raised by the accused throughout is that his name is Chanderjeet @ Charanjeet and he is not known as Kishan who has been named as a suspect in this case and the police has wrongly shown him as Kishan on whom the eye witness had raised a suspicion.
Ld. Addl. PP for the State in this regard has submitted that the testimony of brother of the deceased i.e. Arvind Madnal (PW1) who was previously known to the accused Chanderjeet being from the same native place/ District in Bihar has identified the accused Chanderjeet as Kishan. (154) I have considered the rival contentions and I may observe that the defence so raised by the accused Chanderjeet is devoid of merits since Arvind Mandal (PW1) the brother of the deceased has specifically stated that he knew Kishan and has identified the accused Chanderjeet in the Court as the person whom he referred to as Kishan. He has also explained he knew Chanderjeet @ Kishan since he is belonging to the same native area/ District. Further, he has crossexamination Arvind Mandal has claimed that Chanderjeet had issued threats to his deceased brother as he was demanding Rs.50,000/ from him. The relevant portion of the testimony of Arvind Mandal is as under:
"...... It is correct that Pradeep Mandal had told to me that about 4042 days prior to the incident Kishan along with his two associates visited his brother Arun and threatened him to pay Rs.50,000/ otherwise he would be killed.St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 186
Q: Do you know Kishan? (objected to by Ld. Counsel for accused on the ground that witness no where stated in any statement that Kishan was known to him. Objection reserved and will be decided at the time of final arguments) Ans: Kishan is known to me. He is present in court today. Witness as correctly identified the accused by pointing out towards him....."
(155) Here, I may observe that an objection was raised by the Ld. Defence Counsel that the witness Arvind Mandal has nowhere stated that Kishan was known to him, which objection was reserved to be decided at the state of final arguments. However, at the time of final arguments this objection was not pressed, yet I may observe that the above question put by the Ld. Addl. PP for the State was relevant as the witness Arvind Mandal had deposed to the extent that Pradeep Mandal had told him that about 4042 days prior to the incident, Kishan along with his two associates had visited Arun and threatened him to pay Rs.50,000/. Hence, this being the background, how then was it possible for the prosecution to have ascertained whether this Kishan so referred to by witness Arvind was the same person who is the accused (Chanderjeet) or someone else.
(156) This being the background, I hereby hold that the defence so raised by the accused Chanderjeet @ Kishan is devoid of merits and it stands established that Chanderjeet is the same Kishan who is being referred to by the witnesses particularly by Arvind Mandal. St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 187 Contradictions and Discrepancies:
(157) Ld. Defence Counsel has pointed out various contradictions and discrepancies in the testimonies of the various prosecution witnesses with regard to the mode of transport used by the police officers to reach to the spot and the route taken by them; the dimensions of the room where the incident had taken place; locations of the places where the empty cartridges and deformed bullets were found; time taken during conducting the various proceedings, time of the incident, who all were present at the time of the incident, whether the accused was previously known to the public witnesses particularly Pradeep and also with regard to the words engraved on the cartridges got recovered by the accused. It is argued that the above contradictions and discrepancies are material benefit of which should be given to the accused.
(158) On the other hand the Ld. Addl. PP for the State has vehemently argued that the contradictions as pointed out by the Ld. Defence Counsel are immaterial and would not be fatal to the prosecution case.
(159) I have considered the rival contentions and I may observe that in the case of State of H.P. Vs. Lekhraj and another reported in JT 1999 (9) SC 43 it was observed by the Hon'ble Supreme Court that: "......In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 188 of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.........
.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial."
(160) Further, in the case of Surender Singh Vs. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under : ".......It is wellestablished principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity...."
(161) As far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish v.State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has held that when the discrepancies are comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also, in the case of State of Rajasthan Vs. Kalki, reported in (1981)2 SCC 752 it has been held that in the depositions of witnesses there are St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 189 always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
(162) Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally nondiscrepant. Courts have to bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. Too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
(163) The Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. The observations made in the case of Tehsildar Singh Vs. State of UP reported in AIR 1959 SC 1012 were later on reaffirmed by the Hon'ble Supreme Court in the cases of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1) and Leela Ram Vs. St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 190 State of Haryana reported in AIR 19997 SC 3717, wherein the Hon'ble Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses:
(a) While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
(b) If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
(c) When eye witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 191
(d) Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
(e) Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
(f) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(g) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(h) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(i) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 192 of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(j) In regard to exact time of an incident or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation and one cannot expect people to make very precise or reliable estimates in such matters.
