Delhi District Court
State vs . Harender Solanki & Anr. Page No. 1 Of 89 on 29 April, 2019
IN THE COURT OF SH. SATISH KUMAR ARORA,
ADDITIONAL SESSIONS JUDGE-02:FAST TRACK COURT
NEW DELHI DISTRICT : PATIALA HOUSE COURTS:
NEW DELHI
Sessions Case No.54/18 (Old ST no. 559/99)
Case No.442/18
STATE
Vs.
1. HARENDER @ BILLOO SOLANKI
2. SATENDER SOLANKI
FIR No. 317/97
U/s 302/307 IPC
PS Civil Lines, Meerut, U.P.
Date of institution of the case : 05.07.1999
Date when the case reserved for judgment : 12.12.2018
Date of announcement of judgment : 29.04.2019
JUDGMENT
Accused Harender @ Billoo Solanki and Satender Solanki have been sent up to face trial for the offence punishable u/s 302/307 IPC. Before the prosecution case is taken up in detail, it is pertinent to mention that the file of the present case FIR came up before this Court in pursuance of the order dated 31.07.2018 passed by the Hon'ble SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 1 of 89 Supreme Court of India in Transfer Petition (Crl.) No. 335/2018 preferred by the petitioner / complainant Amar Pal.
PROSECUTION CASE
1. On 24.06.1997 at about 10:25 am, FIR in the present case came to be registered at PS Civil Lines, Meerut, U.P. on the complaint made by complainant / PW1 Amarpal Singh Dhaka. In the written complaint Ex.K-1, complainant, an advocate by profession, alleged that on 24.06.1997 at about 10:00 am he had left his house at Jagriti Vihar, PS Medical, Meerut for the District Court / kachhari. He stated that after crossing the jail chungi / toll when he had reached near Suri Nursing Home before phulwari ki nursery, he noticed his brother / deceased Dr. Inderpal Singh Dhaka coming from the opposite direction in his car bearing registration No. UP15E-7042. He signaled him to stop and at the same time, noticed one blue scooter and a white maruti car, number of which was not discernible, coming from behind and stopping near his brother's car. Before he could get down from the car to talk to his brother, he noticed that two persons riding on the scooter had started indiscriminate firing aiming at his deceased brother. He could also hear those sitting in the maruti car telling the assailants on the scooter that "kaam ho gaya hai jaldi bhag jao" (work has been done, you leave immediately). The assailants on the scooter and those in the maruti car ran away towards jail chungi and when he reached near his brother's car, he found that his deceased brother had sustained gunshot injury on his chest, abdomen and hands. He also noticed that Ashok, sitting beside his brother, had also received a SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 2 of 89 gunshot injury near his hip region. He took both of them to the nearby Suri Nursing Home where his brother was declared brought dead. Complainant claimed that he can identify the assailants, if shown to him.
2. Investigation of the case was taken up by PW11A Inspector Prakash Chand Pathak who was then posted as Inspector Incharge, PS Civil Lines. He proceeded to the spot and got prepared the panchayatnama (inquest report u/s 174 CrPC) through Ct. Yogender. He noticed the maruti car of the deceased stationed on the right side of the road. One empty cartridge from the left side of the road and four empty cartridges from near the car were recovered which were sealed and seized. The car was also seized and the body of the deceased was sent for postmortem. On 27.06.1997, complainant was joined in the investigation and at his instance, site plan / naksha nazri was prepared. Thereafter, further investigation was taken up by PW8 SI Ram Babu and on 16.07.1997, injured Ashok visited PS Civil Lines and handed over to him, his affidavit with his photograph affixed thereon. In the affidavit, injured Ashok gave an account of the incident by stating that on 24.06.1997 he was with deceased Inder Pal Dhaka and they had left his house at Meenakshipuram for the University in maruti car bearing No. UP15E-7042. At about 10:00 am when they had reached near Green Nursery, ahead of Suri Nursing Home, complainant Amar Pal Dhaka, Advocate, who is brother of Inder Pal, was found coming from opposite direction. He stated that Amar Pal had stopped his car on seeing them and suddenly accused Satender Solanki alongwith his brother / accused Billoo (Harender) was seen on a scooter. They both SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 3 of 89 started firing at deceased Inder Pal Dhaka and had also fired a gunshot at him. Ashok further told in his affidavit that immediately after the incident, complainant Amar Pal got him admitted to Medical College, Meerut, where he was treated and remained admitted till 30.06.1997. He further told that due to his illness and anxiety, he could not earlier appear before the police. The affidavit was kept by the second IO and that on 22.07.1997, complainant again joined the investigation and his statement was recorded. Attempts were made by this IO to apprehend both the accused but they remained untraceable. However, on 16.08.1997 an application was received in the police station written by Rampal Singh, Rajender Singh, Akhilesh, Bhupender and Omkar with their supporting affidavits therein claiming that on 24.06.97 at about 9:30 am, accused Satender Solanki had taken his wife Anju Solanki for treatment to Dayanand Nursing Home and that he remained in the Nursing Home till 11:00 am. Thereafter, further investigation was taken up by PW5 B.K. Bhati, the then SHO, PS Kankarkhera, who on 29.12.1997 had arrested accused Harender @ Billoo and a pistol of .30 bore with magazine and a live cartridge was recovered from him. Efforts were made to arrest the co-accused Satender Solanki but he remained absconding and proceedings u/s 82/83 CrPC were initiated against him. Lastly, the investigation was taken up by SI Lala Ram Sharma of PS Kithor, Meerut who was intimated of the surrender of accused Satender Solanki before the Ld. CJM, Meerut on 23.01.1998. During further investigation, complainant identified accused Harender @ Billoo in test identification proceedings and accused Satender was identified in the Court when he had appeared without muffled face for his judicial remand. Finally, charge sheet came to be filed before the SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 4 of 89 Ld. CJM, Meerut against the two accused persons for the offence u/s 302/307 IPC. Cognizance of the offence was taken and both the accused were summoned. After supplying them with the copy of the charge-sheet and of the accompanying documents in compliance of Section 207 CrPC, that the Ld. CJM, Meerut committed the case to the Ld. Sessions Judge, Meerut.
CHARGE
3. Vide order on charge dated 14.10.1999, charge for the offence u/s.302 & s.307 IPC came to be framed against both the accused to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. In order to substantiate and prove the charge against the accused persons, prosecution has examined as many as 20 witnesses and their brief description is given in the tabulated form as herein under:-
Sl. No. NAME RELEVANCY
PW1 Amar Pal Singh Dhaka He is the complainant and an
eye witness to the incident.
PW2 Dr. M.C. Gulecha He had conducted the post
mortem of the deceased Inder
Pal Singh Dhaka on 24.06.1997.
He proved the PM report as
Ex.K-3.
PW3 Dr. B.K. Sharma He had examined the injured
SC No.54/18 (Old ST no. 559/99)
Case No.442/18; FIR No.317/1997
State vs. Harender Solanki & Anr. Page No. 5 of 89
Ashok on 24.06.1997 and
proved the medical report as
Ex.K-4
PW4 SSI Lala Ram Sharma He is the last of the investigating
officers of the present case. He
had filed the charge sheet and
proved it on record as Ex.K-5.
PW5 SO B.K. Bhati He is one of the IO's of the
present case and had effected
the arrest of accused Harender
@ Billoo on 29.12.1997. He
proved on record the seizure
memo of the pistol with
magazine and a live cartridge
recovered from accused
Harender as Ex.K-6.
PW6 HC Vir Bhadur Singh He was posted as Head
Munshi / Duty Officer at PS Civil
Lines on 24.06.1997 and had
recorded case FIR No. 317/97
on the statement of complainant
Amar Pal Singh Dhaka. He
proved the FIR as Ex.K-7 and
carbon copy of chik no. 290 of
the complaint of complainant as
Ex.K-8.
PW7 Jay Pal Singh He is a witness to the
Panchayatnama of the
deceased Inder Pal Singh
Dhaka. He identified the report
as Ex.K-9.
PW8 SSI Ram Babu Singh He is the 2nd IO of the case. It
was during investigation carried
out by him, that injured Ashok
Kumar had submitted his
affidavit Ex.K-10 on 16.07.1997.
PW9 Sh. Mitthan Lal Jain He is the Executive Magistrate
who had conducted the TIP
proceedings of accused
Harender at District Jail, Meerut
on 28.03.1998. He proved on
SC No.54/18 (Old ST no. 559/99)
Case No.442/18; FIR No.317/1997
State vs. Harender Solanki & Anr. Page No. 6 of 89
record the Test Identification
Memo wherein complainant had
identified the accused Harender,
as Ex.K-11.
PW10 Ct. Ravinder Kumar He was directed by the Court to
submit the original copy of
roznamcha / original general
diary (GD) of Sadar Hawalat.
He proved on record the report
regarding destruction of the said
record submitted before the
Court, as Ex.K-13 and Ex.K-14.
PW11 Sh. Rakesh Kumar He is the Deputy Jailor,
Moradabad who was posted at
District Jail, Meerut on
28.01.1998 and had directed the
Jail Guards to produce accused
Satender Solanki with covered
face.
PW11A Inspector Prakash He is the 1st IO of the case and
Chand Pathak proved on record his sample
seal as Ex.K-15, the letter of CO
regarding sending of the dead
body for post mortem as Ex.K-
16, report of RI in this regard as
Ex.K-17, form 13 of the receipt
of dead body for post mortem as
Ex.K-18, the photograph of the
dead body as Ex.K-19, the
seizure memo of five empty
cartridges recovered from the
spot as Ex.K-20 and the site
plan of the spot prepared at the
instance of complainant as
Ex.K-21.
PW12 Sh. Narottam Garg, He proved on record copy of the
Advocate (Notary) Oath Register wherein he had
obtained the signatures of
injured Ashok Kumar regarding
attestation of his two affidavits,
as Ex.K-22. The stamp paper
SC No.54/18 (Old ST no. 559/99)
Case No.442/18; FIR No.317/1997
State vs. Harender Solanki & Anr. Page No. 7 of 89
on which the affidavit of injured
Ashok with his photograph was
prepared, was proved as
Ex.K23.
PW13 Sh. Bhanwar Singh He proved on record another
Chouhan, Advocate affidavit of injured Ashok Kumar as Ex.K-10 which was prepared at his instructions on 16.07.1997.
PW14 Sh. Bal Krishan Mishr He is the Deputy Jailor, Meerut.
He stated that the record of warrants and bonds with the attached documents in respect of custody of accused Satender on 23.01.1998 and of accused Harender on 29.12.1997 could not be produced as the same was destroyed. Report in this regard prepared by one Mukesh Arora dated 22.08.05 was proved as Ex.K-24.
PW-15 Dr. Aggarwal He had operated injured Ashok
on 24.06.1997 and during
operation, had removed one
metallic chip. He proved on
record his report as Ex.K-25.
PW-16 Sh. Ramesh Chand He was posted as Asstt. Clerk/
Munshi at Sadar Hawalat on
28.01.1998. He stated that
accused Satender Solanki was
sent before Ld. CJM, Meerut
with covered face from Court
Sadar Hawalat. Copy of the GD
prepared in this regard was
proved as Ex.K-26
PW-17 SI Iqbal Singh He was posted as Lock-up
Moharrir HC at Meerut Jail on
28.01.1998. He stated that as
per Court orders, accused
Satender Solanki was sent with
covered face. Copy of the
SC No.54/18 (Old ST no. 559/99)
Case No.442/18; FIR No.317/1997
State vs. Harender Solanki & Anr. Page No. 8 of 89
report vide GD No. 6 was
identified as Ex.K-26.
PW-18 HC Bhupender Sharma He was posted as Court
Moharrir in the Court of Ld.
CJM, Meerut in January 1998.
Copy of the summons/Talbi
prepared regarding accused
Satender Solanki to be
produced with covered face
before the Court on 29.01.1998,
was proved as Ex.K-27.
PW-19 Sh. Raj Kumar He is the photographer who had
taken three photographs of the
maruti car lying stationed in
police station. He identified the
negatives as Ex.15 to Ex.17 and
the positives of the photographs
as Ex.18 to Ex.20.
STATEMENT OF THE ACCUSED
5. After conclusion of prosecution evidence, statement of both the accused was recorded u/s 313 of the Cr.P.C wherein they denied the incriminating evidence put to them and pleaded innocence and false implication. Besides this, both the accused filed their joint written statement u/s 233(2) of Cr.PC therein stating that they came to know of the lodging of FIR at PS Civil Lines, Meerut against unknown persons by the complainant Amar Pal Singh Dhaka on 24.06.1997. They stated that on the said day, complainant Amar Pal had got admitted injured Ashok Kumar initially at Suri Nursing Home and then at Medical College, Meerut where the injured remained admitted till 30.06.1997. During this period, injured Ashok was in complete senses SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 9 of 89 and that on 25.06.1997, a report was published in a daily newspaper 'Dainik Jagran' wherein photograph of injured Ashok with police officials was published. They further stated that till 16.07.1997, neither the complainant nor the injured Ashok had disclosed names of the accused persons to the police officials. The accused persons, being real brothers, claim that they are political persons and one of them Satender Solanki had contested UP Legislative Assembly Elections of Barnawa, District Meerut Assembly Seat in the year 1993 from Janta Dal which was a National Party at that time. He had again contested for MLA from the said seat as an independent candidate in the year 1996 and that accused Satender had also remained office bearer of various State level political parties. Accused Harender @ Billoo was also connected with various political parties from the very beginning and was the Chief Election In-charge of accused Satender. As to deceased Inderpal Singh Dhaka, it was stated by the accused persons that he too was a political person and had contested from another Assembly seat of Khekra, District Meerut as an independent candidate and that Madan Bhaiya had also contested for the said seat from Samajwadi Party. Accused persons further stated that deceased Inderpal Singh Dhaka had criminal background facing many criminal cases at the time of incident and that the State Government had also announced a reward of Rs. 50,000/- for his arrest at the time of incident. They further stated that accused Harender @ Billoo was arrested from his house at Govindapuram, Ghaziabad and was produced before the Judicial Magistrate, Meerut by the police on 29.12.1997. Besides being physically and mentally tortured by the police in the police station, his photographs were also clicked and that the police never obtained SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 10 of 89 remand orders from the Magistrate to produce him with a covered face. Till the time, he was released on bail, accused Harender was always produced before the Ld. CJM, Meerut on various dates without covered face. Even after being released on bail, accused Harender remained outside for many months before his Test Identification Proceeding was conducted. Accused Harender was known to the complainant and to injured Ashok prior to the incident.
6. Accused persons further stated that accused Satender Solanki was taken to District Jail, Meerut after he had surrendered on 23.01.1998 before the Court of Ld. CJM, Meerut and that on the said day, when he had surrendered, he was not sent with covered face. Even on subsequent hearing, accused Satender was produced from District Jail, Meerut without covered face. They also stated that counting of votes for Assembly Elections held in the year 1996 of Barnawa Assembly Seat and Khekra Assembly Seat, was carried out under one tent at Collectorate, Meerut where complainant and accused Harender were counting agents on behalf of their respective brothers. It was also stated by the accused persons that at the time of incident, one bodyguard Ct. Bhupinder Kumar was provided by the administration to accused Satender Solanki for his security and that the said constable constantly remained with Satender Solanki on duty in his security even on the date of incident. They further stated that injured Ashok is alive even as on date and that the complainant had prepared forged affidavit of injured Ashok. They concluded in their joint written statement by claiming that they had no reason to commit the given crime and that they had been maliciously framed by complainant SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 11 of 89 Amar Pal Singh Dhaka due to local and party politics rivalry.
