Delhi District Court
State vs . 1. Jitender Pal Gulati @ Jeetu on 1 July, 2013
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSSION
JUDGEII: (NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 1136/2009
Unique Case ID No.: 02401R0023562000
State Vs. 1. Jitender Pal Gulati @ Jeetu
S/o Sh. Chanderbhan
R/o BA 15B, Phase I,
Ashok Vihar, Delhi.
(Acquitted)
2. Jitender @ Kalla
S/o Sh. Samay Singh
R/o WP444,
Village Wazir Pur,
Ashok Vihar, Delhi.
(Convicted)
FIR No.: 68/1999
Police Station: Mukherjee Nagar
Under Sections: 120B/302 Indian Penal Code
Date of committal to sessions court: 3.6.2000
Date of remand from High Court: 8.11.2012
Date on which orders were reserved: 7.6.2013
Date on which judgment pronounced: 1.7.2013
JUDGMENT
(1) As per the allegations, in the intervening night of 10th and 11th March 1999 both the accused Jitender @ Kalla and Jitender Pal Singh St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 1 Gulati entered into criminal conspiracy to commit the murder of Sumit Nayyar at his house bearing No. 2718 Mukherjee Nagar and in pursuance to the same the accused Jitneder @ Kalla committed murder of Kimti Lal Nayyar the father of Sumit Nayyar at 00:30 AM (midnight) on the intervening night of 1011.3.1999 at House No. 2718, Mukherjee Nagar, Delhi.
BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on the night intervening 10 th and 11th March, 1999 at around 12:30 AM door bell of House No. 2718, Mukherjee Nagar, Delhi was rung by someone on which Sh. Kimti Lal Nayyar the owner of the house and the father of Sumit Nayyar got up and came out to check as to who had rang the door bell. As soon as he went near the main gate of his house someone fired upon him with a gun and three bullets hit his body as a result of which he fell down and died at the spot itself. On hearing the sound of firing the of Kimti Lal Nayyar namely Sandeep Nayyar who was present inside the house along with his wife and daughter, came out while his mother also came out from another room and they found Kimiti Lal Nayyar lying on the floor in injured condition. They also heard sound of a car speeding away from over there.
Immediately information about the incident was given to police at no. 1000 and a PCR van removed Kimiti Lal Nayyar to Hindu Rao Hospital where the doctors declared him 'brought dead'. In the meantime on St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 2 receipt of information of the incident at Police Station Mukherjee Nagar Inspector Jagdish Parshad along with his other staff members went to the spot but the injured was already removed to hospital hence, after leaving SI Dinesh Chand and Ct. Lal Chand at the spot he went to Hindu Rao Hospital and collected MLC of Kimiti Lal Nayyar. Sandeep Nayyar also met him in the hospital itself and gave his statement to SI Dinesh Chand who thereafter returned back to the spot where the spot was got inspected from the Crime Team and was also got photographed. Huge amount of blood was found lying at the spot besides three empty cartridges. The empty cartridges were taken into possession and blood was also collected from the spot besides the earth control sample. A rukka was thereafter prepared and the present case was got registered at Police Station Mukherjee Nagar for the offence under Sections 302 IPC read with 25/27 Arms Act, 1959. In the meantime Sumit Nayyar the other son of Kimiti Lal Nayyar also came home and his statement was also recorded by the Investigating Officer Inspector Jagdish Parshad. (3) On the next day after carrying out the necessary inquest proceedings the dead body of Kimiti Lal Nayyar was sent for postmortem examination and Autopsy Surgeon Dr. C. B. Dabas carried out the postmortem examination and also recovered three bullets found embedded inside the body of Kimiti Lal Nayyar which were handed over to the Investigating Officer along wit the blood stained clothes found on the dead body.
St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 3 (4) It is also the case of the prosecution that on the night of 10th and 11th March, 1999 itself about 1 ½ hour prior to the present incident accused Jitender @ Kalla was allegedly involved in the murder of one other person namely Anil Badana in the marriage reception party of one Vijay within the area of Police Station Keshav Puram. Sumit Nayyar the son of Kimiti Lal Nayyar the deceased in the present case was an eye witness to the said incident in which Anil Badana was murdered and had immediately informed the police by making PCR calls wherein he had specifically named the accused Jitender @ Kalle as the person who had committed the crime. On 26.3.1999 Sumit Nayyar made a supplementary statement to the Investigating Officer wherein he expressed his suspicion upon accused Jitender @ Kalla and accused Jitender Pal Gulati in the commission of murder of his father. Subsequently on 30th March, 1999 accused Jitender Pal Gulati was arrested and his disclosure statement was recorded wherein he allegedly admitted his role in the murder of Kimti Lal Nayyar. The other accused Jitender @ Kalla was however found to be absconding. However, on 23.1.2000 the accused Jitender @ Kalla was arrested by SI Ram Avtar Crime Branch, Homicide Section from bus stand Naraina on the basis of a secret information and his disclosure statement was recorded wherein he also allegedly admitted about his involvement in the present case. At the instance of accused Jitender @ Kalle the weapon of offence used in the present case i.e. the pistol of 7.65 mm was recovered from beneath of tree of DDA Park, Haiderpur. The St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 4 records of the licensed pistol purchased by accused Jitender @ Kalla along with live cartridges was also collected from Bahadurgarh Gun House and also from ADMJammu from where the license was issued to accused Jitender @ Kalla. Later on the recovered bullets from inside the dead body of Kimti Lal Nayyar and the empty cartridges were recovered from the spot were sent to CFSL for comparison with the licensed pistol of accused Jitender @ Kalla as was already sent to CFSL in case FIR No. 67/1999 Police Station Keshav Puram. Upon receipt of the report of Ballistic Expert who opined that bullets and empty cartridges so recovered were indeed fired from the licensed pistol of accused Jitender @ Kalla, challan was prepared and was filed in the Court for trial. (5) After the arrest of accused Jitender @ Kalle one Yogesh Bhati, a friend of Sumit Nayyar also appeared before the Investigating Officer Inspector Jagdish Prashad and informed him that at around 1:30 AM while he was returning after watching a movie at Batra Cinema, all of a sudden he heard some sound of firing. He further informed the police that he hid himself behind a car and saw accused Jitender Gulati who was already known to him coming out from the seat of driver of a car outside the house of Sumit Nayyar to the passenger seat and one other person came from the side of the house of Sumit Nayyar and after sitting in the car they both drove away. Upon the arrest of accused Jitender @ Kalle he was put up for Test Identification Parade but he refused to participate therein but later during the course of Judicial Custody Remand of St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 5 accused Jitender @ Kalle, Yogesh Bhati allegedly identified him to be the person who was seen by him, coming from the side of house of Sumit Nayyar when the incident took place. After completion of investigations challan was prepared and was filed in the court for trial. CHARGE:
(6) The Ld. Predecessor of this Court settled the charges under Section 120B/302 Indian Penal Code against both the accused Jitender @ Kalla and Jitender Pal Singh Gulati to which they have pleaded not guilty and claimed trial.
(7) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
Prosecution witnesses:
Sr. PW No. Name of the witness Details
No.
1. PW 1 HC Dharambir Police witness / Duty Officer
2. PW 2 Sandeep Nayyar Public Witness - son of the deceased
3. PW 3 S.K. Kathuriya Public witness - relative of the deceased
4. PW 4 Sumit Nayyar Public witness - son of the deceased
and eye witness to murder of Anil
Badana in FIR No. 67/1999, PS Keshav
Puram
5. PW 5 Yogesh Bhati Public witness - eye witness
6. PW 6 HC Bal Kishan Public / eye witness
7. PW 7 Tiarth Raj Singh Public witness / Draftsman
St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 6
8. PW 8 D. C.B. Dabas Autopsy Surgeon who has proved the
postmortem report of the deceased
9. PW 9 Ct. Ashok Kumar Police witness
10. PW 10 Ms. Anju Bajaj Chandna The then Ld. MM / Official witness
who had conducted the TIP of accused
11. PW11 Ct. Sushil Kumar Police witness/ Crime Team
Photographer
12. PW12 Ct. Shish Pal Police witness
13. PW 13 SI Dinesh Chand Police witness
14. PW 14 HC Harvinder Singh Police witness / Duty Officer of PS
Karol Bagh
15. PW 15 Surender Singh Judicial Assistant, Office of ADM
Jammu proving the arm license dated
4.4.2000 bearing No. 131/JDM/2000
issued to the accused
16. PW 16 Paramjit Singh Partner of M/s. Bahadurgarh Gun House
proving the sale of pistol No. 621251
make Czechoslovakia to the accused
17. PW 17 Ct. Surender Singh Police witness
18. PW 18 ASI Virender Tyagi Police witness
19. PW 19 SI Ram Avtar Police witness
20. PW 19A Dr. Rakesh Dogra Doctor from Hindu Rao Hospital who
has proved the MLC of deceased Kimti
Lal Nayyar
21. PW 20 Ct. Mukesh Kumar Police witness/ Duty Constable at Hindu
Rao Hospital
22. PW 21 HC Ram Diya Police witness / MHCM
23. PW 22 Sh. A.R. Arora Forensic (Ballistic) Expert
24. PW 23 SI Anil Kumar Police witness
25. PW 24 Insp. Jagdish Prashad Police witness / Investigating Officer
26. PW 25 SI Ram Sunder Police witness / IO of case FIR No.
125/1996
27. PW 26 Ct. Bhupinder Police witness / Special Messenger
St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 7
28. PW 27 Ct. Ashok Kumar Police witness
29. PW28 HC Sohan Singh Police witness / MHCM
30. PW29 Ct. Satpal Police witness
List of documents:
Sr. Exhibit No. Details of documents Proved by
No.
1. PW1/A Copy of DD No. 31A HC Dharambir
2. PW1/B Copy of FIR
3. PW1/C Copy of DD No. 33A
4. PW1/D Copy of DD No. 34A
5. PW2/A Statement of Sandeep Nayyar Sandeep Nayyar
6. PW2/B Statement regarding identification of
dead body
7. PW4/A Statement regarding identification of Sumit Nayyar
dead body
8. PW7/A Scaled site plan Tirath Raj Singh
9. PW8/A Postmortem Report Dr. C.B. Dabas
10. PW10/A Application for conducting TIP of Ms. Anju Bajaj
accused Chandna, the then Ld.
11. PW10/B Order on the application MM
12. PW10/C Refusal of the accused
13. PW10/D Certificate
14. PW10/E TIP proceedings
15. PW11/1 - Negatives of the scene of crime Ct. Sushil Kumar
PW11/3
16. PW11/4 - Photographs of the scene of crime
PW11/6
17. PW13/A Seizure of three empty cartridges SI Dinesh Chand
18. PW13/B Seizure memo of blood sample lifted
from the spot
St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 8
19. PW14/A Copy of FIR No. 125/1996 HC Harvinder Singh
20. PW15/A Letter dated 4.4.2000 bearing No. Surender Singh
131/JDM/2000
21. PW16/A Seizure memo of documents pertaining Paramjit Singh
to purchase of pistol
22. PW17/A Disclosure statement of accused Ct. Surender Singh
Jitender @ Kalle
23. PW17/B Personal search memo of accused
Jitender @ Kalle
24. PW18/A Disclosure statement of accused ASI Virender Tyagi
Jitender @ Kalle
25. PW18/B Disclosure statement of accused dated
4.2.2000
26. PW18/C Seizure memo of the pistol along with
cartridges
27. PW19/A Sketch of the pistol along with SI Ram Avtar
cartridges
28. PW19A/A MLC of Kimti Lal Nayyar Dr. Rakesh Dogra
29. PW20/A Seizure memo of the clothes of Ct. Mukesh Kumar
deceased
30. PW22/A Ballistic Report Sh. A.R. Arora
31. PW33/DA & Photographs of the grooves
DB
32. PW24/A Endorsement on the statement of Insp. Jagdish Prashad
Sandeep Nayyar
33. PW24/B Rough Site Plan
34. PW24/C Brief facts
35. PW24/D Form 25.35
36. PW24/E Application for conducting postmortem
37. PW24/F Arrest memo of accused Jitender Pal
Gulati
38. PW24/G Body inspection memo
St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 9
39. PW24/H Disclosure statement of accused
Jitender Pal Gulati
40. PW24/I Pointing out memo by accused Jitender
Pal Gulati
41. PW28/A Copy of entry no. 803 HC Sohan Singh
42. PW28/B Copy of the Road Certificate
43. PW29/A Arrest memo of accused Jitender @ Ct. Satpal
Kalla in the present case
44. PW29/B Personal search of accused Jitender @
Kalla in the present case
45. P1 to P3 Empty cartridge cases recovered from the spot
46. PXX Pistol No. 621251 make Czechoslovakia got recovered by the
accused
47. PXX1 Magazine of the above pistol
48. PXX2 to 4 Three live cartridges of 7.65 mm
49. PXX5 to 7 Three fired cartridges of 7.65 mm
EVIDENCE:
(8) In order to prove its case the prosecution has examined as
many as Twenty Nine witnesses as under:
Public witnesses/ eye witnesses:
(9) PW2 Sandeep Nayyar is the son of deceased Kimti Lal
Nayyar and on whose complaint the present case was registered. He has deposed that on 10th March, 1999 at about 10:00 PM he was sleeping in his house and at about 12:30 AM (11th March, 1999) somebody rang the door bell of their house. According to the witness, his father went for the St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 10 said purpose and after one or two minutes, he heard voice of shots having been fired. He has testified that he was sleeping in a nearby room and on hearing the shots he rushed to the place and found his father lying on the floor and blood was coming out from the left side of his chest. The witness has also deposed that there were marks of three bullets on the chest of his father and he heard the noise of a car speeding away. He has proved having given a call at 100 number after which PCR van had arrived after about five minutes who removed his father to the hospital and he had accompanied them. According to the witness the doctor declared his father to be 'dead' and after about 15 minutes the local police also reached the hospital. He has proved that his statement was recorded by the police vide Ex.PW2/A. (10) He has further testified that Sumit Nayyar is his brother and on the said night he had gone to Keshav Puram to attend the marriage reception of one of the friends and had not returned to the house by the time the incident took place. According to the witness, he came back to his house along with the police and got the spot photographed and the empty cartridges were found present on the spot which cartridges were taken into police possession after which they were sealed with the seal of JP. He has testified that police also lifted blood sample from the spot and also sealed the same with the seal of JP. He has proved having identified the dead body of his father vide memo Ex.PW2/B and has stated that after postmortem had been conducted on the dead body it was handed St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 11 over to him. He further deposed that on 14th March, 1999 a draftsman had visited their house and had taken rough notes. According to him, the channel gate of his house was locked when he reached the spot and saw his father lying on the floor. He has testified that no theft had been committed in his house since their car which was parked on the ground floor was lying intact.
(11) In his cross examination the witness has deposed that their house is two and half storied and they all including his deceased father were on the ground floor. According to the witness, no part of the house was given on rent by them at that time and nobody was residing on the first and top floors at that time. He has testified that their car used to be parked outside the house. The witness has further deposed that he got up on hearing the noise of the door bell but kept lying on bed. According to him, he had heard noise of gun shots but he is unable to tell how many shots were fired. He has also deposed that when he was trying to take his father on his lap, his clothes were stained with his blood and was wearing the same clothes when the police arrived and had gone to the hospital in the same clothes. The witness has further deposed that when he got out of bed the firing had stopped. According to the witness, he had raised an alarm and neighbours had collected after about five minutes. He has also deposed that his mother had reached there almost simultaneously but she had reached after him. He has further deposed that his wife had come there and his father did not utter any words to him. The witness has also St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 12 deposed that he might have come back from the hospital at about 22:15 AM and was accompanied by Tarun and Manish besides the police. He has testified that Yogesh Bhati had not accompanied him to the hospital and had no talk with the police. He has also deposed that in fact he had left before the arrival of the police and had handed over the key of the scooter to him and had asked him to fetch Sumit to the hospital.
