Delhi District Court
State vs Ghanshyam Etc on 31 March, 2023
FIR No. 67/2016
PS Najafgarh
State vs Ghanshyam etc
IN THE COURT OF VIPLAV DABASS:
ADDL. SESSIONS JUDGE : FAST TRACK COURT:
SOUTH-WEST DISTRICT
DWARKA COURTS: NEW DELHI
SC No. 170/2017
CNR No: DLSW01-003051-2017
JUDGMENT
State Vs. (I) Ghanshyam @ Kushal @ Kimi S/o Sh. Balbir Singh R/o H.No. 65-A/347. Gali No. 3, Jagdamba Vihar, Sagar Pur, New Delhi. (ii) Shakti @ Sharda S/o Sh. Rajpal R/o Village Kharhar PS Sadar District Jhajhar, Haryana Old Add-H.No. RZ-639, Gali No. 14, Gopal Nagar, Najafgarh, New Delhi. (iii) Deepak @ Fanda S/o Sh. Ramphool (iv) Krishan (since expired) S/o Sh. Mahinder R/o Village Sampla War No. 12, District Rohtak, Haryana FIR No. 67/2016 Police Station Najafgarh Under Sections Under Sections 302/34 IPC Page No.1 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc and 25/27 Arms Act Date of institution 01.03.2017 Date of committal to Sessions Court 18.03.2017 Date of transfer to this court 13.09.2022 Date on which judgment was reserved 31.03.2023 Date on which Judgment pronounced 31.03.2023 Final Order Acquitted FACTUAL MATRIX
1. The case of prosecution is that on 03.02.2016 at about 2.05 pm at RZ- 137, New Roshan Pura, Najafgarh, Gurgaon Road, New Delhi, the accused persons namely Ghanshyam @ Kushal @ Kimi, Shakti @ Sharda, Deepak @ Fanda and Krishan in furtherance of their common intention, committed murder of Somdutt by firing on him by using deadly weapon/pistol/desi katta/ revolver without any license. On 09.11.2016, the accused Shakti @ Sharda was found in possession of one Revolver and one pistol by the Crime Branch, Gurgaon, Haryana in FIR No. 463/16 and accused Ghanshyam was found in possession of two country made pistols without license used by him on 03.02.2016 in committing the murder of Somdutt. On 16.11.2016, accused Shakti @ Sharda was further found by the said Crime Branch in possession of one katta without license which was used by him in committing the murder of Somdutt on 03.02.2016.
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2. On the complaint of the complainant Yogesh @ Sonu, the present FIR No. 67/16 PS Najafgarh, for the offences punishable under section 302/307/34 IPC and 25/27 Arms Act was registered and a charge-sheet for offences punishable u/s 302/34 IPC and 25/27 Arms Act was filed after usual investigation. It is pertinent to mention that accused Krishan expired during the investigation of the present case and abated charge sheet was filed against him.
INITIAL COURT PROCEEDINGS
3. Ld. Magistrate took cognizance of offences alleged. After compliance of section 207 Cr.P.C, the present case was committed to Learned Sessions Court.
4. After hearing arguments on point of charge, on 11.07.2017, as a prime facie case was made out, charge for the offences punishable u/s 302/34 Indian Penal Code was framed against all the accused persons and a separate charge for the offence punishable under section 25/27 Arms Act was framed against accused Shakti @ Sharda and Ghanshyam @ Kushal by the Ld. Predecessor Court to which the accused persons pleaded not guilty and claimed trial. Thereafter, the matter was listed for prosecution evidence.
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5. In order to prove the guilt of the accused u/s 302/34 IPC and 25/27 Arms Act, the prosecution has to prove the following essential ingredients of the said Sections:
Section 302 IPC:- Murder (1) Death of a human was being caused; (2) Such death was caused by or in consequence of the act of the accused; (3) Such act was done- (a) with the intention of causing death, or (b) that the accused knew it to be likely to cause death, or (c) that the injury was sufficient in the ordinary course of nature to cause death (d) if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Section 34 IPC:- Sharing of Common intention (I) That the criminal act or a series of acts which include omissions and need not necessary be an overt act should have been done not by one person but by more then one person.
(ii) That the doing of every such individual act cumulatively resulting into the commission of criminal offence should have been in furtherance/ advancement/ promotion of common intention of all such persons.
Section 25 Arms Act:-
That the accused was found in possession of Arms/ammunition and that the said Arm/ ammunition was not having valid license.
Section 27 Arms Act:-
That accused used fire arm/ammunition in commission of offence and that the said arm/ ammunition was not having valid license.Page No.4 of 56 FIR No. 67/2016
PS Najafgarh State vs Ghanshyam etc PROSECUTION EVIDENCE
6. To prove the aforementioned ingredients of the various offences and its case, prosecution started its evidence with the testimony of prosecution witnesses as per the list.
7. PW-1 Dr. Deepak Bhaskar was the Medical Officer. He deposed that on 03.02.2016 he was working as Medical Officer in RTM hospital, that on that day a patient namely Somdutt S/o Sh. Shiv Narain aged 45 years male was brought in the Casualty with the alleged history of gun shot injury on 03.02.2016 at 2.56 p.m, that on examination, he found patient to be unconscious and his BP and pulse not recordable, that there was no respiration in his chest and there was no cardiac sound, that his pupil were fully dilated and fixed and not reacting to light, that there was right side rupture injury, that on local examination, he found a gun short injury over his occipital region of skull, gun shot injury over right scapular region and gun shot over right hypochongriun region in abdomen, that there was an injury over left side back and there was clotted blood over face, mid-abdomen and back, that after examination, he declared the patient as brought dead vide MLC Ex PW 1/A which is in his hand bearing his signatures at point A and that thereafter, the body was shifted to the mortuary and sample of clothes were handed over to the IO along with one bullet.
The witness was not cross examined by the Ld. Defence counsels for Page No.5 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc accused persons despite opportunity. This unrebutted testimony shows that the witness proved the MLC Ex. PW-1/A and aforesaid facts as observed by him at time of examination of body of victim when the same was brought at RTRM Hospital.
8. PW-2: Sh. Shiv Narain was the father of deceased. He deposed that Somdutt, since deceased, was his elder son, that on 04.02.2016, he had identified his dead body in the mortuary of RTM Hospital vide his statement Ex.PW2/A, signed by him at point A and after the postmortem the dead body of my son was handed over to him vide receipt Ex.PW2/B signed by him at point A. The witness was not cross examined by the Ld. Defence counsel despite opportunity. The unrebutted testimony of PW-2 proves the factum of identification of dead body of victim by him vide Ex. PW-2/A and handing over of the body of his son to him after postmortem vide receipt Ex. PW-2/B.
9. PW-3 Ct. Amit deposed that on 03.02.2016, he was posted as Constable in police control room , that on that day, at about 02.12 p.m, he had received a call on his extension no. 105, which was made by one Sh. Ravinder Singh from his mobile no. 7838687467, that after receiving the call he informed about the said call in the control room of S/W District, that he has brought the attested copy of PCR Form Ex. PW-3/A vide which he received Page No.6 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc the aforesaid information and that the same bears the signatures of ACP Sh. Subodh Kumar at point A, which he identifies as he had signed on the said PCR form in his presence.
The witness was not cross examined by Ld. Defence counsels despite opportunity. The unrebutted testimony of PW-3 shows that factum of receipt of PCR call vide PCR Form Ex. PW-3/A by him made by Ravinder Singh regarding the present incident and factum of his informing about the call in Control Room of South West District are duly proved.
10. PW-4:-Dr. Pawan Kumar was the doctor who conducted postmortem. He deposed that on 04.02.2016, he was working as specialist Department of Forensic Medicine, RTRM hospital, Govt. of NCT of Delhi, Jaffarpur New Delhi, that on that day, at about 11.45 a.m. he started conducting the postmortem on the body of Sh. Somdutt S/o Sh. Shiv Narain on the basis of an application of IO requesting for conducting the postmortem and that the application of IO in this regard is Ex PW 4/A bearing his signatures at point A. He further deposed that he started conducting the postmortem on the body of Somdutt, that as per record, there was alleged history of deceased sustaining gun shot injuries on 03.02.2016 at about 2.05 p.m in front of RZ- 137, New Roshanpura on main Najafgarh Gurgaon Road Delhi and that the said patient was taken to RTM hospital, New Delhi on 03.02.2016 at 2.56 p.m vide MLC no. 551/16 where he was declared brought dead Page No.7 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc He further deposed that body was preserved in the mortuary since 4.35 pm of 03.02.2016 till the autopsy started, that he conducted the internal examination and also conducted the external examination and he found four fire arm wounds on the body of the deceased which he had mentioned in his detailed postmortem report and that in his opinion, the cause of death in this case was cranio cerebral damage consequent upon fire arm injury to head produced by projectile of rifled fire arm.
