Delhi District Court
State vs . Sandeep Kumar @ Sonu on 1 December, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE
II (NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 96/2013
Unique Case ID No.: 02404R0329072011
State Vs. Sandeep Kumar @ Sonu
S/o Sh. Jai Singh
R/o Village Soldha,
PS Sadar Bahagurgarh,
District Jhajjar, Haryana
(Convicted)
FIR No.: 169/2011
Police Station: Bharat Nagar
Under Sections: 302/324/509 IPC and 24/54/59 of Arms Act
Date of committal to session court: 5.12.2011
Date on which orders were reserved: 24.11.2014
Date on which judgment pronounced:24.11.2014
JUDGMENT:
(1) As per the allegations on 20.8.2011 at about 3:00 PM in front of English Wine and Beer Shop, Nimri Shopping Complex, Ashok Vihar, PhaseIV, Delhi the accused Sandeep Kumar @ Sonu stared at Nisha with intent to outrage her modesty which was objected to by Virender on which the accused Sandeep Kumar caused the death of Virender by firing on him with his licensed revolver and also caused simply injury on the person of Nisha.
St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 1 BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that 20.08.2011 at 3:14 PM an information was received at Police Station Bharat Nagar regarding a firing incident pursuant to which SI Satish along with Ct. Ram Avtar reached the spot i.e. English Wine Shop, Nimri Colony, Commercial Complex where he found two vehicles parked there. On inquiry he came to that one vehicle was the one in which the accused had come and one vehicle was belonging to the deceased Virender. HC Devender met at the spot and he informed SI Satish that the injured had been shifted by the PCR official and one boy had been apprehended by the name of Sandeep who had allegedly fired at the injured. In the meantime the SHO Inspector Lalit Joshi also reached the spot and had also inquired the matter at the spot.
Ct. Ram Avtar and HC Devender were the left at the spot to safe guard the same whereas SI Satish along with SHO reached Sunder Lal Jain Hospital where they collected two MLCs i.e. one of Virender who was declared brought dead and the other was of Nisha, the injured. Nisha was fit for making the statement and her statement was recorded wherein she had alleged that while she was sitting with the deceased Virender in the Maruti Esteem Car, the accused Sandeep had started at her and passed obscene comments which was objected to by Virender on which the accused Sandeep had fried upon Virender in which incident she had also received injuries. On the basis of the statement of Nisha Verma the present case was registered.
St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 2 (3) The Crime Team was also called to the spot who reached the spot and inspected the same and also photographed the scene of crime. The Maruti Esteem bearing No. DL9CB0129 belonging to deceased was also inspected by the Investigating Officer after the inspection by the Crime Team. Thereafter various exhibits were lifted from the spot of incident and were taken into possession. The Esteem Car and the Maruti Omni Van were also taken into possession. The accused Sandeep @ Sonu who was in the custody of HC Devender, was then interrogated by the Investigating Officer and thereafter the accused was arrested in the present case. From the personal search of accused one licence of Arms was also recovered which was taken into possession vide a separate seizure memo. The licensed revolver of the accused was checked and was found to be containing three live cartridges and one empty cartridge after which the sketch of the revolver was prepared and thereafter the cartridges and the revolver were seized.
(4) On 23.08.2011 the statements of witness Vinod Kumar was got recorded under Section 164 Cr.P.C. After completion of investigations charge sheet was filed against the accused in the Court. CHARGES:
(5) Charges under Sections 302, 324, 509 Indian Penal Code and 27 of Arms Act were settled against the accused Sandeep Kumar @ Sonu to which he pleaded not guilty and claimed trial.St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 3
(6) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
List of Prosecution witnesses:
Sr. PW No. Name of the witness Details of the witness No.
1. PW1 Turmal Singh Public Witness - Cousin of the Deceased
2. PW2 ASI Shadi Lal Police Witness - Duty Officer
3. PW3 SI Devender Police Witness - Crime Team Incharge
4. PW4 Saroop Public Witness - Uncle of the Deceased
5. PW5 Nisha Verma Public/ Eye Witness - Injured in the Incident
6. PW6 Jai Pal Singh Rawat Public Witness - Cashier of the Cash Collection Van
7. PW7 Ct. Subhash Chand Police Witness - Crime Team Photographer
8. PW8 W/ASI Sushila Police Witness - DD Writer
9. PW9 Insp, Manohar Lal Police Witness - Draftsman
10. PW10 HC Anuj Kumar Police Witness - Special Messenger
11. PW11 HC Sanjay Kumar Police Witness - MHCM
12. PW12 Ct. Dhir Singh Police Witness who had taken the exhibits to FSL
13. PW13 Dr. Ajay Kumar Official Witness from Sunder Lal Jain Hospital who has proved the MLCs of Virender (deceased) and Nisha (injured)
14. PW14 Ms. Manisha FSL Expert/ Senior Scientific Officer Upadhyaya (Biology)
15. PW15 Dr. Vivek Rawat Autopsy Surgeon
16. PW16 Sh. R.K. Singh Nodal Officer from Bharti Airtel Ltd.
17. PW17 Amit Vats Official Witness from A2Z Infra Services Pvt. Ltd. who has proved the service record of the accused St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 4 Sr. PW No. Name of the witness Details of the witness No.
18. PW18 Sh. M.N. Vijayan Nodal Officer from Tata Teleservices
19. PW19 HC Om Prakash Police Witness PCR Van Incharge
20. PW20 ASI Tribhuvan Singh Police Witness who had reached the spot on receipt of information
21. PW21 Dhirender Kumar Public Witness - Cashier of the Cash Collection Van
22. PW22 Vinod Kumar Public Witness - Driver of the Cash Collection Van
23. PW23 Sh. Puneet Puri FSL Expert (Ballistics)
24. PW24 Anuj Dobhai Official Witness from CMS Info Systems who has proved the Route Chart and employment of the accused
25. PW25 Gyan Singh Public Witness - Security Guard of the Wine Shop
26. PW26 HC Raj Rani Police Witness who had joined investigations with SI Satish
27. PW27 SI Satish Kumar Police Witness - Initial Investigating Officer who had reached the spot
28. PW28 HC Devender Police Witness who had reached the spot on hearing the sound of firing
29. PW29 Insp. Brij Pal Subsequent Investigating Officer
30. PW30 Ct. Rav Avtar Police Witness who had reached the spot
31. PW31 Insp. Ashok Kumar Police Witness / Subsequent Investigating Officer who had filed the Charge Sheet
32. PW32 Insp. Lalit Joshi Investigating Officer of the case List of documents exhibited:
Sr. Exhibit No. Details of documents Proved by
No.
1. PW1/A Dead body Identification statement of Turmal Turmal Singh
Singh
St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 5
Sr. Exhibit No. Details of documents Proved by
No.
2. PW1/B Dead body Handed over memo
3. PW2/A FIR ASI Shadi Lal
4. PW2/B Endorsement on Rukka
5. PW2/C DD No. 29A
6. PW2/D DD No. 31A
7. PW3/A Crime Team Report SI Devender
8. PW4/A Dead body identification statement of Saroop Saroop
9. PW5/A Statement of Nisha Nisha
10. PW5/B Seizure memo of blood stained clothes
11. PW5/C Arrest memo of accused Sundeep Kumar
12. PW5/D Personal search memo of accused Sundeep
Kumar
13. PW5/E Seizure memo of Esteem Car bearing No.
DL9CB0129
14. PW5/F Seizure memo of Omni Car bearing No.
DL1RT0740
15. PW5/G Seizure memo of blood stained seat covers of
Esteem Car
16. PW5/H Sketch of Licensed Revolver of the accused
17. PW5/I Sketch of three live cartridges and one empty
fire cartridge
18. PW7/1 Affidavit of witness Ct. Subhash Chand Ct. Subhash
19. PW7/A1 to Photographs of Scene of Crime Chand
PW7/A15
20. PW7/B Negatives
21. PW8/1 Affidavit of witness WASI Sushila W/ASI Sushila
22. PW8/A DD No. 24A
23. PW8/B DD No. 26A
24. PW9/1 Affidavit of witness Insp. Manohar Lal Insp, Manohar
25. PW9/A Scaled Site Plan Lal
St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 6
Sr. Exhibit No. Details of documents Proved by
No.
26. PW10/1 Affidavit of witness HC Anuj Kumar HC Anuj Kumar
27. PW11/1 Affidavit of witness HC Sanjay Kumar HC Sanjay
28. PW11/A Copy of Register No. 19 Sr. No. 317 Kumar
29. PW11/B Copy of Register No. 19 Sr. No. 317A
30. PW11/C RC 68/21/11
31. PW11/D RC 69/21/11
32. PW11/E Copy of FSL Receipt
33. PW11/F Copy of FSL Receipt
34. PW12/1 Affidavit of witness Ct. Dhir Singh Ct. Dhir Singh
35. PW13/A MLC of Nisha Vide MLC No. 7829 Dr. Ajay Kumar
36. PW13/B MLC of Virender Singh Vide MLC No. 7828
37. PW14/A Biological Report Ms. Manisha
38. PW14/B Serological Report Upadhyaya
39. PW15/A Postmortem Report Dr. Vivek Rawat
40. PW15/B Opinion
41. PW16/A Customer application form No. 9210836887 Sh. R.K. Singh
42. PW16/B Copy of ID Proof
43. PW16/C Call Detail Report
44. PW16/D Cell ID Chart
45. PW16/E Certificate U/s 65B
46. PW17/A Copy of Bio Data of accused Sandeep Amit Vats
47. PW17/B Personal Information Form
48. PW17/C Copy of Ammunition Licence
49. PW17/D Copies of Pay slip from April 2011 to August
2011
50. PW17/E Copy of letter of appointment
51. PW19/PX1 Confronted statement of witness HC Om HC Om Prakash
Prakash
St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 7
Sr. Exhibit No. Details of documents Proved by
No.
52. PW20/A Seizure memo of Pullanda and sample seal ASI Tribhuvan
Nath
53. PW22/A Seizure memo of Documents of Omini Car i.e Vinod Kumar
RC, Insurance, Permit, fitness, Driver badge, driving licence, duty slip and original duty slip
54. PW22/B All documents regarding the Omini Car
55. PW22/C Superdarinama of Omni Car
56. PW22/C1 Statement of witness Vinod (u/s. 164 CrPC )
57. PW23/A Ballistics Report Puneet Puri
58. PW24/A Route Chart of the Customer Cash pick up Anuj Dobhai
59. PW24/B Route Chart of customer wise cash pickup
60. PW24/C Route chart of Gunman Sandeep
61. PW24/D Attendance sheet of accused Sandeep
62. PW25/PX1 Confronted statement of Gyan Singh Gyan Singh
63. PW27/A Seizure memo of Pullanda SI Satish Kumar
64. PW27/B Seizure memo of articles of deceased
65. PW27/C Application to ACMM for recording the statement of witness Vinod (u/s. 164 CrPC)
66. PW27/D Application for collect the copy of statement
67. PW27/DX1 Confronted statement of witness SI Satish Kumar
68. PW28/A Armed licence HC Devender
69. PW31/A Application to Autopsy Surgeon Insnp. Ashok
70. PW31/B Application for verification of licence of Kumar accused
71. PW31/C Verification report
72. PW32/A Rukka Insp. Lalit Joshi
73. PW32/B Site plan
74. PW32/C Inquest papers
75. PW32/D Superdarinama of Maruti Esteem Car St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 8 EVIDENCE:
(7) In order to prove its case the prosecution has examined as many as Thirty Two Witnesses as under:
Public/ Eye Witnesses:
(8) PW1 Turmal Singh in his evidence has deposed that he is teacher by profession. He has further deposed that on 20.08.2011, he received the information regarding the murder of his cousin brother Virender. According to the witness, he reached Police Station Bharat Nagar along with his family members and his relatives and thereafter he went to BJRM Hospital and identified the dead body of his cousin brother vide Ex.PW1/A. According to the witness after postmortem, the dead body was handed over to them vide Ex.PW1/B bearing his signature at point A and investigating officer recorded his statement. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard.
(9) PW4 Saroop has deposed that on 21.08.2011 went to BJRM Hospital, Jahangir Puri, Delhi and identified the dead body of his nephew Virender in the mortuary. According to the witness the statement to this effect was recorded which is Ex.PW4/A and he came to know that he expired on 20.08.2011 by receiving a bullet injury. This witness was not cross examined by Ld. Defence counsel, despite being granted an St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 9 opportunity in this regard.
(10) PW5 Nisha Verma has deposed that she completed her M.Com in the year 2011. According to the witness on 20.08.2011, at about 3 pm, she along with Virender, since deceased, went to Nimri Commercial Complex, in his Esteem Car, bearing no. DL9CB0129. Witness has further deposed that Virender was known to her as he was also residing in the same village. According to the witness a Wine Shop is situated in the said complex and one Maruti Omni, Radio Taxi of white color bearing no DL1RT 0740 was also stationed there inside which two persons were sitting. She has deposed that one of the persons was sitting on the front driving seat, while the other was sitting on the front passenger side seat.
The person who was sitting on the passenger side seat, looked at her with bad intention (Ghoor Ke dekha) and also passed obscene comments i.e Kyaa Maal Baitha hai. Witness has further deposed that on this Virender got down from the car and went near the said Omni Van and asked that boy not to pass such comments on which the boy who was sitting on the passenger side seat i.e. accused Sandeep, took out a revolver and started abusing Virender and also started threatening Virender to kill him. (11) Witness has further deposed that thereafter Virender ignored him and pacified the said boy and thereafter went to the Wine Shop and he brought a can of beer and sat inside the car. According to the witness at the same time, accused Sandeep, who was sitting on the passengers side seat, came near their Esteem Car and hit the bonnet and then came near St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 10 the driving side seat and started banging the driving seat side glass while hurling abuses at the same time. Witness has further deposed that he was threatening to kill Virender on which Virender brought down the window glass of his side and tried to pacify the matter and asked accused Sandeep to go. According to the witness she put her hand on the mouth of Virender so as to stop him from speaking to accused Sandeep and in the meantime the accused Sandeep who was having a revolver in his hand, pointed the revolver on the nose of Virender and fired on Virender. Witness has further deposed that as her right hand was there on the mouth of Virender, therefore she also received a bullet injury on the index finger of right hand after which the bullet hit the head of Virender which fell down on her right shoulder. Witness has further deposed that blood was oozing out from the injuries of Virender and also from her hand and she immediately dialed no.100 and called the police. Witness has further deposed that the accused was apprehended by many public persons, who were there near the spot. According to the witness police officials also reached the spot including HC Devender and the PCR Vehicle on which the accused Sandeep was handed over to the police by the public persons, along with the said revolver. The witness has clarified that she came to know the name of accused Sandeep at the time of inquiry made by the police at the spot from the accused. Witness has further deposed that she along with Virender were removed to Sunder Lal Jain Hospital where the doctor declared Virender as brought dead and she also received firstaid St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 11 treatment. Witness has further deposed that she returned with a lady police official to the spot and after the police conducted the investigation, they went to Police Station and his statement was recorded by the police there which statement is Ex.PW5/A bearing her signature at point A. Witness has further deposed that the police also seized her blood stained clothes and took the same into possession vide memo Ex.PW5/B. According to the witness the accused Sandeep was arrested vide memo Ex.PW5/C and his personal search was got conducted vide memo Ex.PW5/E. Witness has further deposed that police seized the Esteem Car of Virender at the spot vide Ex.PW5/E and police also seized the Omni car of accused Sandeep vide seizure memo Ex.PW5/F and thereafter took into possession of one beer can from inside of Esteem Car. According to the witness police also took into possession the blood stained seat covers from inside the Esteem Car which they seized vide Ex.PW5/G. Witness has further deposed that police also seized the fire arm revolver by which accused Sandeep had fired upon the deceased along with three live cartridges and one empty fired cartridge. He has deposed that the police also prepared the sketch of revolver vide Ex.PW5/H and of the three live cartridges and one empty fired cartridge vide Ex.PW5/I. According to the witness she does not remember whether the measurements of the same were taken or not. She has stated that the police seized the revolver and above said cartridges vide Ex.PW5/J. St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 12 Witness has further deposed that License revolver was also recovered from the accused Sandeep vide memo Ex.PW5/K. (12) She has correctly identified the accused Sandeep in the Court and also identified the case property i.e. one beer can of Thunder Bolt as the same seized by the police which beer can is Ex.P1; one beer can of Kingfisher as the same seized by the police which beer can is Ex.P2; two pieces of seat covers as the same seized by the police which Seat Covers are collectively Ex.P3; one lady shirt, one pyjami and one dupata as the same belonging to her and seized by the police which Lady shirt, one pyjami and one dupata are collectively Ex.P4; one revolver, one live cartridge, three fired empty cartridges and bullet as seized by the police which Revolver is Ex.P5 and cartridges are collectively Ex.P6. The identity of the Omni Car and the Esteem Car is not disputed but she has identified the same from the photographs Ex.PW7/A4, Ex.PW7/A14, Ex.PW7/A13 and Ex.PW7/A15 which Esteem Car bearing no. DL 9C B 0129 is Ex.P7 and the Omni Car bearing no. DL 1R T 0740 is Ex.P8. (13) In her cross examination by Ld. Defence counsel, witness has deposed that she know deceased Virender since four to five years and has voluntarily added that he was her brother in relationship. According to the witness the deceased Virender was their neighbor and she called him as a brother and always treated him as a brother. Witness has further deposed that the murder of their house is WP273, Ist Floor, Village Wazir St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 13 Pur, Ashok Vihar, Delhi and deceased Virender was residing at WP169, Village Wazir Pur, Ashok Vihar, Delhi. Witness has admitted that Virender was original resident of Palwal, Haryana and was a gujjar by caste and she is Sunar by caste. Witness has further deposed that Virender was doing the business of making collars for the shirts and was 11th passed and left his schooling in 12th class. According to the witness she do not know if Virender was involved in any criminal case. Witness has further deposed that she had not stated to the police that Virender was her brother in relationship and that she treated him as her brother and has voluntarily added that she had stated to police that Virender was known to her. Witness has further deposed that even prior to this incident she had gone out with deceased Virender in his car on one or two occasions and has voluntarily added that she had gone with him due to some work. Witness has admitted that she knew that Virender used to take liquor but says it was occasionally. Witness has further deposed that one bottle of beer and one or two cans of beer were already lying in the Esteem Car before the incident. She has stated that Virender did not take any liquor in her presence in the car and he also did not take beer in her presence in the car. According to the witness food items Chole Chawal was brought by Virender in the car but she did not eat said Chole Chawal while it was Virender who ate said Chole Chawal and has voluntarily added that she took only one or two bites. Witness has further deposed that Virender brought the said Chole Chawal from Nagpal Restaurant which was St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 14 situated at IBlock, Ashok Vihar and which was at a distance of about 5 minutes distance by car from the place of incident. Witness has denied the suggestion that the Nagpal Restaurant is situated at the distance of about 4 km from the place of incident and has voluntarily added that it was hardly at a distance of 200300 meters. Witness has further deposed that on the day of incident, Virender came to their house at about 12.15 PM and she went with him in search of Coaching Institute for B. Ed. Examination. According to the witness she has no knowledge about the name of Coaching Institute where they had to go and states that they did not visit any Coaching Institute on that day before the incident. She has stated that she had not told the police that on the day of incident she had gone with Virender in search of coaching institute for B. Ed. Examination. Witness has further deposed that she did not visit any liquor shop with Virender before the day of the incident and had no idea that the deceased Virender was going to take beer from the Wine Shop when he stopped his Esteem Car near the Wine Shop. Witness has admitted that there are many shops near the place of incident. Witness has further deposed that she had not gone with Virender in this market before the day of the incident. She admits that police also took possession of above said Chole Chawal and prepared the documents regarding the said possession. (14) Witness has denied the suggestion that deceased Virender used to take liquor daily or that she used to come to liquor shop with him daily and that is why she did not object while he was going to the liquor shop. St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 15 Witness has denied the suggestion that she and Virender both were under the influence of liquor before the incident. According to the witness, the windows of the front seat of their Esteem Car were open to some extent. She admits that the Esteem Car was with AC facility but states that the AC was not on at the time of incident. She has clarified that there were black films on the glasses of window of the Esteem Car. According to the witness she remained sitting in the car while Virender had gone to the liquor shop and the distance between their car and Omni Car of accused Sandeep was about 57 feet. Witness has further deposed that she does not know accused Sandeep before the day of incident and had no enmity with accused Sandeep. She has further stated that she was not having any apprehension about the occurrence of the incident. Witness has deposed that the incident took place suddenly and it hardly took 45 minutes for the complete occurrence. According to the witness when Virender went to beer shop the accused was siting in his van and the accused did not pass any comments and also did not stare at her at that time when Virender went outside the car. Witness has further deposed that police had reached to the spot within 23 minutes after the incident and just after reaching at the spot, police took them to the hospital but conducted no investigations in her presence at that time. She has stated that she had not mentioned to the PCR call about the obscene comments. Witness has further deposed that she had not mention to the doctor also about the obscene comments passed by the accused.
St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 16 (15) Witness has further deposed that on 20.08.2011 i.e. the day of incident, after giving her statement to the police in the Police Station she had not come to the spot with the police again and police had obtained her signatures on some papers on that day. Witness has admitted that she had received a call from SHO Police Station Bharat Nagar from the spot. According to the witness she cannot tell the name of police official who had told her about the name and whereabouts of the accused in the Police Station and she remained at Police Station Bharat Nagar on the day of incident upto 10:3011:00 PM after returning from the hospital. Witness has further deposed that after she left the Police Station and reached at her house she did not join the investigations in this case as she was never called by the police. According to the witness many persons gathered at the time of incident at the spot. She has stated that she does not remember the exact time till she remained in the hospital and she also cannot tell the name of the police official who met her in the hospital. Witness has further deposed that no written proceedings were conducted by the police in the hospital in her presence.
(16) According to the witness she had stated to the police in her statement Ex.PW5/A that the accused had bad intension and passed the obscene comments i.e. "Kyaa Maal Baitha Hai". When confronted with her statement Ex.PW5/A it was not found so recorded. According to the witness she had also stated to the police in her statement that the boy who was sitting on the passenger side seat, took out a revolver and started St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 17 abusing Virender and also started threatening Virender to Kill. However, when confronted with statement Ex.PW5/A it was not found so recorded. According to the witness she had also stated to the police in her statement that accused came near out Esteem Car and hit the bonnet and then came near the driving side seat and started banging the driving side seat glass and was also abusing at that time. However, when confronted with statement Ex.PW5/A it was not found so recorded. According to the witness she had also stated to the police in her statement that the accused was handed over to the police by public persons along with the revolver but when confronted with statement Ex.PW5/A it was not found so recorded. According to the witness she had also stated to the police that she returned with lady police officials at the spot and after the police conducted the investigations, they went to the Police Station and her statement was recorded by the police there but when confronted with the statement Ex.PW5/A it was not found so recorded.
(17) Witness has denied the suggestion that accused was not arrested in her presence or that no weapon of offence was recovered or seized in her presence by the police at the spot. Witness has denied the suggestion that the accused did not pass any obscene comments to her or that no threat was extended by the accused to deceased Virender. Witness has denied the suggestion that no sketch of the bullets and revolver were prepared by the police. Witness has denied the suggestion that on 20.08.2011 she had not handed over her clothes to the police or that the St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 18 same were not seized by the police on that day. Witness has denied the suggestion that deceased Virender was under the influence of the liquor and he had stationed his car in front of accused's Cash Van. Witness has denied the suggestion that the accused had asked to Virender not to park his car in front of cash van as he had to guard the Cash of the van. Witness has denied the suggestion that on this point of wrong parking of the car a scuffle took place between the accused and deceased Virender and later on the deceased had parked his car by the side of the van. Witness has denied the suggestion that at that time when they reached at the spot and Virender parked his car, the side screens of the car were fully closed. Witness has denied the suggestion that Virender after buying a beer can from the liquor shop went to the accused, when accused was sitting in the van or that Virender had abused him and also said that he was a boy of Gujjar and resident of same village. Witness has denied the suggestion that thereafter Virender snatched the revolver of accused Sandeep and went to be seated in his car. Witness has denied the suggestion that the accused then came behind him and was calling Virender to return his revolver back as he has to take care of the cash van. Witness has denied the suggestion that when Virender was sitting in his car having the revolver of the accused in his hands and the accused was trying to take his revolver back and at the same time when he was also trying to intervene in between a shot went off. Witness has denied the suggestion that the accused did not make fire upon Virender. Witness has St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 19 also denied the suggestion that the police had obtained her signatures on blank papers. Witness has denied the suggestion that since the deceased was like her brother and he had lost his life in the incident that is why she was implicating the accused falsely. Witness has denied the suggestion that she had deposed falsely.
(18) PW6 Jai Pal Singh Rawat has deposed that in the year 2011, he was working in CMS Security Task as Cashier. According to the witness on 20.08.2011 he along with his colleague namely Dhirender, guard Sandeep and driver namely Vinod Kumar of the company went to Nimri Colony in a Maruti Van No. 0740 to collect the cash from a Wine Shop around 2:002:30 PM. According to the witness he along with Vinod entered in the Wine Shop to collect the cash from the manager of the shop and after some time he heard some noise, but they did not pay any heed as they were counting the cash. Witness has further deposed that when they came out they noticed a huge crowd and police personnel were found there and thereafter they went towards their office. (19) Addl. PP for the State has declared the witness hostile. His his cross examination by Ld. Addl. PP for the state, witness has deposed that police did not record his statement. He has admitted that the name of the guard was Sandeep, who was present in the court as an accused. According to the witness he had not stated to the police in his statement that when they heard the noise of bullet they came out and they saw accused Sandeep, present in the court was standing having a revolver in St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 20 his hand. Confronted with statement Mark A from portion A to A where it is so recorded. Witness has further deposed that he had also not stated to the police in his statement that when they inquired they came to know that accused Sandeep, had fired upon a driver of the Esteem Car who was standing in front of the government Wine Shop situated near Nimri Shopping Complex but when confronted with his statement Mark A from portion B to B it is so recorded. Witness has further deposed that he had also not stated to the police in his statement that in the meantime one Head Constable reached there and he apprehended the accused Sandeep and snatched the revolver from his hand but when confronted with statement Mark A from portion C to C where it is so recorded. Witness has further deposed that he had also not stated to the police in his statement that PCR took the driver of the Esteem Car and his associate (girl) with them however when confronted with statement Mark A from portion D to D where it is so recorded.
(20) Witness has denied the suggestion that as accused was their colleague, that was the reason why he was concealing from the material facts. Witness has further denied the suggestion that after some time, police came at the spot and made the inquiries or that his statement was recorded or that as he had been won over by the accused who is his colleague that is why he was not telling the true facts. Witness has denied the suggestion that he was deposing falsely or concealing from the material aspects deliberately. This witness was not cross examined by Ld. St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 21 Defence counsel, despite being granted an opportunity in this regard. (21) PW21 Sh. Dhirender Kumar has deposed that in the year 2011 he was residing at WZ121, Shakur Pur Basti, Delhi and he was doing the service as cash officer/cashier in cash management service E8, Jhandewalan, Delhi and had to collect the Cash Amount from the destinations i.e. Mall Points and the government Wine Shops at different places.
(22) Witness has further deposed that on 20.08.2011, alongwith his cocashier Jaipal Singh, Security guard Sandeep and driver Vinod reached at Nimri shopping complex at government Wine Shop to collect the cash at about 3.00 p.m. by a maruti Omni Van no. DL 1R T 0740. According to the witness they parked their vehicle Omni Van in front of the government Wine Shop and he alongwith Jaipal Singh went inside of the government Wine Shop to collect the cash and security guard Sandeep and driver Vinod Kumar remained outside with Omni Van. Witness has further deposed that when they were counting cash inside the government Wine Shop, they heard a sound of firing and they came out from there and saw that one person was lying in an injured condition on the driver's seat of the Esteem Car and their security guard Sandeep was standing there holding his license revolver in his hand. Witness has further deposed that meanwhile one policemen came there and overpowered Sandeep and took his revolver in his possession. Thereafter they took the cash from the government Wine Shop and kept the same in cash box in Omni Van. St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 22 According to the witness police also took them to the Police Station and after making inquiries from him, they were released and they took the cash box by another vehicle. Witness has identified the accused Sandeep Kumar @ Sonu as their Security Guard.
(23) During leading questions put by Ld. Addl. PP for the state, witness has admitted that accused Sandeep fired upon a person who was sitting in Esteem Car in front of Wine Shop, by his fire arm i.e. licensed revolver.
(24) In his cross examination by Ld. Defence counsel, witness has admitted that in the morning the concerned police officials of this case met him outside the Court but he only refreshed his memory with regards to the dates etc and not regarding any other aspects which deposition he was making on the basis of what had transpired before him. Witness has admitted that driver Vinod also met the police officials in the morning outside the Court and police apprised him the facts of the case. Witness has denied the suggestion that he himself, Vinod and Jaipal had gone inside the liquor shop to collect cash after parking their cash van. According to the witness he does not remember whether police recorded his statement in this case or not. Witness has denied the suggestion that accused was standing with the Esteem Car holding his licensed revolver. Witness has denied the suggestion that no policeman had overpowered the accused or taken his revolver into his possession at that time in his presence. Witness has however admitted that the actual firing incident did St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 23 not take place in his presence and states that he cannot tell anything about the actual incident which took place outside.
(25) PW22 Sh. Vinod Kumar has deposed that he is the owner and driver of Maruti Van Omni bearing no. DLIRT0740. He has deposed that his abovesaid van was attached with cash management service Jhandewalan Delhi and he used to drive said van himself. Witness has further deposed that on 20.08.2011, he alongwith Jaipal cashier and another casher whose name he does not remember and the security guard Sandeep reached at Nimri Shoping complex in government Wine and Beer Shop at about 3.00 p.m. with his abovesaid Omni Van to collect the cash from the shop. Witness has deposed that he parked his Omni Van just near government Wine Shop after which he alongwith gunman Sandeep remained outside of the shop and both the cashiers went inside of the government Wine Shop to collect the cash while he remained sitting on the driving seat of Omni Van. Witness has further deposed that meanwhile one Esteem Car came at the abovesaid government Wine and Beer Shop whose registration number he does not recollect and one boy was sitting on the driving seat with a girl sitting alongwith him on the front seat. Witness has further deposed that the said boy stepped down from the car and came towards their gunman Sandeep asked him as to why he was looking towards his car on which there were hot words exchanged between them. He then intervened in the matter and both the persons were pacified by him. Thereafter the abovesaid boy of Esteem St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 24 Car went to Wine Shop and brought two beer cans and went towards his Esteem Car while staring towards Sandeep. Witness has further deposed that the said boy sat in his car on the driving seat and thereafter Sandeep their gunman went towards the said boy and both persons grappled. Thereafter Sandeep fired upon the said boy who was sitting on the driving seat of Esteem Car and the said boy received gun shot injury and his head fell down in the lap of girl. Witness has further deposed that the gunman Sandeep as well as the girl both made a call to the police. In the meanwhile the police came there and overpowered gunman Sandeep and took over possession of his gun. Witness has further deposed that PCR took injured boy and the girl to hospital and they were also taken to the Police Station with their Omni Van with the cash box. The cash box was thereafter taken away by the cashiers from there while his omni car was seized by police.
