Delhi District Court
State vs . (1) Manoj @ Lekhraj on 28 April, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 38/2013
Unique Case ID No.: 02404R0284022012
State Vs. (1) Manoj @ Lekhraj
S/o Raj Kumar
R/o GBlock, Indra Jheel,
Near M.D. Memorial Public School,
Sultan Puri, Delhi
(Convicted)
FIR No.: 262/12
Police Station: Mangol Puri
Under Sections: 302/120B/34 IPC and 25 Arms Act
Date of committal to session court: 9.11.2012
Date on which judgment reserved: 19.4.2014
Date on which judgment pronounced:19.4.2014
JUDGMENT:
(1) As per allegations, on or before 17.7.2012 the accused Manoj @ Lekhraj along with one Sachin (since juvenile) hatched a criminal conspiracy to commit murder of Pradeep S/o Gopi Nath pursuant to which on 17.7.2012 at about 3:45 PM at Main Road, Sanjay Gandhi Hospital, Opposite K Block School, near Andh Kalyan Sansthan, Nala, Mangolpuri, Delhi the accused Manoj @ Lekhraj fired upon Pradeep but the bullet St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 1 instead hit Tinku @ Kanwar Pal killing him thereby committed his murder. BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 17.7.2012 at 4:35 PM DD No. 34A was received at Police Station Mangol Puri pursuant to which SI Robin Tyagi along with HC Chander Bhan reached Sanjay Gandhi Hospital where he obtained the MLC of deceased namely Tinku. The Investigating Officer also met an eye witness namely Pradeep who had received injuries in the incident. Thereafter the Investigating Officer reached the spot which was got inspected and photographed through Crime Team Incharge. The statement of eye witness Pradeep was then recorded wherein he informed the police that on 17.7.2012 he along with Tinku went to SBlock Mangol Puri for purchasing the remote of TV and while they were returning at about 3:45 PM one boy on a motorcycle came from the opposite side and slowed down his motorcycle and pulled out a pistol and then fired towards him. However, he (Pradeep) saved himself and the bullet hit the chest of Tinku @ Kanwar Pal after which the assailant ran away from the spot and then he put Tinku in a rickshaw and brought him to Sanjay Gandhi Hospital where he was declared 'Brought Dead'. On the basis of statement of Pradeep the present FIR was registered and the various exhibits were lifted from the spot. (3) In the morning of 19.7.2012 the postmortem examination of the deceased was got conducted and his exhibits were taken into possession. At about 3:30 PM Pradeep came to the Police Station and informed the St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 2 Investigating Officer that it was one Manoj @ Lekhraj who was the younger brother of the son in law of his landlord Ram Saran, who had shot dead Tinku. Pradeep further informed the police that he was having an affair with the sister of Sachin namely Sonam and there were talks of marriage between Manoj and Sonam. According to him, Manoj had fired the shot by aiming towards him but the bullet instead hit Tinku @ Kanwar Pal. On this the supplementary statement of Pradeep was recorded. (4) On the same day i.e. 19.7.2012 at about 4:00 PM the statement of another eye witness namely Sahid Khan was recorded who informed that on the date of incident he had noticed the motorcycle rider running away from the spot with a pistol in his hand and the number of the motorcycle was DL8SAH8700 and he had informed the Beat Constable Jitender in this regard. On 19.7.2012 pursuant to the secret information the accused Manoj @ Lekhraj was arrested form near Church, Sultanpuri Drain, Mangol Puri who was found in possession of motorcycle bearing No. DL8SAH8700.
During interrogation the accused Manoj @ Lekhraj disclosed about his involvement in the present case on which his disclosure statement was recorded. The accused was found in possession of a mobile phone with SIM No. 9213963548 which was taken into possession. Pursuant to his disclosure statement the accused got recovered a desti katta along with two live cartridges and one fired cartridge from in front of his house of G Block area, Indra Jheel, Sultan Puri, Delhi. On 20.7.2012 pursuant to a secret information the accused Sachin was apprehended who on interrogation also St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 3 disclosed his involvement in the present case. However, since the accused Sachin was found to be a juvenile, hence his charge sheet was filed before the Juvenile Justice Board. After investigations charge sheet was filed against the accused Manoj @ Lekhraj in the Court.
CHARGE:
(5) Charges under Sections 120B and 302 r/w 120B Indian Penal Code and under Section 27 of Arms Act were settled against the accused to which he pleaded not guilty and claimed trial.
(6) Before coming to the testimonies of individual witnesses, the details of the witnesses examined and the documents proved by them are hereby put in a tabulated form as under:
List of witnesses Sr. PW No. Name of the witness Details of the witness No.
1. PW1 SI Anil Kumar Police witness - Crime Team Incharge
2. PW2 Ct. Sandeep Police witness - Crime Team Photographer
3. PW3 SI Mahesh Police witness - Draftsman
4. PW4 SI Janak Raj Police witness - Duty Officer
5. PW5 HC Chander Bhan Police witness who had reached the spot along with SI Robin Tyagi
6. PW6 Ct. Suresh Kumar Police witness who had taken the exhibits to FSL
7. PW7 Ct. Naveen Kumar Police witness who has proved the Ct. Jitender was using the mobile No. 9015717994
8. PW8 HC Suresh Police witness - Computer Operator St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 4
9. PW9 Ct. Ramesh Police witness - Special Messenger
10. PW10 Ct. Ratnesh Police witness who had taken the exhibits to FSL
11. PW11 HC Mahavir Prasad Police witness - MHCM
12. PW12 Dr. Manoj Autopsy Surgeon
13. PW13 Jagmohan Public witness - uncle of the deceased
14. PW14 Rekha Public witness - sister of the deceased
15. PW15 Pradeep An eye witness to the incident who had also received injuries during the incident
16. PW16 Sh. M.N. Vijayan Nodal Officer from Tata Teleservices Ltd.
17. PW17 Sunita Public witness - mother of juvenile accused Sachin
18. PW18 Radha Bhardwaj NGO Official who has proved the apprehension of juvenile accused Sachin
19. PW19 Manish Khatri LDC from Transport Department
20. PW20 Saheed Khan Public witness having a shop near the spot of incident
21. PW21 HC Illa Khan Police witness who had joined investigations with IO
22. PW22 HC Niranjan Singh Police witness who had joined investigations with IO
23. PW23 Dr. N. P. Wagmare FSL Expert (Ballistic)
24. PW24 Insp. Satya Prakash Police witness who had filed the charge sheet
25. PW25 Sh. M.A. Razvi The then Addl. DCP Outer
26. PW26 HC Jitender Police witness who had joined investigations with the IO
27. PW27 SI Robin Singh Police witness who had joined investigations with the IO
28. PW28 Seema Nain FSL Expert (Biology)
29. PW29 Dr. Binay Kumar Witness from SGM Hospital
30. PW30 Insp. Raj kumar Investigating Officer of the present case St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 5 Court Witnesses:
31. CW1 Inspector Ashok SHO Police Station Mangol Puri who has Kumar proved the CRD of Babloo (brother of accused Manoj)
32. CW2 Rajeev Ranjan Nodal Officer from Tata Teleservices List of documents Exhibited:
Sr. Exhibit No. Details of documents Proved By No. 1. PW1/1 Affidavit of SI Anil Kumar SI Anil Kumar 2. PW1/A Crime team report 3. PW2/1 Affidavit of Ct. Sandeep Ct. Sandeep 4. PW2/A1 to Photographs 18 5. PW2/B Negatives 6. PW3/1 Affidavit of SI Mahesh Kumar SI Mahesh Kumar 7. PW3/A Site plan 8. PW4/1 Affidavit of SI Janak Raj SI Janak Raj 9. PW4/A DD NO. 34 10. PW4/B FIR 11. PW4/C Endorsement On Rukka 12. PW4/D DD NO. 38A 13. PW4/E DD No. 41A 14. PW5/1 Affidavit of HC Chander Bhan HC Chander Bhan 15. PW5/A Seizure of exhibits of deceased 16. PW6/1 Affidavit of Ct. Suresh Kumar Ct. Suresh Kumar 17. PW6/A RC 48/21/12 18. PW6/B FSL Receipt 19. PW7/1 Affidavit of Ct. Naveen Kumar Ct. Naveen Kumar 20. PW7/A Photocopy of Voting Card St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 6 21. PW8/1 Affidavit of HC Suresh HC Suresh 22. PW9/1 Affidavit of Ct. Ramesh Ct. Ramesh 23. PW10/1 Affidavit of Ct. Ratnes Ct. Ratnesh 24. PW10/A RC 55/21/12 25. PW10/B Copy of FSL receipt 26. PW11/1 Affidavit of HC Mahavir Prasad HC Mahavir Prasad 27. PW11/A Copy of Reg No. 19 Sr. No. 6159 28. PW11/B Copy of Reg No. 19 Sr. No. 6160 29. PW11/C Copy of Reg No. 19 Sr. No. 6162 30. PW11/D RC 48/21/12 31. PW12/A Postmortem Report Dr. Manoj Dhingra 32. PW12/B Subsequent Opinion 33. PW13/A Dead body identification statement Jagmohan 34. PW13/B Dead body handed over memo 35. PW14/A Dead body identification statement Rekha 36. PW15/A Statement of Pradeep Pradeep 37. PW15/B Site plan 38. PW15/C Seizure memo of Blood 39. PW15/D Seizure memo of Earth 40. PW15/DX1 Confronted statement 41. PW16/A Customer application form M N Vijayan (9250069348) 42. PW16/B Copy of Election card 43. PW16/C Call Detail record 44. PW16/D Customer application form (9213963548) 45. PW16/E Copy of Election card 46. PW16/F Call Detail record 47. PW16/G Cell ID Chart 48. PW16/H Certificate U/s 65B St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 7 49. PW18/A Statement of Juvenile Sachin Radha Bhardwaj 50. PW18/B Seizure memo of Mobile phone 51. PW18/C Copy of Apprehension memo 52. PW19/A Motorcycle Record DL8SAH 8700 Manish Khatri 53. PW21/A Arrest memo of accused HC Illa Khan 54. PW21/B Personal search memo of accused 55. PW21/C Disclosure statement of accused 56. PW21/D Seizure memo of Motorcycle 57. PW21/E Sketch of Pistol and Cartridges 58. PW21/F Seizure memo of Pistol and Cartridges 59. PW21/G Site plan of the spot where the Pistol and Cartridges were recovered 60. PW21/H Pointing out memo 61. PW 23/A FSL Report (Ballistics) Dr. N P Waghmare 62. PW25/A Sanction U/s 39 A Act Sh. M.A. Rizvi 63. PW26/A Seizure memo of Sample seal and four HC Jitender sealed parcels 64. PW26/DX1 Confronted statement 65. PW28/A Biological report Seema nain 66. PW28/B Serological report 67. PW29/A MLC of Unknown Person Dr. Binay Kumar 68. PW30/A Rukka Insp. Raj Kumar 69. PW30/B Request for Postmortem 70. PW30/C Brief facts 71. PW30/D Form 25:35 72. CW1/A Call Detail Records of mobile No. Inspector Ashok Sharma 9212733046 of Babloo 73. CW1/B Customer Application Form 74. CW1/C Copy of election ID card of Babloo 75. CW1/D Covering letter addressed to the SHO St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 8 76. CW2/A Cell ID Chart Rajeev Ranjan 77. CW2/B Certificate under Section 65B of Evidence Act EVIDENCE: (7) In order to prove its case the prosecution has examined as many as Thirty Witness as under: Eye witness/ Public witnesses: (8) PW13 Jagmohan a Driver by profession is the uncle of the
deceased. He has proved that he had identified the dead body of his nephew Tinku @ Kanwar Pal S/o Jai Pal R/o J1169, Mangol Puri in the hospital vide Ex.PW13/A and after the postmortem the dead body was handed over to them vide memo Ex.PW13/B. This witness was not cross examined by Ld. Defence counsel despite being granted an opportunity.
(9) PW14 Rekha @ Guddi is the sister of the deceased who has proved that she identified the dead body of his brother Tinku @ Kanwar Pal S/o Jai Pal R/o J1169, Mangol Puri in the hospital vide Ex.PW14/A and after the postmortem the dead body was handed over to them vide memo Ex.PW13/B. This witness was not cross examined by Ld. Defence counsel despite being granted an opportunity.
(10) PW15 Pradeep is an eye witness/ victim. He has deposed that at the time of the incident he was residing at House No. J11931194, Mangol Puri, Delhi on rent basis and he was working as Sweeper in the Kothari St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 9 Hostel, Mall Road, Delhi and he knew Kanwar Pal @ Tinku who was residing near his house at Delhi in his own house and he was residing there along with his sister Guddi. Witness has further deposed that on 17.7.2012 at about 3:003:15 PM he was going to purchase a TV remote for his new TV and Tinku accompanied him to the TV shop at S Block, Mangol Puri. According to him, when they were returning back to their house and they reached the school at SBlock Mangol Puri, one person namely Manoj came towards Y Block on a motorcycle and Manoj slowed down the motorcycle near them and stopped the motorcycle and pointed out a katta towards them and fired upon them on which he bowed down and fell down on the ground whereas Kanwar Pal @ Tinku received gun shot injury on his chest from the above said katta as fired by Manoj. Witness has further deposed that he also received the injuries caused by the lead pieces/ pellets (charre) on his right hand and thereafter Manoj ran away from the spot on his motorcycle with his katta and he raised an alarm for help. According to him, thereafter he took Kanwar Pal @ Tinku to Sanjay Gandhi Hospital in a rickshaw and got him admitted there in the Emergency and somebody made call to the police. Witness has further deposed that one police official namely Jitender met him at the entrance of the hospital who also helped him and he was also medically treated in the hospital. According to him, he thereafter came back to the spot with police officials and his statement was recorded there which is Ex.PW15/A. He has testified that he also showed the place of the incident to the police and the police prepared a site plan which is Ex.PW15/B. St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 10 Witness has further deposed that police also lifted blood from four places at the spot and kept the same in separate four plastic containers and sealed the same and seized the same vide Seizure memo Ex.PW15/C. The witness has also deposed that the police also lifted some plain earth from the above said four places and kept the same in plastic containers and sealed the same after which they were seized vide memo Ex.PW15/D and his wearing clothes i.e. black Tshirt of Delhi University, Kothari Hostel and grey colored lower (payjama) were also taken by the doctor who examined him in the hospital and the police seized the same with other pullandas in his presence in the hospital vide memo Ex.PW5/A. Witness has further deposed that Tinku @ Kanwar Pal was declared dead by the doctors in the hospital within an hour and after postmortem his dead body was returned to his relatives after two days. According to him he does not know the reasons why Manoj fired upon them.
(11) The witness has identified the accused Manoj in the court and also identified his clothes i.e. one black colour T Shirt bearing D.S. Kothari Hostel, University of Delhi as the same as belong to him and sealed by the doctors the said Shirt is Ex.P1. He has also identified one grey color track pant as the same belonging to him and sealed by the doctor. The grey colour track pant is Ex.P2.
(12) In leading questions put by Ld. Addl. PP for the State, the witness has admitted that police made inquires from him and recorded his statement. Witness has further admitted that he was again called at the SGM St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 11 Hospital on 19.7.2012 where the doctors medically examined him and that police make inquires from him on 19.7.2012 and recorded his statement. Witness has also admitted that he did not disclose the name of the offender in his first statement to the police vide Ex.PW15/A on 17.7.2012. He further admits that on 19.7.2012 he disclosed the name of the accused Manoj as the offender who fired upon them as Kanwar Pal had expired and he disclosed the true facts to the police on that day and that the accused Manoj had come to fire upon him but Kanwar Pal received the injuries as he bowed down. Witness has deposed that the name of his Landlord is Ram Saran and has admitted that the accused Manoj is the younger brother of son in law of the elder brother of landlord Ram Saran. Witness has also admitted that he has talking terms with Ms. Sonam the daughter of his landlord Ram Saran and Manoj had suspicion upon him of having illicit relations with her and that the accused Manoj protested for the same and warned him to disconnect his talking terms with Sonam. Witness has further admitted that on the day of incident Manoj came at the spot to fire upon him and he pointed the katta towards him but since he bowed down, Kanwar Pal received the gun shot injuries. Witness has admitted that the accused Manoj was a Wrestler and due to fear he did not disclose his name in his first statement to the police as he was apprehending that Manoj could harm him.