He further deposed that injury no.1, 2 and 3 could have been produced by projectile of rifle fire arm fired from close range, that injury no.4 could have been produced by projectile of rifle fire arm fired from distant range, that all the injuries together and external injury no.1, 3 and 4 with their corresponding internal injuries were individually fatal in ordinary course of nature to cause death, that all the injuries were ante mortem in nature and that the viscera was preserved to rule out any poisoning, that the time since death was approximately 12-24 hours (as per inquest papers) and that body was kept in cold storage prior to autopsy.
He further deposed that after the postmortem examination, clothes of the deceased as mentioned in his detailed postmortem report and viscera preserved in saturated solution of common salt as preservative sealed in a wooden box labeled and signed were handed over to IO with the sample seal of RTRM hospital. He stated that blood on gauze piece soaked, dried and sealed in an envelope labeled and signed were handed over to the IO with the Page No.8 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc sample seal of RTRM hospital. He stated that swabs taken from hand and wound site numbering 7 in separate plastic container sealed and labeled as Right Hand Swab, Left Hand Swab, right abdomen wound, left mandibular, left eye, right scapular region and control swab, that 17 photographs of postmortem 1 to 17 and CD duly signed, that 7 X-ray plates duly signed in number bearing plate numbers 151R to 156R and 152l and that inquest papers numbering 1 to 21 duly signed were returned back to the investigating officer along with requisition slip. He further deposed that his original detailed postmortem report running into 5 pages is Ex PW 4/B all bearing his signatures at pt A, that the 17 photographs of the postmortem taken at the time of postmortem lying in the court file are Ex PW 4/C1 to C17 all bearing his signatures at pt A and that the CD prepared at the time of the postmortem already lying in the court file is Ex PW 4/C18.
During his cross examination conducted by Ld. Defence counsel for accused Deepak @ Panda, Shakti @ Sharda and Ghanshyam, he deposed that the request for conducting the postmortem was received at about 11.45 a.m on 04.02.2016, that it took him around two hours to conclude the postmortem proceedings and that he cannot tell at what time he had handed over the above documents to the IO after postmortem. The testimony of this witness establishes that postmortem was duly conducted by him, that the postmortem report EX. PW4/B is duly proved and that the cause of death in this case was cranio cerebral damage consequent upon fire arm injury to head produced by Page No.9 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc projectile of rifled fire arm.
11. PW-5:- Sh. Ravinder Singh was the person who made call at PCR from the spot. He deposed that on 03.02.2016, he was present at the shop at New Roshan Pura Stand, Najafgarh, of his friend Suresh and they were sitting outside his shop, that at about 6-7 pm, he heard the noise of firing coming from the other side of the road, that they immediately rushed towards the place and saw that one person was lying on the side of road having gun shot injury and that blood was oozing from him. He stated that he saw one person running away in a swift car and he could not see the face of that person. He further deposed that he also could not see the registration number of the said car, that however, some persons told him that the Registration no. of the said car was HR 1423, that thereafter he dialed at 100 number from his mobile no.. 7838687467, that police reached at the spot and that police recorded his statement.
During his cross-examination conducted by Ld. Defence counsel for accused Deepak he deposed that the distance between the place where he was sitting and the place of incident was about 40-50 meters, that he heard the noise of gun shot, that he does not remember if he heard the noise of gun shot once or many times, that he cannot tell the name of the person, who had told him the RC No. of the said swift car, that his statement was recorded on the same day, that at the spot, about 50-100 persons were gathered after the Page No.10 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc incident and that he cannot tell how many persons were sitting in the said Swift car. He denied that he had not heard the noise of firing or that he had not made a call to police at 100 number or that he was deposing falsely at the instance of IO.
The witness was not cross examined by the Ld. Counsel for accused Sharda and Ghanshyam despite opportunity. The testimony of this witness shows that he proved the factum of making the PCR call.
12. PW-6 Deepak, PW-11 Lakshay and PW-12 Yogesh are the eye witnesses of the prosecution and their testimnoies will be discussed in the later part of the judgment.
13. PW-7 ASI Balwant Singh was the Crime Team photographer. He deposed that on 03.02.2016, he was posted as photographer at Mobile Crime Team South West District, that on that day, on receipt of a PCR call from the control room, he along with SI Surender crime team Incharge and HC Devender(finger print proficient) reached at the spot at opposite H.No. 137, Roshanpura Main Road Najafgarh Chhawla where Ashok along with other staff met them and that he took the photographs of the spot on the instructions of Crime Team Incharge and IO. He further deposed that he had brought the negatives of the said photographs and that after getting the negatives developed the photographs were handed over to the IO. The five photographs Page No.11 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc Ex .PW 7/P1(colly) already placed on the judicial file were shown to the witness who correctly identified the same as clicked by him on the spot. The negatives and photographs produced by the witness were taken on record and same are collectively Ex. PW-7/P2.
During his cross-examination conducted by Ld. Defence counsel for accused Ghanshaym, he deposed that IO had recorded his statement on the spot on the same day ie 03.02.2016 and that he had stated to the IO the place of incident/spot i.e. H.No 497, Roshanpura Main Road Najafgarh Chhawla. He was confronted with the statement Ex PW 7/DA where only Roshanpura, Najafgarh, Gurgaon Road is mentioned and house number is not mentioned. He further deposed that IO had not prepared any seizure memo when he handed over the photographs to him and that IO had not recorded my statement when he handed over the aforesaid photographs. He denied that he did not take any photograph of the spot, that he did not join the investigation or that he is deposing falsely.
During his cross examination conducted by Ld. Defence counsel for accused Shakti @ Sharda he deposed that he reached at the spot at about 3:00 p.m and remained there till 4:00 p.m, that IO had not recorded any statement in his presence however the statement of SI Surender, Incharge was recorded and that no one had given any complaint to the IO on the spot, in his presence. He admitted that the photographs clicked by him on the spot do not depict any cartridge. He voluntarily deposed that there were four empty cartridge and Page No.12 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc one live cartridge on the spot but due to technical fault in his camera same could not he seen after getting developed the negatives. He admitted that he had not mentioned in his statement that there were any live or empty cartridges on the spot.
Accused Deepak adopted the above cross-examination conducted on behalf of remaining accused persons. The testimony of this witness shows that he proved the factum of clicking the photographs of the crime scene and that the said photographs are Ex.PW7/P1(colly).
14. PW-8 Ct. Ravi Kant was the police official who accompanied IO during investigation. He deposed that on 19.12.2016, he joined investigation of present case with IO Inspector Tulsi Ram, that accused Deepak @Fanda (correctly identified by witness on production of accused through VC from Bhondsi Jail) was arrested by IO after taking permission from court in Dwarka Courts, that disclosure statement of accused Deepak @ Fanda was recorded by IO, that thereafter, IO moved an application for TIP of accused but accused Deepak @ Fanda refused to undergo TIP proceedings and that thereafter, PC remand of accused Deepak ® Fanda was taken and during PC remand, accused pointed towards place of occurrence.
Witness is shown arrest memo and disclosure statement of accused Deepak @ Fanda and witness has identified his signatures on both at point A which are now Ex. PW-8/A and Ex. PW-8/B respectively. Witness is shown Page No.13 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc pointing out memo and witness has identified his signatures on the same at point A which is Ex. PW-8/C. During his cross examination conducted by Ld. Defence counsel for accused Deepak and Shakti @ Sharda, he deposed that he does not remember as to who in family of accused Deepak was informed regarding arrest of accused, that IO took 15-20 minutes for recording disclosure statement of accused Deepak and the same was recorded in Dwarka Court Complex and that when accused pointed out place of occurrence during his PC Remand, pointing out memo only was prepared and that IO did not make any inquiry from anyone at place of occurrence as pointed out by accused Deepak. He denied that no other disclosure statement was given by accused Deepak nor he took IO and him to alleged place of occurrence. He deposed that nothing more took place before him on 19.12.2016 during investigation conducted by IO, that he does not know as to whether IO was already aware of place of occurrence and that he was not aware of the same.
He denied that disclosure statement of accused Deepak was prepared while sitting in PS and signatures of accused were taken on blank papers which were later on converted in disclosure and pointing out memo of accused and that he was deposing falsely at behest of IO.
