Delhi District Court
SC/27939/2016 on 8 November, 2017
1
IN THE COURT OF SH. NARINDER KUMAR:
SPECIAL JUDGE2 NDPS ACT:
(CENTRAL DISTRICT):TIS HAZARI COURT:DELHI
FIR No. 103/07
PS Sri Niwas Puri
State v. Mohd. Kasim etc.
Under Section 302, 394, 472, 34 IPC and 25 & 27 of Arms Act
In the matter of:
1. Mohd Kasim @ Khan Saheb
S/o Allah Rakkha,
R/o Mohalla Darbar Kalan,
Kasba Kairana, Muzaffar Nagar, UP.
2. Abdul Rehman
S/o Mohd. Idresh,
R/o Mohalla PachhanaChamaran
in front of Canara Bank, Bhudana, Muzafarnagar.
....Accused persons
Date of Institution:
25.06.2007
Date of Judgment:
09.11.2017
JUDGMENT
Both the above named accused and their coaccused Sharafat Ali @ Mama (since absconding) and Sajid @Sahil 2 (since absconding) have been facing trial for offence under Section 302, 394, 472, 34 IPC and 25 & 27 of Arms Act.
Accusation levelled against them by the prosecution is that on 11.03.2007, at about 8.30 pm, on service road near Bhogal Flyover, Hari Nagar Ashram, Delhi, all of them in furtherance of their common intention committed murder of Vinay Kumar Jain, while he parked his Santro Car no. DL 3CP 8382 at the said place, and that the accused also committed robbery by removing jewellery from the possession of said Vinay Kumar Jain.
Kasim and Abdul Rehman accused are said to have kept in their possession fire arm i.e. pistol and ammunition and to have used the same in commission of robbery. In commission of the robbery and murder, two motorcycles having registration no. DL 3SAY 0345 (but bearing false no. DL 7SAJ 5682) and HR 51S 5331 bearing this false number are said to have been used.
Case of prosecution is that on 11.03.2007, at about 8.30pm, Vinay Kumar Jain (deceased) parked his Santro car bearing no. DL3 CP 8382 on service road near house no. 276 in front of Bajaj Showroom, Hari Nagar, Ashram near Bhogal 3 flyover, having returned from his shop, after having closed the same.
PW Kishan Chand Jain, cousin brother of Sh. Vinay Kumar Jain witnessed shots being fired at him (Vinay Kumar Jain) by some persons. PW Kishan Chand Jain rushed to the house of the victim and apprised his wife Smt. Nutan and other family members of the occurrence.
Sh. Naresh Chand Jain uncle of the deceased, also reached the spot on having heard shots being fired, and found that his nephew Sh. Vinay Kumar Jain was lying on road with bullet injuries at a short distance from his shop. At that time, he saw four persons on two motorcycles running away with jewellery bag of his nephew.
Smt. Nutan and her brother in law reached the spot and found her husband bleeding, while lying near his Santro Car. PW Ashwani Jain also reached spot Case of prosecution is that family members of Vinay Kumar Jain removed him from the spot to Jeewan Nursing Home, where he succumbed to injuries on the same night.
4Sh. Surender Panda, a neighbor, while present on the roof of his house also heard as if shots were being fired. Thereupon he rushed down stairs and inquired from the persons present. He informed PCR dialing number 100. PCR communicated this information to local police of PS Sriniwaspur.
On the same night, at about 8.50 pm, information was received at PS Sriniwas Puri from wireless operator regarding firing of shots near house no. 276 in front of Bajaj Showroom, Hari Nagar, Ashram near Bhogal flyover. It led to recording of DD No.15A, which came to be assigned to ASI Bengali Babu. The ASI and Ct. Iliyas left the PS for the disclosed place. There they came to know that injured had already been removed to hospital by PCR van.
On the same night at about 9.25 pm, information was received from wireless operator at PS Sri Niwas puri that a male 40 years was brought to Jeevan Nursing Home by his wife and daughter and that he had been declared brought dead due to fire arm injury. This led to recording of DD No.16A which was assigned to ASI Bhagel Singh through Ct. Adarsh.
5Inspector Mahender Singh also reached the spot and found one Santro Car present there with broken glass and signs of firing.
Having received information vide DD No. 16A that Vinay Kumar Jain had expired at Jeewan Nursing Home, the Inspector left ASI Bengali Babu at the spot to guard it and himself reached the hospital.
Since it was drizzling, Inspector directed ASI Bengali Babu to lift blood and sample etc from the spot and the ASI complied with.
On reaching the hospital, Inspector found that dead body of Vinay Kumar was having bullet injures. The mobile phone carried by deceased had also bullet marks.
The inspector recorded statement of Kishan Chand Jain, cousin brother of the deceased, prepared rukka and got this case registered.
The Inspector then got the dead body sent to AIIMS mortuary through ASI Bengali Babu for preservation, and he himself returned to the spot.and lifted material exhibits i.e. two empty cartridges, iron, rod, motorcycle indicator glass, car, blood earth control vide memos.
6Crime Team also reached the spot, inspected it. Inspector Mahender Singh prepared site plan of the spot.
Case of prosecution is that on the next day, SI K. P. Shah was sent to the spot for inspection in detail and during spot inspection, the Sub Inspector found four fired bullets at the spot and seized the same.
Inspector Mahinder Singh then reached the hospital to get the dead body subjected to autopsy. He prepared inquest proceedings. Dr. Chittranjan Behra conducted autopsy on dead body of Vinay Kumar Jain and prepared report.
After the post postmortem dead body was delivered to the relative of the deceased.
The Inspector also collected from the hospital parcels containing the clothes of the deceased vide a memo.
On 12.03.2007 Inspector Mahender Singh sent ASI Bengali Babu to FSL office, Lodhi Colony with Santro Car DL 3CD8382 i.e. of the deceased. From the FSL, ASI Bengali Babu collected two pieces of pellets found by the expert of CFSL .
It is case of the prosecution that on 12.3.2007 at 11:55 pm near Trauma Centre Hospital, civil Lines, Delhi, all the four accused were signaled by the police parties consisting 7 of Inspector Bhagwati Prasad, ASI Ravinder Singh, HC Rajeev Mohan, HC N.K.Pavitran, HC Ragender, Ct. Bijender, Ct. Devender, Ct. Bhagat and Ct. Sanjay Sen to stop just before traffic light point, Trauma Centre, Civil Lines, while they (accused) were travelling in car no. DL 8CRB 8231. They did not stop and rather tried to flee away. They were chased.
At that time, three of them namely Mohd. Kasim, Abdul Rehman and Sharafat are said to have opened fire at different members of the parties. Sajid is said to have tried to attack another member of the party. All of them were apprehended by different members of the parties.
As per prosecution version, some members of the police party had also to retaliate. Abdul Rehman accused is said to have been seen driving the said car. One pistol of 7.62 mm loaded with two live cartridges was recovered from Kasim accused. He was also found in possession of 400 gms of jewelery which was part of stolen property of this case.
Abdul Rehman accused was found in possession of one pistol of 7.62 mm with one fired cartridge struck in its chamber and four live cartridges in the magazine; He was also 8 found in possession of 430 gms of jewelery which formed part of stolen property of this case.
Sajid accused is said to have been found in possession of 400 gms of gold jewelery, which formed part of stolen property of this case.
Sharafat Ali accused is said to have been found in possession of 400 gms of gold jewelery, which too formed part of stolen property of this case.
From the spot, aforesaid Indica car and one cartridge case were recovered and seized.
On 14.03.2007, Inspector Mahender Singh arrested all the accused persons by moving application seeking their production in Court arrest memos and obtained their custody by way of police remand.