(26) Witness has further deposed that he handed over photocopy of RC, insurance, permit, fitness, driver badge, driving license, duty slip and original duty slip regarding the abovesaid Omni Van and his duty details to the police which was seized vide memo Ex.PW22/A and the said documents are collectively are Ex.PW22/B (9 documents). Witness has further proved having received the Omni Van on superdari vide Ex.PW22/C and has identified the same in photographs Ex.PW7/A13 and Ex.PW7/A15 which omni car is Ex.P8. He has also identified the Gunman as accused Sandeep.
St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 25 (27) In the leading questions put by Ld. Addl. PP for the state, witness has admitted that the Esteem Car was bearing no. DL 9C B 0129 which is seen in the photographs Ex.PW7/A4 and Ex.PW7/A14 and admits that the said Esteem Car came on the left side of their Omni Van. Witness has admitted that Sandeep was continuously staring towards the girl who was sitting in Esteem Car and was saying that "KITNA BADIYA MAAL HAI". Witness has further admitted that thereafter the boy sitting in the Esteem Car came to accused Sandeep and advised Sandeep not to do such things. Witness has admitted that Sandeep was holding his licensed revolver with him when the said boy was talking with him and then the accused Sandeep took out his licensed revolver and showed the same to the said boy and told him that "YAHAN SE CHALA JAA TERA ISSI ME BHALA HAI". Witness has also admitted that Sandeep then went towards the Esteem Car with his revolver in his hand and he followed Sandeep to pacify him but before he could stop or pacify Sandeep, he exchanged hot words with said boy and abused him and fired upon him on his face with his licensed revolver. Witness has admitted that the girl sitting in the car made a call at 100 number and the accused Sandeep also made a false call that the cash was looted. Witness has admitted that the police officials took possession of revolver from the accused Sandeep with the help of handkerchief. Witness has also admitted that the name of another cashier is Dhirender Kumar. Witness has further deposed that police also produced him for recording of his statement before a St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 26 Magistrate, Rohini Court under Section 164 Cr.P.C. which statement is Ex.PW22/C (four pages).
(28) In his cross examination by the Ld. Defence counsel the witness has deposed that he was sitting at the driving seat in his Omni Van and the accused Sandeep was standing near Omni Van when Esteem Car reached at the spot. Witness has further deposed that the Esteem Car stopped near their van at a distance of about 3 feet and states that he does not recollect the colour of the glasses of the windows of the Esteem Car and also does not remember if windows of the said Esteem Car were open or not when the same reached near their van. Witness has admitted that there were beer and liquor bottles in the said Esteem Car. He is unable to tell if the boy in Esteem Car was under the influence of liquor or not. Witness has denied the suggestion that after hot exchange of words with accused Sandeep, the boy in Esteem Car removed his vehicle from the place where he had first parked the same. Witness has admitted that the accused Sandeep had asked the deceased to remove his car from in front of the Cash Van as he has to take care of the cash placed in the van. Witness has admitted that the accused was deputed to guard the cash in van. Witness has further deposed that the police had made inquiries from him at about 7.00 p.m. at Police Station but did not record his statement in this case. Witness has denied the suggestion that during his interrogation he did not disclose the aforesaid facts what he was now disclosing to this court and has voluntarily explained that he had also St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 27 given his statement to the Ld. MM in the court. Witness has denied the suggestion that whatever he had told to Ld. MM was pursuant to the tutoring by the Investigating officer. Witness has denied the suggestion that even on the day of his deposition in the court he was deposing on the basis of what has been told to him by the senior officers of the police. Witness has further deposed that he did not sign any statement recorded by the police and has voluntarily added that he was not aware of any such statement because he was only orally interrogated. Witness has further deposed that he came to the Court on two times earlier as he had received summons and states that he did not appear before any Court of law except in this case. He has explained that before recording of his statement in this case by Ld. M.M. he had reached at the Police Station and thereafter two police officials took him to Rohini Courts for recording of his statement by Ld. M.M. but he is unable to tell the name of said police officials. Witness has denied the suggestion that the accompanying police officials had made him understand about the facts of the case as what has to depose before the Ld. M.M. Witness has admitted that he had noted down the car no. DL 9C B 0129 on his palm and that the same had been noted down on his palm outside the Court in the morning when the police official made him understand about the facts of the case by showing him, his statement. Witness has further deposed that the police officials had made him and one other witness namely Dhirender understand the facts of the case and read over the statements to the witness. St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 28 (29) Witness has denied the suggestion that he alongwith the cashier Dhirender and Jaipal had gone inside the liquor shop to collect cash and no incident took place in his presence. Witness has denied the suggestion that they had come out from the liquor shop only after hearing the voices of bullets. Witness has denied the suggestion that the accused did not pass any comments upon the girl Nisha. Witness has denied the suggestion that the accused was not overpowered by the police in his presence with a revolver in his hand. Witness has denied the suggestion that when they came out from the liquor shop the injured had already been shifted to hospital. Witness has denied the suggestion that the police obtained his signatures on some blank documents in the Police Station or that he had not witnessed the entire incident or that he was deposing falsely at the instance of police in this case.
(30) PW25 Sh. Gyan Singh has deposed that he is a security guard and used to work as a guard at DTTDC English Wine Shop Nimri Shopping Complex. According to the witness he does not remember the exact date but two years before his deposition in the court at about 3.00 p.m. he was sitting at the counter of Wine Shop and watching television. Witness has further deposed that a bank van came there to pickup the cash from the Wine Shop and two persons entered the Wine Shop whereas two persons i.e. driver and guard remained outside. According to the witness one Esteem Car also reached there and parked the same infront of the van and there was a dispute between the driver of Esteem Car and the guard of St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 29 the Omni Van regarding wrong parking. Witness has further deposed that the driver of the van pacified both of them. Thereafter the driver of the Esteem Car then went to the liquor shop and purchased one can of beer and he again went back there was verbal altercation between him and the guard and there was hathapai between them and they moved towards the Esteem Car "HATHAPAI KARTE HUA Esteem Car KI TARAF CHALE GAYE". Witness has further deposed that guard was saying to handover his "SAMAAN" to him and thereafter the said boy of Esteem Car sat in his car and the quarrel continued. Witness has further deposed that one girl was also sitting in the car and she was trying to intervene and pacify the matter and then he heard the sound of firing and boy of Esteem Car received the gun shot injury and thereafter he does not know what happened. According to the witness he can not identify the guard of the van.
(31) During the leading questions put by Ld. Addl. PP for the state regarding the incident witness has deposed that he can not say whether the incident took place on 20.08.11. The witness is also unable to tell whether the security guard of van went towards the Esteem Car driver with his revolver and fired upon him by the same. According to the witness he does not know whether the security guard of the van was making a call by his mobile phone after making fire upon the Esteem Car driver. Witness has admitted that one policeman came there and took the custody of security guard of the van. Witness has admitted that revolver of the St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 30 security guard was also taken in possession by police man with a handkerchief. According to the witness he can not say whether the name of the security guard was Sandeep and the name of injured was Virender R/o. Wazirpur village. Witness has admitted that PCR van took the injured Virender and the girl who was sitting in the Esteem Car from the spot. According to the witness he can not identify the security guard as he was sitting at the counter of the shop.
(32) The accused Sandeep was specifically shown and put to the witness but he is unable to identify the accused Sandeep and has explained that he was sitting at the counter of the shop due to which he could not see.
(33) During cross examination by Ld. Addl. PP for the state, witness has admitted that police made inquiries from him. Witness has stated that the police did not record his statement. He has denied the suggestion that police had recorded his statement on 20.08.11 and has also denied that the security guard of the van went to the Esteem Car driver with his revolver and opened fire upon him with his revolver. Witness has also denied the suggestion that he had stated to police that after firing upon the Esteem Car driver security car driver came to his Maruti Van and made calls from his mobile phones. Witness has denied the suggestion that he told the police that later he came to know the name of victim as Virender and name of security guard as Sandeep. He has further denied the suggestion that he can identify and recognize security guard St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 31 Sandeep but he was not deliberately identifying the accused as he had been won over by him.
(34) Witness has further deposed that he did not tell the police that the security guard was telling the Esteem Car driver "mera samaan de do" and has voluntarily added that the police never asked him and never recorded his statement. Witness has denied the suggestion that he had deliberately incorporated this fact on the day of his deposition in the court in order to help the accused as he had been won over by him. (35) In his cross examination by the Ld. Defence Counsel, the witness has deposed that he can not tell from whose hands the police official has taken the revolver when they came to the spot. Witness has admitted that in the verbal altercation which took place between the two, the Esteem Car driver was saying "mein gujjar ka ladka hoon. Isi gaon ka hoon tere ko sidha kar doonga". Witness has denied the suggestion that the security guard was not overpowered by the police in his presence. He has also denied the suggestion that the driver and cashiers had gone inside the liquor shop to collect cash or that the driver of the cash van did not witness the incident.
Witnesses of Medical Record:
(36) PW13 Dr. Ajay Kumar, has deposed that on 20.08.2011 he was posted as CMO at Sunder Lal Jain Hospital and on that day at about 3.30 PM one Nisha D/o Rajender, aged 24 years, female brought at the St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 32 hospital by the PCR Commander8, HC Om Prakash with alleged history of getting injured while quietening the victim around half hours before when the victim was being shot. According to the witness he examined Nisha who complained of lacerated wound on lateral side right index finger in the proximal Phalanx and in the local examination he found lacerated wound on lateral side of proximal phalanx of right index finger in the middle 2cm x 1cm x superficial allegedly from gun shot. Witness has further deposed that after examination he prepared the MLC No. 7829 which is Ex.PW13/A. (37) Witness has further deposed that on the same day at about 3.30PM he also medically examined Virender Singh S/o. Mehar Chand, male aged about 30 years was medically examined by him which was brought by Nisha and HC Om Prakash of PCR with alleged history of gun shot at Nimri Colony, Shopping complex about half hours back.
According to the witness he examined Virender Singh and his observations/injuries are as follows:
1. The victim was profusely bleeding from nose and mouth.
2. Pulse/BP was not recordable. The ECG showing AXIAL Line.
3. The pupil were dilated and fixed.
4. There was no other sign of external injury on the body.
5. The accompanying friend Nisha reportedly trying to calm the victim was also injured on right ring finger (lateral side of St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 33 proximal side/ phalanx when the victim was shot at close range in the nose/mouth.
6. The victim is declared brought dead.
7. The following articles were recovered which were handed over to the police, black purse with Rs. 237/, two RC of vehicles and one DL with some visiting cards alongwith jeans pant/tshirt/banyan/belt(leather) one pair of sports shoes alongwith socks.
(38) Witness has further deposed that he prepared the detailed MLC No. 7828 which is Ex.PW13/B. (39) In his cross examination by Ld. Defence counsel, witness has deposed that he had mentioned the alleged history as told by the victim or by the person who brought the victim. Witness has admitted that he had not mentioned the vitals of the injured Nisha specifically and has voluntarily added that the vitals were stable and there was no requirement. Witness has further deposed that when he examined Nisha he did not find her under the influence of alcohol. Witness has denied the suggestion that Nisha was under the influence of alcohol or that he deliberately did not mention this fact in the MLC on the instance of Investigating Officer. (40) PW15 Dr. Vivek Rawat, has deposed that on 21.08.2011 he was posted at BJRM Hospital Mortuary, Delhi and on that day, at about 11.20 AM he conducted postmortem on the dead body of Virender Singh S/o Mehar Chand, 30 years male on the request of SHO Lalit Joshi Police St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 34 Station Bharat Nagar and he found following external injuries:
1. Abrasion 3x1.5cm over left alae of nose with underlying fluid blood seen both nostrils.
(41) According to the witness on Internal Examination of Head Chip fracture was seen to medial end of left carotid canal and depressed fracture seen to inner table in right occipital bone. SDH seen with multiple contusions seen to left temporal and occipital and right occipital lobes. Brain was congested and edematous. He has further deposed that on internal examination of Stomach 79 mg of masticated food particles with brownish fluid was present with intact mucosa and Alcoholic Smell was Observed.
(42) He has proved that as per the Track of Wound: it was seen as after entering into left alae of nose and then entering into medial wall of left maxilla and then taking entry into brain cavity through medial end of left carotid canal, traverses the brain matter obliquely towards the right occipital low and then pellet gets lodged in a pit made in right occipital bone. Direction of wound was slightly upwards and backwards. (43) He has proved having opined that the cause of death is due to cranio cerebral damage caused by injuries to head as mentioned above, which injury was antemortem and fresh in duration and caused by bullet fired by rifled fire arm, sufficient to cause death in ordinary course of nature and the approximate time since death is about 20 St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 35 hours. He has proved the detailed Postmortem Report in this regard which is Ex.PW15/A. (44) Witness has further deposed that on 12.11.2011 he had received an application from Insp. Ashok Kumar, Police Station Bharat Nagar regarding subsequent opinion for the case FIR No. 169/11 in respect of distance of firing. Witness has further deposed that it was opined by him that approximate distance of firing must be in the range of upto 15 cm ( close distance). According to the witness his subsequent opinion in this regard is Ex.PW15/B bearing his signatures at point A. (45) In his cross examination by Ld. Defence counsel, witness has denied the suggestion that he had prepared the report on the asking of the Investigating Officer.
FSL Experts:
(46) PW14 Ms. Manisha Upadhyaya, has deposed that on 27.07.2011 ten parcels were received at their office in sealed condition in case FIR No. 169/11 Police Station Bharat Nagar which were marked to her for examination and seal was found intact and tallied with sample seal.
According to the witness she gave marking to the parcels as 1,2,3,4,5,6,7,8,9 and 10.
(47) Witness has further deposed that on opening the parcel No. 1 she found one TShirt, one banyan, one jeans pant, he marked the same as 1a, 1b and 1c. Witness has further deposed that on opening the parcel No. St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 36 2, one belt, one pair of socks and a pair of shoes were found and she marked the same as 2a, 2b and 2c respectively. Witness has further deposed that on opening the parcel No. 3 she found one underwear which was marked by her as Ex.3. Witness has further deposed that on opening parcel No.4, she found one bullet which was marked by her as Ex. 4. Parcel No.5 was sent to ballistic division for examination and it was not opened by her. Witness has further deposed that on opening the parcel No.6, she found blood in gauze piece which was marked by her as Ex. 6. Witness has further deposed that on opening the parcel No.7 she found one beer can having few dirty brownish stains which were marked by her as Ex.7. Witness has further deposed that on opening the parcel No.8 she found one beer can having few dirty brownish stains which were marked by her as Ex.8. Witness has further deposed that on opening parcel No.9, she found two dirty pieces of seat cover which were marked by her as Ex.
9. Witness has further deposed that on opening the parcel No.10, she found ladies shirt, one pyjami, one dupatta which were marked by her as Ex. 10a, 10b and 10c. Witness has further deposed that after examining the abovesaid exhibits, she gave her detailed biological report which is Ex.PW14/A bearing her signatures at point A. Witness has further deposed that blood was detected on exhibits 1a, 1b and 1c, 2b, 3,4,6,7,8,9,10a,10b and 10c.
(48) Witness has further deposed that she also examined the abovesaid exhibits serologically in her detailed serological report is St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 37 Ex.PW14/B bearing her signatures at point A. Witness has further deposed that Human blood was detected on the exhibits 1a, 1b and 1c, 2b, 3,4,6,7,8,9,10a,10b and 10c and Human blood of B group was detected on exhibits 1a,1b,1c,3,6,9,10a and 10b. Witness has further deposed that after examination of abovesaid exhibits, the remnants were resealed with the seal of FSLMU DELHI. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard. (49) PW23 Sh. Puneet Puri is the Ballistic Expert who has deposed that on 22.03.2012 two sealed parcels bearing numbers 4 and 5 were received from Biology division of FSL. According to the witness parcel No. 4 duly sealed with the seal of MU FSL DELHI and parcel No. 5 duly sealed with the seal of LJ and the seals on the parcels were intact and on breaking the seals of parcel No. 4, one deformed bullet was taken out and marked as Ex.EB1 by him. Witness has further deposed that on opening the parcel No. 5, one revolver .32 inch calliber bearing No. M64262008, two .32 inch cartridges and one .32 inch cartridge case were taken out and marked as exhibits F1, A1,A2 and EC1 respectively by him. Witness has further deposed that on examination he found that the revolver marked Exhibit F1 was in working order, test fire was conducted successfully by using the cartridges marked exhibits A1, A2, the test fired cartridge cases were marked as TC1, TC2 and the two recovered test fired bullets were marked as TB1 and TB2 respectively. According to the witness the cartridge case marked exhibit EC1 was a fired empty St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 38 cartridge and had been fired through the revolver marked exhibit F1 as the individual characteristic of firing pin marks and breech face marks present on exhibit EC1 and on test fired cartridge cases marked TC1 and TC2 were found identical. Witness has further deposed that the deformed bullet marked exhibit EB1 was corresponding to the bullet of .32 inch cartridge but no further opinion could be given regarding the exhibit EB1 whether it had been discharged through the revolver marked exhibit F1 or not as the individual characteristic of rifling marks present on exhibit EB1 were insufficient for comparison in opinion. According to the witness the revolver marked EX F1 was a firearm, the cartridges marked exhibits A1, A2, the cartridge case marked exhibit EC1 and the deformed bullet marked exhibit EB1 were ammunition as defined in arms act. Witness has further deposed that his detailed ballistics report is Ex.PW23/A (running into three pages ) bearing his signatures at point A on each page. Witness has further deposed that after examination he resealed the above exhibits with the seal of PP FSL DELHI. According to the witness he can identify the case property if shown to him.
(50) Witness has identified one revolver, one live cartridge, three fired empty cartridges and two test fired bullets as the revolver, two fired empty fired cartridges cases TC 1 and TC 2 and two bullets TB1 and TB2 and one empty fired cartridge case EC1 which were examined by him. St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 39 Revolver is Ex.P5 and cartridges are collectively Ex.P6 and one deformed bullet as the same as examined by him and marked by him as EB1 which is Ex.P9.
(51) In his cross examination by Ld. Defence counsel, witness has denied the suggestion that he had not adopted the standard practices and procedures as required while examining the exhibits and giving the report. Witness has denied the suggestion that the above report has been given by him on the asking of the Investigating officer.
Nodal Officers:
(52) PW16 Sh. R.K. Singh, Nodal Officer, has brought the summoned record pertaining to mobile No. 9210836887 which is issued in the name of Ms. Urmila, W/o Rajender Kumar, R/o WP273, Wazirpur Village, Ashok Vihar, New Delhi52, copy of which is Ex.PW16/A(running into four pages), copy of election voter ID card in support of residence proof is Ex.PW16/B. According to the witness call details from the day i.e. 20.08.2011 are Ex.PW16/C (running into two pages) bearing his signatures and office seal at point A on each page.
Witness has further deposed that Cell ID chart is Ex.PW16/D(running into one page) bearing his signatures and office seal at point A. According to the witness Certificate U/s 65 B of Indian Evidence Act is Ex.PW16/E bearing his signatures and office seal at point A. St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 40 (53) In his cross examination by Ld. Defence counsel, witness has deposed that their main server is situated at Noida and he had retrieved the call details from his personal computer set as he had a direct access from the main server. Witness has denied the suggestion that there is no system of regular power backup in their office resulting into a data loss. Witness has denied the suggestion that the above calls details have been fabricated on the directions and at the instance of the Investigating Officer. Witness has denied the suggestion that he was deposing falsely. (54) PW18 Sh. M.N. Vijayan, has deposed that he has not able to secure the record of mobile No. 9210836887 since as per their record it was converted into Airtel. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard. Police/ Official Witnesses:
(55) PW2 ASI Shadi Lal deposed that on 20.08.2011 he was posted at PS Bharat Nagar as Duty Officer from 4 pm to 12 midnight and at about 5.55 pm, Ct. Ram Avtar brought a rukka, sent by Inspector Lalit Joshi. According to the witness on the basis of the rukka, he got recorded the FIR through computer operator and copy of FIR available on record is Ex.PW2/A. Witness has further deposed that the FIR is the correct version of the rukka. According to the witness also made endorsement on the rukka, which is Ex.PW2/B and he also recorded DD No.29A in respect of registration of FIR attested copy of which is Ex.PW2/C. St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 41 Witness has deposed that he also recorded DD No.31A, attested copy of which is Ex.PW2/D. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard.
(56) PW3 SI Devender deposed on 20.08.2011 he was posted as Incharge, Mobile Crime Team, North West District and on that day, they received information for inspection of the spot. According to the witness he along with members of the Crime Team i.e Ct. Subhash and Ct. Ram Kishan reached at Nimri Colony, Shopping Complex, outside Government Wine and Beer shop, Bharat Nagar and they inspected the crime scene from 4.30 pm till 5.30 pm. Witness has further deposed that he prepared his detailed report, which is Ex.PW3/A. According to the witness photographer Ct. Subhash took the scene of crime from different angles.
This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard.
(57) PW 7 Ct. Subhash Chand has tendered his examination in chief by way of affidavit, which is Ex.PW7/1 bearing his signatures at point A and B and he relied upon photographs which are Ex.PW7/A1 to Ex.PW7/A5 and negatives of the same which are Ex.PW7/B collectively. In his affidavit, witness has deposed that on 20.08.2011 he was posted as constable in crime team, northwest district, Police Station Maurya Enclave and on that day on receipt of wireless message, he along with other crime team staff reached at Nimri colony shopping complex Delhi. According to the witness he took photographs of scene of crime from different angles St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 42 and after developing the same, handed over to investigating officer Inspector Lalit Joshi who recorded his statement on 20.08.2011. (58) In his cross examination by Ld. Defence Counsel, witness has denied the suggestion that the photography was done on the directions of the Investigating Officer after manipulation of scene of crime. (59) PW8 W/ASI Sushila, has tendered her examination in chief by way of affidavit, which is Ex.PW8/1 bearing her signatures at point A and B and she relied upon DD No. 24A, copy of which is Ex.PW8/A and DD No. 26A, copy of which is Ex.PW8/B. In her affidavit, the witness has deposed that on 20.08.2011 she was posted at Police Station Bharat Nagar and was deployed as duty officer from 8AM to 4PM and on that day a PCR call regarding firing at a person at phase 4, Ashok Vihar JJ colony near Wine Shop was received in Police Station Bharat Nagar and she lodged the same at 3:14PM vide DD No. 24A dated 20.08.2011 Police Station Bharat Nagar. According to the witness on the same day another PCR call regarding attempt to rob bank at Nimri colony near DDA market shopping complex Wine Shop received in Police Station Bharat Nagar and she lodged the same at 3:17 PM vide DD No. 26 A dated 20.08.2011 Police Station Bharat Nagar.
(60) In her cross examination by Ld. Defence counsel, witness has denied the suggestion that the DD record had been manipulated by her on the instructions of the senior officers by deliberately not recording the initial call first.
St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 43 (61) PW9 Insp. Manohar Lal, has tendered his examination in chief by way of affidavit, which is Ex.PW9/1 bearing his signatures at point A and B and he relied upon Scaled site plan which is Ex.PW9/A bearing his signatures at point A. In his affidavit, witness has deposed that on 17.10.2011 on the request of investigating officer/Inspector Brij Pal Singh, he visited at the scene of crime i.e. Nimri Colony shopping complex and made a Rough Sketch and took measurements of scene of crime at the instance of Inspector Lalit Joshi. According to the witness on the basis of rough sketch and measurements, he prepared Scaled Site Plan on 18.10.2011 and handed over to investigating officer/Inspector Brij Pal Singh and his statement was recorded by investigating officer on 17.10.2011.
(62) In his cross examination by Ld. Defence counsel, witness has admitted that he had prepared the scaled site plan at the instance of the Investigating Officer. Witness has further deposed that at the spot he only prepared the rough notes, voluntarily added that he finalized the same in the office. Witness has admitted that he did not hand over the rough notes to the Investigating Officer, voluntarily added that the same has been destroyed. Witness has denied the suggestion that he did not prepare the scaled site plan as per the spot.
(63) PW10 HC Anuj Kumar has tendered his examination in chief by way of affidavit, which is Ex.PW10/1 bearing his signatures at point A and B and he relied upon DD No. 31A, copy of which is St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 44 Ex.PW2/D. In his affidavit, the witness has deposed that on 20.08.2011 he was posted as constable at Police Station Bharat Nagar and on that day at about 7:10 PM duty officer ASI Shadi Lal had sent him for giving special report to the ACMM and senior officers on government motorcycle No. DlISS2576 and made his departure vide DD No. 31A Police Station Bharat Nagar. Witness has further deposed that he had handed over the special report to the ACMM and senior officers and came back to the Police Station Bharat Nagar and his statement was recorded by investigating officer/Inspector Lalit Joshi on 20.08.2011. (64) This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard. (65) PW11 HC Sanjay Kumar has tendered his examination in chief by way of affidavit, which is Ex.PW11/1 bearing his signatures at point A and B and he relied upon entry in register No. 19 vide mud No. 317, copy of which is Ex.PW11/A(running into four pages), mud No. 317A, copy of which is Ex.PW11/B, entry in register No. 21 vide RC No. 68/21/11 dated 27.10.2011, copy of which is Ex.PW11/C, RC No. 69/21/11 dated 27.10.2011, copy of which is Ex.PW11/D, FSL receipts copies of which are Ex.PW11/E and Ex.PW11/F respectively. In his affidavit, witness has deposed that on 20.08.2013 he was posted as MHC(M) at Police Station Bharat Nagar. According to the witness on 20.08.2011 and on 21.8.2011 investigating officer Inspector Lalit Joshi had deposited the St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 45 case properties of the case in Malkhana and he made entires in register No. 19 vide Mud No. 317 and 317A respectively. Witness has further deposed that on 27.10.2011 on the instructions of Investigating Officer/Inspector Brij Pal Singh, he handed over 10 sealed exhibits of this case along with FSL form and sample seals vide RC No. 68/21/11 dated 27.10.2011 and one sealed parcel along with FSL form and sample seal vide RC No. 699/21/11 dated 27.10.2011 to Ct. Dhir Singh No. 1872/NW Police Station Bharat Nagar to deposit the same in FSL Rohini. According to the witness the exhibits were sealed with seal of LJ, SLJH and FMT, BJRM Hospital, Delhi. Witness has further deposed that Ct. Dhir Singh deposited the above mentioned exhibits at FSL, Rohini on the same day i.e. on 27.10.2011 and handed over acknowledgments and copies of RC to him. According to the witness so long as the exhibits remained in his custody, the same remained intact and his statement was recorded by investigating officer/ Inspector Brij Pal Singh on 27.10.2011. (66) In his cross examination by Ld. Defence counsel, witness has denied the suggestion that the entries in the Register No. 19 have been manipulated by him anti datedly at the instance of the Investigating officer.
(67) PW12 Ct. Dhir Singh, has tender his examination in chief by way of affidavit, which is Ex.PW12/1 bearing his signatures at point A and B and he relied upon RC No. 68/21/11 dated 27.10.2011, copy of which is Ex.PW11/C, RC No. 699/21/11 dated 27.10.2011, copy of which St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 46 is Ex.PW11/D, FSL Receipts, copies of which are Ex.PW11/E and Ex.PW11/F respectively. In his affidavit, witness has deposed that on 27.10.2011 he was posted at Police Station Bharat Nagar and on that day on the instructions of investigating officer/ Inspector Brij Pal Singh, he took 10 sealed exhibits of this case along with FSL Form and sample seals vide RC No. 68/21/11 dated 27.10.2011 and one sealed parcel along with FSL form and sample seals vide RC No. 699/21/11 dated 27.10.2011 from HC Sanjay MHC(M) Police Station Bharat Nagar. Witness has further deposed that exhibits were sealed with seal of LJ, SLJH and FMT, BJRM Hospital and he deposited the above mentioned exhibits with FSL form and sample seals at FSL Rohini on the same day i.e. 27.10.2011. According to the witness he handed over the acknowledgment and copies of RC to MHC(M) Police Station Bharat Nagar and so long as the exhibits remained in his custody, the same remained intact and his statement was recorded by investigating officer/Inspector Brij Pal Singh on the same day i.e. on 27.10.2011.
(68) This witness was not cross examined by Ld. Defence counsel, despite opportunity being an granted.
(69) PW17 Sh. Amit Vats has deposed that he is presently working as Deputy Manager with A2Z Infra Services Pvt. Ltd. which is into providing facility management and security services which includes the house keeping services. Witness has brought the summoned record regarding the appointment of the accused Sandeep, S/o Sh. Jai Singh, St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 47 R/o Village Solda, Tehsil Bahadurgarh, District Jhajjar, Haryana. Witness has deposed that Sandeep was appointed as a gun man with CMS Securitas Ltd. Okhla and Jhandewalan, Delhi and the copy of the Bio Data of Sandeep is Ex.PW17/A (running into one page) the personal information form is Ex.PW17/B the accompanying documents which includes copy of ammunation licence issued from DM Jhajjar is Ex.PW17/C (running into three pages). Witness has further deposed that copies of his pay slip from April, 2011 till August, 2011 are Ex.PW17/D (running into five pages), copy of letter of appointment is Ex.PW17/E (running into two pages) bearing the signatures of the HRD at point A which he identify and also the signatures of Sandeep at point B (not disputed by the accused). This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard. (70) PW 19 HC Om Parkash has deposed that on 20.08.2011 he was posted at PCR NW Zone as Head Constable and his duty was in Van No. C8 PCR Van as Incharge from 8AM to 8PM and at about 3:15 PM when they were at stationed at Nimri colony Ashok Vihar near the theka/liquor vend they received information from Control Room that one person had been shot at liquor vend at Nimri colony falling within the jurisdiction of Police Station Bharat Nagar. Witness has further deposed that on receipt of this call he immediately reached in front of the liquor vend within one or two minutes and found a large crowd of public persons. According to the witness an Esteem Car was parked there in front St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 48 of the liquor vend and inside the vehicle he found one girl sitting on the left side on the front seat who was crying and on the adjoining seat in front of the steering a boy aged about 2530 years was sitting and was not moving. Witness has further deposed that there was blood oozing out from his nose and the girl was holding his mouth and he made inquiries and came to know that the name of the girl was Nisha and the boy was her friend namely Virender @ Billu. Witness has further deposed that he asked her as to what had happened and she informed that a person standing in front of her had fired a shot and the bullet brushed through her finger and hit the boy Virender on his nose. According to the witness he immediately shift both of them to his PCR van and rushed them to Sunder Lal Jain hospital, Ashok Vihar where the boy was declared brought dead and the girl disclosed that the deceased Virender was her boy friend and they both were consuming liquor outside the liquor vend when the security guard on the theka stopped them from consuming liquor and there was a verbal altercation and abusing i.e. gali gloach. (71) This Court then observed that the witness was not coming out with the complete details despite repeated questions being put to him by the public prosecutor which he was evading to reply on which the Court has to intervene to inform about what the girl Nisha had told him, which testimony was then recorded in verbatim (vernacular) as ...... Nisha ne mujhe batya ki woh aur uska dost theke par baith kar beer pe rehe thai, security guard ne unko mana kiya, uske bad gali galoch hui aur uske bad St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 49 ladki ne mujhe kuch nahi bataya kyonki woh rone lag gaye..... (72) Thereafter leading questions were put to the witness by Ld. Addl. PP for the State after permission from the Court on which the witness admitted that his statement was recorded by the Investigating Officer Inspector Lalit Joshi which is Ex.PW19/PX1. Witness has admitted that he had told Inspector Lalit Joshi that on inquiry Nisha had told him that there was a Maruti Van already parked in front of liquor vend and one boy sitting in the Maruti Van was passing obscene comments on her and was looking at her objectionably "....ek ladka usko obscene comments pass kar raha tha aur galat nazar se dekh raha....." Witness has admitted that when Virender asked him not to do the same and objected to his behaviour, there was a verbal altercation/kaha suni between the two and on this the said boy pulled out his revolver and shot Virender. Witness has also admitted that Nisha informed that she tried to stop Virender from entering into a verbal altercation with the said boy and for doing so shut his mouth with her hand on which the bullet touched her finger and struck the nose of Virender (meine Virender ko chup karane ke liye uske muh par hath rakha tha, gole mere ungle ko touch kar ke Virender ko lag gaye). The court has repeatedly asked the witness why he has not disclosed the aforesaid facts initially of his own on which the witness was evasive and has kept quite but after much time responded by saying that he did not remember the same (dhyan nahi raha). Thereafter on a query from the Court he initially stated that he did not read his St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 50 statement U/s 161 Cr. P.C to refresh his memory when he came to the court and then again said that he had read little but of the statement but it skipped his mind "thoda sa para tha, last wali baat demag se nikal gaye". (73) In his cross examination by the Ld. Defence counsel, witness has deposed that his statement was recorded on 20.08.2011. He has clarified that he was called to the Police Station where his statement was recorded which statement according to him was also signed by him but he did not read this statement which was recorded by the Investigating Officer. This Court then observed that the statement U/s 161 Cr. P.C. does not bears his signatures. Witness has denied the suggestion that he did not tell the Investigating Officer that there was a Maruti Van already parked in front of liquor vend and one boy sitting in the Maruti Van was passing obscene comments on her and was looking at her objectionably and when Virender asked him not to do the same and objected to his behaviour, there was a verbal altercation/kaha suni between the two and on this the said boy pulled out his revolver and shot Virender or that Nisha informed that she tried to stop Virender from entering into a verbal altercation with the said boy and for doing so shut his mouth with her hand on which the bullet touched her finger and struck the nose of Virender but thereafter has voluntarily added that the girl had told him all these things. Witness has denied the suggestion that he had mentioned all these aspects on the suggestion of the public prosecutor and did not mention the same initially because nothing of this kind was told to him by the girl Nisha. Witness St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 51 has denied the suggestion that he was deposing falsely at the instance of the senior officers.