Again it depends on the timesense of individuals which varies from person to person.
(k) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(l) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
(m) A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contraction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 193 extent it would not be helpful to contradict that witness. (164) It should be remembered that human behaviour varies from person to person and different people react and behaved differently in a different situation. How person can behave in a particular situation cannot be predicted. (Ref.: State of UP Vs. Devender Singh reported in AIR 2009 SC 3690).
(165) Applying the settled principles of law to the facts of the present case, it is evident that the incident in question had taken place in a quick succession and had taken everyone by surprise. It is natural that the witnesses could not have anticipated the incident and their mental faculties cannot be expected to be attuned to absorb the minute details. In so far as the discrepancies in the testimonies of the various police witnesses are concerned with regard to the timings, presence of a particular police official at a particular time, storeys of the house of the accused etc. I am of the considered view that the same are too immaterial and irrelevant as it is the evidence of the witnesses regarding the commission of the offence by the accused which is more important than the investigation conducted. Further, in so far as the discrepancy on the words mentioned on the cartridges got recovered by the accused, I may observe that the witness HC Radha Kishan (PW9) has himself clarified inadvertently he had stated that words 'KF' were engraved on the cartridges instead of '0K' about two cartridges and the remaining twenty one cartridges were having the same number i.e. KF 02 9MM 2Z. Even St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 194 otherwise, the alleged contradictions are not fatal to the prosecution case in any manner as the same relate to the investigation including going of the police officials to the house of the accused etc. Merely due to the contradictions in the evidence regarding investigation or even if there is faulty investigation, the same do not absolve the accused of his liability as it is the evidence of the material and star witnesses which is more important than the evidence of the witnesses of the investigation (Ref. Rabinder Kumar Pal @ Dara Singh Vs. Republic of India reported in AIR 2011 SC 1436).
(166) This being the background, I hereby hold that the contradictions and discrepancies so pointed out by the Ld. Defence Counsels are immaterial and would not be fatal to the prosecution case. Charges Established:
(167) Initially on the basis of the primafacie material placed on record, charges under Sections 302/387/506/34 Indian Penal Code and under Sections 27 of Arms Act have been settled against the accused Chanderjeet @ Kishan by the Ld. Predecessor of this Court.
(168) Now, on the basis of the evidence which has come on record in the form of oral testimonies of the various witnesses, forensic report, medical report and other circumstantial evidence I hereby hold that the motive of the offence is monetary gain but in so far as the charges under Sections 506 and 387 Indian Penal Code are concerned, though the St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 195 material on record confirms the existence of an element of threat and extortion but in so far as the same being proof beyond reasonable doubt, the prosecution has not been able to prove and establish the aspect of incident of extortion and threat to the deceased by the accused Chanderjeet @ Kishan beyond reasonable doubt and hence benefit of doubt is being to the accused who is acquitted of the charges under Sections 506 and 387 Indian Penal Code.
(169) However, in so far as the charge under Section 302 Indian Penal Code and Section 27 of Arms Act are concerned, the material on record is sufficient to conclude that the accused Chanderjeet @ Kishan in furtherance of his common intention with accused Sachin @ Pandit (Proclaimed Offender) and Udai (not arrested) had committed the murder of Arun Mandal on 8.1.2007 at D499, Third Floor, JJ Colony, Shakur Pur, Delhi for which the accused Chanderjeet @ Kishan is hereby held guilty of the offence under Section 302 Indian Penal Code and also under Sections 27 of Arms Act.
FINAL CONCLUSIONS:
(170) In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 196
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(171) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. On the basis of evidence on record the following aspects stand established:
➢ That the deceased Arun Kumar Mandal along with his brothers Dharam Mandal and Arvind Mandal were running a Dental Lab at D499, JJ Colony, Shakurpur, Delhi which property is constructed upto three floors (proved by Arvind Mandal).St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 197
➢ That Rejnath Mandal, Ramesh Kumar Mandal and Pradeep Kumar Mandal were employed at the above dental lab (proved by Arvind Mandal, Rejnath Mandal, Pradeep Kumar and Ramesh Kumar).
