Delhi District Court
Sc No.44765/2015:Fir No.81/2009:Ps ... vs Sonu Gupta @ Raju & Ors. Dod: 17.07.2021 on 17 July, 2021
SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE-03:
(NORTH-EAST): KARKARDOOMA DISTRICT COURTS: NEW DELHI
ELEVEN YEARS' OLD CASE
(Sessions Case No.44765/2015)
State V/s Sonu Gupta @ Raju & Ors.
FIR No. : 81/2009
U/s : 307/186/353/394/397/411/34 IPC & 25/54/59 Arms Act
P.S. : Nand Nagri
(i) Sonu Gupta @ Raju,
S/o Shri Radhey Shyam,
R/o A-56, DLF Dilshad Colony, Sahibabad,
Ghaziabad, Uttar Pradesh.
(ii) Santosh @ Pappu Yadav,
S/o Shri Seeta Ram,
R/o B-2/352, Nand Nagri, Delhi-110 093.
State V/s (iii) Mohd. Imam @ Imamuddin,
S/o Mohd. Yunus,
R/o B-2/85, Nand Nagri, Delhi-110 093.
(iv) Sabir @ Bada Raju,
S/o Shri Nathhu Khan,
C/o Chhiddan Ka Makan,
Shiv Vatika, Behta Hajipur,
District Ghaziabad, Uttar Pradesh.
Date of institution of case : 07.01.2010
Date of hearing final arguments : 16.07.2021
Date of pronouncement of judgment : 17.07.2021
JUDGMENT
BRIEF FACTS OF THE CASE:
The facts of the case in brief, as borne out from the record are that on the intervening night of 12/13.03.2009, Head Constable Onkar Singh was on night emergency duty in the area of Police Station Nand Nagri. He was patrolling in the area riding his personal motorcycle bearing Registration No.HR26M/5839. While patrolling, at about 12/12.30 AM when he reached near "Pehalwan Dhaba" in front of Shop No.18, Singh Telecom Centre, DDA Market, B-1 Block, Nand Nagri, he noticed four persons consuming liquor in a park, just behind the said dhaba. When he confronted the said persons with consuming liquor in the public park, they became All Accused persons "Acquitted" Page 1 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 furious and started assaulting him and in the process hit him on his face and head with a baseball bat and brick; tore off his police uniform; robbed his service revolver and five (5) live cartridges as also his wallet containing cash and other belongings. One public person namely Bhim Singh, who was strolling in the area after taking his dinner happened to witness the incident and screamed for help, pursuant whereto the said persons fled from spot/scene of crime (SOC). On hearing the screams of Bhim Singh, Chowkidar of the area also arrived at the spot/SOC. In the meantime, somebody made a call at number 100, pursuant whereupon PCR van arrived at the spot/SOC and took injured Head Constable Onkar Singh to Guru Teg Bahadur Hospital (GTB Hospital) for medical treatment.
2. In the meantime, pursuant to receipt of DD No.81B (dated 13.03.2009), ASI Rambir Singh alongwith Head Constable Subhash Chand went to the spot/SOC, where they found pool of blood, motorcycle bearing Registration No.HR26M/5839 (make Hero Honda Passion) and some belongings of injured Head Constable Onkar Singh strewn at SOC. By that time injured Head Constable Onkar Singh had already been removed to GTB Hospital by PCR van. No eye witness was found present at the spot/SOC. Leaving Head Constable Subhash Chand to guard the spot/SOC, ASI Rambir Singh went to GTB Hospital where injured HC Onkar Singh was found admitted vide MLC No.1100/2009, however, he was declared "unfit for statement"
by the treating doctor(s). Even no eye witness was found present at GTB Hospital. Thereafter, ASI Rambir Singh came back at the spot/SOC, where besides Head Constable Subhash Chand, Constable Sanjay was also found present, who informed him that one official service revolver and five live cartridges which were issued to injured Head Constable Onkar Singh had been missing after the incident in question. After noticing the aforesaid fact, ASI Rambir Singh made endorsement upon DD No.81B and got the case FIR registered under Sections 353/186/307/394 IPC. Thereafter, further investigation in the matter was handed over to Inspector Sanjay Nagpal, who prepared site plan of the spot/SOC at the instance of ASI Rambir Singh; lifted blood and earth control samples; got the spot/SOC photographed; seized the All Accused persons "Acquitted" Page 2 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 articles lying at the spot/SOC, including the motorcycle in question; recorded the statement of eye witness Bhim Singh under Section 161 Cr.P.C and thereafter deposited the seized articles in malkhana.
3. Thereafter, during the course of investigation on 19/20.03.2009 vide DD No.34A, Inspector Sanjay Nagpal came to know about arrest of two accused persons namely Sonu Gupta @ Raju and Santosh @ Pappu Yadav in case FIR No.39/2009, U/s 411 IPC & Section 25/54/59 Arms Act, PS Crime Branch (Anti- Robbery Cell), wherein they had made disclosure statement(s) regarding their involvement in the case in hand and further named other two accused persons namely Sabir @ Bada Raju and Imam @ Imamuddin as their accomplices in the commission of crime in the instant case. Accordingly, on 21.03.2009 accused persons namely Sonu Gupta @ Raju and Santosh @ Pappu Yadav were arrested in the present matter. The service revolver of injured HC Onkar Singh was recovered at the instance of accused Sonu Gupta @ Raju, while the Identity-Card of HC Onkar Singh and two NBWs etc. were recovered at the instance of accused Santosh @ Pappu Yadav. Despite best efforts, other two accused persons namely Sabir @ Bada Raju and Imam @ Imamuddin could not be apprehended by that time as they remained absconding in the matter. During the course of investigation, IO Inspector Sanjay Nagpal tried several times to record the statement of injured HC Onkar Singh, but on account of grievous injuries sustained by him, everytime he was declared "unfit for statement" by the treating doctor(s). During the course of further investigation, IO obtained complaint under Section 195 Cr.P.C made by the competent authority and filed the same on record. After completion of investigation, chargesheet under relevant sections was filed against accused persons namely Sonu Gupta @ Raju and Santosh @ Pappu Yadav, while proceedings under Section 82/83 Cr.P.C were initiated against the remaining two absconding accused persons.
4. On 10.08.2009, accused Imam @ Imamuddin surrendered before the Court in case FIR No.84/2009, U/s 379/411 IPC and was remanded to one day police All Accused persons "Acquitted" Page 3 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 custody. He was interrogated in the police station and formally arrested in the case in hand on 11.08.2009. The baseball bat alleged to have been used in the commission of crime in the instant case was recovered from behind the T.V from the house of accused Imam @ Imamuddin. Thereafter, on 26.08.2009, accused Sabir @ Bada Raju was arrested by ARC Crime Branch, Nehru Place in case under Section 41.1 Cr.P.C, who thereafter was formally arrested in the case in hand on 29.08.2009 and his one day police custody remand was taken. Accused Sabir @ Bada Raja pursuant to his disclosure statement recorded in the instant case got recovered three live cartridges from his house bearing No.D-340, Gokalpuri, which were seized and sent to FSL for forensic examination. During the course of investigation, IO moved applications for conducting judicial "Test Identification Parade" (TIP) of accused persons Sabir @ Bada Raja and Sonu Gupta @ Raju, but both the said accused persons refused to undergo TIP. Thereafter, IO made further efforts to record the statement of injured HC Onkar Singh, but in vain as he was still declared "unfit for statement" by the treating doctors. After completion of investigation, supplementary chargesheet was filed against accused persons namely Imam @ Imamuddin and Sabir @ Bada Raju under relevant sections.
5. (i) Since offence(s) under Section 394/397/307 IPC are exclusively triable by the Court of Sessions, therefore, the learned Magisterial Court vide its order dated 21.12.2009 committed the instant case to this Court. After hearing arguments on the point of charge and finding prima facie material to charge the accused persons, this Court vide order dated 06.02.2010 framed charge under Sections 186/353/307/394/397/34 IPC against all the aforesaid four accused persons, to which they pleaded not guilty and claimed trial.
(ii) Since, the service revolver of HC Onkar Singh was recovered from the possession of accused Sonu Gupta @ Raju and the personal belongings of HC Onkar Singh viz., one black colour raxine gents purse, his Identity-Card etc. were recovered from the possession of accused Santosh @ Pappu Yadav, therefore, vide order of even date separate charge under Section 411 IPC was also framed against both the said accused persons, to which also both of them pleaded not guilty and claimed trial.
All Accused persons "Acquitted" Page 4 of 45SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021
6. In order to bring home the guilt of accused persons, prosecution examined as many as thirty one (31) witnesses, whereafter PE in the matter was closed and statement(s) of all the four accused persons was recorded under 313 Cr.P.C, wherein they claimed themselves to be innocent and having been falsely implicated in the matter. Accused Imam @ Imamuddin during the course of recording of his statement under Section 313 Cr.P.C claimed that since several criminal cases in the police station were lying registered against him, so he had been falsely implicated in the matter by the investigating agency. Accordingly, he chose to lead defence evidence in the matter. He moved an application under Section 315 Cr.P.C, which stood allowed by this Court vide order dated 23.01.2019 and as such, this accused was examined as DW-1 in the matter. Similarly, accused Sonu Gupta @ Raju during the course of recording of his statement under Section 313 Cr.P.C took refuge under the "plea of alibi" by stating that at the time of alleged incident he was not present at the spot/SOC and instead was present at his residence. He further stated that he has been falsely implicated in the matter by the investigating agency as several criminal cases were pending against him in the police station. He also chose to lead evidence in his defence. However, despite according repeated opportunities when this accused failed to bring any witness in his defence, this Court was constrained to close DE in the matter vide order dated 23.04.2019.
7. I have heard arguments advanced at bar by Shri S.K Tripathi, learned Additional PP for the State; Shri Joginder Tuli, Advocate, learned counsel for accused Imam @ Imamuddin and Shri R.P Singh, learned counsel for the remaining three accused persons. I have also gone through the written arguments/synopsis filed on behalf of all the accused persons. Before adverting to adjudication upon the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter which is as under.
Evidence recorded in the matter
8. The evidence recorded in the matter/witnesses examined can be broadly classified under four categories, i.e:
All Accused persons "Acquitted" Page 5 of 45SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021
(a) Injured and public witnesses;
(b) Witnesses of investigation;
(c) Witness of medical evidence and;
(d) Formal witnesses
Injured and public witnesses
9. (i) PW-4, Shri Bhim Singh, S/o Shri Kartar Singh (rickshaw puller by
profession and claimed to be an eye witness by the prosecution) in his evidence stated that on the intervening night of 12/13.03.2010 (year of the incident wrongly stated) at about 12/12.15 AM after having dinner he was taking a stroll at Kachipura, B-2 Block, Market, Nand Nagri, when he noticed 4-5 persons beating a man with danda and bricks, thereby causing injuries upon his head. He further stated that thereafter he shouted pursuant whereto the said assailants went away from there, chowkidar of the area also reached at the spot and in the meantime someone made a call at number 100. He further stated that when he went near to the injured person, his identity was revealed as HC Onkar Singh, who was already known to him being "Beat Official" of the area.