Ld. Defence counsel for accused Ghanshyam adopted the cross- examination conducted on behalf of remaining accused persons. The testimony of this witness shows he proved his participation in the arrest / Page No.14 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc other proceedings conducted by IO qua accused Deepak during investigation.
15. PW-9 Ct. Suresh was another police official who accompanied IO during investigation. He deposed that on 05.12.2016, he joined investigation of present case with IO Inspector Tulsi Ram, that accused Ghanshyam (correctly identified by witness on production of accused through VC from Bhondsi Jail) was arrested by IO after taking permission from court in Dwarka Courts, that disclosure statement of accused Ghanshyam was recorded by IO, that thereafter IO moved an application for TIP of accused but accused Ghanshyam refused to undergo TIP proceedings, that thereafter, PC remand of accused Ghanshyam was taken and that during PC remand the accused was taken to police station where complainant Yogesh identified him to be assailant who had fired upon Somdutt. The witness was shown arrest memo and disclosure statement of accused Ghanshyam and witness has identified his signatures on both at point A which are now Ex. PW-9/A and Ex. PW-9/B respectively.
During his cross-examination conducted by Ld. Defence counsel for accused Ghanshyam he deposed that he does not remember name of the court where accused Ghanshyam was produced and arrested, that his signatures were taken on arrest memo of accused Ghanshyam by IO in court, that disclosure statement of accused Ghanshyam was recorded only on one page in handwriting of IO, that application application for conducting TIP of accused Page No.15 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc Ghanshyam was moved after his arrest, that complainant Yogesh met him outside police station, that complainant came on his own to police station and IO did not call him, that he cannot say as to how far from PS complainant met them ie 1 km away, that IO did not record any statement of complainant in his presence, that complainant did not go inside PS with them, that complainant might have been between age of 35-40 years and the he does not remember height and complexion of complainant.
He denied that he never joined the investigation with IO, that accused did not give any disclosure statement and his signatures were taken on blank papers while sitting in the PS which were later on converted into his disclosure statement and other memos, that he signed the documents at the instance of IO, that he was deposing falsely being police official, that complainant Yogesh never met them outside the police station and he never identified the accused Ghanshyam as perpetrator of crime in question in present case and that his statement was recorded by IO in the Police Station regarding his joining investigation on 05.12.2016.
Ld. Defence counsel for accused Deepak and Shakti @ Sharda adopted the cross examination as conducted on behalf of accused Ghanshyam. The testimony of this witness shows he proved his participation in the arrest / other proceedings conducted by IO qua accused Ghanshyam during investigation.
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16. PW-10 Inspector Ashok Kumar was posted as Sub Inspector at Police Station Najafgarh.
He deposed that on 03.02.2016 he received DD No.25A and the same was marked to him, that he alongwith HC Mahender reached the place of incident in front of RZ. 137, New Roshanpura, Main Najafgarh, Gurgaon Road where their senior officers and other police officers were present, that he also noticed white coloured Santro car and also found injured person lying besides the car, that Inspector Tulsi Ram also came to the spot and near the spot four empty fired cartridges and one live cartridge was found, that on the front side of the car i.e. on the glass, they found bullet mark on the wind screen, that they also noticed one CNG sticker bearing car No. HR 13 E 2355, that IO called the crime team to the spot and crime team took photographs of the spot and also inspected the crime scene, that in the meanwhile, the injured Som Dutt was sent to RTRM Hospital, Jaffarpur through PCR Van, that thereafter, he received DD No. 28A about the death of the injured, that IO recorded the statement of the complainant namely Yogesh, that IO made endorsement on the said statement and handed over rukka to HC Mahinder for registration of the case who came back to the spot and handed over the copy of FIR and rukka to the to IO, that HC Daya Singh came to the spot along with exhibits brought from RTRM hospital, that IO seized the said items vide seizure memo Ex. PW-10/A bearing his signature at point A, that IO had prepared the sketch of the four empty cartridges and one live cartridge, that Page No.17 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc the sketch is Ex. PW-10/B bearing his signature at point A, that IO kept the live cartridge and four empty cartridges in separate plastic transparent box and marked them as 'L' E1 to E4 and the same were sealed with the seal of TRY and seized vide seizure memo Ex. PW-10/C bearing his signature at point A, that IO had taken the blood soaked earth control and earth control from the spot and kept them in separate plastic transparent box marked as B1, B2 and B3 and the same were seized vide seizure memo Ex. PW-10/D bearing his signature at point A, that IO seized the Santro car i.e. white colour without number plate having fired bullet type on the wind screen vide seizure memo Ex. PW-10/E bearing his signature at point A and that his statement was recorded by IO. The Santro Car was already released on the superdari and the Ld. counsel for the accused did not dispute the identity of the car.
During his cross examination conducted by Ld. Defence counsel for accused Deepak and Shakti, he deposed that he reached at the spot alongwith HC Mahender at about 2:40 pm and there were about 8-10 police officials present at the spot at that time, that he could see the face of the injured as he was lying on his back, that the empty fired cartridges were found around 15 feet distance from where the body of injured was lying, that Crime team came to the spot within 10 minutes of their arrival, that IO had recorded the statement of Yogesh in his presence and IO also made enquiries from other persons also but he had not noticed whether IO had recorded anybody's statement or not and that he does not remember as to what was the length of Page No.18 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc the statement of Yogesh. He further deposed that he does not remember what documents were prepared by the IO other than the documents stated by him in his chief examination and that he does not remember how much time was taken by the IO in writing statement of Yogesh.
He denied that Yogesh had not given any statement to the IO, that IO had not seized any articles in his presence or that IO had not prepared documents of seizure in his presence. He deposed that the height of Yogesh is around 5'8'' or 5'10'' and his age is between 30 to 35 years, that he does not remember whether any family members of the injured had also gone alongwith PCR to RTRM hospital, that he had informed the fact that he had received DD No. 28A to the IO and that he left the spot for PS at around 7.00 pm. He denied that he had not joined the investigation or that no documents were prepared in his presence or that no seizure was done in his presence and that he had signed all the memos at PS at the instance of the IO. He deposed that HC Mahender came back to the spot after the registration of the FIR at about 5.20 pm. He denied that he was deposing falsely.
During his cross-examination conducted by Ld. Defence counsel for accused Ghanshyam, he deposed that he alongwith HC Mahender reached to the spot on motorcycle, that he does not remember the motorcycle number, that IO recorded his statement at police station and that the photographer is also a crime team. He denied that complainant Yogesh was not present at the spot or that he had not given any statement to the IO in his presence. He Page No.19 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc denied that he had not joined the investigation or that no documents were prepared in his presence or that no seizure was done in my presence, that he had signed all the memos at PS on the instance of the IO and that he was deposing falsely.
During his cross-examination conducted by Ld. Defence counsel for accused Ghanshyam he deposed that he along with HC Mahender reached the spot on motorcycle, that he does not remember the motorcycle number, that the photographer was also a crime team member and that IO recorded his statement at police station. He denied that complainant Yogesh was not present at the spot or that he had not given any statement to the IO in his presence, that he had not joined the investigation or that no documents were prepared in his presence or that no seizure was done in his presence, that he had signed all the memos at police station at the instance of IO and that he was deposing falsely. The testimony of this witness shows he proved his participation in the initial proceedings conducted by IO at the spot qua seizure of cartidges and other case property , sending of rukka , calling crime team , recording of the statement of complainant Yogesh etc. during investigation .
17. PW-13:Redt. Inspector Tulsi Ram was the IO of the case. He deposed that on 03.02.2016, he was posted in PS Najafgarh as Inspector ATO, that on that day he was going back to police station Najafgarh after Page No.20 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc attending Patiala House Court, that at around 2.30 PM, he received a call from Duty Officer regarding DD No. 25A mentioning about the incident which took place at Gurugram Road near Chhawla Bus stand, that he straightaway went at the place of incident, that the SHO and other police staff of the police station were already present, that on the road going towards Gurugram, in front of Mobin CNG kit and repair shop, a white Santro car No. HR 13E 2355 was parked, that the car was seized vide Seizure Memo already Ex. PW-10/E, bearing his signatures at pt. X, that on the right side of the car, a person in the injured condition having gunshot injuries was lying on the ground who was identified as Somdutt, that he was immediately sent to RTRM hospital by PCR van, that scene of crime was preserved and crime team was informed, that Crime team came on the spot, that they inspected the scene of crime and took the photographs, the exhibits i.e. four empty cartridge and one live cartridge were lifted from the place of incident and taken into police possession, that intimation was received from RTRM hospital vide DD No. 28A that the injured is declared as brought dead, that MLC was got collected through HC Daya Singh, that the Clothes of the deceased and one live cartridge recovered from the clothes of the deceased were seized by the medical officer and that Ct. Daya Singh came back on the spot and handed over him the seized MLC and other exhibits and that the dead body was already preserved in mortuary.