➢ That the accused Chanderjeet @ Kishan was known to Arun Mandal and his family hailing from the adjoining villages of the same district i.e. District Supol, Bihar (proved by Arvind Mandal).
➢ That the accused Kishan had demanded a sum of Rs.50,000/ from the deceased who refused to given the same on which threats was executed by Kishan to the deceased Arun Mandal (proved by Arvind Mandal).
➢ That on 08.01.2007 at about 6.006.30 PM Ramesh came to Arvind Mandal at his address i.e. at G754, Shakurpur, Delhi and informed him Arun was lying unconscious in the room on the 3rd Floor D499, JJ Colony, Shakurpur, Delhi (proved by Arvind Mandal).
➢ That Arvind Mandal went there and saw wounds in the chest and underarm of Arun Mandal, on which he took his brother to Muni Maya Ram hospital where he was declared dead by the doctor (proved by Arvind Mandal).
➢ That Arvind Mandal then brought his brother Arun Mandal back to the house and laid him down on the ground floor and also informed the police on telephone (proved by Arvind Mandal).
➢ That pursuant to the said information Inspector Dharambir, SI Anuj Nautiyal, Ct. Jagdev and Ct. Rajender reached at the spot where St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 198 they found the dead body of Arun Mandal lying on the ground floor (proved by Inspector Dharambir, SI Anuj Nautiyal, Ct. Jagdev and Ct. Rajender).
➢ That thereafter the Investigating Officer went to the room on third floor where they found that the bed was disarrayed, one fired cartridge was lying near the iron almirah and one fired cartridge was lying near the bed and two leads of the cartridges were lying near the door of the room, blood was lying on the bedsheet, mattress and clothes and there was a bullet mark on the iron almirah (proved by Inspector Dharambir, SI Anuj Nautiyal, HC Rajender and Crime Team Incharge SI Satpal).
➢ That the statement of Arvind Mandal the brother of deceased Arun Mandal was recorded on the basis of which the present FIR was registered (proved by Inspector Dharambir, SI Anuj Nautiyal, HC Rajender and HC Satyapal).
➢ That Crime Team was called at the spot and the spot of incident was got inspected and photographed by the Crime Team (proved by Inspector Dharambir, SI Anuj Nautiyal, SI Satpal and HC Mahendra).
➢ That the various exhibits i.e. blood samples, blood from the mattress, blood stained jacket, Tshirt and pant of the deceased, blood stained bed sheet and mattress, fired cartridges and leads were taken in to possession (proved by Arvind Mandal, Inspector St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 199 Dharambir and SI Anuj Nautiyal).
➢ That the portion of iron almirah where the bullet mark was shown was got cut and was also taken into possession (proved by Arvind Mandal, Mohd. Safiq, Inspector Dharambir and SI Anuj Nautiyal).
➢ That one Rejnath an employee of the deceased had informed the Investigating Officer on 9.1.2010 (day next to the incident) that he had seen the incident and disclosed that accused Kishan, Sachin and Udai had come at the spot at about 6.00 PM and it was the accused Kishan who fired shots at the deceased and the accused persons had also threatened him not to disclose this fact to anyone (proved by SI Anuj Nautiyal).
➢ That police also went in search of accused Kishan at his house i.e. B67, Qutab Vihar, PhaseI, Goela Dairy, Najafgarh, Delhi but since the said premises was found locked hence they returned back (proved by SI Anuj Nautiyal and not disputed by accused who in the crossexamination of SI Anuj Nautiyal has questioned him about the same).
➢ That during investigations on 13.01.07 Inspector Dharambir Singh, SI Anuj Nautiyal and HC Radha Kishan left the Police Station for investigation of this case and met Rejnath Mandal at the gate of Police Station who informed that the person who committed the murder at D499, JJ Colony, Shakurpur was present at Shakurpur Bus Stand (proved by Inspector Dharambir Singh, SI Anuj Nautiyal St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 200 and HC Radha Kishan).
