Delhi District Court
State vs (1) Amit Kumar on 30 January, 2023
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IN THE COURT OF MS. SHEFALI SHARMA:
ADDL. SESSIONS JUDGE-02( NORTH ):
ROHINI DISTRICT COURTS : DELHI
In the matter of:-
(Sessions Case No. 57434/2016)
FIR No. 211/2011
Police Station Bawana
Charge sheet filed Under Section 302/120B IPC & 25/27
Arms Act
Charge framed Under Section 302/120B IPC & 25/27
Arms Act
State V/s (1) Amit Kumar
(Proclaimed Offender vide order dated 04.07.2022)
S/o Shri Kishan
R/o Village Gumar
District Sonipat, Haryana.
(2) Arun Kumar @ Annu
S/o Rohtash Singh
R/o Village & PO Kair
PS Jafarpur, Delhi.
(3) Pradeep Kumar @ Bhola
(Proceedings abated vide order dated 04.09.2015)
S/o Late Hawa Singh
R/o Village & PO Kair
PS Jafarpur, Delhi.
(4) Ashish @ Ashu
(expired as per order dated 14.07.2014)
S/o Zile Singh
R/o Village Dabhodha Khurd,
PS Bahadurgarh, District Jhajjar,
Haryana.
(5) Harvinder @ CNG
S/o Harpal Singh
R/o Village Sultan Pur Dabas,
PS Bawana, Delhi.
SC No.57434/2016 , FIR No. 211/11, PS Bawana
State Vs. Amit Kumar Etc. Page No. 1 of 60
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(6) Naveen @ Bali
S/o Sh. Narender Dabas
R/o Village Sultanpur Dabas,
Delhi.
(7) Surender @ Neetu
(Earlier PO in the case and deleted from the list of PO
vide order dated 26.08.2015 as he had expired)
S/o Sh. Zile Singh
R/o Village Dabhodha Khurd,
PS Bahadurgarh, District Jhajjar,
Haryana.
......Accused Persons
Date of institution 15.10.2011
Arguments concluded on 07.01.2023
Judgment Pronounced on 30.01.2023
Decision Acquitted
JUDGMENT
BRIEF FACTS
1. Events which set the prosecution machinery into motion is that on 21.06.2011 at about 4.00 p.m. at Khasra No. 154, Plot No.548, Pooth Khurd, Barwala Road, Delhi, within the jurisdiction of PS Bawana, one Ranbir had been inflicted with gunshot injuries by the accused persons, who tried to flee away from the spot. The injured was taken to Saroj Hospital and a DD No.32A had been recorded. That accused Amit Kumar was apprehended by the complainant and one pistol was also recovered from him from the spot. That the injured Ranbir succumbed to his injuries and as per the Postmortem Report, the cause of death was found to be cardio respiratory arrest with SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 2 of 60 -3- septicemia following antemortem multiple firearm injuries and their consequences. The statement of witnesses were recorded and the complainant namely Raj Kumar had stated that on the date and time of incident, he was present in the office of the deceased Ranbir along with Sandeep and Baldev. One person slightly opened the door of the office and told Ranbir that there was a call for him. When Ranbir went out, there was noise of gunshots and after few minutes when the complainant Raj Kumar along with Sandeep and Baldev came out, they saw Ranbir lying in a pool of blood on the floor and he was taken in a car to Saroj Hospital. From there, he was shifted to Fortis Hospital and after 4-5 months he was shifted to another hospital at Gurgaon, where he remained admitted for 20 to 25 days and later on succumbed to his injuries. That the assailant Amit Kumar was apprehended with a pistol on the spot and accused Harvinder @ CNG managed to skip towards Barwala village leaving his motorcycle behind. That other co-accused Arun Kumar and Naveen @ Bali were present outside in a white Alto car and after the incident immediately fled away towards Barwala in the said car which was driven by accused Naveen @ Bali. Co-accused Pradeep and Ashish were also present in one Ascent car which was parked near the place of incident and even they fled away in the said Ascent car after the incident. PCR was called at the spot and after investigation, four empty shells and led piece recovered from the spot. Blood sample of the deceased was lifted from the spot in a gauze piece along with blood stained earth and earth control. The motorcycle bearing no. DL1SR-8514 Hero Honda Splendor SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 3 of 60 -4- was also taken into possession from the spot along with one mobile phone make Nokia. After all the investigation, the accused persons were arrested and charge-sheet was filed. Eventually during investigation, the IO recorded statement of the witnesses and after completion of investigation, charge sheet for the offence under Section 302/120B IPC & 25/27 Arms Act was filed in the court.
CHARGE
2. On committal of the case to the Court of Sessions, vide order dated 09.04.2013 and 13.02.2023 charge under Section 120B/302 IPC against accused Pradeep @ Bhola, Amit @ Mintoo, Ashish @ Ashu, Harvinder @ CNG, Arun @ Annu @ Pahalwan and Naveen @ Bali was found to be prima facie made out. Charge under Section 25 r/w 27 Arms Act also prima facie made out against accused Harvinder @ CNG and Amit @ Mintoo. The formal charge as above was framed on the said date to which accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. Thereafter, prosecution in support of its case have examined 28 witnesses in all.
PW1 is Sh. Raj Kumar, who deposed that on 21.06.11 at about 3.45 p.m. he was present in the office of Ranbir situated at Pooth Khurd, Barwala Road, Delhi along with Sandeep and Baldev. That one person slightly opened the door of SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 4 of 60 -5- the office and told Ranbir that there is a call for him. Ranbir went out side to attend the call and when they were inside the office, he heard the gun shots. That after five ten minutes, he, Sandeep and Baldev came out and saw Ranbir lying on the floor. That they removed him in their car to Saroj Hospital. He further deposed that his statement was not recorded by the police but again said his signatures were obtained on a something written on a paper in the police station contents of which he do not know. He proved the same as Ex.PW1/A. He further deposed that Ranbir was shifted to Fortis Hospital and after four five months, from there he was shifted to a hospital in Gurgaon where he remained admitted for 20-25 days and later on he had expired. He further deposed that he had not seen the assailants and had only heard the gun shots. PW1 further deposed that in his presence, no one was apprehended at the spot. He further deposed that he cannot say whether the assailants came on foot or on any vehicle and that he had also not seen any assailant running away. He further deposed that he had seen the person who had informed Ranbir about the phone call.
PW2 is Sh. Sandeep. He had deposed that on 26.11.2011, he was present in the cabin of office of Ranbir Singh (now deceased), who was his friend. He further deposed that deceased Ranbir Singh was running a property dealing business under the name and style of Shivam Properties in Village Pooth Khurd, Barwala Road. He further deposed that Rajkumar and Baldev were also present in the said office with Ranbir Singh and they were smoking hukka inside the said office. That he was SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 5 of 60 -6- sleeping inside the office and was awakened up by Rajkumar and Baldev. That he wake up and he along with Rajkumar and Baldev came out of the office and found that Ranbir lying in the gallery outside his office in injured condition and was not able to speak at that time. He further deposed that Rajkumar and Baldev were saying that Ranbir received a bullet injury but they had not told him about the assailants who had caused injury to Ranbir. He further deposed that thereafter, they removed Ranbir from the spot and took him to Saroj Hospital, Rohini and got him admitted there. He further deposed that in the meantime, family members of Ranbir also reached at Saroj Hospital. He further deposed that on the said night, he remained with Ranbir in the hospital and on the next day, he left the hospital for his house.
PW3 Sh. Baldev, who deposed that on 21.06.11, he was present and sleeping in the side cabin of the office of Ranvir Singh at Pooth Khurd. That at about 4:00 PM, he heard some noise and got up and saw Ranbir lying on the floor and he was bleeding. He further deposed that people present there were saying that he had been shot by someone. That thereafter, he called the police at number 100 and took Ranvir to Saroj Hospital.
PW4 SI Narender has deposed that on 21.06.2011, he was posted at P. S. Bawana as Duty Officer and his duty hours were from 5.00 p.m to 9.00 a.m. That on that day, at about 8.30 p.m., an information was received that one Ranbir s/o Sita Ram, 44 years, male, has been admitted with a gun shot injury in Saroj Hospital. He further deposed that he recorded the information SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 6 of 60 -7- vide DD no. 32-A and proved the same as Ex. PW-4/.
He further deposed that on the same date i.e. 21.06.2011, at about 08.30 p.m. Ct. Harpal brought rukka sent by ASI Raj Kumar and on which basis he registered the computerized FIR of the present case and proved the same as Ex.PW-4/B. He has proved his endorsement on the rukka as Ex.PW-4/C. He further deposed that the copy of FIR and original rukka were sent to ASI Raj Kumar through Ct. Harpal. He has also recorded the Kayami entry as DD no. 34-A and proved the same as Ex. PW-4/D. PW5 is ASI Karambir, who deposed on 21.06.11, he was posted at mobile crime team outer district, Sector 1, Rohini, as HC photographer and on receipt of information about firing incident, he alongwith crime team incharge Anil Kumar reached at the spot i.e., Shivam property, Barwala Road, Poothkalan, Delhi, where the spot was inspected and he took the photographs. He has proved the negatives of the photographs as Ex.PW5/A (collectively). He has also proved the said photographs collectively as Ex.PW1/B. PW6 is Inspector Anil Kumar, who has deposed that he was posted as Incharge at mobile crime team outer district. That on that day on receipt of information about firing incident, he alongwith his staff reached at Shivam property, Poothkalan, Barwala Road and found blood was lying in front of room besides the office situated in the aforesaid property compound. He further deposed that one mobile phone make Samsung, Tata Indicom black colour lying nearby and four fired SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 7 of 60 -8- cartridges were found at a small distance towards left side and one lead piece near the cooler. He inspected the spot and HC Karambir took the photographs. He further deposed that he prepared the crime report Ex.PW6/A and handed over the same to IO ASI Raj Kumar.
