Delhi District Court
State vs . Sajjan @ Kali on 16 January, 2020
SC/28/18
State Vs. Sajjan @ Kali
IN THE COURT OF SHRI RAM PRAKASH PANDEY,
DISTRICT & SESSIONS JUDGE, NORTH WEST DISTRICT,
ROHINI COURTS, DELHI
SC/28/18
State Versus Sajjan @ Kali
S/o Late Shri Bijender
R/o D2/376, Nand Nagri, Delhi
FIR No.249/17
PS South Rohini
under Section 302 IPC &
under Section 25/27 of Arms Act
Date of institution of case : 11012018
Reserved for judgment on : 09012020
Date of passing of judgment : 16012020
In appearance : Dr.Raj Rani, learned Addl. PP for the State
Shri R.K. Kochar and Shri Deepak Ghai,
ld. counsel for the accused.
JUDGMENT
1. This is a case filed on behalf of State whereby prosecution is seeking conviction of accused Sajjan @ Kali, who had committed FIR No.249/17 PS South Rohini Page No. 1 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali the murder of one minor boy namely Nikhil by firing at him with a country made pistol with intention to kill him for the offence punishable under Section 302 of the Indian Penal Code (hereinafter shall be referred as "IPC") and also for the offence punishable under Section 25/27 of the Arms Act.
2. Heard both the sides and meticulously gone through the record of the case.
3. Learned Additional Public Prosecutor for the State has submitted that although the eye witnesses of the case resiled from their previous statements but the prosecution has proved its case against the accused which is elicited by the cross examination of the eye witnesses and recovery of the weapon of offence. She further prays that accused may be convicted for the offence charged against him.
4. On the other hand, it has been submitted on behalf of accused that he has been falsely implicated in this case and the prosecution has miserably failed to prove its case beyond a reasonable FIR No.249/17 PS South Rohini Page No. 2 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali doubt against the accused and further prays for the acquittal of the accused.
5. The facts of the case in short are that on 03092017 at about 1 am at E20, DDA Park, Sector 3, Rohini, accused Sajjan @ Kali had committed the murder of one minor boy namely Nikhil by firing at him with a country made pistol during birthday party of Master Advik.
6. The detailed facts of the case shall be appreciated at the relevant stages of the judgment.
7. Before proceeding further, it would be appropriate to recapitulate the sequence of events which are as under;
The present case has been committed to the Court of Sessions on 11012018. Charge was framed against the accused in this case on 28022018 for the offence punishable under Section 302 IPC & under Section 25/27 of the Arms Act. The accused pleaded not guilty and claimed trial for the offences charged against him.
8. In order to prove its case, the prosecution examined as FIR No.249/17 PS South Rohini Page No. 3 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali many as 31 witnesses.
9. Statement under Section 313 Cr.P.C. of accused was recorded on 17072019.
10. In his defence, no witness has been examined by the accused.
ANALYSIS OF THE PROSECUTION EVIDENCE
11. From the perusal of record, it is revealed that though the prosecution has examined 31 witnesses, however, the testimonies of PW1 Smt. Kalpana (mother of deceased), PW2 Abhishek (brother of deceased), PW4 Akshay (maternal uncle of deceased), PW5 Sachin Goyal (photographer), PW6 Johny (father of deceased) and PW8 Dharam Singh (grandfather of deceased), who are stated to be the eye witnesses to the entire incident are of utmost importance to arrive at a just conclusion in the present case and the same is being discussed herein below.