According to him, Yogesh Bhati had not met him again with the scooter and in fact he met him after a few days. He has also deposed that on the next day of the incident one of his relations, had told him that the key of the scooter had been left by somebody. The witness has further testified that on the day of incident when he had raised a noise it was Yogesh Bhati who had come to the spot first of all and at that time he was quite perplexed and told him to see as to what had happened. According to him, Yogesh Bhati asked him as to where Sumit was on which he told him that Sumit had gone to Keshav Puram to attend the party and asked him to fetch him from there. He has also deposed that he might have met Yogesh Bhati again after 15 days or may be 30 days. According to him, police had lifted blood from only one place with the help of a cotton swab from the floor. He has also deposed that police did not take any other thing into their possession except used cartridges in his presence. He is unable to tell if the police had lifted chance prints from the spot. He does not remember whether the Crime Team was also called by the police. According to him, the police remained at the spot upto 3:303:45 AM and St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 13 he remained at the spot till then but no other neighbour had come to their house at that time except Tarun and Manish. According to the witness, in his presence police did not record their statement nor obtained their signatures on any document. The witness has testified that his statement was recorded by the police once in the hospital and thereafter at his house after the blood sample was taken. He has further deposed that his statement might have been recorded at about 2:45 AM. He does not remember whether he had signed any paper at his house and states that he might have signed thrice or four times on papers prepared by the police on different occasions. The witness has deposed that he might have also signed at the hospital another paper when the dead body was being taken for postmortem and his statement might have been recorded four times in this case, one at the hospital, one at the time of taking blood sample at his house, one at the time of identification of the dead body and one at the time of receipt of the dead body and he had signed all his statements. According to him, the used cartridges were lifted by the police from the varandah which is situated at the entrance of their house from outside after the channel gate. He has testified that there is another gate at a distance of about 6 to 8 feet from the channel gate and there is an iron gate affixed in the varandah as they enter the house and a ramp of some height from the gali to the varandah. He has further deposed that the iron gate at the varandah remains open and it is not locked even though it remains in a closed condition. The witness has also deposed that the St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 14 channel gate is at a distance of about eight feet from the iron gate in the varandah and the iron gate inside the house which is at a distance of six feet from the channel gate which usually remains closed. He has admitted that for entering house one has to cross the iron gate in the varandah. According to him, his father was lying near the channel gate inside when he first saw him whereas the used cartridges were lying outside the channel gate at a distance of twothree feet from the place where his father was lying. He has testified that the police had not made him sign on the sealed packets prepared by them and after the police had left the spot he had again gone to the hospital. According to him, he had met Sumit Nayyar at his house at about 5 AM and by that time he had returned from the hospital along with S. K. Kathuria, Tarun and Manish. He has further deposed that the police had again arrived at their house and had interrogated Sumit Nayyar but he is unable to tell if they had recorded his statement or not and states that in his presence the statement of Sumit Nayyar was not recorded.
(12) PW3 S. K. Kathuria is the brother in law of the deceased and has deposed that after postmortem the dead body of Kimti Lal Nayyar was handedover to him.
(13) In cross examination he has deposed that he had received information regarding the death of his brother in law at 4:00 AM on telephone from H. R. Hospital on which he had reached there. According to the witness, the son of the deceased Sandeep Nayyar and his friends St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 15 were present there but he did not see Sumit Nayyar in H. R. Hospital at that time. He has further deposed that Sumit Nayyar met him at the house of the deceased at about 8:30 AM. According to the witness, he had signed a memo at H. R. Hospital at the time when the dead body was handed over to the son of the deceased.
(14) PW4 Sumit Nayyar is the son of deceased Kimti Lal Nayyar. He has deposed that in 1999 he was studying in Satyawati College in B Com Hons. Second year. According to the witness, Anil was his friend and was the president of the student union of the college and accused Jitender @ Kala used to support the other group opposed to Anil. He has also deposed that accused Jitender Gulati who was earlier his friend, used to roam about in the college along with Jitender @ Kalle and about a year prior to the incident he had fallen out with him. The witness has further deposed that on 10.3.1999 he had attended the reception party of Vijay in Community Center Keshav Puram, A1 Block and at about 11:00 PM Anil was murdered by accused Jitender @ Kalle behind the pandal where he was present and had seen the occurrence. According to him, accused Jitender @ Kalle had escaped from the spot while firing and Anil had been removed to Sundar Lal Jain Hospital where he was declared dead at about 11:45 PM. The witness has further deposed that he was detained by the police firstly at the hospital, thereafter they took him to the spot where they recorded his statement in the said case. He has also deposed that at about 4:004:15 AM, the relatives of Anil had taken him from the St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 16 spot and he reached his house at about 4:45 AM where he found blood lying on the floor near the channel gate on the ground floor and he was told that his father had also been murdered. The witness has testified that on 26.3.1999 police again visited their house and after reflecting on the incident he told the police that accused Jitender Gulati could have shown his house to the accused Jitender @ Kalle. According to him, on 30.3.1999 police had brought accused Jitender Gulati to his house. (15) Leading questions were put to the witness by Ld. Addl. PP for the State wherein he has deposed that he had suspected that Jitender @ Kalle along with Jitender Gulati would have murdered his father since he was a witness to the murder of Anil by accused Jitender @ Kalle and both the accused bore strong ill will towards him as he used to support Anil in the elections. He has proved having identified the dead body of his father vide memo Ex.PW4/A. (16) In cross examination the witness has deposed that his statement was recorded by the police in this case relating to murder of Anil FIR No. 67/99, P. S. Keshava Puram at about 3:00/3:30 AM. According to the witness, prior to the incident Yogesh Bhati was his friend but he (witness), Anil Bhadana, Yogesh Bhati, Raj Kumar, and Sanjay Vijay were not common friends and has voluntarily explained that Yogesh Bhati was his friend whereas other four named were common friends. The witness has testified that Vijay was not friendly with Yogesh Bhati. According to the witness, when he reached his place there were St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 17 police personnels and his relatives present in the house. He has further deposed that he remained at his place till about 12:00 noon after which he left for the hospital. He has also deposed that in his presence statement of nobody was recorded. He is unable to tell if his brother Sandeep Nayyar was present in the house when he reached there and has voluntarily explained that he was so shocked and could not see the presence of the relations there. According to him, his maternal uncles Kapil Dev Tiyan, Paramjit Tiyan were present in the house but he is unable to tell if Sh. S.K. Kathuria was present or not. He has deposed that in his presence, the statement of his relatives was not recorded at home. He does not remember if any proceedings was done by the police in his presence at home. The witness has further deposed that blood was lying on the floor along side the channel gate which channel gate was open when he reached his house. According to him, the police personnels were outside the channel gate. He is unable to tell if there were foot marks on the blood lying on the spot. He has further deposed that at the hospital his brother Sandeep Nayyar, Sh. S. K. Kathuria, Sh. Jaswant Rai were also present and his brother Sandeep Nayyar had taken him from his house to the hospital. He has also deposed that police had recorded his statement four times in this case, the first statement was recorded on the day of murder, second statement was recorded at the time of identification of dead body, third was recorded on 26.3.1999 and fourth was recorded on 30.3.99. The witness has testified that except for his statement in the St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 18 hospital the other three statements were recorded at his home. According to the witness, he had told the police in his statement that he was first detained in the hospital and thereafter he was taken to the spot for his statement. According to him, the accused Jitender @ Kalle had not fought any election in his presence or opposed Anil. He has testified that one Manish who was fighting election for the post of President in the year 199899 whom accused Jitender @ Kalle was supporting opposite Anil. He has testified that accused Jitender @ Kalle was not a student of the college in 198889 but he used to come and indulge in the politics of the student union. The witness has admitted that accused Jitender @ Kalle has his own hotel but he is unable to tell if he owns the hotel and has explained that he used to sit there. According to him, the accused Jitender @ Kalle had threated him twice earlier but he had never filed any complaint against accused Jitender @ Kalle either to the police or to the college authority and has voluntarily explained that he had told the Administrative Officer orally that accused Jitender @ Kalle should not be allowed to enter the college.
(17) In his further crossexamination the witness Sumit Nayyar has deposed that he became friendly with accused Jitender Gulati only because he told him that he was a student in his college. He has admitted that Jitender Gulati was not his classmate either in the school or in the college. The witness has also deposed that he had deliberated over the matter quite a bit after which he had realized that it was only Jitender St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 19 Gulati who knew his house and was a very close friend of accused Jitender @ Kalle and he was the only person who could have shown his house to accused Jitender @ Kalle. According to him, he had seen Jitender Gulati with accused Jitender @ Kalle in Satyawati College. (18) PW5 Yogesh Bhati is a friend of Sumit Nayyar who allegedly witnessed the actual incident taking place. He has deposed that in the year 1999, he was a student of Satyawati College and on 11.3.1999 at about 1:30 AM he was going to the house of his friend Sumit Nayyar in Mukherjee Nagar in order to meet him and was present at a distance of 2025 yards from his house when he heard three gun shots. According to the witness, he saw towards the house of his friend Sumit Nayyar and noticed the accused Jitender @ Kalle (whom the witness has correctly identified in the court) coming out of the house having a pistol in his hand. According to the witness, as he came out he saw a Maruti Zen DL8CA9383 parked in front of the house of Sumit Nayyar and as the gate of the driver side of the car was opened he saw Jitender Gulati alighting from the driving seat and come to the other seat besides the driver. He has testified that accused Jitender Gulati was an old friend of Sumit Nayyar and had also met him six to seven times therefore he knew him quite well. The witness has also deposed that accused Jitender @ Kalle took the driving seat, started the Maruti Car, took a turn and sped away from there which car went towards Hakikat Nagar. He has testified that it had gone by his side and he had hidden himself behind another St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 20 vehicle parked there. According to him, he got perplexed and went towards the house of Sumit where he notice Sumit's father lying in a pool of blood and the brother of Sumit namely Sandeep weeping. The witness has also deposed that he asked him about Sumit on which Sandeep told him that he had gone to a party in Lawrence Road. According to the witness he thereafter went to Lawrence Road in order to inform Sumit about this fact and when reached Lawrence Road he found four to five gypsies parked and the policemen present there did not permit him to enter inside the community center Lawrence Road and he came to know that one Anil Bhadana had been murdered after which he had gone to his place as he had become quite nervous. The witness has testified that on 27.4.2000 SI Anil Kumar had come to him and he accompanied him to Central Jail Tihar where he was made to wait outside whereas SI Anil Kumar went inside and came after sometime and told him that the accused Jitender @ Kalle had refused to take part in the Test Identification Parade. He has also deposed that on 27.4.2000 SI Anil Kumar gave a telephone call to him to come to the court on which he went to Tis Hazari Court where he identified accused Jitender @ Kalle as the same person who was seen by him coming out of the house of Sumit with a pistol on the day of occurrence.
(19) In cross examination by the Ld. Defence Counsel the witness has deposed that his statement was recorded by the police on 5.2.2000. According to him, he did not know Anil Bhadana and had only seen him St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 21 once in the college but had heard about him from Sumit Nayyar. He has testified that knew Janesh but he did not know him at the time of the occurrence. He also did not know Sanjay Sharma, Shailender and Babu Ram. The witness has admitted that he was arrested by the police in a case along with Janesh and Sanjay Sharma. He has also admitted that he was arrested in case FIR No. 292/99 under Section 341/323/147/149/34 IPC, PS Keshav Puram wherein he along with Sanjay Sharma, Janesh, Babu Ram and Shailender were facing trial. He has admitted that Bhati and Bhadana are two sects of Gujjar community. He has further deposed that his father is retired from Delhi Police and had remained posted in Police Post Ashok Vihar. The witness has also deposed that on the next day he had gone to the house of Sumit Nayyar where a number of persons were present outside the house but Sumit Nayyar was not there. According to him, he had handed over the key of the scooter to one of his relative but he is not aware of his name. He has testified that he did not tell the police that he had seen the occurrence because he was very much nervous. The witness has further deposed that he also did not tell his family members about the fact of having seen this occurrence. According to the witness, he also had no talks with Janesh, Sanjay, Raj Kumar Bhati and other about the aforesaid incident. The witness has also testified that he had gone to the college only for the purposes of filling up form for obtaining roll number and his statement was recorded after he had filled up the aforesaid form. According to him, he had no talks in the college St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 22 with any person with regard to the above incident.
(20) The witness has further deposed that on 26/27th January, 2000 he had a telephonic talk with Sumit who had told him that the persons who had committed the murder of his father had been arrested by the police. He has also deposed that earlier he had not told anybody about the incident as he was too afraid to talk about the same but after Sumit told him about the arrest of the accused as stated by him above, he gained confidence and gave a telephonic call to Sumit on 5th February, 2000 informing him that he had seen the person who had come out of his house holding a pistol in his hand. According to the witness, Sumit called him to his house on which he went there. The witness has testified that on being asked as to why he had not disclosed the facts earlier, he told him that he had become too much afraid and thereafter Sumit then took him to Police Station Mukherjee Nagar at about 1:30 PM where SI Anil Kumar met him at the police station and recorded his statement. He has also deposed that his statement was not recorded on 11.3.1999. He has denied having made any statement Ex.PW5/DA. According to him, his house is at a distance of about three kilometers from the house of Sumit. He has also deposed that he had come to the house of Sumit from Batra Cinema after watching a movie at the theater on foot and the house of Sumit might be about half kilometer from Batra Cinema. The witness has further deposed that it might have taken about 10/15 minutes to reach the house of Sumit where he had gone to meet Sumit and had no particular St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 23 work with him. He had been visiting his house earlier also at around the said time. According to the witness, he did not know the name of accused Jitender @ Kalle when he saw him for the first time at the place of incident and came to know his name for the first time when it was disclosed to him by SI Anil Kumar in the court. He has also testified that he did not see accused Jitender @ Kalle again after having identified him in the court. According to the witness, the accused was present at the gate of the court room when a constable had brought accused Jitender @ Kalle. He has deposed that he had visited the house of Sumit once or twice after the death of his father but he had not disclosed the facts of having seen the incident even at that time. The witness has testified that he saw the accused Jitender @ Kalle coming out of the house of Sumit when he was negotiating the steps which steps are outside the house and are not near the iron channel. According to him, there is a varandah after the steps and an iron gate between the steps and the varandah and the channel is situated after the varandah. He has further deposed that the iron gate and the channel both were open at the time of his visit and the father of Sumit was lying inside the channel but with his legs towards the varandah. He has testified that Sandeep Nayyar was trying to lift his father from the ground when he went there and had taken him in his lap. According to the witness, he (Sandeep) was raising an alarm along with his mother but nobody else came there at that time. The witness has also deposed that Sandeep had given him the key of the scooter before he had St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 24 taken his father in his lap which key was brought by his mother. According to him, blood had come out of the wound on the chest of the deceased and the pant worn by Sandeep had been stained with blood. He has further deposed that he had hidden himself behind a car parked there. The witness has further deposed that he had stated in his statement to the police that he had seen accused Jitender @ Kalle at the steps when he saw him for the first time. However, when confronted with his statement Ex.PW5/DB wherein the aforesaid fact was not so recorded. He has testified that he had not told the police that Sandeep had stated "yogesh dekho ye kiya ho gaya hai". According to the witness, he also did not tell the police that when he reached Community Center, Lawrence Road there were four/five gypsies parked there and police did not allow me to go inside the community center.
(21) In his further crossexamination the witness Yogesh Bhati has deposed that he knew Sumit since 1996 and in the year 1997 Sumit had introduced him to accused Jitender Gulati in his house. According to him, he had never gone to the house of Jitender Gulati nor he visited his shop. The witness has also deposed that he had no personal friendship and visiting terms with accused Jitender Gulati and he knew him only through Sumit Nayyar. He has denied the suggestion that he does not know accused Jitender Gulati nor he had seen him on the spot and had made a false statement.
St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 25 (22) PW7 Tirath Raj Singh is a Draftsman who has deposed that on 14.3.99, he was summoned by the police on which he had gone to house no. 2718, Mukherjee Nagar where at the pointing out of Sandeep Nayyar he took rough notes and measurements and on the basis of said rough notice and measurement he prepared the scaled site plan which is Ex.PW7/A. He has been crossexamined by the Ld. Defence Counsels but nothing much has come out of the same.