He further deposed that he recorded the statement of complainant Page No.21 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc Yogesh and made endorsement on the statement and the same is Ex. PW- 13/A, bearing his signatures at pt. A, that he sent the Tehrir to the police station through HC Mahender for registration of the case, that he made inquiries on the spot from other witnesses and recorded their statements, that HC Mahender after registration of the case came back to the spot and handed over to him the original Tehrir and copy of FIR, that all the exhibits of the scene of crime were taken into possession vide Seizure Memo already Ex. PW-I0/A, Ex. PW-I0/C and Ex. PW-10/D, bearing his signatures at pt. X, that the sketch of the cartridges/ empty cartridges is already Ex. PW-10/B, bearing his signatures at pt. B and that the same were deposited in PS Malkhana.
He further deposed that on 04.02.2016, after proper identification, postmortem of the deceased was conducted and the dead body was handed over to the legal heir, that the exhibits were handed over to him by the doctor and same were seized vide Seizure Memo Ex. PW- 13/B, Ex. PW-13/C and Ex. PW-13/D, bearing his signatures at pt. A, that he made all the efforts to trace the accused, that he obtained the certified call records of the PCR call and got prepared the site plan by the draftsman and that the seized car was released on Panchnama by the order of Hon'ble court.
He further deposed that on 25.11.2016, intimation was received from Rajender Nagar Police Station, Gurugram, regarding arrest Page No.22 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc of Ghanshyam and Shakti @ Sharda, that he collected the relevant papers of their arrest from PS Rajender Nagar, that on 05.12.2016, accused Ghanshyam was produced in the court on Production warrant, that after Hon'ble Court's permission, he made enquiries from him and arrested him in this case vide Arrest Memo already Ex. PW-9/A, bearing his signatures at pt. B, that he recorded the disclosure statement and he mentioned that the other names of other accused as Shakti and Deepak and further mentioned that the weapon of offence used by them in this case has already been recovered by Gurugram Police, that he applied for the TIP of the accused who refused for the same, that accused was taken on two days PC remand for further investigation, that accused was identified by the complainant when they were approaching the police station and that after two days, accused was sent to Judicial custody.
He further deposed that on 09.12.2016, accused Shakti @Sharda was produced in the court on production warrant, that after court permission, he interrogated him and arrested him in this case vide Arrest Memo Ex. PW-13/E, bearing his signatures at pt. A and recorded his disclosure statement, that he disclosed that third accused Deepak has already been arrested by Sampla police and fourth accused Krishan has expired, that accused was taken on two days PC remand, that at instance of accused, pointing out memo of the place of incident was prepared, that after two days, he was sent to judicial custody, that he got collected Page No.23 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc documents papers regarding the arrest of accused Deepak from PS Sampla and collected the inquest papers of Krishan and that thereafter, the accused was sent to Judicial custody.
He further deposed that on 19.12.2016, accused Deepak was produced in the court on production warrant, that after Hon'ble court's permission, he interrogated him and arrested him in this case vide Arrest Memo already Ex. PW-8/A, bearing his signatures at pt. X, that his disclosure statement was recorded, that the disclosure statements of the accused persons are EX. PW-13/F. Ex. PW-13/G and already Ex. PW-9/B, bearing his signatures at pt. X, that he applied for the TIP. however, the accused refused for the same and that accused was taken for two days PC Remand.
He further deposed that during PC remand, accused was identified by the complainant Yogesh. He further deposed that at his instance, he prepared the pointing out memo of the place of incident, that on completion of PC remand, he was sent to judicial custody, that he sent the empty cartridge and live cartridge recovered from the scene of crime to FSL, Madhuban as the weapons recovered stated to be used in this case were recovered by Gurugram police and were sent to FSL, Madhuban by them, that other exhibits were sent to FSL, Rohini for examination, that the desi katta recovered by the Gurugram police was brought from/there on Hon'ble Court's order of Gurugram and he deposited the same in PS Page No.24 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc Malkhana and that he prepared the charge sheet in the case and filed the same in the court and that he can identify the accused persons. He further deposed that accused Deepak, Ghansyam @Kimi and Shakti @ Sharda are present in the court and correctly identified them. He further deposed that after collecting FSL report from FSL Rohini and from FSL, Madhuban, same were produced before the court.
During his cross examination by Ld. Defence counsel for accused Ghanshyam he deposed that he was on the way from Patiala House court to Police station when he received DD No. 25A on 03.02.2016, that he does not know who had informed SHO and other staff regarding the incident who had already reached the spot, that SHO and other police staff members had not conducted any investigation before he reached the spot, that four eye witnesses were present at the spot namely Yogesh, Deepak etc, that he does not remember names of other witnesses who were present there, that Yogesh came forward and got his statement recorded as he told that he was with the deceased since morning, that Yogesh had identified the deceased, that other witnesses also identified deceased as Som Dutt., that he did not record their statements in respect of identification of the deceased and that he does not remember the caliber of the cartridges which were recovered from the spot. He further deposed that he recorded the statement of complainant Yogesh at about 4 PM, that he left the spot finally at 7 PM and that he does not remember the name of Page No.25 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc MHC(M) whom he handed over the exhibits of the present case.
He denied that accused Ghanshyam has no role in the present case, that no cartridge or empty cartridge was recovered from the spot or that same were planted later on in order to work out a murder case, that accused Ghanshyam did not gave any disclosure statement or that his signatures were taken on blank paper which were converted into disclosure statement and other memos, that Yogesh never identified accused Ghanshyam during investigation, that he recorded the statement of the complainant and other witness on his own in order to falsely implicate the accused, that he did not receive any intimation from Haryana Police regarding the involvement of accused Ghanshyam in the present case, that he prepared the false case against accused Ghanshyam and that he was deposing falsely being IO in the present case.
During his cross-examination conducted by Ld. Defence counsel for accused Shakti and Deepak, he deposed that in addition to above, it is correct that witness namely Yogesh, Lakshay and Deepak were accused in murder of one Sajjan and were facing trial. He denied that due to this reason, accused persons were falsely implicated in this case, that accused persons did not make any disclosure statement, that their signatures were taken on blank papers and same were converted into disclosure statement and other memos, that accused persons did not point out any place of occurrence,that accused Shakti and Deepak had not played any role in the Page No.26 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc present offence, that they were falsely implicated in the present case to work out a murder case, that no cartridge was ever recovered from the spot or that same were planted, that he had wrongly arrested accused persons in this case and that he was deposing falsely being the IO in the present case. The testimony of this witness shows that he proved the various steps taken during the investigation as well as the preparation of various memos and documents mentioned in his aforesaid deposition.
18. Accused admitted the factum of preparation and genuineness of FIR as Ex. A1, certificate under section 65 B Indian Evidence Act Ex. A2, DD No. 25 A dated 03.02.2016 Ex. A3, DD No. 28 A dated 03.02.2016 Ex. A4, DD No. 16 B Dated 03.02.2016 Ex. A5, Death Report dated A6, Original death certificate of Som Dutt issued by RTRM Hospital Ex. A7, Crime Scene Report Ex. A8, Scaled site plan Ex. A9, PCR Form(3 pages) Ex. A10, Sanction Order given by Joint CP against Shakti Sharma Ex. A- 11, DD No. 65-B dated 25.11.2016 of Indian Evidence Act Ex. A2, Copies of FIR No. 463/16 PS Rajender Park Gurgaon and documents Ex. A-13 (colly) and Copies of documents of case FIR No. 513/16 PS Sampla, Rohtak Ex. A-14 (colly). Accordingly, respective witnesses were dropped from the list of witnesses.
19. Thereafter, the prosecution evidence was closed vide order dated 22.03.2023 on the submissions of Ld. Addl. PP for State and the matter was fixed for recording of statement of accused persons.
Page No.27 of 56 FIR No. 67/2016PS Najafgarh State vs Ghanshyam etc STATEMENT OF ACCUSED PERSONS
20. On 23.03.2023, the statement of accused persons under Section 313 Cr.P.C. was recorded and incriminating circumstances appearing in evidence were put to them who stated the same to be wrong. They averred that they are innocent, that the witnesses have deposed against them being interested witnesses and that they have been falsely implicated in this case. The accused persons did not opt to lead defence evidence and hence, defence evidence was closed. Thereafter, the matter was proceeded further for final arguments.