OCCULAR EVIDENCE
12. PW1 Smt. Kalpana, who is the mother of deceased FIR No.249/17 PS South Rohini Page No. 4 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali Nikhil has come in the witness box and has deposed that on 0209 2017, her brother Akshay had arranged a birthday party of his son Master Advik at E20, DDA Park, Sector 3, Rohini and she along with her children Tisha, Nikhil and Abhishek went to attend the birthday party at about 10 pm. She has further deposed that her husband did not accompany them as he was drunk and was left at home. At about 11 pm, while they were taking dinner, she heard some noise "koi bachha stage se gir gaya hai" and when they rushed there, she saw that the child, who fell down from the stage was her son Nikhil. She has further deposed that she along with her son Abhishek, her brother Akshay and some other relatives took Nikhil to Jaipur Golden Hospital, Delhi and admitted him there. After 34 days, her son Nikhil had expired due to the injury. She has further testified that accused present in the Court is the brother in law (Sala) of her brother Akshay and has no dispute with him and he never threatened them prior to the incident and none of the person including accused fired at her son Nikhil.
FIR No.249/17PS South Rohini Page No. 5 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali
13. At request of learned Additional Public Prosecutor for the State, the witness was allowed to be cross examined as she was resiling from her previous statement made before the police.
14. In the cross examination carried out by learned Additional Public Prosecutor for the State, the witness was confronted with her statements Mark PW1/A and Mark PW1/B made to the police to which she had denied having made such statements before the police. She did not support the case of the prosecution even during her cross examination by learned Additional Public Prosecutor for the State. She has denied the suggestion that there was a dispute of a plot bearing no.Y12343, Area 21 sq.meter, JJ Colony, Mangolpuri between her family and accused Sajjan @ Kali along with his relatives and due to that dispute, accused Sajjan @ Kali has an enmity in his mind against them. She has further denied the suggestion that in the birthday party of Advik, accused Sajjan @ Kali had come with his pistol and he was continuously firing and many persons had restrained him from firing but accused was not paying any heed towards them. FIR No.249/17 PS South Rohini Page No. 6 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali She has further denied the suggestion that she also asked accused Sajjan @ Kali not to fire whereupon he exhorted "tu chali jaa warna tujhe we tere parivar ko jaan se maar dunga" and denied that she had stated "maine phir bhi Sajjan @ Kali ko goli chalane se mana kiya to usne apni banduk ko hamari taraf kar ke pakra or jaan se marne ki niyat se mere bete nikhil umar 12 saal ko sajjan @ kali ne goli maar di". She has further denied the suggestion that due to this reason, there was a stampede in the birthday party and accused Sajjan @ Kali ran away from the birthday party with his relatives. She denied the suggestion that she and her family members had been threatened by the accused and his relatives that is why she is intentionally concealing the truth. She also denied the suggestion that she has been won over by the accused and his family members that is why she was not deposing against the accused.
15. PW1 Kalpana then deposed that she does not know if she had made complaints dt.11092017 to PS South Rohini Ex.PW27/A and another complaint dt.20092017 to PS South Rohini against the FIR No.249/17 PS South Rohini Page No. 7 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali accused though she has admitted that both the complaints bear her signatures. She volunteered that at that time, she was not in a fit state of mind due to the death of her son Nikhil and is also not aware about its contents. She deposed that she did not know if she had made complaints on 13102017, 28102017, 09112017 and 22092017 against the accused Sajjan @ Kali and his associates for murder of her son Nikhil for taking action against them. She has denied the suggestion that she had made the aforesaid complaints against the accused and his other associates for murder of her son or that accused Sajjan @ Kali had committed the murder of her son by intentionally firing at him. She has further denied the suggestion that as she had entered into a compromise with the accused due to pressure of family of accused, she is not disclosing the true facts.
16. PW2 Abhishek, who is the real brother of deceased Nikhil has come in the witness box and has deposed that in the year 2017, he was gossiping with his friends outside the tent of Sector 3, Rohini and at that time, his mother was taking dinner inside the tent, FIR No.249/17 PS South Rohini Page No. 8 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali after hearing screams, when he went inside the tenant, he saw his brother was lying on the floor with some injuries. He has further deposed that he had not noticed as to who had caused injuries to his brother. He has further deposed that police had arrived at the spot but he was not interrogated nor his statement was recorded.