During interrogation, accused persons are said to have made disclosure statements and then pointed out the place from where they followed Vijay Kumar Jain.
The Inspector got transferred the case property from PS Civil Lines to PS Sri Niwaspuri.
On 09.04.2007 and 12.4.2007 TIP proceedings in respect of the case property were conducted by Sh. Sanjay 9 Bansal, Metropolitan Magistrate. Wife and brother of the deceased is said to have identified some keys and the bag containing jewellery which belonged to the deceased. Using these keys locks of the shop of the deceased are said to have been opened. Locks were then seized vide a memo.
Inspector Mahender Singh got prepared scaled site plan of the place of occurrence.
Material exhibits were got despatched to FSL, Rohini where the same were analyzed. Reports were collected from FSL.
On completion of investigation challan was put in Court.
2. Copies of challan and accompanying documents supplied to the accused persons in compliance with provisions of Section 207 CrPC. Thereafter, the case came to be committed to the Court of Session.
Charge
3. Prima facie case having been made out against the accused persons, charge for the offences under Section 302, 10 394, 472, 34 IPC and 25 & 27 of Arms Act framed against the accused persons. Accused persons pleaded not guilty and claimed trial.
Prosecution evidence
4. In order to prove its case, prosecution has examined following witnesses: PW1: Smt. Nutan PW2: Sh. Ashwani Jain PW3: Sh. Mohit Chopra PW4: Sh. Krishan Kumar PW5: Sh. Praduman Kumar Jain PW6: Sh. D. K. Jain PW7: Sh. Kishan Chand Jain PW8: HC Om Prakash PW9: HC Manoj Kumar PW10: Sh. Ashok Kumar PW11: Ct. Devender Singh PW12: Sh. Naresh Chand Jain PW13: Sh. Raj Kumar Jain PW14: ASI Bengali Babu PW15: HC Nihal Singh PW16: SI Mahesh Kumar 11 PW17: Sh. Dhanpal Singh PW18: Sh. N. B. Bardhan PW19: Sh. Surender Panda PW20: HC Rajesh Chauhan PW21: HC Bir Sain PW22: Ct. Liyas Mohammad PW23: Sh. Raj Kumar Saini PW24: Ct. Ravinder PW25: ASI Ravinder PW26: Sh. Rakesh Kumar Tiwari PW27: ASI Dharampal PW28: Sh. Deepak Sagar PW29: Sh. Ravi Dutt PW30: SI K. P. Shah PW31: Inspector Sunil Kumar PW32: Inspector Bhagwati Prasad PW33: Sh. Sanjay Bansal, ACMM, North, Tis Hazari Courts, Delhi PW33: HC Om Prakash PW34: ACP Mahender Singh PW35: Sh. Madhup Kumar Tewari, Addl. C. P. PW36: Sh. Sanjay Bhatia, Addl. DCP PW37: Sh. Hera Adhikari PW38: Sh. Deepak Kumar Tanwar 12 PW39: ASI Rajeev Mohan (though earlier only copy of his statement in case FIR No. 56/07 as PW4 was placed on record.) PW34: HC N. K. Pavitran (photocopy of statement of the witness recorded as PW1 in case FIR No. 56/07) PW35: Sh. Harish Chand Sharma (photocopy of statement of the witness recorded as PW2 in case FIR No. 56/07) PW36: HC Rajeev Mohan (photocopy of statement of the witness recorded as PW4 in case FIR No. 56/07) PW37: Ct. Duli Chand (photocopy of statement of the witness recorded as PW5 in case FIR No. 56/07) PW38: ASI Hira Lal (photocopy of statement of the witness recorded as PW6 in case FIR No. 56/07) PW39: HC Surender Kumar (photocopy of statement of the witness recorded as PW7 in case FIR No. 56/07) PW40: Sh. Naresh Kumar (photocopy of statement of the witness recorded as PW8 in case FIR No. 56/07) PW41: Ct. Devender Singh (photocopy of statement of the witness recorded as PW11 in case FIR No. 56/07) Statements of accused under Section 313 CrPC
5. When examined under section 313 Cr. P.C., the accused denied all the incriminating circumstances appearing in evidence against them.
13Despite opportunity, the accused have opted not to lead any evidence in defence.
Plea put forth by kasim accused reads as follows: Actually, I was picked up by the police, with my wife, brother and children on 11.3.2007 and detained at some place in Delhi and then ultimately, falsely implicated in this case and other section u/s 302 IPC.
Plea put forth by accused Abdul Rehman reads as under: I have been falsely implicated in this case. On 09.03.2007, police picked up me from my house at 7:00 p.m. and brought me to some place at Delhi where I was detained and ultimately, I was falsely implicated in this case and other section u/s 302 IPC.
6. It may be mentioned here that earlier vide judgment dated 14.8.2012, the case was disposed of by my Learned Predecessor with judgment of conviction followed by order on sentence dated 5.9.2012. When three criminal appeals no. 1313/12, 39/13 and 367/13 were filed 14 challenging the judgment of conviction and order on sentence, in this case and the other case FIR No.103/07. Hon'ble High Court vide order dated 09.12.2014, set aside the judgments dated 14.8.2012 and order on sentence passed in both the cases passed in both the cases and remanded the matters for further trial while observing in the manner as: "At the remanded stage, the learned counsel for the four accused would file an application before the learned Trial Judge indicating which witnesses need to be recalled for purposes of crossexamination. The learned Trial Judge would pass appropriate orders in the said application keeping in view the law that at a criminal trial where the accused are charged with having committed serious offences inviting even capital punishment, fair opportunity of defence warrants that if counsel for the accused is not present right to crossexamine the witnesses should not be closed mechanically. If need be, services of an amicus should be provided to the accused.
Likewise where a previous counsel has inadvertently not crossexamined material witnesses, such as in the instant case Naresh Chand Jain PW12, consequences of not cross examining the witnesses and incriminating evidence proved through the witness going unchallenged should be considered. Meaning 15 thereby a justice oriented approach should be followed by the learned Trial Judge while considering the application."
7. After the case was received back, on 23.09.2015 PW12 Naresh Chand Jain and PW8 HC Om Prakash were crossexamined and discharged.
After the remand of the case, Sh. Ashutosh Bhardwaj, Advocate moved an application under Section 311 CrPC on behalf of Mohd. Kasim and Sajid with prayer for recalling of PW8 HC Om Prakash, PW11 Ct. Devender Singh, PW32 Inspector Bhagwati Prasad, PW33 Sh. Sanjay Bansal, ACMM, PW34 ACP Mahender Singh and PW34 HC N. K. Pavitran.
On the other hand, Ld. Addl. PP filed an application under Section 311 CrPC for further examination of PW8 HC Om Prakash, PW11 Ct. Devender Singh & PW32 Inspector Bhagwati Prasad.
On behalf of Sajid, Abdul Rehman and Mohd. Kasim no objection was raised to this submission of Ld. Addl. PP. Accordingly, PW8, PW11 and PW32 were allowed to be summoned for crossexamination.
16PW33 Sh. Sanjay Bansal, PW34 ACP Mahender Singh and PW34 Ct. N. K. Pavitaran were also allowed to be summoned for crossexamination.
Accordingly, they have been examined and cross examined.
8. It is significant to note that during pendency of the proceedings Sharafat Ali accused declared proclaimed offender. Ultimately, Sajid accused also absented. In view of the submissions put forth on behalf of both the sides, while issuing process under Section 82 CrPC qua Sajid Court proceeded further qua the remaining two accused, to avoid delay in the disposal of the case.