DEFENCE EVIDENCE
7. In their defence, accused persons examined two witnesses namely DW-1 Ct. Bhupinder Singh and DW-2 Ram Pal Singh. DW-1 in his deposition stated that he was deployed for security of accused Satender Solanki in the year 1997 under the orders of the administration. He stated that on the day of incident i.e. 24.06.1997, he was on duty as security of accused Satender Solanki. On that day, accused Satender Solanki had taken his wife alongwith his two children and their driver Ram Pal to Dr. Sarojini Dayanand Nursing Home, Meerut at about 9:30 am for treatment of his ailing wife. He stated that he was with them being on security and that they had remained in the Nursing Home till 11:00 am. He stated that it was from a newspaper that he came to know that somebody was murdered on 24.06.1997 and accused Satender has been named for the said murder. He stated that he had given an application with an affidavit regarding this incident to SHO, Civil Lines, Meerut on 04.08.1997.
8. DW-2 Ram Pal Singh stated that he was the driver of Satender Solanki from the year 1992 till 2002 and when Inderpal Singh Dhaka was murdered, accused Satender Solanki was residing at B. C. Line, Meerut Cantt. He stated that on 24.06.1997, he was present at the house of accused Satender Solanki and his wife and children were also present in the house. He stated that at about 9:30 am, he alongwith Satender Solanki, his wife and two children alongwith the gunner had gone in a car to Dayanand Nursing Home for treatment of his wife SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 12 of 89 where they stayed till 11:15 or 11:30 am and from there, they returned to the home. He stated that from a newspaper, it was revealed that Satender Solanki and his brother Harender were named in murder in the present case and that in this regard he had given an affidavit that on 24.06.1997 he was with Satender Solanki for the full day.
SUBMISSIONS OF LD. ADDL. PP AND LD. DEFENCE COUNSEL
9. Sh. Harender Singh Yadav, Ld. Special PP for the State of UP, the complainant Amar Pal Dhaka and Sh. R. K. Wadhwa with Sh. Pramod Tyagi, Ld. Counsel for both the accused were heard. The judicial record including the written submissions filed on behalf of the parties has also been carefully perused and considered.
10. It was submitted on behalf of the prosecution that the prosecution has proved its case to the hilt against the accused persons and that the sole testimony of the complainant / PW-1 coupled with the medical evidence establishes beyond all reasonable doubt that the accused persons had committed murder of deceased Inderpal Singh Dhaka and had also attempted to murder injured Ashok. It was submitted that the FIR about the incidence was reported within time and that there was no delay in its reporting. It was submitted that the complainant / PW-1 Amar Pal Singh Dhaka was coherent in his deposition when he had stated that he had seen the two assailants (later on identified as the two accused Harender and Satender) firing at his brother and injured Ashok. It was submitted that the prosecution through the testimony of PW2 Dr. M. C. Gulecha who conducted the SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 13 of 89 postmortem of the body of deceased Inderpal Singh Dhaka on 24.06.1997, had proved on record that the death of Inderpal Singh Dhaka was homicidal due to multiple firearm injuries and that the possible time of death was at about 10:00 am on 24.06.1997. It was submitted that the defence had failed to discredit the testimony of complainant/ PW-1 in any manner whatsoever. It was further submitted that through the testimony of PW-5/IO B. K. Bhatti, prosecution proved on record that the injured in his statement given to previous IO Ram Babu Singh had stated that it was accused Harender and Satender Solanki who came on a scooter on the date of incident and had fired bullets killing the deceased Inderpal Dhaka and injuring him. It was submitted that PW8 SSI Ram Babu Singh, the second IO of the case, in his deposition had stated that injured Ashok came to PS Civil Lines on 16.07.1997 and handed over his affidavit Ex. K10 wherein the name of the two accused with their role was disclosed. This affidavit of injured Ashok was duly proved on record by the prosecution also through the testimony of PW12 Advocate Narottam Garg and PW13 Advocate Bhanwar Singh Chauhan. It was submitted that PW12 Advocate Narottam Garg had stated in his deposition that he was working as District Notary on 16.07.1997 when Ashok Kumar came alongwith his counsel Bhanwar Singh Chauhan and Sh. K.D.L. Bajaj for attestation of his two affidavits with photographs. It was submitted that PW12 was categorical in his deposition as to how he had attested the two affidavits of injured Ashok Kumar. It was submitted that necessary corroboration to the testimony of PW-12 was provided by PW-13 Advocate Bhanwar Singh Chauhan when in his deposition, he stated that Ex. K-10 which is affidavit of Ashok Kumar was got SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 14 of 89 prepared at his instructions on 16.07.1997. He stated that the affidavit was got verified in his presence by Advocate Narottam Garg. He further stated that the other affidavit of injured Ashok was identified by Advocate K.D.L. Bajaj who has since expired. It was submitted that the submission of affidavit by injured Ashok with the investigating officer and its due execution has been proved on record by the prosecution and it again corroborates the testimony of complainant/ PW-1. It was further argued that accused Harender was duly identified by the complainant in the Test Identification Proceedings and that in this regard, prosecution had also examined the Magistrate/PW-9 Mitthan Lal Jain under whose supervision the TIP proceedings were conducted and he proved the record of TIP as Ex. K-11. It was submitted that as to accused Satender Solanki, since he had surrendered before the Court and chose not to appear in covered face on one of the dates given for his remand, that the complainant had identified him in the Court itself and in this regard, an application was also submitted with the CJM, Meerut. It was submitted that in so far as delay in TIP of accused Harender is concerned, the delay was more on account of accused Harender himself as he had failed to remain present for the TIP on 09.03.1998 and 19.03.1998 and that it was only when an application for cancellation of his bail was preferred, that the accused had presented himself for his TIP on 28.03.1998. It was argued that this delay being on account of the accused himself, cannot be taken as a ground to disbelieve the TIP proceedings wherein the complainant had duly identified accused Harender as one of the assailants.
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11. In support of the submissions, Ld. Spl. PP assisted by the complainant had placed reliance upon the following citations:-
(i) Daya Singh vs State of Haryana, AIR 2001 SC 1188.
In this case, it was observed "that the purpose of test identification is to have corroboration to the evidence of the eye witnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the Court. If that evidence is found to be reliable then absence of corroboration by test identification would not be in any way material".
(ii) Pramod Mandal vs State of Bihar, 2005(1) JIC 75 (SC). In this case, it was observed "that it is neither possible nor prudent to lay down any invariable rule as to the period within which a test identification parade must be held, or the number of witnesses who must correctly identify the accused, to sustain a conviction. These matters must be left to the Courts of fact to decide in the facts and circumstances of each case. If a rule is laid down prescribing a period within which the test identification parade must be held, it would only benefit the professional criminals in whose cases the arrests are delayed as the police have no clear clue about their identity, they being persons unknown to the victims. They, therefore, have only to avoid their arrest for the prescribed period to avoid conviction".
(iii) R. Shaji vs. State of Kerala, 2013 (1) J.Cr.C 458. In this case, the settled law regarding test identification parade was reiterated by holding that "mere identification of SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 16 of 89 an accused in a test identification parade is only a circumstance corroborative of the identification of the accused in Court".
(iv) Simon & Ors vs. State of Karnataka, 2004 SCC (Cri)
646.
(v) Brij Mohan vs. State of Rajasthan, 1994 SCC (Cri.) 527. This case is again on the aspect of evidentiary value of a test identification parade where there is a delay in conducting it.
(vi) Bhajan Singh @ Harbhajan Singh & Ors vs. State of Haryana, 2011 (74) ACC 672 (SC). "This case is on the point of delay in sending the copy of FIR to the Illaqa Magistrate and also of non-joining of independent witnesses and evidentiary value of a related witness. It was held that it is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been ante-timed or ante-dated or investigation is not fair and forthright. Every such delay is not fatal unless prejudice to the accused is shown. The expression 'forthwith' mentioned in Sec. 157 Cr.PC does not mean that the prosecution is required to explain delay of every hour in sending the FIR to the Magistrate".
(vi-a) Latesh @ Dadu Baburao Karlekar vs. State of Maharashtra, Crl. Appeal no. 1301/2015 decided by Hon'ble Supreme Court of India on 30.01.2018. In this case, it was held that "the value to be attached to the FIR depends upon facts and circumstances of each case. When a person gives a SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 17 of 89 statement to the police officer, basing on which the FIR is registered, the capacity of reproducing the things differ from person to person. Some people may have the ability to reproduce the things as it is, some may lack the ability to do so. Some times in the state of shock, they may miss the important details, because people tend to react differently when they come across a violent act. Merely because the names of the accused are not stated and their names are not specified in the FIR that may not be a ground to doubt the contents of the FIR and the case of the prosecution cannot be thrown out on this count".
(vii) Bhargavan & ors vs State of Kerala, 2004 (1) Crimes 412(SC). This case is on the aspect of evidentiary value of an interested/related witness. It was held that "relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and reliable".
(viii) Gurjit Singh @ Gora & Anr vs. State of Haryana, (2015) 4 SCC 380. This case is again a reiteration of the law that the statement of a relative of the deceased cannot be discarded merely on the ground that he or she is an interested party.
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(ix) Sudip Kumar Sen @ Biltu & Ors vs. State of West Bengal, 2016 AIAR (Criminal) 165 (SC). This case is a reiteration of the settled law that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. It is open to a competent court to fully and completely rely on a solitary witness and record conviction.
(x) Israr vs State of UP, AIR 2005 SC 249. This case is again a reiteration of the settled law that testimony of a related witness cannot be disbelieved only on the ground that he or she is related to the deceased / victim.
(xi) State of UP vs Naresh & Ors. 2011 [1] AAR, 567 (SC). It is on the point that absence of independent witnesses in itself is no ground to disbelieve the testimony of a related witness whose testimony is otherwise found trustworthy.
(xii) Uma Shanker vs. State of UP, 2015(2) JIC 86 (All HC).
(xiii) Amar Singh vs. Balwinder Singh & Ors, 2003 (2) ACRR 1080(SC).
(xiv) Binay Kumar Singh & Ors vs. State of Bihar, (1997) 1 SCC 283.
(xv) Pawan Kumar @ Monu Mittal vs State of UP & Anr.,2015((1) J.Cr.C 728. (xvi) Susanta Das & Ors Vs. State of Orissa, 2016 [1] AAR SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 19 of 89 331 (SC).
(xvii) Mahendra Singh vs State of MP, (2007) 3 SCC (Cri)
583. (xviii) Dharnidhar & Ors vs. State of UP 2010 (3) JIC 110(SC).
(xix) State of UP vs. Munesh, 2013 (1) J. Cr. C. 77 (SC) (xx) Anjan Das Gupta vs The State of West Bengal & Ors 2017(1) J.Cr.C.115 (SC). This case is a reiteration of the settled law that evidence of an eye witness cannot be discarded on flimsy grounds.
(xxi) State of A. P. vs. S. Rayappa & Ors, 2006(1) ACR 1009 (SC).
(xxii) Chandrashekarappa vs State of Karnataka, 2004 SCC (Cri) 161. It is on the point of alibi.
(xxiii) Yogesh Singh vs. Mahabeer Singh & Ors, AIR 2016 SC 5160.
(xxiv) Sewaka @ Ramsewak vs State of MP & Anr, 2002(1) JIC 95 (SC).
(xxv) Chandrashekhar Sureshchandra Bhatt & Ors Vs. State of Maharashtra, Criminal Appeal no. 159/2000 decided on 29.03.2000.
(xxvi) State of Himachal Pradesh vs Raj Kumar, 2018 AIAR (Criminal ) 125.
(xxvii) Sanjeev Kumar Gupta vs. State of UP(now State of Uttarakhand), 2015(2) JIC 650(SC).
SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 20 of 89
12. Ld. Counsel for the accused persons, on the other hand, submitted that admittedly the accused persons were not named in the FIR and till the late stages of investigation the case was supposed to be based on circumstantial evidence and identity of the assailants was supposed to be connected therewith through the evidence of TIP. It was submitted that in every criminal case the burden of proof rests upon the prosecution and it is to be discharged by leading a very clinching and convincing evidence to disturb the presumption of innocence enjoyed by the accused and to arrive at only one conclusion that the accused have committed the offence and no other inference is possible from the evidence so led by the prosecution. It was further submitted that the prosecution in discharging the burden of proof in a criminal case does not enjoy the benefit of any presumptions or assumptions and that it has to prove the charges to the very hilt and that too through a very consistent, coherent and convincing evidence. While so submitting, ld counsel vide the memorandum of arguments, had placed reliance on the law laid down in Arulvelu vs. State, 2010 (68) ACC 5 (SC); Smt. Mula Devi vs State, 2009 AIAR 6 (SC); Sadashio Mundaji Bhalerao vs State, 2007, AIAR 16 SC; State of Gujarat vs. Jayrajbhai Punjabhai Varu, 2016 AIAR (Cr.) 695 SC etc.
13. Ld. defence counsel further submitted that the prosecution had made an attempt to prove its case on the basis of following two grounds:-
(a) of the identification of both the accused Satender and Harender by the complainant / PW-1 Amarpal Dhaka;
& SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 21 of 89
(b) of treating the alleged affidavit of injured Ashok as a substantive evidence even though he was not produced as a witness in the case.
14. It was submitted that the prosecution, thus, aims to establish the guilt of the two accused on the basis of the alleged eye witness account of the sole witness / PW-1 Amarpal Dhaka. It was submitted that the law is well settled that evidence of identification is a very weak type of evidence and it is essential that where the accused persons have not been named in the FIR, the Court should be hesitant in accepting the evidence of identification unless the prosecution fully proves on record with very cogent and convincing evidence concerning firstly, that the accused facing trial were not known to the alleged witness or that the witness had no opportunity to know them. Secondly, that the prosecution took due care and caution to ensure that the witness could not see the accused persons after the incident. Thirdly, that every possibility of accused being known to the witness is ruled out. Fourthly, that there is convincing evidence in the nature of test identification parade and lastly, that there is sufficient corroboration of such identification.
15. It was submitted that the FIR does not name any of the assailants and during investigation, it was for the first time by way of two affidavits dated 16.07.1997 of injured Ashok i.e. after 22-23 days of the incident, that the names of the two accused persons surfaces on record. The affidavits have been identified on record by the prosecution as Ex. K10 and Ex. K23. It was submitted that though the affidavits in SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 22 of 89 itself have no evidentiary value when injured Ashok was neither examined by the prosecution nor the defence was afforded an opportunity to cross-examine him, nonetheless, a bare perusal of the affidavit would show that injured Ashok in the affidavit is alleged to have stated on solemn affirmation that on 24.06.97, he and the deceased Inderpal Dhaka were going to University from the house of deceased at Meenakshipuram in his Maruti Car no. UP 15E 7042. At about 10:00 am, when they had reached near Green Nursery ahead of Suri Nursing Home, Amarpal Dhaka was found coming in his car from the opposite direction and he stopped the car. Suddenly, Satender Solanki and his brother Billoo, both sons of Krishan Pal @ Krishan Chand and both residents of Jiwana Guliyan, PS Binoli, District Meerut were seen on a scooter who after alighting from the scooter started firing towards Inderpal. It was submitted that the affidavits were executed on 16.07.1997 at Meerut Courts and surprisingly in both the affidavits, injured Ashok is giving an account of the two accused persons completely in terms of their parentage and address, yet he does not specifically mention as to the source of such information. It was further submitted that neither in the FIR nor in the two affidavits of injured Ashok, there is any mention of the description of the two assailants in terms of their height, colour, clothes, accent etc. It was submitted that in these given facts, identification of both the accused becomes highly doubtful and is a suspicious piece of evidence.