17. At request of learned Additional Public Prosecutor for the State, the witness was allowed to be cross examined as he was resiling from his previous statement made before the police.
18. In the cross examination carried out by learned Additional Public Prosecutor for the State, the witness was confronted with his statement Mark PX1 made before the police to which he had denied having made such statements before the police. He did not support the case of the prosecution even during his cross examination by learned Additional Public Prosecutor for the State.
19. PW2 Abhishek has deposed that accused Sajjan @ Kali present before the Court is his uncle (chacha) and he cannot tell whether accused present in the Court today had fired on his younger FIR No.249/17 PS South Rohini Page No. 9 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali brother Nikhil. He further deposed that he did not make such statement before the police. He has denied the suggestion that he is concealing the true facts as he has been won over by the accused being brother in law of his maternal uncle.
20. PW4 Akshay, who is the maternal uncle of deceased Nikhil came in the witness box and has deposed that accused Sajjan @ Kali present in the Court is his brother in law (saala). He has further deposed that on 02092017, he had gone to purchase the coffee and milk from the market as the coffee and milk were finished and at about 1 am, when he came back in the tent, he noticed that there was a huge crowd and he noticed that his bhanja was in injured condition and he took him to Jaipur Golden Hospital. He has further deposed that he was not interrogated nor his statement was recorded by the police.
21. At request of learned Additional Public Prosecutor for the State, the witness was allowed to be cross examined as he was resiling from his previous statement made before the police. FIR No.249/17 PS South Rohini Page No. 10 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali
22. In the cross examination carried out by learned Additional Public Prosecutor for the State, he has deposed that he cannot tell who had fired in the birthday party. He was confronted with his statement Mark PW4/A and he has denied the suggestion that accused Sajjan was having weapon in his hand started firing in the function and when he and some other persons restrained him, he did not listen. He has further denied the suggestion that when his sister Kalpana restrained the accused not to fire, he threatened his sister by saying "tu yaha se chali ja nahi to me tere ko goli maar dunga" and thereafter, he fired on her son Nikhil aged about 1112 years. He has further denied the suggestion that as the accused is his brother in law, he is not deposing against him.
23. PW5 Sachin Goyal, who had videographed the birthday party has come in the witness box and has deposed that on 0209 2017, they were booked to clip the videography of a birthday party at DDA Park, E20, Sector 3, Rohini and they reached there at about 7 pm and started taking photographs and recording the events. He has FIR No.249/17 PS South Rohini Page No. 11 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali further deposed that when they were recording the events, he heard a gun shot and everyone started running here and there. He has further deposed that on the next day, police came and he handed over two SD/ Memory Cards to police. He has further deposed that he does not know who had fired in the function and he has failed to identify accused present in the Court.
24. At request of learned Additional Public Prosecutor for the State, the witness was allowed to be cross examined as he was resiling from his previous statement made before the police.
25. In the cross examination carried out by learned Additional Public Prosecutor for the State, he has denied the suggestion that in the function, he saw accused making fire from the pistol or that he saw many persons were restraining the accused from making fire. He has further denied the suggestion that later on, he came to know the name of person, who was firing in the function as Sajjan @ Kali or that on 03092017 at about 1 am, accused Sajjan @ Kali shoot Nikhil aged about 12 years by his pistol in the function or that due to which there FIR No.249/17 PS South Rohini Page No. 12 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali was a stampede in the function. He has voluntarily stated that in the night while shooting the function, he heard the noises of gunshot and there was a stampede in the function and he came to know that one child had sustained gun injury but he had not seen any person, who had fired. He has denied the suggestion that he is deposing falsely regarding not seeing accused Sajjan @ Kali making fire or shooting Nikhil in the function.
26. The attention of the witness was drawn towards his statement Ex.PW5/B from portions A to A1 but the witness denied having made such statement to the police. He has denied the suggestion that he is not deposing the true facts in order to save the accused.