9. Arguments heard. File perused.
Discussion Vinay Kumar Jain is attacked and robbed
10. As noticed above, occurrence took place on 11.03.2007 at about 8.30pm, on service road near house no. 276 in front of Bajaj Showroom, Hari Nagar, Ashram near 17 Bhogal flyover.
PW1, PW2 and PW12 alongwith other relatives, their arrival at the spot, after the occurrence, removed Vinay Kumar Jain to Jeewan Nursing Home, where he was declared brought dead.
Information reaches P.S.Sriniwaspuri
11. PW19 Surender Panda deposed that on 11.3.2007 at about 8/8:30 pm while present on the roof of his house and making a phone call to someone he heard firing of bullets. He rushed down stairs and enquired from the persons gathered there. He then informed PCR dialing number 100, which was received by PW21 HC Vir sen of PCR. It is also in the statement of PW21 that on 12.3.07, he came to know that in the incident of bullet, Jain Sahib his neighbour was hit. He told the police about these facts.
PW20 HC Naresh Chauhan deposed that while serving at PS Sriniwaspuri on 11.3.2007 at about 8.50 pm, he received information from wireless operator regarding DD No.15A, copy Ex.PW20/A. PW20 has also proved recording of DD No.16A, 18 copy Ex.PW20/B, and copy of FIR Ex.PW20/C and copy of DD NO.17A Ex.PW20/D and also about dispatch of special reports of this case to senior police officers and concern Metropolitan Magistrate.
PW14 ASI Bengali Babu deposed that on 11.03.2007 at about 8.50 pm, on receipt of DD no. 15A Ex PW20/A regarding firing near house no. 276 in front of Bajaj Showroom, Hari Nagar, Ashram near Bhogal flyover he accompanied by Ct. Ilias Mohd reached the spot. There he came to know that injured had already been removed to hospital by PCR van.
At about 9.25 pm, information was received from wireless operator at PS Sri Niwas puri that a male 40 years was brought to Jeevan Nursing Home by his wife and daughter and that he had been declared brought dead due to fire arm injury. This led to recording of DD No.16A which was handed over to ASI Bhagel Singh through Ct. Adarsh.
The scene of crime is inspected by PW34 for the first time
12. PW34 ACPthen Inspector Mahender Singh also came to know of DD No.15A Ex PW20/A. According to PW34, 19 accompanied by his staff, he reached Hari Nagar, Ashram, near flyover. At the spot, he found one Santro Car. The glass of the car was found broken, there were signs of firing on the car, one iron rod, blood, fire bullet, one glass of indicator of motorcycle were seen lying there.
Inspector leaves for hospital
13. According to PW34Inspector, on having received information vide DD No. 16A Ex PW25/B that Vinay Kumar Jain had expired at Jeewan Nursing Home, he reached the hospital.
At the hospital, PW34 found that Vinay Kumar was having bullet injures. The mobile phone carried by Vinay Kumar Jain was having bullet marks. Mobile phone of the deceased was seized vide memo Ex PW2/A. Case is got registered
14. According to PW34Inspector he recorded statement of Kishan Chand Jain, cousin brother of the deceased Ex PW7/A prepared rukka Ex PW34/A and got this case registered vide FIR Ex PW20/C through Ct. Ilyas.
20PW7 Kishan Chand Jain has proved to have made statement Ex.PW7/A before the police.
Medical Evidence
15. As per autopsy on the dead body of Vinay Kumar Jain, the doctor observed following injuries on the dead body:
1. Fire arm entry wound of size (0.6 x 0.9 cm) oval shape, contused margin present over the right upper back of the trunk 12 cm right lateral to midline, 9cm below and behind the tip of right shoulder and 140 cm above the right foot.
On opening the wound a tract was seen which gone through downward left and anterior piercing the subcutaneous tissue, muscles, right scapula bone, in between the ribs, then entered into right chest cavity piercing right upper lobe of lung at upper part and the left upper lobe of lung and exit through the left lateral chest wall tear anterior axillary line with would (1 x 0.8 cm) everted margin, which was 24 cm left lateral to midline, 10 cm below and lateral to left nipple, 129 cm above the left foot. Blood was oozing out from the exit would. Both lungs were collapsed. Blood (clotted) about 1 liter present in thoracic cavity.
2. Fire arm wound of size 0.7 x 0.7 cm circular present over right upper lateral thigh 21 69 cm above the right heel, 18 cm below and lateral to right mid inguinal point. This would was muscle deep. There was communited fracture of right femur bone in upper 1/3rd at the level of fire arm would associated with haemotoma.
3. Abrasion of size 4 x 1 cm present over right upper face.
4. Abrasion of size 5 x 0.5 cm present over left leg, upper 1/3rd anetrior aspect.
5. Grazed abrasion of size (2 x 1 cm) present over left knee joint another aspect.
6. In scalp there was a lacerated wound of length 5cm, width 0.5 cm obliquely present over frontal region. Subscalp haemotoma in an area of (5 x 3) cm present in the frontal region. Subscalp haemotoma in an area of (3 x 3cm ) present over the occipital region.
In the opinion of the doctor, cause of death was shock and hemorrhage as result of injuries mentioned in the postmortem examination report.
Injury no. 1 and 2 were caused by fire arm. Injury no. 1 was sufficient to cause death individually in ordinary cause of the nature. All the injuries observed on the dead body were antemortem in nature.
PW19 prepared postmortem examination report Ex 22 PW19/A. It is case of the prosecution that subsequent opinion of the doctor was also obtained. Same is Ex PW19/C. Question arises as to who were the assailants?
16. PW7 Kishan Chand Jain, cousin brother of Vinay Kumar Jain (deceased) has deposed to have witnessed the occurrence to an extent, while on 11.03.2007 at about 8 8.30 pm, he was riding his scooter DL 3SL 6651 and going towards Jaya Ram Ashram.
According to him, he saw Santro car bearing no. DL3 CP 8382 Ex PW7/J of Vinay Kumar Jain lying parked at the aforesaid place.
He also saw some persons hitting the window panes i.e. the rear portion of the car and left hand side, with iron rods. When he reached there, those persons threatened him to go back or that they would shoot him. Leaving his scooter, he went to the house of Vinjay Kumar Jain house which was at a distance of 2025 steps and called parents, wife, sisters and sons of Vinay Kumar. Then all of them rushed to the spot. He deposed to have heard shots while they were coming out of the house of Vinjay Kumar Jain.
23As per prosecution version, blood was oozing from the chest and leg of Vinay Kumar Jain.
PW7 has proved his statement Ex PW7/A made before the police.
As regards identity of the assailants, according to PW7, none of the assailants was found present there, when he and other family members reached the spot.
In his crossexamination PW7 was confronted with his statement Ex PW7/A where it stands recorded that he saw only one boy hitting on the left side window pane of the car of Vinjay Kumar Jain and that the said boy took out a revolver and threatened him to shoot him in case he did not run away.
So, in this regard the witness made statement in Court in contradiction with the statement Ex PW7/A where only one boy instead of four boys were said to have been witnessed by him.
Even as regards the only boy, he saw, as per statement Ex.PW7/A, no physical description of said boy finds mention therein. It also remains unexplained as to why he changed his version regarding number of the offender from one to four. While making statement in Court, PW7 did not 24 give description of the four assailants.
Fact remains that PW7 at no stage stated that any of the accused present in court was the assailant, witnessed by him, at the spot or that any one of them was indulging in such and such act at the spot.