16. It was further submitted that the alleged affidavits of injured Ashok indicates that the accused persons were very well known to him, still there is no explanation coming forth from the prosecution SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 23 of 89 side as to what was the reason for the injured remaining silent for the period 24.06.97 (date of incident) to 16.07.97 (date of the alleged affidavits). It was submitted that none of the accused was put up for TIP before injured Ashok and this fact also suggests that the prosecution had itself conceded by way of necessary implication that the injured knew both the accused very well even at the time of incident. It was argued that the prosecution had made an attempt to rely upon the identification evidence contained in the alleged affidavit of injured Ashok through the statement of PW-1 Amarpal Dhaka who in his examination-in-chief had stated that in the evening of 21.07.1997 when he was present at his house in Jagriti Vihar, injured Ashok came and told that he had identified the assailants as Harender @ Billoo Solanki and Satender Solanki, both sons of Kishan Chand @ Kishan Singh who had fired gunshots at him and at deceased Inderpal. PW-1 further stated that he gave this information to the police vide his statement recorded on 22.07.1997. It was submitted that if one believes the version of PW-1, then injured Ashok had made a disclosure of the identity of the assailants to the complainant only on 21.07.1997 i.e. after a month of the incident. It was submitted that it is an admitted fact that injured Ashok and the complainant /PW-1 are both residents of the same village dhikauli. It was submitted that PW-1 in his cross-examination was shown an article with photographs appearing in the newspaper 'Dainik Jagran' dated 25.06.1997. In one of these photographs, injured Ashok could be seen with the police officials. It was submitted that PW-1 on seeing the photograph, did not deny it completely that it was not of injured Ashok. It was submitted that PW-1 in his examination had stated that when he had got admitted SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 24 of 89 injured Ashok at Medical College, Meerut and had stayed with him for about 20-25 minutes, injured Ashok was not in complete senses and was not able to give reply coherently. It was submitted that this testimony of complainant /PW-1 was completely demolished and contradicted not only by the photograph of injured Ashok which had appeared in the regional newspaper of the very next day but also by the testimony of prosecution witness PW-3 Dr. B. K. Sharma who had examined injured Ashok in the hospital. PW-3 had stated that injured was normal and was fit to speak. Similarly, PW-15 R.P. Aggarwal had also stated that the injured was conscious and was capable of moving. It was submitted that the testimony of the two experts / doctors who had the opportunity to examine injured Ashok at the very first instance contradicts the claim of complainant/PW-1 that injured Ashok was not completely conscious. This testimony of PW-1 renders him untruthful in this regard. It was submitted that even the injured Ashok keeping silence for about 23-24 days in respect of disclosing the identity of the assailants also smacks of foul play. In this regard, ld defence counsel again referred to the testimony of PW-1 wherein he stated that for the period intervening 27-06-1997 till 21.07.1997, he had not visited Meerut City and that he had not met injured Ashok. It was submitted that admittedly as per the testimony of PW-1, injured Ashok was discharged from the hospital on 30.06.1997 and that the complainant had remained in the village till 21.07.1997. It was submitted that both the complainant and injured belong to the same village and it is hard to believe that the complainant would not go to meet him or to take care of him when admittedly the injured was an important witness to the murder of his own brother. It was submitted that it is also not believable SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 25 of 89 that injured Ashok would go to get his alleged affidavit prepared on 16.07.1997 from another advocate when complainant himself happens to be an advocate by profession and is a resident of the same village as that of the injured. It was submitted that it is hard to believe that the injured would go to the house of complainant on 21.07.1997 which is at a distance of 40-50 km from his village to reveal the name of the assailants instead of revealing the same in the village itself. It was submitted that this is a material contradiction and seriously impinges upon the credibility of PW-1 as to the identification of the two accused by him. It was further submitted that when the injured had disclosed the names, address and the identity of both the accused to the complainant, then the so called identification evidence becomes more suspicious and unreliable.
17. It was further submitted that the defence had established on record that deceased Inderpal Singh Dhaka had a criminal background and that he was a history sheeter carrying a reward on his head. In this regard, ld. counsel referred to the testimony of PW1 wherein it was admitted by him that his brother / deceased was involved in FIR no. 172/92, PS Sahaspur, District Dehradoon which was in respect of murder of an advocate Hari Kisan Garg. It was submitted that complainant /PW-1 admitted about the same but tried to explain it that it was a false case. It was submitted that PW-1 also admitted that his deceased brother had a case registered at PS T.P. Nagar regarding firing at a police party. Complainant again tried to explain that the two cases at T.P. Nagar including the one for the offence u/s 307 IPC were false and fabricated cases. It was submitted SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 26 of 89 that regarding the criminal history of the deceased and of the reward he was carrying on his head, defence had cross-examined two prosecution witnesses, PW4 SSI Lala Ram Sharma and PW-11A SI Prakash Chand. It was submitted that PW-4 had admitted that during investigation it came to his knowledge that cases of murder etc at various police stations were registered against the deceased. He also admitted that the administration had announced a reward of Rs. 50,000/- to anyone who arrests deceased Inderpal. Similarly, PW-11A had also admitted that there is a mention in the case diary by him that on the basis of information, it came to his knowledge that the deceased had enmity with Madan Bhaiya and Sushil Moonch. Also, PW-8 SI Ram Babu Singh in his testimony had admitted of the deceased having enmity with some other known miscreants of the area. It was submitted that it is in this context of criminal background of the deceased, that the defence had tried to bring to the notice of the Court that there is a possibility of eliminating the deceased by some of his colleagues or enemies. Reliance in this regard was placed upon the judgments cited as Badam Singh vs. State of MP, 2004 (1) Luck. Cr. Reports 152 (SC); Shailender Pratap Singh vs State of UP, 2003 (46) ACC 331 (SC) and Raju Pasi vs State of UP, 2010 (69) ACC 740. It was submitted that the defence through the cross-examination of complainant / PW-1, had succeeded in bringing on record that both the accused and the complainant / deceased side had more than enough opportunity to know each other being political leaders and of the same Parliamentary Constituency. It was submitted that their villages were also adjacent and as such, possibility of the accused being previously known to the complainant cannot be ruled out. It was argued that PW-1 in his cross-
SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 27 of 89 examination had admitted of his having contested Panchayat Elections and in this regard, his reply that he had no knowledge of either of the accused being politically active in the adjoining Legislative Assembly Seat cannot be believed and again puts to doubt his credibility.
18. On the point of identification of the two accused, it was argued by the ld defence counsel that as per the prosecution case, accused Harender was shown arrested on 29.12.1997 and admittedly as per the record, his TIP through PW-1 Amarpal Dhaka was held on 28.03.1998 i.e after more than nine months of the incident and also after he was granted bail on 04.03.1998. It was argued that the arrest of accused Harender on 29.12.1997 is shown with the allegations that he was arrested at about 1:30 am by PW-5 SO B.K. Bhati and from his possession, one revolver and seven live cartridges of .30 bore were recovered. It was argued that in respect of the arrest and recovery, another case u/s 307 IPC and u/s 25 Arms Act was registered at PS Kankarkhera. It was submitted that in this case, accused Harender was acquitted of all the charges and prosecution did not file any appeal against it, thus, making the orders as final. It was submitted that when the very arrest of accused Harender has been discarded in the case separately heard and decided, his consequential identification by complainant in the present case is also rendered doubtful. It was argued that even otherwise, identification of accused Harender by the complainant in TIP held on 28.03.1998 has no basis and it is for the reasons, firstly, neither in the FIR nor anywhere else, any description of the accused concerning his height, colour, etc was given by the complainant or even the injured, secondly, the record i.e. the Fard SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 28 of 89 arrest Ex. K6 nowhere reveals that the face of accused Harender was covered after his arrest or that he was produced 'Bapardah' in the Court. It was submitted that accused Harender remained in uncovered face at the police station and till his production in the Court after his arrest. Even in the applications seeking remand, there is no request for him to be produced as 'Bapardah'. It was submitted that the Executive Magistrate PW-9 Mitthan Lal Jain who was supervising the TIP, had admitted in his deposition that accused Harender had made a statement to him that he was known to the witnesses and his photographs were taken at the police station. It was further submitted that PW-9 in his testimony had admitted that in Column no. 1 of the identification memo, name of one Mustaq s/o Munshi r/o Manni Sarai was written and was cut. It was submitted that this cutting of the name of Mustaq and of insertion of the name of accused Harender is an instance that it was so done under the pressure and influence of advocate complainant. It was submitted that of the other persons who were joined in the identification proceedings, neither their names nor their parentage and address has been mentioned. Even their physical description has not been given. It was argued that this gross illegality in conducting TIP makes it completely unreliable. It was submitted that the complainant / PW-1 in his cross-examination had also given vague replies as to his coming to know of the arrest of accused Harender.
19. Similarly, as to the identification of accused Satender Solanki, it was submitted that he had surrendered before the Ld. CJM on 23.01.1998 i.e. seven months after the incident and he is alleged to have been identified by the complainant in the Court of Ld. CJM on SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 29 of 89 29.01.1998. Admittedly, no test identification of either of the accused was done through injured Ashok. It was submitted that this period of seven months and nine months assumes importance when as per the prosecution case, injured Ashok is stated to have disclosed the names, parentage and residence of both the accused on 16.07.1997 and had also told about the same to complainant /PW-1 on 21.07.1997. It was submitted that complainant /PW-1 Amarpal Dhaka is not a rustic villager but is an advocate knowing well what would be the significance of the identity of the accused persons after a gap of such a long period. It was argued that while appreciating and examining the so called identification evidence, the Court has to keep in mind the political background of both the parties as well as of they being from neighbouring villages to rule out the possibility of being previously known or of the opportunity with the complainant to have known them before. It was submitted that there is also a considerable doubt as to the identification of accused Satender Solanki by the complainant in the Court of Ld. CJM. It was submitted that the prosecution in this regard had led the evidence in the form of an application dated 29.01.1998 Ex. K-2 which was moved by the complainant before the Court of Ld. CJM. It was submitted that complainant / PW-1 in his deposition had stated about the said application by deposing that on 29.01.1998 he had reached the CJM Court, Meerut where he found 4-5 persons standing in the dock and had identified one amongst them as the one who had fired gunshot at his deceased brother. Complainant further stated that in this regard he had written an application addressed to the Ld. CJM. He had further stated that when he had visited the CJM Court and had seen accused Satender Solanki, the SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 30 of 89 accused was without his face covered and that he had not requested the Ld. CJM for his test identification. It was argued that this alleged application dated 29.01.1998 Ex. K2 is a bogus document having been filed before the Ld. CJM only to derive the undue advantage to avoid TIP in Jail. It was submitted that accused Satender had surrendered on 23.01.1998 and it is unthinkable that the complainant who is an advocate and is a vigilant/active litigant would not have made extensive efforts to find out the accused Satender or to obtain his photographs during this long period. It becomes all the more important when admittedly accused Satender had contested two elections of UP Assembly and was a busy politician in the Baghpat area. It was submitted that the record in the form of remand sheet of accused Satender Solanki would also reveal that the date 28.01.1998 was not fixed in the matter for any purpose and as such there was no occasion for the accused to be produced in custody on 28.01.1998. Reference in this regard was made to the order dated 23.01.1998 of the Ld. CJM, Meerut which records of the accused being wanted, having surrendered in the Court and being sent in Judicial Custody till 06.02.1998. It was submitted that in this order there is nothing that the accused was directed to be sent in covered face or to be brought in covered face. The next order dated 28.01.1998 records that the investigating officer SI Lala Ram Sharma of PS Kankarkhera, Meerut had requested the Court to pass orders for bringing the accused in covered face for the purposes of identification. It was then that the orders were so passed. It was submitted that this order also did not record the presence of accused Satender before the Court on the said day, otherwise the directions to bring him in covered face would have SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 31 of 89 been implemented then and there. Reference was then made to the order dated 29.01.1998 which records the presence of accused before the Court, however, still does not record the presence in covered or uncovered face. There is also no mention of the complainant moving any application Ex. K-2 before the Court. Reference was then made to the witnesses examined by the prosecution in this regard and these are PW-10 Ct Ravinder Kumar, Mohrarir, Sadar Hawalat, PW-11 Rakesh Kumar, the then Deputy Jailor, PW-14 Bal Krishan Mishr, the then Deputy Jailor, PW-16 Ct. Ramesh Chand, the then Munshi at Sadar Hawalat, Meerut, PW-17 HC Iqbal, the then Lock-up Mohrarir and PW- 18 Ct. Bhupinder Singh, Court Moharir in the Court of CJM, Meerut. It was submitted that PW-10 Ct. Ravinder offers no assistance to the prosecution as he deposed that the General Diary dated 29.01.1998 of Sadar Hawalat had been weeded out. As to PW-11 Rakesh Kumar, he stated that he had passed the orders to produce accused Satender Solanki as "Bapardah" (covered face) on 29.01.1998 in compliance of the orders passed by Ld. CJM which he had received on 28.01.1998. It was submitted that this witness had no knowledge whether accused Satender was so produced in the Court or not. PW-14 Bal Kishan Mishr also offers no help to the prosecution case as he deposed that the record of the Jail relating to the custody of accused Satender Solanki, his remand papers and the orders of the Court summoning him have been weeded out vide report Ex. K-24. As to PW16 Ct. Ramesh Chand who was then posted as Munshi at Sadar Hawalat, Meerut District Court, he stated that on 28.01.1998 at about 12:40 pm, accused Satender Solanki was taken in covered face to the Court of Ld. CJM, Meerut by HC Yashpal, Ct. Ami Chand, Ct. Dhani Ram and Ct. Suresh.
SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 32 of 89 He stated that in this regard, GD no.42 was recorded by HC Iqbal Singh. Its original has been destroyed and its copy on record is Ex. K-
26. He stated that the directions to produce the accused again on 29.01.1998 was received on 28.01.1998. PW-17 HC Iqbal Singh also stated that on 28.01.1998 when he was posted as Lock-up Moharir HC at Sadar Hawalat, District Court, Meerut, accused Satender Solanki was sent in covered face vide departure entry no.6 recorded at about 12:40 pm. He identified the copy of the said GD as Ex.K-26. PW-18 Ct. Bhupinder Singh stated that he had got prepared the "Talbi" / production warrants under the orders of Ld. CJM, Meerut for the accused Satender Solanki to be produced in muffled face on 29.01.1998. He identified the copy of the said "Talbi" as Ex. K-27. He stated that this warrant /Talbi was sent on 28.01.1998. It was submitted that a careful examination of the testimony of these witnesses would show that accused Satender was sent 'Bapardah' to the Court of Ld. CJM on 28.01.1998. It was argued that this claim is not substantiated by the remand sheet and the prosecution had also failed to prove any order of the Ld. Court by which the accused was summoned on 28.01.1998. It was submitted that the GD Ex. K-26 is a false and fabricated document and as to Ex. K-27 which is the copy of Talbi alleged to have been prepared by PW-18 Ct. Bhupinder, it is again not reliable as it does not bear the official seal of the Court of Ld. CJM. It was argued that Ex. K-26 and K-27 being photocopies, again cannot be read in evidence and cannot be treated as secondary evidence of the alleged original entry. Reliance in this regard was placed upon the judgment cited as Kaliya vs. State of MP, 2013 (83) ACC 160 (SC) and Alamelu & Anr. vs. State represented by Inspector of Police, 2011 AIAR SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 33 of 89 208 (SC).