➢ That the police team along with Rejnath Mandal reached at bus stand of Shakurpur where Rejnath Mandal pointed out towards a person who was sitting near the wall near the bus stand and on seeing them, the said person tried to run away but the police team apprehend him and on interrogation he disclosed his name as Chanderjeet @ Kishan (proved by Inspector Dharambir Singh, SI Anuj Nautiyal and HC Radha Kishan).
➢ That Chanderjeet @ Kishan confessed about his involvement in the crime after which he was arrested and his personal search was conducted after which the accused Chanderjeet @ Kishan was thoroughly interrogated and he made his disclosure statement (proved by Inspector Dharambir Singh, SI Anuj Nautiyal and HC Radha Kishan).
➢ That the accused Chanderjeet @ Kishan disclosed that the weapon used in the crime were got purchased from Khurja through his associate Sachin (proved by Inspector Dharambir Singh, SI Anuj Nautiyal and HC Radha Kishan).
➢ That the accused Chanderjeet @ Kishan also disclosed that in the year 2006 he used this weapon for firing at Gurgaon and in that case his brother i.e. son of the maternal uncle was involved and was in the custody whereas he absconded from that place and he was in need of money for pursuing that case and for that reason he St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 201 demanded money from Arun Mandal but Arun refused on which he committed murder of Arun Mandal (proved by Inspector Dharambir Singh, SI Anuj Nautiyal and HC Radha Kishan).
➢ That the accused pointed out the place of occurrence at third floor of H. No. D499, JJ Colony, Shakur Pur where he along with his associates committed the murder of Arun Mandal, pursuant to which the Investigating Officer prepared a pointing out memo (proved by Inspector Dharambir Singh, SI Anuj Nautiyal and HC Radha Kishan).
➢ That the accused led the police party to H. No. B67, PhaseI, Qutub Vihar, Goela Dairy, Najafgarh in pursuance of his disclosure statement and took out one pistol loaded, one loaded magazine and nine live cartridges after lifting from a box which was lying in the room just near the entrance and produced before the Investigating Officer (proved by Inspector Dharambir Singh, SI Anuj Nautiyal and HC Radha Kishan).
➢ That the Investigating Officer prepared a sketch of the pistol and magazines and also prepared a sketch of one live cartridge and five cartridges from the bottom (proved by Inspector Dharambir Singh, SI Anuj Nautiyal and HC Radha Kishan).
➢ That the pistol, magazine and live cartridges were taken into possession and were seized (proved by Inspector Dharambir Singh, SI Anuj Nautiyal and HC Radha Kishan).St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 202
➢ That accused Chanderjeet @ Kishan was involved in a case bearing FIR No. 464/06 under Section 307/34 IPC at Police Station Udyog Vihar, Gurgaon (proved by SI Raj Singh).
(172) It stands established that the sole motive of the offence was to extort money under the threat of life and the manner in which it has been committed, confirms that the intention of the accused was to kill the deceased who was running a dental lab in the area who the accused felt was financially well off.
(173) The Medical Evidence on record and the nature of injuries show that the shots had been fired from extremely close range perhaps by putting the firearm on or near the chest and that too in quick succession leaving little time for the victim to raise an alarm, thereby confirming that the intent of the assailants was to cause his death. The medical evidence also confirms and conclusively establishes that the cause of death was shock due to hemorrhage as a result of antemortem injuries to the multiple internal organs (heart and both lungs) produced by projectiles of rifled firearm which injuries were sufficient to cause death in ordinary course of nature. Further the presence of two abrasion marks on the forehead of the deceased confirms that it was the work of more than one person and that there was some kind of scuffle between the deceased and the assailants before the deceased was shot.
(174) The forensic evidence on record is also compatible to the prosecution case and conclusively establishes that the cartridge cases St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 203 found at the scene of crime were discharged from the projectile (Ex.P13) got recovered by the accused Chanderjeet @ Kishan and hence connects the accused Chanderjeet @ Kishan with the commission of offence.