(13) In his crossexamination by Ld. Defence counsel, witness has deposed that he is totally illiterate and he has stated to the police in his statement that he had gone to purchase a TV remote for his new TV. When St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 12 the witness was confronted with statement Ex.PW15/A, this fact was not found so recorded. According to him, he does not remember whether he has stated to the police that the accused Manoj came on his motorcycle and slowed down his motorcycle and thereafter stopped the same and thereafter fired upon them. Witness has admitted that accused Manoj stopped his motorcycle and then fired upon them. Witness has deposed that he has stated to the police that the accused Manoj stopped his motorcycle and then fired upon them. Witness has been confronted with statement Ex.PW15/A where it is not found so recorded. Witness has further deposed that he had also stated to the police that accused Manoj took out his katta and then fired towards them however, when confronted with statement Ex.PW15/A it is not found so recorded but recorded as "pistol numa hathiyar nikala and tante hue goli Chala di". According to him, he does not know the difference between katta, revolver and pistol and he is possessing a mobile phone for the last 1½ years. Witness has admitted that he did not call at 100 number or to the family members of the deceased. Witness has further deposed that his statement was firstly recorded on 17.07.2012 but he does not remember whether he has mentioned the description of the motorcycle in his statement recorded on 17.07.2012. Witness has denied the suggestion that he is deliberately not answering this question.
(14) A question was put to the witness as to what is the meaning of "Atmaglaani" to which the witness has replied that he cannot tell and has explained that he had not mentioned this word to the police. St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 13 (15) On Court Question as to why did he give the details to the police after two days, the witness has answered that he had told the police and he though to himself that he used to go alone for work every day and these people may also not kill him. "mujhe apne man me laga aur dar mehsoos hua ki mein akele atajata hoon, to kahin ye mujhe he na maar de" and it is this what he told to the police when they tried to make him understand that he should come out with the name of assailant or else he could also be targeted.
(16) Witness has further deposed that his second statement was recorded on 18.07.2012 and he had only told the police in his statement dated 18.07.2012 the colour of the motorcycle but not the number or model. Witness has further deposed that his first statement was recorded at the spot by standing outside the official gypsy. Witness has admitted that the statement was not read over to him but what he was saying, they were recording after which he put his thumb impression and has voluntarily explained that he cannot sign being illiterate and therefore he normally put his thumb impression but on this document he had put his signatures later on. Witness has admitted that Tinku was into occultism and doing the work of Jharphoonk. Witness has further deposed that he is not aware if Tinku had taken money from large number of persons and he is not aware if Tinku was lifted by police as many persons has made complaint against him of cheating. Witness has denied the suggestion that he had an affair with one Sonam daughter of Ram Sharan and has voluntarily explained that she was St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 14 like his sister and used to tie a rakhi to him. Witness has further deposed that he has not stated in his statement dated 18.07.2012 that "as he was having illicit relation with Sonam, Manoj was having a grudge on him and he told him to severe his relationship with Sonam" but when confronted with statement Ex.PW15/DX1 it was found so recorded. According to him, he is aware of the marriage talks of Sonam with accused Manoj were going on. Witness has denied the suggestion that he has falsely named accused Manoj in the present case since he wanted to marry Sonam the daughter of the landlord with whom there was a marriage talk of Manoj. (17) Witness has further deposed that on 19.07.2012 he was called by the doctor and has voluntarily explained that he was taken by the police on a motorcycle. According to him, he was medically examined on 19.07.2012 for about 23 minutes and thereafter he left the hospital immediately. He has stated that his statement was not recorded on 19.07.2012 and he did not make any police complaint on 17.07.2012, 18.07.2012 and 19.07.2012. Witness has further deposed that police did not make any site plan at his instance and has voluntarily explained that police had taken him to the spot and he pointed the place of incident to them and thereafter they were making some diagrams. According to him he had not put his thumb impression on the said diagram. Witness has denied the suggestion that no site plan was prepared by the Investigating Officer at his instance. Witness has admitted that there is Astha Temple at the spot and that public persons were present there at the time of incident. Witness has further admitted that there were shops and St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 15 residential houses in front of the place of incident. (18) Witness has further deposed that he does not know if Manoj is a wrestler or not and has voluntarily explained that he was told by the police officials regarding this fact. Witness has denied the suggestion that he could not identify the real culprit who had fired upon Tinku or that accused Manoj has been falsely named by him since there were marriage talks going on between the families of Sonam and Manoj. Witness has further denied the suggestion that since he wanted to marry Sonam, he had falsely named Manoj so that his way to marry Sonam would be clear. He has also denied the suggestion that the accused Manoj was not even present at the spot and that is why he had not mentioned about his name and the description of his motorcycle prior to his supplementary statement.
(19) PW17 Sunita has deposed that she is residing at J1194, Mangolpuri, Delhi along with her family and she is a housewife. According to her, she had obtained a mobile number 9250069348 on her ID and the said mobile was being used by her family and it used to remain at home but her son Sachin who was doing the course of mobile repair at Budh Vihar used to take this mobile phone with above SIM and used the same. Witness has proved that the customer application form Ex.PW16/A bears her signatures at point B and the ID proof i.e. copy of election ID card Ex.PW16/B belongs to her. This witness was not cross examined by Ld. Defence counsel, despite opportunity granted.
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 16 (20) PW20 Saheed Khan has deposed that he is residing at K237, Mangol Puri, Delhi for the last 1 ½ years and he is having a shop of Kabari at X Block near Subzi Mandi. According to him, on 17.07.2012 he was sitting in front of his shop when at around 4.00 PM, he heard a noise of fire arm shot from the other side of the road and on hearing this noise he saw that a boy was running and coming toward other side of the road and his clothes were smeared with blood. Witness has further deposed that he also noticed that there was a boy on a motorcycle and he was holding something in his hand appearing to be a pistol and pointing towards the said boy who was hit and thereafter the boy on the motorcycle escaped towards the side of the police chowki. He immediately noted down the number of the motorcycle on which this boy holding the pistol was sitting. According to him, the said motorcycle number was DL 8S AH 8700 which was written in Hindi and thereafter made a call to Ct. Jitender beat constable of the area which number of Ct. Jitender was already saved in his mobile and his mobile number form which he made the call is 9250580625. Witness has further deposed that he can tell the number of Ct. Jitender after refreshing his memory by seeing his mobile phone where the number of Ct. Jitender have been saved. (Witness was permitted to see his earlier statement and to inform the court about the mobile number of Ct. Jitender which he had earlier saved in his mobile phone.) After refreshing his earlier statement, the witness has stated that the said number is 9015717994 and also states that St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 17 this number has now been changed and Ct. Jitender is holding a new number. (21) In his crossexamination by Ld. Defence Counsel, witness has deposed that he has never come to any court previously to depose as a witness and has voluntarily explained that it is for the first time that he came to the court as a witness. Witness has admitted that he did not see the actual incident of firing and has voluntarily explained that he had only seen the pistol like thing in the hands of the motorcycle rider after he heard the loud noise of a shot of a fire arm. Witness has admitted that the road at the place of incident is having heavy traffic movement. Witness has further deposed that he could not see the face of the motorcycle rider who had allegedly fired on the other boy and has voluntarily explained that he did not pay attention as to whether he was wearing a helmet or his face was covered or open since he was very shocked at that time. Witness has further deposed that he only saw one person at the spot i.e. the one who had received the injury. Witness has admitted that he wears spectacle for reading but has denied the suggestion that he is unable to see clearly without spectacle even at a distance and has voluntarily explained that his far sight is good. Witness has denied the suggestion that he did not give any number to the police as mentioned by him as aforesaid. According to him, he did not inform Ct. Jitender when he made a call to him, about the number of the motorcycle and has voluntarily explained that he told him after two days. According to him, he did not approach police prior to 19.07.2012 and his shop is situated at a distance of 1012 steps from the place of incident. Witness has stated St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 18 that he has kept the number of Ct. Jitender and he normally inform him about any incident which happens around him.
Witness of Medical Record:
(22) PW12 Dr. Manoj Dhingra has deposed that on 19.07.2012 at about 11 AM he along with Dr. Vivek Rawat conducted the postmortem on the dead body of Kanwar Pal @ Tinku, aged 30 years Male son of Jaipal on the request of Insp. Raj Kumar of Police Station Mangolpuri. According to him, alleged history given was fire arm injury as told by the person who had brought the injured (deceased) and he was declared brought dead by the doctor on duty. Witness has further deposed that on external examination they found following injuries on the body of the deceased :
1. Firearm entry wound 3cm x 1.7cm cavity deep, oval shaped, over right side of chest, 7.3cm medial from right nipple, 7cm from sterna notch. Blackening & tattooing seen around the wound margin.