(ii) During the course of recording of his examination-in-chief, this witness categorically named and identified two accused persons namely Imam and Santosh @ Pappu as the assailants, who alongwith their other two accomplices had attacked and caused injuries to HC Onkar Singh/PW-31. As regards the other two accused persons, this witness identified them after they were shown to him in the Court.
(iii) This witness proved on record his statement recorded under Section 164 Cr.P.C by the learned Magistrate on 16.04.2009 as Ex.PW4/A. [Court Observation: Since in his examination-in-chief, this witness stated that the incident in question had taken place on the intervening night of 12/13.03.2010, so learned Additional PP requested the Court for putting a leading question to him with regard to the year of incident. The said permission was duly granted to the prosecution. In reply to the leading question put by learned Additional PP in this regard, this witness categorically answered that the incident in question had taken place in the intervening night of 12/13.03.2009.] All Accused persons "Acquitted" Page 6 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021
(iv) This witness was thoroughly cross-examined by the defence. In his cross-examination by learned defence counsels, this witness stated that the incident in question, which lasted for about 10-12 minutes had taken place at a distance of less than half a kilometer from his house and he watched the same from a distance of 8-10 paces. He further stated that PCR van had come in his presence and he had told the PCR officials of having witnessed the incident, but no inquiry was made by PCR officials from him; even the site plan was not prepared at his instance and nothing was recovered by police from the spot/scene of crime (SOC) in his presence, though he remained at the spot/SOC for about 20-25 minutes. He further categorically stated that even the scaled site plan was not prepared in his presence. He further stated that he did not accompany injured HC Onkar Singh/PW-
31 to hospital, however, the injured had been known to him prior to about 4-5 months of the incident in question. He further stated that he knew accused Santosh @ Pappu Yadav as he and the said accused were residents of Nand Nagri. He further stated that bike of injured HC Onkar Singh was lying at the spot, but he could not tell the registration number thereof. He further stated that on the date of incident, he had seen bricks, stones and danda lying at the spot/SOC, but the same were not seized by the police in his presence, even police had not seized blood stained earth control in his presence. He categorically stated that at the time of incident in question, injured HC Onkar Singh/PW-1 was wearing police uniform with name plate, however, the same was not seized/sealed in his presence. He further stated that he did not try to save the victim/injured when he was being given beatings by the accused persons and only raised hue and cry from a distance, pursuant whereto all the accused persons fled from the spot/SOC. He further stated that police came at the spot within 6-7 minutes of chowkidar making a call at number 100. This witness further categorically stated that he was called for conducting the "Test Identification Parade" (TIP) proceedings of the accused persons, but the same later on got cancelled on account of the refusal by accused persons to undergo judicial TIP. He further stated that this statement was recorded by the learned Magistrate, but he could not tell the date thereof. He categorically denied the suggestion(s) of defence that the All Accused persons "Acquitted" Page 7 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 incident in question had not taken place in his presence or that his statement was never recorded by the police or that he is a stock witness. He further categorically stated that none of the accused persons were apprehended in his presence. He categorically stated that he did not know the name of other two accused persons, however, he knew them by their face and he had told this fact to ASI Rambir Singh/PW-23 during the course of recording of his statement.
10. (i) PW-14, Shri Raj Kumar, S/o Shri Ramvilas in his evidence stated that on 13.03.2009 at about 12.29 AM he was sleeping in his house when Chowkidar of market B-1 informed him that somebody had inflicted injuries upon one person. He accordingly reached at the spot, i.e in front of B-1 Market, Nand Nagri, near Pehalwan Dhaba, where he found HC Onkar Singh/PW-31 lying in injured condition. He further stated that thereafter he made a call at number 100 from his mobile number 9910592661.
(ii) Thereafter, this witness was declared hostile by the prosecution and thoroughly cross-examined by learned Additional PP.
(iii) In his cross-examination by learned Additional PP, this witness stated that police had made enquiries from him, however, he could not tell whether his statement was recorded by the police or not. He vehemently denied the suggestion of learned Additional PP that he had told the police to have informed the PCR about 3-4 miscreants quarreling with HC Onkar Singh and causing injuries to him. Accordingly, this witness was confronted with his statement (recorded under Section 161 Cr.P.C-from portion A to A) Ex.PW14/PA.
(iv) In his cross-examination by learned defence counsel(s), this witness categorically stated that police had not recorded his statement. He further stated that police had neither seized anything from the spot/SOC nor prepared any documents in his presence, despite the fact that belongings of injured, including his motorcycle was lying at the spot/SOC.
All Accused persons "Acquitted" Page 8 of 45SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021
11. (i) PW-31 is injured HC (now retired) Onkar Singh, who in his evidence stated that on the intervening night of 12/13.03.2009, he was on night emergency duty in the area of PS Nand Nagri and was riding his personal motorcycle bearing Registration Number HR26/5839. He further stated that during his duty hours when he reached near Pehalwan Dhaba at about 12/12.30 AM, he noticed four persons consuming liquor while sitting in the park behind the said dhaba and when he confronted them, they became furious and assaulted him, thereby inflicting injuries upon his head with a danda, as a result of which blood started oozing out from his head. He further stated that the said persons also inflicted injuries upon his face, left eye and left hand and they had attacked him with an intention to kill. He further stated that one person from the said four assailants robbed his service revolver (which was loaded with five live cartridges) and wallet containing cash from his possession and also tore off the police uniform being worn by him at that time. He further stated that thereafter he became unconscious at the spot and regained semi- consciousness at GTB Hospital, but was not able to speak and move. He further stated that he lost his left eye in the said incident and his left hand was no longer in working condition.
(ii) This witness categorically identified all the four persons as the assailants by their faces, but not by their names. However, he could not identify the "danda".
(iii) He identified the service revolver as Ex.P-1; jacket being worn by him at the time of incident as Ex.P-2; one torn shirt (police uniform with name plate, dori and batch) as Ex.P-3; two live cartridges of 9 mm and one test-fired cartridge as Ex.P-4 (colly); ring of keys as Ex.P-5; his mobile phone (which he was carrying on the date of incident) as Ex.P-6; spectacle being worn by him on the date of incident as Ex.P-7; his wallet which was robbed by the accused persons as Ex.P-8; one pair of black shoes being worn by him at the time of incident as Ex.P-9; photographs of motorcycle bearing Registration No.HR26/5839 (which this witness was driving on the date and time of incident) as Ex.PW27/A-2 and Ex.PW27/A-3; and motorcycle bearing Registration No.HR26/5839 as Ex.P-10.
All Accused persons "Acquitted" Page 9 of 45SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021
(iv) This witness was thoroughly cross-examined by the defence. In his cross-examination by learned defence counsel(s), this witness stated that the incident in question happened between 12.00 midnight to 1.00 AM; the spot/SOC was dark and no public person was present at the spot/SOC at that time. He further stated that he did not know the name of any of the accused persons, as they were not known to him from earlier. He further stated that soon after receipt of danda blow upon his head, he fell at the spot and became unconscious. He could not specifically tell as to which accused person had caused him which injury and the manner of said injury. He further stated that at the time of incident, he was carrying his service revolver which was loaded with five live cartridges, however, he did not use the same. He further stated that his brother-in-law namely Karamvir, r/o Village Dhoolsiras, Delhi was the registered owner of motorcycle in question.
(v) He further stated that he remained lying admitted in hospital for about two months, lost vision in left eye; became disabled from the left hand and could not perform his activities of daily routine for six years; and thereafter partially regained his memory and started speaking after 9-10 years from the date of incident.
(vi) He further categorically stated that he had neither disclosed the name(s) as well as physical description of accused persons to the police any point of time nor identified them during the course of investigation and thereafter. He admitted that he never identified the accused persons before the police ever during the course of investigation. He volunteered to state that he identified the accused persons for the first time before the Court during the course of recording of his examination-in- chief in the Court. He further stated that his statement under Section 161 Cr.P.C was not recorded in the matter ever. In this regard, he volunteered to state that during the course of investigation his sons had narrated the incident to the police.
(vii) He categorically denied the suggestion that the accused persons had not caused any injuries to him or that he had not seen the accused persons at the spot/SOC or that he had wrongly identified them at the instance of his sons. He further categorically denied the suggestion that accused Mohd. Imam @ Imamuddin was known to him prior to the date of incident or that he had identified the said All Accused persons "Acquitted" Page 10 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 accused at the instance of IO.
Witnesses of investigation
12. (i) PW-5, HC Pramod in his evidence stated that on 19.03.2009, he was posted at Anti-Robbery Cell, Crime Branch and on that day at about 2.00 PM, one secret informer came to their office and informed that one member belonging to the "Gang of Raju", who had caused injuries to Delhi Police Head Constable (PW- 31/HC Onkar Singh) and robbed his service revolver would come to Nand Nagri in a black "Ceilo" stolen vehicle. He further stated that thereafter he produced the said secret informer before Inspector Akshay Kumar, who consulted the ACP concerned. He further stated that thereafter a raiding party was formed under the leadership of SI Rajpal (PW-25), consisting of himself, HC Suresh, HC Raj Kumar, Constable Sandeep, Constable Anoop Pandey, Constable Sudhir, Constable Anil and W/Constable Aarti and at about 4.30 PM, the said raiding party reached at Tahirpur T-point where SI Rajpal (PW-25) asked 8-10 public persons to join the raiding party, but none agreed and left the spot without disclosing their names and addresses on one pretext or the other. He further stated that in the meantime, SI Ravi Dutt and SI Sanjeev from Anti-Extortion Cell, Crime Branch alongwith their staff also reached there and they also disclosed about having received the said information, who were also included in the raiding party. He further stated that at about 5.30 PM, one black colour Ceilo Car was found coming from the side of Tahirpur red light area, which at the instance of secret informer was directed to stop and four persons were found sitting in the said car, whose names were revealed as Santosh Kumar, Sonu Gupta, Ajit Kumar and Mahender @ Bihari. He further stated that accused Santosh Kumar was found driving the said car, while accused Sonu Gupta was sitting besides the driver's seat; whereas, Ajit Kumar and Mahender @ Bihar were found sitting on the rear seat of the car. He further stated that upon personal search of accused Sonu Gupta, one service revolver was recovered from his left side dub, whose sketch Mark PW5/A was prepared by SI Rajpal (W-25) and number 271 was found engraved on the lower side butt of the said revolver; same was kept in a cloth All Accused persons "Acquitted" Page 11 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 pulanda and seized vide Mark PW5/B. He further stated that accused Santosh Yadav failed to produce any ownership documents of the said car. He further stated that on interrogation, accused Sonu Gupta disclosed that he had robbed the said service revolver from HC Onkar Singh (PW-31) in the area of PS Nand Nagri after causing injuries to him with the help of his associates. He further stated that thereafter SI Rajpal informed PS Nand Nagri, from where he came to know that instant case FIR was already lying registered in respect of the said robbery. He further stated that thereafter SI Rajpal prepared rukka and got the case FIR registered from PS Crime Branch, Nehru Place through Constable Anoop Pandey. He further stated that in the meantime, SI Lekh Raj (PW-29) came at the spot and being IO of instant case FIR, SI Rajpal handed over all the seized articles, documents and custody of accused persons to SI Lekh Raj, who interrogated them and recorded the disclosure statement of accused Sonu Gupta vide Mark PW5/C, prepared site plan and effected arrest of the accused persons.