(175) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
(176) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
(177) In view of the above, I hereby hold that the motive of the offence is monetary gain but in so far as the charges under Sections 506 St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 204 and 387 Indian Penal Code are concerned, though the material on record confirms the existence of an element of threat and extortion but in so far as the same being proof beyond reasonable doubt, the prosecution has not been able to prove and establish the aspect of incident of extortion and threat to the deceased by the accused Chanderjeet @ Kishan beyond reasonable doubt and hence benefit of doubt is being to the accused who is acquitted of the charges under Sections 506 and 387 Indian Penal Code.
(178) However, in so far as the charge under Section 302 Indian Penal Code and Section 27 of Arms Act are concerned, the material on record is sufficient to conclude that the accused Chanderjeet @ Kishan in furtherance of his common intention with accused Sachin @ Pandit (Proclaimed Offender) and Udai (since not arrested) had committed the murder of Arun Mandal on 8.1.2007 at D499, Third Floor, JJ Colony, Shakur Pur, Delhi for which the accused Chanderjeet @ Kishan is hereby held guilty of the offence under Section 302/34 Indian Penal Code and also under Sections 27 of Arms Act for which he is accordingly convicted.
(179) Be listed for arguments on sentence on 21.8.2014.
Announced in the open court (Dr. KAMINI LAU)
Dated: 14.8.2014 ASJII(NW)/ ROHINI
St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 205
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE II (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 158/2013 Unique Case ID No.: 02404R0164202007 State Vs. (1) Chanderjeet Kumar @ Kishan S/o Sh. Ram Avtar Mandal R/o Village Simraha, PO Bakor, District Supol, Bihar (Convicted) (2) Sachin @ Pandit @ Chiku S/o Brij Bihari Sharma R/o Mohalla Purana Bazar, Khurja, Uttar Pradesh (Proclaimed Offender) (3) Udai S/o Not Known R/o Not Known (Not Arrested) FIR No.: 21/2007 Police Station: Sataswati Vihar Under Sections: 302/384/506 IPC & 25/54/59 of Arms Act Date of Conviction: 14.8.2014 Arguments heard on: 21.8.2014 Date of sentence: 25.8.2014 St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 206 APPEARANCE:
Present: Sh. Tofeeq Ahmed, Ld. Addl. Public Prosecutor for the State.
Convict Chanderjeet @ Kishan is in Judicial Custody with Sh. Ashok Drall, Advocate.
ORDER ON SENTENCE:
As per the allegations on 8.1.2007 at about 6:00 PM at D499, JJ colony, Shakur Pur, Delhi the accused Chanderjeet @ Kishan in furtherance of his common intention along with coaccused Sachin @ Pandit (Proclaimed Offender) and Udai (not arrested) intentionally put Arun Mandal in fear of instant death in order to commit extortion of Rs. 50,000/ from him and on his refusal committed the murder of Arun Mandal. It has also been alleged that the accused also criminally intimidated Rejnath Mandal by threatening to kill him.
However, on the basis of the testimonies of the various prosecution witnesses, the medical, forensic and other circumstantial evidence on record, this Court vide a detail Judgment dated 14.8.2014 held the accused Chanderjeet @ Kishan guilty of the offence under Section 302/34 Indian Penal Code and Section 27 of Arms Act.
Vide the above judgment it has been observed by this Court that the prosecution has been able to successfully establish that the deceased Arun Kumar Mandal along with his brothers Dharam Mandal and Arvind Mandal were running a Dental Lab at D499, JJ Colony, St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 207 Shakurpur, Delhi which property is constructed upto three floors; that Rejnath Mandal, Ramesh Kumar Mandal and Pradeep Kumar Mandal were employed at the above dental lab; that the accused Chanderjeet @ Kishan was known to Arun Mandal and his family hailing from the adjoining villages of the same district i.e. District Supol, Bihar; that the accused Kishan had demanded a sum of Rs.50,000/ from the deceased who refused to given the same on which threats was executed by Kishan to the deceased Arun Mandal.