Track of wound extends through space between 4th & 5th intercostals space, going downward & medially piercing the mediatinum, pericardium & heart then to stomach, spleen then gets lodged in the space between 8th & 9th intercostals space along the posterior axillary line.
2. Abrasion 4cm x 3cm over right side of nasal Ala.
3. Abrasion 3cm x 2cm over left cheek prominence.
4. Abrasion 4cm x 3cm over right frontal eminence area. St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 19
5. Abrasion 2.5cm x 1.5 cm over front of left half of chin. (23) Witness has further deposed that on internal examination he found following injuries: Heart: laceration 2.3cm x 1.3 cm, cavity deep seen over lateral wall of right ventricle with laceration 2 x 1 cm cavity deep over anterior aspect of apex of heart.
Abdomen: Laceration 2 x 1cm, cavity deep seen over back aspect of fundus and laceration 1.5cm x 1cm cavity deep seen over back aspect of lower part of body of stomach.
(24) He has proved that the cause of death in the present case was due to hemorrhage and shock associate with injury No. 1 which could be possible by projectile discharge from a fire arm weapon capable of discharging such a projectile. He has deposed that all injuries were ante mortem in nature and time since death was about two days. He has proved the detailed postmortem report in this regard which is Ex.PW12/A bearing his signatures at point A and signatures of Dr. Vivek Rawat at point B on each page. Witness has further deposed that after postmortem they handed over the 12 inquest papers, clothes of the deceased, bullet and blood stained gauze in sealed condition with the seal of the hospital along with the sample seal to the police.
(25) According to him, on 19.07.2012 he along with Dr. Vivek Rawat also seen the MLC No. 11752 of Pardeep, S/o Gopi, male 25 years dated 17.07.2012. He has testified that after seeing the patient they had opined that St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 20 multiple black and red color burning spots present on right hand over extension aspect of right arm and elbow, swab had already taken by the CMO. Witness has proved their subsequent opinion at point X on MLC which is Ex.PW12/B bearing his signatures at point A and signatures of Dr. Vivek Rawat at point B. (26) On a specific Court Question, the witness has explained that the burning spots could be on account of pieces of lead/cartridge (charre) having stuck the body. This witness was not cross examined by Ld. Defence counsel despite opportunity granted.
(27) PW29 Dr. Binay Kumar from SGM Hospital has deposed that on 17.07.2012 at around 4:30 PM an unknown person, male, aged around 30 years was brought to the hospital by his friend Pradeep with alleged history of fire arm injury as told by Pardeep. According to the witness, the pulse was not palpable, BP was not recordable, chestB/L (bilateral) breath sound absent, CVS (cardio vascular system) - both heart sounds not audible, Pupil
- B/L dilated and fixed. He has proved that he declared the patient brought dead after which the dead body was shifted to mortuary for postmortem examination and the MLC in this regard is Ex.PW29/A. The witness has testified that since the history was of a firearm injury hence on the request of Inspector Raj Kumar, he directed XRay of skull, chest and abdomen at 5:30 PM and his observations and endorsement in this regard is present at point bracketed XX1. This witness was not cross examined by Ld. Defence St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 21 counsel despite an opportunity being granted.
Nodal Officers:
(28) PW16 M. N. Vijayan Nodal Officer from Tata Teleservices Ltd.
has produced the summoned record pertaining to mobile number 9250069348 and 9213963548. According to him the number 9250069348 has been issued in the name of Ms. Sunita wife of Ram Saran, R/o 1194, block J, Mangolpuri, Delhi vide Customer Application Form which is Ex.PW16/A and the copy of the ID proof i.e. copy of election ID card is Ex.PW16/B and the copy of the call details record from 15.07.2012 to 17.07.2012 running into two pages is Ex.PW16/C. He has proved that the number 9213963548 has been issued in the name of Kuldeep S/o Banna Lal, R/o C3/522, Nand Nagri, resettlement colony, block C8, Delhi vide Customer Application Form which is Ex.PW16/D and the copy of the ID proof i.e. copy of election ID card is Ex.PW16/E. He has also proved the copy of call detail record from 15.07.2012 to 17.07.2012 running into two pages is Ex.PW16/F; Cell ID Chart which is Ex.PW16/G and certificate U/s 65B of Indian Evidence Act which is Ex.PW16/H. (29) In his crossexamination by Ld. Defence counsel witness has deposed that their main server is situated at Hyderabad and the above call details have been accessed through his system by using the password. Witness has denied the suggestion that there is no system of power backup in St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 22 their office leading to destruction and loss of data or that the said data has been fabricated at the instance of the investigating officer. FSL Experts:
(30) PW23 Dr. N. P. Waghmare Assistant Director, Ballistics (FSL) has deposed that on 31.07.2012 seven sealed parcels which were sealed with the seal of SGMH and one parcel out of them which was sealed with the seal of RK were received in the ballistics division, FSL Rohini which were marked to him and the seal on the parcels were intact with the specimen seal and he opened the parcels. According to him parcel No. 1 found to contain one black color T shirt marked as Ex TS1; Parcel No. 2 found to contain grey color track pant marked as Ex TP1; Parcel No. 3 found to contain one control swab stated to be taken from left arm of the injured marked as Ex C1; Parcel No. 4 found to contain one swab stated to be taken from the site of injury of eye witness marked as Ex S1; Parcel No. 5 found to contain one plain swab stated to be taken from the site of injury of eye witness marked as Ex S2. (Inadvertantly it was mentioned as Ex.S1 in his report.); Parcel No. 6 found to contain plastic container contained one standard 8mm/.315 inch bullet marked as Ex EB1; Parcel No. 7 found to contain one 8mm/.315 inch country made pistol marked as Ex.F1, one 8mm/.315 inch empty cartridge case marked as Ex EC1 and two 8mm/.315 inch cartridges marked as Ex A1 and A2. Witness has further deposed that he throughly examined all the exhibits and submitted his report Ex.PW23/A (running into two pages) St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 23 according to which exhibit marked F1 is a firearm as defined in Arms Act and it is a country made pistol, capable of chambering and firing standard 8mm/ .315 inch ammunition.
(31) He has further deposed that 8 mm/.315 cartridges marked A1 and A2 and two 8mm/.315 inch cartridges taken from laboratory stock were chambered and successfully test fired through exhibit country made pistol marked F1 and hence he opined that exhibit country made pistol marked F1 is in normal working order and exhibit 8mm/.315 inch cartridges marked A1 and A2 were live ammunition before they were test fired in the laboratory, recovered cartridge cases and bullets were used for comparison and examination purpose. Witness has further deposed that the individual characteristic marks of country made pistol marked exhibit F1 present on the crime cartridge case marked exhibit EC1 were compared with test cartridge cases fired through country made pistol marked exhibit F1 under a comparison microscope. According to him, after thorough examination and comparison, firing pin and breech face marks present on exhibit empty cartridge case EC1 were similar with firing pin and breech face marks present on test cartridge cases and hence he opined that exhibit empty cartridge case marked EC1 had been fired through the country made pistol marked exhibit F1. He has proved that the individual striation marks present on crime bullet marked exhibit EB1 were compared with recovered test bullets fired through exhibit country made pistol marked F1 St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 24 under a comparison microscope. According to him, after thorough examination and comparison, individual striation marks present on exhibit bullet marked EB1 were similar with individual striation marks present on test bullets fired through exhibit country made pistol marked F1 and hence he opined that exhibit bullet marked EB1 had been discharged through exhibit country made pistol marked F1. Witness has further deposed that the exhibit swab samples marked S1 and S2 taken from the site of injury along with control swab sample marked C1 taken from left arm of injured/eye witness were analyzed under Atomic Absorption Spectrophotemeter (AAS) for the detection of Gun shot Residue / bullet residue. As a result of analysis, no opinion can be given due to in sufficient data available on them. Witness has further deposed that case exhibits / remnants of exhibits sent to this laboratory for examination have been sealed with the seal of FSL NPW Delhi.
(32) The witness has correctly identified the case property i.e. one bullet which is Ex.PB1; one country made pistol, one 8 mm empty cartridge case (Evidence Cartridge) and two 8mm cartridges (test cartridges) which country made pistol is Ex.F1 and the cartridges are Ex.F1, EC1, A1 and A2 and the white colour plastic bag in which the exhibits were found to contain in yellow colour envelope is Ex.A1.
(33) This witness was not cross examined by Ld. Defence counsel despite opportunity granted.