PW7 is SI Bhagawan Devi, who deposed that on 21.06.2011, she was posted at P.S. Bawana as duty officer. That on that day on receipt of information at about 4.10 PM she recorded DD No.29-A and the call was marked to ASI Raj Kumar and was sent to him through Const. Kuldeep and ASI Raj Kumar alongwith Const. Harpal went to the spot to attend the call. She has proved the attested copy of the same is Ex. PW- 7/A. PW8 is Ct. Sachin. He has deposed that on 12.09.2011, he was posted at P.S. Bawana. That on that day on the instructions of SI Randhir Singh, he collected the exhibit from MHC(M) HC Mahi Lal to deposit the same at FSL Rohini vide RC No.152/21 & 153/21 and deposited the same at FSL Rohini.
PW9 is Ct. Harpal Singh. He has deposed that on 21.06.2011, he was posted at PS Bawana and on that day, he was on Emergency Duty and on receipt of DD No.29A Ex.PW7/A by ASI Raj Kumar, he alongwith ASI Raj Kumar at about 4:30 p.m., reached at Shivam Property, Barwala Road, Pooth Khurd, Delhi, where a crowd was found gathered there. That in the meantime, Inspector Rakesh alongwith staff also reached there and Ct. Kuldeep alongwith DD No.29A also reached there. That PCR SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 8 of 60 -9- staff was also present at the spot. He further deposed that blood was found lying in the room besides the property dealer office in front of the door and one mobile phone Samsung, Tata Indicom black colour was found lying there and four empty cartridges were also found lying there near the spot. He further deposed that one person who was given beatings by the public, whose name later on revealed as Amit was lying at the spot and was shifted to the M.B. Hospital through Ct. Vinod through PCR personnel. He further deposed that one splendor motorcycle was lying at the spot and on the instructions of the ASI Raj Kumar, he took the said motorcycle to the PS. He thereafter went to the M.B. Hospital and after getting injured Amit medically examined in the said hospital returned to the spot. He further deposed that accused Amit was interrogated by the senior police officials including Inspector Rakesh Kumar, who was already present at the spot before our first arrival at the spot. He further deposed that the custody of Amit thereafter handed over to him and he alongwith accused Amit returned to the PS and handed over the same to the duty officer.
PW10 HC Nirnjan Singh has deposed that on 24.06.2011 he was posted at PS Mangolpuri, PP Sanjay Gandhi Chowki, Mangolpuri, Delhi and on that day, at about 11:30 p.m., on receipt of information, he reached at S - Block Chowk, Machi market, Mangolpuri, Delhi, where HC Rohtash Singh, HC Surender Kumar and Ct. Manish Kumar alongwith other staff were present and found apprehended accused Arun Kumar @ Antu @ Annu @ Pahalwan S/o. Rohtash Singh alongwith SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 9 of 60 -10- another accused Pradeep Sehrawat @ Bhola S/o. Late Shri Hawa Singh (proceedings qua him is abetted as he has expired). He further deposed that the recoveries of one country made pistol from each of the accused persons and two live rounds from each of the accused persons were effected and the case FIR No.242/11 dated 24.06.2011, U/S. 25/54/59 Arms Act and U/S. 411/34 IPC, PS Mangolpuri was registered against them as the stolen motorcycle No. DL-3S-BL-3462 was also recovered from them. He further deposed that after the registration of the FIR No.242/11, the further investigation of this case was assigned to him and he arrested both the accused persons. He further deposed that accused Arun Kumar and accused Pradeep Sehrawat made their disclosure statement in the case FIR No.242/11, PS Mangolpuri in which they had admitted their guilt in the present case.
He further deposed that he was the second IO of the case FIR No. 242/11 u/s 25/54/59 Arms Act and 411/34 IPC, PS Mangol Puri. He further deposed that on 25.06.2011, accused Arun Kumar @ Antu @ Anu @ Pehlwan was arrested vide arrest memo Ex. PW10/A and his personal search was conducted vide memo Ex.PW10/B. He further deposed that on the same day, accused Pradeep Sehrawat @ Bhola was also arrested vide memo Ex. PW10/C and his personal search was conducted vide memo Ex. PW10/D. He further deposed that thereafter, accused Arun Kumar @ Antu @ Anu @ Pehlwan was interrogated and he made his confessional statement regarding involvement in the present SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 10 of 60 -11- case FIR No. 211/2011 u/s 302 IPC of PS Bawana alongwith his associates Harvinder @ CNG, Ashu @ Ashish, Naveen @ Bali, Amit @ Neetu and Pradeep Sehrawat (since deceased). That he recorded his disclosure statement Ex. PW10/E. That accused Pradeep Sehrawat @ Bhola (since deceased) was also interrogated and he made his confessional statement regarding involvement in the present case FIR No. 211/2011 u/s 302 IPC of PS Bawana alongwith his associates Harvinder @ CNG, Ashu @ Ashish, Naveen @ Bali, Amit @ Neetu and Arun Kumar @ Antu @ Anu @ Pehlwan and he recorded his disclosure statement Ex. PW10/F. He further deposed that during the investigation of case FIR No. 211/11 of PS Bawana, IO met him and he handed over the photocopies of all the relevant documents of case FIR no. 242/11 of PS Mangol Puri.
PW11 is Sh. Ajit Singh, who deposed that on in the year 2011, he was residing at B-1/213, Sector-17, Rohini, Delhi. That in the year 2011, he was working with Sh. Ranbir Singh. He further deposed that on 21.06.2011 at about 4:30 PM, he reached in the office of Ranbir Singh i.e. Shivam Property, at Pooth Khurd, Barwala, Delhi where he came to know that someone had fired shot upon Ranbir Singh. He was informed by Sandeep, R/o. Bazitpur that they were taking Ranbir Singh to Saroj Hospital. He also reached Saroj Hospital in his own vehilce, but from Saroj Hopsital Ranbir was shifted to Fortis Hospital, Shalimar Bagh. He further deposed that he do not know anything else about this case. Police had also not inquired form SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 11 of 60 -12- me.
PW12 is SI Ved Pal. He has deposed that on 24.06.2011 he was posted at PS Mangol Puri as ASI and working as Duty Officer from 5:00 PM to 1 AM. That on that day at about 11:20 PM, he registered the case FIR No. 242/11 u/S. 25 Arms Act and 411/34 IPC and has proved the same as Ex. PW12/A. PW13 is ASI Mahi Lal. He has deposed that on 21.06.2011, he was posted at PS Bawana as a Head Constable and working as a MHC (M). That on that day, IO ASI Raj Kumar had deposited the case property i.e. eight parcels duly sealed with the seal of RK alongwith one motorcycle no. DL-1SR-8514 and he made relevant entries in register no. 19 vide serial no. 392/11 and proved the same as Ex. PW13/A. He further deposed that on 25.06.2011, IO SI Randhir Singh had deposited one Alto car no. DL-2CAK-2530 of white colour and he made relevant entries in register no. 19 vide serial no. 394/11. That on the same day, IO SI Randhir Singh had deposited one Accent car no. DL-6CG-2785 and made relevant entries in register no. 19 vide serial no. 394/11. He has proved the same as Ex. PW13/B (Colly).
He further deposed that on 28.06.2011, IO SI Randhir Singh had deposited one sealed pulanda sealed with the seal of RK and he made relevant entries in register no. 19 vide serial no. 397/11 and proved the same as Ex. PW13/C. That on 08.07.2011, IO SI Randhir Singh had deposited one motorcycle no. DL-9SW- 9884 and he made relevant entries in register no. 19 vide serial SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 12 of 60 -13- no. 414/11 and proved the same as Ex. PW13/D. He further deposed that on 05.01.2012, IO SI Randhir Singh had deposited one sealed pulanda and sample seal which was transferred from PS Sushat Lok, Gurgaon and he made relevant entries in register no. 19 vide serial no. 19/12 and proved the same as Ex. PW13/E. He further deposed that on 12.09.2011, the exhibits of the present case were sent to FSL Rohini through Ct. Sachin vide RC No. 152/21/11 EX. PW13/F. After depositing the same, he handed over the acknowledgment Ex. PW13/G to him. He further deposed that on the same day, other exhibits of the present case were sent to FSL Rohini through Ct. Sachin vide RC No. 153/21/11 EX. PW13/H. After depositing the same, he handed over the acknowledgment Ex. PW13/J to him.
He further deposed that on 08.08.2012, the remaining exhibits of the present case were sent to FSL Rohini through Ct. Yogender vide RC No. 214/21/12 EX. PW13/K by HC Dharampal. After depositing the same, he handed over the acknowledgment Ex. PW13/L to him.
PW14 is Dr. Akhil Vohra. He has deposed that on 21.06.2011 at about 4.30 p.m., patient Ranbir Singh, S/o Sita Ram, 44 years male was brought to casualty by his friend Sandeep with the alleged history of gun short injury, one hour back to Pooth Khurd, Delhi. He examined the patient, who was bleeding from right ear, bleeding from nostril, swelling above the right eyebrow. The injuries were as under:
SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 13 of 60 -14-
1. One wound 1X1 cm present in left lumbar (abdomen) region, mid axillary line;
2. One wound 1X1 cm present on lateral aspect of middle of left thigh;
3. One wound 1X1 cm present on medial aspect of upper part of left thigh;
4. One wound 1X1 cm present on the left scrotum;
5. One wound 1X1 cm present on the occipital region.
He further deposed that the patient was found unconscious and unfit for statement. He prepared the MLC No. 3307 Ex.PW14/A which is in his hand writing and bears his signature. He further deposed that the patient was admitted in ICU and thereafter, the patient left ICU against medical advise (LAMA) at 7.30 p.m. and proved the said document as Ex.PW14/B. PW15 is HC Kuldeep, who deposed that on 21.06.2011, he was posted at PS Bawana as a Constable. On that day, at about 4:30 pm, DD No. 29A was handed over to him by duty officer. Thereafter, he reached at Shivam Property, Pooth Khurd, Barwala Road, there Inspector Rakesh Kumar, ASI Raj Kumar, other staff and PCR van were found present there. He handed over the copy of DD No. 29A to ASI Raj Kumar. He further deposed that there was a gathering many public persons in the compound of Shivam Property and a large quantity of blood was scattered in the compound of Shivam Property and he came to know that injured was already removed to Saroj Hospital in a private vehicle by the friends.
SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 14 of 60 -15- He further deposed that at the spot, at some distance four empty rounds were lying. That near the cooler, one bullet lead was found, one mobile phone Samsung Tata Indicom black colour was lying near the blood. He further deposed that complainant Raj Kumar had produced one person namely Amit @ Mittu. That said Amit was having injuries as he was stated to be beaten up by the public. That the said Amit @ Mittu was sent to hospital through Ct. Vinod in a PCR van for his medical examination. He further deposed that one pistol was also produced by complainant which was snatched from the hand of Amit @ Mittu.
He further deposed that Crime team was called at the spot and they inspected the spot and photographer took the photographs of the spot from different angels. He furtehr deposed that at the spot, the blood stained earth control was lifted, which was kept in a small plastic box and sealed with the seal of RK and taken into possession vide seizure memo Ex.PW1/G. He further deposed that the earth control was lifted, which was kept in a small plastic box and sealed with the seal of RK and taken into possession vide seizure memo Ex. PW1/H. That IO ASI Raj Kumar prepared the sketches of four empty cartridges and a lead. The said sketches are Ex. PW1/D which. The said empty cartridge and lead were separately sealed in a plastic container with the seal of RK and the said pulandas were taken into possession vide seizure memo Ex. PW1/E. That the blood sample was also lifted and kept in a small plastic box and sealed with the seal of RK and taken into possession vide seizure memo Ex.
SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 15 of 60 -16- PW1/F. He has further deposed that the magazine of the pistol was checked and it was found two live cartridges. That IO prepared the sketch of pistol with magazine and two live cartridges and same were measured. That on the barrel of pistol, it was written 'VIDIL' made in Spain and the sketch of said pistol and cartridges are already Ex. PW1/B. He has further deposed that the said pistol and two live cartridges were converted into a pulanda and sealed with the seal of RK. That the FSL form was filled and pulanda was taken into possession vide seizure memo already Ex. PW1/C. He has further deposed that outside the gate, one motorcycle make Hero Honda Splendor bearing no. DL- 1SR-8514 was also seized vide seizure memo already Ex. PW1/J. He has further deposed that the mobile phone make Samsung Tata Indicom of black colour was checked and it was also converted into a pulanda and sealed with the seal of RK and taken into possession vide seizure memo Ex. PW1/K. He further deposed that he was left at the spot for the safe guard of the spot, while IO, ASI Raj Kumar alongwith Ct. Harpal Singh went to Saroj Hospital. That at about 9:00 pm, ASI Raj Kumar came back at the spot, however, at about 9:30 pm, Ct. Harpal came at the spot with the copy of FIR and original rukka and same were handed over to ASI Raj Kumar. Ct. Harpal was sent to hospital to bring back accused Amit, accordingly Ct. Vinod and Ct. Harpal brought accused Amit at the spot.
He has further deposed that one Nokia mobile phone of dark grey colour was found lying near the seized motorcycle and its IMEI Number was checked and mentioned in the seizure SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 16 of 60 -17- memo. Thereafter the said mobile phone was converted into a pulanda and sealed with the seal of RK and taken into possession vide seizure memo Ex. PW1/L. He has further deposed that accused Amit @ Mittu was interrogated and during the interrogation, he voluntarily disclosed his confessional statement Ex. PW15/A. That thereafter, accused Amit @ Mittu was arrested vide arrest memo Ex. PW15/B and his personal search was conducted vide memo Ex PW15/C. That thereafter, all of them came back at police station and case property was deposited with MHC (M).
He further deposed that on 25.06.2011, he alongwith Ct. Vinod had joined the investigation with the IO in the present case and left the police station at about 8:15 am and went in search of wanted accused namely Naveen @ Bali. They reached at Village Sultanpur and the house of the accused Naveen @ Bali was found locked. That when they were proceeding from Village Sultanpur, one secret informer met the IO SI Randhir Singh and he informed that the driver of Accent car would come from Village Nangal towards Kanjhawala Road, who was involved in the incident of firing dated 21.06.2011. That on receiving this information, they reached at Kanjhawala Road, Nangal Mod, there IO SI Randhir Singh requested 4-5 passersby to join the raiding team/investigation, but none agreed and left the spot without disclosing their names and addresses. That at about 9:00 am, they started checking the vehicles after putting the barricades on the road. At about 9:10 am, one Accent car of dark blue colour came from the side of Village Nangal and same was signaled to SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 17 of 60 -18- stop. That on seeing the police party, the driver of the said Accent car tried to take U-turn, but the engine of the said car was stopped and all the members reached near the said Accent car. The driver of the said Accent car was apprehended. That on checking the registration no. of Accent car was DL-6CG-2875. The driver of the said car disclosed his name as Ashish @ Ashu S/o Zile Singh R/o VPO Daboda Khurd, PS Bahadurgarh, Haryana. He further deposed that accused Ashish @ Ashu (now expired) was interrogated and arrested vide arrest memo Ex. PW15/D and his personal search was conducted vide memo Ex. PW15/E. He further deposed that the Accent car no. DL-6CG- 2875 was also taken into possession vide seizure memo Ex. PW15/F. That the disclosure statement of accused Ashish @ Ashu was also recorded. He has further deposed that as per the disclosure of accused Ashish @ Ashu, he lead them to near canal Sultanpur Pooth Khurd and on his pointing out, one Alto car bearing no. DL-2CAK-2530 of white colour was seized vide seizure memo Ex. PW15/H and he told them that the said car belongs to Naveen @ Bali. He further deposed that he lead them to the place of occurrence i.e. Shivam Property, Pooth Khurd, Barwala, Delhi and on his pointing out, pointing out memo Ex. PW15/J. He further deposed that thereafter, both the cars i.e. Accent car and Alto car were brought to Firni Road, Pooth Khurd and he was left there for the safeguard of both the cars and IO alongwith accused Ashish @ Ashu and Ct. Vinod again went to Shivam Property. Thereafter, they came back and they went to PS. PW15 further deposed that accused Ashish @ Ashu was SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 18 of 60 -19- taken to hospital for his medical examination and thereafter he was sent to lock-up.
PW15 further deposed that on 27.06.2011, he alongwith Ct. Vinod again joined the investigation with IO SI Randhir and they came to Rohini Court, as the accused persons namely Arun @ Annu, Pradeep @ Bhola and Harvinder @ CNG were appeared in the court in pursuance of production warrants. He further deposed that IO moved an application for interrogation and arrest, which was allowed. Thereafter, accused Pradeep @ Bhola, Arun Kumar @ Annu and Harvinder @ CNG were interrogated and arrested vide arrest memos Ex. PW15/K, Ex. PW15/L and Ex. PW15/M respectively and all the three accused were separately interrogated one by one. He has further deposed that accused Harvinder @ CNG voluntarily made his disclosure statement Ex. PW15/N. That accused Pradeep @ Bhola voluntarily made his disclosure statement Ex. PW15/O. That accused Arun voluntarily made his disclosure statement Ex. PW15/P. He further deposed that thereafter, accused Arun and Pradeep were produced in the court and sent to JC and accused Harvinder @ CNG was remanded to police custody. That thereafter, accused Harvinder @ CNG was taken to Bhorgarh in search of accused Naveen @ Bali and there he lead them to Bhorgarh Narela, in the office of Naveen @ Bali, but accused Naveen @ Bali was not found there.
He further deposed that accused was taken to hospital for his medical examination and he lead them to the place of occurrence and on his pointing out memo of place of occurrence SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 19 of 60 -20- Ex. PW15/Q was prepared. That thereafter, he was sent to lock- up. He further deposed that on 28.06.2011, accused Harvinder @ CNG was taken out from the lock-up, whio led them for the recovery of pistol at Prahladpur Khera Road, near the Bawana canal, from there accused Harvinder @ CNG, as per his disclosure led them in the fields and on the corner of the fields, underneath of brick, he got recovered one pistol. That the pistol was checked and on checking two live cartridges were found inside the magazine of the pistol. That thereafter, IO prepared the sketch of pistol and live cartridges and same were measured. He has proved the sketch of pistol and cartridges as Ex. PW15/R. That the said pistol and cartridges were converted into a pulanda and sealed with the seal of RS and FSL form was filled and pulanda was taken into possession vide seizure memo Ex. PW15/S. That thereafter, they came back to police station and case property was deposited with the MHC (M).
PW15 identified the case property i.e. four empty rounds and one bullet lid as Ex.P15/1 (colly), one mobile phone make Samsung Tata Indicom as Ex.P15/2, one mobile phone make Nokia as Ex.P15/3, one pistol (on the barre of which Vidil made in Spain is written) and two cartridges (test fired) as Ex.P15/4, one pistol and two cartridges (test fired) as Ex.P15/5.
PW16 is Puneet Puri, Assistant Director (Ballistic), FSL Rohini. He has deposed that on 08.08.2012, three sealed parcels i.e. parcel no.1 sealed with the seal of MORTUARY G.H. GURGAON, parcel no. 2 and parcel no. 3 were sealed with the seal of NPW FSL DELHI were received in FSL through Ct.
SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 20 of 60 -21- Yogender Arya and the same were marked to him for examination. That the seals on the parcels were intact and as per the specimen seals provided with the FSL form. That on opening the first parcel, two bullets and one deformed bullet were taken out and marked as Ex. EB1 to Ex. EB3 respectively by him. That on opening the second parcel, one improvised pistol 9mm caliber, two 9mm cartridge cases were taken out and were already marked as Ex. F1, A1 and A2 in case FSL No. 2011/F-5182 in FIR No.211/11, PS Bawana. That on opening the third parcel, one improvised pistol of 7.65 caliber and two 7.65 mm cartridge cases were taken out which were already marked as Ex. F2, A3 and A4 respectively in case FSL No. 2011/F-5182 in FIR No.211/11, PS Bawana.