(74) PW20 ASI Tribhuvan Nath has deposed that on 20.08.2011 he was posted at Police Station Bharat Nagar and on that day after receiving DD No. 24A regarding one person being shot by someone and DD No.26 A regarding some persons having committing robbery in a bank, he along with ASI Dev Raj and ASI Jagbir went to Shopping Center, Phase IV, Nimri Colony at the Wine Shop where they found HC Devender and Ct. Ram Avtar were already present and HC Devender had apprehended one person. Witness has further deposed that they also found two vehicles i.e. Maruti van Omini and one Esteem Car were parked in front of Wine Shop. According to the witness on inquiry they came to know that driver of Esteem Car was shot at by the person who was apprehended by HC Devender. Thereafter he was first directed by Insp. Lalit Joshi to manage the crowd and then to shift the dead body from Sunder Lal Jain hospital to BJRM Hospital. Inspector Lalit Joshi handed over to him a request letter for preservation of the dead body and for conduct of postmortem on the dead body after which he took the dead body to the BJRM hospital and handed over the request letter to the concerned doctor and remained there till the postmortem was got conducted.
(75) Witness has further deposed that the postmortem on the dead body was conducted on 21.08.2011 and after postmortem the doctor St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 52 handed over to him four sealed parcels duly sealed with the seal of FMT BJRM hospital along with two sample seals which he then handed over to the Investigating Officer Insp. Lalit Joshi who seized the same vide seizure memo Ex.PW20/A after which his statement was recorded by the Investigating Officer Inspector Lalit Joshi.
(76) In the leading questions put by Ld. Addl. PP for the state, witness has admitted that out of the two vehicles parked in front of the liquor vend one was Maruti van Omni number DL1RT0740 Radio Taxi of white color and the other was Maruti Esteem Car bearing No. DL9CB0129 of dark grey color. He has also admitted that the number of the token obtained from the BJRM Hospital on the dead body was 53 and has voluntarily added that he had forgotten these numbers on account of passage of time.
(77) In his cross examination by the Ld. Defence counsel, witness has admitted that his signatures are not present on any of the documents prepared at the spot and has voluntarily added that it is only on the seizure memo of the pullanda handed over by the doctors. According to the witness he cannot identify the boy who had been caught by the public and handed over to HC Devender and has voluntarily explained that he had remained at the spot for very short time. Witness has denied the suggestion that he did not go to the spot of the incident and hence his signatures are not present on any of the documents prepared at the spot or it is for this reason that he was unable to identify the accused. St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 53 (78) PW24 Sh. Anuj Dobhai, has deposed that he used to operate all operations of the CMS Info Systems and they used to collect the cash collection of the bank customers on behalf of the bank and deposit the cash in the designated banks. According to the witness he had provided the Route Chart of the customer cash pick up which is Ex.PW24/A and had also provided the route chart of the customer wise cash pickup which is Ex.PW24/B. Witness has further deposed that according to this route chart on 20.08.2011 their cashier/ custodians were to collect the cash from DTTDC Nimri Colony for Axis bank and Sandeep was the gun man for Wazirpur road and his route chart is Ex.PW24/C. According to the witness he had also provided the attendance sheet of 20.08.2011 relating to Sandeep for his duties which is Ex.PW24/D. Witness has identified the Sandeep was in the court as the Gunman with them to pick up the cash with out cashierscustodians.
(79) In his cross examination by Ld. Defence counsel, witness has deposed that he cannot produce the original documents relating to the attendance sheet and the Route Chart and has voluntarily explained that the same has been misplaced in the renovation of their office. (80) PW26 HC Raj Rani has deposed that on 20.08.2011 she was posted at Police Station Bharat Nagar and on that day she was present in the Police Station and she had joined the investigations in this case along with SI Satish. According to the witness she had gone to Sunder Lal Jain Hospital where they met Nisha and that Nisha was taken out from the St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 54 emergency department and was questioned. According to the witness, the statement of Nisha was then recorded and thereafter she along with accompanying police officials reached at the spot i.e. Nimri Colony, Shopping Complex, English Wine Shop and the Investigating Officer prepared a rukka. Witness has further deposed that there were blood stains of Virender on the clothes of Nisha and the said clothes were removed after supplying her another set of clothes and same were taken into possession vide seizure memo Ex.PW5/B after sealing with the seal of LJ. According to the witness she can identify the clothes if shown to her. Thereafter the witness has correctly identified one ladies shirt of yellow color, one chunni of yellow color and one pajami of yellow color as the same which was taken from the body of Nisha which are collectively Ex.P4.
(81) In her cross examination by Ld. Defence counsel, witness has denied the suggestion that the clothes were not taken into possession in the manner as deposed by her. Witness has denied the suggestion that the seizure memo was prepared while sitting in the Police Station which she merely signed on the asking of the senior officers. (82) PW27 SI Satish Kumar has deposed that on 20.08.2011 he was posted as SI at Police Station Bharat Nagar and on that day he received DD No. 24A at 3:14 PM which is Ex.PW8/A. According to the witness on receipt of the same he along with Ct. Ram Avtar reached at the spot i.e. English Wine Shop, Nimri Colony, Commercial Complex where St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 55 he found two vehicles parked one belonging to the accused and one belonging to the deceased which fact he came to be known on inquiry. Witness has further deposed that HC Devender met him at the spot and he informed him that the injured had been shifted by the PCR official and one boy had been apprehended by the name of Sandeep who had allegedly fired at the injured. According to the witness in the meantime the SHO had reached the spot and he had also inquired the matter at the spot. Witness has further deposed that Ct. Ram Avtar and HC Devender were left at the spot to safe guard the spot and thereafter he along with SHO had left the spot for the hospital and they reached at Sunder Lal Jain hospital where they collected two MLCs i.e. one of Virender who was declared brought dead and the other was of Nisha, the complainant of this case. Witness has further deposed that Nisha was fit for making the statement and her statement was recorded. Thereafter the doctor handed over to him two pullandas related to the deceased duly sealed with the seal of SLJH and articles of personal search of the deceased. Witness has further deposed that in the meantime L/Ct. Raj Rani reached in the hospital who was called by the SHO from the Police Station and thereafter he along with Nisha, SHO and L/Ct. Raj Rani reached at the spot which he inspected. The witness has further deposed that the crime team had also reached at the spot and inspected the same which spot was photographed. Thereafter the finger print expert had lifted the finger prints from the spot but no finger prints were found there and the rukka St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 56 was prepared by him on behalf of the SHO. According to the witness the rukka was handed over to Ct. Ram Avtar for registration of the FIR of this case who went to the Police Station and came back after getting the case registered and thereafter the site was inspected on the pointing of Nisha. (83) Witness has further deposed that in the meantime he received the DD entry No. 26 A which is Ex.PW8/B. Witness has further deposed that the DD was regarding attempting of bank dacoity by some persons and the call was found to be bogus as it was made by the accused. He then recorded the statement of the members of the Crime Team. According to the witness the crime team officials produced their reports. He has stated that the Maruti Esteem bearing No. DL9CB0129 belonging to deceased was also inspected by them after the inspection by the crime team. Witness has further deposed that one empty beer can of Thunder Bolt, one empty beer can of Kingfisher with blood stains on these beer cans was found and they also found blood stains present on the other parts of the car mainly on the front seats. Witness has further deposed that both the beer cans were lifted from the spot and thereafter the seat covers were cut off from the main seat which were blood stained and then the above stated articles were converted into separate pullandas and three pullandas were prepared and sealed with the seal of LJ and thereafter the same were taken into possession vide seizure memo Ex/PW5/G. Witness has further deposed that thereafter the Esteem Car was taken into possession vide seizure memo Ex.PW5/E and thereafter St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 57 the OMNI car was taken into possession vide seizure memo Ex.PW5/F. According to the witness thereafter two pullandas which were collected from the hospital were taken into possession vide seizure memo Ex.PW27/A and the personal search articles of deceased i.e. one black color purse, cash of Rs 237/, RC of vehicle, Driving Licence and some visiting cards, one mobile phone of make C3 NOKIA of silver white color which were handed over to them by the Nisha as belonging to the deceased was also taken into possession vide seizure memo Ex.PW27/B. Witness has further deposed that the accused Sandeep @ Sonu was in the custody of HC Devender and he was then interrogated by the SHO and thereafter the accused was arrested in this case vide arrest memo Ex.PW5/C and his personal search was also conducted vide memo Ex.PW5/D. Witness has further deposed that from the personal search of accused one licence of arms was also recovered which was taken into possession vide the separate seizure memo. Witness has further deposed that thereafter the accused was interrogated in length and his disclosure statement was also recorded vide memo Ex.PW27/C and thereafter the licence of the revolver was taken into possession vide seizure memo Ex.PW5/K. (84) Witness has further deposed that HC Devender produced a revolver stated to be of the accused which was checked and was found to be containing three live cartridges and one empty cartridge and thereafter St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 58 the sketch of the revolver vide Ex.PW5/H and the sketch of cartridge Ex.PW5/I were prepared by him. Witness has further deposed that thereafter cartridges and the revolver were converted into sealed pullanda and sealed with the seal of LJ and thereafter same were taken into possession vide seizure memo Ex.PW5/J and the statement of the witnesses were recorded.
(85) Witness has further deposed that there were blood stains on the clothes of Nisha and new clothes were arranged for Nisha and same were provided to her after which Nisha had changed her clothes in the presence of L/Ct. Raj Rani, inside the room and her clothes were taken into possession vide seizure memo Ex.PW5/B which clothes were kameej and salwar and one chunni. According to the witness, Vinod Kumar was the driver of the OMNI car and the documents of the said car was also taken into possession vide seizure memo Ex.PW22/A. According to him, the dead body was sent to the mortuary for postmortem and the accused was also sent to the hospital for her medical checkup through police official and the statement of relevant witnesses were recorded in this regard. According to the witness thereafter he along with the other police officials reached the Police Station and thereafter the exhibits were deposited with the MHC(M) who made entry in register No. 19 and his statement was also recorded by the SHO.
(86) Witness has further deposed that he joined the investigations in this case on 23.08.2011 and reached the court of ACMM Rohini along St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 59 with witness Vinod Kumar for recording his statement U/s 164 Cr. P.C. According to the witness he moved an application before the Ld. ACMM which is Ex.PW27/C and this application was marked to first link MM Sh. Neeraj Gaur after which Ld. MM Sh. Neeraj Gaur recorded the statement of Vinod. He then moved an application for supply of the copy of the statement which was allowed by Ld. MM and the copy was provided to him which application is Ex.PW27/D. (87) He has correctly identified the case property i.e. the beer can of Thunder Bolt which is Ex.P1; one beer can of Kingfisher which is Ex.P2; two pieces of seat covers which are collectively Ex.P3; one ladies shirt, one pyjami and one dupata belonging to Nisha which are collectively Ex.P4; one revolver, one live cartridge, three fired empty cartridges and bullet as the same as seized by the SHO which Revolver is Ex.P5 and cartridges are collectively Ex.P6; the Esteem Car bearing No. DL9CB0129 which is Ex.P7 and Omni Van bearing No. DL1RT0740 which is Ex.P8.
(88) In his cross examination by Ld. Defence counsel, witness has deposed that he reached at the spot at about 3:20 PM when there was a crowd but he cannot tell the names and numbers of persons. According to the witness he had made some inquiries from HC Devender, driver Vinod and the employee of the Wine Shop. He has stated the SHO had reached at the spot at about 3:30 PM with his driver but he cannot tell the name of St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 60 the driver. Witness has further deposed that after 10 minutes the SHO had left the spot for Sunder Lal Jain Hospital and within those 10 minutes the SHO had made inquiries from the person present at the spot and had called the police force from the concerned Police Station to protect the spot of the incident. Witness has further deposed that no case property was taken into possession at that time. He has stated that he reached at Sunder Lal Jain Hospital at about 3:45 PM. According to the witness he did not give any information to the Control Room and voluntarily added that he only gave the information to the SHO. According to the witness he was not aware if the SHO had passed on any information to the Control Room. He has stated that they remained in the hospital about 3045 minutes. Witness has further deposed that the statement of Nisha was recorded by him under the instructions of the SHO and the case property was deposited with the MHC(M) by the SHO and himself. Witness has further deposed that he did not sign in register No. 19 but he cannot tell about the SHO. According to the witness he cannot tell if the SHO or the MHC(M) had filled up the time regarding the deposit. Witness has further deposed that they reached the spot from Sunder Lal Jain hospital at about 4:30 PM. According to the witness he cannot tell the exact time when the Crime Team was informed by the SHO and states that before the Crime Team inspected the spot no exhibits were lifted by the SHO. (89) Witness has further deposed that the revolver which was handed over by Devender to the police was in a handkerchief but he did St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 61 not check the revolver and therefore he cannot tell whether there were any blood stains on the same or not. According to the witness, the rukka was sent after completion of inspection by the crime team . He has deposed that the crime team remained at the spot till around 5:155:30 PM and during that period statements of some witnesses were recorded which included Vinod the driver of the taxi and the other persons who were along with the taxi including the employee of the Wine Shop and the police officials. Witness has further deposed that they remained at the spot till about 11:3012:00 midnight during which period the entire investigation proceedings were carried out by the SHO and he left the spot at around 11:45 PM 12:00 AM after which he was relieved and he went to the Police Station. Witness has further deposed that the other police staff also returned to the Police Station which included HC Devender, ASI Dev Raj and ASI Jagbir who had been called to the spot for controlling the crowd and other officers who had first gone to the hospital and then returned to the Police Station including Ct. Ram Avtar, Ct. Dhir Singh.
(90) Witness has admitted that he mentioned the sections to be evoked in the endorsement after going through the contents of the statement. Witness has further deposed that he had told the SHO who was recording his statement that the call regarding the bank dacoity was found to be bogus and had been made by the accused but he does not know whether the SHO recorded the same or not. According to the witness Ct. St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 62 Ram Avtar had returned to the spot along with a copy of the FIR and original rukka at around 7:30 PM and the case property which included beer can, cartridges, blood stained clothes, both cars etc. which were taken into possession after registration of the FIR and receipt of the same. Witness has further deposed that the family members of Nisha were called at the spot but he cannot tell the details of the said members who remained along with Nisha. He has stated that Nisha had left the Police Station around 11:00 PM and L/Ct. Raj Rani was with her during that period. He has stated that Nisha did not join the investigations again in his presence and states that he does not recollect whether he had stated in his statement to the police the fact that new clothes were arranged for Nisha and provided to her or that Nisha had changed the clothes in the presence of L/Ct. Raj Rani inside the room. Witness has further deposed that the SHO had called the witness Vinod Kumar in the Police Station on 23.08.2011. According to the witness he does not remember about the name and numbers of the persons who were present in the Police Station and whose statements were being recorded which included the police officials and has voluntarily added that he only recollects that Vinod was there because he was with him but about the others he does not recollect. Witness has further deposed that the statements were recorded on the same day. Witness has denied the suggestion that Vinod did not make any statement or that his statement was recorded on his tutoring. Witness has further deposed that the accused was arrested at 8 PM. According to the St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 63 witness he does not remember the name of the relatives of the accused who was informed him about the arrest of the accused but states that his father had come at the spot.
(91) Witness has further deposed that SHO had asked the public persons to join the investigations at the spot but none joined the same. According to him, the SHO did not give any notice to the public persons for not joining the investigations. He has deposed that he did not give any statement to the SHO regarding the proceedings conducted by him on 23.08.2011. Witness has further deposed that seal of LJ was not handed over to anyone in his presence and it was remained with the SHO in his presence. Witness has further deposed that there were some more bottles in the car but same were not taken into possession as same were not blood stained. According to the witness he does not recollect whether the glasses of the car were painted or plain and has voluntarily added that the windows had been pulled down but the back wind screen was having a light taint. Witness has denied the suggestion that he had signed all the memos at the Police Station at the instance of the SHO or that no case property was taken into possession by the Investigating Officer of this case in his presence. Witness has denied the suggestion that HC Devender had not handed over the accused and revolver to him at the spot; that the statement of Nisha was not recorded in the hospital nor the rukka was sent from the spot. Witness has denied the suggestion that statements witnesses were not recorded at the spot in his presence or that HC St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 64 Devender Singh had not disclosed to him about the incident when he reached at the spot. Witness has denied the suggestion that from the spot he and SHO had informed the PCR Control Room that the incident had taken place due to the wrong parking by the driver of the Esteem Car. Witness has denied the suggestion that the blood stained clothes of Nisha were not taken into possession in his presence and the accused was not arrested in his presence nor he give any disclosure statement. Witness has denied the suggestion that SHO had not asked the public persons to join the investigations in his presence. He has also denied the suggestion that there were some other eye witnesses of the incident from the locality but neither he nor the SHO intentionally recorded the statements of those persons. Witness has admitted that the incident had taken place in a thorough fare. He has denied the suggestion that he had not joined the investigations in the present case and he was deposing falsely. (92) PW28 HC Devender, has deposed that on 20.08.2011 he was posted at Police Station Bharat Nagar and was on patrolling duty in the area of Nimri Colony alone and reached at Bunker Chowk near Nimri Shopping Complex at about 3:00 pm. According to the witness he heard voice of firing from the side of Nimri Shopping Complex and he reached there immediately in front of wine beer shop where one Esteem Car bearing no. DL-9CB-0129 was parked. Witness has further deposed that one girl was sitting on the left side of Esteem Car with the head of a male person on her lap which person was injured, on which he asked that lady St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 65 as to what had happened. According to the witness the lady told him that the person who was standing in front of the car had fired upon the injured Virender on which he rushes towards that boy who was having a revolver in his right hand. He then asked the boy to hand over the revolver which was in his hand to him and caught the revolver with the help of handkerchief. According to the witness thereafter, the boy whose name was then known as Sandeep was apprehended and questioned Nisha who informed him that she had already informed the police through 100 number. Witness has further deposed that after some time, the PCR Van reached there and Virender and Nisha were rushed to the hospital and thereafter, SI Satish and Ct. Ram Avtar also reached there. According to the witness he informed these facts to SI Satish and in the meantime, the SHO also reached there alongwith staff and he and the other members of staff were left at the spot to safeguard the same and control the situation. Thereafter the SHO left the spot alongwith SI Satish for Sunder Lal Hospital. Witness has further deposed that at about 4:30 pm, the SHO and SI Satish came back to the spot in the meantime the Crime Team officials also reached and the spot of the incident was photographed through members of the crime team. Witness has further deposed that the Crime Team was asked to get lift the chance prints from the revolver but no chance prints could be found/lifted and thereafter, endorsement was made by SI Satish under the supervision of the SHO. Witness has further deposed that rukka was prepared and the same was handed over to Ct. St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 66 Ram Avtar and thereafter, the further investigation was carried out. According to the witness thereafter, the accused was interrogated and arrested in this case vide arrest memo Ex.PW5/C and his personal search was conducted which is Ex.PW5/D. Witness has further deposed that during the personal search of the accused, an arms licence was also recovered from him which was also taken into possession vide seizure memo Ex.PW5/K. He then handed over the revolver to the SHO which revolver was checked and found to be containing three live cartridge and one empty shell after which SI Satish prepared the sketch of revolver which is Ex.PW5/H and the sketch of cartridges and empty shell vide Ex.PW5/I and thereafter, the revolver was measured. Witness has further deposed that thereafter the SHO kept the revolver, live cartridges and empty cell in a plastic container and then converted the same into a pullanda with the help of a white cloth which was sealed with the seal of LJ. The witness has identified the licence which is Ex.PW28/A. He has also identified one revolver, one live cartridge, three fired empty cartridges and bullet as those as seized by the SHO which Revolver is Ex.P5 and cartridges are collectively Ex.P6.
(93) In his cross examination by Ld. Defence counsel, witness has deposed that he reached at spot within two or three minutes after hearing the sounds of fire. Witness has admitted that voice of fire cracker and voice of a bullet is alike. According to the witness the Duty Officer made St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 67 his departure entry alongwith other staff at 9:00 am on that day with regard to the beat patrolling in the area of Nimri Colony. Witness has further deposed that the incident had taken place in a market area and when he reached at the spot, he found some public persons but he can not tell their names and number. Witness has further deposed that within 10 minutes, PCR Van reached at the spot and PCR shifted the injured to hospital. He has stated that the PCR Staff had not talked to him about anything. He has deposed that SI Satish reached at the spot first and thereafter the SHO had reached. According to the witness it was just after 10 minutes that SI Satish and the SHO left the spot for the hospital and till that time the information had been received by the SI Satish and SHO that the injured had been admitted in the SLJ Hospital on which without wasting any time, they left the spot for hospital. Witness has further deposed that at about 4:30 PM the SHO came back at the spot alongwith SI Satish and the crime team had also reached at the spot at the same time. According to the witness the SHO had asked some public persons to join the investigation but none agreed but no notice was given by the SHO to those persons and no action was taken against them. Witness has further deposed that he had not stated these facts in his statement U/s 161 Cr.P.C. and has denied the suggestion that he had not stated these facts in his statement as the SHO had not asked any public persons to join the investigation. Witness has further deposed that he alongwith SHO, SI Satish Kumar and other police officials only remained at the spot till 10:30 St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 68 pm. Witness has further deposed that statement of Ct. Devender from Crime Team and his statement were recorded at the spot but he does not remember if any other statement was recorded at that time. According to the witness he did not give any feedback to the PCR and when he reached at the spot, it had not be come to his knowledge as to how any why this incident had happened as no body was willing to tell the reason. Witness has further deposed that the rukka was prepared by SI Satish and the same was sent at 5:50 PM and till the sending of the rukka, no case property was seized and sealed. According to the witness he can not tell the time when the case property was seized and sealed or taken into possession by the Investigating Officer. Witness has further deposed that some seizure memos were prepared by ASI Devraj in his handwriting and some were prepared by SI Satish but he can not tell which seizure memo was prepared by whom. According to the witness he had stated in his statement that SI Satish had made a sketch of revolver and cartridges with one empty cell which bears his signatures. According to the witness he does not remember whether he had stated in his statement that the licence of the revolver was mentioned in the personal search of the accused. Witness has further deposed that he had stated only those facts which he saw at the spot not anything else to SI Satish and SHO. Witness has denied the suggestion that he had lifted the revolver from the hands of the deceased who was sitting at the driver seat of the Esteem Car. Witness has further denied the suggestion that when he reached at the spot the girl St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 69 Nisha was weeping and kept on weeping till the PCR reached at the spot and thereafter the PCR took both the injured persons to the hospital. According to the witness he cannot tell whether any feedback was given by SI Satish and by SHO to the PCR regarding the happening of the incident and cause of incident from the spot till 10:30 PM i.e. till they remained at the spot. Witness has further deposed that after registration of the FIR, Ct. Ram Avtar came back at the spot at about 7:15 PM. Witness has further deposed that he was busy with the accused Sandeep and he does not remember when and where the seizure memo was prepared. According to the witness the accused was arrested at about 8:00 pm and his father was informed. Witness has denied the suggestion that the Crime Team had lifted some chance prints but those were the finger prints of deceased. Witness has further deposed that he had handed over the said revolver firstly to the crime team and then crime team further handed over the same to him after examination and in this process he further handed over the said revolver to SI Satish. He has further clarified that he had handed over the said revolver to crime team with handkerchief. Witness has further deposed that he had not mentioned in his statement that he had handed over the said revolver to crime team with the handkerchief and has denied the suggestion that he was deposing falsely in this regard. Witness has further deposed that the pullandas were taken in possession with the seal of LJ and the seal was remained with the SHO. Witness has denied the suggestion that girl Nisha had not disclosed about St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 70 the cause of incident to him and she had not pointed out the accused stating that he has fired upon a deceased. Witness has denied the suggestion that since Nisha had not disclosed the cause of incident to him, he had not given these facts further to SI Satish and Ct. Ram Avtar. Witness has further explained that he had not briefed any of the fact about the case and cause and manner of incident to any of the police officials as he was not told about the same by any of the person on the spot. According to the witness the accused did not try to run away and cooperated with the police at that time and has admitted that he came to know that the accused Sandeep had also made a call to the police. Witness has denied the suggestion that he signed the memos at the Police Stations at the instance of the Investigating Officer. He has also denied the suggestion that statement of Nisha was not recorded in his presence, or that the revolver was not taken by him from the hand of accused. He has also denied the suggestion that his statement was not recorded at the spot. He has also denied the suggestion that accused did not make any disclosure statement in his presence.
(94) PW29 Insp. Brij Pal Singh, has deposed that on 08.10.2011 he was posted at Police Station Bharat Nagar and on that day further investigations of this case was marked to him and he received the case file. According to the witness on 17.10.2011 he got the scaled site plan of the spot of the incident prepared from the draftsman at the instance of Inspector Lalit Joshi and he then recorded the statements of draftsman SI St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 71 Manohar Lal and Insp. Lalit Joshi. Witness has further deposed that on 27.10.2011 exhibits of the present case were sent to FSL Rohini through Ct. Dhir Singh vide RC No. 68 and 69/21/11 which are Ex.PW11/C and Ex.PW11/D respectively. Witness has further deposed that he recorded the statements of Ct. Dhir Singh and MHC(M) and he also collected the MLC of Nisha from the hospital showing simple injuries and thereafter on 03.11.2011 he was transferred and the case file was handed over by him to MHC(R). This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard. (95) PW30 Ct. Ram Avtar, has deposed that on 20.08.2011 he was posted at Police Station Bharat Nagar and on that on receipt of DD No. 24 A which is Ex.PW8/A he along with SI Satish reached Nimri Shopping complex where HC Devender was already at the spot. Witness has further deposed that one boy had been apprehended and HC Devender informed them that his name was Sandeep and that he was the person who had fired a shot at one public person which injured had been shifted to Sunder Lal Jain Hospital. According to the witness he also saw two vehicles parked at the spot one was Maruti Omni Van bearing No. DL1RT0740 and the other was Esteem Car bearing No. DL9CB0129. Thereafter SI Satish checked both the vehicles and found 23 empty beer can and bottles inside the Esteem Car on the front side and there was also blood splattered on the front seats. Witness has further deposed that in the meantime the SHO also reached the spot and he was asked to remain at the spot as large St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 72 number of public persons had also gathered, hence he was directed to preserve the scene of crime while the other police officials i.e. SI Satish and SHO went to Sunder Lal Jain Hospital. According to the witness after some time ASI Dev Raj, ASI Jagbir, HC Tribhuvan Dass Yadav and Ct. Dhir Singh also came at the spot and they remained at the spot to preserve the same and at around 4:30 PM SHO and SI Satish returned to the spot from Sunder Lal Jain Hospital. Witness has further deposed that in the meanwhile Crime Team also reached the spot and inspected the same and at around 5:15 PM he was handed over the tehrir by Inspector Lalit Joshi and directed him to take the same to Police Station for getting the case registered. Witness has further deposed that after getting the case registered he returned to the spot along with the copy of the FIR and original rukka and handed over the same to SHO Inspector Lalit Joshi and his statement was recorded and he was relieved.
(96) In his cross examination by Ld. Defence counsel, witness has deposed that he reached the spot at about 3:30 PM and when they reached the spot there were many public persons i.e. around 6070 persons. According to the witness in his presence neither SI Satish Kumar nor Insp. Lalit Joshi recorded the statements of public persons. He has explained that the SHO and SI Satish had left the spot at about 3:35 PM and when they left ASI Dev Raj and others had already joined. According to him, Sandeep was not injured. He does not remember if there were any ladies also present at the spot. Witness has admitted that no exhibits including St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 73 the beer can, bottles etc. were lifted in his presence. Witness has denied the suggestion that accused Sandeep was repeatedly saying that he was innocent and it was the deceased who was snatching his revolver in which process the deceased accidentally fired upon himself and has voluntarily explained that he was not standing near Sandeep and therefore did not hear anything. Witness has denied the suggestion that he did not take the rukka to the Police Station or that the entire proceedings took place while sitting in the Police Station. He has admitted that his signatures are not present on any of the documents prepared at the spot. Witness has denied the suggestion that he was not present at the spot and that is why none of the documents bear his signatures.
(97) PW31 Insp. Ashok Kumar, has deposed that on 12.11.2011 he was looking after the work of Police Station Bharat Nagar as officiating SHO and he had received the case file of the present case from MHC(R) and on the same day he moved an application before the autopsy surgeon with regard to weapon of offence and the distance of firing which application is Ex.PW31/A, on the basis of which the autopsy surgeon gave his opinion vide Ex.PW15/B. Witness has further deposed that on 15.11.2011 he got the verification of the licence of accused done from SDM Bahadurgah. his application in this regard is Ex.PW31/B on which the report was given by the SDM vide Ex.PW31/C. According to the witness he then prepared the charge sheet and filed the same in the court. St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 74 (98) In his cross examination by Ld. Defence counsel, witness has denied the suggestion that the autopsy surgeon gave the opinion on his tutoring and asking.