The witness was also confronted with his statement Ex PW7/A wherein he did not state that Vinay Kumar Jain was inside the car. So the witness improved upon his statement made before the Court while stating that Vinay Kumar Jain was seen inside the car. Had he seen Vinay Kumar Jain inside the car, he would not have omitted to state so in Ex.PW7/A. In his statement Ex PW7/A it also does not find mention that the witness had seen blood oozing from the leg of Vinay Kumar Jain. In Ex PW7/A he is said to have told the police that blood was oozing from the left side of Vinay Kumar Jain.
The fact remains that it is not case of prosecution that PW7 witnessed any of the accused committing robbery and causing injuries to Vinay Kumar Jain or damaging his vehicle.
25PW1
17. PW1 Smt.Nutan is widow of Vinay Kumar Jain. Occurrence did not take place in her presence. She rushed to the spot only after PW7 reached their house and apprised her and other members of the occurrence.
According to her, on 11.03.2008, at about 8 or 8.30 pm her Jeth Kishan(PW7) came to their house in perturbed condition and told her father in law Sh. Chander Bhan, that 3 4 armed persons were fighting with her husband. Thereupon, she came out of the house and reached the place where her husband used to park his car. On reaching there she found her husband bleeding and lying near his Santro Car. Few persons from the public were present there.
According to her at the time of incident one door of the car was open and glass as broken and there was nothing in the car except one can of water.
5060 persons had gathered at the spot after occurrence. PW1 stated in her crossexamination that police did not make inquiry from those persons who were stating that assailants had come on two motorbikes. She also stated that she had come to know of this fact from some one but she did 26 not remember as to from whom she had come to know of this fact.
PW2
18. PW2 Ashwani Jain is real brother of Vinay Kumar Jain. He is also not a witness to the occurrence. He too reached the spot subsequently on having learnt about it from PW7.
According to him, on 11.03.2007 at about 8 - 8.15 pm, he was washing his mouth and teeth when Kishan Chand PW7 reached his house and told him that quarrel was going on between Vinay Kumar and some persons. Thereupon, he and his family members rushed to the site and found his brother lying dead on the road.
As noticed above, when PW7 himself stated before the police in Ex.PW7/A about presence of only one assailant, it is not believable that he told family members of Vinay Kumar Jain, on reaching home, that there was quarrel between some persons and Vinay Kumar Jain.
27PW12
19. PW12 Naresh Chand Jain is uncle of deceased.
According to him, on 11.03.2007 he was putting down shutter of his shop at about 8.30pm. All of a sudden, he heard noise of firing. He found that his nephew Sh. Vinay Kumar Jain had fallen down after receiving bullet injuries at a distance of about 50 feet from his shop under the bridge. He saw four persons on two motorcycles carrying jewellery bag of his nephew and that they were fleeing away.
But this witness has not identified any of the accused as the assailant involved in the occurrence.
From the above evidence led by the prosecution, it can safely be said that the assailant or assailants, whosoever attacked Vinay Kumar Jain, on the given date, time and place, could not be identified by PW7 or anyone else, and as such it is to be seen as to whether from the other evidence, prosecution has been able to connect the accused persons,present before the Court, with the crime in question.
20. Learned Additional Public Prosecutor has submitted that as regards identity of the assailants, case of prosecution is based on circumstantial evidence.
28Submission is that prosecution has fully proved all these circumstances, which lead to the only conclusion that these are the accused herein, who were involved in the robbery and commission of murder of Vinay Kumar Jain on the given date, time and place, and that none else was involved in its commission.
Herein prosecution has relied on the following circumstances:
1. Recoveries of firearms and ammunition, jewellery of the deceased on the night of 12.03.2007 by Special Crime Team;
2. Recovery of Keys of the shop of the deceased, bag of the deceased, four helmets said to have been used in commission of the crime and Recovery of two motor cycles used in commission of crime,
3. Pointing out of the shop of the deceased by the accused as the place from where they chased the deceased on 29 the given date.
4. Recovery of an iron rod, empties, and a broken indicator of one motor cycle, from the place of occurrence i.e. where Vinay Kumar Jain as attacked.
5. Forensic Reports.
Learned Addl. Public Prosecutor has contended that prosecution has established guilt of the accused, present before the Court, beyond doubt, and recoveries of material objects from the accused persons soon after the occurrence lead to the only conclusion that they were involved in commission of the robbery and murder and in support of his contention, learned Addl. PP has placed reliance on following decisions based on circumstantial evidence:
1. Munna Kumar Upadhyay alias Munna Upadhyay v. State of Andhra Pradesh (2012) 6 Supreme Court Cases 174.
2. Ramesh v. State of Rajasthan MANU/SC/0145/2011 30
3. Snajay @ Kaka etc v. The State (NCT of Delhi) 2001 (1) ACR 678 (SC).
4. Shashi Shekhar @ Neeraj @ Raju v. State 141 (2007) DLT 145.
21. It is well settled that where the evidence is of circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as, not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In this regard reference may be made to decision in Hanumant Govind Nargundkar's case AIR 1952 SC 343 and Umed Bhai v. State of Gajarat, AIR 1978 SC 424; and Sukhram v. State of Maharashtra, (2008) 7 SCC 502.
3122. In view of the well settled law on the point of evaluation of circumstantial evidence, as reproduced above, court proceeds to find out if prosecution has been able to establish any of the circumstances relied on to connect the present two accused with the present crime.
Recoveries of articles from the place of occurrence i.e. where Vinay Kumar Jain was attacked.
23. According to PW14 ASI Bengali Babu when PW34 left him at the spot to guard it and himself left for the hospital, since it was drizzling, PW34 directed him to lift the blood and sample etc. So he lifted blood samples with the help of cotton from the spot.
PW34 Inspector Mahender Singh returned to the spot and lifted/seized material exhibits i.e. two empty cartridges, iron rod, motorcycleindicatorglass, car of Vinay Kumar Jain, sample of blood and sample of earth control vide memos Ex PW7/B, Ex PW7/C, Ex PW7/E, Ex PW7/F and Ex PW7/G. Ex PW7/D is the sketch of the cartridges.
As per prosecution version, the parcels prepared at the spot regarding sample of blood and earth control, parcel 32 containing indicator glass, containing the two empties were sealed by Inspector Mahinder Singh with his seal bearing impression MS. There is nothing in the memos to suggest that after use the seal was delivered by the Inspector to some one else to rule out the possibility of tampering.
It is not case of the prosecution that iron rod was also turned into any parcel or sealed at the spot or that any chance print was lifted therefrom so as to connect any of the accused with the present crime.
Inspection by Crime Team
24. Crime Team headed by SI Naveen Kumar alongwith PW9 HC Manoj Kumar, Photographer reached the spot and inspected the scene of crime.
PW9 HC Manoj Kumar clicked 8 photographs of the place of occurrence. Photographs are Ex PW9/A1 to Ex PW9/A8 and their negatives are Ex PW9/B1 to Ex PW9/B8 respectively.
Significantly, no report of Crime Team is available on record. There is no explanation as to why except the above evidence in the form of photographs and negative, no report of 33 Crime Team was got prepared. Its absence creates doubt in the prosecution version, as to the number of the articles said to have been found lying at the spot.
Spot is inspected once again on the next day i.e. on 12.3.2007
25. Case of prosecution is that on 12.03.2007 SI K. P. Singh was sent to the spot for inspection in detail. During spot inspection, he found four fired bullets lying at the spot. SI K.P. Singh has proved memo Ex PW12/B prepared in this regard.
The parcel containing the fired bullets was then deposited with MHC(M).
It is case of prosecution that the material exhibits seized by Inspector K. P. Singh which sealed with his seal bearing impression GS.
There is nothing in the seizure memos to suggest that after used SI K. P. Singh delivered the seal to anyone, so as to rule possibility of tampering with the case property.