20. As to the affidavit of injured Ashok, it was submitted that it cannot be read in evidence when the witness himself did not turn up to prove it on record and the defence was also denied the opportunity to cross-examine him. It was submitted that the affidavit of injured Ashok as such has no evidentiary value and cannot be looked into for any purpose concerning either the involvement of the accused persons or of their identification by him.
21. Ld. defence counsel on the point of medical evidence, submitted that PW1 Amar Pal Dhaka had claimed that his brother/ deceased Inderpal Dhaka was driving the Maruti Car while injured Ashok was sitting by his side on the front seat. It was submitted that in this view of the position of the deceased, his right side shall be towards the window and left side of his body shall be away from the window. Similarly, left side of the body of injured Ashok shall be towards the window and his right side shall be away from it. It was submitted that PW1 in his deposition had stated that the gunshots were fired from the front window of the side of the deceased. It was submitted that the postmortem report Ex. K-3 shows that the deceased had sustained injuries on various parts of the right side of his body, left side of his abdomen and front side of his chest. It was argued that none of these injuries had any blackening or tattooing or scorching. It was further argued that the postmortem report shows that the deceased was having total 17 injuries on his body, out of which 11 injuries were due to insertion of bullet fired upon him. It was submitted that only four bullets SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 34 of 89 were recovered by the doctor from the body of the deceased and interestingly, rest of the seven bullets were neither recovered from the body nor from inside or outside the car. It was submitted that as to injured Ashok, he had suffered only one gunshot injury which was found on the outer aspect of the right side of his thigh vide injury report Ex. K4 and that blackening has also been noted on the said injury by the attending doctor. It was submitted that absence of blackening, tattooing or scorching in any of the injuries sustained by the deceased proves that it was a case of long distance firing and not a close range firing as allegedly claimed by the complainant / PW-1. It was submitted that as to injured Ashok, it was a case of injury having been sustained from close range firing. It was submitted that injured Ashok did not sustain any single injury on the left side of his body even though as per the claim of PW-1, the assailants had fired from the window to his side as well. It was submitted that had there been any firing from the window to the side of injured Ashok, his left side body would not have escaped any injury. It was further submitted that even the injuries on the left side of the body of the deceased and on his chest only proves that he was not fired upon while he was sitting in his car since there is no injury to injured Ashok on his left side. It was further submitted that PW-2 Dr. Gulecha, who had conducted the postmortem, had noted rigor mortis all over the body of the deceased and as per medical science, rigor mortis covers whole of the body only after 24 hours of the death. It was submitted that incidentally, the death is said to have taken place at about 10:00 am and the postmortem was done at 5:40 pm i.e. within 8 hours of the incident. This fact rules out that the incident took place at 10:00 am and in fact, indicates that the death SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 35 of 89 might have taken place much prior in time may be in the previous night and that the witness / PW-1 is telling lies to substantiate his presence at the spot. It was argued that the ocular evidence as presented by the prosecution through PW-1 is contrary to the medical evidence and as such testimony of PW-1 again cannot be relied upon. It was further submitted that testimony of PW-1 is also discredited on account of the fact that in his deposition, PW-1 claims of his having taken his deceased brother and injured Ashok to the nearby Suri Nursing Home immediately after the incident, contrary to this, there is no evidence brought on record by the prosecution in the form of any document relating to the admission, treatment or of the issuance of death certificate as issued by the concerned Nursing Home either in respect of the injured or of the deceased. In support of his submissions, ld counsel had placed reliance upon the judgments cited as Ganesh Dutt vs State of Uttarakhand, 2014 Cri. LJ 3128 (SC), Narendra Singh @ Nanga vs State of UP, 2013 (83) ACC 526; State of UP vs Dinesh, 2009 (65) ACC 137 SC; Raj Pal vs. State of Haryana, 2007 Crl. LJ 2926 SC and Jagdish vs. State of Madhya Pradesh, 2007 (59) ACC.
22. On the aspect of the car being related to the incident, ld counsel submitted that as per FIR Ex. K1, the deceased was shown in his own car at the time of incident. Further, as per the claim of prosecution, the incident of indiscriminate firing took place when both the deceased and the injured were sitting inside the said car. It also came on record that a bullet had hit a seat of the car. Photographs of the car were placed on record by the prosecution through the testimony of the photographer PW19 Raj Kumar. It was argued that in these SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 36 of 89 given facts, the car in question is an important piece of evidence and that PW-1 in his cross-examination had told that the car in which his brother was coming, was bearing no. UP 15E 4072 and that this car was perhaps in the name of Professor P.N. Singhal. PW-1 had further stated that at the time of incident, Professor Singhal was not in the town. Ld defence counsel submitted that this testimony of PW-1 that the car was in the name of Professor P.N. Singhal with whom his deceased brother used to exchange his car with, clearly indicates that the present incident might have also taken place due to mistaken identity at the end of the assailants who had come to eliminate P.N. Singhal but the deceased fell prey to them since he was in the car of P.N. Singhal. It was further submitted that no 'Fard' recovery of the car in question has been placed on record and that the IO also did not state that he had seen or had taken the possession of the car as claimed by PW-1. It was submitted that on this aspect as well, PW-1 stands contradicted. It was further submitted that when the deceased and the injured, as per the claim of prosecution, sustained gunshot injuries while sitting in the car, there must have been a pool of blood inside the car. It was submitted that in this regard, PW-1 in his cross- examination had stated that he had not seen blood in the car and that the blood was oozing out from the body of the deceased. It was argued that this statement of PW-1 again proves that he is talking of impossible and unimaginable situation and that it is again a pointer that the incident did not take place when the deceased and the injured were inside the car. It was submitted that the prosecution was again contradicted by the defence when it was permitted for the recall of PW-4 SSI Lala Ram Sharma for his further cross-examination. PW-4 in SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 37 of 89 his deposition dated 06.09.2017 had stated that on 15.04.1998 he had recorded in the case diary page no. '48' that on the said day, he had received the photographs with negatives of car no. UP 15E 4072 from the complainant Amar Pal Singh at District Courts, Meerut. It was argued that this deposition of PW-4 throws out the entire testimony of the photographer PW-19 Raj Kumar and is again a pointer that the photographs and the negatives were fabricated by the complainant/ PW-1 to create false evidence with oblique objectives. It was submitted that the other IO/PW-5 SO B. K. Bhati with whom the investigation of the present case remained for about 2 ½ months, had stated that he did not carry out any investigation in respect of the car of the deceased as he had no time for it. It was argued that the explanation of paucity of time is a lame excuse and is again a pointer to the false implication of the accused persons. It was further argued that there is also no explanation from the prosecution of the inordinate delay in handing over of the photographs to the IO on 15.04.1998 when admittedly, as per the photographer PW-19 Raj Kumar, the photographs of the car were taken by him in July, 1997. It was argued that these facts are again a pointer that PW-1 is an unreliable witness. It was submitted that even no blood was noticed outside the car by the IO who had prepared the site plan Ex. K-21 and it again dents the credibility of the alleged eye witness /PW-1.
23. Ld defence counsel also argued in respect of fabrication of the FIR inasmuch as, as per the claim of prosecution, the FIR came to be registered at PS Civil Lines at about 10:25 am i.e. within 25 minutes of the alleged incident. It was submitted that a perusal of the SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 38 of 89 inquest report and related papers which are Ex. K9, Ex. K15, Ex. K16, Ex. 17, Ex. K18 and Ex K19, would show that the columns pertaining to the FIR number and the offences are blank and it indicates that the FIR was ante timed only to introduce complainant / PW-1 as an eye witness who had the intention to falsely implicate the accused persons, they being the well known personalities of the area in Baghpat and also of having contested elections of MLA from nearby constituency of the complainant and the injured. It was submitted that as per admitted claim of PW-1, he had got prepared his complaint Ex.K1 through an advocate Tarun Kumar. It was argued that this Tarun Kumar has not been joined as a witness with some oblique motives. It was submitted that despite the registration of FIR within 25 minutes of the alleged incident on 24.06.1997, the chik report thereof was sent to the CO on the next day and to the Ld. CJM on 02.07.1997. It was argued that the delay in dispatching the FIR to the CO as well as to the Ld. CJM is again a pointer to the ante timing of the FIR to introduce PW-1 as an eye witness. In this regard, reliance was placed upon the judgments cited as Kailash Gour & ors vs. State of Assam, 2012 Crl. LJ 1050 SC; Sokha & Anr vs. State of UP, 2000 Lucknow Crl. Reports 236; Marudanal Augusti vs State of Kerala, 1980 SCC 985; Raju Pasi vs State of UP, 2010 (69) ACC 740; State of UP vs Mahavir Singh & ors, 2013 (82) ACC 513; Ramesh Baburao Devaskar vs State of Maharashtra, 2007 AIAR 874 (SC); Thanedar Singh vs State of MP, 2002 SCC (Crl) 153; L/nk. Mehraj Singh vs State of UP, 1995 L. Cr.R 176(SC); State of Kerala vs Anila Chandran @ Madhu, 2009 (65) ACC 585 SC; Jaswant @ Rajan vs State of UP, 2009 (64)ACC 405 & State of UP vs. Omveer, 2014 (3) ACR 3439.
SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 39 of 89
24. Ld defence counsel further submitted that PW-1 Amar Pal Singh Dhaka, the alleged eye witness, was neither present at the time of incident nor was there any occasion for him to be present there and that he is also not a genuine witness. In this regard, ld counsel submitted that injured witness Ashok was deliberately withheld by the prosecution from his examination as otherwise it would have rendered the testimony of PW-1 completely unbelievable. It was argued that PW-1 is not only a related witness, being the brother of deceased Inderpal Dhaka, but has also been shown as a chance witness. It was argued that PW-1 could not have been present at near the spot at the given time and that in this regard, his deposition can be looked into wherein he claims that he resides at Jagriti Vihar and on the day of incident, was going to District Court, Meerut when he saw the incident in question near Suri Nursing Home. It was argued that in his cross- examination, PW-1 was questioned in respect of the route which has to be taken by a person who travels to District Court, Meerut from Jagriti Vihar. It was argued that from Jagriti Vihar to the District Court, there are 6-7 ways and the shortest and the easiest route is not the one which PW-1 allegedly took on the date of incident. It was argued that in fact the place of incident does not lie in any of the routes one takes while going to District Court, Meerut from Jagriti Vihar and on this count alone, PW-1 has been rendered as an unreliable witness. It was argued that the law is well settled that evidence of an interested witness needs to be scrutinized with utmost care and it can be relied upon only when the evidence has a ring of truth to it, is cogent, credible and trustworthy. It was argued that the contradictions as pointed out in SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 40 of 89 the testimony of PW-1 are sufficient to indicate that he is not an eye witness to the incident and thus cannot be relied upon. Reliance was inter alia placed upon the judgments cited as Mahavir Singh vs. State of MP, 2017 AIAR (Crl) 1 SC, State of Karnataka vs Sateesh, 2015 Cr. LJ 3427 (SC) etc. It was further argued that coupled with the contradictions in the testimony of PW-1, withholding of the most material witness PW Ashok renders the prosecution case completely unbelievable. It was argued that even the other independent witnesses have been withheld and that it is again a pointer that the complainant had pressurized the investigating agency all through the investigation. Lastly, it was argued that the prosecution case has been investigated by as many as five investigating officers and that the investigation carried out by them has been in a manner to support the complainant to falsely implicate the accused persons. It was argued that none of the IO's had bothered to take possession of the car in which the deceased and the injured were allegedly travelling when the alleged incident had happened. They also did not carry out any investigation to find out who was the owner of the said car and how it came in possession of the deceased at the given time. The photographs of the car were not taken at the earliest, the criminal background of the deceased and his enmity with some unknown and known criminals was not verified and that the IO's also ignored the fact that both the accused were well known personalities of the area immediately neighbouring the village of the complainant. Not only that, the IO's also failed to investigate on the point that one of the accused Satender had contested Assembly Elections. No investigation was done to seek any explanation either from injured Ashok or from the complainant as to why the accused SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 41 of 89 persons were not named in the FIR. It was argued that conduct of the IO's is an indicator of not only negligent investigation but a dishonest investigation. Reliance in this regard was placed upon the judgments cited as State of UP vs Raghuvir Singh, 2014 (85) ACC 622 and also of the Hon'ble Supreme Court in Nanje Gowda vs State of Karnataka, AIAR 251 SC. While concluding, ld. Counsel for the accused persons also referred to the testimony of two defence witness who in unequivocal terms have stated that accused Satender Solanki had taken his wife for treatment to Dayanand Nursing Home on 24.06.1997 at about 9:30 am and that he remained there till about 11-11:30 am. It was argued that DW Ct. Bhupendra Singh was deputed as a Security Guard of accused Satender at the instance of the State Government and this fact was also acknowledged by the investigating officers. It was, thus, submitted that the prosecution had failed to bring home any of the charges against the accused persons beyond reasonable doubt and they deserve to be acquitted accordingly.
APPRECIATION OF EVIDENCE & CONCLUSION
25. Having heard the rival submissions and having perused the record carefully, the first of the issues is whether the death of deceased Inderpal Dhaka was homicidal or not. In this regard, reference to the testimony of PW-2 Dr. M. C. Gulecha can be made. It is he who had conducted the postmortem on the body of deceased Inderpal Dhaka. He stated that on 24.06.1997, he was posted as Medical Officer in P.L.Sharma Hospital and on that day, at about 5:40 pm he had conducted postmortem of deceased Inderpal Dhaka. He stated that the time of death of deceased was about half a day and SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 42 of 89 the rigor mortis was present all over the body. He proved on record the postmortem report as Ex. K3 and therein, the following ante mortem injuries were noticed:-
(1) Firearm wound of entrance 1cm x 1cm x bone deep on outer aspect of right upper arm 9 cm below top of shoulder. Bone under the injury fractured and two small metallic chips recovered from the wound.
(2) Firearm wound of entrance 1cm x 1cm x muscle deep on back and outer aspect of right upper arm 6 cm above elbow joint. (3) Firearm wound of exit 1.5 cm x 1.5 cm x through and through with injury no(2) on inner aspect of right arm 11 cm below axilla. (4) Firearm wound of entrance 1.5 cm x 1.5 cm x cavity deep on right side chest 12 cm below the mid axillary line. (5) Firearm wound of entrance .75 x 1 cm x skin deep on right side abdomen 2 cm above lilac.