FINAL ARGUMENTS / SUBMISSIONS OF PARTIES
21. Ld. Sub. Additional Public Prosecutor argued that the prosecution witnesses have clearly established its version of sharing of common intention by the accused persons to kill the victim and the factum of happening of the alleged incident of murder of victim Somdutt by firing several gunshots on him using illicit fire arms. He further argued that the fact that the complainant and other eye witness have turned hostile qua the identity of the accused persons as offenders does not in any manner effect the veracity of the consistent testimony of the police witnesses as they did not have any previous enmity with the accused persons. He further stated that moreover the complainant/eye witnesses in such cases turn hostile due to fear of future enmity with the offenders, so the firm testimony of the Page No.28 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc police cannot be discarded in such circumstances. He further argued that the refusal of the accused persons to join Test Identification Parade establishes their involvement in the alleged offences. He submitted that in these facts, all the accused persons be convicted for the offence punishable under section 302/34 IPC and 25/27 Arms Act, as the ingredients necessary for completion of said offences are duly established.
22. Ld. counsels for the accused persons argued that the complainant and other eye witnesses who are the Star witnesses of the prosecution have not supported its version qua happening of the incident in the alleged manner, presence of accused persons at the spot and identity of the accused persons as assailants who killed the victim by firing upon him by using pistol/gun/katta without valid license. They argued that the findings of FSL examination, that no definite opinion can be given qua the cartridges and Fire Arms allegedly used in the killing of victim which were recovered from possession of accused Ghanshyam and Shakti @ Sharda, further shatters the prosecution version of involvement of accused persons in the alleged incident as well as possession and use of the said arms without licence at the time of incident on 03.02.2016. They argued that the testimony of the police witnesses is of no consequence in view of retraction of the main eye witnesses. They further stated that the contradictions of the complainant and other eye witnesses qua their statements recorded by police under section 161 Cr.P.C. justifies the refusal of accused persons to join Test Identification Parade and also substantiates the Page No.29 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc defence version of false implication of the accused persons by manipulating the documents for working out the case. He further submitted that the accused persons in these circumstances should be acquitted.
23. This court heard the arguments advanced by the Ld. (substitute) Additional Public Prosecutor for the State as well as Ld. Counsel for the accused persons and perused the record of the case.
APPRECIATION OF FACTS/ / EVIDENCE/CONTENTIONS AND FINDINGS:
24. In order to prove the offences punishable under section 302/34 IPC against all accused persons and under section 25/27 Arms act against accused Shakti @ Sharda and Ghanshyam @ Kushal the prosecution was required to prove beyond reasonable doubt the identity of all the accused persons as assailants, the factum of sharing of common intention by all the accused persons to kill the victim and the factum of happening of the alleged incident of murder of Somdutt by firing on him with unlicensed gun/pistol/katta in the alleged manner and possession as well as use of the said arms without licence at the time of incident on 03.02.2016 in the killing of the deceased by accused persons.
25. For proving the aforesaid ingredients, the prosecution examined thirteen witnesses out of which PW-6 Deepak Sharma, PW-11 Lakshay @ Page No.30 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc Dhillu and PW-12 Yogesh are the most important witnesses being the eye witnesses of the incident. The remaining witnesses are the public witness who made PCR call and police and medical officials who carried out the investigation based on the version of the complainant and conducted examination as well as postmortem on the body of the victim respectively. Henceforth, this court is proceeding further to evaluate the evidence available on record to find out if the prosecution has succeeded in its task or not.
26. PW-6 Sh. Deepak Sharma, PW-11 Sh. Lakshay and PW-12 Yogesh are the eye witnesses of the incident who accompanied the victim/deceased Somdutt on the day of incident. They are the star witnesses on which prosecution was relying but they did not support the case of prosecution and resiled from the allegations made by them in their statement recorded under Sections 161 Cr.P.C qua aspect of involvement of the accused persons in the alleged incident.
27. Perusal of the testimony of PW-6 Deepak Sharma reveals that he deposed that he does not remember the exact date, however, it was February 2016, that he along with Somdutt, Yogesh @ Sonu, Lakshya left the Dwarka Courts in a Alto Car of Pradeep (real brother of Somdutt), that they all went to his house where the Santro car of Somdutt was parked, that Pradeep left him, Somdutt; Yogesh @ Sonu and Lakshya at his house and he left his house in his Alto Car, that thereafter, he alongwith Somdutt, Yogesh @Sonu and Page No.31 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc Lakshya went in the Santro Car of Somdutt to workshop of CNG repairing at Roshanpura as there was some problem in CNG of Santro Car of Somdutt, that they reached there at about 02.00 pm, that Somdutt and Lakshya/PW-11 alighted from the car, that Yogesh/PW-12 was sitting on the front seat adjacent to driving seat and that he was sitting on the back seat of the car.
He further deposed that Somdutt and Lakshya were getting repaired the CNG of the said Santro Car while bonnet of the same was lifted by the mechanic, that he and Yogesh were still sitting inside the car and he was playing game on his mobile phone, that meanwhile, he heard the noise of firing and he saw that 2-3 persons were firing upon Somdutt, that he and Yogesh alighted from Santro car and ran away from there due to fear, that Lakshya also ran away from there and that while running away from the spot he entered in a house situated in the street while Lakshya and Yogesh ran away at some other place. He further deposed that he could not see those 2-3 assailants who fired upon Somdutt and that he came to know from a lady that Somdutt expired in the aforesaid firing, that after about half an hour, he came back to his home and from there he went to police station Najafgarh and that police officials inquired about the incident from him.
28. The witness was cross examined by the Ld. Substitute Addl. PP for State as he was resiling from his earlier statement. During his cross examination, witness admitted that the incident took place on 03.02.2016. He Page No.32 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc denied that on 03.02.2016, first of all, he alongwith Somdutt, Yogesh @ Sonu and Lakshya @ Dheelu went to Tis Hazari Courts and thereafter, they all reached at Dwarka Courts. The witness was confronted with statement Mark PW6/A, where it is so recorded. He voluntarily deposed that since there was a case hearing of case pertaining to Somdutt, Yogesh and Lakshya at the Tis Hazari Courts, therefore, they firstly went to Tis Hazari Courts and thereafter, they reached at Dwarka Courts and met him at Dwarka Courts and that he had not gone to Tis Hazari Courts.
29. He admitted that police had recorded his statement on 03.02.2016, that Som Dutt's, Santro car's number was HA 13 E 2355, that the said vehicle was stationed at their house, that he along with Som Dutt, Lakshay and Yogesh went to Santro Car Delhi Metro Carrier where he had changed the air filters and that thereafter they went to Mobin CNG Kits and repairs, Roshanpura.He denied that Som Dutt had shouted when firing had started and thereafter he had seen from the right side of car and noticed that accused Shakti @ Sharda along with co accused had fired upon Som Dutt. Witness was confronted with the said part in Mark Ex.PW6/A from point A to A- 1 (where it is so recorded).He denied that he had stated in his statement recorded under Section 161 CrPC that accused Shakti @ Sharda was resident of Gopal Nagar, Najafgarh and he had known him prior to the incident.
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30. He admitted that due to the firing, the front glass of the car was broken, that he along with Yogesh @Sonu had come outside the car and ran away towards Shiv Mandir, that Lakshay had run away in a street of Roshanpura and that due to fear he ran away to his house. Ld. (substitute) Additional PP for the State pointed out towards accused persons Ghanshyam, Shakti and Deepak (who were present in the court and produced from JC) and stated that they fired with pistol on Somdutt on 03.02.2016. After seeing accused persons, witness stated that he had not the seen the persons who had fired on Som Dutt at the spot and cannot identify them. He denied that he has intentionally not identified the accused Ghanshyam or that he was intentionally not disclosing the true facts of the case as he was won over by the accused.
The witness was not cross examined by Ld. Defence counsels despite opportunity.