It is also pertinent to mention that no such item, said to have been seized by SI K. P. Singh was noticed by ASI Bengali Babu and Inspector Mahender Singh at the time they 34 visited the spot and inspected the same. Though according to SI K. P. Singh, the spot could be subjected to search on the night of the occurrence, as it was drizzling, it is not believable that the police could not notice these material exhibits on the same night when the other items are also said to have been seized.
Ex PW34/B is the site plan of the spot prepared by PW34. According to him, it was raining slowing at the spot and it was night time, when the plan was prepared. Once the plan was prepared after due inspection of the spot, it is doubtful if the Investigating Officer could omit taking notice of any material exhibit said to have been lying at the spot.
In the given situation, factum of subsequent seizure of these items, by the SI K. P. Singh creates doubt in the version of the prosecution.
Inspection and analysis of car of Vinay Kumar Jain
26. According to PW34, on 12.3.2007, he sent ASI Bengali Babu to CFSL office, Lodhi Colony with Santro Car DL 3CD8382 i.e. of the deceased.
35Case of prosecution is that ASI Bengali Babu collected from the FSL two pieces of pellets found by the expert of CFSL on inspection of the car. In this regard memo Ex PW14/D was prepared.
It may be mentioned here that prosecution has tried to connect these two pieces with the pistols said to have been recovered from the accused persons after encounter with the police party headed by SI Bhgawati Prasad on the night intervening 1213.03.2007, but vide separate judgment pronounced yesterday, Court has doubted the story of the prosecution regarding encounter, apprehension of accused persons and recoveries of weapons from the accused after the said encounter and accordingly passed judgment of acquittal of both the present accused. Therefore, these recoveries of empties from the place of murder of Vinay Kumar Jain do not help the prosecution to connect the present two accused with the present crime.
36Accused are said to have been apprehended after cross firing with police
27. It is case of the prosecution that on 12.3.2007 at 11:55 pm near Trauma Centre Hospital, civil Lines, Delhi, all the four accused were signaled by the police parties consisting of Inspector Bhagwati Prasad, ASI Ravinder Singh, HC Rajeev Mohan, HC N.K.Pavitran, HC Ragender, Ct. Bijender, Ct. Devender, Ct. Bhagat and Ct. Sanjay Sen to stop just before traffic light point, Trauma Centre, Civil Lines, while they (accused) were travelling in car no. DL 8CRB 8231. They did not stop and rather tried to flee away. They were chased.
At that time, three of them namely Mohd. Kasim, Abdul Rehman and Sharafat are said to have opened fire while Sajid is said to have attacked with a knife, at different members of the parties.
Case of prosecution is that accused Sajid tried to escape by attacking HC Ragvinder with a knife. But he was apprehended. Mohd. Kasim accused opened fire at Inspector Bhagwati Prasad but he saved himself by opening fire from service pistol. Abdul Rheman, who was earlier seen driving the car, after having alighted from the car whipped out a fire 37 arm but was apprehended by Constable Rajiv Mohan. Accused Sharafat, on seeing police team chasing him, opened fire at ASI Ravinder but the ASI saved himself and apprehended him.
As per prosecution version, some members of the police party had also to retaliate.
One pistol of 7.62 mm loaded with two live cartridges was recovered from Kasim accused. Kasim accused was also found in possession of 400 gms of jewelery which was the part of stolen property of case FIR No.103/07;
Abdul Rehman accused was found in possession of one pistol of 7.62 mm with one fired cartridge struck in its chamber and four live cartridges in the magazine; He was also found in possession of 430 gms of jewelery which was the part of stolen property of case FIR No.103/07.
Sajid accused is said to have been found in possession of 400 gms of gold jewelery, which formed part of stolen property in case FIR No.103/07.
Sharafat Ali accused is said to have been found in possession of 400 gms of gold jewelery, which formed part of stolen property in case FIR No.103/07.
38Recoveries at the instance of Mohd. Kasim accused
28. It is case of prosecution that Mohd. Kasim led the police party headed by Inspector Bhagwati Prasad to Village Nangli, Rajapur, Sarai Kale Khan, pointed out his rented room situated on the fourth floor of House No. 52.
According to PW32 Inspector Bhagwati Prasad from the said room, door of which was opened with the help of keys, four helmets were recovered and seized; that bag of Adidas containing keys was also seized; that four helmets were also seized from there; that three mobile phones were also seized.
PW2 Harish Chand Sharma Caretaker of the said house, owned by Sh. Rishi Dev Chauhan has deposed about letting out a room of the said house to Kasim accused in March 2006 and having got done police verification regarding tenancy. According to him, the original verification form was 39 collected from PS Sarai Kale Khan. Further according to PW2, Abdul Rehman, Sajid and Sharfat accused also used to reside in the said room.
It is further case of prosecution that motorcycle No. DL7S AJ 5682, which was found to have been stolen from Delhi. In this regard, case had already been registered at PS Lajpat Nagar.
One of its indicator was seized by the police from the spot. Its number plate was found to be fake.
It is also in the statement of PW32 Inspector Bhagwati Prasad that Mohd. Kasim accused got recovered one motorcycle make Bajaj Pulsar No. DL7S AJ 5682 near house no. 52 Village Rajapur and it was seized vide memo Ex.PW32/N. As per prosecution version, this motorcycle was having registration no. DL 3SAY 0345. But when it was seized it was having false number plate. In this regard prosecution 40 has examined PW26, Rakesh Kumar Tiwari from the concerned transport authority. According to PW26, one Dinesh Kumar S/o Avinash Sharma, R/o Mayur Vihar, Phase III was owner of this motorcycle. Ex.PW26/A is copy of computerized certificate of registration.
As per statement of PW32 Inspector Bhagwati Prasad another motorcycle No. HR51 S 5331 was also recovered from near the aforesaid house no. 52 and same was seized vide memo Ex.PW32/O. It is prosecution evidence that this motorcycle was stolen from the area of Panipat and case FIR No. 127/07 has already been registered. In this regard prosecution has proved report Ex PW32/S. PW 10 Ashok Kumar R/o Mahavir Colony, Panipat, Haryana, who reached PS Sriniwaspuri on being called and identified the same vide a memo and receipt of motorcycle.
41Seizure from house no. 65
29. It is case of the prosecution that Mohd. Kasim accused then led the police to another rented house No. 65 of PW4 Krishan Kumar in the same village and from a room, on the third floor of the said house, he got recovered silver jewelery items and one small idol of goddess Lakshmi (collectively Ex P5) and the same were seized vide memo Ex.PW4/B. Police of PS Sriniwaspuri learns about case FIR No. 56/07 PS Civil Lines
30. It is in the statement of PW34 ACP Mahender Singh that having come to know registration of case FIR No. 56/07, recoveries in that case and disclosure statements made by the accused persons and that the accused were going to be produced in Court on that date, he reached the office Crime Branch and collected copies of seizure memos disclosure statements, which are Ex PW32/D, Ex PW32/E, Ex PW32/B, Ex PW4/B, Ex PW32/N, Ex PW32/O, Ex PW32/L, Ex PW25/D, Ex PW25/E and thereafter on 14.03.2007, he arrested all the accused persons, vide memos Ex PW34/H, J, K 42 & L. All the accused are interrogated by PW34
31. According to PW34, all the accused persons made disclosure statement Ex PW32/A, B and C and then pointing out vide Ex PW30/E to Ex PW30/H, the place from where they are stated to have followed Vijay Kumar Jain. Pointing out of shop of deceased by accused PW17 Dhanpal is witness to memos Ex PW17/A to Ex PW17/E said to have been prepared in his presence at the time all the four accused pointed out towards shop of Vinay Kumar Jain. According to PW17, one day in March 2007 he was present at the shop of his son in law in main market Madanpur Khadar, police met him while 23 persons with them in the police vehicle. However, the witness could not identify any of those persons, when examined in Court on 02.03.2010. He further stated that those 23 persons had not disclosed their names in his presence. Further according to the witness, police had told him that he would have to later on make statement regarding their arrival with the accused persons.