(99) PW32 Insp. Lalit Joshi, has deposed that on 20.08.2011 he was posted as SHO at Police Station Bharat Nagar and on that day he received a wireless message and on receipt of the same he reached at the spot i.e. English Wine Shop, Nimri colony, commercial complex where he found two vehicles parked one was Maruti Van OMNI and the other one was Maruti Esteem. According to the witness SI Satish, Ct. Ram Avtar, HC Devender were already at the spot and he came to know that from HC Devender that the the injured had been shifted by the PCR officials to the Sunder Lal Jain Hospital and one boy had been apprehended by the name of Sandeep who had allegedly fired at the injured. Witness has further deposed that he made inquiries at the spot and after leaving Ct. Ram Avtar and HC Devender to preserve the spot of the incident, he left for Sunder Lal Jain Hospital where he collected the MLCs of injured Nisha and of one Virender who he was told had been declared brought dead. According to the witness Nisha was fit for making the statement and he recorded her statement which is Ex.PW5/A. According to the witness in the meantime L/Ct. Raj Rani reached in the hospital who was called by him from the Police Station and thereafter he along with Nisha, SI Satish and L/Ct. Raj Rani reached at the spot and he inspected the spot. Witness has further deposed that the crime team which had been called by him St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 75 also reached at the spot and inspected the spot which was also photographed and chance prints were attempted to be lifted but there were no chance prints and he made his endorsement on the statement of Nisha and converted the same into rukka which is Ex.PW32/A. Witness has further deposed that the rukka was handed over to Ct. Ram Avtar for registration of FIR of this case who went to the Police Station and came back after getting the case registered and handed over to him the original rukka and copy of the FIR and thereafter at the instance of Nisha the site plan was got prepared by him which site plan is Ex.PW32/B. According to the witness the Doctor had handed over to SI Satish two pullandas relating to the deceased duly sealed with the seal of SLJH and articles of personal search of deceased and SI Satish handed over the same to him vide seizure memo Ex.PW27/A and he then made inquiries at the spot. (100) Witness has further deposed that he recorded the statement of member of crime team who had given their report. He has stated that he came to know that Maruti Esteem bearing No. DL9CB0129 belonged to the deceased. According to the witness the same was inspected by them after the inspection of the crime team. He has deposed that one empty beer can of Thunder Bolt, one empty beer can of Kingfisher with blood stains on these beer cans were found. According to the witness the blood stains were also present on the other parts of the car mainly on the front seats. Thereafter both the beer cans were lifted from the spot and thereafter the seat covers were cut off from the main seat which were St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 76 blood stained. Witness has further deposed that thereafter the above stated articles were converted into separate pullandas and three pullandas were prepared and sealed with the seal of LJ and taken into possession vide seizure memo Ex.PW5/G. (101) Witness has further deposed that thereafter the Esteem Car was taken into possession vide seizure memo Ex.PW5/E and the OMNI car was taken into possession vide seizure memo Ex.PW5/F. Thereafter the personal search articles of deceased i.e. one black color purse, cash of Rs.237/, RC of vehicle, Driving Licence and some visiting cards, one mobile phone of make C3 NOKIA of silver white color were handed over to them by the Nisha and which belonged to deceased was also taken into possession vide seizure memo Ex.PW27/B. According to the witness the accused Sandeep @ Sonu was in the custody of HC Devender and was then interrogated by him and thereafter was arrested by him vide memo Ex.PW5/C and his personal search was also conducted vide memo Ex.PW5/D and from the personal search of accused one licence of arms was also recovered which was taken into possession vide the separate seizure memo. Witness has further deposed that thereafter the accused was interrogated in length and his disclosure statement was also recorded vide memo Ex.PW27/C and thereafter the licence of the revolver was taken into possession vide seizure memo Ex.PW5/K. St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 77 (102) Witness has further deposed that in the meantime he received the DD entry No. 26 A which is Ex.PW8/B which was brought to him by Ct. Bhom Pal and it was evident that it was with regard to attempt of dacoity of cash van by some persons. However, keeping in view the circumstances, this call was found to be bogus as it was made by the accused Sandeep himself. Witness has further deposed that HC Devender produced a revolver and stated to be of accused Sandeep and the revolver was checked and it was containing three live cartridges and one empty cartridge and thereafter the sketch of the revolver was prepared vide Ex.PW5/H. Witness has further deposed that sketch of cartridge was also prepared which is Ex.PW5/I and thereafter the cartridges and the revolver were converted into pullanda and sealed with the seal of LJ. Witness has further deposed that thereafter same were taken into possession vide seizure memo Ex.PW5/J. According to the witness he then recorded the statements of the various public and police witnesses including the driver Vinod who also handed over to him the photocopy of the documents relating to the vehicle and his duty slip and he seized the same vide seizure memo Ex.PW22/A. (103) Witness has further deposed that there were blood stains on the clothes of Nisha and new clothes were arranged for Nisha and provided to her and Nisha changed the clothes in the presence of L/Ct. Raj Rani, inside the room. According to the witness the said clothes were taken into possession vide seizure memo Ex.PW5/B which clothes were St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 78 kameej and salwar and one chunni. He has stated that he came to know that Vinod Kumar was the driver of the OMNI car. Witness has further deposed that the dead body was sent to the Mortuary of BJRM Hospital for postmortem examination and the accused Sandeep was also sent to hospital for medical checkup through HC T.N. Yadav and he then returned to the Police Station and the exhibits were deposited in the malkhana and thereafter he recorded the statement of PCR official who had also come to the Police Station. Witness has further deposed that on 21.08.2011 he reached Police Station Ashok Vihar along with his staff including ASI Dev Raj, SI Satish and ASI Jagbir and got the dossier of accused Sandeep prepared and thereafter accused Sandeep was sent to Police Station Bharat Nagar while he went to BJRM hospital for getting the postmortem on the body of the deceased conducted. According to the witness after the body of the deceased was identified by his relatives vide identification memos Ex.PW1/A and Ex.PW4/A, he prepared the inquest papers which are Ex.PW32/C (running into nine pages). Witness has further deposed that after the postmortem the dead body was handed over to its relatives vide memo Ex.PW1/B. According to the witness the autopsy surgeon handed over to him four pullandas duly sealed with the seal of the hospital along with sample seal which he seized vide memo Ex.PW20/A. Witness has further deposed that thereafter he appeared in the court of the court of the Ld. Illaka Magistrate where the accused was produced and remanded to JC and he returned to the Police Station and deposited the case property in St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 79 the malkhana. Witness has further deposed that on 23.08.2011 he reached the court of Sh. Neeraj Gaur where the statement of witness Vinod Kumar was got recorded by SI Satish. Witness has further deposed that on 03.09.2011 on the directions of the Ld. Illaka Magistrate the OMNI was released on superdari to the owner Vinod Kumar vide superdaginama Ex.PW22/C. Witness has further deposed that on 06.09.2011 Maruti Esteem Car was released on superdari Mehar Chand, father of deceased Virender vide superdaginama Ex.PW32/D. Witness has further deposed that on 08.09.2011 he was transferred to North East and therefore case file was handed over to MHC(R). According to him, on 17.10.2011 he reached at place of occurrence along with Insp. Brij Pal and SI Manohar Lal, draftsman for preparing scaled site plan and SI Manohar Lal took the rough notes at his instance at the spot.
(104) He has identified the case property i.e. one beer can of Thunder Bolt which is Ex.P1; one beer can of Kingfisher which is Ex.P2; two pieces of seat covers which are collectively Ex.P3; one lady shirt, one pyjami and one dupata belonging to Nisha which are collectively Ex.P4; one revolver, one live cartridge, three fired empty cartridges and bullet which Revolver is Ex.P5 and cartridges are collectively Ex.P6; the Esteem Car bearing No. DL9CB0129 which is Ex.P7 and OMNI Van bearing No. DL1RT0740 which is Ex.P8. St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 80 (105) In his cross examination by Ld. Defence counsel, witness has deposed that on 20.8.2011 at about 3:15 PM he came to know about the incident through wireless message and before that he was not aware of the same. According to the witness he thereafter along with his driver reached at the spot at about 3:25 PM but he cannot recollect the name of the driver. Witness has further deposed that he met SI Satish, Ct. Ram Avtar, HC Devender at the spot and states that there were large number of public persons present at the spot but he cannot tell their numbers and names. According to the witness he remained at the spot for about five to ten minutes and asked some public persons about the incident but they did not come forward. Witness has further deposed that thereafter he along with SI Satish left the spot for Sundar Lal Jain Hospital as HC Devender had informed him that the injured had been shifted to that hospital by the PCR and on the way to the hospital, he had informed the crime team to reach the spot. He has stated that he reached the Sundar Lal Jain Hospital within ten minutes and remained there at about 3:40 PM. According to the witness in the hospital he met complainant Nisha along with L/Ct. Raj Rani and except Nisha and L/Ct. Raj Rani no other person met him in the hospital. Witness has further deposed that on his directions SI Satish recorded the statement of Nisha in the hospital and the mobile of deceased was handed over to SI Satish by Nisha in his presence and SI Satish also received the blood stained clothes of the deceased in a sealed condition. Witness has further deposed that he along with SI Satish came back at the St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 81 spot at about 4:30 PM and they remained at the spot upto about 10:45 PM. According to the witness after coming back to the spot at 4:30 PM upto 10:45 PM no public person came at the spot and hence he did not try to join any public persons in the investigations at the spot. Witness has further deposed that he made an endorsement on the rukka and the same was sent to the Police Station through Ct. Ram Avtar at about 5:50 PM. He has stated that the crime team had already reached at the spot before their arrival and they remained at the spot till 5:20 PM. Witness has further deposed that before their arrival at the spot from the hospital, the crime team had already checked the revolver. According to the witness in his presence the crime team took the photographs of the spot and tried lift the finger prints/ chance prints from the spot and from the car but no finger prints/ chance prints were found. Witness has further deposed that he had recorded the statements of Gyan Singh, Dhirender, Vinod, Jaipal Rawat, HC Devender and Ct. Ram Avtar only after receiving the copy of the FIR. Witness has further deposed that according to the statement of Nisha and endorsement made by him, the appropriate Sections had been mentioned and according to the rukka the FIR was registered. Witness has denied the suggestion that till 7.10 PM Nisha had not given any statement to him and he had got registered the case FIR only on the basis of the DD No. 24A. Witness has further denied the suggestion that the FIR is manipulated and antetimed and certain facts have been incorporated later on falsely.
St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 82 (106) Witness has admitted that for each and every police official there is register/ rojnamcha in the division / beat. Witness has further deposed that neither he tried to take the copy of the departure entry of HC Devender on 20.8.2011 nor he placed the same on record later on. Witness has denied the suggestion that HC Devender had not met him in the spot as he was not present at that time. Witness has further denied the suggestion that HC Devender was not on his duty on that day. Witness has further deposed that he did not call Nisha to join the further investigations in this case till he remained Investigating Officer of this case. According to the witness he had called the relatives of Nisha on the day of incident but he does not know his name and relationship nor he had recorded his statement. He admits that there were some empty bottles in the car but cannot tell their number. Witness has further deposed that there were two beer cans lying on the car and except the two beer cans and seat covers from the car, he did not seized any other item from the car. Witness has further deposed that the wind screen of the car was blackish i.e light black colour and the distance between the cash van and the car was 7 to 9 fts. Witness has further deposed that when he reached at the spot the side screens of the windows of the car were opened upto some extent and the blood stains were found present on the driving seat of the Esteem Car. Witness has further deposed that on 21.8.2011, he prepared the brief facts and till that time he had already come to know about the cause of incident and other facts of the case. According to the witness he had not St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 83 mentioned in his brief facts about the real cause of incident that accused was passing obscene comments to the complainant Nisha and on this the incident took place. According to the witness he does not remember if any cause of incident or about the facts of the incident had been provided by him as feedback to the PCR control room nor he remembers if any other police official gave the said information to the PCR control room in his presence. Witness has further deposed that till 8.8.2011 he had not collected the PCR Form and placed the same on record. Witness has denied the suggestion that when he reached at the spot on the day of incident the first time, he had come to know that the incident had taken place due to the wrong parking by the driver of the Esteem Car. Witness has further denied the suggestion that he had also come to know that the deceased had snatched the revolver of the accused and by giving some beatings to him, sat down on his driving seat. Witness has further denied the suggestion that he had also collected the PCR Form till he remained Investigating Officer in this case but he was deposing falsely in this regard.
(107) Witness has further deposed that witness Vinod Kumar was discharged by him at about 9 to 9:25 PM and he had not called witness Vinod to the Police Station through any Notice but he was called by him by telephonic message on 23.8.2011 but the time he does not recollect. According to the witness he had given the directions to SI Satish to apprise Vinod about the facts of the case and for getting his statement St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 84 recorded under Section 164 Cr.PC. According to the witness he does not remember how many persons had come with Vinod Kumar in the Police Station on that day and how many persons and police officials had reached at the court for getting his statement recorded. According to the witness he does not remember if witness Vinod met him in the court during the trial of this case. Witness has further deposed that in this case he had not come to this court before 9.12.2013 i.e. the day when his examination in chief was recorded. Witness has denied the suggestion that he and SI Satish had tutored the witness Vinod Kumar in the Police Station to depose falsely against the accused while signing his statement under Section 164 Cr.PC. Witness has further denied the suggestion that he had not recorded the statement of Vinod Kumar at the spot on the date of incident or that he had not recorded the statement of any of the witness on the spot on the day of incident. Witness has further denied the suggestion that the statement of Nisha was not got recorded by him. He has further deposed that till the time he remained the Investigating Officer in this case i.e. 8.8.2011, he neither added nor deleted any Sections of Law in the present case FIR and this has not been done by him as it was not the requirement according to the facts of the case.
(108) Witness has further deposed that he had checked the revolver by taking the same from the hand of SI Satish who had taken the same from HC Devender and he had checked the revolver at about 4:30 to 5:00 PM. According to the witness after sending the rukka, he had seized the St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 85 beer cans and the vehicles and their seat covers and he received the copy of FIR at about 7:20 PM and thereafter during investigations, he seized the revolver and Arms License etc but he does not recollect if he seized any other articles. Witness has further deposed that thereafter he interrogated the accused and his disclosure statement was recorded and the seizure memos of both the beer cans and the seat cover were prepared at the spot. According to the witness he neither added nor deleted any contents of the seizure memos later on regarding cans and seat covers and no public person was called at that time to join the investigations. (109) Witness has denied the suggestion that he had not got recorded the statements of any of the witness in this case or that he and SI Satish tutored the witness Vinod and Dhirender to depose falsely against the accused during the trial. Witness has further denied the suggestion that he had intentionally not recorded the statement of public persons from the market who were the eye witnesses of the incident were present at the spot and also did not join them in the investigations. Witness has denied the suggestion that he had not conducted the fair investigations. He has also denied that some eye witnesses to the incident had apprised him at the spot on the day of incident about the cause of incident and misdeeds of the deceased along with Nisha but he did not conduct any investigations in this regard.
(110) Witness has further deposed that on that day he was using phone no. 8750870222. According to the witness he does not recollect if St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 86 he had any telephonic conversation with complainant Nisha after the incident. Witness has denied the suggestion that he had talked Nisha on telephone and asked about the cause of incident and the manner in which the incident had happened but she did not tell him anything about the same. Witness has further denied the suggestion that he had not sealed and seized the fire arm at the spot or that all the memos were prepared while sitting in the Police Station and got the signatures of the police officials and Nisha at Police Station. Witness has further denied the suggestion that he had not seized blood stained clothes of Nisha at the spot. Witness has denied the suggestion that the chance prints found were of the deceased. Witness has admitted that the spot of incident is situated in the market area. Witness has denied the suggestion that he had not recorded the statement of Nisha in the hospital or that Nisha had not given any such statement as mentioned in the rukka or that the same is false and had been fabricated later on. Witness has denied the suggestion that after 8.8.2011 he had not joined investigations of this case as he was transferred to North East District or that he was deposing falsely. STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:
(111) After completion of prosecution evidence the statement of the accused Sandeep Kumar @ Sonu was recorded under Section 313 Cr.P.C.
wherein all incriminating material was put to the accused. He has stated that he is innocent and has been falsely implicated at the instance of St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 87 Nisha. According to the accused, the deceased had snatched his revolver and was trying to run away and when he was trying to get his revolver back from his hands while Nisha was also trying to help him and was pulling the revolver their side and in that process a shot went off from the hands of Virender or Nisha. He has stated that it was an incident at the behest of misdeeds committed by Virender himself. (112) The accused Sandeep Kumar @ Sonu has examined himself as DW1 wherein he has deposed that on 20.8.2011 at about 2:45 PM, he was deputed on Maruti Cash Van as a Guard and he along with driver Vinod, two cashiers Jai Pal & Dhirender had reached at Nimri Commercial Shopping Complex. He has further deposed that after stationing the cash van, cashiers Dhirender and Jai Pal went inside the government liquor shop to collect the cash whereas he and driver Vinod remained sitting in the cash van and after five to seven minutes, suddenly one Maruti Esteem Car came in a very high speed and the driver of the said car stopped the car in front of their cash van. He has further stated that on this, sensing the wrong parking of the said Esteem Car, just in front of his cash van, he objected the same on which driver of the Esteem Car after getting down of the car abused him and started scuffling with him. He has also deposed that on this, the driver of the cash van intervened and asked the driver of Esteem Car to get his car parked aside on which the driver of Esteem Car parked the car by the side of their cash van. He has also deposed that the driver of the Esteem Car had consumed St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 88 liquor and after parking his car, he threatened him "dekh lunga tujhe" and while starring at him (ghoorta hua), he went towards the liquor shop. The accused has further stated that the Driver of the cash van also followed the said driver upto the liquor shop and went inside the shop and thereafter purchasing a bear can, the driver of the esteem car further came to him ghoorta hua and said that "mai goojar ka ladka hoon, isi gaon ka rehne wala hoon, tujhe abhi seedha kar deta hooon" and he suddenly pulled out his revolver while he (Sandeep) was sitting in van and started going towards his car. DW2 has further deposed that he was trying to take his revolver back by catching him physically and he asked him that mera samaan de do mera samaan de do but he did not respond and sat down on the driving seat of his car, then he was pulling his hand by his hand to get back his revolver back sensing that after robing his revolver, he may run away. The witness has also deposed that when he was pulling his hands, one girl who was sitting inside the car also started to pull the revolver their side. He has further stated that when the driver of the esteem car having revolver in his hands and the said girl was pulling the revolver towards their side and he was also pulling their hands from the window of the car, a shot went off which hit the driver of the car. He has further deposed that he had also made a call to the police and the girl sitting in the car was also made a call to the police and just after two three minutes PCR came there and the PCR officials made the injured sit in the PCR Van and made inquiries from the said girl who informed them that St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 89 the quarrel had happened due to wrong parking of the esteem car by the driver of the esteem car. According to the witness, the PCR officials also apprised there at that time that the driver of esteem car and the girl had consumed liquor. Witness has further deposed that thereafter, two Constables also reached at the spot and after their arrival PCR officials took the injured to the hospital. He has also deposed that one constable who was present at the spot picked up the said revolver from the seat of Esteem Car and took the same in his pocket and this incident has been witnessed by several public persons present there. He has further deposed that the driver of the Cash Van and cashiers had also come at the spot after hearing the noise and the police from the concerned police station also reached the spot who after making the inquiries were giving the feedback to the PCR control room that the quarrel took place due to wrong parking of the driver of the esteem car. He has placed his reliance on the PCR Form which is Ex.DW1/A and the PCR form pursuant to the call of witness at 100 number is Ex.DW1/B. The witness has further stated that after half an hour, SHO and other police officials took him, driver of van and cashiers to the police station where police took his signatures on some blank papers. He further deposed that he has been falsely implicated in this case and he did not make any shot upon the deceased and deceased received the injuries due to his own misdeeds. (113) In his cross examination by the Addl. PP for the State, the witness has admitted his presence at the spot but has denied the suggestion St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 90 that the version given by him in the court in his examination in chief is on legal advise to create a defence for himself. He has further denied the suggestion that he was the person who made objectionable remarks to the deceased and the lady with him which was objected to by the deceased or that he had himself gone to the deceased and assaulted him or that the PCR call was made by him only to create evidence in defence. (114) DW2 Sh. Gyanender Sharma S/o Sh. Devi Dutt Sharma has deposed that he is a Property Dealer by profession and doing business in the name and style of Ganpati Associates having office at B2, Vardhman Palace, Commercial Complex Nimri, Bharat Nagar, Delhi. He has further deposed that on 20.8.2011 at about 2:302:45 PM, he along with his friend Vijender Kumar was sitting in the parking on chairs in front of government liquor shop and his office, after taking their lunch. The witness further stated that after sometime, a Cash Van reached there and two persons from the said van get down of the van and went to the liquor shop while two persons remained sitting in the van itself and after two to four minutes, one Maruti Esteem car came in a very high speed and the car was stopped by its driver just touching the cash van in front of the cash van. He further deposed that thereafter the guard of the cash van asked the driver of the esteem car to get his car parked aside as it was a cash van but the driver of the esteem car after getting down of his car abused the guard and scuffled with him. According to the witness, the driver of the cash van intervened and due to his efforts the driver of the esteem car St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 91 parked his car in the side of the cash van and thereafter the driver of esteem car went to the liquor shop while starring (ghoorta hua) the guard of the van. He has testified that the driver of the cash van also followed him upto the liquor shop and then went inside the liquor shop and thereafter, the the driver of the esteem car came towards the guard and said "...goojar ka ladka hoon, isis gaon ka rehne wala hoon, tere ko sidha kar dunga.....". The witness has further deposed that thereafter driver of the esteem car suddenly snatched the revolver of the guard and started towards his car. According to the witness, the guard of the cash van was trying to get his revolver back by catching him physically and the guard of the cash van was also repeating mera saman de de - mera saman de de but the driver of the esteem car did not respond and quickly sat on the driver seat of his car. He has also deposed that the guard of the cash van caught hold of the hand of driver of esteem car through the window of the car and was pulling his hand to get back his revolver but the driver of the esteem car having the revolver in his hand and the one girl who was sitting inside the car, both were pulling the revolver to their side and during this process, a shot went off which hit the driver of the esteem car. The witness has further deposed that thereafter, the guard remained standing at the spot and also made a call at 100 number and after some time PCR van reached the spot and the police officials made inquiries from him and the girl who was sitting inside the esteem car. According to the witness the girl had told the PCR officials that the St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 92 quarrel had happened on account of wrong parking of the esteem car by its driver. Witness has further deposed that he and other public persons also apprised the same facts to the PCR officials and thereafter the driver and cashiers of the cash van had also reached the spot after hearing the gun shot. He has further deposed that PCR officials were also saying that the girl and the driver of esteem car had consumed liquor. He has further deposed that two police Constables also reached there and one of them lifted the revolver from the driving seat of the esteem car and kept the same in his pocket. According to him, the injured and the girl were taken to the hospital by the PCR van and thereafter SHO along with other staff reached there. According to the witness, this incident had happened due to the misdeeds committed by the driver of the esteem car and the guard of the van did not fired upon anybody.
(115) In his cross examination by Addl. PP for the State, he deposed that he did not make any PCR call from the spot but he was having a mobile phone at that time. He further deposed that he did not shift the injured to the hospital and he also did not catch Sandeep, the guard of the cash van or handing over to the police. He has further stated that when the police came to the spot, he was present and Police inquired from him about his name and he also gave them his name and address but they did not record his statement. He has also stated that he did not go to the Police Station at any point of time. According to the witness, he is not known to accused Sandeep prior to this statement. He further deposed St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 93 that he used to open his shop from 9 AM to 7 PM and it does not remain close on any day. He has testified that his shop is registered but he cannot tell the registration number. The witness further deposed that he does not file any income tax assessment in respect of his business. The witness has denied the suggestion that he is not running any business from the spot or that he has come to the court at the instance of the accused and his family in order to save him from penal consequences. The witness has further deposed that he is an original resident of Delhi and has no concern with the accused.
FINDINGS:
(116) I have heard the arguments advanced before me by the Ld. Addl. Public Prosecutor for the State and the Ld. Defence Counsels. I have also gone through the memorandum of arguments filed on behalf of 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/ Eye Witnesses:
1 Turmal Singh He is the cousin of the deceased who has proved that on
(PW1) 20.08.2011, he received the information regarding the
murder of his cousin brother Virender on which he reached Police Station Bharat Nagar along with his family members and relatives and thereafter he went to BJRM Hospital and identified the dead body of his cousin brother vide St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 94 Ex.PW1/A and after postmortem, the dead body was handed over to them vide Ex.PW1/B. 2 Saroop (PW4) He is the uncle of deceased Virender and has proved that on 21.08.2011 he went to BJRM Hospital, Jahangir Puri, Delhi where he identified the dead body of his nephew Virender in the mortuary vide his statement Ex.PW4/A. 3 Nisha Verma She is an eye witness to the incident and also injured who (PW5) has proved the following aspects:
1. That on 20.08.2011, at about 3 pm, she along with Virender, since deceased, went to Nimri Commercial Complex, in his Esteem Car, bearing no. DL9CB0129.
2. That Virender was known to her as he was also residing in the same village.
3. That a Wine Shop is situated in the said complex and one Maruti Omni, Radio Taxi of white color bearing no DL1RT 0740 was also stationed there inside which two persons were sitting.
4. That one of the persons was sitting on the front driving seat, while the other was sitting on the front passenger side seat.
5. That the person who was sitting on the passenger side seat, looked at her with bad intention (Ghoor Ke dekha) and also passed obscene comments i.e Kyaa Maal Baitha hai.
6. That on this Virender got down from the car and went near the said Omni Van and asked that boy not to pass such comments on which the boy who was sitting on the passenger side seat i.e. accused Sandeep, took out a revolver and started abusing Virender and also started threatening Virender to kill him.
7. That thereafter Virender ignored him and pacified the said boy and thereafter went to the Wine Shop and he brought a can of beer and sat inside the car.
8. That at the same time, accused Sandeep, who was sitting on the passengers side seat, came near their Esteem Car and hit the bonnet and then came near St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 95 the driving side seat and started banging the driving seat side glass while hurling abuses at the same time.
9. That he was threatening to kill Virender on which Virender brought down the window glass of his side and tried to pacify the matter and asked accused Sandeep to go.
10. That she put her hand on the mouth of Virender so as to stop him from speaking to accused Sandeep and in the meantime the accused Sandeep who was having a revolver in his hand, pointed the revolver on the nose of Virender and fired on Virender.
11. That as her right hand was there on the mouth of Virender, therefore she also received a bullet injury on the index finger of right hand after which the bullet hit the head of Virender fell which down on her right shoulder.
12. That blood was oozing out from the injuries of Virender and also from her hand and she immediately dialed no.100 and called the police.
13. That the accused was apprehended by many public persons, who were there near the spot.
14. That police officials also reached the spot including HC Devender and the PCR Vehicle after which the accused Sandeep was handed over to the police by the public persons, along with the said revolver.
15. That she came to know the name of accused Sandeep at the time of inquiry made by the police at the spot from the accused.
16. That she along with Virender were removed to Sunder Lal Jain Hospital where the doctor declared Virender as brought dead and she also received firstaid treatment.
17. That she returned with a lady police official to the spot and after the police conducted the investigation, they went to the Police Station and his statement was recorded by the police there which statement is Ex.PW5/A bearing her signature at point A. St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 96
18. That the police also seized her blood stained clothes and took the same into possession vide memo Ex.PW5/B.
19. That the accused Sandeep was arrested vide memo Ex.PW5/C and his personal search was got conducted vide memo Ex.PW5/E.
20. That police seized the Esteem Car of Virender at the spot vide Ex.PW5/E and police also seized the Omni car of accused Sandeep vide seizure memo Ex.PW5/F and thereafter took into possession of one beer can from inside of Esteem Car.
21. That police also took into possession the blood stained seat covers from inside the Esteem Car which they seized vide Ex.PW5/G.
22. That police also seized the fire arm revolver by which accused Sandeep had fired upon the deceased along with three live cartridges and one empty fired cartridge.
23. That the police also prepared the sketch of revolver vide Ex.PW5/H and of the three live cartridges and one empty fired cartridge vide Ex.PW5/I.
24. That the police seized the revolver and above said cartridges vide Ex.PW5/J.
25. That License revolver was also recovered from the accused Sandeep vide memo Ex.PW5/K. She has correctly identified the accused Sandeep in the Court and also identified the case property i.e. one beer can of Thunder Bolt as the same seized by the police which beer can is Ex.P1; one beer can of Kingfisher as the same seized by the police which beer can is Ex.P2;
two pieces of seat covers as the same seized by the police which Seat Covers are collectively Ex.P3; one lady shirt, one pyjami and one dupata as the same belonging to her and seized by the police which Lady shirt, one pyjami and one dupata are collectively Ex.P4; one revolver, one live cartridge, three fired empty cartridges and bullet as seized by the police which Revolver is Ex.P5 and cartridges are collectively Ex.P6. The identity of the Omni Car and the St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 97 Esteem Car is not disputed but she has identified the same from the photographs Ex.PW7/A4, Ex.PW7/A14, Ex.PW7/A13 and Ex.PW7/A15 which Esteem Car bearing no. DL 9C B 0129 is Ex.P7 and the Omni Car bearing no. DL 1R T 0740 is Ex.P8.
However, in her crossexamination Nisha Verma has confirmed that the accused Sandeep did not stare at her nor passed any objectionable remarks when Virender went outside the Esteem Car and she also did not mention in the PCR call about the obscene comments passed by the accused. Further, when confronted with regard to the improvements made by her as regards the comments passed by the accused i.e. Kya Mal Baitha hai, it was found that it was for the first time that she came up with the same and previously did not mention to the police regarding the accused having passed lewd comments on her and the only allegations were that the accused was continuously staring at her while she was sitting in the car.
4 Jai Pal Singh This witness has deposed on the following aspects:
Rawat (PW6) 1. That in the year 2011, he was working in CMS Security Task as Cashier.
2. That on 20.08.2011 he along with his colleague namely Dhirender, guard Sandeep and driver namely Vinod Kumar of the company went to Nimri Colony in a Maruti Van No. 0740 to collect the cash from a Wine Shop around 2:002:30 PM.
3. That he along with Vinod entered in the Wine Shop to collect the cash from the manager of the shop and after some time he heard some noise, but they did not pay any heed as they were counting the cash.
4. That when they came out they noticed a huge crowd and police personnel were found there and thereafter they went towards their office.
He has identified the accused Sandeep in the Court but has denied that it was the accused Sandeep who had fired upon a driver of the Esteem Car who was standing in front of the government Wine Shop situated near Nimri Shopping Complex.
St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 98 5 Dhirender Kumar This witness has proved the following aspects:
(PW21) 1. That in the year 2011 he was residing at WZ121, Shakur Pur Basti, Delhi and he was doing the service as cash officer/cashier in cash management service E8, Jhandewalan, Delhi and had to collect the Cash Amount from the destinations i.e. Mall Points and the government Wine Shops at different places.
2. That on 20.08.2011, alongwith his cocashier Jaipal Singh, Security Guard Sandeep and driver Vinod reached at Nimri shopping complex at government Wine Shop to collect the cash at about 3.00 p.m. by a maruti Omni Van no. DL 1R T 0740.
3. That they parked their vehicle Omni Van in front of the government Wine Shop and he alongwith Jaipal Singh went inside of the government Wine Shop to collect the cash and security guard Sandeep and driver Vinod Kumar remained outside with Omni Van.
4. That when they were counting cash inside the government Wine Shop, they heard a sound of firing and they came out from there and saw that one person was lying in an injured condition on the driver's seat of the Esteem Car and their security guard Sandeep was standing there holding his license revolver in his hand.