31. This testimony of PW-6 Deepak Sharma shows that he stated in his examination in chief that he heard the noise of firing and he saw that 2-3 persons were firing upon Somdutt. He further stated in later part of his examination in chief that he could not see those 2-3 assailants who fired upon Somdutt. This testimony itself creates contradiction in his version regarding the factum of seeing the assailants at the time of firing. In the cross- examination conducted by the Ld. Additional PP for the State, PW-6 has Page No.34 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc turned the case of the prosecution upside down by firmly denying that deceased Som Dutt had shouted when firing had started and thereafter, he had seen from the right side of car and noticed that accused Shakti @ Sharda along with co-accused had fired against Som Dutt, that accused Shakti @ Sharda was resident of Gopal Nagar Najafgarh and he had known him prior to the incident, that he was intentionally not identifying the accused Ghanshyam, Shakti @ Sharda and Deepak and that he was intentionally not disclosing the true facts of the case as he has been won over by the accused. It is further observed that PW-6 failed to identify the accused persons as the assailants despite his attention being specifically drawn towards the accused persons and he stated that he had not seen the accused persons who had fired on Somdutt at the spot and cannot identify them.
32. These testimonies of PW-6 establish that prosecution failed to extract any material in its favour despite detailed cross-examination which further implies that prosecution failed to establish the identity of accused persons as offenders and their involvement in the murder of Somdutt through this eye witness.
33. Perusal of the record shows that PW-11 Sh. Lakshay is also arrayed as an eye witness of the incident. He deposed that in the year 2016, he was a student of MBA, that on 03.07.2016, he along with Deepak, Yogesh and Som Dutt (since deceased) went to Tis Hazari Court to attend the court Page No.35 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc proceedings pertaining to FIR No.401/2013 PS Ranhola, that after attending the hearing in the case, they came back to Dwarka Courts by metro, that from Dwarka Courts they accompanied the brother of Som Dutt in his car to Najafgarh from where they were supposed to collect the car of Som Dutt which was out of order and was in a workshop at Najafgarh, that after reaching Najafgarh, Som Dutt collected his car from the workshop and that from there Som Dutt took his car to CNG workshop where Som Dutt intended to remove the defect in CNG kit.
He further deposed that two of their companions were inside the car of Som Dutt while he and Som Dutt were standing in front of the car of Som Dutt facing each other, that around 2/3 pm somebody had fired on Som Dutt from his backside, that he could not see the face of that person/assailants as due to firing he was scared and his mind went into the freezing condition, that he could not move or think for some seconds, that he heard his companions shouting that 'som ko maar rahe ha. Jaan bachani ha toh yaha se bhago' and that he stepped towards the street nearby and ran away with his companions to save his life. He further deposed that he cannot identify the assailants if shown to him.Accused persons namely Ghanshaym @ Kushal, Shakti @ Sharda and Deepak @ Funda were present in the court and shown to the witness whereupon witness showed his inability to identify them.
Page No.36 of 56 FIR No. 67/2016PS Najafgarh State vs Ghanshyam etc
34. Court permitted the Ld. Additional PP for State to cross examine the witness as the witness was resiling from his statement given to police under section 161 Cr.P.C. During his cross examination conducted by Ld. Sub. Addl PP for State he deposed that his statement was not recorded by the IO at any point of time. Statement Mark PW11/A was read over to the witness which he denies having made before the police. He denied that his statement was recorded by the IO. He deposed that he had not stated the name of accused persons Ghanshaym @ Kushal, Shakti @ Sharda and Deepak @ Funda to IO. Witness was confronted with statement Mark PW11/A where it is so recorded. He denied that he was intentionally or deliberately denying the facts of his statement from point A to A and that accused persons were earlier known to him from the date of incidence. He admitted that Som Dutt succumbed to gun fire injuries in the present case. He denied that he intentionally has not identified the accused persons who are present in the court or that his statement was also recorded by the police or that he has been won over by the accused persons on the point of identification or that he was deliberately concealing the actual facts or that he was deposing falsely.
The witness was not cross examined by the Ld. Defence counsels for accused Ghanshyam @ Kushal, Shakti @ Sharda and Deepak@ Funda despite opportunity.
Page No.37 of 56 FIR No. 67/2016PS Najafgarh State vs Ghanshyam etc
35. This testimony of PW-11 shows that he stated in his examination in chief that somebody had fired on Somdutt from backside and that he could not see the face of that person/ assailants as due to firing he was scared. He further specifically testified that he cannot identify the assailants, if shown to him and despite the accused persons present in the court being shown to him he expressed his inability to identify them. It establishes that he did not see the accused persons at the time of attack on the victim. By deposing in his examination in chief that he was scared and his mind went into freezing condition and that he could not move or think for some second, he ruled out the possibility of his seeing anything at the spot and thus shattered the prosecution version of his seeing the assailants at the time of firing.
36. In the cross-examination conducted by the Ld. Sub. Addl. PP for the State, he denied all the leading questions put by the prosecution. It is further seen that PW-11 completely shattered the prosecution version by stating in the cross examination conducted by Ld. Additional Public Prosecutor that his statement was not recorded by the IO at any point of time. He also denied the suggestion of the Ld. Sub. Addl. PP for the State that his statement was recorded by IO and thus he reaffirmed his version of non recording of his statement by the IO. Furthermore, he deposed in the cross examination conducted by the Ld. Sub. Addl. PP for the State that he had not stated the name of accused persons Ghanshyam @ Kushal, Shakti @ Sharda and Page No.38 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc Deepak @ Funda to IO. This deposition of PW-11 has gone unrebutted as no suggestion to rebutt the same was put on behalf of the State and thus establishes the version of PW-11 that he had not stated the names of the accused persons to the IO as his statement was never recorded by the IO.
37. He firmly denied the suggestions that he was intentionally or deliberately denying the facts of his statement from point A to A, that accused persons were known to him prior to the date of incident, that he intentionally has not identified the accused persons who are present in the court or that his statement was also recorded by the police or that he has been won over by the accused persons on the point of identification or that he is deliberately concealing the actual facts or that he was deposing falsely.
38. These firm denials of PW-11 Lakshay show that prosecution failed to extract any material in its support to establish the identity of accused persons as assailants who committed murder of accused Somdutt by firing upon him. These testimonies of PW-11 further shattered the prosecution version as he has resiled with respect to presence of accused persons at the spot as well as commission of murder of deceased Somdutt by the accused persons by firing on him.
39. PW-12 Yogesh @ Sonu was another eye witness as per prosecution version. He deposed that in the year 2016, he was running a shop of Page No.39 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc electrician, that in the month of February, 2016 he along with Lakshay and Som Dutt (since deceased) went to Tis Hazari Court to attend the court proceedings pertaining to FIR No.401/2013 PS Ranhola which was pending against them, that after attending the hearing in the case, they came back to Dwarka Courts by metro, that from Dwarka Courts they went to Najafgarh in the car of Pardeep and Bholu, that after reaching Najafgarh, Pardeep alighted them at the house of Deepak Sharma near Old Roshan Pura, where Som Dutt had got repaired his santro car and that after collecting his car from the workshop, Som Dutt took his car to CNG workshop where he intended to remove the defect in CNG kit.
He deposed that he and Deepak remained seated inside the car while Lakshay and Som Dutt came out from the car and both were standing in front of the car facing with each other, that around 2-3 pm somebody had fired on Som Dutt from the backside of Laskhay, that due to hearing the bullet sound, he and Deepak hid themselves inside the car and that after firing on the Som Dutt, the assailants fled away from the spot.
He further deposed that when he came to know that police had come, he came out from the car and police took Som Dutt in some hospital, that thereafter he went to his home and he cannot tell what happened later on and that he does not know whether his statement was recorded by the police or not. He further deposed that he cannot identify the assailants if shown to him. Accused persons namely Ghanshaym @ Kushal, Shakti @ Sharda and Page No.40 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc Deepak @ Funda were present in the court and shown to the witness upon which witness failed to identify them as assailants.
40. Court permitted the Ld. (substitute) Additional PP for the State to cross examine the witness as he was resiling from his previous statement. During his cross-examination conducted by Ld. Sub. Addl. PP for State, he deposed that his statement was not recorded by the IO at any point of time. His Statement Ex. PW12/A was read over to the witness which he denied having made before the police. He admitted that Ex. PW12/A was bearing his signature at point A. He voluntarily deposed that police obtained his signature on some blank papers. He admitted that Ex. PW12/B (site plan) is also bearing his signature at point A. He denied that his signatures were not obtained on blank papers or that he is deliberately concealing these facts.
He further deposed that he had not stated to IO in his statement when he heard the noise of bullet fire and heard the scream of Som Dutt he noticed to his right side that accused Shakti @ Sharda and his two other associates i.e. other accused persons were firing with aim at Som Dutt. Witness was confronted with portion from A to A in Ex. PW12/A(where it is so recorded). He deposed that he had also not stated to IO in his statement that accused Shakti @ Sharda was resident of Gopal Nagar, Najafgarh whom he had known prior to the incident (confronted with portion from B to B in Ex. PW12/A) and that he had not stated to IO in his statement that he and Page No.41 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc Deepak came out from the car and ran in a gali. (confronted with portion from C to C in Ex. PW12/A). He admitted that he was involved in a case FIR No.59/14 u/s 302/34 IPC PS BHD Nagar.