(ii) He further stated that on 26.08.2009 pursuant to receipt of a secret information, he alongwith SI Lekh Raj, HC Sandeep and Constable Anoop Pandey went to Gokalpuri flyover area and apprehended accused Shabbir @ Bada Raju, who confessed about his involvement in the instant case. He has proved on record the sketch of service revolver (which was issued to HC Onkar Singh/PW-31) as Ex.PW5/A; seizure memo qua the said revolver as Ex.PW5/B and disclosure statement of accused Sonu Gupta as Ex.PW5/C. He also identified the service revolver as already Ex.P-1.
(iii) This witness was thoroughly cross-examined by the defence. In his cross-examination by learned defence counsel(s), this witness stated that no incriminating material was recovered from the possession of occupants of aforesaid Ceilo car, except accused Sonu Gupta, from whose possession one service revolver was recovered which was sealed with seal of RSS and seal after use was handed over to him, however, no handing over memo in this respect was prepared. He further stated that case property, i.e the service revolver was not handed over to IO of the instant case in his presence. He admitted that case FIR No.39/2009, PS Crime All Accused persons "Acquitted" Page 12 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 Branch stood cancelled by the orders of Ld.ACMM/NE pursuant to filing of cancellation report by the police in the said case. He further stated that the said Ceilo car was seized by the IO under Section 41(1)(d) Cr.P.C by SI Rajpal/(PW-25). He denied the suggestion that he never joined investigation of this case.
13. (i) PW-6, HC Puran Singh in his evidence stated that on 22.03.2009 accused Santosh @ Pappu was interrogated by Inspector Sanjay Nagpal/PW-28 and his disclosure statement recorded vide Ex.PW6/A. He further stated that thereafter he alongwith Inspector Sanjay Nagpal/PW-28, ASI Rambir/PW-23, Constable Tek Ram/PW-26 went to B-Block, Nand Nagri and D-170, School Block, Nand Nagri, where accused Santosh @ Pappu pointed out the place(s) of incident and theft vide pointing out memos Ex.PW6/B and Ex.PW6/C respectively. He further stated that at the instance of accused Santosh @ Pappu, identity card of HC Onkar, copies of two NBWs issued by the Court, one raxine gents purse containing visiting cards were recovered, which were sealed in a cloth pulands with seal of SN and seized vide seizure memo Ex.PW6/D.
(ii) This witness identified the purse as Ex.P-1; identity card of HC Onkar Singh as Ex.P-2 and four visiting cards as Ex.P-3; NBWs issued by Court as ExP-4, to Ex.P-6; and parcha baras as Ex.P-7 and Ex.P-8 respectively.
(iii) In his cross-examination by learned defence counsels, this witness stated that the recoveries were not effected in presence of any public witness from accused Santosh @ Pappu. Even no public person was present at the time of pointing out of place of incident by accused Santosh @ Pappu.
14. (i) PW-10, HC Subhash Chand in his evidence stated that on the intervening night of 12/13.03.2009, he alongwith ASI Rambir Singh/PW-23 was on emergency duty from 8.00 PM to 8.00 AM and was present at Sunder Nagri, when at about 12.45 AM a call with respect to some quarrel was received over telephone from police station. He further stated that they immediately went to Pehalwan Dhaba, where they came to know that injured HC Onkar Singh/PW-31 had already been All Accused persons "Acquitted" Page 13 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 removed to GTB Hospital. He further stated that one motorcycle bearing Registration No.HR26M/5839, one pair of shoes with socks, one spectacle, blood stains and one brick piece were found lying at the spot, however, no eye witness was found present at the spot. He further stated that ASI Rambir Singh went to GTB Hospital, leaving him at the spot and in the meantime Constable Sanjay also came to the spot with DD No.81-B. He further stated that ASI Rambir Singh came at the spot after about 1½ hours, prepared rukka and he got the case FIR registered from PS and further investigation was handed over to Inspector Sanjay Nagpal/PW-28. He has further stated about the factum of investigation carried out by Inspector Sanjay Nagpal in the case. He has proved on record the seizure memo qua the seizure of earth control sample and brick pieces containing blood stains as Ex.PW10/A, while the seizure qua spectacle, one broken glass, one pair of black shoes with socks, motorcycle bearing registration No.HR26M/5839 with key and mobile phone has been proved on record as Ex.PW10/B. He also identified the shoes and socks as Ex.P1 (Colly), mobile phone as Ex.P2, spectacle with one broken glass as Ex.P3 and bunch of keys as Ex.P4.
(ii) In his cross-examination by learned defence counsels, this witness stated that he alongwith other members of the police team reached at the spot/SOC at about 1.00 AM and no public person was found present there at that time. He further stated that purse of HC Onkar Singh/PW-31 was not found lying at the spot, while the other articles like motorcycle, mobile phone, shoes with socks were lying at the spot. He could not tell the names of public persons who firstly came at the spot after the incident. He stated that Inspector Sanjay Nagpal/PW-28 did not record statement of any public person in his presence.
15. (i) PW-16, HC Radhey Shyam (wrongly written as PW-20 in his cross- examination dated 07.08.2012) is the witness in whose presence on 29.08.2009 accused Sabir @ Bada Raju got recovered one plastic bag containing three live cartridges from the "taand" of his house bearing No.D-340, Gokalpuri, Delhi. He has proved the seizure memo in this regard as Ex.PW16/A and arrest memo of All Accused persons "Acquitted" Page 14 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 accused Sabir @ Bada Raju as Ex.PW16/B. He further stated that accused Sabir @ Bada Raju had told them that he alongwith other co-accused persons namely Imam, Santosh and Sonu Gupta @ Raju had snatched the aforesaid cartridges from HC Onkar Singh after beating him.
(ii) This witness identified the two live cartridges and one test fired cartridge as Ex.P5 to Ex.P7.
(iii) In his cross-examination by learned defence counsel(s), he stated that no site plan qua the place of recovery was prepared by IO in his presence. He even could not recollect whether any sketch of recovered cartridges was prepared by the IO or not.
16. (i) PW-18, HC Anil Kumar in his evidence stated that on 10.08.2009 accused Imam @ Imamuddin had surrendered in Court in case FIR No.84/2009, under Section 380/411/34 IPC and he was formally arrested. He further stated that on 11.08.2009 accused Imam @ Imamuddin was taken out from the lockup and arrested vide arrest memo Ex.PW18/A and his disclosure statement recorded vide memo Ex.PW18/B. He further stated that on 13.08.2009, accused Imam @ Imamuddin again made disclosure statement vide Ex.PW18/C, pursuant whereto he got recovered one baseball bat from the room of his house bearing No.95, Chhabra Colony, Sahibabad, Uttar Pradesh, which was seized vide seizure memo Ex.PW18/D. He identified the said baseball bat as Ex.P8.
(ii) In his cross-examination by learned defence counsel, this witness stated that he did not notice any blood on the baseball bat and no site plan of the place of recovery the said weapon of offence was prepared by IO in his presence.
17. (i) PW-21, HC Anup Kumar, who was lying posted with Anti-Robbery Cell, PS Crime Branch, Nehru Place at the relevant time and was part of the raiding party constituted by Inspector Rajpal Singh/PW-25 has deposed on the lines of PW- 5/HC Pramod. He identified the service revolver of HC Onkar Singh, recovered from the possession of accused Sonu as Ex.P1.
All Accused persons "Acquitted" Page 15 of 45SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021
(ii) In his cross-examination by learned defence counsel, this witness stated that he had not put his signatures on the disclosure statement(s) and personal search memos of the accused persons. He stated that SI Rajpal/PW-25 had recovered the revolver from the left dub of accused Sonu Gupta @ Raju, however, he could not tell the types of clothes worn by accused persons at that time. He further stated that SI Rajpal had prepared the sketch of said recovered revolver. He could not tell the articles which were recovered from the possession of accused Santosh @ Pappu. He denied the suggestion that accused persons have been falsely implicated in the case in hand or that nothing was recovered from their possession.
18. (i) PW-23, ASI (Retd.) Rambir Singh, in his evidence stated that on 13.03.2009, pursuant to receipt of DD No.81B (already Ex.PW12/A), he alongwith HC Subhash Chand/PW-10 reached at B-1, DDA Market, Nand Nagri, where they saw one motorcycle, one spectacle, one mobile phone, one pair of black shoes, khakhi colour socks and blood stains present at the spot/SOC. He further stated that injured had already been removed to GTB Hospital and no eye witness was found present at the spot/SOC. He further stated that he left HC Subhash Chand/PW-10 to protect the spot/SOC and went to GTB Hospital, where he collected the MLC of HC Onkar Singh, who was declared "unfit for statement" by the doctor. He further stated that doctor handed over to him two pulandas containing the jacket and uniform of HC Onkar Singh. He categorically stated that no eye witness met him in the GTB hospital also. He further stated that thereafter he returned to the spot, where besides HC Subhash Chand, Constable Sanjay was also found present, who told him that HC Onkar Singh was carrying one service revolver and five live cartridges which had been found missing after the incident. Thereafter, he made endorsement of the above facts on the aforesaid DD vide Ex.PW2/A, prepared rukka and sent HC Subhash Chand to PS for registration of FIR in the matter. He further stated that after registration of FIR, HC Subhash Chand alongwith Inspector Sanjay Kumar Nagpal/PW-28 came at the spot, to whom the further investigation of the case was handed over, who lifted few pieces of earth control and blood stained piece of brick All Accused persons "Acquitted" Page 16 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 from the spot, kept the same in separate plastic jars, sealed with seal of SN and same were seized vide seizure memo Ex.PW10/A. He further stated that IO also lifted spectacles, one pair of black colour shoes, one mobile phone and seized the same with one motorcycle bearing registration No.HR26M/5839 vide seizure memo Ex.PW1/B. He further stated that IO prepared site plan at the spot and made enquiries from the public persons, but nobody came forward. He identified the case property in the matter as Ex.P1 to Ex.P4.