He further deposed that on examination, he found that the bullets marked Ex. EB1 to EB3 were corresponding to the bullets of 7.65 mm cartridges. That two 7.65 mm cartridges from the laboratory stock were test fired through the improvised pistol 7.65 mm caliber already marked Ex. F2 in case FSL No. 2011/F- 5182 in FIR No.211/11, PS Bawana, the test fired cartridge cases were marked as TC1, TC2 and the two recovered test fired bullets were marked as TB1 and TB2. He has further deposed that the bullets marked Ex. EB1 to EB3 had not been discharged through the improvised pistol 7.65 mm caliber marked Ex. F2 as the class characteristics of rifling marks present on exhibits EB1 to EB3 and on test fired bullets marked TB1 and TB2 were not found identical when examined under the comparison microscope.
SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 21 of 60 -22- He further deposed that after the examination, articles Ex. EB1 to EB3 and improvised pistol were sealed with the seal of PP FSL DELHI. He has proved his detailed report dated 28.02.2013 in this regard as Ex. PW16/A. PW17 is HC Manish Kumar, who deposed that on 25.06.2011, he was posted at PS Mangol Puri as constable and on that day, accused Arun Kumar @ Antu @ Anu @ Pehlwan as well as accused Pradeep Sehrawat @ Bhola (since expired) were apprehended from S Block, Mangol Puri, Machi Market and from their possession one country made katta each and two bullets each were recovered as they were found riding in a stolen motorcycle. He further deposed that the said arm and ammunition were seized in his presence by HC Rohtash. He further deposed that HC Rohtash got case FIR No. 242/11 u/s 25 Arms Act and 411 IPC registered at PS Mangol Puri and after registration of FIR, the investigation of the said case was marked to ASI Niranjan Singh.
He further deposed that on the same day i.e. on 25.06.2011, accused Arun Kumar @ Antu @ Anu @ Pehlwan was arrested vide arrest memo Ex. PW10/A and his personal search was conducted vide memo Ex.PW10/B. He further deposed that on the same day, accused Pradeep Sehrawat @ Bhola was also arrested vide memo Ex. PW10/C and his personal search was conducted vide memo Ex. PW10/D. He further deposed that thereafter, accused Arun Kumar @ Antu @ Anu @ Pehlwan was interrogated and he made his confessional statement regarding involvement in the present case FIR No. SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 22 of 60 -23- 211/2011 u/s 302 IPC of PS Bawana alongwith his associates Harvinder @ CNG, Ashu @ Ashish, Naveen @ Bali, Amit @ Neetu and Pradeep Sehrawat (since deceased). That ASI Niranjan Singh recorded his disclosure statement Ex. PW10/E. Thereafter, accused Pradeep Sehrawat @ Bhola (since deceased) was also interrogated and he made his confessional statement regarding involvement in the present case FIR No. 211/2011 u/s 302 IPC of PS Bawana alongwith his associates Harvinder @ CNG, Ashu @ Ashish, Naveen @ Bali, Amit @ Neetu and Arun Kumar @ Antu @ Anu @ Pehlwan. That ASI Niranjan Singh recorded his disclosure statement Ex. PW10/F. PW18 is ASI Kushal Pal, who deposed that on 08.07.2011, he was posted at PS Bawana as Ct and on that day, he alongwith Ct. Harender had joined the investigation of the present case with SI Randhir Singh and on that day, they accompanied the IO to Rohini Court. He further deposed that IO had obtained one day PC remand of accused Arun Kumar @ Anu and of accused Pradeep Sehrawat (since expired) and both the aforesaid accused persons were taken to PS in muffled face. That thereafter, both the accused persons in muffled face pointed out the place of commission of offence and IO had prepared the pointing out memos Ex. PW18/A and Ex. PW18/B respectively.
He further deposed that thereafter, at the instance of accused Arun Kumar from near the wall of park situated at Mangol Puri Industrial Area, Phase-II, one motorcycle bearing no. DL-9SW-4884 was seized, which was used in the commission of offence.
SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 23 of 60 -24- PW19 is SI Raj Kumar. He deposed that on 21.06.2011, he was posted at PS Bawana as ASI and on that day, he alongwith Ct. Harpal was on Emergency Duty and on receipt of DD No.29A already Ex.PW7/A, he alongwith Ct. Harpal at about 4:30 p.m., reached at Shivam Property, Barwala Road, Pooth Khurd, Delhi, where a crowd was found gathered there. That in the meantime, Inspector Rakesh alongwith staff also reached there and Ct. Kuldeep alongwith DD No.29A also reached there. He further deposed that PCR staff was also present at the spot. That blood was found lying in the room besides the property dealer office in front of the door and one mobile phone Samsung, Tata Indicom black colour was found lying there and four empty cartridges were also found lying there near the spot.
He further deposed that one person i.e. accused Amit was beaten by the public and upon his instructions, accused Amit in the custody of Ct. Vinod was shifted to the M.B. Hospital through PCR personnel. That one splendor motorcycle was lying at the spot. He further deposed that he also found one lead piece near the cooler. That complainant Raj Kumar was found present at the spot and he met them there and it came to our knowledge that accused Amit was apprehended by complainant Raj Kumar with the help of public persons. That complainant Raj Kumar had produced the pistol recovered from accused Amit and handed over the same to him at the spot. He further deposed that Crime Team was called at the spot and Crime team officials had inspected the place of occurrence and took the photographs of the place of occurrence. That he had checked the magazine and SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 24 of 60 -25- unloaded it and from inside the said magazine, two live cartridges were taken out. That he had prepared the sketch of the pistol and two live rounds and also measured the said pistol and cartridges and thereafter the same was taken into possession vide seizure memo Ex.PW1/C. He had also prepared the sketch Ex.PW1/D of the four empty cartridges and one lead found at the spot. He had kept the said cartridges and lead piece in a pullanda and taken into possession vide seizure memo Ex.PW1/E. He further deposed that the blood was lifted from the spot and taken into possession vide seizure memo already Ex.PW1/F. He had also lifted the earth control and blood stained earth control from the spot and were taken into possession vide seizure memos Ex.PW1/H and Ex.PW1/G. He had also seized the mobile phone Tata Indicom vide seizure memo Ex.PW1/K and the motorcycle number DL-1SR-8514, Hero Honda Splendor vide seizure memo Ex.PW1/J. He further deposed that one Nokia mobile phone found lying near the rear tyre of the aforesaid motorcycle and was taken into possession vide seizure memo Ex.PW1/L. He had also filled FSL Form at the spot and he alongwith Ct. Harpal reached at Saroj Hospital where he had collected the MLC of the injured Ranbir, who was taken to Fortis Hospital, Shalimar Bagh from Saroj Hospital by his relative.
He further deposed that in the Saroj Hospital, he had prepared the rukka Ex. PW19/A and handed over the same to Ct. Harpal, who went to the PS got the present FIR registered through duty officer and returned to the spot i.e. Shivam Properties, Pooth Khurd, Delhi and handed over the copy of FIR SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 25 of 60 -26- and original endorsement to him, as from Saroj Hospital, he returned back to the spot. He further deposed that before leaving the Saroj Hospital, he had also seized one pulanda sealed vide seizure memo Ex. PW19/B. He further deposed that at the spot, he had prepared rough site plan Ex. PW1/M at the instance of complainant Raj Kumar and thereafter, upon his instructions, Ct. Harpal went to M. V. Hospital, Pooth Khurd and after medical examination brought accused Amit to the spot. He had interrogated accused Amit and effected his arrest vide arrest memo Ex. PW15/B and conducted his personal search vide memo Ex. PW15/C and recorded his disclosure statement Ex. PW15/A. He had also recorded the supplementary statement of complainant Raj Kumar.
He further deposed that on 22.06.2011, he had also recorded the statement of eye witness Baldev at Fortis Hospital, Shalimar Bagh. That during further investigation, efforts were made for the search of remaining accused persons, but in vain and further investigation of the present case was marked to SI Randhir Singh pursuant to the orders of the SHO.
PW20 is Inspctor Satish Kumar. He has deposed that in 05.01.2012, he was posted at PS Bawana as SHO. That on that day, SI Randhir has informed him that ASI Dinesh posted at PS Sushant Lok, Gurgaon, Haryana had met him and handed over the postmortem report and other inquest papers and one sealed jar to him. PW20 had perused the case file and instructed SI Randhir for adding offence u/s 302 IPC in the investigation.
SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 26 of 60 -27- That thereafter, the investigation of the present case was marked by him to Inspector Rakesh.
He further deposed that on 23.03.2012, since Inspector Rakesh was transferred, further investigation of the present case was taken up by him and on the same day, he visited Rohini Court and moved an application for issuance of production warrants of accused Naveen @ Bali, Surender @ Neetu (since expired), accused Harvinder @ CNG and Amit Kumar @ Neetu. He further deposed that on 24.03.2012, the aforesaid accused persons were produced before Ld. MM and he had moved an application and after obtaining permission, interrogated all the aforesaid accused persons except accused Surender @ Neetu, who could not be produced before the court on that day. He further deposed that after interrogation, he had effected the arrest of accused Naveen @ Bali vide arrest memo Ex. PW20/A, that of accused Harvinder @ CNG Ex. PW20/C and that of Amit Kumar @ Neetu Ex. PW20/B. He further deposed that he had made efforts for the search of accused Arun Kumar and he had also obtained his NBWs. That on 27.04.2012, he had effected the arrest of accused Arun Kumar from outside the Rohini Court vide arrest memo Ex. PW20/D and his personal search was conducted vide memo Ex. PW20/E. He further deposed that he had also obtained the NBWs of accused Pradeep @ Bhola and Surender @ Neetu (now both expired).
He further deposed that during investigation, he had also sent the exhibits to FSL Rohini through one police official SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 27 of 60 -28- and he had also collected the FSL report. That thereafter, he had prepared three supplementary chargesheets and filed the same in court.