43However, in his crossexamination, by Ld. Addl. PP, the witness denied to have made any statement before the police. He admitted that names of the four persons with the police were Mohd. Kasim, Abdul Rehman, Sajid and Sharafat. On being put leading questions, the witness stated that these accused persons had pointed the shop of Vijay Kumar Jain and told that on 11.03.2007 they had come to two motorcycles on the said shop and chased him and after he has placed bag in his car and left with his servant.
As regards the attestation on Ex PW17/A to E, in his crossexamination by learned defence counsel PW stated that he was not aware of the contents of these documents before he put his signatures thereon. He further stated that these memos were not prepared in his presence. He explained that these were signed by him at the police station.
In view of the above testimony of PW17, court finds that this witness has not supported the case of prosecution this regarding this circumstance of pointing out of the said place i.e. the shop of Vinay Kumar Jain on the given date, time and place.
44Recoveries are doubtful As regards the above recoveries in case FIR No. 56/07 PS Civil Lines, case of the prosecution is that on 12.03.2017, at about 9:30PM, PW32 SI Bhagwati Prasad of Special Team Crime Branch, Prashant Vihar received secret information from secret informer who visited his office and disclosed that gangster Kasim @ Khan Sahab and his associates had committed robbery and were planning to go to Kairana, Mujaffar Nagar by Indica Car No. DL 8C RB 8231, via ring road and would pass by the side of ISBT, at about 11:20PM/12:00Noon and that they could be apprehended on the way.
According to PW32 Inspector Bhagwati Prasad, he passed on the information to senior officers, after recording DD No. 14, Ex.PW32/A, then constituted raiding party consisting of himself, ASI Ravinder Singh, HC Rajiv Mohan, HC N.K. Pavitran, HC Ravender, Ct. Vijender, Ct. Devender, Ct. Bhagat and Ct. Sanjay Singh, under the supervision of Inspector K.P. Singh. The raiding party departed at about 10:00PM vide DD No. 15 Ex.PW32/B, in the company of secret informer and reached near ISBT Ring Road.
45DD entries no. 14 and 15 have been referred to by Learned Addl. PP to support the prosecution version regarding receipt of secret information and departure of the parties from the office.
Registration number of the private taxi nor proved by the prosecution
32. A per DD No. 15 Ex PW32/B, the aforesaid party left the office at about 10 pm by two vehicles i.e. one Govt. vehicle DL 1CG 2329 and a private taxi Qualis. This entry does not reveal registration number of the private taxi. It has come in the statements of PWs that said taxi was hired but there is no proof regarding hiring of any such taxi. It remains unexplained as to why the number of the private taxi was not mentioned in this entry when the SI opted to specify the number of the govt. vehicle.
PW1 N. K. Pavitran admitted in his cross examination that registration number of the concerned vehicle that is Indica car does not find mention in his statement. It remains unexplained as to why the registration of the Indica car does not find mention in his statement if he was apprised 46 of the said registration number by the head of the party.
In absence of registration of private taxi or any documentary proof regarding hearing of any such private vehicle, it becomes doubtful if any such private taxi was hired or used in reaching the disclosed place.
It is in the statements of prosecution witnesses, that at about 11:45PM, one Indica Car bearing No. DL 8CRB 8231 Ex.PX9 was noticed by the police party, while it was coming from the side of Hanuman temple and the secret informer pointed out towards the said car and went away. All the four accused are said to have got suspicious on seeing HC N.K. Pavitran in police uniform, when he was alighting from one of the Qualis vehicles of the raiding party. On seeing the police party, the car was taken towards a trauma center but the police party continued chasing the said car.
In his crossexamination PW1 displayed ignorance if he had stated in statement under Section 161 CrPC that the secret informer pointed out towards some vehicle or drew attention of some police office towards its. Had this witness been present at the spot, he could not displayed ignorance about this significant fact.
47As noticed above registration number of the private taxi has not been proved by the prosecution. Therefore, it is difficult to believe that N. K. Pavitran was travelling in or alighted from any such vehicle after the vehicles are said to have reached near trauma centre.
As regards opening of attack at the members of the police party
33. According to PW32 SI Bhagwati Prasad, two rounds were fired at the police party from the Indica car. In retaliation SI Bhagwati Prasad and ASI Ravinder also aid to have fired at the Indica Car from their service weapons and thereafter the said India Car was intercepted near Sarvodya Vidhyalya.
Kasim, Abdul Rehman & Sharafat Ali (since proclaimed offender) are said to have alighted from the car and started running in different directions whereas, Sajid accused is said to have remained sitting inside the car. Abdul Rehman is said to have been seen driving the said vehicle and to have alighted from the driver seat. Abdul Rehman accused whipped out a firearm but he was apprehended by HC Rajiv Mohan before he could open fire. According to PW1 HC N. 48 K. Parivtar, Abdul Rehman took out a pistol and tried to fire at them but he was pushed by HC Rajiv Mohan. According to PW4 HC Rajiv Mohan , Abdul Rehman tried to open fire at him but he could not succeed and he was caught he did not state who caught/apprehended Abdul Rehman.
According to PW32 SI Bhagwati Prasad, Sajid accused (since absconding) tried to escape by attacking HC Raghvender and Ct. Devender, using knife but Ct. Devender overpowered accused Sajid.
As further stated by PW32, on seeing Inspector K.P. Singh, while PW32 was chasing Kasim, proclaiming that it was police party and that Kasim and his coaccused shall surrender but Kasim opened fire at him (PW32), whereupon he ducked and saved himself by opening fire from his service pistol and in this way managed to apprehend Kasim accused.
It is further stated by PW32 that accused Sharafat, on seeing police team chasing him, opened fire at ASI Ravinder with intent to kill him but ASI saved himself and apprehended him.
HC Rajiv Mohan was examined in case FIR No. 56/07 as PW4 and in this case PW39, stated that he 49 apprehended Abdul Rehman with the help of HC Pavitran after he fired a shot towards him; that out of the other three persons - occupants of the car, who also alighted, Kasim was apprehended by Inspector K. P. Singh and SI Bhagwati Prasad after he fired a shot at the SI; that Sajid, who was sitting on the rear seat, just behind the driver seat was apprehended by HC Raghender; that Sarfaraz was apprehended by ASI Ravinder.
It may be mentioned here that photocopy of statement of PW HC Rajiv Mohan recorded in case FIR NO. 56/07 as PW4 was also placed in this case. A perusal of the said statement would reveal that as PW4 HC Rajiv Mohan made contradictory statement by stating that Sajid accused was apprehended by ASI Ravinder and HC Bijender whereas Sarfaraz was over powered by Ct. Ragender and Ct. Devender.
While making statement in this case as PW39 HC Rajiv Mohan, in his chief examination, nowhere stated that Sajid accused attacked any of the member of the party in any manner, whereas the case of prosecution that he had attacked HC Raghender and Ct. Devender.
50As regards Sarfaraz accused, PW39 nowhere deposed in his chief examination as to who was accompanying ASI Ravinder at the time Sarfaraz accused was apprehended.