(ii) In his cross-examination by learned defence counsel(s), he stated that he reached at the spot, which was a public place, at about 12.45 AM. He denied the suggestion that he never visited the spot/SOC and had prepared the rukka while sitting in the PS on the directions of IO and SHO.
19. (i) PW-25, Inspector Rajpal Singh, who on 19.03.2009 was lying posted with Anti-Robbery Cell, Crime Branch in his evidence has deposed on the lines of PW-5/HC Pramod and PW-21 HC Anup Kumar about intercepting black colour Ceilo car bearing registration No.DL4CF/5149 and apprehending four persons from the said car. He further stated that on formal search of accused Sonu Gupta @ Raju one revolver was recovered from the left dub of his jeans pant. He further stated that he prepared sketch of said revolver vide memo already Ex.PW5/A and thereafter kept the said revolver in a cloth pulanda and sealed with seal of RSS and seized the same vide seizure memo already Ex.PW5/B. He identified the said revolver as Ex.P1.
(ii) In his cross-examination by learned defence counsel(s), this witness stated that site plan of the place from where the accused persons were arrested was prepared by SI Lekh Raj/PW-29 at his instance. He further stated that no public person was present when the accused was arrested. He further stated that he had not taken any finger prints of accused Sonu Gupta @ Raju regarding recovery of revolver. He further stated that no cartridge was recovered from accused Sonu Gupta @ Raju. He denied the suggestion that all the writing work was done by while sitting in the office of Crime Branch or that nothing was recovered from the possession of accused persons.
All Accused persons "Acquitted" Page 17 of 45SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021
20. (i) PW-26, Constable Tek Ram in his evidence stated that on 21.03.2009 he had joined the investigation of the case with IO, Inspector Sanjay Nagpal/PW-28 and reached Karkardooma Court Complex where accused persons namely Sonu Gupta @ Raju and Santosh @ Pappu were arrested and their disclosure statements recorded vide memos Ex.PW26/A, Ex.PW26/B, Ex.PW26/C and Ex.PW26/D respectively.
(ii) He further stated that on 22.03.2009, accused Santosh @ Pappu was taken to the place of incident, i.e B-1 Block Market, Nand Nagri where IO prepared pointing out memo already Ex.PW6/B. The accused was also taken to Primary School and pointing out memo in this regard was prepared vide memo Ex.PW6/C. He further stated that at the instance of accused Santosh @ Pappu, one purse containing some visiting cards, identity card of HC Onkar Singh, one NBW issued by SEM Court of Seelampur and other articles were recovered, which were converted into a pulanda, sealed and seized by IO vide Ex.PW6/D.
(iii) He further stated that on 27.03.2009, he alongwith ASI Harbir had gone to AIIMS Trauma Centre, where doctors handed over blood sample of HC Onkar Singh in a sealed condition, which was seized by ASI Harbir vide memo Ex.PW26/E and thereafter the same was deposited in malkhana.
(iv) He further stated that on 29.08.2009 he joined the investigation with IO, Inspector Sanjay Nagpal and they with accused Sabir @ Bada Raju went to house No.340, D-Block, Gokalpuri, where at his instance three live cartridges of 0.38 mm from a polythene kept on the "taand" of said house, which were kept in a cloth pulanda, sealed with seal of SN and seized by IO vide seizure memo Ex.PW16/A.
(v) This witness identified the purse as Ex.P1; identity card of HC Onkar Singh as Ex.P2; four visiting cards as Ex.P3 (colly); NBW issued by the Court against one Jaswant as Ex.P4; report of HC Onkar Singh as Ex.P5; NBW issued by the Court against one Adil as Ex.P6; parcha bara papers as Ex.P7 and Ex.P8. He also identified the three cartridges which were recovered at the instance of accused Sabir @ Bada Raju as Ex.PW26/1, Ex.PW26/2 and Ex.PW26/3 (also Ex.P5, P6 and P7).
All Accused persons "Acquitted" Page 18 of 45SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021
(vi) The learned counsel for accused Imam @ Imamuddin did not cross- examine this witness despite opportunity being accorded to him.
(vii) In his cross-examination by learned counsel for the remaining accused persons, this witness stated that his statements were recorded by the IO on 21.03.2013, 22.03.2009, 27.03.2009 and 29.08.2009. He further stated that public persons were passing through the place of incident when accused Santosh @ Pappu was taken to the place of incident. He admitted the suggestion that no public person was included/joined in the whole proceedings. He denied the suggestion that he did not participate in the investigation of instant case or that nothing was recovered in his presence.
21. (i) PW-28, Inspector Sanjay Nagpal, who is the IO of the case has deposed on the lines of PW-5/HC Pramod, PW-23/ASI Rambir Singh, PW- 25/Inspector Rajpal Singh and PW-26/Constable Tek Ram. He further stated that he had prepared site plan of the place of incident at the instance of ASI Rambir/PW-23 vide Ex.PW28/A and also lifted blood stains, earth control sample, blood stained brick, converted them into a pulanda and seized the vide memo Ex.PW10/A. He further stated that he also seized one spectacle, one glass in dismantled condition, one pair of black shoes with socks, one motorcycle bearing registration No.HR26M/5839 and one mobile phone make Vodafone vide Ex.PW10/B. He further stated that he got the spot photographed from photographer Sanjay Dutta and thereafter recorded the statement of eye witness Bhim Singh/PW-4 and thereafter recorded the statement of police witnesses.
(ii) He further stated that on 20.03.2009, he was informed of the arrest of two accused persons namely Sonu Gupta @ Raju and Santosh by SI Lekh Raj of Anti-Robbery Cell, Crime Branch and accordingly on 21.03.2009, he interrogated the said accused persons, arrested them and conducted their personal search vide memos Ex.PW26/A to Ex.PW26/D respectively.
(iii) He further stated that on 22.03.2009 accused Santosh @ Pappu Yadav Primary Schoo, Nand Nagri and got recovered two NBWs, one summon, one purse All Accused persons "Acquitted" Page 19 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 and Identity Card of HC Onkar Singh from the roof, which were kept in a cloth pulanda, sealed with seal of SN and seized vide Ex.PW6/D. He further stated that accused Sonu Gupta had refused to take part in judicial Test Identification Parade (TIP). He further stated that ASI Harbir Singh produced before him the blood sample of HC Onkar Singh taken from AIIMS Trauma Centre, which was seized by him vide Ex.PW26/E. He further stated that he tried to record the statement of HC Onkar Singh, but he was declared unfit for the same by treating doctors.
(iv) He further stated that on 11.08.2009, accused Imam @ Imamuddin was arrested by the police of PS Nand Nari in case FIR No.84/2009 and accordingly he examined him and thereafter arrested him in the instant case and recorded his disclosure statement vide Ex.PW18/A and Ex.PW18/B. He further stated that on 13.08.2009 he again recorded his disclosure statement vide Ex.PW18/C, pursuant whereto the said accused led him to House No.95, Chhabra Colony, Sahibabad, from where he got recovered one bat, which was seized vide memo Ex.PW18/D.
(v) He further stated that on 26.08.2009, he came to know that accused Sabir Ali @ Bada Raju had been arrested by the Crime Branch and accordingly on 29.08.2009 he arrested him in the instant case and recorded his disclosure statement vide memos Ex.PW16/B and Ex.PW19/A. He further stated that pursuant to his disclosure statement accused Sabir @ Bada Raju got recovered three live cartridges of 0.38 bore from the "taand" of house No.B-340, Gokalpuri, which were taken into possession vide seizure memo Ex.PW16/A. He further stated that one another person namely Raju was also found present in the said house and more than one kilogram of "ganja" was recovered from his possession for which separate proceedings were conducted by the personnel of PS Gokalpuri.
(vi) He further stated that during the course of investigation, witness Bhim Singh/PW-4 was produced before learned MM and his statement under Section 164 Cr.P.C was recorded vide Ex.PW17/G. He has proved on record his application moved before learned MM in this regard as Ex.PW28/B and copies of the said statement as Ex.PW17/J. He further stated that during the course of investigation accused Sanotsh made disclosure statement vide Ex.PW6/A. He further stated that All Accused persons "Acquitted" Page 20 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 accused Sabir Ali @ Bada Raju had refused to participate in judicial Test Identification Parade (TIP).
(vii) This witness identified the purse of HC Onkar Singh as Ex.P1; his identity-card as Ex.P2; four visiting cards as Ex.P3 (Colly); NBW of one Jaswant as Ex.P4; report of HC Onkar Singh as Ex.P5; NBW of one Adil as Ex.P6; parcha 12 papers as Ex.P7 and Ex.P8; shoes and socks as Ex.P9 (Colly); mobile phone as Ex.P10; spectacles as Ex.P11; bunch of keys as Ex.P12; two live cartridges and one test fired cartridge as Ex.P13, Ex.P14 and Ex.P15; and baseball bat as Ex.P16.
(viii) This witness was thoroughly cross-examined by the defence. In his cross-examination by learned defence counsel(s), this witness stated that he had recorded the statement of Bhim Singh/PW-4 at about 5.30 AM. He denied the suggestion that accused Imam @ Imamuddin never made disclosure statement to him. He further stated that the did not verify the ownership of house from where baseball bat was recovered. He denied the suggestion that accused Imam @ Imamuddin was not present at the spot on the date of incident or that no baseball bat had been recovered at his instance.
(Court Observation: It is noted that since statement under Section 161 Cr.P.C of injured HC Onkar Singh/PW-31 was never recorded by the IO in the matter even till the filing of chargesheet, so on the request of learned Addl. PP my learned Predecessor vide order dated 02.01.2018 had summoned this witness in the Court for necessary clarification(s) in this regard. Accordingly, this witness was further examined-in-chief on oath in the Court on 02.02.2018 on the aforesaid aspect).
(ix) PW-28, Sanjay Nagpal (then lying posted on deputation in NIA as DSP) in his deposition/statement recorded in the Court on 02.02.2018 stated that he had met HC Onkar Singh/PW-31 several times for recording his statement, however, since he/PW-31 had lost his memory and remained "unfit" to make statement till the filing of chargesheet(s) in the matter, so his statement under Section 161 Cr.P.C could not be got recorded in the matter. In continuation, this witness further stated All Accused persons "Acquitted" Page 21 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 that he had lastly met the doctor on 18.03.2010, whereby as per MLC already Ex.PW3/A, the concerned doctor opined HC Onkar Singh "unfit for statement" and as such, he had filed the chargesheet without citing him as a witness because he had lost his memory. He has further proved on record FSL report dated 05.03.2010 as Ex.PW28/PX.
(x) This witness was again tendered for cross-examination, but this time the defence did not cross-examine him, despite according opportunity in this regard.