Further, it has been observed that the prosecution has been able to successfully establish that on 08.01.2007 at about 6.00 6.30 PM Ramesh came to Arvind Mandal at his address i.e. at G754, Shakurpur, Delhi and informed him Arun was lying unconscious in the room on the 3rd Floor D499, JJ Colony, Shakurpur, Delhi; that Arvind Mandal went there and saw wounds in the chest and underarm of Arun Mandal, on which he took his brother to Muni Maya Ram hospital where he was declared dead by the doctor; that Arvind Mandal then brought his brother Arun Mandal back to the house and laid him down on the ground floor and also informed the police on telephone; that pursuant to the said information Inspector Dharambir, SI Anuj Nautiyal, Ct. Jagdev and Ct. Rajender reached at the spot where they found the dead body of Arun Mandal lying on the ground floor; that thereafter the Investigating Officer went to the room on third floor where they found that the bed was disarrayed, one fired cartridge was lying near the iron almirah and one St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 208 fired cartridge was lying near the bed and two leads of the cartridges were lying near the door of the room, blood was lying on the bedsheet, mattress and clothes and there was a bullet mark on the iron almirah; that the statement of Arvind Mandal the brother of deceased Arun Mandal was recorded on the basis of which the present FIR was registered; that Crime Team was called at the spot and the spot of incident was got inspected and photographed by the Crime Team; that the various exhibits i.e. blood samples, blood from the mattress, blood stained jacket, Tshirt and pant of the deceased, blood stained bed sheet and mattress, fired cartridges and leads were taken in to possession; that the portion of iron almirah where the bullet mark was shown was got cut and was also taken into possession.
The prosecution has also been able to successfully estatablish that one Rejnath an employee of the deceased had informed the Investigating Officer on 9.1.2010 (day next to the incident) that he had seen the incident and disclosed that accused Kishan, Sachin and Uday had come at the spot at about 6.00 PM and it was the accused Kishan who fired shots at the deceased and the accused persons had also threatened him not to disclose this fact to anyone; that police also went in search of accused Kishan at his house i.e. B67, Qutab Vihar, PhaseI, Goyla Dairy, Najafgarh, Delhi but since the said premises was found locked hence they returned back.
It has been established that during investigations on 13.01.07 St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 209 Inspector Dharambir Singh, SI Anuj Nautiyal and HC Radha Kishan left the Police Station for investigation of this case and met Rejnath Mandal at the gate of Police Station who informed that the person who committed the murder at D499, JJ Colony, Shakurpur was present at Shakurpur Bus Stand; that the police team along with Rejnath Mandal reached at bus stand of Shakurpur where Rejnath Mandal pointed out towards a person who was sitting near the wall near the bus stand and on seeing them, the said person tried to run away but the police team apprehend him and on interrogation he disclosed his name as Chanderjeet @ Kishan; that Chanderjeet @ Kishan confessed about his involvement in the crime after which he was arrested and his personal search was conducted after which the accused Chanderjeet @ Kishan was thoroughly interrogated and he made his disclosure statement; that the accused Chanderjeet @ Kishan disclosed that the weapon used in the crime were got purchased from Khurja through his associate Sachin; that the accused Chanderjeet @ Kishan also disclosed that in the year 2006 he used this weapon for firing at Gurgaon and in that case his brother i.e. son of the maternal uncle was involved and was in the custody whereas he absconded from that place and he was in need of money for pursuing that case and for that reason he demanded money from Arun Mandal but Arun Mandal refused on which he committed murder of Arun Mandal; that the accused pointed out the place of occurrence at third floor of H. No. D499, JJ Colony, Shakur Pur where he along with his associates committed the murder of Arun St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 210 Mandal, pursuant to which the Investigating Officer prepared a pointing out memo; that the accused led the police party to H. No. B67, PhaseI, Qutub Vihar, Goyla Dairy, Najafgarh in pursuance of his disclosure statement and took out one pistol loaded, one loaded magazine and nine live cartridges after lifting from a box which was lying in the room just near the entrance and produced before the Investigating Officer; that the Investigating Officer prepared a sketch of the pistol and magazines and also prepared a sketch of one live cartridge and five cartridges from the bottom; that the pistol, magazine and live cartridges were taken into possession and were seized; that accused Chanderjeet @ Kishan was involved in a case bearing FIR No. 464/06 under Section 307/34 IPC at Police Station Udyog Vihar, Gurgaon.
It has been established that the sole motive of the offence was to extort money under the threat of life and the manner in which it has been committed, confirms that the intention of the accused was to kill the deceased who was running a dental lab in the area who the accused felt was financially well off.