(6) Firearm wound of exit 1 cm x 1.5 cm x through and through with injury no. (5) 2.5 cm behind injury no. (5). (7) Firearm wound of entrance 1 cm x 1 cm x muscle deep on right side abdomen 19 cm away umbilicus at 9'o clock position. (8) Firearm wound of exit 1.25 cm x 1.25 cm x through and through with injury no. (7) 5 cm behind injury no. (7). (9) Firearm wound of entrance 1 cm x 1 cm x cavity deep on back right side 9 cm above hip bone 3 cm away from back bone. (10) Firearm wound of entrance 1 cm x 1 cm x cavity deep on left side abdomen 12 cm away umbilicus at 2'o clock position. (11) Firearm wound of exit 1.5 cm x 1.5 cm x cavity deep on right side abdomen 8 cm above hip bone in mid axillary line. (12) Firearm wound of entrance 1 cm x 1 cm x cavity deep on left side abdomen 6 cm above hip bone and 8 cm away from umbilicus at 5'o clock position.
SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 43 of 89 (13) Firearm wound of entrance 1 cm x 1 cm x muscle deep on left side chest 5 cm away from left nipple at 3'o clock position. (14) Firearm wound of exit 1 cm x 1 cm x through and through with injury no. (13) 3 cm inner to injury no. (13).
(15) Firearm wound of entrance 1 cm x 1 cm x muscle deep on left forearm front outer 8 cm below elbow joint.
(16) Firearm wound of exit 1.25 cm x 1 cm x through and through with injury no. (15) on left forearm inner and front 8.5 cm below elbow joint.
(17) Firearm wound of entrance 1 cm x 1 cm x muscle deep on front of left forearm 6 cm above wrist. A metallic bullet recovered from wound.
26. Besides the above, the report also records that no blackening or tattooing was present in all the injuries. Margins of entrance wounds were inverted and exit wounds were abrated. One bullet was recovered from the left side anterior chest wound and one bullet from the left side chest axillary line. One big bullet was also recovered from the anterior abdomen wall under injury no. 12. Thus, in all four bullets and two metallic chips were recovered. The cause of death was reported to be shock and haemorrhage as a result of ante- mortem injuries.
The testimony of PW-2 thus establishes that the death of deceased Inderpal was homicidal.
Since, gunshot injury was also sustained by the injured Ashok, reference to the testimony of the doctors who have examined him may also be noted at this stage. These are PW-3 Dr. B. K. Sharma and PW-15 Dr. Aggarwal.
SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 44 of 89
27. PW-3 Dr. B. K. Sharma stated that he was posted as Medical Officer at Medical College, Meerut on 24.06.1997 and on that day at about 12:40 pm he had examined the wound of injured Ashok which was a firearm wound of entry 1cm x 1 cm x depth not measured on the outer aspect of upper part of right thigh, 12 cm below and outer from the hip at 7'o clock position. He proved on record his report as Ex. K4 and also stated that the wound was bleeding and the patient was conscious. He further stated that it was possible that the wound would have been caused at 10:00 am on 24.06.1997. He also stated that the injured was brought by Amar Pal Singh Dhaka and that during the course of admission of injured, neither the FIR was shown nor did he inquire about its registration.
28. PW 15 Dr. Aggarwal was serving as Associate Professor in Orthopedic Department of Medical College, Meerut on 24.06.1997 and on that day at about 12:40 pm, he had operated Ashok Kumar for his right hip and one metallic piece was removed by operation which was handed over to the Superintendent after seal. He proved his report on record as Ex. K25.
Once it has been established on record that the death of deceased Inderpal was homicidal and that gunshot injury was also sustained by the injured Ashok, the issue next to be determined is as to who had caused the death of the deceased and the gunshot injury to the injured Ashok. Since the deceased had sustained as many as 11 firearm entry wounds and four bullets with two metallic pieces were SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 45 of 89 recovered from his body, it is apparent that whosoever had caused the death of the deceased, had the intention to kill him.
29. To connect the two accused as the assailants who had caused the death of deceased Inderpal and had also attempted to murder the injured Ashok, prosecution has relied upon the sole testimony of the complainant Amar Pal Singh Dhaka examined as PW-1. Prosecution is also relying upon the affidavit Ex.K23 of injured Ashok, however, once the injured was not examined by the prosecution and the opportunity to cross-examine him having been denied to the defence, the affidavit cannot be taken as an evidence of either the incident or of the involvement of the accused persons.
30. But before taking up the testimony of complainant / PW-1 Amar Pal Singh Dhaka, it is deemed fit to first take up the testimony of the investigating officers. The testimony of the investigating officers would show how casual they have been in carrying out the investigation and they appear to have forgotten their basic duty to conduct foolproof investigation in ensuring that the real perpetrators of the crime are brought to the book.
31. First of the IO's is PW-11A Ins. P.C. Pathak. He was the Inspector In-charge PS Civil Lines, Meerut on 24.06.1997 when the FIR in respect of the present case came to be registered. He stated that the investigation of the present case no. 317/97 u/s 302/307 IPC was handed over to him. He prepared a copy of FIR, copy of registering case and Panchayatnama through SI Rakesh Rawat under SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 46 of 89 his observation after visiting the spot. He stated that he recorded the statement of the witnesses to the panchayatnama and seized the Maruti Car bearing registration no. UP 15E 7042 from the right side of the road. He further stated that one empty cartridge from the right side of the road near the car and four empty cartridges from the left side of the road were recovered which were sealed and seized. He stated that instructions were given for conducting of the postmortem and the body of the deceased was handed over to Ct Ompal and Harender. He further stated that on 27.06.97, he had pain in his finger and as such the writing work was dictated to Ct. Yogender Kumar. The spot was inspected and at the instance of the complainant Amar Pal, site plan / Naksha Nazri was prepared. Thereafter, the investigation was handed over to SI Ram Babu.
32. PW-11A identified the Panchayatnama as Ex. K9, the sample seal as Ex. K15, the request letter of CO for postmortem as Ex. K16, the report of RI as Ex. K17, the form-13 of the receipt of body for postmortem as Ex. K-18, the photograph of the dead body as Ex. K19, the seizure memo of the recovered cartridges as Ex. K20 and the site plan as Ex. K21. Besides this, he also identified the clothes,the undergarments and the other accessories of the deceased as Ex. 1 to Ex. 5, the packet containing a piece of metal recovered during the operation of the right side hip of injured Ashok as Ex.6, five empty cartridges as Ex. 7(colly.), the maal pullanda as Ex.8, the original and the carbon copy of report of Dr. R. P. Aggarwal as Ex. 9 & 10, the match box as Ex. 11, the bullet as Ex. 12, the two metal pieces and four bullets as Ex. K13 (colly) and the packet with envelope as SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 47 of 89 Ex.K14(colly).
33. In his cross-examination, PW11A stated that the case was registered in his presence at 10:25 am. He stated that it may be correct that in the panchayatnama Ex. K9, the case number and the offence might have been left blank initially. He admitted that on page no.2 of Ex. K9, only 302 IPC is written and 307 IPC is not mentioned. PW11A further admitted that the sample of the seal Ex. K15 was made after sealing the dead body and that the column against case number and section has been left blank therein. He further admitted that on the photograph Ex. K19, Sec. 307 IPC has not been mentioned. He further admitted that there is over writing in the form sending the body for postmortem and the time of giving information has not been mentioned. He denied the suggestion that till the preparation of the panchayatnama, no chik was prepared at the police station. He stated that the chik report was sent to the CO on 25.06.97 and to the Ld. CJM on 02.07.1997. He stated that the office of CO is at a distance of about ½ km from PS Civil Lines and the Court of CJM is at a distance of about 300 meter from the office of CO. He stated that he tried to inquire the complainant on the date of incident itself but he was not in a position to give his statement. He admitted that in the first slip of the CD and in the last lines of the last page thereof, he had mentioned that on the basis of his own source information, there appears to be an enmity between the deceased and Madan Bhaiya and Sushil Moonch. He stated that the statement of complainant was recorded on 27.06.97 and that he did not name any accused therein, however, told that he can identify the persons who have committed the crime. He stated that SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 48 of 89 the investigation of the present case remained with him till 04.07.1997 and during this period, injured was got admitted in the hospital by complainant Amar Pal, however, he does not know that the injured remained admitted in the hospital from 24.06.97 to 30.06.97. He stated that since he remained busy in other official work, that he did not inquire the injured till 30.06.97. He stated that the distance between the Medical College/ hospital and police station Civil Lines is about 3-4 km. He denied the suggestion that he had not conducted the investigation in a fair manner and in connivance with the complainant.
34. As the testimony of PW-11A would show that he had not thought it fit to join the injured in the investigation or at least to take his report from the concerned doctor, regarding his fitness to give statement. The IO was aware that complainant Amar Pal Singh Dhaka had not named the assailants and that there may be a possibility that the assailants were known to the injured. The reason cited by the IO in not having joined the injured in the investigation till the time it remained with him, is of his being busy in other official work. It is hard to believe that the other official work would assume importance for the IO than the case in hand wherein a precious life was lost and another life was put to peril. He had also not thought it fit to send the empty cartridges recovered from the spot and those recovered from the body of the deceased, for forensic examination. Further, the car driven by the deceased, which could have provided with vital links, was also not forensically examined. The concerned doctors of Suri Nursing Home where the deceased and the injured were initially taken, were also not examined. There also appears to be no investigation having SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 49 of 89 been carried out from the spot as the commission of crime was in broad day light and as the testimony of complainant would show, that the passersby and those near the spot, had gathered and had assisted the complainant to take the injured and the deceased to the nearby Nursing Home.
35. The second IO is PW-8 SSI Ram Babu Singh. He stated that he was posted as SSI at PS Civil Lines in July 1997 and took over the charge as inquiry officer from Inspector/SO P.C. Pathak on 08.07.1997. He stated that he had studied the case diary written by the previous IO. He stated that he made efforts to find complainant Amar Pal Singh Dhaka on 15.07.1997, but he could not be found. Similarly, injured Ashok also could not be found despite search. He stated that the instructions were left at their houses to come to the PS and give their statements. He stated that witness Ashok came to PS Civil Lines on 16.07.1997 and submitted his affidavit with his photograph pasted thereon. The said affidavit was identified as Ex.K10. PW-8 stated that he also recorded the statement of the injured on that day itself. He further stated that on 22.07.1997, complainant came to the PS and his statement was recorded. He further stated that on 24.07.97, he had received the postmortem report of deceased Inderpal Singh with all the papers of panchayatnama. On the same day, medical report of Ashok was also received. On 28.07.97, he alongwith his team had raided at the house of Satender Solanki but they could not be found and on 16.08.1997, he had received an application in the police station, written by Ram Pal Singh, Rajender Singh, Akhilesh, Bhupender and Omkar with their supporting affidavits.
SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 50 of 89 The investigation was thereafter taken up by SO Shyam Sunder. It is pertinent to note the observation of the Court regarding exhibiting of the affidavit of injured Ashok as Ex. K10 by PW8. It was observed that the affidavit can be proved by the witness himself and not by the IO and that this affidavit is not admissible to be read as evidence.
36. In his cross-examination, PW-8 stated that he had studied the slip of the CD prepared by the previous IO wherein it was remarked that complainant had enmity with Madan Bhaiya over contesting of elections and also with Sunil Moonch and others and that this information would be developed at a later stage. He further stated that injured Ashok had informed him on 16.07.1997 that he had told about the names of the two accused persons to the complainant. He further stated that complainant Amar Pal in his statement recorded on 22.07.1997 had stated that injured Ashok had told him about the names of the two accused persons on 21.07.97. He further stated that from the affidavits of Rampal Singh, Rajender Singh, Akhilesh and Bhupender, he came to know that accused Satender Solanki was present at Dayanand Nursing Home at the time of incident, for the treatment of his wife. He further stated that he also came to know that deponent Bhupender Kumar was a constable of UP Police who was deputed by the administration for the security of accused Satender Solanki. He stated that he had given his opinion in the last slip of the CD that the witness Ashok Kumar of the FIR who had given his affidavit, appears to be suspicious and needs to be examined later on. He stated that he never visited jail chungi in relation to the inquiry. He SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 51 of 89 further stated that during the course of inquiry, he had not met the doctors of Suri Nursing Home or of the medical college since he had not completed the investigation.
37. It is evident from the testimony of PW8 that the investigation was carried out by him in a most perfunctory manner. If he was aware of the observations of previous IO that the deceased had some enmity with Madan Bhaiya and Sunil Moonch over some election dispute, he ought to have carried out investigation in this regard, which admittedly he had not done. Also, if he had suspicion over the conduct of the witness Ashok who had submitted his affidavit on 16.07.97, then he ought to have investigated in that respect, instead of conducting a raid at the house of accused Satender Solanki on 28.07.97, which in the given facts of his deposition, appears to be only an eye wash. The IO seems to be a mouthpiece of the defence in having toed their lines in his cross-examination.
38. The next of the IO examined by the prosecution is PW5 SO B. K. Bhati. He stated that on 09.10.1997 when he was posted as SHO of PS Kankarkhera, the investigation of the present case FIR was handed over to him. He started the investigation from CD no. 22 and was aware that earlier the case was investigated by Ins. P.C. Pathak, SSI Ram Babu Singh, SSI Shyam Sunder and Ex-SO Kankarkhera Lala Ram Verma. On 12.11.97, he recorded the statement of complainant Amar Pal Singh Dhaka who told that accused Satender Solanki and Harender @ Billoo had killed his brother Inderpal Singh Dhaka at near Suri Nursing Home near Giri Nursery by indiscriminate SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 52 of 89 firing. Complainant also told that the accused persons had also fired a bullet on Ashok and that he was injured. He stated that on 14.11.97,he recorded the statement of injured Ashok Kumar who also gave the same information as given by the complainant and stated that he had also given an affidavit and a statement earlier and that he apprehends danger to his life. On 29.11.97, PW-5 conducted raid at the house of accused persons but they were not available. He stated that the status report on the proceedings u/s 82/83 Cr.PC was given on 02.12.97 and on 08.12.97, Hon'ble Allahabad High Court had summoned the CD and in pursuance thereof, he was present before the High Court on 09.12.97. He stated that the stay of arrest of accused Satender Solanki was rejected on 20.12.97 and he again raided their house. On 24.12.97, NBWs and 82/83 process was taken against the accused persons and raid was conducted but they could not be arrested. On 29.12.97 at about 1:30 am at forest Jatauli at Railway track, accused Harender @ Billoo was arrested and a pistol made in USSR of .30 bore with a magazine and live cartridge was recovered. PW-5 stated that one constable and head constable got injured and in this regard, case no. 478/97 was registered at PS Kankarkhera. He stated that efforts were made to arrest accused Satender Solanki and in this regard, a raid was conducted on 31.12.97 and also on 08.01.98. The sketch map prepared in respect of recovery of pistol with magazine from accused Harender @ Billoo was proved as Ex. K6.
39. In his cross-examination, PW5 stated that he is aware that accused Satender was a politician provided with a gunner. He stated that he did not record the statement of Bhupender and of Dr. SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 53 of 89 Sarojini Aggarwal during investigation because the eye witness and the complainant had informed him about the truth. He stated that he had not felt it necessary to verify the medical certificate of the wife of accused Satender and it is mentioned in the case diary dated 24.06.97. He stated that the investigation remained with him for the period 09.10.97 to 28.01.98 and it was not enough for him to have inquired anyone except the complainant and the injured regarding the incident. He denied the suggestion that accused Billoo was arrested from the residence of his sister at Govindpur, District Ghaziabad. He denied the suggestion that a licensed pistol and a license was recovered from the accused or that the license was torn. He denied the suggestion that the accused was produced without covered face. He stated that he has no knowledge whether the accused was not produced in the Court in covered face on 05.02.98 and 19.02.98 as he had carried out the investigation only till 08.01.98. He denied the suggestion that he had not carried out fair investigation and had filed a false charge-sheet against the accused persons.