(23) PW16 Paramjit Singh was the owner of Bahadurgarh Gun House who proved the record pertaining to sale of a pistol along with cartridges to accused Jitender @ Kalle against the Arms license issued to him by the ADMJammu. He has deposed that the police had seized photocopies of license no. 555/JDM/94 in respect of Jitender Kumar. He has proved that the police has taken in to possession the photocopy of sale register page no.39 dated 31.7.96 and (3) photocopy of sale register page no.12 dated 22.4.98 vide memo Ex.PW16/A which photocopy of licence is Ex.X1; copy of sale register dated 31.7.96 which is Ex.X2 and copy of sale register dated 22.4.98 which is Ex.X3. According to him, he had also handed over a cash memo (Photocopy) dated 22.4.98 Ex. X4 to the police vide which a pistol bearing no. 621251 make Czechoslovakia was sold to accused Jitender @ Kalle along with 50 cartridges of .32 bore. He has testified accused Jitender @ Kalle was not keeping beard at that time. He has also deposed that the original record was seized by Police Station St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 26 Bahadurgarh in connection with some other case. He has correctly identified the pistol which is Ex.PXX; the magazine which is Ex.PX1 and three live cartridges which are Ex.PX, X2 to 4. (24) In his cross examination the witness has deposed that the police might have come to him after five days when this case was reported in the paper. He is unable to tell if on their first visit the police had brought the aforesaid pistol to him or not. The witness has deposed that he had checked up the record after the pistol was shown to him. (25) He was accordingly declared hostile by Ld. Addl. PP and in his cross examination he has deposed that he had checked up his record after the pistol was shown to him. He has denied the suggestion that on 2.2.2000 pistol Ex.PXX was not shown to him as it had not been recovered by then. He does not remember if the police had recorded his statement on the day memo Ex.PW16/A was prepared nor is he aware is he had stated that pistol Ex.PXX and the magazine were shown to him. However, when confronted with his statement Ex.PW16/B the said fact was found recorded.
Witnesses of Medical Record:
(26) PW8 Dr. C. B. Dabas is the Autopsy Surgeon who had carried out the postmortem examination and had also recovered three bullets from inside the dead body of Kimti Lal Nayyar. He has deposed that on 11.3.99 he had conducted Postmortem examination on the body of St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 27 the deceased Kimti Lal Nayyar which body was brought by Ct. Vinod Kumar of Police Station Mukherjee Nagar along with inquest papers and request for Postmortem Examination by the Investigating Officer.
According to him, the body was identified by Sandeep Nayyar and Sumit Nayyar and there was alleged history of being shot at by someone on 11.3.99 at about 12:30 night and was brought to Hospital by PCR and was declared 'brought dead on 11.3.99 at 1:20 AM. He has proved that on external examination he found following injures on the person of the deceased:
1. One fire arm entry wound 0.5 x 0.5 cm round in shape surrounded by a collar of abrasion in an area of 0.7 x 0.7 cm. The tattooing was present around the wound. There was not evidence of blackening and singeing. Wound was located on right side front of chest.
2. One firearm entry wound 0.5 x 0.5 cm round in shape surrounded by a collar of abrasion in area of 0.8 x 0.8 cm. There was no evidence of blackening singeing and tattooing around the wound.
Wound was located on right side front of chest outer to injury No.1.
3. One firearm entry wound 1 x 0.5cm irregular in shape surrounded by a collar of abrasion in an area of1.2 x 0.7cm there was no evidence of blackening, singeing, tattooing around the wound. The wound was located left side front of chest in upper part. St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 28
4. One firearm entry wound 0.5 x 0.5 cm round in shape surrounded by a collar of abrasion in an area of .7 x .7 cm. There was no evidence of blackening, singeing, tattooing around the wound. The wound was located on back of left hand in the web space of thumb and index finger. The wound was communicating another wound (exit wound) on the palmer surface of left hand i.e. injury No. 5.
5. The one firearm exit wound as described above measuring 1 x 0.2 cm irregular in shape with everted edges and communicating with injury No. 4.
(27) The witness has proved that as per the track of the injuries, the Injury No.1 entered the chest cavity through right first intercostal space then perforated through right lung through an through and then ended in sixth intercostal muscle on the back where one copper coated bullet was found lodged which bullet was removed and preserved; Injury No. 2 entered the chest cavity fourth right intercostal space and perforated through lower lob of right lung and ended in sixth intercoastal space and back of chest about 3 cm outer to culmination of injury No. 1. Here a one copper coated bullet was found lodged which was removed and preserved. Injury No. 3 entered the chest cavity through left first intercoastal space and then penetrated into mediastinum and pericardial sac and then through right atrium and ventrical ended in fifth intercoastal space on left side back of chest where one copper coated bullet was found lodged St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 29 which was removed and preserved.
(28) He has deposed that on internal examination paritonium was intact, stomach contained about 200 grams of semidigested food material and the internal abdominal organs were pale and intact; the pelvis, neck structures, spinal column and head and brain were intact; plural cavity was full of blood. There was effusion of blood along with track of the injuries as described above. According to him, the clothes of the deceased (Payjama and underwear only) and blood sample of the deceased and three copper coated bullets recovered from the body of the deceased as detailed above were sealed separately with seals of FM HRH and were handed over to the Investigating Officer. He has proved that the death in this case was due to haemorrahge and shock consequent to injuries described above; all the injuries were cased by ammunition discharge of rifled firearm; Injury No.1 was caused from within range of powder blast, injury No.2, 3 and 4 were caused from distant range and the Injury No. 1,2 and 3 are collectively sufficient to cause death in the ordinary course of nature. He has also proved that all the injuries were antemortem in nature and time since death was approximately 13 to 14 hours. The witness has also proved his detailed report in this regard which is Ex.PW8/A which is in his handwriting. (29) In cross examination by the Ld. Defence Counsel the witness has deposed that the direction of the injury no.1 and 2 was from front to St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 30 back downwards and the injury no.3 appeared to have been fired from left to right downwards and backward and Injury no.4 had entered from the back of the hand and had exited from the front. He is unable to tell if different weapons were used in inflicting these injuries. According to the witness, he had considered the size of the injuries while giving the opinion. He has explained that the powdered blast range can be described as a range roughly within 60 cm. He has also deposed that he did not find any black powder on any of the wounds, however, there was tattooing around the wounds which is caused by the unburnt gun powder entering into the skin of the deceased. He has testified that the injury no. 2, 3 & 4 appear to have been caused beyond the range of 60 cm.
(30) PW19A (wrongly typed as PW19 whereas it should be read as PW19A) Dr. Rakesh Dogra from Hindu Rao Hospital has proved the MLC of the deceased Kimti Lal Nayyar which is Ex.PW19A/A which was prepared by Dr. Rajiv Dhingra according to which MLC the injured Kimti Lal Nayyar was brought to the hospital on 11.3.199 at about 1:20 AM and after examination Dr. Rajiv Dhingra declared him as 'brought dead'. He has not been crossexamined by the Ld. Defence Counsels despite opportunity.
Forensic Expert (Ballistic):
(31) PW22 Sh. A. R. Arora Senior Scientific Officer, Lodhi Road, Delhi has deposed that on 18.4.2000 six parcels were received in St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 31 CFSL, Lodhi Road. According to him, Parcel No.1 had five seals of JP and contained three 7.65 mm fired cartridge cases marked by him as C1 to C3; Parcel no.2 had three seals of FM HRH and contained three 7.65 mm fired bullets marked by him as DC1 to DC3. He has deposed that the Parcel no. 2 to 5 were sealed with the seals of FM HRH and the parcel no. 6 was sealed with the seal of HRH. He has proved that the seals over parcels were intact and tallied with the specimen seals received in this case and four parcels no. 3 to 6 were examined in Biology/Serology Division of CFSL for examination of blood/blood grouping. He has testified that three 7.65 mm fired cartridge cases marked C1 to C3 and three 7.65 mm fired bullets marked BC1 to BC3 contained in parcel no.
1 and 2 are required to be compared with 7.65 mm pistol marked W1 contained in parcel no. 1 received earlier on 25.2.2000 in case FIR No. 67/99, under Section 302/307/336 IPC and 25/54 of Arms. Act, Keshav Puram Distt. North West mentioned in his report no CFSL2000/F121 dt. 24.4.2000. He has proved the result of examination that:
(32) Three 7.65 mm cartridge cases marked C1 to C3 contained in parcel no.1 and three 7.65 mm bullets marked BC1 to BC3 contained in parcel no. 2 had been fired from 7.65 mm pistol marked W1 contained in parcel no.1 received earlier on 25.2.2000 in case FIR no. 67/99, under Section 302/307/336 IPC and 25/54 of Arms Act, Police Station Keshav Puram district NorthWest and mentioned in his report CFSL No. 2000 F121 dated 24.4.2000.
St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 32 (33) The witness has further proved that after examination in Ballistic Division the above said two parcels were resealed with the seal of ARA SSOII (Ball), CFSL, CBI, New Delhi and his detailed report of examination is Ex.PW22/A. (34) In his cross examination by the Ld. Defence Counsel he has deposed that he had taken the photographs of the cartridges and the bullet for comparison and in all two photographs one of the cartridge case and one of the bullet were taken. He has further deposed that striations were generally found on country made pistol but since this was a standard weapon striations are found between the two lands and groups. He has testified that he had tallied the striation marks found between land and groups and no striation marks are found on the cartridge case in the case of such a weapon. He has denied the suggestion that striation marks appear on the cartridge case as well due to the impact of the firing. The witness has further deposed that no photograph was taken as there was no mark on the body of the empty shell except the percussion cap and he had taken one photograph of the percussion cap. According to him, two marks i.e. one firing pin impression and the other ejector mark were found on the percussion cap. The witness has also deposed that he had not taken magnified print in order to measure the distance between the two marks nor he measured the depth of the impression of the firing pin.
He has further deposed that he has not measured the firing pin from the edge of the cap as regard the distance. The witness has testified that all St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 33 standard weapons contained 6/6 land and groove RHS and LHS. According to him, he had not measured the length and breadth and height of the grooves but he had conducted microscope examination of the grooves. He has proved the photographs of the grooves which were taken by him which photographs are Ex.PW33/DA & Ex.PW33/DB of bullet and percussion cap respectively. He has testified that are more than ten striation marks between two grooves and one land in photograph Ex.PW33/DA. He has denied the suggestion that he has not properly examined the bullet / cartridges and the pistol in question. Police / Official Witnesses:
(35) PW1 HC Dharambir is the duty officer who has deposed that on 11.3.1999 he was posted in Police Station Mukherjee and was working as Duty Officer from 1:00 AM to 9:00 AM. According to him, at 12.50 AM he received a call from the PCR and was informed that a person had been shot at House No. 2718, Mukherjee Nagar, Near Batra Cinema near a Government School on which he recorded the said information vide DD No. 31A copy of which is Ex.PW1/A. The witness has further deposed that the said DD was assigned to Addl. SHO, Insp.
Jagdish Prashad who along with Insp. Jagptal Singh, SI Dinesh Chand and Const. Girish Kumar, Const. Shish Pal with another constable had departed from the police station immediately. He has proved that at 3.05AM he had received a rukka through Const. Shish Pal which rukka St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 34 was sent by Inspector Jagdish Prasad, on the basis of which he recorded FIR No. 68/99, under Section 302 IPC with Section 25 and 27 of the Arms Act, copy of which FIR is Ex.PW1/B. He has also proved having recorded DD No. 33 A and 34 A in respect of the FIR, copies of which are Ex.PW1/C and Ex.PW1/D. The witness has testified that he had sent special report through Const. Bhpender and had also informed the crime team to reach the spot.
(36) In his cross examination the witness has deposed that it took about 35/40 minutes in recording the FIR and DD numbers 33A and 34 A. According to him, the special report was sent at 3.40 AM and the envelope in which the special report was sent, was sealed by the SHO. The witness has testified that he had recorded the departure of Const. Bhopender who had returned after delivering special report at about 7:00 AM. He has also deposed that the crime team had first reached the police station where after they had gone to the spot accompanied by a police constable.
(37) PW6 HC Bal Kishan has deposed on 7.2.2000, he was posted in Police Staiton Mukherjee Nagar and on that day he along with SI Anil Kumar, Ct. Ravinder had come to the court of ACMM, Tis Hazari Delhi where SI Anil Kumar had arrested accused Jitender @ Kalle. He has not been crossexamined by the Ld. Defence Counsels despite opportunity in this regard.
St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 35 (38) PW9 Ct. Ashok Kumar had taken the exhibits of the present case to CFSL on 18th April, 2000. His deposition however initially remained deferred for want of Road Certificate vide which he took various exhibits to CFSL but later on this witness was again examined as PW27 and wherein he again reiterated that he had taken the sealed pullanda to CFSL. His deposition on this instance was concluded. (39) PW10 Ms. Anju Bajaj Chandna had carried out the TIP proceedings of accused Jitender @ Kalle wherein he had refused to participate. She deposed that on 11.2.200 she reached Central Jail, Tihar No.4 for conducting TIP proceedings where accused Jitender @ Kalle was produced. According to the witness, she asked the accused whether he wanted to join the TIP but he refused on the ground that he had already been shown to many persons. She has proved the application of the Investigating Officer for conducting the TIP of accused which is Ex.PW10/A; her order on the application which is Ex.PW10/B; refusal of the accused which is Ex.PW10/C; certificate of TIP proceedings which is Ex.PW10/D and the TIP proceedings which are Ex.PW10/E. This witness has not been crossexamined by the Ld. Defence Counsel despite opportunity given.
(40) PW11 Ct. Sushil Kumar is a formal witness being the Crime Team Photographer who has deposed that on the night intervening 10th and 11th March 1999, he was posted at Police Station Saraswati Vihar (Photo Section of North West District). According to him, at the instance St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 36 of the Investigating Officer, he had gone to H. No. 2718 Mukherjee Nagar and had taken six photographs of the place of occurrence. He has testified that out of the six three were washed out and three could be developed into positive prints. He has proved that the negatives which are Ex.PW11/1 to Ex.PW11/3 and the positive prints are Ex.PW11/4 to Ex.PW11/6.
(41) In his cross examination the witness has deposed that he had reached the spot at 3:00 AM and two police men were present at that time one was a motorcycle rider who had brought him to the spot and the other officer was already present there. According to the witness he took the photographs on the asking of the officers. He has testified that the house was constructed on the ground floor only and he had only taken photographs of the ground floor. The witness has also deposed that he had taken photographs in the verandah only and blood in large quantity was scattered in the verandah.
(42) PW12 Ct. Shish Pal has deposed that on the night intervening 10th and 11th March 1999, he was posted at Police Station Mukherjee Nagar. According to the witness, DD No. 31A was received on which he along with the SHO and other staff had gone to H. No. 2718, Mukherjee Nagar where blood was lying on the floor near the grill (gate) inside the said house and three empty cartridges were also lying there. He has testified that SI Dinesh Chand and Ct. Lal Chand were left at the spot and he along with SHO and Addl. SHO had gone to Hindu Rao St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 37 Hospital. He has further deposed that after examining the dead body the SHO, the Addl. SHO and he came back to the spot along with Sandeep Nayyar, the son of the deceased where Addl. SHO recorded the statement of Sandeep Nayyar and prepared a rukka. The witness has proved that he went to the Police Station and got this case registered after which he returned to the spot along with the copy of the FIR and Asal Tehrir and handed it over to the Addl. SHO.
(43) In his cross examination the witness has deposed that his statement was recorded on the spot after he had taken the rukka. According to the witness, he had gone to the spot with the Investigating Officer and had also gone to the hospital. He has also deposed that he had taken the rukka after 1520 minutes of their reaching the spot from the hospital. According to him, they had gone to the hospital in a police Gypsy and they might have stayed for about five minutes on the spot before they left for the hospital. He has testified that about 1012 persons had collected there and the SHO/Addl. SHO had made inquiries but he was standing outside when the Investigating Officer was conducting the proceedings. He has further deposed that he was only asked to take the rukka to the police station.
(44) PW13 SI Dinesh Chand has deposed that on the night intervening 10th/11th march 1999, he was posted at Police Station Mukherjee Nagar and at 12:50 AM DD No. 31A was received, on which he had accompanied the SHO, Addl. SHO and the other staff to H. No. St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 38 2718, Mukherjee Nagar near Govt. School where they found blood lying inside the house near the grill gate and there were three empty cartridges lying with marking 7.65. According to the witness he along with Ct. Lal Chand were left at the spot to preserve the same whereas rest of the police party had gone to Hindu Rao Hospital and after 1½ 2 hours the police party then returned from the hospital. He has proved that Inspector Jagdish Prasad had taken three empties into his possession and had sealed the with the seal of J.P vide memo Ex.PW13/A. According to him, Inspector Jagdish Prashad prepared a rukka at the spot and sent it through Ct. Satish Pal to the police station at about 2:50 AM. He has proved that Inspector Jagdish Prashad lifted blood from the spot and seized the pullanda vide memo Ex.PW13/B. He has further deposed that the seal after use was handed over to him. The witness has correctly identified the case property i.e. three empty cartridges which are Ex.P1 to Ex.P3. (45) In his cross examination the witness has deposed that he was called by the SHO and had gone to the spot in a police gypsy which police gypsy was parked at a distance of about 1015 feet away from the spot. According to the witness, there is a park in front of the said house and there is a main gate of iron with a boundary wall in the said house and after opening the said gate, one comes to the grill gate in order to gain entry in the house which grill gate is at a distance of 5/6 feet from the main gate. He has testified that the number of the house was engraved or written and the blood was lying around 11 ½ feet around the St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 39 grill gate. The witness has testified that they found the family members of the deceased at the wooden gate and blood was lying outside the grill gate. He has also deposed that blood had been lifted from outside the grill gate which was placed in a bottle. According to the witness, he had seen the empties Ex.PW1/1 to 3 at the time they were seized by the Investigating Officer. He has testified that in his presence statements of a number of police witnesses were recorded by the Investigating Officer including that of Ct. Shish Pal. He has also deposed that he had signed the recovery memo first of all and the writing work was done near the main gate.