The Medical Evidence on record and the nature of injuries established that the shots had been fired from extremely close range perhaps by putting the firearm on or near the chest and that too in quick succession leaving little time for the victim to raise an alarm, thereby confirming that the intent of the assailants was to cause his death. The medical evidence conclusively established that the cause of death St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 211 was shock due to hemorrhage as a result of antemortem injuries to the multiple internal organs (heart and both lungs) produced by projectiles of rifled firearm which injuries were sufficient to cause death in ordinary course of nature. Further the presence of two abrasion marks on the forehead of the deceased confirms that it was the work of more than one person and that there was some kind of scuffle between the deceased and the assailants before the deceased was shot.
The forensic evidence on record is also found to be compatible to the prosecution case and conclusively established that the cartridge cases found at the scene of crime were discharged from the projectile got recovered by the accused Chanderjeet @ Kishan and hence connected the accused Chanderjeet @ Kishan with the commission of offence.
In view of the above, it has been held by this Court that the motive of the offence was monetary gain but in so far as the charges under Sections 506 and 387 Indian Penal Code are concerned, though the material on record confirms the existence of an element of threat and extortion but in so far as the same being proof beyond reasonable doubt, the prosecution has not been able to prove and establish the aspect of incident of extortion and threat to the deceased by the accused Chanderjeet @ Kishan beyond reasonable doubt and hence benefit of doubt has been given to the accused who has been acquitted of the charges under Sections 506 and 387 Indian Penal Code. St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 212
However, in so far as the charge under Section 302 Indian Penal Code and Section 27 of Arms Act are concerned, this Court has observed that the material on record is sufficient to conclude that the accused Chanderjeet @ Kishan in furtherance of his common intention with accused Sachin @ Pandit (Proclaimed Offender) and Udai (not arrested) had committed the murder of Arun Mandal on 8.1.2007 at D499, Third Floor, JJ Colony, Shakur Pur, Delhi for which the accused Chanderjeet @ Kishan has been held guilty of the offence under Section 302/34 Indian Penal Code and also under Section 27 of Arms Act for which he has been convicted.
Heard arguments on the point of sentence. The convict Chanderjeet @ Kishan is stated to be a young boy of 26 years having a family comprising of aged parents, two younger brothers and one married sister. He is totally illiterate and is a Driver by profession. Ld. Counsel for the convict has vehemently argued that the convict is a young boy having the responsibility of his aged parents. He has pointed out that the the convict was involved in a case at Gurgaon but he has been acquitted in the said case. He prays that a lenient view be taken against the convict.
On the other hand the Ld. Addl. Public Prosecutor has placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 213 view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convict Chanderjeet @ Kishan. It is also stated that the convict has not been able to show any mitigating circumstances in their favour which could make out a case for imposition of sentence of imprisonment for life.
I have considered the submissions made before me. At the very outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be keep in mind before awarding a death sentence in any given case.
The law is well settled in the decision in Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], wherein it was held that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. Again it was cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the accused as also the offence. Some aggravating circumstances were also culled out, they being:
(a) Where the murder has been committed after previous planning and involves extreme brutality; or St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 214
(b) Where the murder involves exceptional depravity.
The mitigating circumstances which were mentioned in that judgment were:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance;
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;
(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;
(d) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) above;
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;
(f) That the accused acted under the duress or domination of another person; and
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], wherein the Hon'ble Supreme Court insisted upon the mitigating circumstances being balanced St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 215 against the aggravating circumstances. The aggravating circumstances were described as under:
(a) When the murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.
(b) When the murder of a large number of persons of a particular caste, community, or locality is committed.
(c) When the murder of an innocent child, a helpless woman is committed.
It was also observed by the Hon'ble Court that at the same time it must be kept in mind that the principle of there being a proportion between punishment and offences ought not to be so mathematically followed so as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes.
The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 216 crime and sometime it is the desirability to keep the offender out of circulation.
I may observe that in the recent past Delhi is experiencing a spurt and rise in the incidents of snatching, robbery, dacoity, extortion murder and other kinds of crime. There has been a 43.6 percent increase in Delhi's crime graph in 2013 over 2012. A staggering 73,958 cases were registered under the Indian Penal Code in 2013 up from 51,479 in the previous year.