40. The last of the IO's examined by the prosecution is PW4 SSI Lala Ram Sharma. He stated that he took up the investigation on 26.01.98 and had perused the CD prepared by the earlier IO. He stated that he recorded the statement of accused Satender Solanki on 27.01.98 in Jail after taking permission from the concerned court. He stated that he had preferred an application seeking police remand of accused, which was not granted by the Court. He stated that he had recorded the statement of complainant Amar Pal Singh Dhaka on 29.01.98 and that the accused Harender was identified by the witness SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 54 of 89 in identification parade. He identified both the accused present in the Court and stated that he had filed the charge-sheet u/s 302/307 IPC against the two accused and it is Ex. K5.
41. In his cross-examination, PW4 stated that he had not recorded the statement of injured Ashok in the present case. He volunteered by stating that the statement of injured Ashok was recorded by his predecessor IO. He admitted that the statement of complainant was also recorded by his predecessor IO. He stated that complainant in his statement recorded by IO of PS Civil Lines on 27.06.97, had not named any killer. He stated that the case was previously investigated by IO Shyam Sunder who started the investigation on 22.08.97 and that on 30.08.97, this IO had noted in the CD that those who have been named in the aforesaid case, is not based on true and correct facts and has been done due to some personal enmity or some other reason. He stated that he came to know after reading the case diary that on the date of incident, Ct. Bhupender was deputed for security of accused Satender. He also came to know that on 26.08.97, statement of Ct. Bhupender was recorded by IO Shyam Sunder wherein it was stated that on 24.06.97 from 9:30 to 11:00 am, he was with accused Satender Solanki at Dayanand Nursing Home. He further stated that an application was filed for the identification of accused Satender Solanki but it could not be completed since on the day of his remand, accused Satender appeared in the Court without covered face and at that time the complainant being present in the court, had identified this accused as the one involved in the incident and had told him about it. He stated SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 55 of 89 that complainant Amar Pal never went to jail for identification of accused Satender Solanki, but he identified him in the court of CJM on 29.01.98. He stated that during the course of investigation, he came to know that there were many cases of murder etc registered against deceased Inder Pal Dhaka at different police stations. He further admitted that the government had announced a reward of Rs. 50,000/- for tracing deceased Inderpal Dhaka. He further stated that he also came to know during investigation that accused Satender Solanki was a worker of Samajwadi Party and that he had contested elections for MLA on two occasions, one on the ticket of Samajwadi Party and the other of Janta Party from Barnawa Constituency.
42. Now, I shall take up the testimony of complainant PW1 Amar Pal Singh Dhaka for appreciation and to find out whether he had been coherent and cogent enough so as to tide over the lapses and lacunas in the investigation and in establishing the prosecution case against the accused persons beyond any shadow of doubt.
43. Complainant/PW-1 had stated that on 24.06.1997 at about 10:00 am he was going to District Court, Meerut from his house at Jagriti Vihar and after having crossed the Jail Chungi, when he reached near Phulwari Nursery before Suri Nursing Home, he saw his brother coming from the opposite direction in his Maruti Car no. UP 15E 7042 to whom he signaled to stop and his brother parked his car on the road side. PW-1 also parked his car on the road side and when he was about to alight from his car, he saw one scooter coming to a halt near the car of his brother and one Maruti Car had also stopped.
SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 56 of 89 PW-1 further stated that two persons who were on the scooter, came from behind and started firing towards his brother Inderpal from their respective weapons from the front window of the car. He stated that the persons sitting in the car had said to the two assailants that "Kam Ho Gaya Hai Chalo Bhag Lo". He further stated that the two assailants on the scooter and the others in the Maruti Car then fled towards the jail chungi. He stated that he immediately rushed towards his brother who had sustained multiple bullet injuries. He stated that he also saw Ashok, a resident of Dhikauli, on the seat adjoining the driver seat, having sustained a bullet injury. He further stated that with the help of passersby who had gathered near the spot, he took his brother Inderpal to the nearby Suri Nursing Home where his brother was declared as "brought dead". He further stated that he got the report lodged regarding the incident and this report was got written by him through one Tarun Kumar. He identified the report / his complaint on record as Ex. K1. He stated that this report was given by him in the police station from where he returned to the Nursing Home and took injured Ashok to Medical College, Meerut where he was got admitted and his X-ray etc was got done.
44. PW-1 further stated that after admitting injured Ashok, he again returned to the Nursing Home where he came to know that the body of his deceased brother Inderpal Dhaka has been sent for postmortem to the medical college. After the postmortem, he took the body of his deceased brother to his Village Dhikauli, PS Chandi Nagar where the last rite ceremonies were performed. He further stated that on 27.06.1997 he visited PS Civil Lines where the IO recorded his SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 57 of 89 statement and site plan was also prepared by visiting the place of incident. He further stated that from there, he went to his village Dhikauli and remained there in grief of his late brother. He stated that in the morning of 21.07.1997 he returned to his house at Jagriti Vihar and on the same date, in the evening, injured Ashok visited his house and told that he had identified the persons who had fired at him and at deceased Dr. Inderpal Dhaka, as Harender @ Billoo Solanki and Satender Solanki, both sons of Kishan Chand @ Kishan Singh and residents of Village Jiwana Guliyan, PS Binoli. PW-1 further stated that injured Ashok also told him that regarding the incident, he had given his statement to the police and had given the names of the two accused persons. PW-1 further stated that on 22.07.1997, he again gave his statement to the IO and informed whatever was told to him by injured Ashok.
45. In his further examination, PW-1 stated that since the accused persons were not arrested for many days, he gave an application to SP City for transfer of investigation to some other police station and in pursuance thereof, the investigation was transferred to PS Kankerkhera and his statement was again recorded by the IO on 12.11.1997 and of injured Ashok on 14.11.1997. He further stated that on 29.01.1998 when he visited the court of CJM, Meerut, he found 4-5 persons standing in the dock and one of them was identified by him as one of the two assailants who had fired at his brother. He stated that in this regard, he also gave an application to the CJM, Meerut and the same was identified on record as Ex. K2.
SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 58 of 89
46. PW-1 further stated that he received an intimation that he had to visit the jail for the purposes of test identification and that he visited the jail but identification proceedings could not be held due to elections. He further stated that on 09.03.1998, he again visited the jail for identification proceedings but it could not be conducted since the accused did not appear. Similarly, on 19.03.1998 the identification proceedings could not be conducted due to absence of the accused. He further stated that finally on 28.03.1998, he visited the jail and in the identification proceedings, identified accused Harender Solanki as the other accused / assailant. He further stated that it was after the date of incident, that he had seen accused Harender in the jail in identification proceedings. He identified accused Harender in the Court and also accused Satender whom he had identified in the CJM Court after having seen him at the spot on the date of incident. He further stated that the accused persons had fired from pistol type small weapons on the date of incident. He further stated that his native place is Village Dhikauli and the deceased Inderpal Dhaka, his younger brother, used to reside at Meenakashipuram, Meerut.
47. In his cross-examination on behalf of accused Satender Solanki, PW-1 stated that the Panchayatnama / inquest proceedings of his deceased brother were not carried out in his presence and he does not know either the time of its preparation or of the witnesses who were present at that time. He further stated that he also does not know when the body was sent for postmortem. He further stated that the crime case number is mentioned on the top of the Panchayatnama and the column of offence has been left blank. He further stated that in the SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 59 of 89 second line, the entry for the crime case number has been left blank. He further stated that the case was registered u/s 302 IPC and it was given in writing. He further stated that he had read the matter written on the chik, however, had not read the section which was mentioned therein. After seeing the chik, he stated that the case was registered u/s 302 IPC. He improved upon by stating that as there was one person who was injured in the incident, therefore, the case was registered for the offence u/s 302 & 307 IPC. He further stated that he has seen the original copy of the FIR on the judicial record and that the offence written therein is only Sec. 302 and not Sec. 307 IPC. He further stated that he has seen the original CMO letter wherein, again Sec. 302 IPC is mentioned. He further stated that he has also seen the original dead body challan form-13 and in column no.1 thereof, for the date and time of sending the body to the headquarter, only the date has been given. Even in column no. 2, only date is mentioned. He further stated that on the original photograph of the dead body which is on the judicial record, Sec. 302 IPC is only mentioned. PW-1 further stated that he is an advocate by profession, practicing in Meerut Court since 1992. He denied the suggestion that he had not lodged the report of incident prior to the filling of the Panchayatnama. He also denied the suggestion that he had not lodged the report prior to it as he was not present at the spot at the time of incident or that he was in the court when he received information about the incident. He further denied the suggestion that police had received his report after sending the dead body for postmortem.
SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 60 of 89
48. In his further cross-examination, PW-1 denied the suggestion that in the year 1992, his deceased brother had killed an advocate. PW-1 stated that one contractor was killed and his deceased brother was wrongly named. He further stated that it is not within his knowledge that his brother Inderpal Dhaka had killed one Hari Kisan Garg, an advocate practicing in Dehradoon Civil Court. He denied the suggestion that he is deliberately not telling the name of Hari Kisan Garg Advocate. He further stated that it is not within his knowledge that against the killing of Hari Kisan Garg Advocate in Dehradoon, the Bar Association had abstained from court work for two months. PW-1 stated that no challan in respect of bank robbery in Hyderabad was filed against his late brother. He stated that his brother was falsely implicated. He further stated that the crime case number of the challan filed at PS Sahaspur, Dehradoon was 172/1992 and in this case, his brother was on bail and that the charge-sheet after completion of investigation was filed in the court of CJM, Dehradoon where the case was pending at the time of incident. He stated that in this case, injured Deepak Juwail, an advocate by profession, was also an accused.
49. In his further cross-examination, PW-1 stated that one case in respect of firing at police party with no injury was registered at PS T.P. Nagar against his deceased brother and that the pistol of his brother was also seized in this case. He stated that this case was registered vide Crime No. 376/1992 for the offence u/s 307 IPC and another false case u/s 25 of Arms Act was also registered against his deceased brother at PS T.P. Nagar. He further stated that the licensed SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 61 of 89 pistol of his deceased brother was illegally seized by the police in this case. He denied the suggestion that with the case u/s 307 IPC registered against his late brother, another case u/s 25 of Arms Act was registered in the year 1992 at PS T.P. Nagar. He denied the suggestion that in the year 1993, one case bearing crime no. 372/1993 was also registered against his late brother. He stated that only two cases were registered against his brother, it may be in the year 1992 or 1993. PW-1 admitted that against his deceased brother, two cases, one for the offence u/s 307 and the other for the offence u/s 25 of Arms Act, were registered at PS Medical College. He stated that he cannot say whether the said cases were registered vide crime no. 292/1995 and 293/1995. He stated that these cases were false and were of 'no injury case' of firing on police party. He further stated that two cases, one u/s 307 IPC and the other u/s 25 of Arms Act were registered against his brother, however, he cannot say whether these cases were registered vide crime no. 75/1996 and 76/1996. He stated that the said cases were false and were of 'no injury case' as his deceased brother Dr. Inderpal Singh Dhaka was the Chief Election Agent in the election of Balbir Singh Dabathua, MLC and was supposed to remain present in the 'Pandal' at the time of counting as a Chief Election Agent on the day next to the day of incident, hence, was falsely implicated in order to prevent him to remain present.
50. PW-1 in his further cross-examination, stated that in the year 1996, his brother was challaned in a case of Gangsters Act and that he was on bail from the Court of Sessions. He stated that the charge of Gangsters Act was in addition to the charge u/s 307 IPC and SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 62 of 89 u/s 25 of Arms Act of the same day. He admitted that his brother was on bail in the aforesaid cases which were pending trial in the Courts. He stated that he does not know whether any history-sheet was opened in the police station against his deceased brother or that the number of case was 55A. PW-1 stated that the UP Government had not announced a reward of Rs. 50,000/- against his brother on 14.11.94. PW-1 volunteered by stating that his deceased brother had pursued Ph.D from Meerut University in the year 1993-1994. He denied the suggestion that the Director General, Police Headquarter, UP Government vide Circular no. 107/41/94 had announced a reward of Rs. 50,000/- on his late brother or that his brother was also added in the list of wanted criminals at Sl. No. 29 with reward of Rs. 50,000/-.
51. PW-1 in his further cross-examination, stated that his family had no concern with the party of former Prime Minister Late Chaudhary Charan Singh. He stated that the Parliamentary Constituency of Chaudhary Charan Singh was Baghpat and that Khekra constituency and Barnawa constituency fall under the Baghpat Parliamentary Constituency. He further stated that his deceased brother had contested the election as an independent candidate from the Khekra constituency against Madan Bhaiya and that they both were defeated in the elections. PW-1 stated that he does not know whether Satender Solanki had contested elections as a candidate of SP (Samajwadi Party) from the said constituency in the year 1996. He denied the suggestion that he is deliberately not telling the fact that accused Satender Solanki was a SP candidate from Barnawa constituency in the year 1993. PW-1 further stated that he does not SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 63 of 89 remember whether in the year 1993 Madan Bhaiya was elected as MLA two times from Khekra constituency. He also stated that he does not know whether both the times, Madan Bhaiya had contested the elections from the Samajwadi Party. He further stated that he also does not know whether accused Satender Solanki had contested the elections as a candidate of Janta Dal Party from Barnawa constituency. He denied the suggestion that he is knowingly not stating the true facts. He further stated that it is not within his knowledge that in the year 1991, accused Satender Solanki was the State General Secretary of Janda Dal (Yuva), UP. He denied the suggestion that he knows accused Satender Solanki from his student days or is knowingly not disclosing the true facts. PW-1 further stated that it is not within his knowledge that in the year 1995, accused Satender Solanki was designated as the President of Janta Dal (Rasheed Masood) Party. PW-1 stated that recently he had contested elections of District Panchayat Member. He stated that Mulayam Singh has been a Chief Minister of the State of UP, however, it is not within his knowledge that he was the CM even in the year 1994 and that in the said year, accused Satender Solanki was the Chief Convener of the rally organized at Baraut for the Chief Minister.