5. That meanwhile one policemen came there and overpowered Sandeep and took his revolver in his possession.
6. That thereafter they took the cash from the government Wine Shop and kept the same in cash box in Omni Van.
7. That police also took them to the Police Station and after making inquiries from him, they were released and they took the cash box by another vehicle.
8. That accused Sandeep fired upon a person who was sitting in Esteem Car in front of Wine Shop, by his fire arm i.e. licensed revolver.
St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 99 Witness has identified the accused Sandeep Kumar @ Sonu as their Security Guard but has admitted that he had not seen the actual firing incident.
6 Sh. Vinod Kumar He is the Driver of the Cash Van who has deposed on the (PW22) following aspects:
1. That he is the owner and driver of Maruti Van Omni bearing no. DLIRT0740. He has deposed that his abovesaid van was attached with cash management service Jhandewalan Delhi and he used to drive said van himself.
2. That on 20.08.2011, he alongwith Jaipal cashier and another cashier and the security guard Sandeep reached at Nimri Shoping complex in government Wine and Beer Shop at about 3.00 p.m. with his abovesaid Omni Van to collect the cash from the shop.
3. That he parked his Omni Van just near government Wine Shop after which he alongwith gunman Sandeep remained outside of the shop and both the cashiers went inside of the government Wine Shop to collect the cash while he remained sitting in the driving seat of Omni Van.
4. That meanwhile one Esteem Car bearing no. DL 9C B 0129 came at the abovesaid government Wine and Beer Shop and one boy was sitting on the driving seat with a girl sitting alongwith him on the front seat.
5. That the said boy stepped down from the car and came towards their gunman Sandeep asked him as to why he was looking towards his car on which there were hot words exchanged between them.
6. That he then intervened in the matter and both the persons were pacified by him.
7. That thereafter the abovesaid boy of Esteem Car went to Wine Shop and brought two beer cans and went towards his Esteem Car while staring towards Sandeep.
8. That Sandeep was continuously staring towards the girl who was sitting in Esteem Car and was saying St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 100 that "KITNA BADIYA MAAL HAI".
9. That thereafter the boy sitting in the Esteem Car came to accused Sandeep and advised Sandeep not to do such things.
10. That the said boy sat in his car on the driving seat and thereafter Sandeep their gunman went towards the said boy and both persons grappled.
11. That Sandeep was holding his licensed revolver with him when the said boy was talking with him and then the accused Sandeep took out his licensed revolver and showed the same to the said boy and told him that "YAHAN SE CHALA JAA TERA ISSI ME BHALA HAI".
12. That Sandeep then went towards the Esteem Car with his revolver in his hand and he followed Sandeep to pacify him but before he could stop or pacify Sandeep, he exchanged hot words with said boy and abused him and fired upon him on his face with his licensed revolver.
13. That the said boy received gun shot injury and his head fell down in the lap of girl.
14. That the girl sitting in the car made a call at 100 number and the accused Sandeep also made a false call that the cash was looted.
15. That in the meanwhile the police came there and overpowered gunman Sandeep.
16. That the police officials took possession of revolver from the accused Sandeep with the help of handkerchief.
17. That PCR took injured boy and the girl to hospital and they were also taken to the Police Station with their Omni Van with the cash box.
18. That cash box was thereafter taken away by the cashiers from there while his omni car was seized by police.
19. That he handed over photocopy of RC, insurance, permit, fitness, driver badge, driving license, duty slip and original duty slip regarding the abovesaid Omni Van and his duty details to the police which St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 101 was seized vide memo Ex.PW22/A and the said documents are collectively are Ex.PW22/B (9 documents).
20. That he received the Omni Van on superdari vide Ex.PW22/C and has identified the same in photographs Ex.PW7/A13 and Ex.PW7/A15 which omni car is Ex.P8. He has also identified the Gunman as accused Sandeep.
21. That police also produced him for recording of his statement before a Magistrate, Rohini Court under Section 164 Cr.P.C. which statement is Ex.PW22/C (four pages).
7 Sh. Gyan Singh He is the Security Guard and used to work as a guard at (PW25) DTTDC English Wine Shop Nimri Shopping Complex. He has deposed on the following aspects:
1. That on 20.8.2011 at about 3.00 p.m. he was sitting at the counter of Wine Shop and watching television.
2. That a bank van came there to pickup the cash from the Wine Shop and two persons entered the Wine Shop whereas two persons i.e. driver and guard remained outside.
3. That one Esteem Car also reached there and parked the same infront of the van and there was a dispute between the driver of Esteem Car and the guard of the Omni Van regarding wrong parking.
4. That the driver of the van pacified both of them.
5. That thereafter the driver of the Esteem Car then went to the liquor shop and purchased one can of beer and he again went back there was verbal altercation between him and the guard and there was hathapai between them and they moved towards the Esteem Car "HATHAPAI KARTE HUA ESTEEM CAR KI TARAF CHALE GAYE".
6. That guard was saying to handover his "SAMAAN" to him and thereafter the said boy of Esteem Car sat in his car and the quarrel continued.St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 102
7. That one girl was also sitting in the car and she was trying to intervene and pacify the matter and then he heard the sound of firing and boy of Esteem Car received the gun shot injury and thereafter he does not know what happened.
8. According to the witness he can not identify the guard of the van.
The accused Sandeep was specifically shown and put to the witness but he is unable to identify the accused Sandeep and has explained that he was sitting at the counter of the shop due to which he could not see.
Witnesses of Medical Record:
8 Dr. Ajay Kumar This witness has proved the following aspects:
(PW13) 1. That on 20.08.2011 he was posted as CMO at Sunder Lal Jain Hospital and on that day at about 3.30 PM one Nisha D/o Rajender, aged 24 years, female brought at the hospital by the PCR Commander8, HC Om Prakash with alleged history of getting injured while quietening the victim around half hours before when the victim was being shot.
2. That he examined Nisha who complained of lacerated wound on lateral side right index finger in the proximal Phalanx and in the local examination he found lacerated wound on lateral side of proximal phalanx of right index finger in the middle 2cm x 1cm x superficial allegedly from gun shot.
3. That after examination he prepared the MLC No. 7829 which is Ex.PW13/A.
4. That on the same day at about 3.30PM he also medically examined Virender Singh S/o. Mehar Chand, male aged about 30 years was medically examined by him which was brought by Nisha and HC Om Prakash of PCR with alleged history of gun shot at Nimri Colony, Shopping complex about half hours back. According to the witness he examined Virender Singh and his observations/injuries are as St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 103 follows: i. The victim was profusely bleeding from nose and mouth.
ii. Pulse/BP was not recordable. The ECG showing AXIAL Line.
iii. The pupil were dilated and fixed.
iv. There was no other sign of external injury on the body.
v. The accompanying friend Nisha reportedly trying to calm the victim was also injured on right ring finger (lateral side of proximal side/phalanex when the victim was shot at close range in the nose/mouth.
vi. The victim is declared brought dead.
vii. The following articles were recovered which were handed over to the police, black purse with Rs. 237/, two RC of vehicles and one DL with some visiting cards alongwith jeans pant/t shirt/banyan/belt(leather) one pair of sports shoes alongwith socks.
5. That he prepared the detailed MLC No. 7828 which is Ex.PW13/B.
9. Dr. Vivek Rawat He is the Autopsy Surgeon who has proved the following (PW15) aspects:
1. That on 21.08.2011 at about 11.20 AM he conducted postmortem on the dead body of Virender Singh S/o Mehar Chand, 30 years male on the request of SHO Lalit Joshi Police Station Bharat Nagar and he found following external injuries:
2. Abrasion 3x1.5cm over left alae of nose with underlying fluid blood seen both nostrils.
3. That on Internal Examination of head Chip fracture seen to medial end of left carotid canal and depressed fracture seen to inner table in right occipital bone. SDH seen with multiple contusions seen to left temporal and occipital and right occipital lobes. Brain was congested and edematous. Stomach:79 mg of masticated food particles with brownish fluid, intact mucosa, St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 104 Alcoholic Smell Observed.
4. That Track of Wound : Seen as after entering into left alae of nose and then entering into medial wall of left maxilla and then taking entry into brain cavity through medial end of left carotid canal, traverses the brain matter obliquely towards the right occipital low and then pellet gets lodged in a pit made in right occipital bone. Direction of wound was slightly upwards and backwards.
5. That the cause of death is due to cranio cerebral damage caused by injuries to head as mentioned above, which injury was antemortem and fresh in duration and caused by bullet fired by rifled fire arm, sufficient to cause death in ordinary course of nature and the approximate time since death is about 20 hours.
6. That the detailed Postmortem Report in this regard is Ex.PW15/A.
7. That on 12.11.2011 he had received an application from Insp. Ashok Kumar, Police Station Bharat Nagar regarding subsequent opinion for the case FIR No. 169/11 in respect of distance of firing.
8. That it was opined by him that approximate distance of firing must be in the range of upto 15 cm (close distance) which subsequent opinion in this regard is Ex.PW15/B. Forensic Evidence:
10 Ms. Manisha She is the Senior Scientific Officer (Biology) who has Upadhyaya deposed on the following aspects:
(PW14) 1. That on 27.07.2011 ten parcels were received at their office in sealed condition in case FIR No. 169/11 Police Station Bharat Nagar which were marked to her for examination and seal was found intact and tallied with sample seal.
2. That she gave marking to the parcels as 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10.
3. That on opening the parcel No. 1 she found one T Shirt, one banyan, one jeans pant, he marked the St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 105 same as 1a, 1b and 1c.
4. That on opening the parcel No.2, one belt, one pair of socks and a pair of shoes were found and she marked the same as 2a, 2b and 2c respectively.
5. That on opening the parcel No. 3 she found one underwear which was marked by her as Ex.3.
6. That on opening parcel No.4, she found one bullet which was marked by her as Ex. 4. Parcel No.5 was sent to the ballistic division for examination and it was not opened by her.
7. That on opening the parcel No.6, she found blood in gauze piece which was marked by her as Ex. 6.
8. That on opening the parcel No.7 she found one beer can having few dirty brownish stains which were marked by her as Ex.7.
9. That on opening the parcel No.8 she found one beer can having few dirty brownish stains which were marked by her as Ex.8.
10. That on opening parcel No.9, she found two dirty pieces of seat cover which were marked by her as Ex. 9.
11. That on opening the parcel No.10, she found ladies shirt, one pyjami, one dupatta which were marked by her as Ex. 10a, 10b and 10c.
12. That after examining the abovesaid exhibits, she gave her detailed biological report which is Ex.PW14/A.
13. That blood was detected on exhibits 1a, 1b and 1c, 2b,3,4,6,7,8,9,10a,10b and 10c.
14. That she also examined the abovesaid exhibits serologically in her detailed serological report is Ex.PW14/B bearing her signatures at point A.
15. That Human blood was detected on the exhibits 1a, 1b and 1c, 2b,3,4,6,7,8,9,10a,10b and 10c and Human Blood of B Group was detected on exhibits 1a,1b,1c,3,6,9,10a and 10b.
16. That after examination of abovesaid exhibits, the ramnants were resealed with the seal of FSLMU DELHI.
St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 106
11 Sh. Puneet Puri He is the Ballistic Expert who has proved the following
(PW23) aspects:
1. That on 22.03.2012 two sealed parcels bearing numbers 4 and 5 were received from Biology division of FSL.
2. That parcel No. 4 duly sealed with the seal of MU FSL DELHI and parcel No. 5 duly sealed with the seal of LJ and the seals on the parcels were intact and on breaking the seals of parcel No. 4, one deformed bullet was taken out and marked as Ex.EB1 by him.
3. That on opening the parcel No. 5, one revolver .32 inch caliber bearing No. M64262008, two .32 inch cartridges and one .32 inch cartridge case were taken out and marked as exhibits F1, A1,A2 and EC1 respectively by him.
4. That on examination he found that the revolver marked Exhibit F1 was in working order, test fire was conducted successfully by using the cartridges marked exhibits A1, A2, the test fired cartridge cases were marked as TC1, TC2 and the two recovered test fired bullets were marked as TB1 and TB2 respectively.
5. Tthat the cartridge case marked exhibit EC1 was a fired empty cartridge and had been fired through the revolver marked exhibit F1 as the individual characteristic of firing pin marks and breech face marks present on exhibit EC1 and on test fired cartridge cases marked TC1 and TC2 were found identical.
6. That the deformed bullet marked exhibit EB1 was corresponding to the bullet of .32 inch cartridge but no further opinion could be given regarding the exhibit EB1 whether it had been discharged through the revolver marked exhibit F1 or not as the individual characteristic of rifling marks present on exhibit EB1 were insufficient for comparison in opinion.
St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 107
7. That the revolver marked Ex.F1 was a firearm, the cartridges marked exhibits A1, A2, the cartridge case marked exhibit EC1 and the deformed bullet marked exhibit EB1 were ammunition as defined in arms act.
8. That the detailed Ballistics Report is Ex.PW23/A (running into three pages) bearing his signatures at point A on each page.
9. That after examination he resealed the above exhibits with the seal of PP FSL DELHI.
Nodal Officers:
12 Sh. R. K. Singh He is the Nodal Officer from Bharti Airtel Ltd. who has (PW16) proved that mobile No. 9210836887 has been issued in the name of Ms. Urmila, W/o Rajender Kumar, R/o WP273, Wazirpur Village, Ashok Vihar, New Delhi52 vide Customer Application Form copy of which is Ex.PW16/A and copy of election voter ID card in support of residence proof which is Ex.PW16/B. He has also proved the call details for the day 20.08.2011 which are Ex.PW16/C (running into two pages); Cell ID Chart which is Ex.PW16/D (running into one page) and Certificate U/s 65 B of Indian Evidence Act which is Ex.PW16/E. 13 Sh. M.N. Vijayan He is the Nodal Officer from Tata Teleservices who has (PW18) proved that the mobile No. 9210836887 was converted into Airtel.
Police/ Official Witnesses:
14 ASI Shadi Lal He is a formal witness being the Duty Officer who has (PW2) proved having registered the FIR copy which Ex.PW2/A;
his endorsement on the rukka which is Ex.PW2/B; DD No. 29A in respect of registration of FIR attested copy of which is Ex.PW2/C and DD No.31A attested copy of which is Ex.PW2/D. 15 SI Devender He is a formal witness being the Crime Team Incharge who (PW3) has proved having visited the spot of incident and having prepared his detailed report which is Ex.PW3/A. St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 108 16 Ct. Subhash He is a formal witness being the Crime Team Photographer Chand (PW7) who has proved having taken the photographs of the spot of incident which photographs are Ex.PW7/A1 to Ex.PW7/A5 and negatives of the same are Ex.PW7/B collectively.
17 W/ASI Sushila She is a formal witness being the DD writer who has (PW8) proved DD No. 24A, copy of which is Ex.PW8/A and DD No. 26A, copy of which is Ex.PW8/B. 18 Inspector He is a formal witness being the Draftsman who has Manohar Lal proved having prepared the Scaled Site Plan which is (PW9) Ex.PW9/A. 19 HC Anuj Kumar He is a formal witness being the Special Messenger who (PW10) has proved having delivered the Special Reports to the senior officers and the DD No. 31A in this regard is Ex.PW2/D. 20 HC Sanjay Kumar He is a formal witness being the MHCM who has proved (PW11) entry in register No. 19 vide mud No. 317, copy of which is Ex.PW11/A (running into four pages), mud No. 317A, copy of which is Ex.PW11/B, entry in register No. 21 vide RC No. 68/21/11 dated 27.10.2011, copy of which is Ex.PW11/C, RC No. 69/21/11 dated 27.10.2011, copy of which is Ex.PW11/D, FSL receipts copies of which are Ex.PW11/E and Ex.PW11/F respectively.
21 Ct. Dhir Singh He is a formal witness who had deposited the exhibits with (PW12) the FSL. He has proved the RC No. 68/21/11 dated 27.10.2011, copy of which is Ex.PW11/C, RC No. 699/21/11 dated 27.10.2011, copy of which is Ex.PW11/D, FSL Receipts, copies of which are Ex.PW11/E and Ex.PW11/F respectively.
22 Sh. Amit Vats This witness has brought the record pertaining to (PW17) appointing of accused Sandeep and has proved the following aspects:
1. That that he presently working as Deputy Manager with A2Z Infra Services Pvt. Ltd. which is into providing facility management and security services which includes the house keeping services.St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 109
2. That the accused Sandeep, S/o Sh. Jai Singh, R/o Village Solda, Tehsil Bahadurgarh, District Jhajjar, Haryana was appointed as a gun man with CMS Securitas Ltd. Okhla and Jhandewalan, Delhi.
3. That the the copy of the Bio Data of Sandeep is Ex.PW17/A (running into one page), the personal information form is Ex.PW17/B the accompanying documents which includes copy of ammunition licence issued from DM Jhajjar is Ex.PW17/C (running into three pages).
4. That copies of his pay slip from April, 2011 till August, 2011 are Ex.PW17/D (running into five pages), copy of letter of appointment is Ex.PW17/E (running into two pages) bearing the signatures of the HRD at point A which he identify and also the signatures of Sandeep at point B (not disputed by the accused).
23 HC Om Prakash This witness has deposed on the following aspects:
(PW19) 1. That on 20.08.2011 he was posted at PCR NW Zone as Head Constable and his duty was in Van No. C8 PCR Van as Incharge from 8AM to 8PM.
2. That at about 3:15 PM when they were at stationed at Nimri colony Ashok Vihar near the theka/ liquor vend they received information from Control Room that one person had been shot at liquor vend at Nimri Colony falling within the jurisdiction of Police Station Bharat Nagar.
3. That on receipt of this call he immediately reached in front of the liquor vend within one or two minutes and found a large crowd of public persons.
4. That an Esteem Car was parked there in front of the liquor vend and inside the vehicle he found one girl sitting on the left side on the front seat who was crying and on the adjoining seat in front of the steering a boy aged about 2530 years was sitting and was not moving.
5. Witness has further deposed that there was blood oozing out from his nose and the girl was holding his mouth and he made inquiries and came to know St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 110 that the name of the girl was Nisha and the boy was her friend namely Virender @ Billu.
6. That he asked her as to what had happened and she informed that a person standing in front of her had fired a shot and the bullet brushed through her finger and hit the boy Virender on his nose.
7. That he immediately shift both of them to his PCR van and rushed them to Sunder Lal Jain hospital, Ashok Vihar where the boy was declared brought dead.
8. That the girl disclosed that the deceased Virender was her boy friend and they both were consuming liquor outside the liquor vend when the security guard on the theka stopped them from consuming liquor and there was a verbal altercation and abusing i.e. gali gloach (Nisha ne mujhe batya ki woh aur uska dost theke par baith kar beer pe rehe thai, security guard ne unko mana kiya, uske bad gali galoch hui aur uske bad ladki ne mujhe kuch nahi bataya kyonki woh rone lag gaye).
9. That on inquiry Nisha had told him that there was a Maruti Van already parked in front of liquor vend and one boy sitting in the Maruti Van was passing obscene comments on her and was looking at her objectionably "....ek ladka usko obscene comments pass kar raha tha aur galat nazar se dekh raha tha....."
10. That Nisha also told him that when Virender asked him not to do the same and objected to his behaviour, there was a verbal altercation/kaha suni between the two and on this the said boy pulled out his revolver and shot Virender.
11. That Nisha informed that she tried to stop Virender from entering into a verbal altercation with the said boy and for doing so shut his mouth with her hand on which the bullet touched her finger and struck the nose of Virender (meine Virender ko chup karane ke liye uske muh par hath rakha tha, gole mere ungle ko touch kar ke Virender ko lag gaye).
St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 111 24 ASI Tribhuvan This witness has deposed on the following aspects:
Nath (PW20) 1. That on 20.08.2011 he was posted at Police Station Bharat Nagar and on that day after receiving DD No. 24A regarding one person being shot by someone and DD No.26 A regarding some persons having committing robbery in a bank, he along with ASI Dev Raj and ASI Jagbir went to Shopping Center, Phase IV, Nimri Colony at the Wine Shop where they found HC Devender and Ct. Ram Avtar were already present and HC Devender had apprehended one person.
2. That they also found two vehicles i.e. Maruti van Omini and one Esteem Car were parked in front of Wine Shop.
3. That out of the two vehicles parked in front of the liquor vend one was Maruti van Omni number DL1RT0740 Radio Taxi of white color and the other was Maruti Esteem Car bearing No. DL9CB0129 of dark grey color.
4. That on inquiry they came to know that driver of Esteem Car was shot at by the person who was apprehended by HC Devender.
5. That thereafter he was first directed by Insp. Lalit Joshi to manage the crowd and then to shift the dead body from Sunder Lal Jain hospital to BJRM Hospital.
6. That Inspector Lalit Joshi handed over to him a request letter for preservation of the dead body and for conduct of postmortem on the dead body after which he took the dead body to the BJRM hospital and handed over the request letter to the concerned doctor and remained there till the postmortem was got conducted.
7. That the postmortem on the dead body was conducted on 21.08.2011 and after postmortem the doctor handed over to him four sealed parcels duly sealed with the seal of FMT BJRM hospital along with two sample seals which he then handed over to the Investigating Officer Insp. Lalit Joshi who St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 112 seized the same vide seizure memo Ex.PW20/A after which his statement was recorded by the Investigating Officer Inspector Lalit Joshi.
25 Sh. Anuj Bhobai This witness has proved the following aspects:
(PW24) 1. That he used to operate all operations of the CMS Info Systems and they used to collect the cash collection of the bank customers on behalf of the bank and deposit the cash in the designated banks.
2. That he had provided to the Investigating Officer the Route Chart of the customer cash pick up which is Ex.PW24/A and had also provided the route chart of the customer wise cash pickup which is Ex.PW24/B.
3. That according to this route chart on 20.08.2011 their cashier/ custodians were to collect the cash from DTTDC Nimri Colony for Axis bank and Sandeep was the gun man for Wazirpur Road and his route chart is Ex.PW24/C.
4. That he had also provided the attendance sheet of 20.08.2011 relating to Sandeep for his duties which is Ex.PW24/D. He has identified the Sandeep was in the court as the Gunman with them to pick up the cash with out cashiers custodians.
26 HC Raj Rani This witness has proved the following aspects:
(PW24) 1. That on 20.08.2011 she joined the investigations in this case along with SI Satish.
2. That she had gone to Sunder Lal Jain Hospital where they met Nisha and that Nisha was taken out from the emergency department and was questioned.
3. That the statement of Nisha was then recorded and thereafter she along with accompanying police officials reached at the spot i.e. Nimri Colony, Shopping Complex, English Wine Shop and the Investigating Officer prepared a rukka.
4. That there were blood stains of Virender on the clothes of Nisha and the said clothes were removed St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 113 after supplying her another set of clothes and same were taken into possession vide seizure memo Ex.PW5/B after sealing with the seal of LJ.
27 SI Satish Kumar This witness has deposed on the following aspects:
(PW27) 1. That on 20.08.2011 he was posted as SI at Police Station Bharat Nagar and on that day he received DD No. 24A at 3:14 PM which is Ex.PW8/A.
2. That on receipt of the same he along with Ct. Ram Avtar reached at the spot i.e. English Wine Shop, Nimri Colony, Commercial Complex where he found two vehicles parked one belonging to the accused and one belonging to the deceased which fact he came to be known on inquiry.
3. That HC Devender met him at the spot and he informed him that the injured had been shifted by the PCR official and one boy had been apprehended by the name of Sandeep who had allegedly fired at the injured.
4. That in the meantime the SHO had reached the spot and he had also inquired the matter at the spot.
5. That Ct. Ram Avtar and HC Devender were left at the spot to safe guard the spot and thereafter he along with SHO had left the spot for the hospital and they reached at Sunder Lal Jain hospital where they collected two MLCs i.e. one of Virender who was declared brought dead and the other was of Nisha, the complainant of this case.
6. That Nisha was fit for making the statement and her statement was recorded.
7. That thereafter the doctor handed over to him two pullandas related to the deceased duly sealed with the seal of SLJH and articles of personal search of the deceased.
8. That in the meantime L/Ct. Raj Rani reached in the hospital who was called by the SHO from the Police Station and thereafter he along with Nisha, SHO and L/Ct. Raj Rani reached at the spot which he inspected.St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 114
9. That the crime team had also reached at the spot and inspected the same which spot was photographed.
10. That thereafter the finger print expert had lifted the finger prints from the spot but no finger prints were found there and the rukka was prepared by him on behalf of the SHO.
11. That the rukka was handed over to Ct. Ram Avtar for registration of the FIR of this case who went to the Police Station and came back after getting the case registered and thereafter the site was inspected on the pointing of Nisha.
12. That in the meantime he received the DD entry No. 26 A which is Ex.PW8/B.
13. That the DD was regarding attempting of bank dacoity by some persons and the call was found to be bogus as it was made by the accused.
14. That he then recorded the statement of the members of the Crime Team.
15. That the crime team officials produced their reports.
16. That the Maruti Esteem bearing No. DL9CB0129 belonging to deceased was also inspected by them after the inspection by the crime team.
17. That one empty beer can of Thunder Bolt, one empty beer can of Kingfisher with blood stains on these beer cans was found and they also found blood stains present on the other parts of the car mainly on the front seats.
18. That both the beer cans were lifted from the spot and thereafter the seat covers were cut off from the main seat which were blood stained and then the above stated articles were converted into separate pullandas and three pullandas were prepared and sealed with the seal of LJ and thereafter the same were taken into possession vide seizure memo Ex.PW5/G.
19. That thereafter the Esteem Car was taken into possession vide seizure memo Ex.PW5/E and St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 115 thereafter the OMNI car was taken into possession vide seizure memo Ex.PW5/F.
20. That thereafter two pullandas which were collected from the hospital were taken into possession vide seizure memo Ex.PW27/A and the personal search articles of deceased i.e. one black color purse, cash of Rs 237/, RC of vehicle, Driving Licence and some visiting cards, one mobile phone of make C3 NOKIA of silver white color which were handed over to them by the Nisha as belonging to the deceased was also taken into possession vide seizure memo Ex.PW27/B.
21. That the accused Sandeep @ Sonu was in the custody of HC Devender and he was then interrogated by the SHO.
22. That thereafter the accused was arrested in this case vide arrest memo Ex.PW5/C and his personal search was also conducted vide memo Ex.PW5/D.
23. That from the personal search of accused one licence of arms was also recovered which was taken into possession vide the separate seizure memo.
24. That thereafter the accused was interrogated in length and his disclosure statement was also recorded vide memo Ex.PW27/C and thereafter the licence of the revolver was taken into possession vide seizure memo Ex.PW5/K.
25. That HC Devender produced a revolver stated to be of the accused which was checked and was found to be containing three live cartridges and one empty cartridge and thereafter the sketch of the revolver vide Ex.PW5/H and the sketch of cartridge Ex.PW5/I were prepared by him.
26. That thereafter cartridges and the revolver were converted into sealed pullanda and sealed with the seal of LJ and thereafter same were taken into possession vide seizure memo Ex.PW5/J and the statement of the witnesses were recorded.
27. That there were blood stains on the clothes of Nisha and new clothes were arranged for Nisha and same St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 116 were provided to her after which Nisha had changed her clothes in the presence of L/Ct. Raj Rani, inside the room and her clothes were taken into possession vide seizure memo Ex.PW5/B which clothes were kameej and salwar and one chunni.
28. That Vinod Kumar was the driver of the OMNI car and the documents of the said car was also taken into possession vide seizure memo Ex.PW22/A.
29. That the dead body was sent to the mortuary for postmortem and the accused was also sent to the hospital for her medical checkup through police official and the statement of relevant witnesses were recorded in this regard.
30. That thereafter he along with the other police officials reached the Police Station and thereafter the exhibits were deposited with the MHC(M) who made entry in register No. 19 and his statement was also recorded by the SHO.
31. That he joined the investigations in this case on 23.08.2011 and reached the court of ACMM Rohini along with witness Vinod Kumar for recording his statement U/s 164 Cr.P.C.
32. That he moved an application before the Ld. ACMM which is Ex.PW27/C and this application was marked to first link MM Sh. Neeraj Gaur after which Ld. MM Sh. Neeraj Gaur recorded the statement of Vinod.
33. That he then moved an application for supply of the copy of the statement which was allowed by Ld. MM and the copy was provided to him which application is Ex.PW27/D. 28 HC Devender This witness has proved the following aspects:
(PW28) 1. That on 20.08.2011 he was posted at Police Station Bharat Nagar and was on patrolling duty in the area of Nimri Colony alone and reached at Bunker Chowk near Nimri Shopping Complex at about 3:00 PM.St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 117
2. That he heard voice of firing from the side of Nimri Shopping Complex and he reached there immediately in front of wine beer shop where one Esteem Car bearing no. DL-9CB-0129 was parked.
3. That one girl was sitting on the left side of Esteem Car with the head of a male person on her lap which person was injured, on which he asked that lady as to what had happened.
4. That the lady told him that the person who was standing in front of the car had fired upon the injured Virender on which he rushes towards that boy who was having a revolver in his right hand.
5. That he then asked the boy to hand over the revolver which was in his hand to him and caught the revolver with the help of handkerchief.
6. That thereafter the boy whose name was then known as Sandeep was apprehended and questioned Nisha who informed him that she had already informed the police through 100 number.
7. That after some time, the PCR Van reached there and Virender and Nisha were rushed to the hospital and thereafter, SI Satish and Ct. Ram Avtar also reached there.
8. That he informed these facts to SI Satish and in the meantime, the SHO also reached there alongwith staff and he and the other members of staff were left at the spot to safeguard the same and control the situation.
9. That thereafter the SHO left the spot alongwith SI Satish for Sunder Lal Hospital.
10. That at about 4:30 pm, the SHO and SI Satish came back to the spot in the meantime the Crime Team officials also reached and the spot of the incident was photographed through members of the crime team.
11. That the Crime Team was asked to get lift the chance prints from the revolver but no chance prints could be found/lifted and thereafter, endorsement was made by SI Satish under the St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 118 supervision of the SHO.
12. That rukka was prepared and the same was handed over to Ct. Ram Avtar and thereafter, the further investigation was carried out.
13. That thereafter, the accused was interrogated and arrested in this case vide arrest memo Ex.PW5/C and his personal search was conducted which is Ex.PW5/D.
14. That during the personal search of the accused, an arms licence was also recovered from him which was also taken into possession vide seizure memo Ex.PW5/K.
15. That he then handed over the revolver to the SHO which revolver was checked and found to be containing three live cartridge and one empty shell after which SI Satish prepared the sketch of revolver which is Ex.PW5/H and the sketch of cartridges and empty shell vide Ex.PW5/I and thereafter, the revolver was measured.
16. That thereafter the SHO kept the revolver, live cartridges and empty cell in a plastic container and then converted the same into a pullanda with the help of a white cloth which was sealed with the seal of LJ.
He has identified the accused in the Court and the case property i.e. Arms Licence which is Ex.PW28/A; the Revolver which is Ex.P5 and cartridges which are collectively Ex.P6.
29 Inspector Brij Pal This witness has proved the following aspects:
Singh (PW29) 1. That on 08.10.2011 he was posted at Police Station Bharat Nagar and on that day further investigations of this case was marked to him and he received the case file.
2. That on 17.10.2011 he got the scaled site plan of the spot of the incident prepared from the draftsman at the instance of Inspector Lalit Joshi and he then recorded the statements of draftsman SI Manohar Lal and Insp. Lalit Joshi.St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 119
3. That on 27.10.2011 exhibits of the present case were sent to FSL Rohini through Ct. Dhir Singh vide RC No. 68 and 69/21/11 which are Ex.PW11/C and Ex.PW11/D respectively.