The deteriorating law and order problem of the City is a matter of serious concern and immediate steps are required to be taken at all levels for ensuring security and safety of the citizens. Instances of young persons getting involved in criminal activities of extortion by putting innocent persons under threat of death, are also on rise. Criminals are unhesitatingly and indiscriminately using dangerous firearms on helpless victims who may or not offer any resistance thereby spreading terror in the society and adversely affecting social order and the faith of people in the system. In the present case there was no previous animosity between the convict and the victim (both known to each other and hailing from the same native area) and the intent was solely monetary gain. The convict Chanderjeet @ Kishan a young man of 26 years was already involved in an incident of firing at Gurgaon wherein FIR No. 464/2006, Under Sections 307/34 IPC, Police Station Udyog Vihar Gurgaon was registered and his cousin brother Ajit was running custody whereas he St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 217 himself was absconding and desperately wanting money to meet his expenses which amount of Rs.50,000/ he demanded from the deceased Arun under threat which Arun refused and hence had to pay for his life. The convict Chanderjeet @ Kishan appeared to have graduated in crime and threw a challenge upon the Law Enforcement Agencies. The courts are required to find answers to the new challenges facing the society and to mould the sentencing system to meet these challenges. The convict Chanderjeet @ Kishan is a desperate criminal who does not hesitate even for a second to take life of another who refuses to fall in line with his dictates and the recovery of the illegal firearm with as many as twenty five cartridges from his house is an indication of his desperation. Undue sympathy, under these circumstances, to impose inadequate sentence upon the convicts who are repeat offenders would do more harm to the justice system to undermine the public confidence in the efficacy of law and society cannot long endure under such serious threats.
I may observe that the victim Arun Mandal a young boy of 30 years the only educated member of his family while two other brothers are totally illiterate and was a hardworking person. On the other hand the convict Chanderjeet @ Kishan was stated to be involved in another firing case at Gurgaon in which he was absconding and his first cousin Ajit was in custody and hence the convict needed money to meet his expensed and having come to know that the victim was from the same native place to which the convict belongs, he started demanding money from the victim St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 218 Arun and could not take a 'NO' for an answer from Arun, hence on refusal of Arun to pay up the convict silenced him. The criminal intent and extent of desperation of the convict is evident from the fact that after his arrest the convict Chanderjeet @ Kishan got recovered the firearm with magazine containing seven live cartridges, another magazine containing nine live cartridges and nine live cartridges in loose condition. Now, after having considered the submissions made before me and the various aggravating and mitigating factors, I hold that the case in hand certainly does not fall within the category of Rarest of Rare or least even in category of Rare Case and I hereby award the following sentences to the convict Chanderjeet @ Kishan:
1. For the offence under Section 302 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.1,00,000/ (Rs. One Lac). In default of payment of fine the convicts shall undergo Simple Imprisonment for a period of Six Months. The total fine amount of Rs. One Lac if deposited by the convict shall be given to the family of the deceased Arun Mandal as compensation under Section 357 Cr.P.C.
2. For the offence under Section 27 of Arms Act the convict is sentenced to Rigorous Imprisonment for a period of Five (5) Years and fine to the tune of Rs.5,000/ (Rs. Five Thousand). In default of payment of fine the convict shall undergo Simple St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 219 Imprisonment for a period of 15 Days.
Both the sentences shall run concurrently.
Benefit of Section 428 Cr.P.C. shall be given to the convict for the period undergone by him during the trial.
The convict is informed that he has a right to prefer an appeal against the judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order of sentence be given to the convict free of costs and one copy of sentence be attached with his jail warrants.
File be consigned to Record Room to be taken up on the arrest of accused Sachin @ Pandit @ Chinku (Proclaimed Offender) or on the arrest of accused Udai (whose parentage and address is not known).
Announced in the open court (Dr. KAMINI LAU)
Dated: 25.8.2014 ASJII(NW)/ ROHINI
St. Vs. Chanderjeet, FIR No. 21/2007, PS Saraswati Vihar Page No. 220