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 25 (34) PW28 Ms. Seema Nain Senior Scientific Officer (Biology) has deposed that on 03.08.2012 ten sealed parcels were received in the office of Director, FSL vide letter No. 2978 dated 02.08.2012 in the present case and all the ten parcels were marked to her for examination. According to her after examination all the parcels she gave her biological report vide Ex.PW28/A and she then examined the various exhibits serologically and gave her report vide Ex.PW28/B. She has further deposed that as per her observations blood was detected on Ex.1 (gauze cloth piece), 2 (gauze cloth piece), 3 (gauze cloth piece), 4 (gauze cloth piece), 5 (concrete material described as blood pieces of road), 6 (concrete material described as blood pieces of divider), 7 (concrete material described as blood pieces of road), 8 (concrete material described as blood pieces of road), 9a (jeans pant), 9b(shirt), 9c (baniyan having brownish stains), 9d(underwear) and 10 (blood gauze of deceased). She has testified that as per her observations with regard to the serological examination, human blood was detected on all the above exhibits and Blood of B Group was detected on Ex 2 (gauze cloth piece) and 9a(jeans pant), 9b (shirt), 9c (baniyan having brownish stains), 9d (underwear) and 10 (blood gauze of deceased). According to her after examination all the exhibits were resealed with her seal. (35) In her cross examination by Ld. Defence counsel, the witness has denied the suggestion that she did not adopt standard examination procedures and practices or that she has given the above reports on the asking of the investigating officer.
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 26
Police/ Official witnesses:
(36) PW1 SI Anil Kumar is a formal witness being the Crime Team Incharge who has been examined by way of affidavit which is Ex.PW1/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the Crime Team Report which is Ex.PW1/A. (37) In his cross examination by Ld. Defence counsel, witness has deposed that he reached the spot at around 4:55 PM and remained there till about 5:45 PM. Witness has admitted that the photographs of the deceased was taken at the mortuary. According to him some of the photograph were taken of the spot also but no articles were found lying there and has voluntarily explained that only blood spots were found. (38) PW2 Ct. Sandeep is a formal witness being the Crime Team Photographer who has been examined by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the photographs Ex.PW2/A1 to Ex.PW2/A18 and negatives of the same are collectively EX PW 2/B. (39) In his crossexamination by Ld. Defence counsel, witness has deposed that he had taken total of 19 photographs from the still camera and he did not hand over the photographs to the Investigating Officer and has voluntarily explained that they were handed over by the office. Witness has denied the suggestion that the scene of crime had been manipulated after St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 27 which he took the photographs of the same.
(40) PW3 SI Mahesh Kumar is a formal witness being the Draftsman who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the scaled site plan which is Ex.PW3/A. (41) In his crossexamination by Ld. Defence counsel, witness has deposed that he did not prepare the actual site plan at the spot and has voluntarily explained that he had only taken the rough notes. Witness has admitted that he did not hand over the rough notes to the Investigating Officer and has voluntarily explained that he had destroyed the same.
Witness has denied the suggestion that he did not visit the scene of crime or that he prepared the site plan while sitting in the office at the instance of the Investigating Officer.
(42) PW4 SI Janak Raj is a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW4/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved DD No.34 which is Ex.PW4/A, FIR No. 262/12 copy of which is Ex.PW4/B, endorsement on rukka which is Ex.PW4/C, DD No. 38A and DD No. 41 A which are Ex.PW4/D and Ex.PW4/E respectively.
(43) In his crossexamination by Ld. Defence counsel witness has denied the suggestion that the FIR has been anti dated and anti timed at the St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 28 instance of the senior officers.
(44) PW5 HC Chander Bhan is a formal witness who has been examined by way of affidavit which is Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 17.7.2012 on receipt of DD No. 34A he along with SI Robin Tyagi reached SGM Hospital. He has further proved that he collected two pullandas and three tube swab sealed with the seal of SGMH Mangol Puri which the IO seized vide memo Ex.PW5/A. (45) In his cross examination by Ld. Defence counsel has denied the suggestion that he had signed on the seizure memo while sitting in the police station at the instance of the senior officers.
(46) PW6 Ct. Suresh Kumar is a formal witness who has been examined by way of affidavit which is Ex.PW6/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 31.7.2012 he took seven exhibits of this case from the MHCM vide RC No. 48/21/12 copy of which is Ex.PW6/A and deposited the same with the FSL vide receipt Ex.PW6/B. (47) In his crossexamination by Ld. Defence counsel, witness has deposed that he took parcels at about 10:00 AM and he does not remember whether his departure entry was made at police station or not and he returned back to the police station at about 45 PM. Witness has denied the suggestion that he had not delivered the parcels to FSL or that he is deposing falsely.
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 29 (48) PW7 Ct. Naveen Kumar is a formal witness who has been examined by way of affidavit which is Ex.PW7/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that Ct. Jitender No. 1362 is his friend who got issued a mobile No. 9015717994 on his Voting ID Card Ex.PW7/A and it was Ct. Jitender who was using the said number. This witness was not cross examined by Ld. Defence counsel despite opportunity granted.
(49) PW8 HC Suresh is a formal witness being the Computer Operator who has been examined by way of affidavit which is Ex.PW8/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 17.7.2012 he fed the contents of the rukka in the computer installed in the Police Station and recorded the FIR copy of which is Ex.PW4/B. This witness was not cross examined by Ld. Defence counsel despite being granted an opportunity.
(50) PW9 Ct. Ramesh is a formal witness being the Special Messenger who has been examined by way of affidavit which is Ex.PW9/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 17.7.2012 he delivered the copy of FIR to the Ld. MM and senior officers on his private motorcycle bearing No. HR 12L 7713.
(51) In his crossexamination by Ld. Defence counsel, witness has deposed that special report was handed over to him at about 9:30 PM and he returned back at the police station at about 8:25 AM. According to him, he St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 30 made his departure entry which is DD No. 41A as well as the arrival entry i.e. DD No.12A at the police station. Witness has denied the suggestion that he had not delivered the special reports as stated by him or that he was deposing falsely.
(52) PW10 Ct. Ratnesh is a formal witness being who has been examined by way of affidavit which is Ex.PW10/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 3.8.2012 he took ten pullandas from the MHCM vide RC No. 55/21/12 copy of which is Ex.PW10/A and deposited the same at FSL Rohini vide receipt Ex.PW10/B. (53) In his crossexamination by Ld. Defence counsel, witness has denied the suggestion that he had not deposit the parcels to the FSL or that he was deposing falsely.
(54) PW11 HC Mahavir Prasad is a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW11/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the entry in register no. 19 vide S. No. 6159 dated 17.07.12 copy of which is Ex.PW11/A, S.No. 6160 dated 19.07.12 copy of which is Ex.PW11/B, entry at S. No. 6162 dated 20.07.12 copy of which is Ex.PW11/C; RC No. 48/21/12 copy of which is Ex.PW6/A; receipt issued by FSL copy of which is Ex.PW6/B; RC No. 55/21/12 copy of which is Ex.PW10/A and receipt issued by FSL copy of which is Ex.PW10/B. St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 31 (55) In his crossexamination by Ld. Defence counsel, witness has denied the suggestion that the entires in register No. 19 and register No. 21 are ante dated, ante timed and fabricated at the instance of the investigating officer.
(56) PW18 Radha Bharadwaj has deposed that she is residing at 153, Pocket12, Sector21, Rohini, Delhi with her family members and she is running NGO under the name and style of DAV Education and Welfare Society. According to her, on 20.07.2012 she was called by the Investigating Officer Inspector Raj Kumar at Y Block, Mangol Puri, Shamshan Ghat Road since a minor / juvenile had been apprehended and she reached at the spot i.e. near the water tan DJB, Opp. Y Block Mangol Puri at about 9.15 AM where she met Inspector Raj Kumar alongwith HC Niranjan and the minor/ Juvenile Sachin. Witness has further deposed that the father of Sachin had also reached the spot and was brought by HC Niranjan and in his presence the search of Juvenile was conducted and from his pocket a black color old mobile phone was recovered. According to her, Sachin also informed that Pradeep used to harass his sister (Pareshan Karta hai) and Sachin also informed that he alongwith one Manoj who is younger brother of his Jija Babloo had time and again advised / counseled Pradeep to remain away from his sister but Pradeep continued with his conduct and therefore they planned to eliminate him (Pradeep). Witness has further deposed that Sachin further informed that Manoj told him that he had a desi katta with him and that Sachin should call Pradeep through a common friend Tinku on the pretext of St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 32 purchasing a remote for his television after which Manoj would kill him with a Katta. Witness has further deposed that Sachin further informed the police that pursuance to the above planning Tinku brought Pradeep to the S Block on the pretext of purchasing of TV remote on 17.07.2012 in the after noon whereas in the meanwhile Sachin kept talking to Tinku to ascertain his location. Witness has further deposed that on coming to know that Pradeep was at the S Block Sachin then communicated Manoj about their location and Manoj came to the S Block on his bike and shot at Pradeep but incidentally the bullet had hit Tinku and not Pradeep. Witness has further deposed that Sachin was nearby and was witnessing the entire incident on which he immediately informed Manoj that the wrong person i.e. Tinku had been hit on which both of them i.e. Sachin and Manoj ran away. (57) Witness has further deposed that the police recorded the statement of Juvenile Sachin copy of which is Ex.PW18/A and the mobile phone of Sachin was taken by the Investigating Officer and seized vide memo Ex.PW18/B and the copy of apprehension memo Ex.PW18/C. Witness has further deposed that her statement was recorded by the police thereafter.