4. That he recorded the statements of Ct. Dhir Singh and MHC(M) and he also collected the MLC of Nisha from the hospital showing simple injuries and thereafter on 03.11.2011 he was transferred and the case file was handed over by him to MHC(R).
30 Ct. Ram Avtar This witness has deposed on the following aspects:
(PW30) 1. That on 20.08.2011 he was posted at Police Station Bharat Nagar and on that on receipt of DD No. 24 A which is Ex.PW8/A he along with SI Satish reached Nimri Shopping complex where HC Devender was already at the spot.
2. That one boy had been apprehended and HC Devender informed them that his name was Sandeep and that he was the person who had fired a shot at one public person which injured had been shifted to Sunder Lal Jain Hospital.
3. That he also saw two vehicles parked at the spot one was Maruti Omni Van bearing No. DL1RT0740 and the other was Esteem Car bearing No. DL9CB0129.
4. That thereafter SI Satish checked both the vehicles and found 23 empty beer can and bottles inside the Esteem Car on the front side and there was also blood splattered on the front seats.
5. That in the meantime the SHO also reached the spot and he was asked to remain at the spot as large number of public persons had also gathered, hence he was directed to preserve the scene of crime while the other police officials i.e. SI Satish and SHO went to Sunder Lal Jain Hospital.
6. That after some time ASI Dev Raj, ASI Jagbir, HC Tribhuvan Dass Yadav and Ct. Dhir Singh also came at the spot and they remained at the spot to preserve the same and at around 4:30 PM SHO and SI Satish returned to the spot from Sunder Lal Jain St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 120 Hospital.
7. That in the meanwhile Crime Team also reached the spot and inspected the same and at around 5:15 PM he was handed over the tehrir by Inspector Lalit Joshi and directed him to take the same to Police Station for getting the case registered.
8. That after getting the case registered he returned to the spot along with the copy of the FIR and original rukka and handed over the same to SHO Inspector Lalit Joshi and his statement was recorded and he was relieved.
31 Inspector Ashok This witness has proved the following aspects:
Kumar (PW31) 1. That on 12.11.2011 he was looking after the work of Police Station Bharat Nagar as officiating SHO and he had received the case file of the present case from MHC(R) and on the same day he moved an application before the autopsy surgeon with regard to weapon of offence and the distance of firing which application is Ex.PW31/A, on the basis of which the autopsy surgeon gave his opinion vide Ex.PW15/B.
2. That on 15.11.2011 he got the verification of the licence of accused done from SDM Bahadurgah. his application in this regard is Ex.PW31/B on which the report was given by the SDM vide Ex.PW31/C.
3. That he then prepared the charge sheet and filed the same in the court.
32 Inspector Lalit He is the Investigating Officer of the present case who has Joshi (PW32) deposed on the following aspects:
1. That on 20.08.2011 he was posted as SHO at Police Station Bharat Nagar and on that day he received a wireless message and on receipt of the same he reached at the spot i.e. English Wine Shop, Nimri Colony, commercial complex where he found two vehicles parked one was Maruti Van OMNI and the other one was Maruti Esteem.
2. That SI Satish, Ct. Ram Avtar, HC Devender were already at the spot and he came to know that from St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 121 HC Devender that the the injured had been shifted by the PCR officials to the Sunder Lal Jain Hospital and one boy had been apprehended by the name of Sandeep who had allegedly fired at the injured.
3. That he made inquiries at the spot and after leaving Ct. Ram Avtar and HC Devender to preserve the spot of the incident, he left for Sunder Lal Jain Hospital where he collected the MLCs of injured Nisha and of one Virender who he was told had been declared brought dead.
4. That Nisha was fit for making the statement and he recorded her statement which is Ex.PW5/A.
5. That in the meantime L/Ct. Raj Rani reached in the hospital who was called by him from the Police Station and thereafter he along with Nisha, SI Satish and L/Ct. Raj Rani reached at the spot and he inspected the spot.
6. That the crime team which had been called by him also reached at the spot and inspected the spot which was also photographed and chance prints were attempted to be lifted but there were no chance prints and he made his endorsement on the statement of Nisha and converted the same into rukka which is Ex.PW32/A.
7. That the rukka was handed over to Ct. Ram Avtar for registration of FIR of this case who went to the Police Station and came back after getting the case registered and handed over to him the original rukka and copy of the FIR and thereafter at the instance of Nisha the site plan was got prepared by him which site plan is Ex.PW32/B.
8. That the Doctor handed over to SI Satish two pullandas relating to the deceased duly sealed with the seal of SLJH and articles of personal search of deceased and SI Satish handed over the same to him vide seizure memo Ex.PW27/A and he then made inquiries at the spot.St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 122
9. That he recorded the statement of member of crime team who had given their report.
10. That he came to know that Maruti Esteem bearing No. DL9CB0129 belonged to the deceased.
11. That the same was inspected by them after the inspection of the crime team.
12. That one empty beer can of Thunder Bolt, one empty beer can of Kingfisher with blood stains on these beer cans were found.
13. That blood stains were also present on the other parts of the car mainly on the front seats.
14. That thereafter both the beer cans were lifted from the spot and thereafter the seat covers were cut off from the main seat which were blood stained.
15. That thereafter the above stated articles were converted into separate pullandas and three pullandas were prepared and sealed with the seal of LJ and taken into possession vide seizure memo Ex.PW5/G.
16. That thereafter the Esteem Car was taken into possession vide seizure memo Ex.PW5/E and the OMNI car was taken into possession vide seizure memo Ex.PW5/F.
17. That the personal search articles of deceased i.e. one black color purse, cash of Rs.237/, RC of vehicle, Driving Licence and some visiting cards, one mobile phone of make C3 NOKIA of silver white color were then handed over to them by the Nisha and which belonged to the deceased was also taken into possession vide seizure memo Ex.PW27/B.
18. That the accused Sandeep @ Sonu was in the custody of HC Devender and was then interrogated by him and thereafter was arrested by him vide memo Ex.PW5/C and his personal search was also conducted vide memo Ex.PW5/D.
19. That from the personal search of accused one licence of arms was also recovered which was taken into possession vide the separate seizure memo.St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 123
20. That thereafter the accused was interrogated in length and his disclosure statement was also recorded vide memo Ex.PW27/C and thereafter the licence of the revolver was taken into possession vide seizure memo Ex.PW5/K.
21. That in the meantime he received the DD entry No. 26 A which is Ex.PW8/B which was brought to him by Ct. Bhom Pal and it was evident that it was with regard to attempt of dacoity of cash van by some persons. However, keeping in view the circumstances, this call was found to be bogus as it was made by the accused Sandeep himself.
22. That HC Devender produced a revolver and stated to be of accused Sandeep and the revolver was checked and it was containing three live cartridges and one empty cartridge and thereafter the sketch of the revolver was prepared vide Ex.PW5/H.
23. That sketch of cartridge was also prepared which is Ex.PW5/I and thereafter the cartridges and the revolver were converted into pullanda and sealed with the seal of LJ.
24. That thereafter the same were taken into possession vide seizure memo Ex.PW5/J.
25. That he then recorded the statements of the various public and police witnesses including the driver Vinod who also handed over to him the photocopy of the documents relating to the vehicle and his duty slip and he seized the same vide seizure memo Ex.PW22/A.
26. That there were blood stains on the clothes of Nisha and new clothes were arranged for Nisha and provided to her and Nisha changed the clothes in the presence of L/Ct. Raj Rani, inside the room.
27. That the said clothes were taken into possession vide seizure memo Ex.PW5/B which clothes were kameej and salwar and one chunni.
28. That he came to know that Vinod Kumar was the driver of the OMNI car.St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 124
29. That the dead body was sent to the Mortuary of BJRM Hospital for postmortem examination and the accused Sandeep was also sent to hospital for medical checkup through HC T.N. Yadav and he then returned to the Police Station and the exhibits were deposited in the malkhana and thereafter he recorded the statement of PCR official who had also come to the Police Station.
30. That on 21.08.2011 he reached Police Station Ashok Vihar along with his staff including ASI Dev Raj, SI Satish and ASI Jagbir and got the dossier of accused Sandeep prepared and thereafter accused Sandeep was sent to Police Station Bharat Nagar while he went to BJRM hospital for getting the postmortem on the body of the deceased conducted.
31. That after the body of the deceased was identified by relatives vide identification memos Ex.PW1/A and Ex.PW4/A, he prepared the inquest papers which are Ex.PW32/C (running into nine pages).
32. That after the postmortem the dead body was handed over to its relatives vide memo Ex.PW1/B.
33. That the Autopsy Surgeon handed over to him four pullandas duly sealed with the seal of the hospital along with sample seal which he seized vide memo Ex.PW20/A.
34. That thereafter he appeared in the court of the court of the Ld. Illaka Magistrate where the accused was produced and remanded to JC and he returned to the Police Station and deposited the case property in the Malkhana.
35. That on 23.08.2011 he reached the court of Sh.
Neeraj Gaur where the statement of witness Vinod Kumar was got recorded by SI Satish.
36. That on 03.09.2011 on the directions of the Ld. Illaka Magistrate the OMNI was released on superdari to the owner Vinod Kumar vide superdaginama Ex.PW22/C.
37. That on 06.09.2011 Maruti Esteem Car was released on superdari Mehar Chand, father of St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 125 deceased Virender vide superdaginama Ex.PW32/D.
38. That on 08.09.2011 he was transferred to North East and therefore case file was handed over to MHC(R).
39. That on 17.10.2011 he reached at place of occurrence along with Insp. Brij Pal and SI Manohar Lal, draftsman for preparing scaled site plan and SI Manohar Lal took the rough notes at his instance at the spot.
He has identified the case property i.e. one beer can of Thunder Bolt which is Ex.P1; one beer can of Kingfisher which is Ex.P2; two pieces of seat covers which are collectively Ex.P3; one lady shirt, one pyjami and one dupata belonging to Nisha which are collectively Ex.P4; one revolver, one live cartridge, three fired empty cartridges and bullet which Revolver is Ex.P5 and cartridges are collectively Ex.P6; the Esteem Car bearing No. DL9CB0129 which is Ex.P7 and OMNI Van bearing No. DL1RT0740 which is Ex.P8.
(117) Coming now to the microscopic evaluation of the evidence against the accused Sandeep Kumar @ Sonu.
Medical Evidence:
(118) The case of the prosecution is that soon after the incident of firing in which Virender who was fatally wounded and Nisha Verma another injured were rushed to the Hospital by the PCR officials where Nisha had given the history of getting injured while quietening the victim around half an hour and at the same time Virender had also been brought to the Hospital by the PCR and was declared 'Brought Dead' after which St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 126 his body was shifted to Mortuary of the SGM Hospital and postmortem was conducted on the same day. In this regard the prosecution is placing its reliance on the testimony of Dr. Ajay Kumar (PW13), the CMO of Sunder Lal Jain Hospital and the Autopsy Surgeon Dr. Vivek Rawat (PW15) from SGM Hospital and the reports prepared by them.
(119) Coming first to the testimony of Dr. Ajay Kumar (PW13), he has proved that on 20.08.2011 at about 3.30PM Nisha D/o Rajender, aged 24 years, female was brought to the Sunder Lal Jain Hospital by the PCR Commander8, HC Om Prakash with alleged history of getting injured while quietening the victim around half hours before when the victim was being shot. He has proved having examined Nisha who complained of lacerated wound on lateral side right index finger in the proximal Phalanx and on local examination he found lacerated wound on lateral side of proximal phalanx of right index finger in the middle 2cm x 1cm x superficial allegedly from gun shot. He has proved having prepared the MLC of Nisha which is Ex.PW13/A and confirms the above injury.
(120) He has further proved that on the same day at about 3.30PM he also medically examined Virender Singh S/o. Mehar Chand, male aged about 30 years who was brought by Nisha and HC Om Prakash of PCR with alleged history of gun shot at Nimri Colony, Shopping Complex about half an hour back. He has proved having examined Virender Singh and made following observations:
St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 127
1. The victim was profusely bleeding from nose and mouth.
2. Pulse/ BP was not recordable. The ECG showing AXIAL Line.
3. The pupil were dilated and fixed.
4. There was no other sign of external injury on the body.
5. The accompanying friend Nisha reportedly trying to calm the victim was also injured on right ring finger (lateral side of proximal side/phalanex when the victim was shot at close range in the nose/mouth.
6. The victim was declared Brought Dead.
7. The articles recovered i.e. a black purse with Rs.237/, two RC of vehicles and one DL with some visiting cards alongwith the clothes of the deceased i.e. jeans pant/ tshirt/ banyan/ belt (leather) one pair of sports shoes alongwith socks were handed over to the police.
(121) He has proved having prepared the detail MLC of Virender which is Ex.PW13/B confirms the aforesaid and the fact that his friend Nisha was with him and was brought to the hospital in injured condition. (122) Coming next to the testimony of Autopsy Surgeon Dr. Vivek Rawat (PW15) who has proved that on 21.08.2011 at about 11.20 AM he conducted the postmortem on the dead body of Virender Singh S/o Mehar Chand, 30 years male vide Postmortem Report Ex.PW15/A according to which there were following external injuries: St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 128
1. Abrasion 3x1.5cm over left alae of nose with underlying fluid blood seen in both nostrils.
(123) He has proved that on internal examination of Head Chip fracture was seen to medial end of left carotid canal and depressed fracture was seen to inner table in right occipital bone, SDH seen with multiple contusions seen to left temporal and occipital and right occipital lobes, Brain was congested and edematous. He has also proved that on internal examination of Stomach 79 mg of masticated food particles with brownish fluid were present, intact mucosa and alcoholic smell was observed.
(124) The witness has further proved that the Track of Wound Seen as after entering into left alae of nose and then entering into medial wall of left maxilla and then taking entry into brain cavity through medial end of left carotid canal, traversed the brain matter obliquely towards the right occipital low and then pellet got lodged in a pit made in right occipital bone, directions of wound was slightly upwards and backwards. He has also proved having opined that the Cause of Death was due to cranio cerebral damage caused by injuries to head as mentioned above, which injury was antemortem and fresh in duration and caused by bullet fired by rifled fire arm, sufficient to cause death in ordinary course of nature and the approximate time since death was about 20 hours (which time is compatible to the case of the prosecution St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 129 and oral testimony of Nisha).
(125) The Autopsy Surgeon has further proved that on 12.11.2011 he had received an application from Inspector Ashok Kumar regarding subsequent opinion in respect of distance of firing on which he opined that the approximate distance of firing must be in range of upto 15 cm (close distance) which subsequent opinion is Ex.PW15/B. (126) It is writ large from the above medical evidence on record that with half an hour of the incident having been taken place both the injured and the deceased i.e. Nisha and Virender were rushed to Sunder Lal Jain Hospital. While Virender was declared 'Brought Dead' vide MLC Ex.PW13/B, Nisha was treated vide MLC Ex.PW13/A confirming a lacerated wound on lateral side of proximal phalanx of right index finger in the middle 2cm x 1cm x superficial, thereby lending credence to her testimony. Further, the Postmortem Report is compatible to the prosecution version that the death of the deceased Virender had taken place on account of cranio cerebral damage caused by injuries to head caused by bullet fired by rifled fire arm (single shot), which injury was sufficient to cause death in ordinary course of nature. Further, the Medical Evidence establishes that the fired bullet had entered the left alae of nose and then entered into medial wall of left maxilla and then taking entry into brain cavity through medial end of left carotid canal, traversed the brain matter obliquely towards the right occipital low and then the pellet was lodged in a pit made in right occipital bone with the directions St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 130 of wound was slightly upwards and backwards; which explains that at the time of the incident Nisha Verma was trying to shut the mouth of Virender with her hand thereby pulling the deceased who was the revolver of the accused towards herself as a result of which his head tilted towards her while his arms were stretched. The postmortem report also establishes that there was smell of alcohol in the abdomen of the deceased confirming that at the time of the incident the deceased had consumed alcohol. The medical evidence points out towards the scuffle rather than the firing at a Point Blank Range.
Forensic Evidence:
(127) The case of the prosecution that soon after the incident the exhibits were lifted from the vehicle in which the deceased and the injured were sitting. Further, after the postmortem examination the various exhibits of the deceased which were preserved by the Autopsy Surgeon were also seized by the Investigating Officer and thereafter all the above exhibits were sent to the FSL for Biological/ Serological Examination.
Further, the revolver/ firearm which was snatched from the hand of accused Sandeep along with three cartridges were also sent to FSL for expert opinion.
Biological/ Serological Report:
(128) Coming first to the Biological/ Serological examination report of the exhibits, it is Ms. Manisha Upadhyaya (PW14) the Senior St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 131 Scientific Officer (Biology), FSL Rohini, Delhi who has proved that on 27.07.2011 ten parcels were received at their office in sealed condition which were marked to her for examination and Seals was found intact and tallied with sample seal. She has proved that on opening the parcel no.1 it was found to contain one TShirt, one banyan, one jeans pant which were marked as Ex.1a, Ex.1b and Ex.1c; on opening the parcel no. 2 one belt, one pair of socks and a pair of shoes were found which were marked as Ex.2a, Ex.2b and Ex.2c respectively; on opening the parcel no. 3 she found one underwear which was marked as Ex.3; on opening parcel no. 4, she found one bullet which was marked by her as Ex.4; Parcel no. 5 was sent to ballistic division for examination and it was not opened by her; on opening the parcel no. 6, she found blood in gauze piece which was marked as Ex.6; on opening the parcel no.7 she found one beer can having few dirty brownish stains which were marked as Ex.7; on opening the parcel no. 8 she found one beer can having few dirty brownish stains which were marked by her as Ex.8; on opening parcel no. 9 she found two dirty pieces of seat covers which were marked as Ex.9 and on opening the parcel no.10, she found ladies shirt, one pyjami, one dupatta which were marked as Ex.10a, 10b and 10c. The witness has proved that after examining the abovesaid exhibits, she gave her detailed Biological Report which is Ex.PW14/A according to which Blood was detected on Ex.1a (TShirt), Ex. 1b (baniyan), Ex. 1c (jeans pant); Ex.2b (pair of socks), Ex.St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 132
3 (underwear); Ex.4 (bullet); Ex.6 (blood in gauze piece); Ex.7 (beer can); Ex.8 (beer can); Ex.9 (two dirty pieces of seat cover); Ex.10a (ladies shirt), Ex.10b (pyjami) and Ex.10c (dupatta).
(129) She has also proved that she examined the abovesaid exhibits Serologically and prepared the Serological Report which is Ex.PW14/B according to which Human blood was detected on Ex.1a (TShirt), Ex. 1b (baniyan), Ex. 1c (jeans pant); Ex.2b (pair of socks), Ex.3 (underwear); Ex.4 (bullet); Ex.6 (blood in gauze piece); Ex.7 (beer can); Ex.8 (beer can); Ex.9 (two dirty pieces of seat cover); Ex.10a (ladies shirt), Ex.10b (pyjami) and Ex.10c (dupatta) and Human Blood of 'B' Group was detected on Ex.1a (TShirt), Ex.1b (baniyan), Ex.1c (jeans pant); Ex.3 (underwear); Ex.6 (blood in gauze piece); Ex.9 (two dirty pieces of seat cover); Ex.10a (ladies shirt) and Ex.10b (pyjami). (130) The above Serological Report Ex.PW14/B establishes that the blood group of the deceased Virender was 'B' Group which was detected on his clothes as well as the clothes of the injured Nisha Verma. Further, it also establishes that the incident had taken place while the deceased Virender was sitting in the Maruti Esteem Car. Therefore, I hold that the above forensic evidence is compatible to the prosecution version. (131) Further, the Chemical Analysis/ Viscera Report which is admissible perse under Section 293 Cr.P.C. and not disputed by the accused, confirms that the blood of the deceased Virender when examined was found to contain Ethyl Alcohol 14.7 mg per 100 mg blood, thereby St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 133 establishing that the deceased had consumed alcohol. Ballistic Report:
(132) The cartridge case and the deformed bullet had been sent to FSL for examination. Coming now to the testimony of the Ballistic Expert Sh. Puneet Puri (PW23), he has proved that on 22.03.2012 two sealed parcels bearing numbers 4 and 5 were received from Biology Division of FSL, Parcel No. 4 was duly sealed with the seal of MU FSL DELHI and Parcel No. 5 was duly sealed with the seal of LJ which seals on the parcels were intact. He has proved that on breaking the seals of parcel No.4 one deformed bullet was taken out and marked as Ex.EB1 whereas on opening the parcel No.5 one revolver .32 inch caliber bearing No. M64262008, two .32 inch cartridges and one .32 inch cartridge case were taken which were marked as exhibits F1, A1, A2 and EC1 respectively. He has further proved that on examination he found that the revolver marked Ex.F1 was in working order, test fire was conducted successfully by using the cartridges marked exhibits A1, A2, the test fired cartridge cases were marked as TC1, TC2 and the two recovered test fired bullets were marked as TB1 and TB2 respectively. He has also proved that the cartridge case marked Ex.EC1 was a fired empty cartridge and had been fired through the revolver marked exhibit F1 as the individual characteristics of firing pin marks and breech face marks present on St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 134 exhibit EC1 and on test fired cartridge cases marked TC1 and TC2 were found identical and the deformed bullet marked exhibit EB1 was corresponding to the bullet of .32 inch cartridge. However, no further opinion could be given regarding the exhibit EB1 whether it had been discharged through the revolver marked exhibit F1 above or not since the individual characteristics of rifling marks present on exhibit EB1 were insufficient for comparison in opinion. He has also proved that the revolver marked Ex.F1 was a firearm, the cartridges marked exhibits A1, A2, the cartridge case marked exhibit EC1 and the deformed bullet marked exhibit EB1 were ammunition as defined in arms act. He has proved the detailed Ballistic Report which is Ex.PW23/A. (133) It is writ large from the above Ballistic Report that the empty cartridge case seized at the spot was fired from the revolver Ex.F1 but in so far as the deformed bullet recovered from the head of the deceased is concerned, though as per the opinion it was corresponding to the bullet of .32 inch cartridge but no opinion could be given regarding this deformed bullet i.e. whether it had been discharged through the revolver exhibit F1 or not since the individual characteristics of rifling marks present on exhibit EB1 were insufficient for comparison in opinion. Be that as it may, the said aspect is irrelevant in view of the fact that the accused does not dispute his presence at the spot and the fact that the deceased Virender had died on account of firing from his licensed St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 135 revolver Ex.F1. His only defence is that it was an accidental fire caused by the deceased himself when he snatched his revolver and while he i.e. accused Sandeep was trying to get it back but both the deceased Virender and injured Nisha were trying to pull it away from his hand. Hence, the said aspect being not disputed and the aspect of firing being confirmed by the eye witness, merely because the Ballistic Report does not conclude that the deformed bullet was fired from the questioned firearm will not be fatal to the prosecution case.
Employment of the accused/ Route Chart and Arrest - Not Disputed:
(134) The case of the prosecution is that the accused Sandeep was employed with A2Z Infra Services Pvt. Ltd. and was appointed as Gunman with CMS Info Systems and on the date of the incident was on duty on the cash collection van along with the Driver Vinod, Cashiers Jaipal Singh Rawat and Dhirender Kumar. In this regard the prosecution is placing its reliance on the testimony of Amit Vats (PW17) the Deputy Manager (HR) with A2Z Infra Services Ltd. and Anuj Dobhai (PW24) Senior Manager (Operations) of CMS Info Systems.
(135) I have gone through the testimonies of the above witnesses.
Sh. Amit Vats (PW17) has proved the record regarding the appointment of accused Sandeep S/o Sh. Jai Singh, R/o Village Soldha, Tehsil Bahadurgarh, District Jhajjar, Haryana as Gunman with CMS Securitas Ltd. Okhla. He has proved the copy of BioData of the St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 136 accused Sandeep which is Ex.PW17/A, the personal information form which is Ex.PW17/B, the copy of Arm License which is Ex.PW17/C, copies of pay slip from April 2011 till August 2011 which are Ex.PW17/D and copy of letter of appointment which is Ex.PW17/E which the accused does not dispute. Further, Sh. Anuj Dobhai (PW24) has proved that they used to collect the cash of the bank customers on behalf of the bank and deposit the cash in the designated banks and the accused Sandeep was the Gunman with them to pickup the cash with their cashiers. He has proved the Route Chart of the customer cash pickup which is Ex.PW24/A and Route Chart of customer wise cash pickup which is Ex.PW24/B according to which on 20.8.2011 their cashier custodians had to called the cash from DTTDC Nimri Colony for Axix Bank and the accused Sandeep was the Gunman for Wazirpur Road vide route chart Ex.PW24/C. He has also proved the attendance sheet dated 20.8.2011 of the accused which is Ex.PW24/D. (136) I may observe that the accused Sandeep at his level does not dispute his employment and the fact that he was on duty on the cash van. He also does not dispute his presence at the spot and has admitted that he was arrested from the spot of incident itself but only disputes the manner in which the incident had taken place and denied having made any disclosure statement to the police.
St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 137 Electronic Evidence:
(137) The case of the prosecution is that soon after the incident the injured Nisha Verma had made a call to the PCR from mobile No. 9210836887 which she was using at the time of incident which number had been issued in the name of her mother Smt. Urmila. While simultaneously the accused Sandeep had also made a call to the PCR on which PCR officials came to the spot. This call from the Control Room had been conveyed to the Local Police and on receiving this information Inspector Lalit Joshi immediately made a call to Nisha thereafter.
(138) In order to prove its case the prosecution has placed its reliance on the testimony of Sh. R.K. Singh (PW16) the Nodal Officer from Bharti Airtel Ltd. who has proved that mobile No. 9210836887 has been issued in the name of Ms. Urmila, W/o Rajender Kumar, R/o WP273, Wazirpur Village, Ashok Vihar, New Delhi52 vide Customer Application Form copy of which is Ex.PW16/A and copy of election voter ID card in support of residence proof which is Ex.PW16/B. He has also proved the call details for the day 20.08.2011 which are Ex.PW16/C (running into two pages); Cell ID Chart which is Ex.PW16/D (running into one page) and Certificate U/s 65 B of Indian Evidence Act which is Ex.PW16/E. (139) I have gone through the Call Detail Records of the above mobile number and from the analysis of the same it stands established that St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 138 Nisha Verma who was using the mobile No. 9210836887 had made a call to the PCR at 100 number on 20.8.2011 at 3:06:39 PM which call lasted for 62 Seconds and at that time the location of mobile phone was at Nimri Colony. Further, it has been established that soon thereafter i.e. at 3:13:14 PM Inspector Lalit Joshi who was using mobile No. 8750870222 made a call on the mobile phone used by Nisha Verma which call lasted for 24 seconds. Both the above calls have not been disputed by the accused Sandeep and I hereby hold that the electronic evidence confirms the prosecution version as regards the same.
Ocular Evidence/ Allegations against the accused:
(140) 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. The eye witness account requires a careful independent assessment and evaluation for its credibility, it should not be adversely prejudged on the basis of other evidence. The ocular evidence has to be tested for its inherent consistency and inherent probability of the story, consistency of the account given by one witness with that given by the other witness held to be creditworthy, consistency with the undisputed facts, the 'credit' of the witnesses who performed in the witnessbox, their power of observation and it is only then that the St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 139 probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
(141) The case of the prosecution is that on 20.8.2011 at about 3:00 PM Virender (deceased) along with his friend Nisha Varma reached in front of Liquor Shop at Nimri Shopping Complex, Ashok Vihar, PhaseI, Delhi in Maruti Esteem Car No. DL9CB0129 where one Maruti Radio Taxi van bearing No. DL1RT0740 was already stationed. Two persons were sitting in the said Maruti Van and the boy who was sitting on the passenger side seat, stared at Nisha and passed obscene comments on which deceased Virender objected but the said boy i.e. accused Sandeep abused Virender and also threatened him by taking out of his revolver.
However, Virender ignored him and went to the liquor shop and came back after buying beer and sat on the driver seat of his car. It is alleged that at that time the accused Sandeep again came to Virender, abused him and threatened him which was objected to by Virender and Nisha Verma was tried to stop Virender from arguing with the accused by putting her hand on his mouth. However, the accused Sandeep fired at Virender by putting his revolver on the nose of Virender on which Virender fell on the lap of Nisha who also sustained injuries on her hand. Nisha then made a call at 100 number and in the meanwhile on hearing the noise of gun shot HC Devender who was on patrolling duty in the area rushed to the spot and apprehended the accused Sandeep and also snatched the revolver from his hand. The PCR also reached the spot and shifted both the injured to St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 140 Sunder Lal Jain Hospital where Virender was declared 'Brought Dead' whereas Nisha was given treatment.
(142) In order to prove its case the prosecution has placed its reliance on the testimony of Nisha Verma (PW5) an injured in the incident. She was with the deceased at the time of the incident and had received injuries in the incident while trying to intervene between the accused and the deceased and was taken to the hospital along with him. The prosecution is also placing its reliance on the testimonies of Jai Pal Rawat (PW6) the Cashier in the van who had gone to collect the cash from the wine shop; Dhirender Kumar (PW21) the cocashier; Vinod Kumar (PW22) the Driver of the cash Van in which the accused Sandeep was the Gunman and Gian Singh (PW25) the Security Guard at the Wine Shop.
(143) Since the prosecution is placing its heavy reliance on the testimonies of Nisha Verma (PW5), Jai Pal Rawat (PW6), Dhirender Kumar (PW21), Vinod Kumar (PW22) and Gian Singh (PW25), it is therefore necessary for this Court to first determine whether what they have deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 141 AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
(144) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons and one of the reasons is that they do not have courage to depose against habitual criminal apprehending threats to their life. A rustic or an illiterate witness may not be able to St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 142 withstand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at times under the stress of cross examination, certain answers are snatched from him. When such a person is faced with an astute lawyer, there is bound to be imbalance and, hence minor discrepancies have to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State of Bihar reported in AIR 2002 SC 1965).
(145) Applying the settled principles of law to the facts of the present case, and coming first to the testimony of Nisha Verma (PW5) who is an eye witness and was also injured in the incident. The relevant portion of the same is as under:
"....... I have completed my M.Com, in the year 2011.
On 20.08.11 at about 3.00PM I alongwith Virender since deceased went to Nimri commercial Complex in his Esteem Car bearing no. DL9CB 0129. Virender was known to me as he was also residing in the same village. A wine shop was also located there in the said complex. One Maruti Omni Radio Taxi of white colour bearing No. DL1R T0740 was also stationed there inside which two persons were sitting. One was sitting on the front driving seat while the other was sitting on the front passenger side seat. The person who was sitting on the passenger side seat looked at me with bad intention (Ghoor Ke Dekha) and also passed obscene comments i.e Kyaa Maal Baitha Hai. On this St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 143 Virender got down from the car and went near the said Omni van and asked that boy not to pass such comments. On this that boy who was sitting on the passenger side seat took out a revolver and started abusing Virender and also started threatening Virender to kill.
At this stage witness pointed out towards accused Sandeep today present in the court correctly identified who was sitting on the passenger side seat of said omni van on the date of incident.