27. PW6 Johny, who is father of deceased Nikhil has come in the witness box and has deposed that on the intervening night of 02 03/09/2017, he had gone to attend a function at E20, Sector 3, Rohini, Delhi organized by his brother in law Akshay. He has further deposed that he was under the influence of liquor and had some altercations FIR No.249/17 PS South Rohini Page No. 13 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali with his wife so he left that function and later on, he came to know that his son has received gun shot injury. He has further deposed that he went to BSA Hospital mortuary and identified the dead body of his son. He has further deposed that Sajjan @ Kali, who is accused in the present case has been falsely implicated in the present case and he had not killed his son.
28. At request of learned Additional Public Prosecutor for the State, the witness was allowed to be cross examined as he was resiling from his previous statement made before the police.
29. In the cross examination carried out by learned Additional Public Prosecutor for the State, the witness was confronted with his statement Mark PW6/C made before the police but the witness has denied having made such statement before the police. In the cross examination, he has denied the suggestion that accused Sajjan @ Kali had killed his son by shooting him or that he had not left the function in between or that he is deposing falsely in favour of accused in order to save him as he has compromised the matter with accused Sajjan @ FIR No.249/17 PS South Rohini Page No. 14 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali Kali.
30. PW8 Dharam Singh has deposed that he had gone to attend the birthday party of his relative in Rohini and after taking dinner, he came back to his house and he does not know as to what had happened in the birthday party.
31. At request of learned Additional Public Prosecutor for the State, the witness was allowed to be cross examined as he was resiling from his previous statement made before the police.
32. In the cross examination carried out by learned Additional Public Prosecutor for the State, the witness was confronted with his statement under Section 161 Cr.P.C. made before the police and he has denied the suggestion that when he was taking dinner, he heard the noise of gunshots or that some guests in the party forbade some persons from making fire or that he came to know that his grandson Nikhil had sustained gunshot. This witness has also not supported the case of the prosecution.
FIR No.249/17 PS South Rohini Page No. 15 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali DEPOSITION OF OTHER PROSECUTION WITNESSES
33. Besides these witnesses, the prosecution has also examined other witnesses. Most of them are police witnesses and they all have deposed on the lines of their role played by them during the course of investigation in the case and they have proved the followings;
S.No. Name Proved
1. PW3 Ravi, Maternal uncle of deceased Body Identification Statement Ex.PW3/A
2. PW7 Satish Made a call to police after the incident but not an eye witness
3. PW9 HC Dinesh Singh Endorsement on rukka Ex.PW9/A, FIR Ex.PW9/B, Certificate u/s 65B of Indian Evidence Act Ex.PW9/C
4. PW10 Ct. Jaswant Seizure memo of blood sample of deceased Ex.PW10/A
5. PW11 ASI Devender Pointing out memo of place of incident Ex.PW11/A, Sketch of pistol and live cartridge Ex.PW11/B, seizure memo of case property Ex.PW11/C, Disclosure statement of accused Ex.PW11/D, site plan of place of recovery Ex.PW11/E (identified the pistol as Ex.P5 and cartridges as Ex.P6)