22. (i) PW-29, Inspector Lekh Raj in his evidence stated that on 19.03.2009 he was posted as SI in Anti-Robbery Cell, Crime Banch, Nehru Place and on that day investigation of case FIR No.39/2009, PS Crime Branch was assigned to him by Duty Officer. He has proved on record rukka prepared by SI Rajpal as Ex.PW29/A and FIR Ex.PW29/B. He further stated that thereafter he reached at the spot, i.e near red light, T-point, village Tahirpur, where SI Rajpal/PW-25, HC Pramod/PW-5 and other staff members met him, who had apprehended accused Sonu Gupta @ Raju. He further stated that on the pointing out of SI Rajpal, he prepared site plan of the place of incident vide Ex.PW29/C and one sealed parcel containing government revolver (seizure memo Ex.PW29/D), sketch thereof as Ex.PW29/E were handed over to him. He further stated that custody of accused Sonu Gupta @ Raju was handed over to him, he interrogated/arrested him and conducted his personal search vide memos Ex.PW29/F-1 and Ex.PW29/F-2 and thereafter recorded his disclosure statement vide memo Ex.PW29/G, bearing his signatures at point C. He further stated that on 20.03.2009 he had handed over photocopy of documents of case FIR No.39/2009, PS Crime Branch to IO, Inspector Sanjay Nagpal and thereafter the said case file was clubbed with the instant case.
(ii) He further stated that on 26.08.2009 at about 9.40 AM, accused Sabir @ Bada Raja was apprehended by him from under the flyover of Gokalpuri-Wazirabad Road and was booked under Kalandra proceedings under Section 41.1(a) Cr.P.C and thereafter arrested him vide memos Ex.PW29/H-1 and Ex.PW29/H-2 and also recorded his disclosure statement vide memo Ex.PW29/H-3. He further stated that All Accused persons "Acquitted" Page 22 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 on 26.08.2009 he had recorded DD No.3A at PS Crime Branch regarding receipt of secret information qua accused Sabir @ Bada Raj and copy of said DD has been proved on record as Ex.PW9/H-4; Kalandra as Ex.PW22/A; and copy of DD No.8 as Ex.PW29/H-5.
(iii) This witness was thoroughly cross-examined by the defence. In his cross-examination by learned defence counsel(s), this witness stated that he himself had recorded the disclosure statement of accused Sonu Gupta. He admitted that the sealed parcel of revolver was not prepared by SI Rajpal/PW-25 in his presence. He could not tell whether SI Rajpal had lifted finger prints from the service revolver or not. He further stated that no public person was found present at the place of arrest of accused Sonu Gupta and he had stayed at the spot till 10.30 PM. He further stated that accused Sabir @ Bada Raja was arrested by him at about 9.40 AM, many passers-by were present there, but none agreed to join the proceedings. He further stated that at the time of effecting arrest of accused Sabir @ Bada Raju, three police officials namely HC Pramod/PW-5, HC Sandeep and Constable Anoop were present there. He further stated that Rs.32/- were found in the personal search of accused Sabir @ Bada Raju. He denied the suggestion that both the aforesaid accused persons have been falsely implicated in the matter.
Witnesses of medical evidence
23. (i) PW-3, Dr.R.K Shah, CMO of GTB Hospital in his evidence stated that on 13.03.2009, one patient by the name of HC Onkar Singh, son of unknown, male, aged about 47 years was brought in the hospital by HC Azad Khan/PW-13 of PCR with the alleged history of "RTA" (Road Traffic Accident), who had sustained severe head and facial injury. He further stated that the said patient was medically examined by Dr.Mukesh Kumar under his supervision vide MLC No.1100/2009, which has been proved on record as Ex.PW3/A. He further stated that Dr.Mukesh had now expired. As per the MLC (Ex.PW3/A), the injuries suffered by HC Onkar Singh/PW-31 were:
(a) 8 cm lacerated wound right PT region;
All Accused persons "Acquitted" Page 23 of 45SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021
(b) Approximately 5 cm lacerated wound left front temporal region;
(c) Approximately 3 cm lacerated wound left side outer contour of eye;
(d) Contusion with orbital region;
(e) Contusion and swelling left face.
(ii) He further stated that patient was referred to Neuro-Trauma Ward and
Dental Department for further treatment and advised for CT-brain, x-ray of face and spine.
(iii) He further stated that during the course of treatment, the patient was found "unfit for statement".
(iv) In his cross-examination by learned defence counsel(s), this witness stated that MLC (Ex.PW3/A) was prepared in Accident and Emergency Department and the patient was not referred to any other hospital. However, he could not tell as to when the patient was discharged from the hospital.
24. PW-30, Dr.P. Ram, who was posted as DMS at GTB Hospital at the relevant time had identified the signatures of Dr.Mukesh Kumar Jha and Dr.Deepak Aggarwal on MLC (Ex.PW3/A) of patient/HC Onkar Singh. He further stated that Dr.Mukesh Kumar Jha had expired while Dr.Deepak Aggarwal had left the services of hospital. He identified the endorsement made by the said doctors on MLC vide Ex.PW30/A (Colly). He further stated that as per MLC, patient/HC Onkar Singh remained unfit for making statement w.e.f 13.03.2009 till 18.03.2010.
This witness was not cross-examined by the defence despite according due opportunity.
Formal witnesses
25. (i) PW-1, Constable Sanjay Kumar was lying posted as "Malkhana Munshi" in PS Nand Nagri on 12.03.2009. He in his evidence stated that on the said day, he had issued revolver No.271 of 0.38 bore alongwith five live cartridges to HC Onkar Singh/PW-31 and had made entries in this regard in the Arms Register. He All Accused persons "Acquitted" Page 24 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 further stated that pursuant to receipt of information on the said day, at about 12.15/12.30 AM he went to the place of incident, i.e B-1 Block Market, Nand Nagri where he informed ASI Rambir Singh/PW-23 that he had issued the said revolver and cartridges to HC Onkar Singh. He has proved on record the entry made at S.No.26 in respect of handing over the firearm and ammunition to HC Onkar Singh on 13.03.2009 vide Ex.PW1/A.
(ii) In his cross-examination by learned defence counsel(s), he admitted that date has not been mentioned in Ex.PW1/A. However, he volunteered to state that date is lying mentioned on the side page which was handed over to IO. He further stated that he went to the spot without making any departure entry in the PS and remained present at the spot for about 15-20 minutes. He stated that nothing was seized by the IO in his presence, however, the motorcycle of HC Onkar Singh was lying at the spot at that time. He further stated that no public person arrived at the spot in his presence.
26. (i) PW-2, SI Rajbir Singh was lying posted as Duty Officer in PS Nand Nagri on 13.03.2009 and has proved on record endorsement made by him upon rukka (which was produced before him by HC Subhash Chand/PW-10) as Ex.PW2/A and copy of FIR recorded by him in the matter as Ex.PW2/B. He further stated that after registration of FIR, copy thereof alongwith original rukka were handed over to HC Subhash Chand for handing over the same to Inspector Sanjay Nagpal, to whom the investigation was marked. He further stated that he had also recorded DD No.55A regarding registration of FIR. He further stated that on 12.03.2009 he had recorded DD No.78 at Rojnamcha B, copy whereof has been proved on record as Ex.PW2/C. He further stated that on the intervening night of 12/13.03.2009, he had also recorded DD No.34A, copy of which has been proved on record as Ex.PW2/D (OSR).
(ii) In his cross-examination by learned defence counsel(s), this witness stated that DD No.34A was registered by him on the request of SI Lekh Raj/PW-29.
All Accused persons "Acquitted" Page 25 of 45SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021
27. PW-7, Constable Munesh Kumar has proved on record the computerized copy of FIR No.39/2009, PS Crime Branch as Ex.PW7/A. He further stated that the aforesaid FIR was registered by HC Jaipal Singh at the instance of SI Rajpal Singh of ARC/Crime Branch and after registration of said FIR, further investigation thereof was marked to SI Lekh Raj.
Despite according opportunity, this witness was not cross-examined by the defence.
28. PW-8, Constable Gajender Singh has proved DD No.8, dated 26.08.2009 pertaining to Anti-Robbery Cell, Crime Branch, Nehru Place as Ex.PW8/A. He further stated that aforesaid DD was recorded by SI Lekh Raj/PW-29 qua arrival and arrest of accused under Section 41.1(A) Cr.P.C and his departure.
Despite according opportunity, this witness was not cross-examined by the defence.
29. PW-9, Addl. DCP (Outer District) Rajesh Deo in his evidence stated that on 12.03.2009 he was lying posted as ACP (Seemapuri). He has proved on record complaint, dated 14.05.2009, made by him under Section 195 Cr.P.C and filed before the Court of Ld.ACMM, Karkardooma District Courts as Ex.PW9/A. Despite according opportunity, this witness was not cross-examined by the defence.
30. PW-11, Constable Kailash in his evidence stated that on 11.05.2009, he had taken eight pulandas (some bearing the seal of SN and some bearing seal of GTB) from the malkahana of PS Nand Nagri in sealed condition vide RC No.61/21 and deposited the same at FSL, Rohini. He further stated that the seals were intact and case property(ies) was not tampered with till the time same remained in his possession.
In his cross-examination by defence, he stated that IO had not recorded his statement in the matter. He denied the suggestion that the case property was tampered with.
All Accused persons "Acquitted" Page 26 of 45SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021
31. (i) PW-12, HC Prem Singh was posted as DD Writer at PS Nand Nagri in the intervening night of 12/13.03.2009. He has proved on record copy of DD No.78B regarding departure of HC Onkar Singh with other police officials for patrolling as Ex.PW2/C. He further stated that at about 12.40 AM, he received a wireless call from the operator regarding one police official lying in injured condition near 212 bus stand, Nand Nagri in front of Pehalwan Dhaba, which was recorded by him vide DD No.81B, copy of which has been proved on record as Ex.PW12/A.
(ii) In his cross-examination by defence, he stated that DD No.78B (Ex.PW2/C) was recorded by him. He further stated that after recording DD No.81B (Ex.PW12/A), he gave information to ASI Rambir, however, the IO did not record his statement in this regard.
32. (i) PW-13, HC Azad Khan in his evidence stated that on 12.03.2009 he was posted at PCR, North-East Zone and was on duty on PCR Van Baker 15 at GTB Chowk, when at about 12.30 AM he received a wireless call from PCR HQ that one police official had been lying in injured condition at bus stop 212, Nand Nagri near Pehalwan Dhaba. He further stated that eh alongwith driver and gunman reached at the above said place where they found one police official in injured condition, whose name was later on revealed as HC Onkar Singh. He further stated that he immediately took HC Onkar Singh to GTB Hospital and admitted him there and informed the doctor that HC Onkar Singh had received injuries in an "accident". He further stated that thereafter he came back at the spot, where some public persons informed him that HC Onkar Singh was given beatings by some persons and due to said beatings he had received injuries and it was not a case of accident. He further stated that local police met him at GTB Hospital and IO had recorded his statement.