Thereafter Virender ignored him and pacified the said boy and thereafter went to the wine shop he brought a can of beer and sat inside the car. At the same time accused Sandeep present in the court today who was sitting on the passengers side seat came near our Esteem car and hit the bonnet and came near the driving side seat and started banging the driving seat side glass. He was also abusing at that time. He was threatening to kill Virender when Virender brought down the window glass of his side and tried to pacify the matter and asked accused Sandeep to go. I put my hand on the mouth of Virender so as to stop him from talking with accused Sandeep. In the meantime accused Sandeep who was having the revolver in his hand pointed the revolver on the nose of Virender and fired on Virender. As my right hand was there on the mouth of Virender therefore I also received bullet injury on my index finger of my right hand. After receiving the bullet injury head of the Virender fell down on my right shoulder. Blood was oozing out from the injuries on Virender and also from my hand. I immediately dialed no.100 and called the police. Accused was apprehended by many persons who were there near the St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 144 spot. Police Officials also reached the spot. HC Devender and PCR Vehicle also reached there. Accused Sandeep was handed over to the police by the public persons alongwith the said revolver. I may mention here that the name of accused Sandeep came to be known at the time of the inquiry made by the police from the accused at the spot. I alongwith Virender were removed to the Sunder Lal Jain Hospital there doctor declared Virender brought dead. Doctor also gave me First Aid Treatment. I returned with a lady police official to the spot. After conducting the investigation by the police we went to PS and my statement was recorded by the police there. My statement is Ex.PW5/A bearing my signature at point A. Police also seized my blood stained clothes and took the same into possession vide memo Ex.PW5/B bearing my signature at point A. Accused Sandeep was arrested vide memo Ex.PW5/C and his personal search was got conducted vide memo Ex.PW5/D both memos bearing my signatures at point A. Police seized the Esteem Car of Virender at the spot vide Ex. PW5/E bearing my signatures at point E. Police also seized the Omni car of accused Sandeep vide seizure memo Ex. PW5/F bearing my signatures at point A. Police took possession of one beer can from inside of esteem car. Police also took possession of blood stained seat covers from inside of the esteem car and police seized the same vide memo Ex. PW5/G bearing my signatures at point A. Police also seized the fire arm revolver by which accused Sandeep fired upon the deceased Virender. Police also seized the three live cartridges and one empty fire cartridge. Police prepared the sketch of revolver vide Ex. PW5/H bearing my St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 145 signatures at point A and police also prepared the sketch of three live cartridges and one empty fire cartridges vide Ex. PW5/I bearing my signatures at point A. I do not remember whether the measurements of the same were taken or not. Police seized the revolver and above said cartridges vide Ex. PW5/J bearing my signatures at point A. License revolver was also recovered from the accused Sandeep vide memo Ex. PW5/K bearing my signatures at point A. Accused Sandeep is present in the Court today. Witness correctly identified accused Sandeep. I can identify the above said seized articles if shown to me.
At this stage. MHC(M) produced one parcel no. 7 in sealed condition with seal of FSLMU DELHI and same is opened after breaking the seal and one beer can of Thunder Bolt is taken out and same is shown to the witness who correctly identified the same seized by the police. Beer can is Ex. P1.
At this stage. MHC(M) produced one parcel no. 8 in sealed condition with seal of FSLMU DELHI and same is opened after breaking the seal and one beer can of Kingfisher is taken out and same is shown to the witness who correctly identified the same seized by the police. Beer can is Ex. P2.
At this stage. MHC(M) produced one parcel no. 9 in sealed condition with seal of FSLMU DELHI and same is opened after breaking the seal and two pieces of seat covers are taken out and same are shown to the witness who has correctly identified the same seized by the police. Seat Covers are collectively Ex. P3.
At this stage. MHC(M) produced one parcel no. 10 in sealed condition with seal of FSLMU DELHI and same is opened after breaking the seal and one lady St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 146 shirt, one pyjami and one dupata are taken out and same are shown to the witness who has correctly identified the same belonging to her and seized by the police. Lady shirt, one pyjami and one dupata are collectively Ex. P4.
At this stage. MHC(M) produced one parcel no. 5 in sealed condition with seal of PPFSL DELHI and same is opened after breaking the seal and one revolver, one live cartridge, three fired empty cartridges and bullet are taken out and same are shown to the witness who correctly identified the revolver and one live cartridge and three empty fired cartridges seized by the police. Witness further states that at the time of seizure there were three live cartridges and one empty fired cartridge. Revolver is Ex. P5 and cartridges are collectively Ex. P6.
I can identify the Omni Car and the esteem car if shown to me.
At this stage, MHCM has stated that both vehicles have been released on superdari. Superdar have not produced the above said vehicles.
At this stage, photographs Ex.PW7/A4, Ex.PW7/A14, Ex.PW7/A13 and Ex.PW7/A15 are shown to the witness and witness identified the esteem car bearing no. DL 9C B 0129 and Omni Car bearing no. DL 1R T 0740 in the photographs and stated that the same esteem car and omni car were seized by police. The esteem car is Ex. P7 and Omni car is Ex. P8......."
(146) She has been crossexamined by the Ld. Defence Counsel at length wherein she has explained that the deceased Virender was her brother in relationship and was also their neighbour. She has admitted St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 147 that she knew that Virender used to take liquor occasionally. She has informed that one bottle of beer and one or two cans of beer were already lying in the Esteem Car before the incident but he did not take any liquor or beer in her presence in the car. She has explained that on the date of incident Virender came to their house at about 12:15 PM and she went with him in search of a Coaching Institute for B. Ed. Examination. According to Nisha Verma, the windows of the front seat of their Esteem Car were open to some extent. She has further explained that she remained sitting in the car while Virender had gone to the liquor shop and the distance between their car and Omni Van of the accused was about five to seven feet. She has also explained that she has no enmity with the accused Sandeep and the incident took place suddenly within 45 minutes. She has further stated that she had not mentioned to the PCR officials nor to the doctors about the obscene comments. The relevant portion of her crossexamination is reproduced as under:
"....... The incident took place suddenly. It hardly took 45 minutes during the complete incident. When Virender went to beer shop the accused was siting in his van. The accused did not pass any comments and did not stared me at that time when Virender went outside the car. Police had reached at the spot within 23 minutes after the incident. Just after reaching at the spot, police took us to the hospital and police conducted no investigations in my presence at that time. I had not mentioned in the PCR call about the obscene comments. I had not mention to the doctor also about St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 148 the obscene comments passed by the accused.
On 20.08.2011 i.e. the day of incident, after giving my statement to the police in the police station I had not come to the spot with the police again. Police had obtained my signatures on some papers on that day. It is correct that I had received a call from the SHO PS Bharat Nagar from the spot. I cannot tell the name of police official who had told me about the name and whereabouts of the accused in the police station. I remained at police station Bharat Nagar on the day of incident upto 10:3011:00 PM after coming from the hospital. Thereafter I left the police station and reached my house. Thereafter I did not join the investigations in this case as I was never called by the police. Many persons gathered at the time of incident at the spot. I do not remember the exact time till which I remained in the hospital. I cannot tell the name of the police official who met me in the hospital. No written proceedings were conducted by the police in the hospital in my presence.
I had stated to the police in my statement Ex.PW5/A that the accused had bad intention and passed the obscene comments i.e. "Kyaa Maal Baitha Hai". Confronted with statement Ex.PW5/A where it is not so recorded. I had also stated to the police in my statement that the boy who was sitting on the passenger side seat, took out a revolver and started abusing Virender and also started threatening Virender to Kill. Confronted with statement Ex.PW5/A where it is not so recorded. I had also stated to the police in my statement that accused came near out Esteem car and hit the bonnet and came near the driving side seat and started banging the driving side seat glass, he was also abusing at that time. Confronted with statement Ex.PW5/A St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 149 where it is not so recorded. I had also stated to the police in my statement that accused was handed over to the police by public persons along with the revolver. Confronted with statement Ex.PW5/A where it is not so recorded. I had also stated to the police that I returned with lady police officials at the spot and after conducting the investigations by the police, we went to the police station and my statement was recorded by the police there. Confronted with statement Ex.PW5/A where it is not so recorded......"
(147) I may observe that in so far as the victim Nisha Verma is concerned, she is a young girl of 25 years and was admittedly sitting in the Esteem Car with Virender when she observed Sandeep staring at them. She has admitted that before that when Virender had gone inside the Wine Shop and she was alone in the car, the accused neither stared nor passed any comments on her and it was only later when Virender returned and sat inside the car and started consuming beer and he was having Chole Chawal (as evident from the photograph Ex.PW7/A7 and also from the postmortem report confirming the presence of masticated food particles inside the stomach and from the oral testimony of Nisha) that she observed the accused staring at them and informed Virender upon which the deceased Virender objected to the same when the accused Sandeep walked upto the vehicle of the deceased with his revolver and pointed the same on him though the window of the car which at that time was partially opened (as evident from the photograph Ex. PW7/A12). It is St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 150 then that there was a grappling and scuffling with the accused outside the vehicle holding his revolver on the deceased and the deceased being inside when the shot was fired. Whether the firing under the given circumstances was unintended or accidental is irrelevant - None can be permitted to play with firearms saying that his intention was to not to fire. His defence that the deceased had snatched the revolver from his hand does not find any reliable confirmation i.e. not even from his own associate Vinod who was the driver of the cash collection van. It stands established that only one shot had been fired which hit the finger of Nisha Verma and then the deceased Virender causing his instant death, as also confirmed from the postmortem report after which the head of the deceased fell on her shoulder. Nisha Verma was the one who had made a call at 100 number and soon after the PCR official came to the spot she was shifted to the hospital (confirmed from the electronic record). Her version to the extent of the accused objectionably staring her and the deceased, is the true and correct version which has also come on record in the PCR Form/ WT Messages which were conveyed to the Control Room after the incident. The remaining part of her testimony to the extent of accused Sandeep having passed lewd remarks saying Kya Maal Baitha Hai is a total improvement. This I hod because on the one hand the witness Nisha herself has admitted that when she was alone in the car after Virender went inside the Wine Shop to purchase beer, the accused did not stare at her. Also, the story of these comments came up much later. Hence, the St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 151 improvement in the testimony of Nisha alleging obscene comments to the accused is liable to be ignored.
(148) Coming next to the testimony of Jai Pal Singh Rawat (PW6), I may observe that he has only confirmed the presence of Sandeep in the vehicle as Gunman and states that he along with Dhirender Kumar had gone inside the Wine Shop for collecting the cash whereas Sandeep remained in the Van. Jai Pal Singh Rawat has turned hostile as regards the allegations against the accused Sandeep or that he had made any statement to the police to the extent that he had seen the accused Sandeep with a Revolver and exchanging hot words with the deceased upon which he had fired upon the deceased. In this background, in so far as his testimony is concerned, it does not assist the prosecution in any manner because the accused Sandeep does not dispute his presence at the spot. (149) In so far as Dhirender Kumar (PW21) and Vinod Kumar (PW22) are concerned, they have supported the prosecution version in so far as the incident of firing is concerned. Coming first to the testimony of Dhirender Kumar (PW21) the Cocashier who was on duty in the Maruti Van to collect the cash from the wine shop. The relevant portion of his testimony is as under:
"........ In the year 2011 I was residing at WZ121, Shakur Pur Basti, Delhi and I was doing the service as cash officer/cashier in cash management service E8, Jhandewalan, Delhi. I have to collect cash amount from the destinations i.e. mall points and the government St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 152 wine shops at different places.
On 20.08.2011, alongwith my cocashier Jaipal Singh, Security guard Sandeep and driver Vinod reached at Nimri shopping complex at government wine shop to collect the cash at about 3.00 p.m. by a maruti Omni van no. DL 1R T 0740. We parked our vehicle Omni Van in front of the government wine shop and I alongwith Jaipal Singh went inside of the government wine shop to collect the cash. Security guard Sandeep and driver Vinod Kumar remained outside with Omni Van. When we were counting cash inside the government wine shop, we heard the sound of firing and we came out from there and saw that one person was lying in an injured condition on the driving seat of esteem car and our security guard Sandeep was standing there and he was holding his license revolver in his hand. Meanwhile one policemen came there and overpowered Sandeep and took his revolver in his possession. We had taken the cash from the government wine shop and kept the same in cash box in Omni van. Police also took us to the PS and after making inquiries from me, we were released and we took the cash box by another vehicle.
Our security guard Sandeep is present in the court today. Witness correctly identified accused Sandeep Kumar @ Sonu.
At this stage Ld. APP seeks permission to put a leading question to the witness about the incident. Heard. Allowed.
It is correct that accused Sandeep fired upon a person who was sitting in esteem car in front of wine shop, by his fire arm i.e. licensed revolver....."St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 153
(150) In his crossexamination by the Ld. Defence Counsel the witness has admitted that the actual firing did not take place in his presence and also that he cannot tell anything about the actual incident which had taken place. He has denied that he himself, Vinod and Jaipal had gone inside the liquor shop to collect the cash. (151) It is writ large from the above testimony of Dhirender Kumar (PW21) that he had seen the accused Sandeep holding his revolver in his hand and that a policeman had come and taken the revolver from his hand but does not claim that he had seen the actual incident of firing. He has also controverted the version of Jaipal Singh Rawat to the extent that the Driver Vinod Kumar had gone inside the liquor shop and has confirmed that he (Vinod) was present with the accused Sandeep outside the wine shop at the time of the incident.
(152) Coming next to the testimony of Vinod Kumar (PW22) who is the Driver of the Omni Van who has confirmed that he was present with the accused Sandeep outside the Wine Shop and has also confirmed that while they were sitting in the van the deceased had come out and had asked Sandeep why he was staring at them pursuant to which there was an exchange of hot words between them. The relevant portion of his testimony is as under:
".......... I am the owner of maruti van Omni bearing no. DL IR T 0740. My abovesaid van was attached with cash management service Jhandewalan Delhi and I used to drive said van myself.St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 154
On 20.08.2011, I alongwith Jaipal cashier and another cashier whose name I do not remember and with security guard Sandeep reached at Nimri Shoping complex in government wine and beer shop at about 3.00 p.m. with my abovesaid Omni van to collect the cash from the shop. I parked my Omni van just near government wine shop. I alongwith gunman Sandeep remained outside of the shop and both cashiers went inside of the government wine shop to collect the cash. I was sitting on the driving seat of Omni van. Meanwhile one esteem car came at the abovesaid government wine and beer shop. I do not remember the registration number of said esteem car. One boy was sitting on the driving seat and one girl was sitting alongwith him on the front seat. The said boy stepped down from the car and came to our gunman Sandeep told him that why he was looking towards his car and thereafter hot words exchanged between them. I intervened in the matter and both the persons were pacified by me and thereafter the abovesaid boy of esteem car went to wine shop and brought two beer cans and went towards his esteem car while staring towards Sandeep. The said boy sat in his car on the driving seat. Thereafter Sandeep our gunman went towards the said boy and both persons grappled and thereafter Sandeep fired upon the said boy who was sitting on the driving seat of esteem car and the said boy received gun shot injury and his head fell down in the lap of girl. The gunman Sandeep was making a call and the girl also made call to police. Meanwhile police came there and police overpowered gunman Sandeep and took over possession of gun.St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 155
PCR took injured boy and the girl to hospital. We were also taken to the PS with our Omni van with cash box. Cash box was taken away by the cashiers from there. My omni car was seized by police.
I handed over photocopy of RC, insurance, permit, fitness, driver badge, driving license, duty slip and original duty slip regarding the abovesaid Omni van and my duties to the police and police seized the same vide memo Ex.PW22/A bearing my signatures at point A and the said documents are collectively are Ex.PW22/B (9 documents) bearing my signatures at point A. I took the abovesaid Omni van on superdari vide Ex. PW22/C bearing my signatures at point A. I have not brought the said Omni van today. My omni car is shown in photograph Ex. PW7/A13 and Ex.
PW7/A15. The said omni car is already Ex. P8.
Gunman Sandeep is present in the Court today. Witness correctly identifies the accused Sandeep Kumar @ Sonu......"
(153) Leading questions were put to the witness by the Ld. Addl. PP for the State, which I reproduce as under:
"....... It is correct that the esteem car was bearing no. DL 9C B 0129 which is shown in the photographs Ex. PW7/A4 and Ex. PW7/A14. It is correct that the said esteem car came at the left side of our omni van. It is correct that Sandeep was continuously staring towards the girl who was sitting in esteem car and he was saying that "KITNA BADIYA MAAL HAI". It is correct that the boy sitting in the esteem car came to accused Sandeep thereafter. It is also correct that the St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 156 said boy made the accused Sandeep understand not to do such things. It is correct that Sandeep was holding his licensed revolver with him when the said boy was talking with him. It is correct that accused Sandeep took out his licensed revolver and showed the same to the said boy and told him that "YAHA SE CHALA JAA TERA ISSI ME BHALA HAI". It is correct that Sandeep went towards the esteem car with his revolver in his hand. It is correct that I followed Sandeep to pacify him. It is correct that before I stop him or to pacify Sandeep, he exchanged hot words with said boy and abused him and fired upon him on his face with his licensed revolver. It is correct that the girl sitting in the car made call at 100 number. It is correct that accused Sandeep also made a false call that the cash was looted. It is correct that the police officials took the possession of revolver from the accused Sandeep with the help of handkerchief. It is correct that the name of another cashier is Dhirender Kumar. Police also produced me for recording of my statement before a Magistrate, Rohini Court. At this stage, one envelope sealed with seal of NG is taken out from judicial file and proceedings U/s. 164 Cr. P.C. is taken out. My statement was recorded by the Ld. MM at Rohini Courts which is Ex.PW22/C (four pages)bearing my signatures at point A on each page....."
(154) However, in his crossexamination the witness has admitted that prior to this incident there was a parking dispute between the accused and the deceased. I reproduce the relevant portion of his cross examination as under:
St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 157
"........ I was sitting at the driving seat in my Omni van and accused Sandeep was standing near Omni van when esteem car reached at the spot. The esteem car stopped near our van at a distance of about 3 feet. I do not remember the colours of glasses of windows of esteem car. I do not remember if windows of the said esteem car were open or not when the same reached near our van. It is correct that there were bear and liquor bottles in the said esteem car. I do not know whether the said boy of esteem car was under the influence of liquor or not. It is wrong to suggest that after thought exchange that the injured boy removed his vehicle after hot exchange of words with accused Sandeep from the place where he parked firstly. It is correct that accused Sandeep had asked the deceased to remove his car from infront of the cash van as he has to take care of the cash placed in the van......"
(155) It is writ large that in his crossexamination by the Ld. Defence Counsel the witness has explained that he was sitting at the driving seat of his Omni Van and accused Sandeep was standing near the van when the Esteem Car reached at the spot. He has also admitted that there were beer and liquor bottles in the Esteem Car but he is not aware whether the said boy of Esteem Car was under the influence of liquor or not. Further, what is more important is the fact that he has admitted that the accused Sandeep had asked the deceased Virender to remove his car from in front of the cash van as he had to take care of the cash placed in the van. The photographs Ex.PW7/A3, Ex.PW7/A4 and Ex.PW7/A6 St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 158 confirm that while the Cash Van was parked in front of the Wine Shop facing towards the road, the Maruti Esteem Car was parked at about four to five feet from this Cash Van on its left side facing towards the Wine Shop which apparently confirms that initially when the Maruti Esteem Car cam the Driver (deceased Virender) must have parked the same in front of the parked Maruti Omni Van which was objected to by the accused Sandeep after which he parked his Esteem Car on the left side of the Omni Van and went inside the Wine Shop leaving Nisha sitting in the same and this version regarding the parking dispute finds due confirmation from the WT messages present on the PCR Form Ex. DW1/A which was filed by the prosecution along with the charge sheet but very strangely not proved by calling the witness and was later on being relied upon the Defence and the accused himself relied upon the same and the prosecution has not disputed the same. The said PCR Form and WT messages reveal that the initial dispute between the accused and the deceased was relating to parking which got aggravated only because the accused was staring at the deceased and the lady Nisha who were sitting inside the car which was objected to by the deceased Virender. The call to the PCR was made by Nisha Verma at 15:11:15 hours from the mobile No. 9210886887 pursuant to which the PCR Van reached the spot at 15:23:11. The details of the WT Messages transmitted to the Control Room are put in a tabulated form as under:
St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 159
Sr. Date Time WT Messages
No.
1 20.8.2011 15.23.11 (2) injured hai jisme (1) lady aur (1) gents hai.
Lekar Sunder Lal Jain Hospital Ja rahe hain aur
goli lagi hai. Wait for detail
2 15.24.49 SHO with Staff mauka per.
3 15:36:28 M/ Van No. DL1RT0740 jo sharab ke theke se cash lene
aayi park thi. Dusri gadi Esteem No. DL9CB0129 wahan aakar khadi ho gayi. Gunman Sandeep ne gadi hatane ke liye kaha. Esi baat ko lekar jhagra ho gaya aur M/Van ke gunman Sandeep S/o Jai Kishan R/o Distt. Jhajjar, Village Soldha ne goli chala di. Cash lutne wali koi baat nahin hai.
4 15:49:40 Bijender S/o Mehar Chand, age 29 years, R/o H. No. 169, Village Wazirpur, jiske head per goli lagi hai, jo head ke par nikal gayi hai, Dr. ne 'Brought Dead' declare kar diya hai aur lady Nisha age 2022 years, Bijender ki friend hai, jo above village ki rehne wali hai, jiske left hand ko goli touch kar nikal gayi hai. Lady se karan pata kar rahe hain.
5 15:52:29 SHO and ACP Sahab mauka par hain. Same call Sr. No. 48, C. No. 1340459.
6 15:55:59 Nisha ne bataya goli chalane wala mujhe glat nazar se dhekh raha tha, jisper maine mana kara tha aur gunman jhagra karne laga aur goli chala di.
7 16:00:03 Meri position Hospital Main. Same Halat. 8 16:52:22 Lady Nisha jo Hospital main first aid di thi aur lady hawale lady police in hospital.
(156) It is writ large that Vinod had witnessed the incident while sitting in the Cash Van and has corroborated the version of Nisha Verma (PW5) the star witness of the prosecution as regards the presence of the accused Sandeep at the spot and firing caused from his licensed revolver St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 160 but has given a different version for the altercation which according to the prosecution was an outcome of an eve teasing but according to defence was an account of a parking dispute.
(157) The first PCR official who had reached the spot is HC Om Prakash (PW19) who in his examination has come up with an altogether new story, which was different to the version both of the prosecution and also of the defence. I reproduce the relevant portion of the testimony of HC Om Prakash (PW19) as under:
"........ On 20.08.2011 I was posted at PCR NW zone as a head constable and my duty was in van No. C8 PCR van as incharge from 8AM to 8PM. At about 3:15 PM when we were stationed at Nimri colony Ashok Vihar near the theka/liquor vend we received information from the control room that one person had been shot at liquor vend at Nimri colony falling within the jurisdiction of PS Bharat Nagar. On receipt of this call I immediately reached in front of the liquor vend within one or two minutes and found a large crowd of public persons. An Esteem vehicle was parked there in front of the liquor vend and inside the vehicle I found one girl sitting on the left side on the front seat who was crying, on the adjoining seat in front of the steering a boy aged about 2530 years was sitting and was not moving. There was blood oozing out from his nose and the girl was holding his mouth. I made inquiries and came to know that the name of the girl was Nisha and the boy was her friend namely Virender @ Billu. I asked her as to what had happened and she informed that a person standing in front of her had fired a shot and the bullet brushed through her St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 161 finger and hit the boy Virender on his nose. I immediately shift both of them to my PCR van and rushed them to Sunder Lal Jain hospital, Ashok Vihar where the boy was declared brought dead. The girl disclosed that the deceased Virender was her boy friend and they both were consuming liquor outside the liquor vend. A security guard on the theka stopped them from consuming liquor and there was a gali gloach. Court Directions : the statement of the witness is being recorded in vernacular because I have observed from the demeanor of this witness that he is not coming out with the complete details despite repeated questions being put to him by the public prosecutor, he is evading to respond on the same. Now on the asking of the court to inform about what the girl Nisha told him, he has stated that ...... Nisha ne mujhe batya ki woh aur uska dost theke par baith kar beer pe rehe thai, security guard ne unko mana kiya, uske bad gali galoch hui aur uske bad ladki ne mujhe kuch nahi bataya kyonki woh rone lag gaye......."
(158) Since the witness was not giving the complete details, therefore, leading questions were put to him, which I reproduce as under:
"........ It is correct that my statement was recorded by the IO Insp. Lalit Joshi which is Ex.PW19/PX1. It is correct that I had told Insp. Lalit Joshi that on interrogation Nisha had disclosed that there was a Maruti van already parked in front of liquor vend and one boy sitting in the maruti van was passing obscene comments on her and was looking at her objectionably "ek ladka usko obscene comments pass kar raha tha aur galat nazar se dekh raha." It is correct that when St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 162 Virender asked him not to do the same and objected to his behaviour, there was a verbal altercation/kaha suni between the two and on this the said boy pulled out his revolver and shot Virender. It is correct that Nisha informed that she tried to stop Virender from entering into a verbal altercation with the said boy and for doing so shut his mouth with her hand on which the bullet touched her finger and struck the nose of Virender (meine Virender ko chup karane ke liye uske muh par hath rakha tha, gole mere ungle ko touch kar ke Virender ko lag gaye). The court has repeatedly asked the witness why he has not disclosed the aforesaid facts initially on which the witness is again evasive and has kept quite, despite the advise of the public prosecutor but after much time witness states that he did not remember the same/dhyan nahi raha. On court question : I did not read my statement U/s 161 Cr. P.C to refresh my memory when I came to the court. Again said, "thoda sa para tha, last wali baat demag se nikal gaye"......."
(159) In his crossexamination by the Ld. Defence Counsel the witness has stated that his statement was recorded on 20.08.2011 when he was called to the Police Station and he even signed his statement which statement under Section 161 Cr.P.C. does not bear his signatures. He is the only witness who claims that when he reached the spot Nisha told him that she and her boy friend Virender i.e. the deceased were sitting outside the Wine Shop and consuming beer and when the Security Guard on the Theka stopped them from consuming liquor there was a galigaloch. Assuming the version given by HC Om Prakash to be correct, it is highly St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 163 improper that the security guard of a cash Collection Van should be indulging into Moral Policing and objecting to a young boy and girl consuming beer outside a liquor shop. Neither he had any authority nor right to be doing so.
(160) In so far as witness Gian Singh (PW25) who is the security guard of wine shop is concerned, he has not been able to identify the accused Sandeep as the Gunman who had indulging into firing but has confirmed the incident and has explained that he was inside the shop at that time and was watching Television. The relevant portion of his testimony is reproduced as under:
"........ I am a security guard and used to work as a guard at DTTDC English Wine shop Nimri Shopping complex. I do not remember the exact date but two years before at about 3.00 p.m. I was sitting at the counter of wine shop and watching television. A bank van came there to pickup the cash from wine shop and two persons entered the wine shop and two persons i.e. driver and guard remained outside. One esteem car also reached there and was parked in front of the van. There was a dispute between the driver of esteem car and the guard of the Omni van regarding wrong parking. The driver of the van pacified both of them. The driver of the esteem car then came to liquor shop and purchased one can of bear and he again went back there was verbal altercation between him and the guard and there was hathapai between them and they moved towards the esteem car "HATHAPAI KARTE HUA ESTEEM CAR KI TARAF CHALE GAYE".St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 164
Guard was saying to handover his "SAMAAN" to him and thereafter the said boy of esteem car sat in his car and the quarrel continued. One girl was also sitting in the car and she was trying to intervene and pacify the matter. I heard the sound of firing and boy of esteem car received the gun shot injury. Thereafter I do not know what happened.
I can not identify the guard of the van...."
(161) Leading question were put to the witness by the Ld. Addl. PP for the State wherein he has not been able to tell whether the incident had taken place on 20.08.2011; nor can he tell whether the security guard of the van went towards the Esteem Car Driver with his revolver and fired upon him. He is also not aware whether the security guard of van was making call from his mobile phone after making fire upon the Esteem Car Driver. In his crossexamination by the Ld. Defence Counsel the witness has admitted that a verbal altercation had taken place between the accused and the deceased and the deceased was saying that he was the son of Gujjar residing in the same village and would set him right (...... me gujjar ka ladka hoon. Isi gaon ka hoon tere ko sidha kar doonga......). (162) I may observe that Gian Singh (PW25) is an independent witness and his presence in the area at the spot of the incident is natural and probable being the security guard of the Wine Shop where the van had gone to collect the cash. In his examination in chief he has stated that the security guard was asking the deceased to handover his article/ Saaman to him after which the boy sat in the Esteem Car and the quarrel St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 165 continued. He has admitted that he did not tell to the police in his statement that the security guard was telling to the esteem car driver "mera samaan de do". It is evident that he has come up with this new version in the Court and has improved upon his earlier statement. (163) It stands established from the testimony of HC Devender (PW28) that while he was on patrolling duty in the area of Nimri Colony and reached at Bunker Chowk near Nimri Shopping Complex at about 3:00 PM when he heard voice of firing from the side of Nimri Shopping Complex on which he reached there in front of wine beer shop and found that one Esteem car bearing no. DL 9CB 0129 was standing there and one girl was sitting on the left side of esteem car and a male person was in her lap in an injured condition. According to HC Devender, the said lady informed him that the person who was standing in front of the car had fired upon the injured Virender on which he rushed towards that boy whose name he came to know later on as Sandeep and took the revolver from his right hand with the help of a handkerchief. This establishes that the accused made no attempt to escape from the spot. He not only made a PCR call but also handed over his revolver to HC Devender. (164) The accused in his statement under Section 313 Cr.P.C. and also while examining himself under Section 315 Cr.P.C. as his own witness does not dispute or deny his presence at the spot. He admits that he was the security guard of the Cash Van and was present there along with the Driver of van duly armed with his licensed revolver. He also St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 166 admits that there was an altercation dispute between him and the deceased but has only disputed the version given by the prosecution regarding his having given lewd remarks on Nisha Verma and has stated that in fact it was a parking dispute which had occurred when the deceased Virender who was under the influence of liquor came and parked his vehicle in front of the Cash Van to which he objected and there was a verbal altercation which was then resolved with the intervention of Vinod Kumar the driver of the Cash Van but later when Virender came back after purchasing the beer cans and sat inside his vehicle and picked up a fight with him and snatched his licensed revolver after issuing threats to him by saying that he is a Gujjar residing in the same area and would appropriately deal with him, resulting into a scuffle as he tried to obtain his firearm back in which process a shot was fired.
(165) Further, the accused Sandeep on his part has also confirmed this version in his statement under Section 313 Cr.P.C. According to the accused, the deceased had snatched his revolver and was trying to run away while he was trying to secure it back while Nisha Verma was also trying to help him and was pulling the revolver in their side in which process the shot went off. In his examination as DW1 the accused Sandeep has stated that the driver of the esteem car had consumed liquor and after parking his car he threatened him to see him by saying dekh lunga tujhe and while staring at him (ghoorta hua), he went towards the liquor shop and after coming back he threatened him that he is the son of St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 167 Gujjar residing in the same area and would set him right within no time (mai goojar ka ladka hoon, isis gaon ka rehne wala hoon, tujhe abhi seedha kar deta hooon) and suddenly the said boy snatched his revolver while he was sitting in his van and started going towards his car on which he followed him and caught him and asked him to return the same by saying mera samaan de do mera samaan de do but he i.e. deceased Virender did not respond and instead sat down on the driving seat of his car. According to the accused, in order to get back his revolver he pulled the hand of the said boy apprehending that after robbing his revolver, he may run away and while he was pulling the hand of Virender (deceased), one girl who was sitting inside the car also started to pull the revolver to their side and in this scuffle, while the driver of the esteem car having revolver in his hands and the girl was pulling the revolver towards their side whereas he himself was pulling their hands from the window of the car, a shot went off which hit the driver of the car. He has stated that he had made call to the police and the girl sitting in the car also made a call to the police on which just after two three minutes a PCR came there and rushed the injured to the hospital and the constable also took the revolver from the seat of esteem car. He has denied having made any objectionable remarks to the lady.