6. PW12 ASI Ramesh Kumar DD No.4A Ex.PW12/A, seizure memo of pullanda containing empty cartridges Ex.PW12/B, sketch of fired cartridge Ex.PW12/C, seizure memo of pullanda containing one blood stained handkerchief of white colour Ex.PW12/D, seizure memo of pullanda containing roof ceiling of tent Ex.PW12/E, endorsement on DD No.12/A Ex.PW12/F, rough site plan Ex.PW12/G, seizure memo of clothes and blood stained FIR No.249/17 PS South Rohini Page No. 16 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali white shirt handed over by the doctor Ex.PW12/H and Ex.PW12/I respectively (identified the cartridges as Ex.P7 (colly), Shamiyana Ex.P8 (colly), handkerchief Ex.P 9, memory cards Ex.P2 and Ex.P3)
7. PW13 Ct.Parveen (identified Cartridges Ex.P7 (colly), Shamiyana Ex.P8(colly) and handkerchief Ex.P9)
8. PW14 Shri Sushil Kumar Aggarwal, (identified Cartridges Ex.P7 (colly), owner of Aggarwal Tent House Shamiyana Ex.P8(colly) and handkerchief Ex.P9)
9. PW15 ASI Manoj Kumar, DIU RC No.119/21/17 as Mark X1 and acknowledgement Mark X2
10. PW16 ASI Rajbir RC No.122/21/17 and RC No.123/21/17 as Mark Y1 and Mark Y2 respectively
11. PW17 Ct.Naveen Scaled site plan Ex.PW17/A
12. PW18 Shri Vivek Kumar, Junior Report Ex.PW18/A, certificate u/s 65B of Forensic/ Assistant Chemical Examiner Evidence Act Ex.PW18/B (identified the (DOC), FSL, Rohini, Delhi memory cards as Ex.P2 and Ex.P3)
13. PW19 Shri Israr Babu, Alternate Nodal Attested copy of CAF along with attested Officer, Vodafone Idea Limited copy of Aadhar, number migration form and vodafone Red plan form are Ex.PW19/A, Ex.PW19/B, Ex.PW19/C and Ex.PW19/D (OSR), call details record of mobile Ex.PW19/E, cell ID chart of mobile numbers 8376929393 and 9811218985 Ex.PW19/F
14. PW20 Shri Avinash Srivastava, Senior Report Ex.PW20/A, Report Ex.PW20/B, Scientific Officer (Ballistic), FSL, Report Ex.PW20/C (identified pistol Ex.P5, Rohini cartridges Ex.P6 (colly), cartridges Ex.P7 (colly), Shamiyana Ex.P8 (colly)
15. PW21 Shri B.L. Suresh Addl. DCP, Sanction u/s 39 of Arms Act Ex.PW21/A Rohini District
16. PW22 SI Sandeep Statement of Kalpana Ex.PW22/A, Statement of Abhishek Ex.PW22/B, Statement of Akshay Ex.PW22/C, arrest memo of accused Ex.PW22/D, disclosure statement of accused Ex.PW22/E, application regarding issuance of NBW Ex.PW22/F, application regarding production of accused Sajjan @ Kali Ex.PW22/G (identified the shirt Ex.P1, memory cards Ex.P2 and Ex.P3) FIR No.249/17 PS South Rohini Page No. 17 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali
17. PW23 Inspector Rajbala, IO Application for permission of interrogation and formal arrest of accused Ex.PW23/A, application for conducting postmortem Ex.PW23/B, Death Report Ex.PW23/C and application regarding TIP of accused Ex.PW23/D
18. PW24 Ct. Dharamveer DD No.59 Ex.PW24/A (OSR)
19. PW25 HC Yoginder Singh Entry regarding receiving complaint sent by Kalpana by speed post Ex.PW25/A (OSR)
20. PW26 Ct. Bhavnish Copy of complaint received at DCP, Rohini District Ex.PW26/A (OSR), Copy of complaint received at DCP, Rohini District Ex.PW26/B (OSR), copy of reply of Inspector Seema Yadav Ex.PW26/C (OSR)
21. PW27 W/Ct. Sunita Complaint dt.11092017 Ex.PW27/A, complaint dt.20092017 Ex.PW27/B, copy of complaint register containing two entries at serial no.837 and 842 are Ex.PW27/C and Ex.PW27/D (OSR), complaints dt. 131017, 28102017 and 09112017 made by complainant Kalpana are Ex.PW27/E, Ex.PW27/F and Ex.PW27/G, copy of complaint register containing three entries at serial no.909, 936 and 991 are Ex.PW27/H, Ex.PW27/I and Ex.PW27/J (OSR)
22. PW28 HC Ramesh Kumar Copy of Entry No.436 dt.22092017 in complaint register Ex.PW28/A (OSR)
23. PW29 Inspector Seema Yadav Application for request to MCD Ex.PW29/A, (identified pistol Ex.P5 and cartridges Ex.P6 (colly)