(ii) He was thoroughly cross-examined by the defence. In his cross- examination by learned defence counsel, this witness admitted that he had told the doctor at GTB Hospital that injured (HC Onkar Singh) had received injuries in a road "traffic accident". He further stated that he remained at GTB All Accused persons "Acquitted" Page 27 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 hospital for about 15-20 minutes. He further stated that he informed SHO and found that injured police official had suffered injuries in an accident. He further stated that IO did not record his statement at that time. He further stated that IO did not record the statement of any other witness in his presence. He further stated that there was no public person was found present at the spot when he met injured HC Onkar Singh. He further stated that he had reached the spot at about 12.35/12.40 AM, but he did not lodge any DD regarding a police official having been found in injured condition at the spot. He further stated that no written work was done by the IO in his presence.
33. PW-15, HC Prem Pal Singh at the relevant time was lying posted as MHC(M) at PS Nand Nagri and he has proved on record the entries made by him in Register No.19 regarding deposition of various sealed parcels and exhibits of the case in Malkhana by the IO. The details of the said entries are as under:
(a) Two sealed pulandas, sealed with seal of GTB Hospital deposited by Inspector Sanjay Nagpal/PW-28 in the malkahana on 13.03.2009 vide Entry No.4219, copy of same has been proved on record as Ex.PW15/A;
(b) Four sealed pulandas, sealed with seal of SN; one spectacle with one glass separated from the spectacles, one pair of shoes with socks, one Hero Honda motorcycle bearing registration No.HR26M/5839, one mobile phone deposited by Inspector Sanjay Nagpal/PW-28 in the malkahana on 13.03.2009 vide Entry No.4220, copy of same has been proved on record as Ex.PW15/B;
(c) Case property of the case deposited by Inspector Sanjay Nagpal/PW-28 on 22.03.2009 vide Entry No.4256, copy of same has been proved on record as Ex.PW15/C;
(d) One blood sample in sealed condition, sealed with seal of CMO, AIIMS, ND, deposited in malkhana by ASI Harbir Singh on 27.03.2009 vide Entry No.4268, copy of same has been proved on record as Ex.PW15/D;
(e) One sealed pulanda, sealed with seal of RSS, brought vide RC No.79/21, All Accused persons "Acquitted" Page 28 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 deposited in malkahana by HC Beghraj on 30.03.2009 vide Entry No.4278, copy of same has been proved on record as Ex.PW15/E;
(f) One baseball bat deposited in malkahana by Inspector Sanjay Nagpal on 13.08.2009 vide Entry No.4507, copy of same has been proved on record as Ex.PW15/F;
(g) One sealed pulanda, sealed with seal of SN, deposited in malkahana by Inspector Sanjay Nagpal on 29.08.2009 vide Entry No.4536, copy of same has been proved on record as Ex.PW15/G;
(h) On 11.05.2009, eight exhibits of the case were sent to FSL, Rohini, Delhi vide RC No.61/21 through Constable Kailash and entry in this regard has been proved on record as Ex.PW15/B;
(g) On 15.06.2009, one sealed pulanda and five live cartridges were sent to FSL, Rohini vide RC No.72/21 through Constable Mahipal and entry in this regard has been proved on record as Ex.PW15/E;
(h) On 20.11.2009, one sealed pulanda was sent to FSL, Rohini vide RC No.165/21 through Constable Ram Naresh and entry in this regard has been proved on record as Ex.PW15/G.
(i) He has further proved on record copy of RC No.61/21, dated 11.05.2009 as Ex.PW15/H. In his cross-examination by learned defence counsel, this witness admitted that he had not obtained the signature of Inspector Sanjay Nagpal/PW-28 in Register No.19. He, however, categorically denied the suggestion that the said entries were made by him in connivance with Inspector Sanjay Nagpal.
34. (i) PW-17, Shri Sanjay Khanagwal, the then learned Metropolitan Magistratre in his evidence stated that on 27.03.2009 he had visited Central Jail No.5 for conducting Test Identification Parade (TIP) of accused Sonu Gupta @ Raju in the matter pursuant to an application Ex.PW17/A, moved by IO, Inspector Sanjay Nagpal/PW-28. The accused was identified by Superintendent Jail concerned vide his statement Ex.PW17/B. He further stated that accused Sonu Gupta @ Raju had All Accused persons "Acquitted" Page 29 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 refused to take part in the judicial Test Identification Parade (TIP) and he had recorded the statement of accused in this regard vide Ex.PW17/C. The Certificate in this regard has been proved on record as Ex.PW17/D, while the application of IO, requesting a copy thereof has been proved on record as Ex.PW17/E.
(ii) He further stated that on 16.04.2009, an application Ex.PW17/F was marked to him by learned Link MM for recording the statement under Section 164 Cr.P.C of witness Bhim Singh. He has proved on record the statement recorded under Section 164 Cr.P.C of witness Bhim Singh by him as Ex.PW17/G (also Ex.PW4/A); certificate in this respect has been proved on record as Ex.PW17/H; and the application moved by IO requesting for supplying a copy thereof has been proved on record as Ex.PW17/J. Despite according opportunity, this witness was not cross-examined by the defence.
35. PW-19, HC Ashok Singh in his evidence stated that on 29.08.2009 he was posted as Naib Court in the Court of Ms.Shivali Sharma, learned MM, when accused Sabir @ Bada Raju had surrendered in the Court and he was arrested by IO, Inspector Sanjay Nagpal vide arrest memo Ex.PW16/B and his disclosure statement was recorded vide Ex.PW19/A. Despite according opportunity, this witness was not cross-examined by the defence.
36. PW-22, Shri Pawan Kumar Sinha, Ahlmad has proved on record the Kalandra proceedings under Section 41.1 (a) Cr.P.C vide DD No.8, dated 26.08.2009 in respect of accused Sabir @ Bada Raju as Ex.PW22/A. Despite according opportunity, this witness was not cross-examined by the defence.
37. PW-23, HC Ravinder Kumar has proved on record the chargesheet of case FIR No.39/2009, PS Crime Branch as Ex.PW24/A. He stated that the All Accused persons "Acquitted" Page 30 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 cancellation report in respect of said chargesheet was accepted by learned ACMM vide order dated 21.07.2009.
38. PW-27, Sanjay Dutta, photographer has proved on record the photographs of the spot/SOC and the articles lying there as Ex.PW27/A1 to Ex.PW27/A6. He stated that the positives of said photographs were handed over to IO while the negatives thereof got destroyed due to moisture.
Despite according opportunity, this witness was not cross-examined by the defence.
39. This is all as far as prosecution evidence in the matter is concerned. The PE in the matter stood closed vide order dated 02.07.2018. Thereafter, statements of all the accused persons under Section 313 Cr.P.C were recorded, wherein they claimed themselves to be innocent and having been falsely implicated in the matter. Accused Sonu Gupta @ Raju took refuge under the "plea of alibi" by stating that he was not present at the spot/SOC at the time of alleged incident and instead he was present at his residence. Accused Mohd. Imam @ Imamuddin stated that he had been falsely implicated in the matter on account of several other cases having been registered against him. Both the aforesaid accused persons preferred to lead defence evidence in the matter. During the interregnum, accused Imam @ Imamuddin moved an application under Section 315 Cr.P.C, which stood allowed by this Court vide order dated 23.01.2019 and as such, this accused was examined as DW-1 in the matter. On the other hand, despite according repeated opportunities accused Sonu Gupta @ Raju failed failed to bring any witness in his defence and as such, this Court was constrained to close DE in the matter vide order dated 23.04.2019.
(ii) Remaining two accused persons namely Sabir @ Bada Raju and Santosh @ Pappu Yadav did not prefer to lead any defence evidence.
40. Now, let us see as to what accused Mohd. Imam @ Imamuddin had said in his evidence, pursuant to allowing of his application under Section 315 Cr.P.C by this Court vide order dated 23.01.2019.
All Accused persons "Acquitted" Page 31 of 45SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021
41. (i) DW-1, accused Mohd. Imam @ Imamuddin in his evidence stated that he was not present at the spot at the time of incident. He further stated that police officials of PS Nand Nagri had threatened him to become secret informer, which he refused and thus, this case. He further stated that he was "bad character"
(BC) of the District and several criminal cases were lying registered against him, in which he stood acquitted by the concerned Court. Details of the said cases have been enumerated as under:
(a) FIR No.272/2003, PS Dilshad Garden; photocopy of judgment marked as Mark D-A;
(b) FIR No.17/2002, PS Dilshad Garden; photocopy of judgment marked as Mark D-B;
(c) FIR No.129/2008, PS Dilshad Garden; photocopy of judgment marked as Mark D-C;
(d) FIR No.91/2006, PS Dilshad Garden; photocopy of judgment marked as Mark D-D;
(e) FIR No.399/2003, PS Nand Nagri; photocopy of judgment marked as Mark D-E and;
(f) FIR No.162/2004, PS Nand Nagri; photocopy of judgment marked as Mark D-F.
(ii) He further stated that he had been subjected to harassment by SHO, PS Nand Nagri and his subordinate police officials since he had filed a Criminal Writ Petition bearing No.1958/2016 before the Hon'ble High Court of Delhi against the aforesaid officers in relation to case FIR NO.913/2015, PS Nand Nagri. Certified copy of the order passed in said writ petition has been proved on record as Ex.DW1/A.
(iii) In his cross-examination by learned Addl. PP, this witness stated that he had not made any complaint to police or any other authority in writing on the day of incident.
Arguments advanced at bar
42. While opening the arguments, the learned Additional PP for the State has very vehemently argued that injured/PW-31 HC Onkar Singh during the course of recording of his evidence in the Court on 25.04.2018 has categorically identified the accused persons as the assailants, who had assaulted him on the intervening night of All Accused persons "Acquitted" Page 32 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 12/13.03.2009 when he was on patrolling duty in the area. It is emphasized that the evidence tendered by injured/PW-31 is credible/trustworthy and same is getting fortified on account of the recoveries effected from the accused persons. He has argued that the service revolver of the injured/PW-31 had been recovered from the possession of accused Sonu Gupta @ Raju, while three live cartridges were recovered at the instance of accused Sabir @ Bada Raju. As a sequel thereto, he has further very vehemently argued that black colour raxine purse, identity card and other belongings of injured/PW-31 were recovered from the possession of accused Santosh @ Pappu Yadav; whereas, the weapon of offence, i.e the baseball bat had been recovered from the possession of accused Imam @ Imamuddin, who has been a "bad character" (BC) of PS Nand Nagri area, meaning thereby that the accused persons were the assailants who had brutally beaten/assaulted PW-31 on the fateful night of 12/13.03.2009 when he had confronted them for drinking alcohol in a public place.