52. PW1 in his further cross-examination stated that on the date of incident, he had left his house for the Court before 10:00 am and that the District Court is on the North Side of Jagriti Vihar and is at a distance of about 6 km. He further stated that jail chungi is on the way from his house to the court. He stated that to reach District Court from his house, one has to take the University Road which merges on SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 64 of 89 the Mall Road. The place of incident was at a distance of ½ km from the jail chungi chowk towards Mall Road and the road from jail chungi chowk goes straight to the mall road chowk / crossing. He further stated that Mawana Stand also falls on this road and one road from jail chungi chowk/ crossing via Victoria Park leads to the eastern gate of District Court from at in front of Police Line. He further stated that the eastern gate of District Court is at a distance of about 2 km from the jail chungi crossing. He denied the suggestion that the distance is only of 1 km. PW-1 further stated that the jail chungi chauraha (crossing) is a busy chauraha. He again stated that it is not that busy chauraha and that two police constables generally man it to control the flow of traffic. He denied the suggestion that there is a police picket for 24 hours at the jail chungi chauraha. He stated that the jail chungi crossing is in the city and that there are many shops nearby, however, he does not know whether or not there is any residential colony near the shops. PW-1, however, admitted that it would not be incorrect to say that there is a residential colony on the backside of the shops. PW-1 further stated that his brother Inderpal Dhaka used to reside in Meenakshipuram colony which is located on the North-Eastern side of the jail chungi crossing at a distance of about 2 km. He stated that he alone had left his house in his maruti car. He stated that he cannot say from where his brother was coming. He again said that he was coming from his home in a car, the number of which is UP 15E 4072. He again said that the number is 7042 and this car may be of Professor P.N. Singhal. He stated that P. N. Singhal was away and was not in and around the place of incident on the given day. He further stated that the car in which his deceased brother was coming was seized by the police. He SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 65 of 89 stated that he had not filed any application for taking the said car on superdari. He stated that he does not know whether or not wife of P.N.Singhal had given any application for superdari. He stated that he does not know who had got the said car released on superdari. He further stated that his deceased brother used to occasionally exchange his car with the car of P.N. Singhal.
53. PW-1 in his further cross-examination, stated that it is not within his knowledge that before the date of incident, one Dr. Chetan Khanna was murdered in the day time in Chetan Medical Complex, Meerut. He further stated that he also does not know whether or not P.N.Singhal remained in jail in respect of this murder. He further stated that he also does not know whether the car was in the name of P.N.Singhal. He denied the suggestion that he is deliberately not disclosing the true facts in this regard.
54. In his further cross-examination, PW-1 stated that there remains traffic on the Meerut Medical University Road, however, it is not a heavy traffic. He denied the suggestion that there remains heavy traffic on this road. He further stated that for the first time, he had seen the car of his brother at a distance of about 25-30 yards. He stated that the road from the place of incident goes in the North-South direction. He further stated that there is a medical store in the premises of Suri Nursing Home, however, he is not sure whether its door opens in front of the road or not. He further stated that he cannot say whether or not there are tea stalls / kiosks outside Suri Nursing Home. He further stated that Meerut College is on the South direction SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 66 of 89 of the place of incident. He further stated that he was coming from south to north and that after taking a turn, he had parked his car on the same direction of the road side where his brother had parked his car. He stated that there was a distance of 3-3½ meters between his car and the car of his deceased brother. He stated that the car of Inderpal was towards eastern-northern side from his place. He further stated that when the car of Inderpal had stopped, immediately the accused persons came on a scooter. He stated that at that time he was about to come out of his car and one of his legs was out of the car. He further stated that when the gunshots were fired, his deceased brother was on the driver seat and that the gunshots were fired from the front windows and not from the front of the car. He further stated that about 14-15 shots were fired and when the shots were being fired, he came out of his car and kept standing near the window of his car for about a second. He further stated that vehicles were passing through the spot when the gunshots were being fired. He further stated that passersby on the bicycles, scooter, rickshaw and some pedestrians had stopped at the spot at the time of incident, 3-4 were standing on one side and 3-4 on the other side of the road. He further stated that he had not noticed whether or not the doctors or nurses from the nearby Suri Nursing Home also came out at the time of incident. He stated that the incident took place within half a minute. He further stated that after the accused persons had fled away, about 10-15 persons gathered at the spot. He stated that he did not notice whether or not doctors or nurses from the nearby Suri Nursing Home also gathered at the spot. He stated that he did not notice blood in the car. He further stated that blood was oozing out from the body and might have dropped in the car SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 67 of 89 and its seat. He further stated that not much blood was oozing out of the body at that time. He further stated that Suri Nursing Home was at a distance of about 50-60 yards from the place where the car of his deceased brother was stationed. He further stated that he took out his deceased brother from the car on a stretcher with the help of some passersby and staff. He further stated that he took his brother on the stretcher to the emergency ward of the Nursing Home. He further stated that he shifted his brother on to the stretcher by holding him from his legs, hands and head. He stated that injured Ashok was also taken on a stretcher. He stated that he did not notice whether there was blood on the seat where injured Ashok was seated in the car. He further stated that he also did not notice whether there was any bullet mark on any of the windows of the car or that any glass of the car was broken or not. He further stated that he had noticed one bullet mark on the upper portion of the car on the side where injured Ashok was seated. He denied the suggestion that injured Ashok after sustaining a gunshot injury, had gone to the hospital on his own. He denied the suggestion that the injured Ashok was taken to the hospital on a stretcher.
55. In his further cross-examination, PW-1 stated that he does not know whether any document was prepared at Suri Nursing Home in respect of admission of injured Ashok. He further stated that he remained in the Nursing Home for about 8-10 minutes and that the doctors in the Nursing Home have declared his brother dead within 2-3 minutes of his admission. He further stated that injured Ashok was kept in the same room of the Nursing Home where his deceased brother SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 68 of 89 was kept, however, he cannot say whether it was the operation theater or not. He further stated that when he had got admitted his deceased brother in the Nursing Home, police had not reached and that police also did not reach the Nursing Home in his presence. He further stated that Police Station Civil Lines was in the North-West direction of Suri Nursing Home and at a distance of about 1¼ km. He further stated that he alongwith Tarun Kumar and 1-2 more persons had gone to the police station in his car from Suri Nursing Home and that he does not remember the name or the physical description of the said persons. He further stated that Tarun Kumar is an advocate by profession and that he had got prepared the report / complaint from Tarun Kumar at the Nursing Home itself. He further stated that Tarun Kumar had met him in the Nursing Home itself, however, it is not within his knowledge that Tarun Kumar was a resident of Kankarkhera from the very beginning. He stated that he is aware that Kankarkhera colony is at a distance of about 5-6 km in north-west direction from the Suri Nursing Home. He further stated that they remained in the police station for about 5-10 minutes. He denied the suggestion that he had lodged his complaint / report in the police station at the instance of the police officials after the body was sent for postmortem. He stated that he returned to the Nursing Home from the police station and noticed two constables standing near the car of his deceased brother. He denied the suggestion that all the senior police officials were present when he again visited Suri Nursing Home. He further stated that the Medical College is at a distance of about 2 km from Suri Nursing Home. He further stated that after lodging the report, when he had again visited Suri Nursing Home, he stayed there for about 15-20 minutes. Till this SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 69 of 89 time of his stay in the Nursing Home, neither any police inspector nor any senior police official visited the nursing home. He further stated that when he had shifted injured Ashok in his car, then the car of SP City had reached, however, he had not told about the murder to SP City. He further stated that when he was at Suri Nursing Home, injured Ashok was not given treatment and the doctors kept discussing with him about his treatment. He stated that he does not remember whether or not he had given his consent for the treatment of injured Ashok at Suri Nursing Home. He further stated that injured Ashok was in a bad condition. He stated that he had seen the gunshot wound of injured Ashok. He stated that as per his assessment, injured Ashok was in need of immediate medical aid. He further stated that he got the injured admitted in the medical college at about 12:40 pm. He stated that he took the injured in his car to the medical college from Suri Nursing Home and that the two constables who were standing near the car of his deceased brother,had accompanied him to the hospital. He denied the suggestion that the two constables did not accompany him or that he on his own, had got admitted injured Ashok to the hospital. He stated that he did not tell the doctor as to how injured Ashok had sustained the gunshot injury, however, he had told about the registration of FIR at PS Civil Lines. He further stated that it is not within his knowledge that the memo of admission of injured Ashok was sent to Police Station Medical College, Meerut by the concerned doctor. He further stated that he remained with injured Ashok in the medical college, Meerut for about 20-25 minutes and during this period Ashok was able to reply only one or two things and was not completely conscious. He denied the suggestion that the injured was fully SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 70 of 89 conscious or that he was freely talking to him. He stated that only the two constables remained with him in the medical college till the time of his stay and that no other police official had visited the medical college. He further stated that he does not know till which date, injured Ashok remained admitted in the medical college, however, injured Ashok had told him that he remained admitted till 30.06.1997. PW-1 was shown Dainik Jagran Newspaper dated 25.06.1997 wherein in one of the photos printed at page '3' thereof, injured Ashok was seen standing with police officers. PW-1 stated that the said person appears to be injured Ashok but it is not much clear from the photograph.
56. In his further cross-examination, PW-1 stated that his Village Dhikauli is about 40-50 km away from Meerut. He stated that he is aware that witnesses to the Panchayatnama were of his village and that they had met him in the medical college at the time of postmortem. He further stated that at the time of incident, his brother Inderpal had his own car and he too had his own car. He further stated that neither he nor his deceased brother were income tax payee, however, they used to file income-tax return. He further stated that they were three brothers and that he is the eldest, deceased Inderpal was youngest to him and the third brother Harender, youngest to all, is a farmer in the village. He further stated that they all brothers had 60-65 bighas of land.
57. PW-1 further stated that he does not know whether accused Satender Solanki was State Secretary of Samajwadi Party in the State of UP in the year 1994. He further stated that he also does SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 71 of 89 not know that accused Satender was holding the said post on the date of incident as well. He stated that it would be incorrect if it is said that injured Ashok had disclosed to him about the killers of his deceased brother Inderpal Dhaka as the two accused persons prior to 21.07.1997. He further stated that he does not remember the date of the Tehrvi of his deceased brother but stated that it comes within 13 days of the death. He further stated that he had gone to Meerut on 27.06.1997 but did not visit the medical college to inquire about the condition of injured Ashok, however, the villagers kept on taking information regarding his health. He stated that the relatives of injured Ashok might have stayed in the hospital during the period 24.06.1997 to 30.06.1997. He stated that he had seen the relatives of injured Ashok at the time of postmortem. He further stated that for the period 27.06.1997 till 21.07.1997, he never visited Meerut. He denied the suggestion that he had appeared in his cases in the Meerut Court in the first, second or third week of July, 1997. He further denied the suggestion that he had got prepared the affidavit of injured Ashok which was submitted with the investigating officer on 15.07.1997. He denied the suggestion that he had met the senior police officials in respect of this case in the month of July 1997 and before 21.07.1997. He also denied the suggestion that he had regularly met injured Ashok prior to 21.07.1997. He further denied the suggestion that he knows both the accused Harender and Satender Solanki much prior to the incident. He stated that he had met the IO on 26.08.1997, however, denied the suggestion that he had requested the IO to give him 2-3 days time to give his statement. He stated that the IO did not inquire from him about injured Ashok. He further stated that he does not SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 72 of 89 remember whether or not he had met the IO on 30.08.1997. He denied the suggestion that on 30.08.1997, he had again refused to give his statement u/s 161 Cr.PC to the IO of the present case or that had again requested him to give some more time. He stated that he had given his statement four times to the IO of the case. He stated that in his statement dated 27.06.1997, he had not given name of any accused to the IO. He stated that in his statement given to the IO on 22.07.1997, he had not told the IO that he can identify the accused persons if produced before him. He stated that he does not know when accused Harender @ Billoo was arrested by the police. He stated that he came to know of his arrest from the newspaper. He further stated that he came to know from the newspaper that accused Harender @ Billoo was arrested by police of PS Kankarkhera. He stated that he does not remember till how long, accused Harender remained in jail. He stated that he cannot say whether accused Billoo was sent to jail on 29.12.1997, however, it is known to him that accused Billoo remained in jail till he was granted bail. He stated that he is aware of the police remand proceedings of accused Satender Solanki in the Court of CJM, Meerut and that he had perused the police remand proceedings. He stated that he does not know whether accused Harender was produced in uncovered face on 05.02.1998 and 19.02.1998 before the Court of CJM. He further stated that he is also not aware that on 12.02.1998, accused Harender had preferred an application before CJM that he was not produced in covered face from the jail. He further stated that when he had seen accused Satender Solanki in the Court of Ld. CJM, he was in uncovered face and that the ld. CJM did not ask him for identification of the accused. He further stated that he never SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 73 of 89 visited the jail for identification of accused Satender Solanki. He further stated that accused Satender Solanki remained in jail for about 15 days before being granted bail. He further stated that he does not know whether accused Satender Solanki was produced 2-3 times before the Ld. CJM from the jail and that he was produced in uncovered face. He further stated that he does not know that accused was provided with a gunner for his security by the administration. He stated that the name of the gunner was Bhupender Kumar. He stated that he does not know that Satender Solanki was not produced in covered face on 23.01.1998. He further stated that he had identified accused Harender @ Billoo in the jail on 28.03.1998 after the date of incident. He denied the suggestion that he had not seen the incident or that he had falsely implicated accused Satender Solanki and his brother due to their support to Madan Bhaiya in the Assembly Election against the deceased Inderpal Dhaka. He also denied the suggestion that he did not lodge the report within time or that both the accused were known to him much prior to the date of incident. He further denied the suggestion that after arrest of accused Harender @ Billoo by police of PS Kankarkhera, he was shown in the police station to him (complainant). He further denied the suggestion that accused Harender @ Billoo was seen by him during his remand in the Court of Ld. CJM while he was being sent in covered face from the jail. He denied the suggestion that accused Satender Solanki and his brother Billoo Solanki were not present at the spot at the time of incident or that accused Satender Solanki was present alongwith his security guard at Dayanand Nursing Home for the treatment of his wife. He denied the suggestion that at the time of incident, Rampal, Rajender Singh, SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 74 of 89 Akhilesh and Omkar had met Satender Solanki at the Nursing Home. He stated that it is known to him that Omkar Yadav is now the elected Chairman of District Panchayat, Baghpat.
58. In his cross-examination on behalf of accused Harender @ Billoo, PW-1 stated that in respect of a murder which took place in Hira Lal building, deceased Inderpal and one Rajender named in the murder, were sent to jail and were later released on bail. In this regard, report was registered at PS Lal Kurti and that the case was later on disposed of.
59. As is apparent from the testimony of complainant / PW-1 Amar Pal Singh Dhaka, the defence has challenged it on the following grounds:-
(a) that he being the brother of the deceased and having enmity with the accused persons, is a related and an interested witness and as such, his testimony in the absence of any other independent evidence, cannot be believed and relied upon;
(b) that there are discrepancies in the documents viz the panchayatnama Ex. K9, the sample seal Ex. K15, the CO report Ex. K16, the RI report Ex. K17 , the form-13 Ex.
K18 of the receipt of the body for postmortem and the photograph Ex. K19 of the deceased, of the nature of non- mentioning of the FIR or of the complete offences i.e. u/s 302/307 IPC. These discrepancies create considerable doubt that the complaint Ex. K1 was registered later on and the complainant was introduced as a witness to the incident SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 75 of 89 by the police;
(c) that the deceased Inderpal Dhaka had criminal antecedents and as such, was having many known and unknown enemies and it was a fallout of his criminal background, that he was murdered by unknown assailants.
(d) that the description of the injuries as noted in the postmortem report Ex. K3 of the deceased also materially contradicts the testimony of the complainant;
(e) that the identification of the accused persons by the complainant is unbelievable and unreliable. Whereas, accused Harender @ Billoo was produced in judicial custody in uncovered face on many hearings and it in itself gave sufficient time to the complainant to identify him in the test identification proceedings. Accused Satender Solanki, on the other hand, after his surrender before the Court, was produced in uncovered face and as such was identified by the complainant at the instance of police officials. The complainant made a false application Ex. K2 which was never put up before the Ld. CJM for any orders thereon.