(166) The accused has also examined the property dealer Gyanender Sharma as DW2 who is having his shop in the area at B2, Vardhman Palace, Commercial Complex Nimri, Bharat Nagar, Delhi. St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 168 This Gyanender Sharma has confirmed this version given by the accused Sandeep. The relevant portion of his testimony is as under:
"....... I am a property dealer by profession and doing business under the name and style of Ganpati Associates having office at B2, Vardhman Palace, Commercial Complex Nimbri, Bharat Nagar, Delhi.
On 20.8.2011 at about 2:30 / 2:45 PM, I along with my friend Vijender Kumar was sitting in the parking in chairs in front of government liquor shop and my office, after taking our lunch. After some time, a cash van reached there and two persons from the said van got down of the van and went into the liquor shop while two persons remained sitting in the van itself. After two to four minutes, one Maruti Esteem car came at a very high speed and the car was stopped by its driver just touching the cash van in front of the cash van. Thereafter, the guard of the cash van asked the driver of the esteem car to get his car parked to one side as it was a cash van but the driver of the esteem car after getting down from his car abused the guard and scuffled with him. The driver of the cash van intervened and due to his efforts the driver of the esteem car parked his car on the side of the cash van and thereafter the driver of esteem car went to the liquor shop while staring (ghoorta hua) the guard of the van. The driver of the cash van also followed him upto the liquor shop and then went inside the liquor shop. Thereafter, the driver of the esteem car came towards the guard and said ".... main goojar ka ladka hoon, isis gaon ka rehne wala hoon, tere ko sidha kar dunga....." and thereafter he suddenly snatched the revolver of the guard and started moving towards his car. The guard St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 169 of the cash van was trying to get his revolver back by catching him physically and the guard of the cash van was also repeating ".... mera saman de de - mera saman de de...." but the driver of the esteem car did not respond and quickly sat on the driver seat of his car. The guard of the cash van caught hold of the hand of driver of esteem car through the window of the car and was pulling his hand to get back his revolver but the driver of the esteem car was having the revolver in his hand and one girl who was sitting inside the car both were pulling the revolver to their side and during this process, a shot went off which hit the driver of the esteem car. Thereafter, the guard remained standing at the spot and also made a call at 100 number. After some time PCR van reached the spot and the police officials made inquiries from me and the girl who was sitting inside the esteem car. The girl had told the PCR officials that the quarrel had happened on account of wrong parking of the esteem car by its driver. I and other public persons also apprised the same facts to the PCR officials. Thereafter the driver and cashiers of the cash van had also reached the spot after hearing the gun shot. PCR officials were also saying that the girl and the driver of esteem car had consumed liquor. Two police constables also reached there and one of them lifted the revolver from the driving seat of the esteem car and kept the same in his pocket. The injured and the girl were taken to the hospital by the PCR van. Thereafter SHO along with other staff reached there.
This incident had happened due to the misdeeds committed by the driver of the esteem car and the guard of the van did not fired upon anybody....."St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 170
(167) While on the one hand the Ld. Defence Counsel has argued that under the given circumstances the present case does not fall within the purview of provisions of Section 302 Indian Penal Code and at the most the accused can be held liable for the offence under Section 304 Indian Penal Code whereas the Ld. Addl. PP insists that it is a case squarely covered under the provisions of Section 302 Indian Penal Code. (168) However, before going into the merits of the evidence which has come on record, I may observe that as per the provisions of Section 300 Indian Penal Code culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid and this is punishable under Section 302 Indian Penal Code. There are five exceptions provided to the above. Firstly culpable homicide is not murder if the offender, whilst deprived of the power of selfcontrol by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 171 by mistake or accident. I may observe that this exception is also subject to the proviso that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person; the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant; the provocation is not given by anything done in the lawful exercise of the right of private defence; the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Secondly Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Thirdly Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without illwill towards the person whose death is caused. Fourthly Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner and it is immaterial in such cases which party St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 172 offers the provocation or commits the first assault. Lastly Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. [Reference in this regard may be made to the case of Kundaswamy Vs. State of Tamil Nadu reported in 2008 (11) SCC 97]. (169) The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300 Indian Penal Code. (Ref.: Daya Nand Vs. State of Haryana reported in AIR 2008 SC 1823).
(170) Whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 173 stage for considering the operation of Section 300, Penal Code, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of 'murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated is Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of Section 304, Indian Penal Code. Note: All murders are culpable homicide but not vice aversa. (Ref.: State of A.P. Vs. Rayavarapu Punnayya reported in AIR 1977 SC 45).
(171) It is submitted by the Ld. Defence Counsel that the provisions of Section 302 IPC have no application since the incident had taken place in a sudden quarrel and hence under the given circumstances it is Exception 4 of Section 300 IPC which would apply. I may observe that for bringing in its operation it has to be established that the act was committed in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. While the Fourth Exception of Section 300 IPC covers acts done in a sudden fight which deals with a case of St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 174 prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. While in the case of Exception 1 there is total deprivation of selfcontrol, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury caused is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A sudden fight implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 175
(c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the fight occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression undue advantage as used in the provision means unfair advantage. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. [Ref.:
Golla Yelugu Govindu Vs. State of Andhra Pradesh reported in 16 (2008) SCC 769]. To avail the benefit of Exception 4, the defence is St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 176 required to probabilise that the offence was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of premeditation and on account of total deprivation of selfcontrol but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight, though not defined under the Act, implies mutual provocation. It has been held by courts that a fight is not perse palliating circumstance and only unpremeditated fight is such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception. [Ref.: Sukhbir Singh Vs. State of Haryana reported in 2000 (3) SCC 327: AIR 2002 SC 1168 followed by our own High Court in the case of Manoj Kumar & Ors. Vs. The State in Criminal Appeal No. 638/2009 decided on 27.3.2012].
(172) Applying the settled principles of law to the facts of the present case, it is evident that the incident had taken place when the deceased was sitting on the driver seat of his esteem car and Nisha Verma was sitting next to his seat and the accused was standing outside the St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 177 window of the car. It has also been established that only shot had been fired. Had it been a case where the direct shot had been aimed at the deceased, I am sure the distance would have been point blank range which is not the case since according to the Autopsy Surgeon it was fired from a distance of about 15 cms (Near Distance/ Close Range) and not from the point blank range. At the time of the incident Nisha Verma was trying to shut the mouth of Virender with her hand thereby pulling the deceased who was the revolver of the accused towards herself as a result of which his head tilted towards her while his arms were stretched and it is this which explains how the fired bullet had entered the left alae of nose and then entered into medial wall of left maxilla and then taking entry into brain cavity through medial end of left carotid canal, traversed the brain matter obliquely towards the right occipital low and then pellet lodged in a pit made in right occipital bone with the directions of wound was slightly upwards and backwards. Also, the direction of the shot i.e. on the face of the deceased confirms that firearm was in the hand of the accused Sandeep and not in the hand of the deceased Virender as claimed by Sandeep. The postmortem report also establishes that there was smell of alcohol in the abdomen of the deceased. The medical evidence points out towards the scuffle rather than the firing at a Point Blank Range. Both the deceased and the accused were equally built and were equally sturdy and the eye witnesses have confirmed the scuffling and grappling between the accused and the deceased.St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 178
(173) A combined reading of the testimonies of the various eye witnesses (both of prosecution and defence) confirm the presence of the accused Sandeep (guard of the Cash Van) at the spot which even otherwise he does not dispute. It also stands established that the spot of the incident was in front of the liquor shop of Nimri Colony and the actual incident of firing was preceded by the verbal altercation between the accused and the deceased. According to the accused it all started when the deceased had wrongly parked his vehicle near the cash van and aggravated when the accused was staring at the deceased Virender and Nisha who were sitting in front of the Wine Shop which was objected to by Nisha and deceased Virender.
(174) From the evidence which has come on record two versions emerge. One is the version of prosecution that the incident of firing upon the deceased which took place inside the Esteem Car while the deceased was sitting inside the same with his friend Nisha and was fired upon at point blank range when he objected to the accused staring at them and passing obscene lewd remarks at Nisha Verma which version does not appear to be probable and convincing particularly in view of the evidence which has come on record and the story of lewd comments being introduced as after thought. The Second Version which has come on record is that initially there was a parking dispute between the accused and the deceased. While the accused who was the Guard on the Cash Van was waiting outside the Van with the Driver Vinod Kumar while the other St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 179 staff had gone inside the Wine and Beer Shop to collect the cash, the deceased came in his Martuti Esteem Car and wrongly parked the same in front of the Cash Van which was objected to by the accused resulting into an altercation between the accused and deceased which dispute was however resolved with the intervention of the driver Vinod after which the deceased parked his vehicle on the left side of the Cash Van and went inside the Wine Shop and purchased beer cans. However, soon thereafter when the deceased returned to the vehicle after purchasing beer cans, which he put inside the vehicle and was sat there with Nisha Verma, the accused Sandeep was staring at Nisha objectionably who conveyed it to the deceased Virender who objected to the same, again resulting into a verbal altercation between the accused and the deceased in which the accused had come till the vehicle of the deceased with his revolver and there was a scuffling and grappling in which a shot was fired instantly killing the deceased Virender and injuring Nisha. On the basis of the evidence which has come on record i.e. Ocular, Medical, Forensic and Circumstantial it is this second version which is more credible, probable and convincing.
(175) As per the evidence on record after the first round of verbal altercation the matter was pacified and the deceased had gone inside the wine shop and made some purchase of liquor and came and sat inside the car. It was thereafter that again the second round of altercation started after Virender (deceased) came back with the beer can and sat inside the St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 180 vehicle with Nisha enjoying his lunch and beer when they noticed accused Sandeep staring at them and objected to the same. Between the two incidents of altercation there was sufficient cooling time and it is not a case of sudden or grave provocation but on a sudden quarrel when the deceased objected to the accused staring at them. Under the given circumstances, the present case squarely falls within Exception 4 to Section 300 Indian Penal Code since it stands established that only one shot had been fired and even after the incident that accused did not make any attempt to run from the spot and rather made PCR call. I hereby hold that the case of the accused falls within the purview of Section 304 (Part I) Indian Penal Code and not 302 Indian Penal Code.
Charges Established:
(176) Charges under Sections 302, 324, 509 Indian Penal Code and 27 of Arms Act were settled against the accused Sandeep Kumar @ Sonu.
On the basis of the testimonies of various prosecution witnesses particularly the injured/ eye witness Nisha Verma, Driver of the cash van namely Vinod Kumar, the security guard of the liquor vend namely Gyan Singh, the cashier Harinder Kumar and also on the basis of the other medical, forensic and other circumstantial evidence on record, I hereby hold that the prosecution has been able to successfully establish the various charges against the accused and I hold the accused Sandeep guilty of the offence under Section 304 PartI Indian Penal Code (not under St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 181 Section 302 Indian Penal Code), Section 324 Indian Penal Code (for the injuries upon Nisha), Section 509 Indian Penal Code (for intending to insult the modesty of Nisha) and Section 27 of Arms Act. FINAL CONCLUSIONS:
(177) 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:
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.
St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 182 (178) 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. The identity of the accused Sandeep Kumar @ Sonu has been established and even otherwise he does not dispute the same. On the basis of the testimonies of the various prosecution witnesses the following aspects stand established:
➢ That the accused Sandeep was employed with A2Z Infra Services Pvt. Ltd. as Gunman and had been put on duty with CMS Info Systems (not disputed/ admitted by the accused).
➢ That on the date of incident i.e. on 20.8.2011 the cash collection van i.e. Maruti Omni Van bearing No. DL1RT0740 driven by the Driver Vinod with accused Sandeep as Gunman, Cashiers Jaipal Singh Rawat and Dhirender Kumar had reached the Nimri Shopping Complex at Government Wine and Beer Shop for collection of cash at 3:00 PM (not disputed/ admitted by the accused).
➢ That at that time the accused Sandeep was having an Arms License bearing No.220/VII/DM/JJR/08 and was also carrying a Licensed Revolver being on duty (not disputed/ admitted by the accused).
➢ That while the Driver parked the vehicle outside the Wine and Beer Shop and the Gunman Sandeep remained with him, the Cashiers St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 183 Jaipal Singh Rawat and Dhirender Kumar went inside the Wine Shop for collection of cash (not disputed/ admitted by the accused).
➢ That in the meanwhile one Esteem Car bearing No. DL9CB0129 driven by deceased Virender with Nisha Verma sitting by his side on the front seat also came to the Nimri Colony Shopping Complex (not disputed/ admitted by the accused).
➢ That the deceased Virender parked his Esteem Car just in front of the Cash Van to which Sandeep objected and asked Virender to remove his Esteem Car (not disputed/ admitted by the accused).
➢ That there was a verbal altercation between accused Sandeep and Virender which was resolved when Vinod Kumar the driver of Cash Van intervened (not disputed/ admitted by the accused and also established from the WT messages on PCR Form and proved by Driver Vinod Kumar, HC Om Prakash, Gian Singh and Gyanender Sharma).
➢ That that thereafter Virender went inside the Wine Shop and purchased two beer cans and came back and sat on the Driver Seat of his Esteem Car with Nisha Verma sitting on the seat next to the driver seat and started eating CholeChawal (proved by Nisha Verma and photograph Ex.PW7/A7 show the plates of Chole Chawal in the car and the postmortem report of the deceased confirm the presence of masticated food particles with brownish St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 184 fluid i.e. alcohol in the stomach of the deceased as confirmed from the Chemical Analysis/ Viscera Report).
➢ That while the deceased Virender was sitting on the Driver's Seat of his Esteem Car and Nisha Verma was sitting by his side, she noticed the accused Sandeep standing near his cash Van and staring at her objectionably upon which she informed Virender about the same (proved by Nisha Verma, Vinod Kumar and confirmed by WT messages on the PCR Form).
➢ That the deceased Virender objected to this behaviour of accused Sandeep resulting into a verbal altercation upon which the accused Sandeep walked till the Esteem Car with his revolver in which the deceased Virender and Nisha were sitting and threatened deceased Virender who at that time was also under the influence of alcohol, resulting into a verbal duet between the two, while Nisha tried to pacify them and had put her hand on the mouth of Virender to stop him from speaking with the accused Sandeep who was outside the vehicle and while the deceased Virender was seated on the Driver's seat and both were scuffling and grappling in which one shot was fired which first hit the index finger of Nisha who had put her hand on the mouth of Virender which shot fatally hit the deceased Virender whose head fell on her shoulder (proved by Nisha Verma and Vinod Kumar).St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 185
➢ That upon hearing the noise of firing HC Devender who was on patrolling duty in the area and other shopkeepers including the staff of the Cash Van and public persons immediately rushed to the spot and apprehended Sandeep and took the revolver from his hand (proved by Nisha Verma, Vinod Kumar and HC Devender).
➢ That thereafter Nisha immediately made a call on 100 number to PCR while simultaneously the accused Sandeep also made a 100 number call claiming that there was a dacoity in the Cash Van (not disputed/ admitted by the accused).
➢ That pursuant to the calls the PCR Van reached the spot and both Virender and Nisha Verma were rushed to the Sunder Lal Jain Hospital where Virender was declared 'Brought Dead' while Nisha Verma was provided medical treatment (proved by Nisha Verma, HC Om Prakash and Dr. Ajay Kumar).
➢ That on the basis of the statement of Nisha Verma the present FIR was registered and the accused Sandeep was thereafter arrested in the present case (proved by Nisha Verma, SI Satish and Inspector Lalit Joshi).
(179) The Medical Evidence on record is compatible to the prosecution version that the death of the deceased Virender had taken place on account of cranio cerebral damage caused by injuries to head caused by bullet fired by rifled fire arm (single shot), which injury was St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 186 sufficient to cause death in ordinary course of nature. The Medical Evidence specifically establishes that the fired bullet had entered the left alae of nose and then entered into medial wall of left maxilla and then taking entry into brain cavity through medial end of left carotid canal, traversed the brain matter obliquely towards the right occipital low and then the pellet was lodged in a pit made in right occipital bone with the directions of wound was slightly upwards and backwards; which explains that at the time of the incident Nisha Verma was trying to shut the mouth of Virender with her hand thereby pulling the deceased who was the revolver of the accused towards herself as a result of which his head tilted towards her while his arms were stretched. The direction of the shot i.e. towards the face of the deceased confirms that the firearm was in the hand of the accused Sandeep and not in the hand of the deceased Virender as claimed by the accused. The postmortem report also establishes that there was smell of alcohol in the abdomen of the deceased confirming that at the time of the incident the deceased had consumed alcohol as also confirmed from the Chemical Analysis/ Viscera Report. The forensic evidence is also compatible to the Ocular Evidence.
(180) However, from the evidence which has come on record two versions emerge. One is the version of prosecution that the incident of firing upon the deceased which took place inside the Esteem Car while the deceased was sitting inside the same with his friend Nisha and was fired upon at point blank range when he objected to the accused staring at St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 187 them and passing obscene lewd remarks at Nisha Verma which version does not appear to be probable and convincing particularly in view of the evidence which has come on record. The Second Version which has come on record is that initially there was a parking dispute between the accused and the deceased. While the accused who was the Guard on the Cash Van was waiting outside the Van with the Driver Vinod Kumar while the other staff had gone inside the Wine and Beer Shop to collect the cash, the deceased came in his Martuti Esteem Car and wrongly parked the same in front of the Cash Van which was objected to by the accused resulting into an altercation between the accused and deceased which dispute was however resolved with the intervention of the driver Vinod after which the deceased parked his vehicle on the left side of the Cash Van and went inside the Wine Shop. However, soon thereafter when the deceased returned to the vehicle after purchasing beer cans, which he put inside the vehicle and was sat there with Nisha Verma, the accused Sandeep was staring at Nisha objectionably who conveyed it to the deceased Virender who objected to the same, again resulting into a verbal altercation between the accused and the deceased in which the accused had come till the vehicle of the deceased with his revolver and there was a scuffling and grappling in which a shot was fired instantly killing the deceased Virender and injuring Nisha. On the basis of the evidence which has come on record i.e. Ocular, Medical, Forensic and Circumstantial it is this second version which is more credible, probable and convincing and St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 188 brings the case within the provisions of Exception 4 to Section 300 Indian Penal Code.
(181) 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.
(182) 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.
(183) This being the background, I hereby hold that the prosecution has been able to successfully establish the various charges against the accused and I hereby hold the accused Sandeep guilty of the offence under St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 189 Section 304 PartI Indian Penal Code (not under Section 302 Indian Penal Code), Section 324 Indian Penal Code (for the injuries upon Nisha), Section 509 Indian Penal Code (for intending to insult the modesty of Nisha) and Section 27 of Arms Act and accordingly convicted.
(184) Be listed for arguments on sentence on 27.11.2014.
Announced in the open court (Dr. KAMINI LAU)
Dated: 24.11.2014 ASJII(NW)/ ROHINI
St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 190
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE II (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 96/2013 Unique Case ID No.: 02404R0329072011 State Vs. Sandeep Kumar @ Sonu S/o Sh. Jai Singh R/o Village Soldha, PS Sadar Bahagurgarh, District Jhajjar, Haryana (Convicted) FIR No.: 169/2011 Police Station: Bharat Nagar Under Sections: 302/324/509 IPC and 24/54/59 of Arms Act Date of Conviction: 24.11.2014 Arguments heard on: 29.11.2014 Date of sentence: 1.12.2014 APPEARANCE:
Present: Ms. Raj Rani, Ld. Addl. Public Prosecutor for the State.
Convict Sandeep Kumar in Judicial Custody with Sh. Ashok Drall Advocate.
ORDER ON SENTENCE:
The present case relates to the killing of a young boy namely Virender aged about 30 years on 20.8.2011 at about 3:00 PM while he was St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 191 sitting outside the wine shop with his friend Nisha Verma and consuming beer. The case of the prosecution is that on 20.8.2011 at about 3:00 PM in front of English Wine and Beer Shop, Nimri Shopping Complex, Ashok Vihar, PhaseIV, Delhi the accused Sandeep Kumar @ Sonu stared at Nisha with intent to outrage her modesty which was objected to by Virender on which the accused Sandeep Kumar caused the death of Virender by firing on him with his licensed revolver and also caused simply injury on the person of Nisha.
Charges under Sections 302, 324, 509 Indian Penal Code and 27 of Arms Act were settled against the accused Sandeep Kumar @ Sonu.
However, on the basis of the testimonies of various prosecution witnesses particularly the injured/ eye witness Nisha Verma, Driver of the cash van namely Vinod Kumar, the security guard of the liquor vend namely Gyan Singh, the cashier Harinder Kumar and also on the basis of the other medical, forensic and other circumstantial evidence on record, this Court vide a detail order dated 24.11.2014 held the accused Sandeep Kumar @ Sonu guilty of the offence under Section 304 PartI (not under Section 302 IPC), 324, 509 Indian Penal Code and Section 27 of Arms Act for which he has been accordingly convicted.
Vide the detail judgment this Court has observed that the prosecution has been able to successfully prove and establish that the accused Sandeep was employed with A2Z Infra Services Pvt. Ltd. as Gunman and had been put on duty with CMS Info Systems; that on the St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 192 date of incident i.e. on 20.8.2011 the cash collection van i.e. Maruti Omni Van bearing No. DL1RT0740 driven by the Driver Vinod with accused Sandeep as Gunman, Cashiers Jaipal Singh Rawat and Dhirender Kumar had reached the Nimri Shopping Complex at Government Wine and Beer Shop for collection of cash at 3:00 PM; at that time the accused Sandeep was having an Arms License bearing No.220/VII/DM/JJR/08 and was also carrying a Licensed Revolver being on duty; that while the Driver parked the vehicle outside the Wine and Beer Shop and the Gunman Sandeep remained with him, the Cashiers Jaipal Singh Rawat and Dhirender Kumar went inside the Wine Shop for collection of cash.
The prosecution has also been able to establish that in the meanwhile one Esteem Car bearing No. DL9CB0129 driven by deceased Virender with Nisha Verma sitting by his side on the front seat also came to the Nimri Colony Shopping Complex; that the deceased Virender parked his Esteem Car just in front of the Cash Van to which Sandeep objected and asked Virender to remove his Esteem Car; that there was a verbal altercation between accused Sandeep and Virender which was resolved when Vinod Kumar the driver of Cash Van intervened; that thereafter Virender went inside the Wine Shop and purchased two beer cans and came back and sat on the Driver Seat of his Esteem Car with Nisha Verma sitting on the seat next to the driver seat and started eating CholeChawal; that while the deceased Virender was sitting on the Driver's Seat of his Esteem Car and Nisha Verma was sitting by his side, St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 193 she noticed the accused Sandeep standing near his cash Van and staring at her objectionably upon which she informed Virender about the same; that the deceased Virender objected to this behaviour of accused Sandeep resulting into a verbal altercation upon which the accused Sandeep walked till the Esteem Car with his revolver in which the deceased Virender and Nisha were sitting and threatened deceased Virender who at that time was also under the influence of alcohol, resulting into a verbal duet between the two, while Nisha tried to pacify them and had put her hand on the mouth of Virender to stop him from speaking with the accused Sandeep who was outside the vehicle and while the deceased Virender was seated on the Driver's seat and both were scuffling and grappling in which one shot was fired which first hit the index finger of Nisha who had put her hand on the mouth of Virender which shot fatally hit the deceased Virender whose head fell on her shoulder.
This Court has also observed that the prosecution has successfully established that upon hearing the noise of firing HC Devender who was on patrolling duty in the area and other shopkeepers including the staff of the Cash Van and public persons immediately rushed to the spot and apprehended Sandeep and took the revolver from his hand; that thereafter Nisha immediately made a call on 100 number to PCR while simultaneously the accused Sandeep also made a 100 number call claiming that there was a dacoity in the Cash Van; that pursuant to the calls the PCR Van reached the spot and both Virender and Nisha Verma St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 194 were rushed to the Sunder Lal Jain Hospital where Virender was declared 'Brought Dead' while Nisha Verma was provided medical treatment; that on the basis of the statement of Nisha Verma the present FIR was registered and the accused Sandeep was thereafter arrested in the present case.
It has also been observed by this Court that the Medical Evidence on record is compatible to the prosecution version that the death of the deceased Virender had taken place on account of cranio cerebral damage caused by injuries to head caused by bullet fired by rifled fire arm (single shot), which injury was sufficient to cause death in ordinary course of nature. The Medical Evidence specifically establishes that the fired bullet had entered the left alae of nose and then entered into medial wall of left maxilla and then taking entry into brain cavity through medial end of left carotid canal, traversed the brain matter obliquely towards the right occipital low and then the pellet was lodged in a pit made in right occipital bone with the directions of wound was slightly upwards and backwards; which explains that at the time of the incident Nisha Verma was trying to shut the mouth of Virender with her hand thereby pulling the deceased who was the revolver of the accused towards herself as a result of which his head tilted towards her while his arms were stretched. The postmortem report also establishes that there was smell of alcohol in the abdomen of the deceased confirming that at the time of the incident the deceased had consumed alcohol as also confirmed from St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 195 the Chemical Analysis/ Viscera Report. The forensic evidence is also compatible to the Ocular Evidence.
This court further observed that from the evidence which has come on record two versions emerge. One is the version of prosecution that the incident of firing upon the deceased which took place inside the Esteem Car while the deceased was sitting inside the same with his friend Nisha and was fired upon at point blank range when he objected to the accused staring at them and passing obscene lewd remarks at Nisha Verma which version does not appear to be probable and convincing particularly in view of the evidence which has come on record. The Second Version which has come on record is that initially there was a parking dispute between the accused and the deceased. While the accused who was the Guard on the Cash Van was waiting outside the Van with the Driver Vinod Kumar while the other staff had gone inside the Wine and Beer Shop to collect the cash, the deceased came in his Martuti Esteem Car and wrongly parked the same in front of the Cash Van which was objected to by the accused resulting into an altercation between the accused and deceased which dispute was however resolved with the intervention of the driver Vinod after which the deceased parked his vehicle on the left side of the Cash Van. However, soon thereafter when the deceased returned to the vehicle after purchasing beer cans, which he put inside the vehicle and was sat there with Nisha Verma, the accused Sandeep was staring at Nisha objectionably who conveyed it to the St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 196 deceased Virender who objected to the same, again resulting into a verbal altercation between the accused and the deceased in which the accused had come till the vehicle of the deceased with his revolver and there was a scuffling and grappling in which a shot was fired instantly killing the deceased Virender and injuring Nisha. On the basis of the evidence which has come on record i.e. Ocular, Medical, Forensic and Circumstantial it is this second version which is more credible, probable and convincing and brings the case within the provisions of Exception 4 to Section 300 Indian Penal Code.
This being the background, it has been held by this Court hold that the prosecution has been able to successfully establish the various charges against the accused and the accused Sandeep has been held guilty of the offence under Section 304 PartI Indian Penal Code (not under Section 302 Indian Penal Code), Section 324 Indian Penal Code (for the injuries upon Nisha), Section 509 Indian Penal Code (for intending to insult the modesty of Nisha) and Section 27 of Arms Act for which he has been accordingly convicted.
Heard arguments on the point of sentence. The convict Sandeep is stated to be a young boy of 32 years having a family comprising of a handicapped father, mother, one younger sister, wife, one son and one daughter. He is a Matriculate and at the time of the incident was working as a Gunman at Cash van.
Ld. Counsel for the convict has vehemently argued that the St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 197 convict is a young boy having no previous criminal involvements and is a first time offender and the incident was a chance happening. He has further argued that the convict has a bright future and any harsh view at this stage would ruin his entire carrier. He has prayed that a lenient view be taken against the convict.
Ld. Addl. PP for the State has on the other hand has prayed that a stern view be taken against the convict Sandeep Kumar and has also prayed for compensation to the family of the victim and has placed his reliance in the case of Delhi Domestic Working Women's Forum Vs. Union of India and Ors. reported in (1995) 1 SCC 14 wherein it has been observed that:
"......... Compensation payable by the offender was introduced in the Criminal Justice Act 1972 which gave the Courts powers to make an ancillary order for compensation in addition to the main penalty in cases where 'injury, loss, or damage' had resulted. The Criminal Justice Act 1982 made it possible for the first time to make a compensation order as the sole penalty. It also required that in cases where fines and compensation orders were given together, the payment of compensation should take priority over the fine. These developments signified a major shift in penology thinking, reflecting the growing importance attached to restitution and reparation over the more narrowly retributive aims of conventional punishment. The Criminal Justice Act 1982 furthered this shift. It required courts to consider the making of a compensation order in every case of death, injury, loss or damage and, where such an order was not given, imposed a duty on the court to give St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 198 reasons for not doing so. It also extended the range of injuries eligible for compensation. These new requirements mean that if the court fails to make a compensation order, it must furnish reasons. Where reasons are given, the victim may apply for these to be subject to judicial review. The 1991 Criminal Justice Act contains a number of provisions which directly or indirectly encourage an even greater role for compensation......"
On the other hand the Ld. Counsel appearing on behalf of the convict has argued that the convict belongs to a very poor family and has prayed for a minimum compensation.
I have considered the submissions made before me and I may observe that of late large numbers of instances of Moral Policing by groups and individuals, all in the name of preserving the culture of the country have come to light and most of the time the targets are young women. No doubt, public behaviour of individuals has to conform to Social Sensibilities but having said so, it is equally important for me to observe that the Courts of Law cannot permit our Country which is governed by Rule of Law to be run over by individuals and groups indulging into Moral Policing by taking over the functions of the State. There is, and can be no justification for any killing and strict action is required to be taken against those indulging into such acts. A private security guard waiving a licensed revolver to scare or threaten a young couple sitting in a private vehicle outside a Wine Shop is an act which St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 199 perhaps may offend the Social Sensibilities of some, but this act of use of firearm in this manner is totally unjustified and illegal. Hence under the given circumstances I award the following sentences to the convict Sandeep Kumar:
1. For the offence under Section 304 (Part1) 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 convict shall undergo Simple Imprisonment for a period of Three Months. The entire fine amount of Rs.1,00,000/, if deposited by the convict, shall be given to the family of the deceased Virender as compensation under Section 357 Cr.P.C.
2. For the offence under Section 324 Indian Penal Code, the convict is sentenced to Rigorous Imprisonment for a period of Three Years.
3. For the offence under Section 509 Indian Penal Code, the convict is sentenced to Simple Imprisonment for a period of One Year.
4. 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.2,000/ (Rs. Two Thousand). In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Seven Days.
All the sentences shall run concurrently.
St. Vs. Sandeep, FIR No. 169/11, PS Bharat Nagar Page No. 200
Benefit of section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial, as per rules.
Compensation, if deposited and no appeal is preferred within the period of limitation, then the same be released to the family of the deceased Virender.
Matter be also referred to Delhi Legal Service Authority for further compensation to the family of the deceased under Victim Compensation Scheme.
The convict is informed that he has a right to prefer an appeal against this 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.
One copy of the judgment and order on sentence be given to the convict free of costs and one of order on sentence be attached with his jail warrant.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 1.12.2014 ASJII(NW)/ ROHINI
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