24. PW30 ASI Surinder Mann (identified pistol Ex.P5 and cartridges Ex.P6 (colly)
25. PW31 Inspector Ajeet Singh Filed supplementary chargesheet in the court.
CUMULATIVE EFFECT OF THE ENTIRE EVIDENCE
34. In the instant case, PW1 Smt. Kalpana (mother of FIR No.249/17 PS South Rohini Page No. 18 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali deceased), PW2 Abhishek (brother of deceased), PW4 Akshay (maternal uncle of deceased), PW5 Sachin Goyal (photographer), PW6 Johny (father of deceased) and PW8 Dharam Singh (grandfather of deceased) though have been cited as the eye witnesses to the entire incident however they have not at all supported the case of the prosecution as regards the identity of the accused is concerned and they have stated that they had not seen, who had fired at deceased Nikhil. Though the learned Additional Public Prosecutor for the State had cross examined these witnesses at length but nothing fruitful came out from them in favour of the prosecution and against the accused. They have denied the suggestion that they are intentionally concealing the truth and further denied the suggestion that they have been won over by the accused and his family members that is why they are not deposing against him.
35. There is not even an iota of evidence against the accused. The very foundation on which the entire prosecution case rests has been demolished by the testimony of PW1 Smt. Kalpana (mother of FIR No.249/17 PS South Rohini Page No. 19 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali deceased), PW2 Abhishek (brother of deceased), PW4 Akshay (maternal uncle of deceased), PW5 Sachin Goyal (photographer), PW6 Johny (father of deceased) and PW8 Dharam Singh (grandfather of deceased), who, as per the prosecution case, are stated to be the eye witnesses to the entire incident. They were the best persons, who had allegedly seen the happening of the incident and they were the best persons to narrate the true and correct facts. When they themselves not implicated the accused with the offences alleged against him, no guilt whatsoever can be fastened upon the accused as regards the charge under Section 302 IPC is concerned. Moreover, in her cross examination, PW29 Inspector Seema Yadav, who is the IO of the case has deposed that "It is correct that in none of the video and photographs, the accused is seen while firing with pistol. I did not mention this fact in the charge sheet that earlier disclosure statement of accused which was disclosed by accused to the earlier IO was incorrect."
FIR No.249/17 PS South Rohini Page No. 20 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali
36. The testimony of PW20 Shri Avinash Srivastava, Senior Scientific Officer (Ballistic), FSL, Rohini, Delhi is of no help to the case of the prosecution as PW20 in his cross examination has deposed that "I cannot say if cartridge case EC4 is of pistol Ex.F1 or of any other pistol of 7.65 mm bore. It is correct that the cartridge case 9 mm will be of pistol of 9 mm bore. I cannot admit or deny that above mentioned all cartridge cases EC1 to EC5 are of two pistols or three pistols. Volunteered that the cartridge cases EC1 to EC3 have been fired from pistol Ex.F1. I cannot tell whether holes in cloth shamiana and plastic shamiana were made by using pistol of 7.65 mm or of 9 mm or any other pistol."
37. From the testimony of PW20 Shri Avinash Srivastava, it cannot be ascertained that bullet which hit deceased Nikhil was fired from pistol Ex.F1, whose recovery is allegedly made at the behest of accused. The testimony of PW20 Shri Avinash Srivastava is accordingly of no help to the case of the prosecution to arrive at a just conclusion in the present case.
FIR No.249/17PS South Rohini Page No. 21 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali
38. The material prosecution witnesses had not supported the case of prosecution in any manner whatsoever. The star witnesses of the prosecution did not connect the present accused with the offence as alleged against him. No incriminating evidence worth the name has come on record to connect the accused with the crime. There is no circumstantial evidence brought on record by the prosecution against accused Sajjan @ Kali. Hence, the charge under Section 302 IPC could not be proved against the accused.