60. Who an interested witness is and how his / her testimony is to be read and analyzed, this issue came up before the Hon'ble Supreme Court of India in Raju @ Balachandran and Ors vs. State of Tamilnadu, (2012) 12 SCC 701. In this case, the issue was whether PW5 Srinivasan, a related and interested witness, is believable that his brother and his mother were murdered by the appellants. In this context, Hon'ble Supreme Court referred to its earlier decision rendered in State of Rajasthan vs. Kalki, (1981) 2 SCC 752 wherein while explaining what is the difference between a related witness and SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 76 of 89 an interested witness, it was observed that 'related' is not equivalent to 'interested'. Related is when the witness has some relation with the deceased i.e. the deceased may be the father, mother, husband, wife, brother, sister etc. The related witness becomes interested only when he or she derives some benefit from the result of a litigation i.e. in seeing an accused person punished. It was observed that a witness who is a natural one and is the only possible eye witness in the circumstances of the case, cannot be said to be interested. Reference was also made by the Hon'ble Apex Court to its earlier judgment rendered in Dalip Singh vs State of Punjab, AIR 1953 SC 364 wherein it was observed that "a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth". It was further observed that "each case must be judged on its own facts and the observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts".
61. Hon'ble Supreme Court in the given context, had then observed that "we are concerned with four categories of witnesses-a third party disinterested and unrelated witness (such as a bystander or passer-by); a third party interested witness (such as a trap witness); a related and SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 77 of 89 therefore an interested witness (such as the wife of the victim) having an interest in seeing that the accused is punished; a related and therefore an interested witness (such as the wife or brother of the victim) having an interest in seeing the accused punished and also having some enmity with the accused. But, more than the categorization of a witness, the issue really is one of appreciation of the evidence of a witness. A Court should examine the evidence of a related and interested witness having an interest in seeing the accused punished and also having some enmity with the accused with greater care and caution than the evidence of a third party disinterested and unrelated witness. This is all that is expected and required".
62. Going through the evidence of PW-1 by applying the discerning scrutiny standard, it is evident that the description of the incident is simple and straightforward and the cross-examination did not demolish his version of events on any material terms. One of the undisputed fact that has emerged from the testimony of the complainant is that though he was a native of village dhikauli, however, he used to reside in Meerut at Jagriti Vihar where he has his house. It is also undisputed that complainant was a practicing advocate, practicing in the District Courts at Meerut. It was on account of the complainant being a resident of a place which was near to the District Court where he was practicing, that he was able to give a detailed account as to which of the routes one has to take to reach the District Court from Jagriti Vihar. The defence made an attempt to contradict him that the route taken by him on the date of incident could not have been the route where the spot was situated. The complainant stood his ground and was able to repel in a coherent and cogent manner, all the suggestions given to him by the defence of the various routes SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 78 of 89 leading to the District Court. PW-1 was also consistent when the defence had tried to discredit him on the ground of the accused persons being previously known to him. Though, the defence had taken up a plea that the accused persons are well known personalities in the vicinity of the locality / village of the complainant and that one of them i.e. accused Satender Solanki had also contested Assembly Elections from a nearby Constituency, still they were not able to extract anything contrary to the consistent stand of the complainant that the accused persons were not previously known to him. Even if it is to be believed that the accused persons had some political background and that too in an area close to the place where the complainant resides, it in itself would not be a ground to doubt the testimony of PW-1 as mere political background of the accused persons and of the deceased or of the complainant as well, cannot be said to be a pointer to the fact that the complainant had some enmity with the accused persons. The cross-examination of the complainant failed to bring out anything to show that the complainant or his deceased brother had some hostility towards the accused persons and for this reason, the complainant had falsely named them as the two assailants who had murdered his brother. In fact, the suggestions given to the complainant may be taken as a pointer that the accused persons, being themselves politically active in and around the same area where the deceased was projecting himself as an independent candidate, were inimical to the deceased, considering him as a threat to their political existence. Also, had there been any motive with the complainant owing to some enmity, to falsely name the accused persons, he would not have shied away from furnishing their names in SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 79 of 89 his complaint Ex. K1 itself. Also, if the investigating officers were under some pressure of the complainant, it would not have resulted in serious lapses, that too appearing to be deliberate, in the carrying out of the investigation. In fact, the investigation as carried out is a pointer that the investigating officers have failed in their duty to carry out fair investigation. Had the investigation been carried out in a fair manner, the first IO ought to have immediately got the spot photographed including the car which was used by the deceased. The car which was a material piece of evidence was left out not only by the first IO but also by the other IO's who had followed up the investigation. Even the empty cartridges which were seized from the spot and those which were recovered from the body of the deceased were never sent for forensic examination. No attempts or efforts were made by any of the IO's to search for the weapon of offence. Even when a weapon was recovered from the possession of accused Harender @ Billoo, that too was not sent for forensic examination so as to connect it as a weapon of offence in the present case. The blood stained earth sample was also not collected. None was joined from the nearby Suri Nursing Home where the complainant had immediately rushed his deceased brother and injured Ashok for necessary medical aid. These lapses as have been noted to be more deliberate rather than negligent, have made difficult the path of the complainant, as a witness to the incident, to establish that it was the accused persons who in furtherance of their common intention have murdered his brother by indiscriminate firing.
63. As to the contention of the ld defence counsel that the ocular evidence of the incident as projected by the prosecution through SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 80 of 89 the testimony of the complainant / PW-1 Amar Pal Singh has been rendered unbelievable by the medical evidence, again it has no force. What the complainant / PW-1 had deposed is that the two accused persons had fired indiscriminately at his brother from the front window of his side. The resultant injuries as are observed on the body of the deceased in the postmortem report Ex. K3 are not only suggestive but are also corroborative of the version of the incident as presented by the complainant. If the firing by the two assailants would be from the front window to the side of the driver, the injuries would definitely be the injuries as shown on the body of the deceased in the PM report. Merely because blackening or tattooing has not been noticed by the doctor conducting the postmortem in his report, it in itself cannot be said to doubt the testimony of the complainant, which otherwise as already noted, is cogent and coherent.
64. The other issue taken up by the defence has been on the aspect of the test identification of both the accused persons. Admittedly, when the complaint Ex. K1 was lodged by the complainant on the date of incident itself, he had not named the assailants, however, had stated that he can identify them, if shown to him. The lapse in not recording the statement of injured Ashok was on the part of the first IO / PW-11A Ins. P.C. Pathak who had given an absurd explanation that he remained busy in other official work. Admittedly, injured Ashok remained admitted in the government medical college till 30.06.1997 and the first IO did not bother to contact him within this period. Had the injured been examined in this period itself, the identity of the assailants would have been established. Nonetheless, for the SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 81 of 89 apathy shown by the investigating officers, the injured on his own had gone to give his statement in the form of affidavit which was submitted with the IO on 16.07.1997. Despite that, the IO did not make efforts to immediately apprehend the accused persons or to locate their whereabouts. Instead, the IO had noted in the case diary that he disbelieves the version of the incident as presented by the complainant and the injured. It was only by the IO PW B. K. Bhatti that accused Harender @ Billoo came to be arrested on 29.12.1997, almost six months after the incident. Not only that, the record shows that the delay in conducting of the Test Identification Parade of accused Harender was more because of him than the complainant. Thus, mere assertions by accused Harender before the Magistrate that his photographs were taken by the IO or that he was shown to the witness, in itself are not sufficient to doubt his identification by the complainant. As to the identification of accused Satender, admittedly before he could be arrested in pursuance of the proclamation proceedings initiated against him, that he had surrendered himself before the Court of Ld. CJM, Meerut in January 1998. When there was already a plea on behalf of his staff and known persons that he was present at Dayanand Nursing Home for the treatment of his wife on the date of incident, the accused ought to have taken the precautions himself by surrendering in covered / muffled face and also recording his plea before the Ld. CJM to direct the Jail Authorities to produce him in covered face till his test identification is carried out. Admittedly, it was not so done and when he was present in uncovered face in the court of Ld CJM, that the complainant had identified him as one of the assailants and had immediately brought to the notice of the concerned Court of the fact of SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 82 of 89 his having been produced in uncovered face. Even if the original record of the jail regarding the directions for the accused to be produced in covered face, was not produced, it having been weeded out, still the prosecution managed to prove the same by examining PW16 Ct. Ramesh Chand and PW17 SI Iqbal Singh. Both of them have specifically deposed that on 28.01.1998 accused Satender Solanki was sent before the Ld. CJM, Meerut in covered face and in this regard, GD no.6 was recorded by PW-17. The original of the said GD was stated to have been destroyed according to rules, however, the copy thereof prepared in the hand of PW-17 was proved as Ex.K26. Once the witness who had prepared the said entry identifies his writing and signature on its copy, the copy stood duly proved by the prosecution. The burden was then upon the accused to prove otherwise that his production before the Ld. CJM was without covered face. Admittedly, no evidence was brought on record by the defence except of cross-examination of the concerned prosecution witnesses. Despite the cross-examination, the witnesses i.e. the complainant, PW16 and PW17 have stood their ground.
65. Even if the identification of the accused persons by the complainant during investigation is not to be believed, still their identification by the complainant in the Court is otherwise convincing and believable. The complainant, as already noted, had given a coherent account of his having seen the two assailants (the accused persons) firing indiscriminately at his brother. The way and the manner the incident had happened, the identity of the assailants must have been permanently etched into the mind of the complainant and SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 83 of 89 therefore, he had identified them even in the Court, when they were present during the course of trial. Reference in this regard can be made to the judgment of Hon'ble Supreme Court of India in Simon & Ors vs. State of Karnataka (supra) wherein it was held that "evidence of mere identification of an accused person at the trial for the first time is from its very nature inherently of a weak character. The purposes of a prior test identification is to test and strengthen the trustworthiness of that evidence. Courts generally look for corroboration of the sole testimony of the witness in Court so as to fix the identity of the accused who are strangers to them in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. Whether the identification of an accused for the first time in Court in absence of any test identification parade can be made the basis of the conviction depends upon the facts and circumstances of the case. No hard and fast rule can be laid down. The aspect of identification parade belongs to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. Mere failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. What weight is to be attached to such identification is a matter for the Courts of facts to examine. In appropriate cases, it may accept the evidence of identification even without insisting on corroboration. However, this principle will apply to the case of total strangers. The question of identification arises when the accused are not known"
66. Another issue raised in the present case by the defence is of the registration of FIR and of its consequent reporting to the senior police official and the concerned court of CJM. Admittedly, FIR in SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 84 of 89 the present case came to be registered on 24.06.97 and whereas, the copy thereof was sent to the CO on the next day i.e. 25.06.97, the same was sent to the CJM only on 02.07.97. Though there is inordinate delay in sending the intimation, however, as already noted in the testimony of PW11A Ins. P. C. Pathak, this lapse was on his part and his conduct in this regard has been reckless in carrying out the investigation. Whether these omissions and the lapses on the part of the investigation can render the testimony of complainant unbelievable and unreliable, when otherwise the complainant has been cogent and coherent, the answer to this has to be in the negative otherwise it would have the effect of resulting in the miscarriage of justice. In this regard, I may gainfully refer to the judgment of Hon'ble Supreme Court of India in Dhanaj Singh @ Shera and Ors vs State of Punjab, Appeal (crl.) 941 of 2003 decided on 10.03.2004. It was observed that "the plea that the primary duty to investigate the evidence is that of the police and when the police has given clean chit, that should prima facie be accepted is clearly without substance. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective". While so observing, Hon'ble Supreme Court referred to its earlier judgment cited as Paras Yadav and Ors. v. State of Bihar, 1999 CriLJ 1122 wherein it was held that "if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 85 of 89 or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party". Reference was also made to the judgment cited as Ram Bihari Yadav v. State of Bihar and Ors., 1998 CriLJ 2515 wherein it was observed that "if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law enforcing agency but also in the administration of justice".
67. As to the non-mentioning of the FIR number or of the offence on the panchayatnama / inquest proceedings, again it cannot be said to be a material contradiction so as to discredit the testimony of the complainant. Even if the column pertaining to the FIR and to the offence was left blank or was partially filled in the inquest proceedings Ex. K-9 by the concerned IO, still there was a specific mention of the complainant's name therein. Also, the purpose of inquest proceedings is to record the apparent cause of death describing the wounds as may be found on the body and also the weapon or instrument by which they appear to have been inflicted and this has to be done in the presence of two or more respectable inhabitants of the neighbourhood. The section does not contemplate that the manner in which the incident took place or the names of the accused should be mentioned in the inquest report. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely whether it is suicidal, homicidal, accidental or by some machinery, etc. The scope and SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 86 of 89 purpose of Section 174 Cr.P.C. was explained by Hon'ble Supreme Court of India in Podda Narayana & Ors. v. State of Andhra Pradesh AIR 1975 SC 1252 wherein it was held that "the proceedings under Section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report. It is therefore not necessary to enter all the details of the overt acts in the inquest report. Their omission is not sufficient to put the prosecution out of Court."
68. One of the defence has also been of the plea of alibi raised in respect of accused Satender Solanki. Through the examination of the two defence witnesses, one a security guard and the other the driver of accused Satender, defence made an attempt that at the time of incident, accused Satender was away to Dayanand Nursing Home for the treatment of his ailing wife and that he remained there for the time intervening 9:30 am to 11:00 am on 24.06.97. The plea of alibi being based on the illness of the wife of accused and her consequent examination by a doctor of one Dayanand Nursing Home, the cogent evidence would have been the doctor, the wife and the supporting medical documents. Admittedly, neither these witnesses nor any such document to substantiate the claim of the plea of alibi, was SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 87 of 89 examined or brought on record by the defence. It was held by the Hon'ble Supreme Court of India in Binay Kumar Singh & Ors vs. State of Bihar (supra) that "an alibi is not an exception envisaged in the IPC or any other law. It is only a rule of evidence recognized in Sec. 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden, it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence". The principle of law as laid down, if applied to the facts of the present case leads to the only conclusion that the defence failed miserably in establishing the plea of alibi.
69. In view of the foregoing discussion, I have no hesitation to hold that the prosecution has established beyond any iota of doubt that accused Harender @ Billoo Solanki and his brother Satender Solanki in furtherance of their common intention, had committed murder of deceased Inderpal Dhaka and had also attempted to murder injured Ashok. They are, thus, held guilty of the offence punishable u/s 302/307 r/w Sec. 34 IPC.
SC No.54/18 (Old ST no. 559/99) Case No.442/18; FIR No.317/1997 State vs. Harender Solanki & Anr. Page No. 88 of 89 CONCLUSION
70. Accused Harender @ Billoo Solanki and accused Satender Solanki are convicted of the offence punishable u/s 302/307 r/w Sec. 34 IPC.
Copy of this judgment be provided free of cost to the convicts and they be separately heard on the point of sentence.
Announced in the open Court (SATISH KUMAR ARORA)
on 29th April, 2019 ASJ-02/FTC, PHC/NDD
29.04.2019
SC No.54/18 (Old ST no. 559/99)
Case No.442/18; FIR No.317/1997
State vs. Harender Solanki & Anr. Page No. 89 of 89
(xiv)
SC No.54/18 (Old ST no. 559/99)
Case No.442/18; FIR No.317/1997