(46) PW14 HC Harvinder Singh is the duty officer Police Station Karol Bagh who had recorded FIR No. 125/1996 under Section 279/337 IPC which was later on converted to one under Section 307 IPC read with Section 25/27 of Arms Act, 1959. He has deposed that on the intervening night of 89.3.1996 an information was received from Sunder Lal Jain Hospital about the admission of one Anil Kumar in an injured condition in the hospital. Pursuant to which DD No. 28A was recorded on this information which was entrusted to SI Ram Sunder. According to him, at 4:15 AM he received a rukka through Ct. Virender which had been sent by SI Ram Sunder. He has deposed that on the basis of the rukka, he recorded FIR No. 125/96 under Section 279/337 IPC copy of which is Ex.PW14/A. He has further deposed that in the said case four accused were arrested including the accused Jitender @ Kalle. This St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 40 witness has not been crossexamined by the Ld. Defence Counsels despite opportunity given.
(47) PW15 Surender Singh Senior Assistant, Judicial Record from the office of District Magistrate Jammu has proved the letter dated 4.4.2000 bearing No.131/JDM/2000 which is Ex.PW15/A issued by ADMJammu wherein it was stated that an Arms license was issued to accused Jitender @ Kalle. He has not been crossexamined by the Ld. Defence Counsels despite opportunity given.
(48) PW17 Ct. Surender Singh had accompanied SI Ram Avtar, ASI Virender Tyagi at the time of arrest of accused Jitender @ Kalle and later on when recovery of weapon of offence was effected. He has deposed that on 23.1.2000 he was posted in the Homicide Section, Crime Branch, Adarsh Nagar and on that day he along with SI Ram Avatar and ASI Virender Tyagi and Ct. Praveen were present in their office when an information was received by SI Ram Avtar that an accused wanted in case FIR No. 67/99 Police Station Keshav Puram would come to Narayana Bus Stop at about 4 PM in a Mudrika in order to meet his sister on which SI Ram Avatar formed a raiding party and reached Narayana Bus stop. According to him, SI Ram Avtar had asked a number of persons to join the raid but they all refused and at about 4:00 PM a bus Mudirka under DTC operation came at the bus stop. He has also deposed that accused Jitender @ Kalle was apprehended by them at the pointing out of the informer and the accused made a disclosure statement Ex.PW17/A and St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 41 his personal search was conducted vide memo Ex.PW17/B. He has testified that the accused was taken on police remand and during his police custody remand on 4.2.2000 the accused had led them to Haiderpur behind a petrol pump from where he got recovered a pistol from underneath the earth near a Beri tree. The witness has also deposed that the pistol was of .32 bore and was wrapped in polythene bag which polythene bag also contained a magazine which had six live cartridges. According to him the earth was dug upto about 10/11 inches and then the polythene bag containing the pistol and the magazine/live cartridges were recovered. He has testified that SI Ram Avtar had dug the earth with a Khurpi and the words Czechoslovakia were engraved on the pistol but he does not remember the number engraved on the pistol. He has proved that the pistol was sealed into a parcel with the seal of I.S.S. vide recovery memo Ex.PW9/A. The witness has also proved that on 25.2.2000 he had taken the sealed parcels from Police Station Keshavpuram to CGO Complex Lodhi Colony. He has also deposed that during the course of police custody remand the accused had taken them to Bahadurgarh Gun House from where SI Ram Avtar had seized the photocopies of the sales register vide memo Ex.PW16/A. (49) He has identified the case property i.e. pistol Ex.PXX which was got recovered by the accused; the magazine Ex.PXX1, three live cartridges PXX2 to 4 and three fired cartridges which are Ex.PXX5 to St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 42 Ex.PXX7.
(50) In his cross examination the witness has deposed that this information was received at about 11/12 noon and the informer had come to SI Ram Avatar in their presence who had given the information in the presence of all of them. According to the witness, the Investigating Officer recorded the said information and they started from their office after one to one and a half hour by the official Gypsy. He has also deposed that the gypsy was parked about 200 yards prior to the Bus stop and there is a police booth near the red light which is 300/4000 yards prior to the bus stop. He has further deposed that they had waited at the bus stop for two to two and a half hour and there are shops on the opposite directions of the bus stop and Narayana village on its back. The witness has testified that there are shops on the side of Naryana Village at a distance of about ten yards from the bus stop which bus stop is situated in a busy road. According to him, about five to seven persons might have got down from the bus in which the accused was travelling. He has further deposed that they all apprehended the accused together and the statement of the accused Ex.PW17/A was recorded at the bus stop. According to him, they remained there upto 66:30 PM and statement of all the official witnesses were recorded by SI Ram Avtar. He has also deposed that the local police was not called. He has testified that his statement was recorded on 2.4.2000 and then on 4.4.2000. According to the witness, he remained on the place of recovery for about two hours. St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 43 The witness has further deposed that the statements of all the recovery witnesses were recorded at that place besides that of the accused and the statement of the accused was recorded first at the place of recovery. He has testified that the writing work was done while sitting on the patri nearby the place of the recovery. According to him, the statement of accused was recorded in his presence on 23.1.2000 at the time of his arrest and then on 2.2.2000 at Police Station Adarsh Nagar and on 4.2.000 at the place of recovery. He has denied the suggestion that the pistol was already in their possession and have planted the same. (51) PW18 ASI Virender Tyagi had accompanied SI Ram Avtar and Ct. Surender Singh (PW17) at the time of arrest of accused Jitender @ Kalle and later on when recovery of weapon of offence was effected. He has deposed that on 23.1.2000 he was posted in the Homicide Section, Crime Branch, at Adarsh Nagar and had joined the investigation with SI Ram Avatar in case FIR No. 67/99, PS Keshav Puram. According to him, SI Ram Avtar had received an information that accused Jitender @ Kalle would visit Narayana and would come to Bus stop Narayan by a bus on which he along with SI Ram Avatar, Ct. Pawan Kumar, Ct. Surender and driver Naresh Kumar besides the informer reached bus stop Narayana. He has testified that at about 4:00 PM accused Jitender @ Kalle came there and was apprehended on the pointing out of the informer who identified the accused after which the accused was interrogated and he made a disclosure statement which is Ex.PW18/A. St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 44 The witness has also deposed that the accused had disclosed that he had purchased a pistol from a Gun Shop in Bahadurgarh after which he led them to Bahadur Garh Gun House on 2.2.2000 and they served a notice under Section 160 CrPC for 4.2.2000. According to him, on 4.2.2000 the owner of the Gun House had come to their office in Adarsh Nagar and the accused was shown to him on which the owner had informed that the accused had purchased a pistol from him and had obtained a gun licence. He has also deposed that on 4.2.2000 the accused had made another disclosure statement pursuant to which he then led to a petrol pump in Haiderpur and got recovered a pistol with a Magazine containing six live cartridges placed in a polythene bag. He has further deposed that the polythene bag containing pistol was dug up from underneath the earth near a Beri tree which was situated near the wall of the petrol pump. He has proved that the pistol was got taken out from underneath the earth by SI Ram Avatar by digging about 1011 inches. He has proved the disclosure statement made by the accused on 4.2.2000 which is Ex.PW18/B. He has further proved that the sketch of the pistol along with the cartridges were prepared after which the pistol and the cartridges were sealed into parcels with the seal of ISS and were taken into police possession vide memo Ex.PW18/C. The witness has correctly identified the pistol Ex.PXX, magazine which is Ex.PXX1 and live cartridges which are Ex.PXX2 to 4 which are the same which were recovered at the instance of the accused at the time of the recovery there were six live St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 45 cartridges out of which three have been test fired. According to him, the seal after use was handed over to one Daljit Singh who had joined the police party before the recovery of the pistol.
(52) In cross examination by the Ld. Defence Counsel the witness has deposed that the disclosure statement Ex.PW18/A was recorded at about 10:30 AM and the accused was brought out from the lock up sometime before by SI Ram Avtar and Ct. Pawan and Surender. He has further deposed that SI Ram Avtar scribed the disclosure statement in his room and Paramjit Singh was present at that time. The witness has further dpeosed that before recording the disclosure statement they had made inquiries from Paramjit Singh and his statement under Section 161 CrPC was recorded by SI Ram Avtar. He has testified that the accused was in hand cuffs at the time when his disclosure statement was recorded. According to him, it had taken 1015 minutes in recording the statement. He has further testified that the accused had taken them to Haiderpur directly and they had parked their vehicle at the corner of the park. The witness has also deposed that the accused was in hand cuffs and one one public witness i.e. Daljit Singh had joined the investigations with them who had come of his own on seeing the police party. He has further deposed that the recovery was effected from a distance of 50 yards from the place where they had parked their vehicle which was parked nearby the road. According to the witness, SI Ram Avatar was having a Khurpi with him with which he had dug the earth and had taken Khurpi along St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 46 with him. He has testified that the statement of all the witnesses of recovery were recorded on the spot and the writing work was done by SI Ram Avtar while sitting on the bench. He has denied the suggestion that he had not joined the investigations in this case or that the accused did not make any disclosure statement nor had got recovered any pistol. (53) PW19 SI Ram Avtar had arrested accused Jagdish @ Kalle on the basis of a secret information from bus stand Naraina. He also recorded his alleged disclosure statement and later on effected recovery of his licensed pistol (i.e. the weapon of offence) along with six live cartridges from beneath a tree in DDA Park, Haiderpur. He has deposed that on 23.1.2000 he along with Ct. Surender, Praveen, ASI Vijender Singh was present in the police station in connection with the investigation of this case and they received a secret information that accused Jitender @ Kalle would come to Narayana in order to meet his sister on which they went to bus stop Narayana and conducted Nakabandi. According to him, the accused came there in a bus at about 2:00 PM and the accused was apprehended on the pointing out of the informer after which they interrogated the accused and the accused made a disclosure statement which is Ex.PW18/A. He has testified that the accused had disclosed that he had purchased a pistol from Bahadurgarh Gun House, Bahadurgarh. According to him on 21.2.2000 the owner of Bahadurgarh Gun House had come to their office and produced a photocopy of the gun St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 47 licence and entries made in the relevant register of purchase from his firm. He has proved that he had taken all these papers into his possession vide memo Ex.PW16/A and the papers are Ex.X1, Ex.X2, Ex.X3 and Ex.X4. The witness has further deposed that on 4.2.2000 the accused made another disclosure statement Ex.PW18/A pursuant to which he then led them to a place near petrol pump Haiderpur on which they went there in their own official vehicle and parked the same near the petrol pump. According to the witness one Daljit Singh joined the investigation and thereafter the accused took them to a place in the DDA Park wherein there was a Beri tree outside the wall of the DDA Park and the accused pointed out to a place near the Beri Tree and told him (witness) that the pistol was lying buried there. Thereafter the witness (SI Ram Avtar) dug up that place with the help of Khurpi and took out a white coloured polythene bag which contained a pistol 7.65 bore. According to him on checking he found that the pistol was loaded with six bullets in its magazine. He has testified that the pistol was of Czechoslovakia and he had noted down the number engraved on the pistol in the recovery memo which was prepared by him at the time of seizing it. He has proved having prepared the sketch of the pistol as well as the cartridges which is Ex.PW19/A after which he sealed the pistol and the recovered cartridges into a cloth with the seal of ISS and prepared a recovery memo Ex.PW18/C in this regard.
St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 48 (54) He has correctly identified the case property i.e. pistol which is Ex.PXX; magazine which is Ex.PXX1; three live cartridges which are Ex.PXX2 to 4 and three fired cartridges which are Ex.PXX5 to 7 which were contained in a white polythene bag Ex.PXX8. He has also deposed that he gave information to Police Station Mukherjee Nagar and the accused was produced in the Court on 5.2.200 at the end of his Police Custody Remand.
(55) In his cross examination by the Ld. Defence Counsel the witness has deposed that he remained posted in Police Station Ashok Vihar from 1990 to 1993. He is not known to Hari Ram the father of the deceased Anil Badana. According to the witness, Sanjay Sharma is his son but he is not aware if Anil Badana was also his friend. The witness has testified that his son was studying in Satyawati College and had attended the party in which the present incident had taken place. He has also deposed that as per the instructions of the DCP Crime a person from the Anti Homicide Squad visited the scene of crime on the day of the incident in case FIR No. 67/99, Police Station Keshav Puram and he had visited the spot being posted in Anti Homicide Squad. He has admitted that his son Sanjay Sharma has been cited as a witness in case FIR No. 67/99 but states that he did not interrogate him during the course of investigation. He has also admitted that his sons are doing the business the molding machines and has voluntarily explained that they were doing business at B68/2, WPI which premises belong to Balbir Prasad Gupta. St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 49 The witness has testified that neither he nor his sons ever remained tenants under Hari Ram. He has denied he suggestion that he had purchased a car bearing No. UP78E4523 Maruti Esteem of Blue Colour from the family of Anuj. According to the witness, he knew Suresh brother of accused Jitender as he was having a shop in the area of Ashok Vihar who was a BC of Police Station.
(56) The witness has testified that he had gone to the spot on the day of incident at about 4:00 AM after message had been received from the Crime Branch. The witness has further deposed that he remained there for 10 to 15 minutes and one police constable was present there. According to the witness, the spot was on the North East side and he had seen marks on the ground where empty cartridges had been found by the police, however, no articles were lying there as the police had already seized them. The witness has testified that he did not notice any blood nearby the spot and from the spot he came back to his office. The witness has further deposed that from that day onwards he did not take part in the investigation of this case till the investigation was officially made over to him. He has further deposed that his son had told him that accused Jitender was on strained relations with deceased Anil and that the accused had ran away from the spot after firing upon the deceased. (57) He has also deposed that they had received information about the accused at about 11 to 11:30 AM in the office and recorded this information in the case diary and reached Naraina Bus Stop at about St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 50 12:30 Noon and had waited for one & a half hour. According to him, they had parked the Gypsy at a distance of 30/40 yards prior to the bus stop away from the main road and 20/25 buses might have come before the bus in which the accused came. The witness has testified that he was present at a distance of 10 to 12 yards from the bus stop and the informer was with him. According to him, he interrogated the accused nearby the bus stop and recorded his disclosure statement by sitting on a bench which was brought by some person from a nearby shop. He has testified that the entire writing work was done while sitting on the bench and it took about threefour hours there. The witness has further deposed that he had given information about the arrest of the accused to his senior officers by telephone from a Naraina STD booth which was at a distance of about 20 yards from that place. According to him, he did not handcuff the accused and had taken his personal search. He has further deposed that a sum of Rs.400/ something and a Nepal currency note was recovered from the personal search of the accused. The witness has testified that he had reached office in Adarsh Nagar at about 8:00 PM where senior officers were present and he produced the accused to them. According to the witness, accused had made three disclosure statements before him. (58) He has also testified that on 25.8.99 they had gone to Meerut as well as Mujaffar Nagar and had gone to Bahadurgarh on 25.8.1999. The witness has further deposed the accused remained in police custody from 24.8.99 to 5.9.99 and during this period they had not gone to any St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 51 other place. He has also deposed that the last disclosure statement was recorded by him at about 11:00 AM on 5.9.1999 in his office in his room in the presence of ASI Vijender Tyagi, Ct. Surender and Parveen were present there but no public persons was present. He has denied the suggestion that the seal does not belong to him or that he sealed the pistol in the police station and had used a seal of police official of the police station. He has further denied the suggestion that accused Jitender did not make any disclosure statement nor got recovered any pistol or cartridges or that pistol and cartridges were already in possession of the police. The witness has also denied the suggestion that the police had been waiting for the arrest of the accused and that they had later on sent the cartridges/pistol and the bullet recovered from the dead body in CFSL for comparison. He has further denied that the bullet recovered from the dead body was tampered with at the police station and thereafter was sent to the CFSL along with these cartridges.