(58) In her crossexamination by Ld. Defence counsel, witness has deposed that she is regularly appearing before the various court as a witness in her capacity as a social worker. Witness has admitted that she has been called by the officer of Police Station Mangol Puri in the other cases as well for joining as a witness. Witness has further deposed that there was no St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 33 public person present at the spot when the statement of Sachin was recorded and has voluntarily explained that there were 23 public persons but they left the spot. According to her, she became free at about 12.00 Noon and has voluntarily explained that she was present at the spot between 9.15AM to 12.00 Noon during which time the statement of Sachin was recorded. Witness has denied the suggestion that Sachin did not make any statement or that she was called later by the police in the police station and she merely signed the documents on the asking of the police official. (59) PW19 Manish Khatri LDC from Transport Department has produced the summoned record pertaining to motorcycle bearing No. DL 8S AH 8700. According to him, as per the record the same is in the name of Babloo S/o Raj Kumar R/o RZ 199, Rao Vihar, Village Nangloi, Delhi110087 and certified copy of the above vehicle issued by their department is Ex.PW19/A bearing the seal of Authority and signatures of Motor Licence Officer Sh. Sanjay Narula who has signed as official capacity. On a Court Question, the witness has explained that the registration of this vehicle is valid upto 19.03.2023 and has voluntarily explained that the copy which he has produced does not show this date because the date does not come automatically in the duplicate copy. This witness was not cross examined by Ld. Defence counsel despite being granted an opportunity.
(60) PW21 HC Illa Khan has deposed that on 19.07.2012 he was posted at Police Station Mangol Puri and on that day at about 6.15 PM he St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 34 joined the investigation of this case and he along with Investigating Officer Inspector Raj Kumar who informed him about the secret information which he had received regarding the person involved in the present case being present near the Ganda Nala, Sultanpuri. According to him, thereafter he along with Inspector Raj Kumar, SI Robin Tyagi and Ct. Jitender reached at Ganda Nala, Sultanpuri at around 6.30PM and the secret informer was with them. Witness has further deposed that on reaching there the Investigating Officer asked some public persons to join the raiding party but they left the spot without telling their names and address and other details. According to him at about 6.40PM while they were at the spot the secret informer pointed out towards one person sitting on the motorcycle parked near the Church and informed that it was the same person who had fired upon the deceased in the present case and on this they all apprehended the boy sitting on the motorcycle and made inquiries form him on which he disclosed his name as Manoj @ Lekh Raj S/o Raj Kumar R/o house at G Block, Indira Jheel Sultanpuri, near MG Memorial School Sultanpuri, Delhi. Witness has further deposed that on further interrogation the said boy disclosed his involvement in this case and on this Investigating Officer Inspector Raj Kumar arrested the said boy Manoj @ Lekhraj vide memo Ex.PW21/A, his personal search was taken vide memo Ex.PW21/B and Investigating Officer recorded disclosure statement of Manoj vide Ex.PW21/C. Witness has further deposed that the motorcycle of the said person TVS Star bearing no. DL 8S AH 8700 was taken into possession vide memo Ex.PW21/D. St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 35 Witness has further deposed that the accused Manoj in his disclosure statement informed that he could get the katta used in the present case recovered on which they all accompanied accused and he took them to his house at Indira Jheel and there the Investigating Officer asked four five public persons to join the police party but they refused and left the spot without stating their names and address and other details and thereafter accused took out a polythene bag after digging at the corner of a plot in front of his house and from the said polythene bag a country made pistol, two live cartridges and one used cartridge were taken out. Witness has further deposed that Investigating Officer prepared the sketch of the country made pistol and cartridges which is Ex.PW21/E. According to him, the country made pistol and the cartridges were measured by the Investigating Officer and the length of the barrel was 12.7cm, body was 6cm and butt was of 9.5cm and Investigating Officer converted the country made pistol and the cartridges in a sealed pullanda sealed with the seal of RK and seized the same vide seizure memo Ex.PW21/F. Witness has further deposed that Investigating Officer also prepared the site plan of the place from where the country made pistol and cartridges were recovered, which is Ex.PW21/G. Witness has further deposed that they again returned to the place of incident where the accused pointed out the place of incident to them and Investigating Officer prepared the pointing out memo Ex.PW21/H. According to him, thereafter they returned back to the police station and he alongwith Ct. Jitender took accused Manoj for his medical examination at Sanjay Gandhi St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 36 Memorial Hospital and after medical examination they returned to the police station and Investigating Officer recorded his statement. (61) The witness has identified the accused Manoj in the Court and has also identified the case property i.e. one country made pistol along with three empty shells of cartridges as the same as recovered at the instance of accused Manoj, which Country made pistol is Ex.P3 and the cartridges which are collectively Ex.P4. This Court has observed that the country made pistol matches with the sketch.
(62) In his crossexamination by Ld. Defence Counsel, witness has deposed that they were in a private vehicle belonging to the Investigating Officer however he cannot tell its number, color or model. According to him, all the officials in the raiding party were in police uniform and he does not remember as to who amongst the police party were carrying their weapons and the nature of the weapons and the secret information was not conveyed to the Investigating Officer in his presence. Witness has further deposed that he cannot tell whether the Investigating Officer conveyed this secret information to the senior officers or not also whether it was converted into writing or not. He has stated that the Investigating Officer did not give them any briefing as to who amongst the police party would take position where and has voluntarily explained that they were only directed to apprehend the accused. Witness has further deposed that no public person was present at the church at that time and he cannot tell whether Investigating Officer gave any notice to any public persons for their refusal St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 37 to join the proceedings. He has explained that the secret informer pointed towards the accused Manoj from a distance of about 50 meters. Witness has admitted that accused did not try to escape on seeing police party. According to him, accused Manoj was arrested at about 7:15 PM and Investigating Officer did not inform anybody about the arrest of accused in his presence and also did not ask any public person to join investigation at the time of arrest. He has deposed that they left the spot of apprehension at about 8:15 PM and reached at the place of recovery of weapon at about 8:30 PM however, they did not enter the house of accused Manoj at that time. Witness has admitted that public persons from the neighborhood gathered there when they reached there. Witness has further deposed that he cannot tell the names, address and description of the public persons who were asked to join the investigation by the Investigating Officer. He has explained that the plot from where the katta was recovered was about 50 meters in area and they left the place at about 10.30 PM. According to him, all the writing work relating to recovery was done while standing at the spot from where the recovery was made. He states that there was a street light but he cannot tell its distance from where the writing work was done. Witness has admitted that street light is not shown in the site plan of the place of recovery. Witness has further deposed that no public person was called after recovery of the country made pistol and cartridges and it took about 30 to 45 minutes in preparing the pullanda of the pistol and about 45 minutes in doing the writing work. Witness has denied the suggestion that he did not St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 38 join the investigation of this case or that the accused was not arrested in the manner as stated by him or that accused was lifted on 19.07.2012 from the office of Parmuddin Saifi and falsely implicated in this case. Witness has denied the suggestion that nothing was recovered at the instance of accused or that the alleged recovery was planted upon him or that signatures of accused were obtained on blank papers which were later on converted into documents incriminating against him.