43. (i) It is next argued that even independent public/eye witness PW-4/Bhim Singh has also categorically identified the accused persons as the assailants, who had brutally beaten injured/PW-31 on the intervening night of 12/13.03.2009. While drawing my attention to the examination-in-chief of PW-4, learned Addl. PP has very vehemently argued that this witness has categorically named two accused persons namely Imam @ Imamuddin and Santosh and further pointed out towards the other two accused persons during the course of recording of his evidence in the Court. It is argued that this witness has specifically stated that he knew accused Imam and Santosh as they had been living in the area of Nand Nagri.
(ii) The learned Addl. PP further drew my attention to the statement of this witness recorded under Section 164 Cr.P.C (Ex.PW4/A) and argued that all the statements (i.e statements recorded under Section 161 Cr.P.C and 164 Cr.P.C and the evidence tendered in Court) of this witness are in consonance with each other, whereby he has not only narrated the entire sequence of events but has also categorically identified the accused persons to be the assailants. It is emphasized that his testimony inspires confidence and even the statement recorded under Section 164 All Accused persons "Acquitted" Page 33 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 Cr.P.C of this witness cannot be thrown into dustbin merely on account of some delay therein.
(iii) He has further argued that it is well settled that where a witness to the occurrence has himself been injured in the incident, the testimony of such witness is generally considered to be reliable and as he is a witness that comes in with built in guarantee of his presence at the scene of crime. The said aspect cannot be ignored in view of the overwhelming evidence of injured/PW-31 and eye witness/PW-4 Bhim Singh.
44. On the other hand, the defence has built its castle of arguments as under:
(a) First and foremost, it is argued that PW-31 had sustained injuries on the intervening night of 12/13.03.2009 in a "road traffic accident" (RTA) and not at the hands of accused persons as none of them was present at the spot/SOC on the date and time of incident. In support of his aforesaid contention, learned counsel(s) has drawn my attention to the evidence of PW-3/Dr.P.K Shah and the MLC (Ex.PW3/A) of injured/PW-31, prepared at GTB Hospital, wherein in the column of alleged history, "RTA" (road traffic accident) is lying mentioned. It is argued that the doctor(s) at GTB Hospital of their own volition had not written "RTA" on MLC Ex.PW3/A and instead the same was written by the concerned doctor after being specifically informed of in this regard by PW-13/HC Azad Khan, who had brought the injured/PW-31 to hospital in the PCR van. It is contended that admittedly, PW-13/HC Azad Khan was the first person who had reached the spot/SOC pursuant to call made at number 100. No investigation has been conducted on the point as to why PW-13 had told "RTA" to the doctor(s) of GTB Hospital. It is contended that accused persons have been made scapegoats just to work out the case and out of animosity as accused Imam @ Imamuddin had filed a criminal revision petition before the Hon'ble High Court of Delhi against the police officials of PS Nand Nagri, wherein some adverse comments were made by Hon'ble High Court against the police officials of PS Nand Nagri.All Accused persons "Acquitted" Page 34 of 45
SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021
(b) It is next argued that present is a very strange case in as much as no statement under Section 161 Cr.P.C of injured/PW-31 HC Onkar Singh has been recorded in the matter by the IO/investigating agency; even he was not made a witness in the case, which in turn has caused severe prejudice to the accused persons. It is further argued that admittedly PW-31 had received injuries in the matter on the intervening night of 12/13.03.2009 and he stepped into the witness box in the Court for the first time on 25.04.2018, i.e almost after lapse of nine long years. Between this period, admittedly there was no reason or occasion for PW-31 to have either met or seen the accused persons. It is argued that even for a common healthy person of ordinary prudence, it is very difficult to identify a person at the blink of an eye after such a long period of time; whereas, in the instant case PW-31 had categorically identified the accused persons despite his poor mental/medical condition, which is quite surprising and highly unbelievable. It is emphasized that on account of aforesaid reasons, the statement/evidence of PW-31 cannot be believed and as such, the identification of accused persons by him is of no consequence. In continuation of the aforesaid, it is very strenuously contended that first time identification of an accused in the Court by any witness is no identification in the eyes of law. Reliance in this regard has been placed upon judgment titled as, "Budh Sen & Ors. V/s State of UP", IR 1970 HC 1321.
(c) It is next contended that injured/PW-31 HC Onkar Singh in his evidence had stated that accused persons had hit him with a "danda", but the investigating agency has effected recovery of "baseball bat" from accused Imam @ Imamuddin. Even the recovery thereof has been effected in absence of any independent public witness, which in turn is hit by Section 27 of Indian Evidence Act. It is further argued that house of accused Imam @ Imamuddin from where the alleged recovery of baseball bat has been made was in "joint possession", so at least it was incumbent upon the IO/ investigating agency to have effected recovery thereof in presence of some public witness(es), which All Accused persons "Acquitted" Page 35 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 admittedly has not been done and as such, the benefit thereof should be accorded to the accused persons. It is emphasized that even no site plan of the place of recovery of alleged baseball bat has been prepared by the IO/investigating agency and also no blood stains were found on the said baseball bat.
(d) It is further argued that admittedly the case FIR in the matter has been registered on the basis of DD No.81B (Ex.PW12/B). During the course of recording of said DD the alleged eye witness PW-4/Bhim Singh was present at the spot/SOC, but his name does not find mention in the said DD which itself makes the prosecution case doubtful. Even PW-4 in his evidence has stated that he knew two accused persons namely Imam @ Imamuddin and Santosh Yadav prior to the date of incident. It is submitted that why the FIR in the matter was not registered on the statement of alleged eye witness PW4/Bhim and why the same has been registered merely on the basis of DD No.81 B (Ex.PW12/B). This puts the prosecution story in docks. A strong pitch has been made that when PW-4/Bhim was present at the spot/SOC at the relevant time, then it was all the more incumbent upon the investigating agency to have registered FIR on his statement to lend credibility to the prosecution case, which admittedly has not been done and thus, the story propounded by prosecution becomes doubtful. Even PW-23 ASI Rambir in his evidence stated that when he reached at the spot, he did not find any public person there.
(e) It is further very vehemently argued that PW-4/Bhim Singh is a "planted witness" because initially in his examination-in-chief he had mentioned wrong date of incident and it is for this reason that learned PP had to sought permission of this Court for putting a leading question to him qua the date of incident. Even the FIR in the matter has not been registered upon his statement, despite the prosecution's claim of he being an eye witness. The presence of PW-4 at the spot/SOC is further doubtful from the fact that he did All Accused persons "Acquitted" Page 36 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 not make even a bleak attempt to save PW-31 from the clutches of accused persons, despite he having known PW-31 prior to the incident in question. It is next contended that even the site plan of the place of incident (Ex.PW28A also Ex.PW29/C) and seizure memo qua seizure of various articles from the spot/SOC by the concerned IO does not bear the signatures of PW-4/Bhim Singh, which gives an impression that this witness was not all present at the spot/SOC at the relevant time. As a corollary thereof, it is further argued that even the statement under Section 164 Cr.P.C (Ex.PW17/G) of this witness was recorded on 16.04.2009, i.e after a delay of about one month of the alleged incident and the prosecution has not been able accord any cogent/plausible explanation for the said delay, the benefit whereof should be accorded to the accused persons. Even in his statement Ex.PW17/G, he had only named two accused persons, i.e Imam @ Imamuddin and Santosh @ Pappu Yadav and he did not specifically name the other two accused persons.
(f) It is further argued that from the perusal of Ex.PW1/A, which is the Register containing details of ammunitions issued to a particular police official, it is noted that against Entry No.26, no date of issuance of ammunition to HC Onkar Singh has been mentioned. It is argued that a perusal of Entry No.23 in Ex.PW1/A reveals that ammunition to concerned official, i.e HC Prem Singh was issued at 1.00 AM on 13.03.2009; while the duty of HC Onkar Singh started on the evening/night of 12.03.2009. It is argued that how an entry of subsequent/following day (i.e of 13.03.2009) can be recorded above the entry of ammunition(s) allegedly issued to any police official on 12.03.2009 vide Entry No.26. The said factum clearly indicates manipulation in Ex.PW1/A. It is emphasized that after the apprehension of accused persons namely Sonu Gupta @ Raja and Sabir @ Bada Raju by the police officials of Special Cell, false evidence has been created in the matter by the police officials of PS Nand Nagri to falsely implicate the accused persons in the instant matter.
All Accused persons "Acquitted" Page 37 of 45SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021
(g) It is very vociferously argued that another eye witness namely PW- 14/Raj Kumar, who admittedly had made call at number 100 from his mobile number 9910592661 did not name/identify the accused persons, which further strengthens the fact that PW-4/Bhim Singh is a "planted witness".
(h) It is further argued that there is no scientific evidence in the form of "finger prints" to lend credence to the prosecution story. Even the alleged "baseball bat" was not sent for FSL examination for ascertaining the finger prints of accused Imam @ Imamuddin thereupon. It is next contended that even the three live cartridges were recovered from the house of Sabir @ Bada Raju on 29.08.2009, however, the same were sent to FSL on 19.11.2009, i.e almost after a delay of about 2½ months, which makes the prosecution case doubtful.
(i) The learned counsel for the accused persons has further pointed out certain contradictions in the evidence/statements of PW4/Bhim Singh, PW14/Raj Kumar, PW28/Inspector Sanjay Nagpal and PW31/Onkar Singh to put dent in the prosecution story. The contradictions, so pointed out have been enumerated as under:
(i) PW4/Bhim Singh in his evidence recorded in the Court on 19.02.2011 stated that after the incident police/ASI Rambir immediately took him; while in his statement recorded under Section 164 Cr.P.C he stated that after the incident he went to his home. Furthermore, PW-4 in his evidence on 19.02.2011 stated that, "chowkidar of the area also reached there and someone called the police at number 100"; whereas, in his statement recorded under Section 164 Cr.P.C (Ex.PW17/G) this witness stated that, "after hearing the noise, chowkidar came there and he made a call at number 100".
All Accused persons "Acquitted" Page 38 of 45SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021
(ii) PW-4/Bhim Singh in his cross-examination conducted on 19.02.2011 categorically stated that there was light at the place of incident; whereas, injured/PW-31 HC Onkar Singh in his cross- examination stated that he had sustained injuries in the incident between 12.00 midnight to 1.00 AM and there was dark at the spot.
(iii) PW-28/Inspector Sanjay Nagpal stated in his cross-examination that he had recorded the statement of PW4/Bhim Singh at about 5.30 AM at the place of incident, but PW-4 in his cross-examination stated that he had given his statement to the police on the next day.
Legal position and conclusion
45. I have given my thoughtful consideration to the arguments advanced at bar and carefully gone through the entire material on record, including the evidence recorded in the matter.