(59) According to PW18 SI Ram Avtar they had reached the petrol pump at about 2:00 PM and Daljit Singh was present near the petrol pump and had told them that he had come to take diesel. He has further deposed that the place from where the recovery was effected was not visible from the place where they parked the Gypsy. The witness has also deposed that the wall of the park was at a distance of 20 yards from the main road and the wall was of the height of four to four & a half inch. He has testified that he had asked the petrol pump attendants to join St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 52 investigation but they had refused. According to him, the accused was in handcuffs and had taken them to the Beri Tree and had then pointed out to the place where he had buried the pistol. He has testified that he had dug about ten inches into the ground before making the recovery. According to him, the writing work was done at that place while sitting on a cemented platform near the place of recovery and had recorded statements of ASI Vijender Tyagi, Ct. Praveen, Surender and Daljit Singh after which they went to Police Station Keshavpuram and deposited the sealed parcels with the Malkhana Moharar. He has denied the suggestion that since the deceased Anil Badana was a friend of his son, he himself taken up the investigations of this case due to which reason he had not done a fair investigations in this case.
(60) PW20 Ct. Mukesh Kumar was the duty constable at Hindu Rao Hospital who had given the information to police station Mukherjee Nagar about admission of Kimti Lal Nayyar on the night of incident. He has proved having collected clothes of deceased and handed them over to the Investigating Officer who seized the same vide memo Ex.PW20/A. (61) In his cross examination by the Ld. Defence Counsel the witness has deposed the police had reached the hospital after about half an hour and he had handed over the parcel to the Investigating Officer in the emergency ward.
(62) PW21 HC Ram Diya was the MHC(M) of Police Station Ashok Vihar. He has deposed that he used to maintain record regarding St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 53 the arms and ammunition including license which are issued to the various persons residing in the jurisdiction of the police station. He has further deposed that accused Jitender @ Kalle had not got registered his licensed weapon in police station Ashok Vihar despite the fact that he was a resident of the area of Police Station Ashok Vihar as was required under the Rules. He has been crossexamined by the Ld. Defence Counsels but nothing much has come out of the same.
(63) PW23 SI Anil Kumar had taken over the investigation of the case on 5.2.2000 after Inspector Jagdish Parshad was transferred. He has proved having recorded the statement of Yogesh Bhati and had formally arrested accused Jitender @ Kalle on 7th February, 2000 as he was already arrested by SI Ram Avtar of Homicide Section, Crime Branch in case FIR No. 67/1999. According to the witness he also got TIP of accused Jagdish @ Kalle conducted but the accused refused to take part in the TIP and later on got the exhibits of the present case sent to CFSL. He has also proved that after completion of investigations he filed the charge sheet against the accused Jitender @ Kalle. He has been crossexamined by the Ld. Defence Counsels but nothing much has come out of the same. (64) PW24 Inspector Jagdish Parshad is the Investigating Officer of the present case who had deposed that on the night intervening of 1011.3.99 he was posted at Police Station Mukherji Nagar as Addl. SHO and on that day he received copy of DD No. 31A which is Ex.PW1/A on which he visited H. No. 2718, Dr. Mukherjee Nagar, Delhi St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 54 along with SI Dinesh and Ct. Sheeshpal and some other Constables. He has further deposed that the injured was shifted to the hospital and lot of blood was lying inside the grill gate of the said house and three empty cartridges were lying in the courtyard outside the grill gate. According to him, SI Dinesh and some constables were left by him at the spot after which he proceeded for HRH where he received the MLC of Kimti Lal Nayyar, wherein he was declared brought dead. He has testified that Sandeep Kumar Nayyar son of deceased was present in hospital and he recorded his statement vide Ex.PW2/A on which he made an endorsement vide Ex.PW24/A and sent Ct. Sheeshpal with rukka to the Police Station for registration of FIR. He has proved that he got the site inspected from crime team, got it photographed and thereafter prepared the site plan at the instance of Sandeep Nayyar which is Ex.PW24/B. He has proved having lifted blood, empty cartridges, earth control etc. from the place of incident and seized the same. According to him, the blood was lifted by the cotton and taken in a vial and sealed with the seal of JP after which the seizure memo Ex.PW13/B was prepared. He has proved that the sketch of the the empty cartridges was prepared vide Ex.PW21/C and were seized vide memo Ex.PW13/A. The witness has also proved having conducted the inquest proceedings i.e. having prepared memo of facts which are Ex.PW24/C and necessary forms were filled in which are Ex.PW24/D. He has testified that the dead body was sent for St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 55 postmortem to mortuary, HRH vide application Ex.PW24/E and the dead body identification statements were recorded which are Ex.PW2/B and Ex.PW4/A. The witness has also deposed that after the postmortem the dead body was handed over to its legal heirs and he recorded the statements of the witnesses. He has proved having got prepared the scaled site plan which is Ex.PW7/A. The witness has testified that accused Jitender Pal Gulati was arrested by him vide personal search memo which is Ex.PW24/F; the body inspection memo which is Ex.PW24/G after which he recorded the disclosure statement of accused Jitender Pal Gulati vide Ex.PW24/H. He has proved that the accused pointed out to the place of incident vide memo Ex.PW24/I. (65) He has correctly identified the accused Jitender Gulati in the Court and also identified the case property i.e. three empties of cartridges which are Ex.P1 to 3.
(66) In his cross examination by the Ld. Defence Counsel the witness has deposed that on 11.3.99 he recorded the statements of Sandeep Nayyar, SI Dinesh, Ct. Shishpal, Ct. Virender and some other witnesses including public witnesses. According to him, he did not record the statement of Yogesh Bhati. He is unable to tell as to who had recorded the statement of Yogesh Bhati which is Ex.PW25/DA. After seeing the case diary dated 11.3.99, the witness stated that on that day he recorded the statements of Sandip Nayyar, SI Dinesh, Ct. Vinod Kumar, St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 56 Sumit Nayyar, Ct. Shishipal and Ct. Bhupinder. According to him, no recovery was effected in pursuance to the disclosure statement of accused Jitender Gulati. The witness has further deposed that on 3.4.1999 the bail application of accused Jitender Gulati was listed before the Court. He has admitted that he had stated before the Court that except the disclosure statement dated 30.3.1999 there is no other evidence against the accused Jitender Gulati.
(67) He has further deposed that when he reached the spot of incident there were about 1015 persons there but he did not record the names and addresses of the said persons. According to the witness he recorded the statement of Sandeep Nayyar in the hospital itself. He has testified that when he reached the spot the officials of the crime branch including photographers were present there. He does not remember whether the dog squad was present there.
(68) PW25 SI Ram Sunder has deposed that in the year 1996 he was posted at Police Station Model Town and on 9.3.1996 on receipt of DD No. 31/A, he went to Sunder Lal Jain Hospital where he found the injured Anil Badana unfit for statement. According to the witness, after going through the contents of DD, he endorsed the said DD and got registered FIR No. 125/96 under Section 279/337 IPC PS Model Town. He has testified that he came to know that the said case in fact was not of rash and negligent driving but the victim was stabbed by associate of accused Jitender @ Kalle but was admitted in the hospital by accused St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 57 Jitender stating to be the case of accident. According to the witness, when Anil was declared fit for statement he recorded the statement of Anil and the case was converted from one u/s 279/337 IPC to u/s 307/34 IPC and 25 Arms Act. He has further deposed that later on he came to known that injured Anil Badana was killed by accused Jitender. (69) In his crossexamination the witness has deposed that he is not aware whether the accused Jitender had been acquitted on 13.2.2001 in FIR No. 125/06, Police Station Model Town.
(70) PW26 Ct. Bhupinder is the Special Messenger who had taken the copy of the FIR to the area Metropolitan Magistrate and to the senior officers of the police. He has deposed that later on he had also accompanied the Investigating Officer Inspector Jagdish Parshad on 30th March, 1999 when accused Jitender Pal Gulati was arrested from his shop in Burari, Delhi. He has further deposed that on 30.3.99 he joined investigation with Inspector Jagdish Parsad Addl. SHO Police Station Mukherjee Nagar and went to a shop at Burari as the Addl. SHO had information that accused Jitender Gulati shall visit the said shop. According to him, at about 4:30 PM accused Jitender Gulati came at the shop and was arrested by the Investigating Officer vide arrest memo Ex.PW24/F and the body inspection memo is Ex.PW24/G. According to him, the accused pointed out the spot vide memo Ex.PW24/I and also made disclosure statement which is Ex.PW24/H. St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 58 (71) He has been crossexamined by the Ld. Defence Counsel but nothing much has come out of the same.
(72) PW27 Ct. Ashok Kumar has deposed that on 18.4.2000 he was posted at Police Station Mukherjee Nagar and on that day he collected sealed parcles of this case from MHC(M) vide Road Certificate and deposited the same with CFSL. He has proved that so long as the parcels remained with him they were not tampered with. He has not been crossexamined by the Ld. Defence Counsels.
(73) PW28 HC Sohan Singh is the MHC(M) Police Station Model Town who has deposed that in the month of November 1999 the case property was deposited in the Malkhana and the entry was made to that effect by HC Om Pal Singh which entries are at serial no. 803 and 812 in Register No. 19. According to the witness, he had sent the sealed pullandas to CFSL on 18.4.04 vide RC No. 60/20 through constable Ashok Kumar at CGO Complex Lodhi Colony. He has proved the photocopy of relevant entry no. 803 which is Ex.PW28/A and the copy of road certificate which is Ex.PW28/B. He has been crossexamined by the Ld. Defence Counsel but nothing much has come out of the same. (74) PW29 Ct. Satpal has deposed that he along with Inspector Jagdish came to the court of Sh. N. K. Gupta, Ld. ACMM, Tis Hazari, Delhi wherein the accused Jitender @ Kalle was got transferred to the court of Sh. S. K. Gupta, Ld. MM and thereafter with the permission of the court, accused was arrested and was enquired where accused made his St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 59 disclosure statement to the Investigating Officer. He has proved that the accused was arrested vide memo Ex.PW29/A and the personal search of the accused was conducted vide memo Ex.PW29/B. He has been cross examined by the Ld. Defence Counsel but nothing much has come out of the same.
STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:
(75) After completion of prosecution evidence statements of both the accused persons were recorded under Section 313 Cr.P.C. wherein all the incriminating evidence was put to them which they have denied. The accused Jitender Gulati has stated that he is innocent and he has been falsely implicated. He has not preferred to examine any witness in his defence.
(76) The accused Jitender @ Kalla has stated that he is innocent and has been falsely implicated by the police at the instance of the alleged witnesses Yogesh Bhati and Janesh Etc. He has stated that the pistol and cartridges were taken into possession by the police from his house on 11.3.1999 and after his surrender the police sent the cartridges and the pistol and the bullet recovered from the dead body to CFSL. According to the accused the cartridges were fired at the office of the Crime Branch from this pistol and the bullet recovered from the body was also tampered in the office of the Crime Branch before sending the same to CFSL. He has examined six witnesses in his defence.
St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 60
(77) DW1 Ms. Babita is the sister in law (Bhabhi) of accused Jitender who has deposed that on 11.3.99 seveneight policemen came at their house and inquired about the room of Jitender @ Kalle on which they took them to the room of Jitender. According to her, the police men searched the said room and after a through search they opened the locker of an almirah and took out a revolver, some cartridges and a license under the Arms Act belonging to accused Jitender @ Kalle and took them away. She has testified that police officials took her, her father in law Samai Singh, her brother in law namely Suresh and his wife to Police Station Ashok Vihar, Delhi and told them that accused is involved in a murder case. The witness has testified that thereafter the ladies were let off but her father in law Samay Singh and her brother in law Suresh were released after twothree days.
(78) In her cross examination by the Ld. Addl. PP for the State the witness has deposed that her husband had not visited the Police Station as he was looking after her mother in law, who was admitted in Khosla Nursing Home, Shalimar Bagh, Delhi three four days prior to 11.3.99 and was discharged after about sixseven days. She has denied the suggestion that the police had not taken away the pistol, cartridges and license of accused from their house. The witness has further deposed that she did not complaint to senior police officials regarding the lifting of the articles by police as the police had threatened that if they complained to any authority their names shall also be included in the offence due to which St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 61 reason, they also did not filed any complaint in the court. (79) DW2 ASI Ram Bhau has produced the record pertaining to case FIR No. 559/2003 under Section 307/34 IPC, PS Ashok Vihar which was recorded on 6th October, 2003. He has placed on record the copy of FIR which is Ex.DW2/A. He has not been crossexamined by the Ld. Addl. PP for the State.
(80) DW3 Vijay Sharma has deposed that his reception was fixed on 10.3.1999 and there was a DJ programme and also eatables. According to him, at the rear side of the tent, there was the arrangement for drinks (liquor) and he had not seen anything as he was on the stage. He has also deposed that some guests were taking liquor at the rear of the tent and they were enjoying by dancing and singing. The witness has further deposed that though he heard some voice but he is unable to tell what type of voice it was. According to the witness, there was some stampede in his marriage but he did not see anything. He has testified that he had heard some sound of firing by someone but he is unable to tell who was firing. He has further deposed that accused Kalle came towards him at about 9 PM and told that his mother was ill and he has to go. He has also deposed that thereafter he did not see accused Kalle as there were other guests also in the marriage.
(81) In his cross examination by the Ld. Addl. PP for the State the witness has deposed that his statement was recorded by police. He is not aware whether he told to police that accused Kalle came to him at 9:00 St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 62 PM or that accused told him that his mother was ill.
(82) DW4 SI Naresh Kumar has deposed that he was the initial Investigating Officer in the case FIR No. 509/2002, under Section 308/34 IPC, PS Ashok Vihar, Delhi and investigation of the said case was finally completed by SI Shish Pal. He has further deposed that as per record of the case Yogesh and one Janesh were the witnesses and Sudesh & Manish, both brother of Janesh, were the injured in the said case. He has not been crossexamined by the Ld. Addl. PP for the State despite opportunity.
(83) DW5 HC Dharam Singh has produced the summoned log book of vehicle no. DL1CF4282 of dated 4.2.2000 and had deposed that as per the log book, the vehicle had gone from Police Post Adarsh Nagar to Police Station Keshav Puram and again to Police Post Adarsh Nagar. He proved the photocopy of the relevant entries vide Ex.DW5/A. (84) In his cross examination by the Ld. Addl. PP for the State he has deposed that the entires are in his handwriting but he is unable to tell who had made entries in the log book since the log book does not remain in his custody.
(85) DW6 HC Raj Kapoor produced the record of FIR No. 292/99, under Section 341/323/147/149/34 IPC, PS Keshav Puram, Delhi wherein Jainesh, Yogesh and Sanjay were the accused. He has placed on record the photocopy of the FIR which is Ex.DW6/A. St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 63 (86) In his cross examination the witness has explained that the details regarding the names of the accused persons, as mentioned in the back side of the FIR, are not in his hand writing. He has further deposed that FIR no. 293/99 is in his hand writing and there is no list of accused persons mentioned in FIR No. 293/99.
FINDINGS:
(87) Pursuant to the remand of case by the Delhi High Court I have heard the arguments afresh. I have also gone through the testimonies of the various witness examined by the prosecution and the accused and also considered the written memorandum of arguments. My findings are as under:
Motive of the crime:
(88) The case of the prosecution is that the accused Jitender @ Kalle had a grouse against the son of the deceased Kimti Lal Nayyar namely Sumit Nayyar since he (Sumit Nayyar) was an eye witness to killing of Anil Bhadana by the accused Jitender @ Kalle on the same night and it was Sumit Nayyar who had made repeated calls to the police / PCR and informed them of the killing and even named him and therefore, the accused Jitender @ Kalle wanted to finish the witness Sumit Nayyar.
However, when the accused Jitender @ Kalle went to the house of Sumit Nayyar and as soon as the father of Sumit Nayyar i.e. Kimti Lal Nayyar St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 64 opened the door, the accused Jitender shot him dead. On the other case the Ld. Defence counsel has argued that the prosecution has failed to show any motive to kill the elder person. It is also argued that the prosecution has failed to prove that the accused Jitender @ Kalle was knowing the address of the deceased prior to the date of the incident or on the date of the incident.