He denied that in that FIR Som Dutt (expired), Lagan, Monu and his brother Anand were also detained, that he does not know how many persons were detained in that case, that there were total 11 persons who were detained in that case and that accused persons present in the court had fired on them on 03.02.2016 in furtherance. He denied that he was intentionally or deliberately denying the facts of his statement from point D to D or that accused persons were known to him prior to the date of incident. He stated that Som Dutt succumbed to gun fire injuries in the present case.
41. Statement Mark Ex. PW12/B was read over to the witness from point A to A which he denied having made to the police. He denied that on 19.12.2016, he went to the PS Najafgarh for his some personal work, where accused Deepak was in the custody of some police official and on seeing him he had identified him as one of the assailants who had fired on Som Dutt on 03.02.2016 or that his statement was recorded to this extent or that he was intentionally resiling from this fact. Statement Mark Ex. PW12/C was read over to the witness from point A to A which he denies having made to the police.He denied that on 05.12.2016, when he was going to withdraw money from the ATM of ICICI Bank at about 5.00pm he noticed Page No.42 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc that accused Ghanshyam @ Kushal @ Kimi was being taken by the police to PS or that on seeing him he had identified him as one of the assailants who had fired on Som Dutt on 03.02.2016 or that his statement was recorded to this extent or that he was intentionally resiling from this fact.
He denied that he had shown the place of incident to IO, that IO prepared the site plan at his instance, that he intentionally has not identified the accused persons who are present in the court or that his statements were also recorded by the police or that he had been won over by the accused persons on the point of identification or that he was deliberately concealing the actual facts or that he was deposing falsely.
The witness was not cross examined by Ld. Defence counsels for accused Ghanshyam @ Kushal , Shakti @ Sharda and Deepak@ Funda despite opportunity.
42. It is evident from the aforesaid testimony that PW-12 deposed in his examination in chief that around 2-3 pm somebody had fired on Som Dutt from the backside of Lakshay, that due to hearing the bullet sound, he and Deepak hid themselves inside the car, that after firing on Som Dutt, the assailants fled away from the spot and that when he came to know that police had come, he came out from the car. He further stated that he does not know whether his statement was recorded by police or not. He deposed that he cannot identify the assailants, if shown to him and failed to identify the Page No.43 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc accused persons despite being specifically shown to him in the court. These testimonies show that PW-12 had not seen the faces of the assailants who fired gunshots on SomDutt. In the cross-examination conducted by the Ld. Addl. PP for the State PW-12 deposed that his statement was not recorded by the IO at any point of time and he firmly denied having made the statement Ex. PW-12/A before the police when the same was read over to him. He voluntarily stated that police had obtained his signatures on blank papers and further admitted that the statements Ex. PW-12/A and Siteplan are bearing his signatures at point A. His firm denial to the suggestion that his signature were not obtained on the blank papers fortifies his version that his signatures were obtained by the police on blank papers. He further denied that he is deliberately concealing these facts and thus affirmed his version of signing blank papers. He further stated in his cross-examination conducted by the Ld. Sub. Addl. PP for State that he had not stated to the IO in his statement that when he heard the noise of bullet fire he noticed to his right side that accused Shakti @ Sharda and two his associates were firing with aim at Somdutt and that he had not stated to the IO that he knew accused Shakti @ Sharda prior to the incident.
43. He firmly denied that on 05.12.2016 when he was going to withdraw money from ATM of ICICI Bank at about 05.00pm, he noticed that accused Ghanshyam was being taken by the police to the police station and on seeing Page No.44 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc him he identified him as one of the assailants who had fired on Somdutt on 03.02.2016. He further firmly denied that on 19.12.2016, he identified accused Deepak as one of the assailants who had fired on Somdutt when he went to PS for his some personal work and saw accused Deepak in custody of some police official there.He even denied the recording of his stsatements qua the identification of the said two accused persons in the aforesaid manner. He further disowned the prosecution version of showing of place of incident by him to the IO and also the factum of preparation of site plan at his instance by the IO.
44. He further firmly denied that he has not identified the accused persons specifically in the court intentionally or that his statements were also recorded by the police or that he had been won over by the accused persons on the point of identification or that he was deliberately concealing the actual facts or that he was deposing falsely.
45. These firm denials show that the prosecution failed to extract any material in its favour despite detailed cross-examination. It is further evident that PW-12 completely shattered and contradicted the prosecution version by disowning the factum of recording of his statement by the IO qua happening of the incident in alleged manner, the identification of the accused persons made by him in alleged manner as per police version and the preparation of site plan at his instance which implies that he affirmed his Page No.45 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc version of not participating in the investigation as is inferred from his examination in chief. These testimonies of PW-12 further shatter the prosecution version as this witness has resiled with respect to presence of accused persons at the spot as well as commission of murder of deceased Somdutt by the accused persons by firing on him using pistol/kattas/gun without valid licence.
46. It is further pertinent to refer to the examination in chief of PW-6 Deepak Sharma, PW-11 Lakshay and PW12 Yogesh regarding the aspect as to how they reached the spot. Testimony of PW-11 shows that he had accompanied the deceased Somdutt along with PW-6 and PW-12 Yogesh to Tis Hazari courts on the day of the incident. Testimony of PW-12 shows that he stated that he along with PW-11 and deceased Somdutt had gone to Tis Hazari courts on the day of the incident and that he did not talk about the presence of Deepak Sharma with them at Tis Hazari Courts as stated by PW-
11. Testimony of PW-6 Deepak Sharma reveals that in the cross-examination conducted by the Ld. Addl. PP for the State he affirmed that he had not gone to Tis Hazari courts and deceased Somdutt, PW-11 Lakshay and PW-12 Yogesh had firstly gone to Tis Hazari Courts and thereafter they reached at Dwarka Courts and met him at Dwarka Courts. This contradiction in the testimonies of PW-6, PW-11 and PW-12 further shows that their versions regarding the manner of happening of incident is also not believable.
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47. It follows from the afore-discussed testimonies of the eye witnesses ie PW-6, PW-11 and PW-12 that the factum of commission of offence punishable under section 302 IPC read with section 34 IPC by the accused persons by firing fatal gunshots with illegal fire arms on the deceased is not established at all as the identity of the accused persons as assailants and their presence on the spot at the time of happening of the incident is not proved.
48. Perusal of the record reveals that prosecution has arrayed PW-5 Ravinder Singh as the person who was present near the spot at the time of incident and had made a call at 100 number from his mobile phone. He stated in his examination in chief that he heard the noise of firing coming from the other side of the road and saw one person lying on the road with gun shot injury. He further stated that he also saw one person running away in swift car and he could not see the face of that person. He further deposed that he could not see the registration number of the said car. However, some persons told him the registration number of the said was HR1423. He further stated that he heard the noise at about 6-7 pm. In the cross-examination conducted by the Ld. Defence counsels he failed to tell as to whether he heard the noise of gun shots once or many times. He even failed to tell the names of the persons who had told him the registration number of the said Swift car. It is also evident from the testimony of PW-5 that this witness is also not reliable as the time of happening of the incident is 2-3 pm as per Page No.47 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc prosecution version whereas he stated that he heard the noise of firing at around 6-7 pm. It implies that his very presence at or near the spot at the time of incident is highly doubtful. The testimony of this witness regarding the registration number of the Swift car in which the assailants fled away after firing upon the deceased is of no use to the prosecution as he himself neither saw the person running away in swift car or registration number of the said car nor he could tell the name of the person who told him the registration number of the Swift car. So, there is no material in the testimony of this witness to connect the accused persons with the commission of the alleged offences.
49. Perusal of the record shows that PW-6, PW-11 and PW-12 are the only eye witnesses of the incident. Mere reading of testimony of police witnesses PW-7 ASI Balwant Singh, PW-8 Ct. Ravi Kant, PW-9 Ct. Suresh, PW-10 Inspector Ashok Kumar and PW-13 Retd. Inspector Tulsi Ram, who went to the spot for investigation after receiving information of the alleged incident, shows that they are not eye witnesses of the incident and have merely conducted the investigation based on the version stated by the complainant after reaching the spot on the happening of the alleged incident. Furthermore, the testimonies of the eye witnesses i.e PW-6, PW-11 and PW-12 wherein PW-11 and PW-12 denied about giving any statement to the police and PW-6 has given a completely contrary version to that recorded by the police, Page No.48 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc indicate that chances of manipulation of the documents by the police are not ruled out. It further creates grave doubt upon the fairness and impartiality of the investigation which renders the same nugatory. So, testimonies of police witnesses, in view of the retraction of the eye witnesses, are of no consequence to incriminate the accused persons for the alleged offences.