While making statement as PW4 in case FIR No. 56/07, HC Rajiv Mohan also made contradictory statements regarding the recoveries made from Sahid and Sarfaraz, by stating tat these two accused by stated that Sahil was found in possession of one katta whereas Sarfaraz @ Munna was found in possession of one knife.
It is significant to note that PW11 Ct. Devender Singh did not support the prosecution version regarding attack by Sajid accused on HC Raghender. According to him, Sajid tried to attack him with the knife but he succeeded in snatching away the knife from Sajid. So the prosecution witnesses are in contradiction with each other on this material point also.
Recovery of car and cartridge case
34. From the spot aforesaid Indica car and one cartridge case were recovered and seized.
PW32 further stated that Indica Car was also seized 51 vide Ex.PW25/C and from the spot, one cartridge case Ex.PX6 was recovered and sketch Ex.PW25/C of the same was prepared and same was sealed and seized vide memo Ex.PW25/E. Statement of PW8 Naresh Kumar from Ashok Vihar Authority is regarding the fact that this series was not allotted to Ashok Vihar Authority North Zone.
Notably, prosecution has not led any evidence to suggest as to whom this car belonged. No owner of said car has been examined to prove if it was ever stolen or removed from his or her possession. Prosecution has not led any evidence to suggest as to how and when the car came to the custody of any of the accused.
Recoveries of weapons
35. It is in the statements of the PWs that pistol 7.62mm Ex.PX1 loaded with two live cartridges Ex PX2 were recovered from the possession of Kasim and the same were measured and sketch Ex.PW32/C was prepared and thereafter the pistol and cartridges were sealed and seized vide memo Ex.PW32/D ; that Abdul Rehman was found in possession of half cocked 7.62mm and a black colour pistol and one fire 52 cartridge stuck in its chamber, four live cartridges were recovered from its magazine, sketch of the pistol and the cartridges is Ex.PW4/A; that these were turned into a parcel, sealed and then seized vide memo Ex.PW4/C. As noticed above, PW4 HC Rajiv Mohan has made statement in contradiction with the statements of other PWs regarding the nature of the weapon recovered from Sharafat and Sajid and according to him Sahil was found in possession of one pistol and cartridge and Sharafat was found in possession of knife with is not in consonance with the version of prosecution and creates doubt in the prosecution version itself.
HC N. K. Pavitran was examined in case FIR No. 56/07 as PW1 and copy of statement was placed in this file to be read as PW34. HC N. K. Pavitran admitted in his cross examination that none of the documents available on record bear his attestation. In view of this admission made by the witness, when it remains unexplained as to why his signatures were not obtained on any document by way of attestation, it becomes doubtful if N. K. Pavitran was not or was a member of the party.
53Ex PW11/A (herein photocopy Ex PW32/B) - seizure memo in respect of Sajid @ Sahil does not bear attestation of HC Ragvender. It bears attestation only of Ct. Devender Singh. It remains unexplained as to why does not memo bears attestation of HC Ragvender in case actually he was present at the time of recovery. Nonattestation of this memo by the witness creates doubt regarding his presence on the given date, time and place.
Similarly Ex PW25/A (herein photocopy Ex PW25/D) - seizure memo in respect of Sharafat Ali accused does not bear attestation of HC Bijender. It bears attestation only of ASI Ravinder Singh. It remains unexplained as to why does not memo bears attestation of HC Bijender. In case actually he was present at the time of recovery, he must have signed this seizure memo. Nonattestation of this memo by the witness creates doubt regarding his presence on the given date, time and place.
It is also significant to note as PW25 ASI Ravinder stated that all the four occupants of the vehicle had started running after having alighted from it. This version is not in consonance with the version narrated by other PWs which is to 54 the effect that Sajid kept on sitting in the vehicle while other three started running away in different directions.
Ex PW32/D (herein photocopy Ex PW32/N) - seizure memo in respect of Kasim does not bear attestation of Inspector K. P. Singh. It bears attestation only of ASI Ravinder. It remains unexplained as to why does not memo bears attestation of Inspector K. P. Singh in case actually he was present at the time of recovery. Nonattestation of this memo by this witness creates doubt regarding his presence on the given date, time and place.
Significant to note that in such like cases, Investigating Officer has to take steps for preservation of finger prints on the weapons said to have been used during the occurrence, so as to connect the user with the said weapon. But, herein, it is not case of prosecution that any of the weapon said to have been recovered from the accused had any chance print or that same was lifted or preserved. In absence of any such evidence, it cannot be said that said weapons was used by any of the accused present here in opening fire at any member of the police party.
55Site plan of the place of encounter and recoveries
36. In case FIR No. 56/07 site plan of the place of encounter was placed on record of said case as Ex PW32/E. Herein no such site plan depicting the place of arrest and recovery of these four accused has been got proved on record. In absence thereof, it cannot be said as to which were the points and marginal notes depicting the place from where any of the four accused is said to have attacked on member of the parties. Had any attack been made by any of the accused on any of the member of the police party, SI Bhagwati Prasad must have depicited those points in the site plan and that too at the pointing of each victim/ attacked official. All this further creates doubt in the version of prosecution if any such occurrence took place or if these accused persons were arrested on the given date or found in possession of any such weapon.
It may be mentioned here that it is not case of the prosecution that after sealing any of the aforesaid fire arm or ammunition, seal bearing impression BPT was delivered to any one. So prosecution has failed to rule out possibility of tampering with this case property.
56 57Recovery of jewellery
37. According to PW32, accused Abdul Rehman was also found in possession of one green colour polythene in the right side pocket of his pant, it was found containing jewelery articles weighing 430 grams wrapped in a piece of paper, these were turned into a parcel and sealed and seized vide memo Ex.PW4/B (copy whereof was placed in this case) and it was found to be stolen property of this case.
Seizure memo Ex PW4/B regarding seizure of these items bears attestation only of HC Rajiv Mohan and not of HC N. K. Pavitran. In case HC N. K. Parvitran was present and recovery of these items was made in his presence, it remains unexplained as to why same does not bear attestation of this witness.
It is significant to note that HC N. K. Pavitran stated about recovery of 430 grams of jewellery from Abdul Rehman. But he did not depose about the jewellery said to have been recovered from other accused persons and according to him proceedings as regards other were conducted separately by the IO in presence of other officials.
However, in his crossexamination he could not tell 58 the total weight of the gold jewellery and silver jewellery recovered from Abdul Rehman. He also could not tell about the nature / kind of jewellery from Abdul Rehman, Kasim and Sajid.
According to PW32, Kasim was found in possession of gold jewelery of 400 gms, which was case property of this case and he had disclosed that he had robbed the same while committing dacoity at Sriniwas Puri of FIR No. 103/07. The said jewellery was sealed and seized vide memo Ex.PW32/E (copy whereof was placed in this case) and the seal after use was handed over to PW25 ASI Ravinder.
As per statement of PW25 ASI Ravinder, he no where stated about delivery of any seal to him by Inspector Bhagwati Prasad on the aforesaid date. He also could not tell the registration number of the private vehicle said to have been used by them. In his crossexamination, he stated that no public witness joined proceedings in this case. He further admitted that investigating officer did not serve any notice to any public person for nonjoining of proceedings.
59Seizure memo Ex PW32/E regarding seizure of these items bears attestation only of ASI Ravinder and not of Inspector K. P. Singh , in whose presence Kasim accused is said to have been apprehended by Inspector Bhagwati Prasad. In case Inspector K. P. Singh was present and recovery of these items was made in his presence, it remains unexplained as to why same does not bear attestation of this witness.