39. As regards the case of the prosecution under Section 25/27 of the Arms Act against the accused is concerned, PW11 ASI Devender, PW29 Inspector Seema Yadav and PW30 ASI Surinder Mann are the witnesses to the recovery of weapon of offence i.e. pistol. In this regard, PW11 ASI Devender in his examination in chief has deposed that on 29092017, he along with IO Inspector Seema Yadav, ASI Surender and accused went to his house at D2/376, Nand Nagri, Delhi and accused Sajjan got recovered one loaded pistol from the right side of his double bed kept in the corner in room at first FIR No.249/17 PS South Rohini Page No. 22 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali floor. He further deposed that IO checked the pistol and it was found containing two live cartridges and IO seized the case property vide Ex.PW11/C. In his cross examination in this regard, he has deposed that "No disclosure statement of accused was recorded on 28092017 regarding disclosure of this fact. When we reached at H.No.D2/376 at that time it was open. Mother of the accused was present at that time."
40. In this regard, PW29 Inspector Seema Yadav, who is the IO of the case and a witness to the recovery of weapon of offence i.e. pistol has deposed that "In the intervening night of 28/29.09.2017, the accused led us i.e. myself, ASI Devender Lakra and ASI Surender Mann to his house i.e. at D2/376, Nand Nagri, Delhi where accused got recovered one country made pistol from right portion of double bed which was kept in a hall room. I opened the pistol and two live cartridges were taken out from the magazine. Recovered pistol and live cartridges were taken into possession vide seizure memo already Ex.PW11/C. I recorded the supplementary disclosure statement of FIR No.249/17 PS South Rohini Page No. 23 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali accused Sajjan @ Kali."
41. On this aspect of the case, the cross examination of PW29 Inspector Seema Yadav is of utmost importance, the relevant portion of which is as under;
"It is correct that in none of the video and photographs, the accused is seen while firing or with pistol. I did not mention this fact in the charge sheet that earlier disclosure statement of accused which was disclosed by accused to the earlier IO was incorrect." In her cross examination, she has further deposed that "when we reached at the house of accused i.e. in the ground floor, mother of accused was present there. Mother of the accused refused to sign on the seizure memo as well as the other memos prepared at that time. I did not mention the said fact in the charge sheet which is prepared by me."
42. PW30 ASI Surinder Mann, who is also a witness to the recovery of weapon of offence i.e. pistol, has deposed on the lines of PW29 Inspector Seema Yadav, the IO of the case. FIR No.249/17 PS South Rohini Page No. 24 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali
43. From the testimonies of PW11 ASI Devender, PW29 Inspector Seema Yadav and PW30 ASI Surinder Mann, who are the witnesses to the recovery of weapon of offence i.e. pistol, two points have emerged which are of utmost importance and the same are as follows;
(i) Disclosure Statement of accused as regards the recovery of weapon of offence i.e. pistol was recorded by the IO after recovery of the weapon of offence.
(ii) No public person was joined in recovery proceedings or subsequent recording of disclosure statement and despite the fact that the mother of accused was present at the time of recovery of weapon of offence i.e. pistol, she was not even cited as a witness as regards the recovery of weapon of offence is concerned.
44. The above stated two points make the case of the prosecution highly doubtful as regards the recovery of weapon of offence. It was the duty of the police to record the disclosure statement of accused first as regards concealing the weapon of offence FIR No.249/17 PS South Rohini Page No. 25 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali in the bed kept on the first floor of his house and then pursuant thereto, IO should have proceeded further for its recovery.
45. As per Section 26 of the Evidence Act, no confession made by any person, while he is in the custody of a Police Officer, shall be proved as against such person and as per Section 27 of the Evidence Act, when any fact is deposed to as recovered in consequence of information received from a person in custody of a Police Officer, so much of such information as relates distinctly to the fact thereby discovered, may be proved.