50. It is already established that the eyewitnesses have not supported the prosecution version that the accused Shakti was already known to them prior to the incident or that they have seen the assailants at the time of firing or that accused persons are the assailants or that accused deepak and Ghanshyam were identified by complainant/PW-7 while they were in police custody or that the statements of these eyewitnesses were recorded by the police during investigation qua various aspects as deposed by police witnesses or that the site plan was prepared at the instance of complainant Yogesh. It indicates that authenticity of various steps taken during investigation and documents prepared in this regard by the police witnesses has come under grave doubt as the eyewitnesses at whose instance said steps were taken and documents prepared have either disowned or firmly contradicted them.
51. Furthermore, the testimony of PW-7 Crime Team Photographer shows that he admitted that the empty cartridges are not depicted in the photographs clicked by him on the spot and that he did not mention in his statement that there were any live or empty cartridges on the spot . PW-10/Inspector Ashok Page No.49 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc who was the first police officer to reach the spot deposed that cartidges were seen at the spot and the same is also deposed by PW-13/IO in his examination in chief. However, PW-13/IO deposed in his cross examination that he does not remember the caliber of the cartridges which were recovered from the spot. These testimonies show that the aforesaid police witnesses though present at the spot at the same time are not consistent qua the aspect of presence of cartridges at the spot which is one of the most material point qua the happening of the incident in alleged manner.
52. PW-7 Crime Team Photographer further deposed in his crossexamination that he remained at the spot till 4:00 p.m. and no one had given any complaint to IO in his presence and that statement of none except SI Surendra Crime Team Incharge was recorded in his presence. Record shows that PW 13 IO/ SI Tulsiram admitted that the statement of complainant Yogesh was recorded at 4:00 p.m and other four witnesses were present at the spot at that time. This contradiction in the testimonies of said witnesses creates grave doubt on the factum of recording of the statement of the complainant at his instance which fortifies the complainant's version that he did not give any statement to police. It follows that even the police witnesses did not support the prosecution version of conducting the investigation and happening of the incident in alleged manner.
53. Record shows that medical witnesses PW-1 Dr. Deepak Bhaskar, Page No.50 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc prepared the MLC Ex. PW-1/A and PW-4 Dr. Pawan Kumar Specialist examined the dead body of the deceased Som Dutt and conducted the postmortem of the deceased. They being the expert witnesses cannot bring home the guilt of the accused persons as they are not the eye witnesses of the incident and have simply conducted the medical examination and postmortem of the victim after happening of incident.
54. With respect to the arguments advanced by Ld. Substitute Addl. Public Prosecutor for State that the refusal of the accused persons to join the TIP is sufficient incriminating circumstance against them, it is pertinent to mention that the TIP is not substantive piece of evidence. The same can merely used to corroborate the version stated during the trial before the court.
55. In this case accused persons refused to join the TIP which has the effect of giving rise to an adverse inference against the accused persons qua their culpability. However, the eye witnesses, PW-6, PW-11 and PW-12 have not identified the accused persons as the offender during trial.
56. In view of the retraction of the eye witnesses qua the identity of the accused persons as offenders during trial, adverse inference of culpability of the accused arising on the basis of refusal to join TIP, stands washed off. So, this argument of Ld. Sub. Addl. PP for State does not hold any water. These Page No.51 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc facts and observations further show that there is no material/circumstance available on record to connect the accused persons with the commission of alleged offences.
57. Perusal of the record shows that FSL opinion dated 09.05.2017 was obtained during the investigation and same is admissible under section 293 CrP.C. It is revealed from the said report that no definite opinion could be formed regarding the linkage of misfired cartridge C1 sated to be recovered from the place of occurrence and the deformed fired bullet BC/1 taken out from the body of the deceased with the country made pistols W1/I to W1/3 recovered in case FIR No. 463 PS Rajendra Park Gurgaon. As per the prosecution version, these are the weapons used by the accused Shakti @ Sharda and Ghanshyam @ Kushal in the commission of murder of deceased Somdutt. However, the said FSL opinion shows that the alleged pistols can not be connected with commision of the alleged offences by the accused persons. The FSL report further shows that the misfired cartridge MC/1 stated to have been recovered from the place of occurrence was found to be having no linkage with other fired cartridges mark C1, C2 and C3 stated to have been recovered from the place of occurrence. This opinion further shows that there is no ballistic evidence to connect the accused persons with the commission of murder of deceased Somdutt by using arms/katta without valid license which were allegedly recovered by Gurgaon police from the Page No.52 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc possession of accused Shakti and Ghanshyam. It follows from the aforediscussed testimomies of eyewitnesses and ballastic reports that there is no evidence /material suggesting the possession as well as use of the arms/ guns/ kattas without licence by accused persons at the time of incident on 03.02.2016.
58. Record shows that no scientific investigation was carried out to check as to whether the blood of the victim was present on the body/ clothes of the accused persons. No other piece of evidence i.e electronic/dump data/CDR/CCTV footage or otherwise was collected during the entire investigation to establish the presence of the accused persons at or near the spot at the time of commission of the alleged offence. These being material omissions on the part of the investigating agency indicate that the investigation was not done properly. It further implies that there is no material available to connect the accused persons with the commission of the alleged offence.
59. It is already evident from the aforementioned discussion that identity of the accused persons as offenders and factum of causing of deadly injuries by the accused persons in the alleged manner has not been established. So, question of sharing of common intention by the accused persons to kill the accused does not arise and the same needs no discussion. Moreover, the Page No.53 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc prosecution did not bring any material suggesting the sharing of common intention by the accused persons for commission of the alleged offences. Neither any telephonic record or nor any other electronic evidence or other direct evidence has been brought on record suggesting even their presence at the spot so as to assume that there was ever an occasion for the accused persons to share common intention for committing the alleged offences at the spot.
60. Regarding the burden of proving the prosecution version it is pertinent to mention the case law reported as" Sadhu Singh Vs. State of Punjab :
1997 (3) Crime 55, wherein the Punjab & Haryana High Court had observed that-
" In a criminal trial it is for the prosecution to establish its case beyond reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
61. Following the aforesaid observations and considering the inconsistencies and incoherent and contradictory testimonies, this Court is of the view that prosecution has not been able to travel the entire distance from 'may have' to 'must have' and thus it can not be said that prosecution has been able to prove its case beyond reasonable doubts.
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62. It thus emerges from the aforesaid discussion and perusal of testimonies of PWs as well as record that there is neither any reliable eyewitness of the incident nor any other circumstance to prove beyond reasonable doubt the identity of the accused persons as assailants, the presence of the accused persons at the spot , the factum of sharing of common intention by the accused persons in committing murder of the deceased Som Dutt, the possession as well as use of the said arms without licence by accused persons at the time of incident on 03.02.2016 in the killing of the deceased, which are essential elements for completion of offences punishable u/s 302/34 IPC and Section 25/27 Arms Act.
63. Considering the afore-discussed testimonies, this Court is of the view that arguments advanced by the Ld. Substitute Additional Public Prosecutor for the State that the prosecution has proved all the ingredients necessary for completion of the alleged offences do not have any force whereas the arguments made on behalf of defence that the accused persons have been falsely implicated are found to be justified.
64. In view of the aforesaid discussion, this Court is of the view that the prosecution has not been able to prove its case against the accused persons beyond reasonable doubts. Accordingly, accused persons namely Ghanshyam @ Kushal @ Kimi, Shakti @ Sharda and Deepak @ Fanda are hereby acquitted of the charge u/s 302/34 IPC and accused Shakti @ Sharda and Page No.55 of 56 FIR No. 67/2016 PS Najafgarh State vs Ghanshyam etc Ghanshyam @ Kushal @ Kimi are further acquitted for the offences punishable under section 25/27 Arms Act. Bail bonds stands cancelled and Sureties be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any.
65. Fresh bail bonds and surety bonds furnished in compliance of Section 437 (A) Cr.P.C are considered and accepted for a period of six months from today.
66. File be consigned to the Record Room after due compliance.
Announced in open Court (Viplav Dabass) today on 31.03.2023 Additional Sessions Judge: Fast Track Court Dwarka Courts, South-West /New Delhi Page No.56 of 56