PW21 is Dr.Karunaka, who deposed that on 23.12.2011, he was working as Addl. DCP, Outer District, Delhi and had accorded sanctions U/S 39 Arms Act against accused Amit S/o Krishan and Harvinder @ CNG for their prosecution for offence punishable u/s 25 Arms Act in the present case. The sanctions accorded by him are Ex. PW21/A and Ex.PW21/B. PW22 is HC Vinod Kumar, who deposed that on 21.06.2011, he was posted at PS Bawana as a Constable and on that day, while he was present on patrolling and was present at Pooth, there he received an information regarding the occurrence of the present case. That on or about 4:30 pm, he had reached at the place of occurrence i.e. Shivam Property, Pooth Khurd, Barwala Road, where he met Inspector Rakesh and other staff. PCR van was also present at the spot. There was a gathering of many public persons in the compound of Shivam Property. A large quantity of blood was scattered in the compound of Shivam Property. That he also came to know that injured was already removed to Saroj Hospital in a private vehicle by the friends.
He further deposed that at the spot, at some distance four empty rounds were lying. That near the cooler, one bullet lead was found, one mobile phone Samsung Tata Indicom black colour was lying near the said blood stains. That complainant Raj Kumar had produced one person i.e. accused Amit @ Mittu. Accused Amit was found having injuries as he was stated to be SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 28 of 60 -29- beaten up by the public. Accused Amit @ Mittu was taken to Pooth Khurd hospital by me in a PCR van for his medical examination. After getting accused Amit medically examined, he alongwith Ct. Harpal brought accused Amit to the place of occurrence. He further deposed that one pistol was also produced by complainant which was snatched from the hand of accused Amit @ Mittu. Crime team was called at the spot. Crime team reached at the spot. They inspected the spot and photographer took the photographs of the spot from different angels. At the spot, the blood stained earth control was lifted, which was kept in a small plastic box and sealed with the seal of RK and taken into possession vide seizure memo Ex. PW1/G. The earth control was lifted, which was kept in a small plastic box and sealed with the seal of RK and taken into possession vide seizure memo Ex. PW1/H. He further deposed that ASI Raj Kumar prepared the sketches of four empty cartridges and a lead. The said sketches are Ex. PW1/D. The said empty cartridge and lead were separately sealed in a plastic container with the seal of RK and the said pulandas were taken into possession vide seizure memo Ex. PW1/E. The blood sample was also lifted and kept in a small plastic box and sealed with the seal of RK and taken into possession vide seizure memo Ex. PW1/F. Thereafter, the magazine of the pistol was checked and it was found two live cartridges. He further deposed that IO prepared the sketch of pistol with magazine and two live cartridges and same were measured. On the barrel of pistol, it was written 'VIDIL' made in SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 29 of 60 -30- Spain. The sketch of said pistol and cartridges are Ex. PW1/B. The said pistol and two live cartridges were converted into a pulanda and sealed with the seal of RK. FSL form was filled and pulanda was taken into possession vide seizure memo Ex. PW1/C. He further deposed that outside the gate, one motorcycle make Hero Honda Splendor bearing no. DL-1SR- 8514 was also seized vide seizure memo Ex. PW1/J. That the mobile phone make Samsung Tata Indicom of black colour was checked and it was also converted into a pulanda and sealed with the seal of RK and taken into possession vide seizure memo Ex. PW1/K. He further deposed that he alongwith Ct. Kuldeep was left at the spot for the safe guard of the spot, while ASI Raj Kumar alongwith Ct. Harpal Singh went to Saroj Hospital. At about 9:00 pm, ASI Raj Kumar came back at the spot.
He further One Nokia mobile phone of dark grey colour was found lying near the seized motorcycle and its IMEI Number was checked and mentioned in the seizure memo. Thereafter the said mobile phone was converted into a pulanda and sealed with the seal of RK and taken into possession vide seizure memo Ex. PW1/L. He further deposed that accused Amit @ Mittu was interrogated and during the interrogation, he voluntarily disclosed his confessional statement Ex. PW15/A. Thereafter, accused Amit @ Mittu was arrested vide arrest memo Ex. PW15/B and his personal search was conducted vide memo Ex SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 30 of 60 -31- PW15/C. He further deposed that thereafter, all of them came back at police station and case property was deposited with MHC (M) and accused was sent to lock-up.
He further deposed that thereafter, on 25.06.2011, he alongwith Ct. Kuldeep had again joined the investigation with IO SI Randhir Singh and on that day, they left the police station at about 8:15 am and went in search of wanted accused namely Naveen @ Bali and reached at Village Sultanpur but the house of the accused Naveen @ Bali was found locked. That when they were proceeding from Village Sultanpur, one secret informer met the IO SI Randhir Singh and he informed that the driver of Accent car would come from Village Nangal towards Kanjhawala Road, who was involved in the incident of firing dated 21.06.2011. That on receiving this information, they reached at Kanjhawala Road, Nangal Mod, there IO SI Randhir Singh requested 4-5 passersby to join the raiding team/investigation, but none agreed and left the spot without disclosing their names and addresses. He further deposed that at about 9:00 am, they started checking the vehicles after putting the barricades on the road and at about 9:10 am, one Accent car of dark blue colour came from the side of Village Nangal and same was signaled to stop. That on seeing the police party, the driver of the said Accent car tried to take U-turn, but the engine of the said car was stopped. That all the members reached near the said Accent car. The driver of the said Accent car was apprehended and on checking the registration number of the Accent car was found to be DL-6CG-2875. The driver of the said SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 31 of 60 -32- car disclosed his name as Ashish @ Ashu S/o Zile Singh R/o VPO Daboda Khurd, PS Bahadurgarh, Haryana. Accused Ashish @ Ashu (now expired) was interrogated and arrested vide arrest memo Ex. PW15/D and his personal search was conducted vide memo Ex. PW15/E. That the Accent car no. DL-6CG-2875 was also taken into possession vide seizure memo Ex. PW15/F and the disclosure statement of accused Ashish @ Ashu was also recorded which is Ex. PW15/G. He further deposed that as per the disclosure of accused Ashish @ Ashu, he lead them to near canal Sultanpur Pooth Khurd and on his pointing out, one Alto car bearing no. DL-2CAK-2530 of white colour was seized vide seizure memo Ex. PW15/H and he told us that the said car belongs to Naveen @ Bali. That thereafter, he led them to the place of occurrence i.e. Shivam Property, Pooth Khurd, Barwala, Delhi and on his pointing out, pointing out memo was prepared which is Ex. PW15/J. That thereafter, both the cars i.e. Accent car and Alto car were brought to Firni Road, Pooth Khurd and Ct. Kuldeep was left there for the safeguard of both the cars and PW22, alongwith IO and accused Ashish @ Ashu again went to Shivam Property. Accused Ashish @ Ashu pointed out the said property office i.e. place of occurrence. Thereafter, they returned back the aforesaid place and then left for PS. He has further deposed that case properties i.e. both the cars were deposited with MHC (M). That accused Ashish @ Ashu was taken to hospital for his medical examination and thereafter was sent to lock-up.
SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 32 of 60 -33- He further deposed that thereafter, on 27.06.2011, he had again joined the investigation with IO SI Randhir and Ct. Kuldeep and on that day, they came to Rohini Court, as the accused persons namely Arun @ Annu, Pradeep @ Bhola and Harvinder @ CNG were appeared in the court in pursuance of production warrants. That IO moved an application for interrogation and arrest, which was allowed. That thereafter, accused Pradeep @ Bhola, Arun Kumar @ Annu and Harvinder @ CNG were interrogated and arrested vide arrest memos Ex. PW15/K, Ex. PW15/L and Ex. PW15/M and all the three accused were separately interrogated one by one.
He further deposed that accused Harvinder @ CNG voluntarily made his disclosure statement Ex. PW15/N. That accused Pradeep @ Bhola voluntarily made disclosure statement Ex. PW15/O. Accused Arun made disclosure statement Ex. PW15/P. That thereafter, accused Arun and Pradeep were produced in the court and sent to JC. However, accused Harvinder @ CNG was remanded to police custody. Thereafter, accused Harvinder @ CNG led them to village Bhorgarh in search of accused Naveen @ Bali i.e. in the office of Naveen @ Bali, but accused Naveen @ Bali was not found there.
He further deposed that accused Harvinder @ CNG was taken to hospital for his medical examination and he also led them to the place of occurrence and on his pointing out memo of place of occurrence Ex. PW15/Q was prepared. Thereafter, he was sent to lock-up. Thereafter, on 28.06.2011, he had again joined the investigation of the present case with IO SI Randhir SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 33 of 60 -34- Singh and Ct. Kuldeep and on that day, accused Harvinder @ CNG was taken out from the lock-up and led them for the recovery of pistol at Prahladpur Khera Road, near the Bawana canal, from there accused Harvinder @ CNG, as per his disclosure lead them in the fields and on the corner of the fields, underneath of brick, he got recovered one pistol. The pistol was checked and on checking two live cartridges were found inside the magazine of the pistol. That thereafter, IO prepared the sketch of pistol and live cartridges and same were measured. The sketch of pistol and cartridges are Ex. PW15/R. The said pistol and cartridges were converted into a pulanda and sealed with the seal of RS and FSL form was filled and pulanda was taken into possession vide seizure memo Ex. PW15/S. That thereafter, they came back to police station and case property was deposited with the MHC (M).
He has identified the case property i.e. four empty rounds and one bullet lid collectively Ex. P15/1, one mobile phone make Samsung Tata Indicom Ex. P15/2, one mobile phone make Nokia Ex. P15/3, one pistol, on the barrel of which Vidil Made in Spain is written and two cartridges (test fired) collectively Ex. P15/4, one pistol and two cartridges (test fired) Ex. P15/5.
PW23 Retd. SI Randhir Singh was one of the IO of the present case, who deposed on the same lines as that of PW23 HC Vinod regarding the investigation of the case.