46. As per the settled legal position, what is admissible under Section 27 of the Evidence Act, is the information received from an accused as relates distinctly to the fact thereby discovered. In other words, the precondition to bring Sec.27 into operation is that the discovery of a fact must be deposed to and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. Word "information" used in Sec.27 means the content or substance of a statement. Therefore, the exact information given by FIR No.249/17 PS South Rohini Page No. 26 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali the accused while in custody or in other words, the statement made by the accused, must be recorded by the Investigation Officer and if pursuant to such information or statement recovery is made, then that information or statement becomes admissible under Sec. 27.
47. Ex.PW11/D which is disclosure statement of accused was recorded by the IO on 29092017 which date is mentioned on the third page of the statement. PW29 Inspector Seema Yadav, who is the IO of the case has categorically deposed that on the intervening night of 28/29092017, accused had led her, ASI Devender Lakra and ASI Surender Mann to his house where he got recovered one country made pistol with two live cartridges from right portion of double bed which was kept in a hall room. PW29 has also deposed that she obtained two days police custody of accused for recovery of weapon of offence on 27092017. PW11 ASI Devender has categorically deposed that no disclosure statement of accused was recorded on 28092017. Thus, it is clear that the disclosure statement was recorded subsequent to the recovery of weapon of offence. The subsequent recording of FIR No.249/17 PS South Rohini Page No. 27 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali disclosure statement after recovery of weapon of offence does not fall in the purview of Section 27 of the Evidence Act which is proviso to Section 26 of the Evidence Act. Thus, the said alleged recovery of weapon of offence with two live cartridges is inadmissible in evidence.
48. Furthermore, despite the fact that mother of accused was present at that time in the house of accused, however, she was not even cited as witness despite the fact as stated by the IO that she had refused to sign on documents prepared by her. No public witness was joined at the time of recovery proceedings or subsequent disclosure which otherwise makes the recovery of the weapon of offence and cartridges at the pointing out by the accused, highly doubtful.
49. Thus, in view of the testimonies of PW11 ASI Devender, PW29 Inspector Seema Yadav and PW30 ASI Surinder Mann, it is not at all safe to return a finding the pistol was recovered from the possession of the accused. In the cross examination of IO, it has come that "in none of the video and photographs, the accused is seen while FIR No.249/17 PS South Rohini Page No. 28 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali firing or with pistol". Hence, charge under Section 25/27 of the Arms Act against the accused could also not be proved.
50. The prosecution has completely failed to connect the accused as well as weapon of offence with the crime alleged against the accused beyond a reasonable doubt. Hence, the accused is entitled to the benefit of doubt.
CONCLUSION
51. Keeping in view the totality of the facts and circumstances of the case, the entire case of the prosecution crumbles down. The prosecution has completely failed to bring home the guilt of the accused Sajjan @ Kali under Section 302 IPC and under Section 25/27 of the Arms Act. Accused Sajjan @ Kali accordingly stands acquitted. His Bail Bond is cancelled and surety is discharged.
52. Sajjan @ Kali is directed to furnish fresh Bail Bond in the sum of Rs.10,000/ (Ten Thousand) with one surety in the like amount which shall remain in force for a period of six months in pursuance of Section 437(A) Code of Criminal Procedure. FIR No.249/17 PS South Rohini Page No. 29 /30 under Section 302 IPC & under Section 25/27 of Arms Act SC/28/18 State Vs. Sajjan @ Kali
53. File be consigned to Record Room after due compliance.
ANNOUNCED IN THE OPEN COURT Digitally
signed by RAM
ON 16th JANUARY, 2020 RAM PRAKASH
PANDEY
PRAKASH Date:
PANDEY 2020.01.17
17:29:49
+0530
(R.P. PANDEY)
DISTRICT & SESSIONS JUDGE
NORTH WEST DISTRICT
ROHINI COURTS, DELHI
FIR No.249/17
PS South Rohini Page No. 30 /30
under Section 302 IPC &
under Section 25/27 of Arms Act