Further stated by PW32, from accused Sharafat Ali (P.O.) 400 gms of gold jewelery was recovered which was the stolen property of this case and same was seized vide seizure memo (Ex.PW25/A in case FIR No. 56/07) Seizure memo Ex PW25/A regarding seizure of these items bears attestation only of ASI Ravinder and not of Ct. Bijender with whose help the said accused was apprehended. In case Ct. Bijender was present and recovery of these items was made in his presence, it remains unexplained as to why same does not bear attestation of this witness.
According to PW32 , from coaccused Mohd Sajid 400 gms of gold jewellery was recovered which was stolen property in this case and the same was seized vide seizure memo (Ex.PW11/A is case FIR No. 56/07) 60 Seizure memo Ex PW11/A regarding seizure of these items bears attestation only of Ct. Devender and not of HC Ragvender. In case HC Ragvender was present and recovery of these items was made in his presence, it remains unexplained as to why same does not bear attestation of this witness.
Disclosure Statements
38. During interrogation accused Kasim is said to have made disclosure statement Ex.PW39/C. Abdul Rehmah is said to have made disclosure statement Ex PW39/D. According to PW32, accused Mohd Kasim led the police party to Village Nangli, Rajapur, Sarai Kale Khan, pointed out his rented room situated at fourth floor of House No. 52. From the said room, door of which was opened with the help of keys, four helmets were recovered and seized vide Ex.PW4/N (copy of whereof is placed in this case as Ex PW39/C) and bag of Adidas containing keys which were seized vide memo (copy whereof has been placed in this case), four helmets vide memo Ex.PW4/N, three mobile phones vide memo Ex.PW32/L (copy whereof has been placed in this case.) 61 As per PW32 Inspector Bhagwati Prasad, Mohd. Kasim also got recovered one motorcycle make Bajaj Pulsar No. DL7S AJ 5682 i.e. of Dinesh Kumar r/o Mayur ViharIII, Delhi, as is available in statement of PW3 and his report Ex.PW3/A ,vide memo Ex.PW32/N, another motorcycle No. HR51 S 5331 which was seized vide memo Ex.PW32/O. This motorcycle was of PW 10 Ashok Kumar r/o Mahavir Colony, Panipat, Haryana, who reached PS Sriniwaspuri on being called and identified the same vide memo Ex.PW10/A and the receipt of motorcycle is Ex.PW10/B. Further stated by PW32, accused Kasim then led the police to another rented house No. 65 i.e. of PW4 Krishan Kumar in the same village and from a room, on the third floor of the said house, got recovered silver jewelery items and one small idol of goddess Lakshmi and these were seized vide memo. The said case property is Ex.P5.Aforesaid case property was deposited in the malkhana.
PW2 Harish Chand Sharma
39. PW2 Harish Chand Sharma has been examined to prove visit of Mohd. Kasim to have a room on rent from the 62 house of Sh. Rishi Dev Chauhan, in March 2006. He identified Mohd. Kasim Khan to be the person who had come there. He also identified other three accused persons present in Court, he used to reside with Mohd. Kasim.
He has also deposed about letting out of room of the said house to Kasim in March 2006 and having got done police verification regarding tenancy. The original verification form was given by PW2 of PS Sarai Kale Khan and its photocopy is Ex.PW2/A. According to him, Coaccused Abdul Rehman, Sajid and Sharfat also used to reside with Kasim in said room. Photographs of his coaccused Shahid was pasted on said verification form.
PW4 Krishan Kumar
40. PW4 Krishan Kumar is owner of H. No. 65. When examined in Court, he identified Sharafat Ali as the person who used to reside at H. No. 52 and had once made inquiries and that too from his wife if any room was lying vacant. When he asked the said person to bring photograph for verification, he left saying that they would return in the afternoon with the photograph, but on the same Sharafat Ali was brought to his 63 house by the police. He denied that any other accused was with the police at that time.
When the witness was confronted by Ld. Addl. PP with his statement made before the police, he denied to have stated that at the time police came to his house, three other persons were also accompanying them. He displayed ignorance if the room was let out to Abdul Rehman and not Sharafat Ali.
It is case of the prosecution that Mohd. Kasim had got recovered articles vide memo Ex PW4/B in presence of Krishan Kumar PW4 but in his chiefexamination PW4 did not depose about any recovery of any article as find mentioned in Ex PW4/B i.e. from H. No. 65. It was only when he was put leading question by Ld. Addl. PP on seeing seizure memo Ex PW4/B that the witness stated that same bears his signatures. However, he denied that Mohd. Kasim got recovered any item or article from the said house.. PW4 also denied that his signatures were obtained by the police at the rented house itself.
It is pertinent to mention neither before nor at the time of recovery at the instance of Mohd. Kasim from H. No. 64 52, police called any responsible person from the locality.
In view of this statement, of PW4 and the inadmissibility of the statement made by Mohd. Kasim and Abdul Rehman, no reliance can be placed on these two disclosure statements.
41. It is also noteworthy that this disclosure statement Ex PW39/D bears attestation of HC Rajiv Mohan. However, while appearing in Court as PW4 HC Rajiv Mohan nowhere deposed about the contents narrated by Abdul Rehman accused. Similarly, SI Bhagwati Prasad also did not depose about the contents of the disclosure statement made by this accused.
Ex PW39/C is the disclosure statement is said to have been made by Kasim accused and the same bears attestation of HC Rajiv Mohan.
It is significant to note that this disclosure statement Ex PW39/C bears attestation of HC Rajiv Mohan. However, while appearing in Court as PW4 HC Rajiv Mohan nowhere deposed about the contents narrated by Abdul Rehman accused. Similarly, SI Bhagwati Prasad also did not depose 65 about the contents of the disclosure statement made by this accused.
In absence of narration of even admissible portion of the disclosure made by any of the two accused, no reliance can be placed on the said disclosure statements, the same having not been got duly proved.
Consequently, the recoveries said to have been got made by Mohd. Kasim from H. No. 52 and 65 from the aforesaid houses cannot be said to be admissible in evidence.
It is case of the prosecution that as per statement of PW32, sealed parcels containing weapon was sent to FSL through SI Bangali Babu vide RC Ex.PW7/C and later on CFSL result dated 17.5.2007 Ex.PA (original is available in case FIR No.103/07, PS Sriniwaspuri) was collected.
When prosecution version regarding recoveries of the fire arm and ammunition has been found to be highly doubtful, reports of FSL regarding analysis are of no help to prosecution so as to connect the accused with the main crime.
66Once the Court has arrived at the aforesaid conclusion and the prosecution version is held doubtful regarding the encounter, recoveries by Inspector Bhagwati Prasad and other members of the party, the reports given by experts on analysis of the fire arms and the empties said to have been recovered from the spot - where Vinay Kumar Jain was attacked and the empties said to have been recovered from car, recovery of broken indicatorglass, recovery of helmets and bag containing keys of the shop of Vinay Kumar Jain, and identification of jewellery case property and the decisions cited by learned Addl. PP, do not come to the aid of prosecution to connect the present two accused with the commission of the present crime i.e. charge of robbery and murder.
Conclusion
42. As result of the above discussion, Court finds that prosecution has not been able to substantiate allegations levelled against accused Kasim and Abdul Rehman accused beyond shadow of reasonable doubt. Both these accused Kasim and Abdul Rheman are therefore acquitted in this case.
67Case property to be preserved as two of the accused are at large and would be required to be produced during proceedings, after they are arrested or appear before the Court.
File be consigned to Record Room.
Announced in the open Court on this 9th day of November, 2017 (NARINDER KUMAR) SPECIAL JUDGE2 NDPS ACT (CENTRAL DISTRICT) TIS HAZARI COURT:DELHI