(89) I have considered the rival contentions and I may observe that motive has to be gathered from the surrounding circumstances and such evidence should form one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is best known to the perpetrator of the crime and not to others. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive. (90) Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 65 the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence. (91) Existence of motive for committing a crime is not an absolute requirement of law but it is always relevant fact, which will be taken into consideration by Courts as it will render assistance to Courts while analysing prosecution evidence and determining guilt of accused. [Ref.:
IV (2012) SLT 257].
(92) Moreover, in a case where there is clear proof of motive for the commission of a crime, it affords added support to the finding of the court that the accused is guilty of the offence charged with. However, at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone, who knows as to what circumstances prompted him to certain course of action leading to the commission of the crime [Ref.: State of U.P. Vs. Bahu Ram reported in 2000 (4) SCC 515 and Ujjagal Singh Vs. State of Punjab reported in 2007 (14) SCALE 428].
(93) Applying the settled principles of law to the fact of the present case it is evident that as regards the motive of accused Jitender @ Kalle in committing murder of Kimti Lal Nayyar, in case bearing FIR No. 67/1999, Police Station Keshav Puram the accused Jitender @ Kalle had St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 66 fired upon Anil Badana and Sumit Nayyar (PW4) the son of Kimti Lal Nayyar was an eye witness of the said incident of firing. It has also come in the deposition of Sumit Nayyar that in Satyawati Student's Union affairs he used to support Anil Badana while accused Jitender @ Kalle used to oppose them. Sumit Nayyar also stated that he was the Cultural Secretary of the Students Union. In these circumstances, the aforesaid reasons were sufficient for accused Jitender @ Kalle to have gone to the house of Sumit Nayyar who had made telephone calls on 100 number immediately after the first incident of killing of Anil Badana and informed the police about the firing on Anil Badan by the accused (whom Sumit had specifically named in the call). It was a sheer coincidence that Kimti Lal Nayyar, father of Sumit Nayyar came to open the door and accused Jitender @ Kalle with a view to deter Sumit Nayyar fired upon Kimti Lal Nayyar.
(94) This being the background, I hereby hold that the prosecution has been able to prove and establish the motive of the accused Jitender @ Kalla behind the murder of Kimti Lal Nayyar.
Medical Evidence:
(95) Dr. Rakesh Dogra (PW19A) has proved the MLC of the deceased Kimti Lal Nayyar which is Ex.PW19/A according to which the injured Kimti Lal Nayyar was brought to the hospital on 11.3.199 at about 1:20 AM and after examination Dr. Rajiv Dhingra declared him as St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 67 'brought dead'.
(96) Dr. C. B. Dabas (PW8) is the Autopsy Surgeon who has proved the postmortem report of the deceased Kimti Lal Nayyar which is Ex.PW8/A according to which on external examination there were following injures on the person of the deceased:
1. One fire arm entry wound 0.5 x 0.5 cm round in shape surrounded by a collar of abrasion in an area of 0.7 x 0.7 cm. The tattooing was present around the wound. There was not evidence of blackening and singeing. Wound was located on right side front of chest.
2. One firearm entry wound 0.5 x 0.5 cm round in shape surrounded by a collar of abrasion in area of 0.8 x 0.8 cm. There was no evidence of blackening singeing and tattooing around the wound.
Wound was located on right side front of chest outer to injury no.1.
3. One firearm entry wound 1 x 0.5cm irregular in shape surrounded by a collar of abrasion in an area of 1.2 x 0.7cm there was no evidence of blackening, singeing, tattooing around the wound. The wound was located left side front of chest in upper part.
4. One firearm entry wound 0.5 x 0.5 cm round in shape surrounded by a collar of abrasion in an area of .7 x .7 cm. There was no evidence of blackening, singeing, tattooing around the wound. The wound was located on back of left hand in the web space of thumb and index finger. The wound was communicating another wound St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 68 (exit wound) on the palmer surface of left hand i.e. injury No. 5.
5. One one firearm exit wound as described above measuring 1 x 0.2 cm irregular in shape with averted edges and communicating with injury No. 4.
(97) The witness has proved that as per the track of the injuries, the Injury No.1 entered the chest cavity through right first intercostal space then perforated through right lung through an through and then ended in sixth intercostal muscle on the back where one copper coated bullet was found lodged which bullet was removed and preserved; Injury No. 2 entered the chest cavity fourth right intercostal space and perforated through lower lob of right lung and ended in sixth intercoastal space and back of chest about 3 cm outer to culmination of injury No. 1. Here a one copper coated bullet was found lodged which was removed and preserved. Injury No. 3 entered the chest cavity through left first intercoastal space and then penetrated into mediastinum and pericardial sac and then through right atrium and ventrical ended in fifth intercoastal space on left side back of chest where one copper coated bullet was found lodged which was removed and preserved.
(98) He has also proved that the death in this case was due to haemorrahge and shock consequent to injuries described above; all the injuries were cased by ammunition discharge of rifled firearm; Injury No.1 was caused from within range of powder blast, injury No. St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 69 2, 3 and 4 were caused from distant range and the Injury No. 1,2 and 3 were collectively sufficient to cause death in the ordinary course of nature. He has also proved that all the injuries were antemortem in nature and time since death was approximately 13 to 14 hours. (99) Dr. C.B. Dabas has been crossexamined by the Ld. Defence Counsels but nothing much has come out of the same. Therefore, I hereby hold that the medical evidence is compatible to the prosecution case that the death of Kimti Lal Nayyar had occurred on account of firearm injuries.
Ocular Evidence:
(100) Ocular evidence/ eye witness count is the best evidence in any case. In the present case the only eye witness is one Yogesh Bhati (PW5) according to whom on 11.3.1999 at about 12:30 AM he was going to the house of his friend Sumit Nayyar and was at a distance of 20/25 square yards from his house when he had heard three gun shots on which he ran towards the house of Sumit Nayyar and noticed the accused Jitender @ Kalle coming out of the house having a pistol in his hand and a Maruti Zen car bearing No. DL8CA9383 was parked in front of the house of Sumit Nayyar. According to him, as the gate of the car was opened he saw the accused Jitender Gulati alighting from the driving seat and come to the other seat besides the driver seat and the accused Jitender @ Kalle took the driving seat, started the maruti car, took a turn and sped St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 70 away from the spot towards Hakikat Nagar while he hid himself behind another vehicle parked there. He has further stated that he went to the house of Sumit Nayyar where he found the father of Sumit lying in a pool of blood and the brother of Sumit namely Sandeep was weeping. The witness has also deposed that he asked Sandeep about Sumit on which he told him that he had gone to a party in Lawrence Road on which he reached Lawrence Road where he found four/five gypsies parked there and the policemen present there did not allow him to go inside the community center Lawrence Road and he came to know that one Anil Bhadana had been murdered after which he became nervous. (101) It is submitted by the Ld. Defence Counsel that the witness Yogesh Bhati (PW5) is not a credible witness and his behaviour and conduct is not natural. It is pointed out that Sumit was his old friend and if he had witnessed the incident he would have got in touch with Sumit or would have accompanied the brother of Sumit to the hospital where they have rushed his father. Further, even thereafter Yogesh does not inform the police about the incident and it was much later i.e. on 5.2.2000 that he made a statement to the police for the first time regarding the presence of both the accused Jitender @ Kalle as well as Jitender Gulati at the spot. (102) I have considered the rival contentions and I may observe that the testimony of Yogesh Bhati (PW5) does not inspire confidence of this Court and also does not appear to be probable and believable. It is evident that in his crossexamination this witness Yogesh Bhati (PW5) St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 71 when confronted with his earlier statement made by him on 11.3.1999 he has denied having made the same. The said statement dated 11.3.1999 is present on the Judicial Record. However, the case diaries are silent in this regard. Even the Investigating Officer Inspector Jagdish Prashad (PW24) has denied having recorded any such statement of the witness Yogesh Bhati on 11.3.1999. Hence under these circumstances it is the prosecution to have explained as to how the statement of Yogesh Bhati dated 11.3.1999 came on the police file which explanation is not forthcoming. (103) Even before resorting to an analysis of his deposition viza viz his statement recorded by IO SI Anil Kumar on 5th February, 2000 I may mention that during the cross examination of this witness learned defence counsel confronted him with one other statement of his recorded on 11th March, 1999 by Inspector Jagdish Parsad. Though Yogesh Bhati denied having made the same but in fact, the said statement was found available in the police file itself even though the case diary dated 11th March, 1999 was silent about it. Even the Investigating Officer Inspector Jagdish Parshad (PW24) denied having recorded any such statement of the witness on 11th March, 1999 but it was observed by the Court in the cross examination of Inspector Jagdish Parshad (PW24) that a statement dated 11th March, 1999 of witness Yogesh Bhati was available in the police file. It was thus for the prosecution to explain as to how the said statement of the witness dated 11th March, 1999 was there in the police file. Apart from the aforesaid circumstances I may also mention that the St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 72 conduct and behaviour of PW5 Yogesh Bhati even as per his statement recorded on 5th February, 2000 seems to be highly unbelievable and does not inspire confidence at all.
(104) Yogesh Bhati (PW5) stated that on the night of the incident he had gone to Batra Cinema alone and at around 12:30 a.m. he went to the house of his friend Sumit Nayyar and while approaching the said house he heard sound of firing. He further stated that thereafter he hid himself behind a car and saw accused Jitender Gulati coming out of the driver seat of a car and going to the other passenger seat and another person coming from the side of the house of Sumit Nayyar who sat in the car and they both drove away. He further stated that thereafter he went to the house of Sumit Nayyar and found father of Sumit Nayyar to be lying on the floor, bleeding profusely and brother of Sumit Nayyar (PW4) namely Sarideep Nayyar also present over there. As per his statement he took the scooter of Sandeep Nayyar to inform Sumit Nayyar about the incident who had gone to the marriage reception party of Vijay in Keshav Puram. He further stated that after reaching there he came to know that murder of Anil Badana has also taken place and thus he became perturbed and came back. He thereafter parked the scooter of Sandeep Nayyar at his house and gave the keys of the same to one of the relatives of Kimti Lal Nayyar who were present there and he himself went back to his own house.
St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 73 (105) Yogesh Bhati (PW5) also stated that he was a frequent visitor to the house of Sumit Nayyar and at times even used to sleep there during the night. Thus, if Yogesh Bhati was a close friend of Sumit Nayyar in as much as he could have gone to his house in the dead of night while returning after watching a movie and even used to stay over there then it is quite strange that despite having seen father of his close friend lying injured, profusely bleeding he went away to call Sumit Nayyar and thereafter upon returning back he simply gave the keys of the scooter to some relative over there who were grieving the death of Kimti Lal Nayyar and went back to his own house. It is all the more strange that even thereafter despite having seen one of the assailant i.e. accused Jitender Gulati present at the time of incident he did not disclose this fact to anyone much less to Sumit Nayyar for a period of more than one year.
Even after the arrest of accused Jitender Gulati on 30th March, 1999 merely on the basis of suspicion expressed by Sumit Nayyar (PW4), Yogesh Bhati (PW5) did not disclose this fact to anyone. It is also quite strange that only after the arrest of accused Jitender @ Kalle he gathered courage and went to police along with Sumit Nayyar stating that he was an eye witness of the incident.
(106) In fact, on account of the aforesaid discrepancy qua recording of statement of Yogesh Bhati (PW5) on 11th March, 1999 or on 5th February, 2000 I also perused the police file of this case and find that St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 74 on 5th February, 2000 two case diaries were recorded by the Investigating Officer SI Anil Kumar. The said case diaries were given serial number 34 and 34 A. The second case diary No.34A merely talks about the recording of statement of Yogesh Bhati. It is quite strange, for the case diaries are written at the end of the day summarizing the entire investigation carried out on any given day. Thus, if statement of Yogesh Bhati was recorded on that day then nothing prevented the Investigating Officer from mentioning about the factum of recording of his statement in case diary No.34 recorded on 5th February, 2000. It thus appears that statement under Section 161 Cr.P.C. of Yogesh Bhati (PW5) was subsequently added upon by the Investigating Officer probably at a later stage of the investigation in order to introduce an eye witness to the incident.
(107) Hence under the given circumstances I hereby hold that Yogesh Bhati (PW5) is not a credible witness and in the absence of any independent corroboration forthcoming it is not safe to rely upon the testimony of Yogesh Bhati and the same is liable to be discarded. In so far as the accused Jitender @ Kalle is concerned only because he had refused to participate in Judicial Test Identification Parade proceedings ceases to have any significance more so when the deposition of Yogesh Bhati (PW5) has been completely discarded.
St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 75 Allegations against the accused Jitender Pal Gulati:
(108) The case of the prosecution is that the accused Jitender Pal Singh Gulati along with the accused Jitender @ Kalle had hatched a criminal conspiracy pursuant to which the accused Jitender @ Kalle committed the murder of Kimti Lal Nayyar. However, I may observe that the only evidence on record against the accused Jitender Pal Gulati is his own disclosure statement as well as the disclosure statement of co accused Jitender @ Kalle which are of no relevance being hit by Section 25 of Indian Evidence Act. The prosecution is left with absolutely no other legally admissible incriminating evidence to connect him with the offence in question. There is on record merely the suspicion expressed by Sumit Nayyar (PW4) that his house might have been pointed out to accused Jitender @ Kalle by accused Jitender Pal Gulati. However, this suspicion cannot be of any help to the prosecution in connecting accused Jitender Pal Gulati with the offence in question. There is no other evidence led by the prosecution which would connect him directly or circumstantially with the accused Jitender @ Kalle nor there is any evidence to show that there was any prior meeting of mind between the accused Jitender Gulati and Jitender @ Kalle at any point of time by way of which they hatched a criminal conspiracy to commit the murder of Kimti Lal Nayyar. In view of the above, I hereby hold that the prosecution has not been able to prove its case against the accused Jitender Gulati beyond reasonable doubt to the effect that he had St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 76 conspired in any manner with the accused Jitender @ Kalle in the commission of murder of Kimti Lal Nayyar for which benefit of doubt is being given to the accused Jitender Pal Gulati who is acquitted of the offence under Section 302 and 120B Indian Penal Code.
Allegations against the accused Jitender @ Kalle/ Ballistic Report:
(109) The case of the prosecution is that prior to committing the murder of Kimti Lal Nayyar, the accused Jitender @ Kalle had committed the murder of Anil Badana in which incident the son of Kimti Lal Nayyar namely Sumit Nayyar was a witness and had made frequent PCR calls.
Therefore, the accused Jitender @ Kalle in search of Sumit Nayyar came to his house and when the father of Sumit Nayyar opened the door and told him that Sumit was not at home, Jitender @ Kalle fired shots at him after which Kimti Lal Nayyar was rushed to the hospital where he was declared dead.
(110) In this regard the prosecution has placed its reliance upon the testimony of Yogesh Bhati (PW5) and the report of the Ballistic Expert. As already discussed herein above the testimony of Yogesh Bhati (PW5) has been discarded being unreliable and untrustworthy. (111) The only piece of evidence which is now left to be considered is the Ballistic Expert's report which is Ex.PW22/A according to which the three bullets recovered from inside the dead body of Kimti Lal Nayyar and the three empty cartridges recovered from the spot were St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 77 indeed fired from the licensed pistol of accused Jitender @ Kalle. (112) In this regard it will be worthwhile to mention that the factum of the impugned pistol being the licensed pistol of accused Jitender @ Kalle has not been denied by the accused himself In his statement under Section 313 Cr.P.C. he merely stated that it was a matter of record. As regards the contention of learned defence counsel that the prosecution failed to examine Daljit Singh, the only public independent witness of the recovery of impugned pistol at the instance of accused Jitender @ Kalle, I may state that the same has no material bearing on the case of the prosecution.
(113) I may observe that the trial of the present case was being carried out along with the trial of case FIR No.67/1999 police station Keshav Puram. In the said case Daljit Singh was indeed examined as PW9 wherein he chose to not to support the case of the prosecution on certain crucial aspects. Thus, it was quite natural for the prosecution to not to proceed ahead with the examination of this witness in this case also. In fact in the list of witnesses filed by the prosecution along with the report under Section 173 Cr.P.C. the word "given up" is mentioned against the name of the witness "Daljit Singh". No doubt, the deposition of the said witness as recorded in case FIR No.67/1999 cannot be read into the present case but this fact certainly has a relevance in so far as why the prosecution did not examine the public independent witness of recovery of the weapon of offence.