(63) PW22 HC Niranjan Singh has deposed that on 20.07.2012 he was posted at Police Station Mangolpuri as Head Constable and on that day he had joined the investigations in the present case along with Insp. Raj Kumar. According to him, in the morning at about 7:30 AM they had reached at the Bus Stand No. 901, Mangolpuri in search of the accused Sachin but could not find him and secret informer was with them and thereafter he along with the Investigating Officer and secret informer went to gas agency near the cremation ground where one boy was roaming there. Witness has further deposed that on pointing out of the secret informer the said boy was apprehended and on interrogation he disclosed his name as Sachin, S/o Ram Sharan. The boy informed that he was around 1516 years age, on which the Investigating Officer Insp. Raj Kumar informed NGO, pursuant to which Smt. Radha Bhardwaj came to the spot. According to him, on the directions of the Investigating Officer he went to the house of Sachin and informed him about the apprehension of Sachin and brought him to the spot and thereafter in the presence of NGO Smt. Radha Bhardwaj and St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 39 the father of Sachin the Investigating Officer Insp. Raj Kumar made inquiries from Sachin. Witness has further deposed that in his presence the search of Juvenile was conducted and from his pocket a black coloured mobile phone make VIRGIN was recovered. According to him, Sachin also informed that one Pradeep was having relations with his sister and he had advised him on number of occasions to remain away from his sister but Pardeep did not desist and hence about 11 ½ months prior to the incident he along with Manoj who is younger brother of his Jija Babloo had planned to eliminate him (Pradeep). According to him, Sachin further informed that Manoj told him that he had a desi katta with him and therefore they planned to eliminate Pradeep and first they tried to execute their plan on 16th but could not succeed and therefore they again tried to execute their plan on 17th . Witness has further deposed that Sachin had heard Pardeep saying that he would be going to purchase the remote of the television from S Block market along with Tinku on which he shared this information with Manoj and informed him about the above plan of Pardeep and thereafter Sachin followed Pardeep and kept on giving the information to Manoj about the position of Pardeep. According to him, on coming to know that Pradeep was at the S Block Sachin, then communicated Manoj about their location on which Manoj @ Lekh Raj came to the S Block on his bike and shot at Pradeep but incidentally the bullet hit Tinku and not Pradeep. Sachin was in the nearby area and was witnessing the entire incident on which he immediately informed Manoj that the wrong person i.e. Tinku had been hit on which both St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 40 of them i.e. Sachin and Manoj ran away.
(64) Witness has further deposed that the police recorded the statement of Juvenile Sachin copy of which is Ex.PW18/A; the mobile phone of Sachin was taken by the Investigating Officer and seized vide memo Ex.PW18/B and copy of apprehension memo Ex.PW18/C bear his signatures at point B. His statement was recorded by the police thereafter. (65) In his crossexamination by Ld. The Defence counsel, witness has admitted that he did not join the investigations qua the accused Manoj. According to him, all the documents were prepared at the spot where the juvenile accused was apprehended. Witness has admitted that no public witness was present when the statement of Sachin was recorded. Witness has denied the suggestion that no disclosure has been made by the juvenile accused Sachin or that he merely signed the various documents in the police station on the instructions of the Investigating Officer. (66) PW24 Inspector Satya Prakash has deposed that he was posted as Inspector investigations in the police station Mangol Puri and on 16.05.2013 he filed the supplementary charge sheet in the present case after obtaining FSL results and permission U/s 39 of Arms Act. (67) During his cross examination by Ld. Defence counsel, witness has denied the suggestion that he did not place the complete documents regarding the investigations before the DCP while obtaining the permission U/s 39 of Arms Act. He has denied the suggestion that the DCP accorded the permission U/s 39 of Arms Act on his asking without application of St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 41 mind.
(68) PW25 Sh. M.A. Rizvi the then Addl. DCP Outer District has deposed that on 01.05.2013 file of the present case was put up before him for obtaining permission U/s 39 of Arms Act and after going through the documents i.e. seizure memo, ballistic examination report dated 24.04.2013 and the investigation record and after being satisfied he accorded the sanction U/s 39 of Arms Act for purposes of prosecuting the accused Manoj @ Lekh Raj, S/o Raj Kumar which is Ex.PW25/A. (69) During his cross examination by Ld. Defence counsel, witness has denied the suggestion that he had given the above sanction in a mechanical manner without any application of mind. Witness has stated that the photocopy of the investigating file was placed before him but has denied that the weapon of offence was not shown to him before he accorded the sanction. Witness has denied the suggestion that he had given the above sanction on the asking of the Investigating Officer in a routine manner without even being satisfied with the material placed before him. (70) PW26 HC Jitender has deposed that on 17.07.2012 he was posted at police post Sanjay Gandhi Memorial Hospital, police station Mangolpuri and on that day at about 4 PM while he was patrolling in the area covered in his beat, he received a call from one Shahid Khan, a kabari in the area that one boy had shot some person near the Ashram of blind persons which person was on a motorcycle with number plate written in Hindi i.e DL8SAH8700 ( all written in Hindi) and was going towards the St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 42 S Block Chowk. According to him he then immediately reached to S Block chowk and started checking the vehicles when at about 4:30 PM while he started moving towards the gate of the SGM Hospital and reached near the gate, he found that two boys were coming in a cycle rickshaw out of whom, one was injured and when he made inquiries from the boy who was not injured, he informed that his name was Pardeep where the name of the other person/injured was Tinku. Witness has further deposed that he also informed him that Tinku had received fire arm injury and he immediately took them to Emergency for purposes of treatment and send information to the Police Chowki. Witness has further deposed that after some time SHO came to the hospital and on inquiry they came to know that the injured had been declared brought dead to the hospital and the SHO also got medical of Pardeep done. Witness has further deposed that after some time Insp. Raj Kumar directed the dead body to be shifted in the mortuary and made a request to the CMO and he was directed to remain with the same to preserve the dead body and to ensure that the same was not tampered and he remained there till the postmortem was conducted on 19.07.2012. Witness has further deposed that after the postmortem examination of the deceased the doctor had handed over to him four sealed parcels duly sealed with the seal of the hospital and the sample seal which he handed over to the Investigating Officer who seized the same vide memo Ex.PW26/A. According to the witness, his statement was then recorded after which he was relieved.
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 43 (71) PW26 HC Jitender was recalled for additional examination on the request of the Ld. Public Prosecutor, wherein the witness has deposed that on 19.07.2012 at around 6:15 PM he was directed by the Investigating Officer to join the police party and he joined the investigations in the present case along with Insp. Raj Kumar, HC Ella Khan and SI Robin. According to him a police party/ raiding party was constituted comprising of all of them and they went to U block Church, Mangolpuri near the ganda nala Sultanpuri in the private vehicle on Insp. Raj Kumar where they reached at around 6:30 PM. Witness has further deposed that about 50 meters prior to the church, the secret informer pointed out towards a person who was sitting on the motorcycle as Manoj @ Lekh Raj who was the person involved in the shooting/firing incident after which the secret informer left, on this the said person was apprehended by them. According to him on interrogation he confirmed his name as Manoj @ Lekh Raj and also disclosed his involvement in the firing incident on account of his previous animosity with Pardeep on account of his relations with one girl who is relative of Pardeep. Witness has further deposed that Investigating officer thereafter arrested Manoj @ Lekh Raj vide memo Ex.PW21/A, his personal search was conducted vide memo Ex.PW21/B and his disclosure statement was also recorded vide memo Ex.PW21/C. According to him in the personal search of the accused Manoj a mobile phone make TATA INDICOM was found and the motorcycle bearing No. DL8AH8700 on which he was sitting was also taken into possession vide memo Ex.PW21/D. He has testified that the St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 44 accused had disclosed that he had hidden the weapon of offence in the plot in front of his house and thereafter accused led them at Indira Vihar Sultanpuri, where he took them to a vacant park/ground infront of his house and there in the park he took them to the south side and dug the ground from where he got recovered a desi katta. According to him on checking the same it was found to contain three cartridges, out of which two were live and one was empty cartridge case on which the Investigating Officer prepared the sketch of both the katta and the cartridges which is Ex.PW21/E. Witness has further deposed that Investigating Officer then measured the katta and the cartridges. The barrel of the katta was found to be measuring 12.9 cm, body was 6cm, butt was 9.5 cm and Investigating Officer then converted the katta and the cartridges into pullanda and sealed the same with the seal of RK and seal after use was handed over to HC Ella Khan. Witness has proved that the Investigating Officer then seized the katta and cartridges vide memo Ex.PW21/F and Investigating Officer then prepared the site plan of the spot of recovery vide Ex.PW21/G. According to him thereafter they went to the spot of incident where the accused pointed out the spot of the incident and Investigating Officer prepared the pointing out memo which is Ex.PW21/H and thereafter accused was then taken for medical examination to SGM hospital by him and HC Ella Khan after which they returned to the police station where he handed over the accused to the Investigating Officer along with his MLC and his statement was recorded by the Investigating Officer and he was relieved.