46. (i) Admittedly, the prosecution in this case is relying heavily upon the testimonies of two witnesses, i.e injured/PW-31 HC Onkar Singh and eye witness/PW-4 Bhim Singh. Firstly, let us take the case of PW-31/HC Onkar Singh. It is a matter of record that IO/investigating agency had neither recorded the statement under Section 161 Cr.P.C of injured/PW-31 HC Onkar Singh at any point of time nor cited him as a witness in the matter. Be that as it may, a perusal of MLC (Ex.PW3/A) of injured/PW-31 HC Onkar Singh reveals that he was admitted in GTB Hospital by PW-13/HC Azad Khan (PCR van Incharge) with the alleged history of "RTA" (road traffic accident). Even in his cross-examination, PW-13/HC Azad Khan had duly admitted that he had told the doctor at GTB Hospital that injured/PW- 31 had received injuries in a road traffic accident and no case of assault had been mentioned by him. PW-13 was the first police official to reach at the spot/SOC. When PW-13 had reached at the spot, he did not find any public person present at the spot. The mentioning of "RTA" in MLC Ex.PW3/A at the first place creates doubt All Accused persons "Acquitted" Page 39 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 about the manner of injury received by PW-31. Even the prosecution has no answer as to why PW-13/HC Azad Khan told the doctor(s) at GTB Hospital as "RTA" during the course of preparation of MLC (Ex.PW3/A) of injured PW-31/HC Onkar Singh.
(ii) Furthermore, the identification of accused persons by PW-31 also does not appeal to the senses in as much as immediately after sustaining injuries at the spot/SOC on the intervening night of 12/13.03.2009 he had become unconscious. Thereafter, he neither met nor identified the accused persons during the course of investigation. PW-31 for the first time identified the accused persons in Court on 25.04.2018, i.e after about a gap of long nine years. Admittedly, after the incident in question, PW-31 had not been fully medically fit and it appears that on this account his statement under Section 161 Cr.P.C could not be recorded by the IO. It is a matter of record that owing to his poor medical condition, PW-31 had not come independently to depose in the Court and instead he came to the Court with his son (which factum is evident from his evidence). So, it is highly unbelievable that PW- 31 could precisely identify the accused persons at the blink of an eye after a gap of long nine years that too when he is not medically fit to take proper care of himself. It is common knowledge that even for a man of ordinary prudence, it is highly difficult to identify any person after a gap of nine long years. The physique and appearance of a person undergoes considerable change in nine years. It is a matter of record that between the period 12/13.03.2009 to 25.04.2018 (i.e day of receiving injuries by PW- 31 and his deposition in Court) he neither met the accused persons even once nor identified them before any forum. It is further a matter of record that PW-31 identified the accused persons for the first time in Court only. So, on this account, I find substance in the submissions of learned defence counsel(s) that identification of accused persons by PW-31 after a gap of nine long years is not of much significance and first time identification in Court is no identification in the eyes of law (reference judgment titled as, "Budh Sen & Ors. V/s State of UP", IR 1970 HC 1321). A further mute question arises that when PW-31 had identified the accused persons then why he failed to identified the weapon of offence, i.e the "danda".
All Accused persons "Acquitted" Page 40 of 45SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021
47. (i) As regards the credibility of eye witness PW-4/Bhim Singh, it is noted that at the first instance he had not mentioned the date of incident correctly during the course of recording of his evidence before the Court and on this account learned Addl. PP had to put a leading question to him. Be that as it may, PW-4 categorically stated in his examination-in-chief that he knew injured/PW-31 being Beat Official of the area, but PW-31 had not whispered a word about he having known PW-4. Even there are major contradiction(s) in the statements of PW-4 recorded in the Court on 19.02.2011 and his statement recorded under Section 164 Cr.P.C (Ex.PW17/G also Ex.PW4/A). In his statement recorded in the Court on 19.02.2011, PW-4 stated that pursuant to his screaming Chowkidar of the area reached at the spot and someone called the police at number 100; whereas, in his statement recorded under Section 164 Cr.P.C (Ex.PW17/G also Ex.PW4/A) he categorically stated that pursuant to his screaming chowkidar came at the spot and made call at number 100. He even did not mention the names of accused Sonu Gupta and Sabir @ Bada Raju in his statement recorded under Section 164 Cr.P.C. It is further surprising to note that as per the story propounded by prosecution, he was an eye witness of the incident, however, the site plan of the place of incident (Ex.PW29/C also Ex.PW28/A) was not prepared at his instance, even the same does not bear his signatures. It was all the more incumbent upon the IO/investigating agency to have atleast obtained his signatures on the site plan (Ex.PW29/C) to atleast lend some credence to his testimony. It is further surprising to note that nothing had been recovered in his presence by the police from the spot/SOC, though he was the first one to reach to the spot while taking a stroll in the area. His signatures are not even there on any of the seizure memo(s) which were prepared at the place of incident/SOC. Further, it is also quite surprising that he did not accompany PW-31 to hospital despite he having known him prior to the date of incident. He even could not tell the number of bike of HC Onkar Singh. He stated in his cross-examination that there was light at the spot/SOC; whereas, injured/PW-31 HC Onkar Singh stated that it was completely dark.
All Accused persons "Acquitted" Page 41 of 45SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021
(ii) There is even delay in recording the statement under Section 164 Cr.P.C of PW-4/Bhim Singh. Admittedly, the incident in question happened on the intervening night of 12/13.02.2009, however, the statement under Section 164 Cr.P.C of this witness was got recorded on 16.04.2009. The Hon'ble Supreme Court in cases of State of H.P. V. Gian Chand, (2001) 6 SCC 71 and Dilawar Singh v. State (NCT of Delhi), (2007) 12 SCC 641, has been pleased to note the effect of the delay in recording statements of witnesses. It was noted: "If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case." In the case on hand, the delay in recording the statement of this witness under Section 164 Cr.P.C has nowhere been explained by the prosecution.
(iii) The most important thing which is boggling this Court is that when PW- 4/Bhim Singh himself was present at the spot/SOC at the relevant time, then why the said factum does not find mention in DD No.81B (Ex.PW12/A) and secondly why the FIR in the matter was not registered on his statement. It was incumbent upon the investigating agency to have put it best foot forward to prove its case, in which it has miserably failed. The prosecution has no answer as to why FIR in the matter was not registered on the statement of PW-4/Bhim Singh and same was merely registered on the basis of DD No.81B (Ex.PW12/A). I am of the considered opinion that this a major procedural lapse on the part of investigating agency which goes to the root of factual matrix and the accused persons are entitled to benefit thereof.
(iv) All the aforesaid goes on to cement the submissions made by learned defence counsel(s) that PW-4 is a "planted witness" and I agree with the same.
48. (i) PW-31 has categorically stated in his evidence that he was hit by a "danda". Similarly, PW-4 has also stated in his examination-in-chief that 4-5 persons were beating a person by "danda"; whereas the police has recovered a "baseball bat" in the matter. Be that as it may, it is quite surprising to note that no All Accused persons "Acquitted" Page 42 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 blood stains were found present upon the said baseball bat. The said baseball bat was never sent for FSL examination. Even, the recovery thereof has been effected after considerable lapse of time and that too not in presence of any independent public witness. Furthermore, PW-4 was not called by the police to lend credence to the alleged recovery of baseball bat from the house of accused Imam @ Imamuddin. Even no site plan of the place of recovery of said baseball bat had been prepared in the matter by the police. The recovery of alleged weapon of offence is clearly hit by Section 27 of Indian Evidence Act.
(ii) It is a matter of record that PW-23/ASI Rambir did not collect any liquor bottle, glasses or eating stuff from the spot which may lend authenticity to the claim of prosecution that the accused persons had been consuming liquor at the spot.
(iii) Even no scientific evidence in the form of finger print(s) and chance print(s) is there on record to connected the accused persons with the commission of crime in this case.
49. One more important thing, which is worth noticing is the document Ex.PW1/A, i.e copy of register containing entries of arms/ammunitions handed over to police officials during the course of their duty(ies). A perusal of Ex.PW1/A, especially entry No.26 thereof reveals that one revolver was issued to HC Onkar Singh, but the catch point is that it does not depict the date of issuance of said weapon to him which is a material omission and goes to the root of the matter. Even a bare perusal of Entry No.23 of Ex.PW1/A reveals that ammunition to concerned official, i.e HC Prem Singh was issued on 13.03.2009; while the duty of HC Onkar Singh started on the evening/night of 12.03.2009. It does not appeal to senses as to how an entry of subsequent/following day (i.e of 13.03.2009) can be recorded above the entry of ammunition(s) allegedly issued to any police official on 12.03.2009. In this regard, I find submissions in the contentions of learned defence counsel(s) that the said development does not rule out manipulation in Ex.PW1/A. I further find substance in the submissions of learned defence counsel(s) that a false evidence may have been created by the investigating agency after All Accused persons "Acquitted" Page 43 of 45 SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021 apprehension/arrest of accused persons namely Sonu Gupta @ Raju and Santosh @ Pappu Yadav by the officials of Crime Branch.
50. Since, the evidence of PW-4 and PW-31 qua identification of accused persons itself is doubtful, as such I am not going into the numerous contradictions pointed out by the learned defence counsel(s) in the statements of witnesses. However, the said contradictions remain.
51. In view of the aforesaid discussion, I am of the considered opinion that prosecution case has remained in the realm of suspicion. The identification of accused persons by injured/PW-31 HC Onkar Singh and alleged eye witness/PW-4 is not of much consequence in view of the detailed discussion held hereinabove. The guilt or allegation or charges made against a person must be proved beyond all reasonable doubts. It is settled law that suspicion, howsoever, grave, cannot take the place of proof. The burden of proof is always on the prosecution to establish its case beyond reasonable doubt and an accused is presumed to be innocent till his guilt is established to the hilt. The prosecution story is, thus, apparently shrouded with doubts and contradictions.
52. Accordingly, all the accused persons namely (i) Sonu Gupta @ Raju; (ii) Santosh @ Pappu Yadav; (iii) Mohd. Imam @ Imamuddin; and (iv) Sabir @ Bada Raju are acquitted of the offences charged in the case by giving them benefit of doubt. Their bail bonds stand cancelled. Sureties stand discharged. Endorsement, if any, either on the documents of aforesaid accused persons or their sureties be cancelled forthwith. Original documents, if any, either of the aforesaid accused persons or of their sureties be returned to the rightful owner after retaining a photocopy thereof on record.
All Accused persons "Acquitted" Page 44 of 45SC No.44765/2015:FIR No.81/2009:PS New Nand Nagri: State V/s Sonu Gupta @ Raju & Ors. DOD: 17.07.2021
53. File be consigned to Record Room after compliance of the provisions of Section 437-A Cr.P.C.
Announced in the Court on 17.07.2021 VINOD Digitally signed
by VINOD YADAV
YADAV 12:34:00 +05'30'
(Through Webex Video Conferencing) Date: 2021.07.17
(Vinod Yadav)
Addl. Sessions Judge-03 (North-East):
Karkardooma District Courts: New Delhi
All Accused persons "Acquitted" Page 45 of 45