St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 78 (114) Coming now to the deposition of ASI Virender Tyagi (PW18), SI Ram Avtar (PW19) and SI Anil Kumar (PW23), I may state that in their cross examination by learned defence counsel nothing material could come out which could discredit their deposition or may lead me to disbelieve their testimony. In fact, if the police officials were to concoct any such story of accused having led them to the recovery of a pistol from a DDA Park in Haiderpur then there was no necessity for them to go over there and all these paper work could have been carried out while sitting in their office itself. Moreover, in view of the Ballistic Expert's report it was incumbent upon the accused under Section 106 of Indian Evidence Act, 1872 to explain as to how the bullets found embedded in the dead body of Kimti Lal Nayyar came to be fired from his licensed pistol.
(115) In fact, in his statement under Section 313 Cr.P.C. accused Jitender @ Kalle did not dispute the fact that the said licensed pistol belong to him. He merely stated that the ownership of the pistol was a matter of record. In these circumstances, the deposition of Paramjit Singh (PW16), the owner of Bahadurgarh Gun House also ceases to have any significance at all. Moreover his testimony that the said pistol was sold by him to remained uncontroverted in his crossexamination by accused. (116) Coming now to the applicability of Section 106 of Indian Evidence Act, 1872 I may state that the burden in the aforesaid facts and circumstances of the case squarely shifts upon the accused to explain the St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 79 facts which are especially to his knowledge i.e. as to how the said bullets which were recovered from inside the dead body of Kimti Lal Nayyar or the empty cartridges which were recovered from the spot came to be fired from his licensed pistol. No doubt, in a criminal trial the burden of proving its case rests squarely upon the prosecution so as to prove the guilt of accused beyond shadows of all reasonable doubts but Section 106 Indian Evidence Act, 1872 is an exception to the said general rule. It applies to all those facts which are exclusively to the knowledge of accused, for it will be extremely difficult for the prosecution to prove those facts. No doubt, accused is not supposed to prove his innocence beyond all reasonable doubts but what is required of him is to bring out a preponderance of probability.
(117) Coming back to the case in hand, I may mention that accused Jitender @ Kalle has not given any explanation in this regard. He merely stated in his statement under Section 313 Cr.P.C. that the bullets recovered from inside the dead body of Kimti Lal Nayyar were tampered with or that the cartridges were fired by the police in their office from his licensed pistol. However, this mere bald statement cannot discredit the entire prosecution story. Accused Jitender @ Kalle has been completely unable to show as to when, how and by whom the bullets so recovered from inside the dead body of Kimti Lal Nayyar by the Autopsy Surgeon were tampered with.
St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 80 (118) Therefore, in the absence of there being any explanation on the part of accused as to how the cartridges recovered from the spot or the bullets found from inside the dead body of Kimti Lal Nayyar came to be fired from his licensed pistol, I have neither any doubt nor any reason to disbelieve the prosecution story. In fact, besides making a bald statement that the Exhibits so sent to CFSL were already tampered with by the police officials the report of the Ballistic Expert has also not been challenged in any manner. Even in the cross examination of Sh. A.R. Arora (PW22) nothing could come out which could discredit his report. (119) In view of my aforesaid discussion I am of the considered opinion that from the Ballistic Expert's report Ex.PW22/A coupled with the absence of there being any explanation from the side of accused under Section 106 Indian Evidence Act, 1872 it stands conclusively proved that Kimti Lal Nayyar was fired upon at by accused Jitender @ Kalle from his licensed pistol.
Improper / faulty investigations by the Investing Officer:
(120) It is argued by the Ld. Defence Counsel that the investigations conducted by the Investigating Officer is not free and fair in as much as Yogesh Bhati had been deliberately introduced and planted as a witness only to connect the accused with the offence in order to work out the present case benefit of which should be given to the accused. Ld. Addl. PP for the State on the other hand has vehemently argued that St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 81 merely because on account of carelessness or negligence or overzealousness the Investigating Officer has tried to introduce an eye witness to the incident to strengthen the case of the prosecution, shall be no ground to discard the other evidence which has come on record and not benefit of the same should be given to the accused. He has placed his reliance on the case of State of U.P. Vs. Anil reported in AIR 1988 Supreme Court 1998; State of Punjab Vs. Karnail Singh reported in 2004 SCC (Cri.) 139; Gurbachan Singh Vs. Satpal Singh; State of U.P. Vs. Ashok Kumar Srivastava; Inder Singh Vs. State (Delhi Admn.);
State of U.P. Vs. Anil Singh reported in SCC paged 692 para 17; Shivaji Sahabrao Bobade Vs. State of Maharashtra; State of U.P. Vs. Krishna Gopal and Gangadhar Behera Vs. State of Orissa.
(121) I have considered the rival contentions. Before coming to the submissions made by the Ld. Counsel on merits, I may observe that considering the aspect of faulty investigations the Hon'ble Apex Court has in the case of State of U. P. Vs. Jagdeo & Others reported in (2003) 1 Supreme Court Cases 456 and also in the case of Rabinder Kumar Pal @ Dara Singh Vs. Republic of India reported in AIR 2011 SC 1436, observed that:
"...... Mere faulty investigations cannot be a ground for acquittal of the accused. For the fault of the prosecution the perpetrators of a ghastly crime cannot be allowed to go scotfree...."
St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 82
(122) It has been further observed that :
"........Coming to the aspect of the investigation being allegedly faulty, we would like to say that we do not agree with the view taken by the High Court. We would rather like to say that assuming the investigation was faulty, for that reason alone the accused persons cannot be let off or acquitted. For the fault of the prosecution, the perpetrators of such a ghastly crime cannot be allowed to go scotfree...."
(123) Earlier in the case of Ram Bali v. State of Uttar Pradesh reported in (2004) 10 SCC 598, the judgment in Karnel Singh v. State of M.P. reported in (1995) 5 SCC 518 was reiterated and the Hon'ble Apex Court observed that "......in case of defective investigation the court has to be circumspect while evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigation officer if the investigation is designedly defective....."
(124) It is writ large from the aforesaid that with the passage of time, the law also developed and the dictum of the Court emphasized that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general.
St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 83 (125) Recently the Hon'ble Apex Court (Hon'ble Mr. Justice Swatantra Kumar) in the case of Dayal Singh & Ors. Vs. State of Uttaranchal in Criminal Appeal No.529 of 2010 decided on 3.8.2012 reaffirmed the above principle while placing its reliance on the case of National Human Rights Commission Vs. State of Gujarat reported in (2009) 6 SCC 767 wherein it was observed that:
"......The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of Justice often referred to as the duty to vindicate and uphold the majesty of the law. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 84 relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators...".
(126) Reliance was also placed on the case of State of Karnataka Vs. K. Yarappa Reddy reported in 2000 SCC (Crl.) 61 wherein the Hon'ble Apex Court occasioned to consider the similar question of defective investigation as to whether any manipulation in the station house diary by the Investigating Officer could be put against the prosecution case and observed in Paragraph 19 that:
".........19. But can the above finding (that the station house diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable, should the Court be influenced by the machinations demonstrated by the Investigating Officer in conducting investigation or in preparing the records so unscrupulously? It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. It is well nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and preeminence in criminal trials over the action taken by the investigation officers. Criminal Justice should not be St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 85 made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case..."
(127) In the case of Dayal Singh Vs. State of Uttranchal (Supra) it was observed by Hon'ble Mr. Justice Swatantra Kumar that where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The Courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subserved. For truly attaining this object of a fair trial, the Court should leave no stone unturned to do justice and protect the interest of the society as well.
(128) Applying the settled principles of law to the facts of the present case I may observe that the it is the duty of the Court that the guilty should not escape and in case there is a ring around the prosecution St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 86 case, the same cannot be rejected. Further, the prosecution is not required to meet each and every hypothesis put forward by the accused. It is writ large that the prosecution has been successful in proving its case against the accused Jitender @ Kalle beyond reasonable doubt that the murder of Kmiti Lal Nayyar was committed by him and none else for which he has been held guilty of the offence under Section 302 Indian Penal Code. However, as discussed herein above since the prosecution has failed to prove and substantiate the allegations of conspiracy, therefore the accused Jitender @ Kalle is acquitted of the charge of conspiracy. FINAL CONCLUSIONS:
(129) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 87
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(130) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. In so far as the accused Jitender @ Kalle is concerned, from the evidence on record the following facts stand established:
➢ That on the night intervening 10th and 11th March, 1999 at around 12:30 AM the accused Jitender @ Kalle reached the house of Sumit Nayyar i.e. House No. 2718, Mukherjee Nagar, Delhi. ➢ That Sh. Kimti Lal Nayyar the father of Sumit Nayyar got up and opened the door.
➢ That the accused Jitender @ Kalle fired upon Kimti Lal Nayyar with a gun and three bullets hit his body as a result of which he fell down and died at the spot itself.
➢ That on hearing the sound of firing the son of Kimti Lal Nayyar namely Sandeep Nayyar who was present inside the house along with his wife and daughter, came out while his mother also came St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 88 out from another room and they found Kimiti Lal Nayyar lying on the floor in injured condition.
➢ That immediately information about the incident was given to police at no.100 and a PCR van removed Kimiti Lal Nayyar to Hindu Rao Hospital where the doctors declared him 'brought dead'. ➢ That in the meantime on receipt of information of the incident at Police Station Mukherjee Nagar Inspector Jagdish Parshad along with his other staff members first went to the spot and thereafter at Hindu Rao Hospital and collected MLC of Kimiti Lal Nayyar. ➢ That Sandeep Nayyar met the police in the hospital itself and gave his statement to SI Dinesh Chand on the basis of which the present case was got registered.
➢ The crime team also inspected the spot and three empty cartridges were found at the spot which were taken into possession. ➢ That on the next day postmortem examination on the dead body of Kimti Lal Nayyar and three bullets found embedded inside his body which were handed over to the Investigating Officer. ➢ That on 26.3.1999 Sumit Nayyar made a supplementary statement to the Investigating Officer wherein he expressed his suspicion upon accused Jitender @ Kalla and accused Jitender Pal Gulati in the commission of murder of his father.
➢ That on 30th March, 1999 accused Jitender Pal Gulati was arrested and his disclosure statement was recorded wherein he allegedly St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 89 admitted his role in the murder of Kimti Lal Nayyar. ➢ That on 23.1.2000 the accused Jitender @ Kalla was arrested by SI Ram Avtar Crime Branch, Homicide Section from bus stand Naraina on the basis of a secret information and his disclosure statement was recorded wherein he also allegedly admitted about his involvement in the present case.
➢ That at the instance of accused Jitender @ Kalle the weapon of offence used in the present case i.e. the pistol of 7.65 mm bearing no. 621251 make Czechoslovakia was recovered from beneath of tree of DDA Park, Haiderpur.
➢ That the records of the licensed pistol bearing no. 621251 make Czechoslovakia purchased by accused Jitender @ Kalla along with live cartridges was also collected from Bahadurgarh Gun House and also from ADMJammu from where the license was issued to accused Jitender @ Kalla.
➢ That the recovered bullets from inside the dead body of Kimti Lal Nayyar and the empty cartridges were recovered from the spot were sent to CFSL for comparison with the licensed pistol of accused Jitender @ Kalla as was already sent to CFSL in case FIR No. 67/1999 Police Station Keshav Puram.
(131) The medical evidence on record establishes that the death of Kimti Lal Nayyar was due to haemorrahge and shock consequent to St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 90 injuries which injuries were cased by ammunition discharge of rifled firearm; Injury No.1 was caused from within range of powder blast, injury No.2, 3 and 4 were caused from distant range and the Injury No. 1,2 and 3 were collectively sufficient to cause death in the ordinary course of nature. Further, the forensic evidence (Ballistic Report) establishes that the bullets recovered from the dead body of the deceased Kimti Lal Nayyar and the empty cartridges recovered from the spot were fired through the licensed gun of the accused Jitender @ Kalle which conclusively connects him with the offence.
(132) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (133) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 91 infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link in so far as the accused Jitender @ Kalle is concerned.
(134) In view of the above, I hereby hold that the prosecution has been able to establish and prove the necessary intent and knowledge (as contemplated under Section 300 Indian Penal Code) of the accused Jitender @ Kalle to have commit the murder of Kimti Lal Nayyar for which he is hereby held guilty of the offence under Section 302 Indian Penal Code. However, since the prosecution has not been able to prove and substantiate the charge under Section 120B Indian Penal Code against the accused Jitender @ Kalle, therefore, he is acquitted of the same.
(135) In so far as the accused Jitender Gulati is concerned I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused Jitender Gulati. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the guilt of the accused. The material brought on record by the prosecution are insufficient so as to hold that the accused Jitender Gulati was guilty beyond reasonable doubt. The prosecution has also not established a St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 92 conclusive link connecting each individual circumstance with the other, and the accused namely Jitender Gulati. Crucially, the material and evidence on the record do not bridge the gap between "may be true" and must be true" so essential for a court to record a finding of guilt of an accused, particularly in cases based on circumstantial evidence.
Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Jitender Gulati, beyond reasonable doubt and hence, benefit of doubt is being given to him who is acquitted of the charges under Section 120B and 302 Indian Penal Code.
Announced in the open court (Dr. KAMINI LAU) Dated: 01.7.2013 ASJII/NW(ROHINI) St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 93 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSSION JUDGEII: (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 1136/2009 Unique Case ID No.: 02401R0023562000 State Vs. 1. Jitender Pal Gulati @ Jeetu S/o Sh. Chanderbhan R/o BA 15B, Phase I, Ashok Vihar, Delhi. (Acquitted) 2. Jitender @ Kalla S/o Sh. Samay Singh R/o WP444, Village Wazir Pur, Ashok Vihar, Delhi. (Convicted) FIR No.: 68/1999 Police Station: Mukherjee Nagar Under Sections: 120B/302 Indian Penal Code Date of Conviction: 1.7.2013 Arguments heard on: 1.7.2013 Date of Sentence: 1.7.2013 APPEARANCE: Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.
Convict Jitender @ Kalle in Judicial Custody with Ms. Neelam Singh, DLSA Counsel.
St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 94 ORDER ON SENTENCE:
As per the allegations, in the intervening night of 10th and 11th March 1999 both the accused Jitender @ Kalle and Jitender Pal Gulati entered into criminal conspiracy to commit the murder of Sumit Nayyar at his house bearing No. 2718 Mukherjee Nagar and in pursuance to the same the accused Jitneder @ Kalle committed murder of Kimti Lal Nayyar the father of Sumit Nayyar at 00:30 AM (midnight) on the intervening night of 1011.3.1999 at House No. 2718, Mukherjee Nagar, Delhi.
However, on the basis of the testimonies of the various prosecution witnesses and also on the basis of the medical, forensic and circumstantial evidence on record, this Court vide a detail judgment of even date held the accused Jitender @ Kalle guilty of the offence under Section 302 Indian Penal Code but acquitted of the offence under Section 120B IPC. Further, the accused Jitender Pal Gulati has been acquitted of the offence under Section 120B and 302 Indian Penal Code.
Vide the above judgment this Court has observed that it stands established that on the night intervening 10th and 11th March, 1999 at around 12:30 AM the accused Jitender @ Kalle reached the house of Sumit Nayyar i.e. House No. 2718, Mukherjee Nagar, Delhi; that Sh. Kimti Lal Nayyar the father of Sumit Nayyar got up and opened the door; St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 95 that the accused Jitender @ Kalle fired upon Kimti Lal Nayyar with a gun and three bullets hit his body as a result of which he fell down and died at the spot itself; that on hearing the sound of firing the son of Kimti Lal Nayyar namely Sandeep Nayyar who was present inside the house along with his wife and daughter, came out while his mother also came out from another room and they found Kimiti Lal Nayyar lying on the floor in injured condition; that immediately information about the incident was given to police at no.100 and a PCR van removed Kimiti Lal Nayyar to Hindu Rao Hospital where the doctors declared him 'brought dead'; that in the meantime on receipt of information of the incident at Police Station Mukherjee Nagar Inspector Jagdish Parshad along with his other staff members first went to the spot and thereafter at Hindu Rao Hospital and collected MLC of Kimiti Lal Nayyar; that Sandeep Nayyar met the police in the hospital itself and gave his statement to SI Dinesh Chand on the basis of which the present case was got registered; that crime team also inspected the spot and three empty cartridges were found at the spot which were taken into possession; that on the next day postmortem examination on the dead body of Kimti Lal Nayyar and three bullets found embedded inside his body which were handed over to the Investigating Officer.