PW24 Dr. Deepak Mathur and PW25 Dr. Hazari Lal have deposed that on 03.01.2012, they had conducted SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 34 of 60 -35- postmortem on the body of Ranbir Singh Dabas S/o Sh. Sitaram Dabas with the alleged history of gunshot injury on 21.06.2012. That as per alleged history, initially Ranbir Singh Dabas was treated at Saroj Hospital and finally expired at Paras Hospital at about 11:22 am, on 02.01.2012.
They further deposed that after conducting postmortem on the body of Ranbir Singh Dabas, they had prepared postmortem report no. DM/HL/11/12 Ex. PW24/A. That after conducting postmortem, they had opined the cause of death of Ranbir Singh Dabas was due to cardio respiratory arrest with septicemia following antemortem multiple firearm injuries and their consequences. That after conducting postmortem, they handed over original postmortem report, 40 inquest papers duly signed by them, sealed pulanda of blood gauze of deceased and sealed pulanda containing three bullets taken out from the body of deceased during postmortem alongwith sample seal to the investigation officer. That they had also handed over three X ray films showing bullets in the body of the deceased to the investigation officer. He also identified the three X ray plates of General Hospital, Gurgaon and proved the said X ray plates as collectively Ex. PW24/B. PW26 is Retd. ASI Satbir Singh, who deposed that on 25.10.2013, he was posted at PS Vasant Kunj, North as ASI and was working as DO from 12:00 midnight to 8:00 am (next morning). That on that day, at about 2:30 am, he received rukka from SI Rakesh Kumar sent by Inspector O. P. Thakur, on the basis of which, he registered FIR No.453/13 u/s 186/353/307/34 SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 35 of 60 -36- IPC & 25/27 Arms Act on a computer with the help of computer operator and proved the same as Ex. PW26/A. He further deposed that after registration of FIR, he handed over original rukka and copy of FIR to SI Rakesh Kumar to be handed over to Inspector O. P. Thakur.
PW27 is Inspector Dinesh Kumar, who deposed that on 02.01.2012, he was posted at PS Sushant Lok, Gurgaon, Haryana as ASI and on that day, he received information through telephone that Ranbir Singh, who was admitted in Paras Hospital, Gurgaon had expired. That on receipt of this information, he alongwith Ct. Ashok Kumar reached at Paras Hospital mortuary, where one Karambir Singh, Kuldeep and Anand met them. That Karambir Singh, brother of deceased Ranbir Singh got recorded his statement regarding death of his brother Ranbir Singh Dabas that Ranbir Singh was his real brother and on 21.06.2011, in the evening hours, some persons namely Amit, Harvinder and Bali fired on his brother at his property office and FIR No. 211/11 u/s 307/34 IPC was registered at PS Bawana. PW27 further deposed that in his statement, Karambir Singh also stated that in the incident Ranbir Singh sustained injuries and firstly he was taken to Saroj Hospital and thereafter Fortis Hospital, Delhi and thereafter he was admitted to Artimis Hospital, Gurgaon and on 23.11.2011, he was admitted in Paras Hospital, Gurugram and on 02.01.2012 he had expired around 11:00 am.
PW27 further deposed that he prepared the inquest papers related to death of Ranbir Dabas and handed over the documents i.e. death summary and the other documents to Dr. SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 36 of 60 -37- Deepak Mathur and Dr. Hazari Lal, GH, Gurugram for the postmortem of Ranbir Singh. That he prepared form no. 25.35 alongwith the death summary including the statement of the relatives of the deceased and also one report regarding the information of the receipt of death of Ranbir at PS Sushant Lok and the said inquest papers (running into 40 pages) are Ex. PW27/A and postmortem report Ex. PW24/A. He further deposed that the autopsy surgeon had also handed over to him two sealed parcels sealed with the seals of Mortuary Gurgaon and three X ray films.
He further deposed that thereafter, on 05.01.2012, he had handed over all the documents in sealed conditions to SI Randhir Singh of PS Bawana, who seized the same vide seizure memo Ex. PW27/B and had also handed over the RC no. 3 dated 05.01.2012 Ex. PW27/C. He further deposed that till the sealed parcels/exhibits remained in his possession they were intact and were not allowed to be tampered with and the same were also handed over SI Randhir in the same condition.
PW28 is Ms. Seema Nain. She has deposed that on 12.09.2011, he was posted as Senior Scientific Officer (Biology), FSL, Rohini. That on that day, four sealed parcels were received in the office of FSL duly sealed with the seal of RK and SAROJ HOSPITAL and the same were marked to her and the seals were found intact.
She further deposed that she examined the parcels biologically and serologically and prepared her report Ex. PW28/A and its serological report Ex. PW28/B. SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 37 of 60 -38- STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
4. After closure of PE, the statement of the accused persons Naveen @ Bali, Amit Kumar, Arun Kumar @ Annu and Harvinder @ CNG was recorded u/s 313 Cr.P.C. on 27.08.2019 and 09.09.2019 respectively wherein they denied all the evidence put to them and stated that they are innocent and have been implicated in the present case.
Accused persons chose not to lead defence evidence.
5. Thereafter, matter was fixed for final arguments.
ARGUMENTS
6. I have heard Sh. Harvinder Nar, Ld. Addl. PP for the State and Sh.Nitin Vashisht, Ld. counsel for the accused persons.
7. It was argued by Ld. Addl. PP for the State that the allegations levelled against the accused are of serious nature and through the testimonies of material witnesses, the prosecution has proved its case beyond reasonable doubt and accused persons deserves conviction.
It was further argued that all the police officials have clearly proved the chain and the manner of investigation and merely because the witnesses are police officials their testimony cannot be disbelived and for this reliance is placed on the case of Girija Prasad Vs. State of M.P. (2007) 7 SCC 625.
SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 38 of 60 -39-
8. On the contrary, Sh. Nitin Vashisht, Ld. counsel for the accused persons has argued that accused persons have been falsely implicated. It was argued that there is no eye witness to the crime. That the material prosecution witnesses i.e. PW1, PW2, PW3 and PW11 have failed to identify the accused persons or that they even saw the alleged offence. That the forensic evidence also does not support the case of the prosecution and recovery, if any, has been planted. That benefit of doubt has to be granted to the accused persons and accordingly, accused persons deserve acquittal.
9. I have heard the arguments at length and perused the entire record.
FINDINGS
10. Briefly stated, the prosecution story is that on 21.06.2011 at about 4.00 p.m. at Khasra No. 154, Plot No.548, Pooth Khurd, Barwala Road, Delhi, within the jurisdiction of PS Bawana, one Ranbir had been inflicted with gunshot injuries by the accused persons, who tried to flee away from the spot. The injured was taken to Saroj Hospital and a DD No.32A had been recorded. That accused Amit Kumar was apprehended by the complainant and one pistol was also recovered from him from the spot. That the injured Ranbir succumbed to his injuries and as per the postmortem report, the cause of death was opined to be cardio respiratory arrest with septicemia following ante mortem SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 39 of 60 -40- multiple firearm injuries and their consequences. The statement of witnesses were recorded and the complainant had stated that on the date and time of incident, he was present in the office of the deceased Ranbir along with Sandeep and Baldev. One person slightly opened the door of the office and told Ranbir that there was a call for him. When Ranbir went out, there was noise of gunshots and after few minutes when the complainant Raj Kumar along with Sandeep and Baldev came out, they saw Ranbir lying in a pool of blood on the floor and he was taken in a car to Saroj Hospital. From there, he was shifted to Fortis Hospital and after 4-5 months he was shifted to another hospital at Gurgaon, where he remained admitted for 20 to 25 days and later on succumbed to his injuries. That the assailant Amit Kumar was apprehended with a pistol on the spot and accused Harvinder @ CNG managed to skip towards Barwala village leaving his motorcycle behind. That other co-accused Arun Kumar and Naveen @ Bali were present outside in a white Alto car and after the incident immediately fled away towards Barwala in the said car which was driven by accused Naveen @ Bali. Co-accused Pradeep and Ashish were also present in one Ascent car which was parked near the place of incident and even they fled away in the said Ascent car after the incident. PCR was called at the spot and after investigation, four empty shells and led piece recovered from the spot. Blood sample of the deceased was lifted from the spot in a gauze piece along with blood stained earth and earth control. The motorcycle bearing no. DL1SR-8514 Hero Honda Splendor was also taken into possession from the spot along with one SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 40 of 60 -41- mobile phone make Nokia. After all the investigation, the accused persons were arrested and charge-sheet was filed.
11. The accused persons have been charged for the commission of offence punishable under Section 302 read with 120B IPC. Accused Harvinder @ CNG and Amit Kumar in addition, were also charged with Section 25/27 Arms Act for possessing and using a pistol without license in the commission of the murder of one Ranbir.
12. The relevant Section is reproduced as under:
SECTION 302 IPC "Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine".
SECTION 120B IPC "Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offences".
SECTION 25 ARMS ACT "....... Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 41 of 60 -42- term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine".
13. It is a settled law of criminal jurisprudence that a person is believed to be innocent till the guilt is proved against him. This principle is called The Presumption of Innocence. In another words, the accused is entitled to take advantage of reasonable doubt in respect of his crime. The principle finds its genesis in the Declaration of Human Rights under Article 11 Section 1 incorporated by the United Nations in 1948. It is also mentioned in the European Convention for the Protection of Human Rights in Article 6 Section 2 and United Nations International Covenant on Civil and Political Rights under Article 14, Section 2.
Presumption of Innocence is a re-statement of the rule that in criminal matters the prosecution has the burden of proving guilt of the accused in order to be convicted of the crime of which he is charged.
In Chandrashekhar Vs. State of Himachal Pradesh decided on 06.07.2018 relying on judgment of Data Ram Singh Vs. State of UP passed by the Hon'ble Supreme Court on 06.02.2018, it was held that:
"the freedom of an individual is utmost important and cannot be curtailed specially when guilt if any, is yet to be proved. It is settled law that till such time guilt of a person is proved, he is deemed to be innocent........ A fundamental postulate of criminal juris prudence is a presumption of innocence meaning thereby that a person is believed to SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 42 of 60 -43- be innocent until found guilty..........