It has also been established that on 26.3.1999 Sumit Nayyar made a supplementary statement to the Investigating Officer wherein he expressed his suspicion upon accused Jitender @ Kalle and accused St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 96 Jitender Pal Gulati in the commission of murder of his father; that on 30th March, 1999 accused Jitender Pal Gulati was arrested and his disclosure statement was recorded wherein he allegedly admitted his role in the murder of Kimti Lal Nayyar; that on 23.1.2000 the accused Jitender @ Kalle was arrested by SI Ram Avtar Crime Branch, Homicide Section from bus stand Naraina on the basis of a secret information and his disclosure statement was recorded wherein he also allegedly admitted about his involvement in the present case; that at the instance of accused Jitender @ Kalle the weapon of offence used in the present case i.e. the pistol of 7.65 mm bearing no. 621251 make Czechoslovakia was recovered from beneath of tree of DDA Park, Haiderpur; that the records of the licensed pistol bearing no. 621251 make Czechoslovakia purchased by accused Jitender @ Kalle along with live cartridges was also collected from Bahadurgarh Gun House and also from ADMJammu from where the license was issued to accused Jitender @ Kalla; that the recovered bullets from inside the dead body of Kimti Lal Nayyar and the empty cartridges were recovered from the spot were sent to CFSL for comparison with the licensed pistol of accused Jitender @ Kalle as was already sent to CFSL in case FIR No. 67/1999 Police Station Keshav Puram.
It has also been observed by this Court that the medical evidence on record established that the death of Kimti Lal Nayyar was due to haemorrahge and shock consequent to injuries which injuries were St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 97 cased by ammunition discharge of rifled firearm; Injury No.1 was caused from within range of powder blast, injury No.2, 3 and 4 were caused from distant range and the Injury No. 1,2 and 3 were collectively sufficient to cause death in the ordinary course of nature. Further, the forensic evidence (Ballistic Report) established that the bullets recovered from the dead body of the deceased Kimti Lal Nayyar and the empty cartridges recovered from the spot were fired through the licensed gun of the accused Jitender @ Kalle which conclusively connect him with the offence.
This being the background, the accused Jitender @ Kalle has been held guilty of the offence under Section 302 Indian Penal Code. However, the prosecution has not been able to prove and substantiate the allegations against the accused Jitender @ Kalle under Section 120B IPC and hence he has been acquitted of the charge under Section 120B IPC. Further, the accused Jitender Pal Gulati has been acquitted of the charges under Section 120B and 302 Indian Penal Code.
Heard arguments on the point of sentence. The convict before this court namely Jitender @ Kalle is a young man of 36 years of age, involved in killing of one Kimti Lal Nayyar the father of the eye witness to the killing of one Anil Badana a student union leader of Satyawati College on the night of 10.3.1999. The reason for the killing is St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 98 to deter the eye witness from deposing against him. There was a history of Student Union rivalry and animosity between Anil Badana, the President of a student Union of Satyawati College and the present convict Jitender @ Kalle who was an accused in case FIR No. 125/96 PS Model Town under Section 279/337/307 IPC & 25/27/54/59 Arms Act in which case Anil Badana had been injured. On the date of incident i.e. 10.3.1999 accused Jitender @ Kalle had shot at Anil Badana in full public view at a marriage reception and while fleeing from the spot, had fired indiscriminately at the persons chasing him in which process he also injured one Madan Lal and it was Sumit Nayyar the son of Kimti Lal Nayyar who made repeated calls to police / PCR and named the accused (Jitender @ Kalle) as the person who had shot Anil Badana and pursuant to the same an FIR bearing no.67/1999 PS Keshav Puram was registered in which case the convict Jitender @ Kalle has already been sentenced to Rigorous Imprisonment for life for an actual period of 30 years with fine of Rs.3 lacs for the offence under Section 302 IPC with direction that he shall not be granted any remission till he is actually undergo imprisonment for 30 years. In the said case he has also been sentenced to Rigorous Imprisonment for 10 years and fine of Rs.2 lacs for the offence under Section 307 IPC.
The victim Kimti Lal Nayyar was the father of eye witness to the killing of Anil Badana which had taken place about 11½ hours prior to the incident in the present case wherein this eye witness Sumit Nayyar St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 99 had called the police at 100 number. Sh. Kimti Lal Nayyar had been murdered in coldblood without any provocation. The things did not end there. While the convict Jitender @ Kalle was on remand, he escaped from custody and was arrested after a period of 14 days on which FIR No.379/04 PS Defence Colony and FIR bearing No.314/04 PS R.M.D. were registered. During the trial of the present case various witnesses have been threatened by the brother/ relatives of the convict and in this regard FIR No.315/2000 PS Ashok Vihar and FIR No.692/99 PS Ashok Vihar were registered. The Ld. Special PP has pointed out that the convict Jitender @ Kalle is involved in the following cases:
S. FIR No. Date Section of Law Name of No. Police Station 1 153/89 20.5.89 324/307/326 IPC Ashok Vihar 2 83/90 10.03.90 324/34 IPC Ashok Vihar 3 296/95 19.5.95 451/427/323/34 IPC Ashok Vihar 4 125/96 09.03.96 279/337/307 IPC & Model Town 25/27/54/59 Arms Act 5 67/99 10.03.99 302/336 IPC Keshav Puram 6 379/04 15.7.04 223/225/328/216/120B/ 34 Defence IPC Colony 7 314/04 09.08.04 186/ 353/307/34 IPC & R.M.D. 25/27/54/59 Arms Act 8 166/04 06.12.04 506 IPC Kundali (Haryana) 9 304/04 12.12.04 386/387/120B IPC Civil Line Sonepat St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 100
It is in the above background that the prosecution is demanding Capital Punishment against the accused Jitender @ Kalla. The prosecution has placed its reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681. The Ld. Special Prosecutor has also placed its reliance on the case of Shivaji Vs. State of Maharastra reported in 2008 (4) AD (CR.) SC 665.
Ld. Counsel appearing on behalf of the convict has on the other hand vehemently argued that the convict is a young man and there is nothing on record to show that he is a menace to the society since all the FIRs registered against the convict are the outcome of the personal animosity of the convict with the complainant. It is argued that the case in hand does not fall within the category Rarest of Rare Case and therefore, under these circumstances, it will be inappropriate to impose Capital Punishment upon him.
I have considered the rival contentions. At the very outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be keep in mind before awarding a death sentence in any given case.
St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 101
The law is well settled in the decision in Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], wherein it was held that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. Again it was cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the accused as also the offence. Some aggravating circumstances were also culled out, they being:
(a) Where the murder has been committed after previous planning and involves extreme brutality; or
(b) Where the murder involves exceptional depravity.
The mitigating circumstances which were mentioned in that judgment were:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance;
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;
(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;
St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 102
(d) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) above;
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;
(f) That the accused acted under the duress or domination of another person; and
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], wherein the Hon'ble Supreme Court insisted upon the mitigating circumstances being balanced against the aggravating circumstances. The aggravating circumstances were described as under:
(a) When the murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.
(b) When the murder of a large number of persons
of a particular caste, community, or locality is
committed.
(c) When the murder of an innocent child, a helpless
woman is committed.
It was also observed by the Hon'ble Court that at the same time it must be kept in mind that the principle of there being a proportion St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 103 between punishment and offences ought not to be so mathematically followed so as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes.
In the case of Shivaji Vs. State of Maharashtra reported in 2008 (4) AD (CR.) SC 665 the Hon'ble Apex Court considered as to whether or not circumstantial based conviction should be taken to be the mitigating factor and had observed that the plea that in case of a circumstantial evidence, death should not be awarded, is without any logic. It was also observed that if the circumstantial evidence is found to be of unimpeachable character in establishing the guilt of the accused, which forms the foundation for conviction, that have nothing to do with the question of sentence as has been observed in various cases while awarding death sentence. The Hon'ble Court was of the view that to treat circumstantial evidence as mitigating circumstances would amount to consideration of an irrelevant aspect and in a case which falls in the Rarest of Rare category death sentence should be awarded.
However, the Hon'ble Apex Court in the case of Swami Shradhanand Vs. State of Karnataka reported in 2008 (13) SCC 767 considered an alternative option and substituted the death penalty with life imprisonment with the directions that the convict must not be released St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 104 for the rest of his life.
The question now before this court is whether a punishment lesser than death would be wholly inadequate or whether the alternative option as proposed in the case of Swami Shradhanand Vs. State of Karnatka reported in 2008 (13) SCC 767 and Shree Gopal @ Mani Gopal Vs. State, Crl. Appeal No. 528/09 decided on 31.8.2009 would be adequate.
In a case pertaining to the imposition of death sentence in the case Santosh Kumar Satish Bhushan Bariyar Vs. State of Maharastra decided on 13.5.2009 reported in JT 2009 (7) SC 249 the Hon'ble Apex Court has highlighted the important facet pertaining to the sentencing procedure being the consideration of alternative options. Discussing the nature and the content of the Rarest of Rare dictum, the Hon'ble Apex Court observed that a real and abiding concerned for the dignity of human life postulates resistance to taking a life through instrumentality of law. That ought not to be done, save in the rarest of rare cases, where the alternative option is unquestionably foreclosed. It was observed that imprisonment for life as penalty entails, is that the accused must remain in prison till his life i.e would never be set free from jail. The executive, however, has the power of remission under Section 433 Cr.P.C which is subject to the restriction imposed by section 433A Cr.P.C as per which a person sentenced to imprisonment for life or one whose sentence St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 105 of death has been commuted to imprisonment for life cannot be released from prison unless he/she has served at least 14 years of imprisonment.
The alternative option considered by the Court was to pass a direction that the accused who has been held guilty would not be released from prison till a sentence more than 14 year imprisonment has been suffered by the accused who has been sentenced to undergo imprisonment for life.
Hon'ble Mr. Justice Pradeep Nandrajog in his decision as rendered in Shree Gopal @ Mani Gopal (Supra) in a case pertaining to the killing of an eye witness and injuring of his security officer in a shoot out by the accused in full public view, examined this facet pertaining to the sentencing procedure i.e of consideration of alternative options while referring to the decision of Hon'ble Supreme Court of India as rendered in the case Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra reported in JT 2009 (7) SC 249. Hon'ble Mr. Justice Pradeep Nandrajog also considered the various alternatives available to him in the light of Section 433 Cr.P.C. and Section 433A Cr.P.C. regarding the meaning of the sentence for imprisonment for life and the power of the executive to grant remission but, not before a period of 14 years of imprisonment. He also referred to various other decisions of Hon'ble Supreme Court of India while classifying the sentence of imprisonment in two categories i.e the ordinary category whereby the court leaves the exercise of executive power at the discretion of the St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 106 executive, to be so exercised after 14 years of imprisonment and grant remission; and a higher category, where the Court, in a Rare Case, but not the Rarest of the Rare, would clip the said benefit being extended to the convict by directing that the convict shall undergo an actual sentence for a higher period or even for the remainder of his life. Such kind of cases can be put in the category of Rare Cases with appropriate direction of not being entitled to the benefit of remission till a fixed term of imprisonment is undergone. Some of the decisions, noted in this regard by the Hon'ble Judge were Swami Shraddhanand Vs. State of Karnataka reported in AIR 2007 (SC) 2531 in paras 60 to 63 of the said decision i.e the decisions reported as Shri Bhagwan Vs. State of Rajasthan reported in 2001 (6) SCC 296, Parkash Dhawal Khairnar (Patil) Vs. State of Maharashtra reported in 2002 (2) SCC 35, Ram Anoop Singh Vs. State of Bihar reported in 2002 (6) SCC 686 and Mohd. Munna Vs. Union of India reported in 2005 (7) SCC 417. The convict in the said case was thus sentenced to imprisonment for life with a direction that he will not be considered for being grant of remission till he undergoes an actual sentence of 20 years.
Applying the settled principles of law to the facts of the present case, it may be noted that the victim in the present case was none else but the father of an eye witness to the killing of Anil Badana. By threatening and killing witnesses, the eyes and ears of a court are under St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 107 attack and the stream of justice gets polluted (Shree Gopal Vs. State (Supra). The convict in the present case had first killed Anil Badana who was the injured (witness) in case FIR No.125/96 PS Model Town. Thereafter on learning that Sumit Nayyar an eye witness to the killing of Anil Badana had called the police, immediately came to the house of Sumit Nayyar within a short span of 1 - 1½ hours and killed his innocent father when he did not find Sumit Nayyar at home. His trail did not end here and the accused thereafter planned and escaped from police custody during the remand and has been allegedly threatening the witnesses during the trial in respect of which various FIRs have been registered.
Instances of witnesses being threatened intimidated or won over has plagued the criminal justice delivery system in India which is under public gaze. Failure of the criminal justice delivery system would only give rise to unrest and lawlessness in the society and the rule of law would ceased to exist. The convict has taken the law in his hands on several occasions. The present murder of Kimti Lal Nayyar, the father of Sumit Nayyar an eye witness to the murder of Anil Badana; was committed by him in cold blood without any instigation or provocation by the innocent and helpless senior citizen. This act of the convict is such, which shows that he has no concern for law and human life. His repeated acts of playing with law adversely affects and shakes the faith of a common man in administration of justice who would be discouraged and dissuaded from approaching the court of law to depose against the St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 108 criminals.
In the case of Shree Gopal @ Mani Gopal Vs. State (Supra) under similar circumstances, the Delhi High Court has Ruled against Capital Punishment but at the same time has held it to be a Rare Case thereby sentencing the convict to life with the condition that he shall not be entitled to any remission till he has undergone an actual imprisonment for 20 years. The case of convict Jitender @ Kalla stands on slightly different footing since the convict Jitender @ Kalla is involved in a double murder within a span of 1-1½ hours in respect of which two separate FIRs had been registered and is the B.C. (Bad Character) of the area having other serious involvements.
Our Criminal Justice System stands on ocular evidence besides scientific evidence. The ocular evidence is considered to be the best evidence. Criminal Courts are frequently confronted with situations wherein all kinds of strategies are used to secure acquittal of the guilty which include winning over and threatening witnesses and if that fails, even liquidating them. The prime duty of the judiciary is to keep the wheel balanced and it has to be borne in mind that respect for human rights of the accused is not the only value at stake; the victim and society being the other stake holders whose interests are to be equally safeguarded. Increased instances of crime exert adverse impact on the society. The social structure of a community is challenged wherever the incidents of crime are high. In this background one finds the Justice St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 109 System crumbling and it is the crying need of the hour that any attempt to subvert the system is quelled with a heavy hand failing which it will result in to anarchy in the society where common man will loose faith and confidence in the system. The repetitive acts of the convict in taking law into his hands adversely affects social psyche and the faith of the people in the Criminal Justice System of the country. Any crime directed towards the witness has to be discouraged and put down firmly and no challenge to the system can be permitted.
The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is desirability to keep the offender out of circulation. Keeping in view the background of the convict and the circumstances of the case, I am of the view that the present case cannot be put on the same pedestal as other ordinary murder case but at the same time it also does not fall within the category of Rarest of Rare Case. The fact that the convict has a history of violence would not be in itself sufficient to entitle this court to seek resort to the extreme action under the category of Rarest of Rare. The case in my view falls within the St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 110 category of a Rare Case calling for consideration of alternative options.
In respect of FIR No. 67/99, Police Station Keshav Puram vide a separate order passed today the convict Jitender @ Kalle has been sentenced to Rigorous Imprisonment for life with the condition that he shall not be considered for remission till he has undergone actual punishment for 30 years. In the present case I sentence the convict Jitender @ Kalle to Rigorous Imprisonment for life - Till the rest of his life and also to pay a fine for a sum of Rs.3,00,000/ (Rs. Three lacs) for the offence under Section 302 IPC. In default of payment of fine the convict shall undergo Simple Imprisonment for three years. It is directed that out of this fine amount of Rs.3,00,000/ (Rs. Three lacs) if recovered, a sum of Rs.1,00,000/ (Rs. One lacs) shall be paid to the State and the remaining amount of Rs.2,00,000/ (Rs. Two lacs) shall be paid to the family of the deceased Kimti Lal Nayyar.
The sentence in the present case shall start running consequent to and only after the conclusion of the sentence imposed upon the convict in case FIR No.67/99 PS Keshav Puram.
The convict is already in judicial custody. He is sent to custody for serving the sentence. Benefit of Section 428 Cr.P.C. shall be given to the convict for the period undergone by him during the trial as per rules.
St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 111
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
One copy of the judgment and order on sentence be given to the convict free of costs and one of order on sentence be attached with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 1.07.2013 ASJ (NW)II: ROHINI
St. Vs. Jitender @ Kalla & Anr., FIR No. 68/1999, PS Mukherjee Nagar Page No. 112