Thus, it is a settled law that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt.
14. In this backdrop, I proceed to delve upon the evidence adduced on behalf of the prosecution.
MATERIAL WITNESS
15. The prosecution has heavily relied upon the testimony of PW1 Raj Kumar (uncle of deceased), PW2 Sandeep, PW3 Baldev and PW11 Ajit Singh.
PW1 Rajkumar had deposed that on 21.06.11 at about 3.45 p.m. he was present in the office of Ranbir situated at Pooth Khurd, Barwala Road, Delhi along with Sandeep and Baldev. That one person slightly opened the door of the office and told Ranbir that there is a call for him. Ranbir went outside to attend the call and when they were inside the office, he heard the gun shots. That after five ten minutes, he, Sandeep and Baldev came out and saw Ranbir lying on the floor. That they removed him in their car to Saroj Hospital. He further deposed that his statement was not recorded by the police but again said his signatures were obtained on a something written on a paper in the police station contents of which he do not know. He proved the same as Ex.PW1/A. He further deposed that Ranbir was shifted to Fortis Hospital and after four five months, from there he was shifted to a hospital in Gurgaon where he remained SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 43 of 60 -44- admitted for 20-25 days and later on he had expired. He further deposed that he had not seen the assailants and had only heard the gun shots.
But PW1 further deposed that in his presence, no one was apprehended at the spot. He further deposed that he cannot say whether the assailants came on foot or on any vehicle and that he had also not seen any assailant running away. He further deposed that he had seen the person who had informed Ranbir about the phone call. He categorically stated that he had not seen the accused persons.
Despite a lengthy cross-examination by Ld. Addl. PP for the State, nothing incriminating could be culled out from his testimony against the accused persons. On a specific suggestion, he stated that it is incorrect to suggest that he had stated to the police that at about 4.00 p.m. when I along with Ranbir, Sandeep S/o. Mahender and Baldev were sitting in the office of Ranbir, namely Shivam Property, Khasra No. 154, Plot No. 548, Pooth Khurd, Barwala Road, accused Harvinder @ CNG S/o. Harpal Singh came there (present in the court today) along with one another boy or that accused Harvinder @ CNG after opening the glass door of the office called Ranbir to talk on telephone with some one or that when Ranbir (deceased) came outside the gate of the office in compound, sound of firing was heard or that on hearing the sound I along with Sandeep and Baldev came outside the office, found Ranbir bleeding, fallen down on the ground and both aforesaid assailants were running towards the gate of compound carrying pistols in their hands or that trying to start SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 44 of 60 -45- motorcycle no. DL 1 SR 8514 or that we chased them or that one of the assailants was apprehended with pistol whose name revealed as Amit S/o. Sh. Krishan present in the court today or that Harvinder @ CNG leaving the motorcycle behind managed to skip towards Barwala Village, Delhi. He completly resiled from his earlier complaint Ex.PW1/A. He further resiled from his earlier statement and denied the suggestion that he had ever stated to the police that two accomplice of accused Harvinder @ CNG and Amit were present in a white car who were also at that time in the car fled away towards Barwala or that to whom he can identify if shown to him. He further denied that Arun Kumar @ Annu and Naveen @ Bali were present in the aforesaid white car make Alto and both the accused immediately after the incident fled away towards Barwala in the said Alto car which was driven by accused Naveen @ Bali. He has further denied the suggestion that one Ascent car was also parked near the place of incident or that accused Pradeep and Ashish present in the court today were present in that Ascent car and they also fled away in the said Ascent car towards Bawana driven by accused Pradeep.
16. Thus, the complainant completely resiled from his earlier version and denied the material facts and failed to identify the accused persons. Thus, solely based on his testimony, no conviction can be made out against the accused persons.
Now coming to the testimony of other material witnesses PW2 and PW3. PW2 Sandeep and PW3 Baldev were supposedly present in the office of deceased at the time of SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 45 of 60 -46- incident. PW2 Sandeep is a hearsay witness, who deposed that he was sleeping inside the cabin and was woken up by Raj Kuamr and Baldev, who informed him that Ranbir had received a bullet injury but he categorically deposed that he was not told about the assailants or who caused injuries to Ranbir and that none of the accused persons fired on Ranbir in his presence nor any of the accused was apprehended. Even, his statement was not recorded by the Investigating Agency and was later placed on record as Mark A1. Despite a lengthy cross-examination by Ld. Addl. PP for the State, the said witness also failed to identify the accused persons or that he had ever seen them before.
PW3 Baldev deposed that on 21.06.11, he was present and sleeping in the side cabin of the office of Ranvir Singh at Pooth Khurd. That at about 4:00 PM, he heard some noise and got up and saw Ranbir lying on the floor and he was bleeding. He further deposed that people present there were saying that he had been shot by someone. That thereafter, he called the police at number 100 and took Ranvir to Saroj Hospital and he do not know anything else about the present case. He merely deposed regarding the factum of Ranbir lying in pool of blood and that he had called 100 number but he has not specifically named any accused to have committed the crime or if he ever saw anyone at the spot. He denied making any statement to the police on 22.06.2011 marked as Mark A and has not supported the case of the prosecution.
PW11 Ajit Singh, who was working in the office of Ranbir Singh, is a hearsay witness, who deposed that he had SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 46 of 60 -47- reached the office after the incident and deposed that someone had fired shot upon Ranbir Singh and injured was being taken to the hospital. The said witness also reached Saroj Hospital in his own vehicle but the injured was shifted to Fortis Hospital, Shalimar Bagh from there and categorically stated that apart this, he knows nothing else about the case. There is nothing to suggest from his testimony that he was told about the assailants or who caused injuries to Ranbir and that if any of the accused persons fired on Ranbir in his presence nor any of the accused was apprehended. Despite his cross-examination by Ld. Addl. PP for the State, he completely resiled from his earlier statement mark PW11/A. Thus, all the four star witnesses of the prosecution failed to identify the accused persons or that even the manner in which the alleged crime was committed.
FORENSIC/SCIENTIFIC EVIDENCE
17. It is the case of the prosecution that one pistol and two live cartridges were seized and also four empty cartridges and one lead found at the spot and to be in possession of accused Amit Kumar and Harvinder @ CNG.
PW15 had deposed that one pistol was recovered containing two live cartridges in his magazine, Prahlad Pur Khera Road, near the Bawana canal on the corner of the fields which was got recovered on disclosure of accused Harvinder @ CNG. The said pistol and cartridges were taken into possession vide seizure memo Ex.PW15/S. The sketch of the pistol and SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 47 of 60 -48- empty live cartridges were prepared after measuring by PW23, and exhibited as Ex.PW15/R. The same was thereafter, sent to FSL for further investigation. As per the FSL report Ex.PW16/A dated 28.02.2013, parcel no.3 containing one improvised pistol 7.65 mm caliber and two 7.65 mm cartridge cases had been examined but they did not match and were opined to be not found identical. The class characteristics of rifling marks present on evidence bullets marked Ex.EB1 and Ex.EB2 and one deformed bullet marked Ex.EB3 on test fired bullets marked as Ex.TB1 and TB2 were examined and compared but were not found identical. It is reported by concerned Ballistic Expert that the evidence bullets EB1 and EB2 and deformed bullet EB3 have not been discharged through the improvised pistol Ex.F2 which was seized on the disclosure of accused Harvinder as per the prosecution story.
Parcel no.2 containing one improvised pistol 9 mm caliber and two 9 mm cartridge cases marked Ex.F1, A1 & A2. PW16 deposed that He has further deposed that the bullets marked Ex. EB1 to EB3 had not been discharged through the improvised pistol 7.65 mm caliber marked Ex. F2 as the class characteristics of rifling marks present on exhibits EB1 to EB3 and on test fired bullets marked TB1 and TB2 were not found identical when examined under the comparison microscope. Thus, from the forensic evidence, nothing incriminating could be culled out against the accused persons.
SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 48 of 60 -49- RECOVERY OF WEAPON
18. It has been held in the landmark judgment of State (NCT of Delhi) Vs. Sunil 2001 SCC, (Cri) 248, the Hon'ble Supreme Court held that:
"when discovery is made pursuant to any facts deposed by the accused, the discovery memo prepared by the IO is necessarily attested by the independent witnesses but if no witness is present, it is difficult to lay down as a proposition that the recovery must be tainted or that or unreliable. But in such a situation, the court has to consider the report of the IO on its own merits".
In Mani Vs. State of Tamilnadu decided on 08.01.2008, the Hon'ble Supreme Court, it has been held that:
"Discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon discovery".
In the case of Naveen kumar Verma Vs. State (Govt. of NCT of Delhi) decided by Hon'ble High Court of Delhi on 03.07.2013 relying on the landmark judgment of Mohd. Jabbar Vs. State decision 21.05.2010 Crl. A. 1022/18, it has been reiterated that:
"The courts have to be cautioned and to vigilant against the non practice of the police to plaint ordinary objects on the accused persons to prove access by the accused to the place where the crime was allegedly committed".
In Prabhu Vs. State AIR 1963, Supreme Court 1113, recovery of a blood stained shirt and a dhoti as also on an axe on which human blood was detected was held to be a weak SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 49 of 60 -50- evidence as was also held in the case of Narsinghbhai Prajapati Etc. Vs. Chatrasingh & Ors. AIR 1977 Supreme Court 1753, where recovery of a blood stained shirt and a dhoti and also a dharia (weapon of offence) were held to be a weak evidence.
In the case of Surjit Singh Vs. State of Punjab AIR 1994 Supreme Court 110, the watch of the deceased and a dagger stained with the blood of the same group as that of the deceased was held to be weak evidence.
In the present case, it was the case of the prosecution that the accused persons were trying to flee from the spot after committing the crime and one of the assailants Amit was apprehended by the complainant with the help of public persons. One pistol was also recovered from his possession. Another recovery of the arms and ammunition is shown from the accused Harvinder @ CNG from near a canal in the corner of the fields. As the per the testimony of PW15 there were passersby/public persons but no such public person either present on the spot around the time of incident or the recovery of alleged weapon has been made a part of the investigation.
19. PW15 in his cross-examination admitted that during the recovery of the arms by the IO from accused Harvinder @ CNG there were passersby but IO did not note their names or address nor served them any notice for not having joined the investigation. No enquiries admittedly made by the IO from any person who may have been working on the agricultural fields at that time. Further, the PW15 admitted that neither there was any SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 50 of 60 -51- videography which was conducted on the said recovery proceedings nor any photographs were taken. He further admitted that no crime team of Ballistic Expert had been called to the place of recovery and that no finger prints were lifted by the IO from the alleged weapon. He further admitted that the recovery was made from an open public place accessible to all. Similar was the admission of PW22 in his cross examination. Thus, the recovery of the alleged weapon is under cloud.
MEDICAL EVIDENCE
20. PW14 is Dr. Akhil Vohra, Saroj Hospital. He has deposed that on 21.06.2011 at about 4.30 p.m., patient Ranbir Singh, S/o Sita Ram, 44 years male was brought to casualty by his friend Sandeep with the alleged history of gun short injury, one hour back to Pooth Khurd, Delhi. He examined the patient, who was bleeding from right ear, bleeding from nostril, swelling above the right eyebrow. The injuries were as under:
1. One wound 1X1 cm present in left lumbar (abdomen) region, mid axillary line;
2. One wound 1X1 cm present on lateral aspect of middle of left thigh;
3. One wound 1X1 cm present on medial aspect of upper part of left thigh;
4. One wound 1X1 cm present on the left scrotum;
5. One wound 1X1 cm present on the occipital region.
He further deposed that the patient was found unconscious and unfit for statement. He prepared the MLC No. SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 51 of 60 -52- 3307 Ex.PW14/A which is in his hand writing and bears his signature. He further deposed that the patient was admitted in ICU and thereafter, the patient left ICU against medical advise (LAMA) at 7.30 p.m. and proved the said document as Ex.PW14/B. Thereafter the injured was admitted to Fortis Hospital, Shalimar Bagh and after 4-5 months from there he was shifted to hospital in Gurgaon. PW24 is Dr. Deepak Mathur and PW25 Dr. Hazari Lal Specialists Forensic Medicine from Civil Hospital, Gurgaon who conducted the postmortem of the deceased Ranbir Singh Dabas and prepared the postmortem report bearing No. DM/HL/11/12 Ex. PW24/A. As per the postmortem report the cause of death was due to cardio respiratory arrest with septicemia following ante mortem multiple fire arm injuries and their consequences. However, this opinion no where suggests that the gun shot injuries were inflicted by the accused persons.
The date of incident is 21.06.2011 and the date of death is 02.01.2012. In a span of more than 5 months, it is surprising that the investigating officer could not record the statement of the injured which could have been the most vital piece of evidence and could have become a sort of dying declaration later. No such statement has been proved by the prosecution.
PUBLIC WITNESS
21. The incident is dated 21.06.2011 at about 03:45 PM SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 52 of 60 -53- in broad daylight. It was the case of the prosecution that the accused persons were trying to flee from the spot after committing the crime and one of the assailants Amit was apprehended by the complainant with the help of public persons. One pistol was also recovered from his possession. Another recovery of the arms and ammunition is shown from the accused Harvinder @ CNG from near a canal in the corner of the fields. As the per the testimony of PW15 there were passersby/public persons but no such public person either present on the spot around the time of incident or the recovery of alleged weapon has been made a part of the investigation. PW15 in his cross- examination admitted that during the recovery of the arms by the IO from accused Harvinder @ CNG there were passersby but IO did not note their names or address nor served them any notice for not having joined the investigation. No enquiries admittedly made by the IO from any person who may have been working on the agricultural fields at that time.
Even PW22 had himself deposed in his examination in chief that at the time of incident when he reached the spot there was a gathering of many public persons in the compound of Shivam Properties. However, admittedly no such public person was asked to join the investigation nor any notice to any such person had been given by the IO.
In this regard reliance is being placed on the following judgments:-
In "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under:-
SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 53 of 60 -54- "18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-
keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner". "4. It is well settled principle of the law that the Investigating Agency should join SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 54 of 60 -55- independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
22. Also, the incident happened in broad day light. Allegedly the accused persons were present in two cars waiting outside and fled the spot. But no CCTV footage was produced in evidence nor even there is anything to show the IO made any efforts to procure the CCTV footage around the spot. This could SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 55 of 60 -56- have been a vital piece of evidence which seems to have lost sight by the investigating agency.
23. The remaining prosecution witnesses were formal police witnesses who merely deposed regarding the manner of investigation.
PW6 is Inspector Anil Kumar, who has deposed that he was posted as Incharge at mobile crime team outer district. That on that day on receipt of information about firing incident, he alongwith his staff reached at Shivam property, Poothkalan, Barwala Road and found blood was lying in front of room besides the office situated in the aforesaid property compound. He further deposed that one mobile phone make Samsung, Tata Indicom black colour lying nearby and four fired cartridges were found at a small distance towards left side and one lead piece near the cooler. He inspected the spot and HC Karambir took the photographs. He further deposed that he prepared the crime report Ex.PW6/A and handed over the same to IO ASI Raj Kumar. In his cross-examination he stated that he had reached the spot at about 05:10 PM.
PW9 is Ct. Harpal Singh deposed that on 21.06.2011, he was posted at PS Bawana and on that day, he was on Emergency Duty and on receipt of DD No.29A Ex.PW7/A by ASI Raj Kumar, he alongwith ASI Raj Kumar at about 4:30 p.m., reached at Shivam Property, Barwala Road, Pooth Khurd, Delhi, where a crowd was found gathered there. He further deposed that blood was found lying in the room besides the property dealer SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 56 of 60 -57- office in front of the door and one mobile phone Samsung, Tata Indicom black colour was found lying there and four empty cartridges were also found lying there near the spot. He further deposed that one person who was given beatings by the public, whose name later on revealed as Amit was lying at the spot and was shifted to the M.B. Hospital through Ct. Vinod through PCR personnel. He further deposed that one splendor motorcycle was lying at the spot and on the instructions of the ASI Raj Kumar, he took the said motorcycle to the PS. PW9 was already present at around 04:30 PM at the spot when PW6 reached the spot at 05:10 PM but the testimony of PW6 is completely silent about any crowd being gathered there or accused Amit being apprehended or even any motorcycle found at the spot. This is a material lacuna in the testimony of these police officials which remained unexplained.
In fact PW9 Ct. Harpal Singh who is one of the material police witnesses completely resiled from his earlier statement and did not depose anything regarding the recovery and seizure of weapons, lifting of the earth control and blood stained earth from the spot, seizure of the motorcycle, any disclosure made by accused Amit and various other material parts of the investigation done by him and had resiled from his earlier statement under Section 161 Cr.P.C. Mark PW9/A. The said witness did not recollect any such thing at the time of recording of his examination in chief and was eventually cross examined by the Ld. APP for the State. This further creates doubt in the prosecution story.
SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 57 of 60 -58- As the per the testimony of PW15 there were passersby/public persons but no such public person either present on the spot around the time of incident or the recovery of alleged weapon has been made a part of the investigation. PW15 in his cross-examination admitted that during the recovery of the arms by the IO from accused Harvinder @ CNG there were passersby but IO did not note their names or address nor served them any notice for not having joined the investigation. No enquiries admittedly made by the IO from any person who may have been working on the agricultural fields at that time.
Even PW22 had himself deposed in his examination in chief that at the time of incident when he reached the spot there was a gathering of many public persons in the compound of Shivam Properties. However, admittedly no such public person was asked to join the investigation nor any notice to any such person had been given by the IO.
Regarding the recovery of arms from accused Harvinder @ CNG the IO PW23 had categorically admitted in his cross-examination that there were passersby but they had not joined the investigation at the time of recovery. He had not noted down their names and addresses nor served any notices to them. He also admitted that neither the videography was conducted of the said recovery proceedings nor any photographs were taken showing the recovery of weapon. He had not called any crime team or ballistic expert to the place of said recovery nor he had lifted any finger prints from the said weapon. He admitted that the place of recovery of the said pistol was a public place and SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 58 of 60 -59- was an open place and was accessible to all.
CONCLUSION
24. The material prosecution witnesses specially PW1, PW2, PW3 and PW11 could not bring home the guilt of the accused persons beyond reasonable doubt. Even vide the forensic evidence, no incriminating evidence could be proved against the accused persons as discussed above. There is no CCTV footage or any independent public person, who may have been present at the time of incident or even at the time of alleged recovery of the weapon was examined and thus, in view of the aforesaid detailed findings, there is no hesitation in holding that the prosecution has failed to prove its case beyond reasonable doubts and accordingly the accused persons Arun Kumar, Harvinder @ CNG and Naveen @ Bali qua whom the present findings have been made, deserve a benefit of doubt and hence stand acquitted of the charges levelled against them.
25. File be consigned to record room after due compliance.
Needless to say even in case of acquittal, the victim/ LRs are entitled to compensation from DLSA, as per law, if not already awarded.
(Judgment is only qua accused Arun Kumar, Harvinder @ CNG and Naveen @ Bali. As regards accused Amit Kumar, who was declared PO, the case be revived as and SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 59 of 60 -60- when he is apprehended. Other remaining accused persons Pradeep Kumar @ Bhola and Ashish @ Ashu have already been expired.) Pronounced in open (SHEFALI SHARMA) Court on 30.01.2023 ADDITIONAL SESSIONS JUDGE-02, NORTH DISTRICT, ROHINI COURTS, DELHI SC No.57434/2016 , FIR No. 211/11, PS Bawana State Vs. Amit Kumar Etc. Page No. 60 of 60