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 45 (72) Witness has correctly identified the accused Manoj @ Lekhraj in the Court and also identified the country made pistol, one 8mm empty cartridge case and two 8mm cartridges (test fired) as the same as got recovered by accused Manoj @ Lekh Raj which Pistol is Ex.P3 and cartridges are collectively Ex.P4 and one mobile phone make Nokia of Tata Indicom of black and grey color having IMEI No. A000003313A7BD and SIM No. A1000015C75E45 (80410C74) as the same as recovered from the possession of accused Manoj @ Lekh Raj which is Ex.P5; one motorcycle make TVS Star bearing No. DL8SAH8700, having Chasis No. MF5281B04902 and the other numbers not visible due to rust, engine No. SB81062370 and remaining numbers are not visible due to rust, recovered from the possession of accused Manoj @ Lekh Raj which is Ex.P6. (73) In his cross examination by Ld. Defence counsel, witness has admitted that when he first saw the injured, he was not in a position to speak and has voluntarily explained that when he saw him, his eyes were open but he was not speaking. Witness has admitted that whatever was told to him was by Pardeep. According to him when he saw Pardeep on the rickshaw, he was having some light burn marks (singes) on his hand indicating that the bullet had brushed passed him. Witness has admitted that he did not know Pardeep or Tinku previously. Witness has further deposed that he was not aware if Tinku was a Bad Character of the area and had large number of cases against him. He has stated that he knew Shahid previously as he is St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 46 resident of his beat area and also has his kabari shop there. Witness has admitted that Pardeep did not tell him the name of any person who had fired the shot. Witness has further deposed that he also did not tell him anything with regard to any motorcycle or the number of the same or as to who had fired upon the deceased. He has also deposed that his statement was recorded on 19.07.2012 by Insp. Raj Kumar and he has stated to the Investigating Officer in his statement that he received a call from Shahid Khan regarding one boy had shot some person near Ashram and the person on motorcycle with number plate of DL8SAH8700 written in Hindi. However, when confronted with his statement Ex.PW26/DX1 this fact was not found so recorded. Witness has further deposed that he had also told the Investigating Officer about the number which he had received from Shahid, the said number is 9250580625 however when confronted with his statement Ex.PW26/DX1 the above fact was not found so recorded. Witness has denied the suggestion that he has made this improvement on the asking of the Investigating Officer only to work out a blind case. (74) In his further cross examination by Ld. Defence counsel, witness has deposed that on 19.07.2012 they left the police station at about 6:30 PM in the private vehicle of Investigating Officer whose number he does not recollect and all the officials of raiding party were in police uniform and he does not remember as to who amongst the police party were carrying their vehicles and says that he has seen the secret informer sitting in the vehicle itself. According to him the secret information was not conveyed in his St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 47 presence to the Investigating Officer. Witness has admitted that no public witness was joined in the police party after the secret information was received and has voluntarily explained that the Investigating Officer had asked some public persons but they refused. Witness has further deposed that Investigating Officer did not give any notice to any person for their refusal of join the proceedings and he cannot tell the name of any such persons. Witness has denied the suggestion that deliberately no person was joined. According to him he does not know whether the secret information was conveyed to the seniors or not, or whether the secret information was reduced into writing and investigating officer did not briefed them regarding their positions for apprehending the accused. He has also deposed that they reached the church at about 6:40 PM and Investigating Officer did not call any body from the church to join the investigations even after the arrest of the accused and all written work was done while sitting on the footpath itself and they left the spot at about 8:15 PM. He has testified that all documentations was done over there relating to apprehension, arrest, disclosure and seizure and after seizure the motorcycle was driven by him and has voluntarily explained that there was no key in the motorcycle and the lock was broken. According to the witness, as per him the information of arrest of the accused was given to his father but he is not sure. He has deposed that they reached the ground in front of house of Manoj within 15 minutes and when they reached the ground, large number of public persons had gathered but Investigating Officer did not obtain the signatures of any St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 48 persons on the documents prepared there and the Investigating Officer had requested public persons to join the proceedings but they refused stating that it was a matter relating to a neighbor. Witness has further deposed that Investigating Officer did not give any notice to the public persons who had refused to join the investigations in his presence and he cannot tell the area of the park from where recovery was made. He has explained that there was a street light at a distance of 3040 meters from the plot. According to him the country made pistol was recovered just adjoining the wall of the house situated next to the plot and there was no covering of the katta at the time of its recovery. Witness has admitted that site plan was prepared in his presence and that the house of accused Manoj was shown in the site plan by the Investigating Officer. Witness has further deposed that the writing work was done while sitting under street light situated outside the plot after coming out from the same street and it took about 2030 minutes in preparing the pullanda of the country made pistol. He has stated that public persons were asked by the Investigating Officer to join investigations but none agreed but he cannot tell whether the said persons were passerby or the residents of the said area. Witness has further deposed that they remained at the spot for about one hour and finally left the spot at about 10:30 PM and it took about one and a half hours in completing the writing work. Witness has further deposed that they returned back to the police station at about 12 midnight and states that he is not aware if the deceased was the Bad Character of the area. He is unable to give the details regarding the SIM or St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 49 the IMEI number of the mobile allegedly recovered from the possession of the accused and in his presence Investigating Officer did not open the mobile phone to check the IMEI number. According to him Investigating Officer had sealed the mobile phone in his presence without checking the same. Witness has denied the suggestion that no mobile phone was recovered from the possession of the accused Manoj or that the same has been planted upon the accused only to connect him with the present case. Witness has further deposed that Investigating Officer had checked the engine number and the chasis number of the motorcycle while seizing the same but he cannot tell the same. Witness has denied the suggestion that the accused has been lifted from his house along with his motorcycle belonging to his brother Babloo and then falsely implicated in the present case. Witness has denied the suggestion that accused Manoj is not apprehended and arrested in the manner as deposed by him. Witness has denied the suggestion that all documentations was done while sitting in the police station which he merely signed on the asking of the Investigating Officer and senior officers to work out this case. He has also denied the suggestion that he did not join the investigations of this case or that the accused was not apprehended in the manner as stated by him. Witness has denied the suggestion that accused was lifted from the office of Parmuddin Saifi on 19.07.2012 and falsely implicated in the present case. Witness has denied the suggestion that nothing was recovered at the instance of accused in his presence or that the alleged recovery was planted upon him. Witness has denied the suggestion St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 50 that signatures of accused were obtained on blank papers which were later on converted into various incriminating documents against accused or that he had signed the said documents at the police station itself. Witness has denied the suggestion that he was deposing falsely. (75) PW27 SI Robin Tyagi has deposed that on 16.07.2012 he was posted at police station Mangolpuri and on 17.07.2012 he was on duty at the Police Station. According to him on receipt of DD No.34 A at 4:35 PM which is Ex.PW4/A, he along with Inspector Raj Kumar, HC Chander Bhan reached SGM hospital where the Investigating Officer collected the MLC of the deceased Tinku @ Kanwar Pal, R/o J Block, Mangolpuri who had been brought dead. Witness has further deposed that they also found one public person present there by the name of Pardeep who claimed himself as eye witness and on interrogation, Pardeep told the Investigating Officer Insp. Raj Kumar that he was present with Tinku at S Block chowk, near the blind school, when some person driving a motorcycle had come and had shot at him and fled away with the motorcycle and he also informed the Investigating Officer that Tinku had received a firearm injury on his chest whereas he (Pardeep) had also received injuries on his hand on account of Pellets/charras. Witness has further deposed that duty constable of the hospital handed over to Inspector Raj Kumar two clothes i.e. one Tshirt and one Pyajama belonging to Pardeep which had been given to the duty constable by the doctor on duty and the duty constable also handed over to the Investigating Officer three test tubes duly sealed with the seal of the St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 51 hospital containing the swab taken from the hands/arms of Pardeep who had received charra injuries. According to him Investigating Officer converted the same into pullandas and sealed the same with the seal of RK and seized the same vide memo Ex.PW5/A and in the meanwhile the crime team also reached the hospital. The witness has also deposed that on the directions of the Investigating Officer took the photographs of the dead body and then they went to the spot of the incident along with Crime Team and Pardeep where the crime team inspected the spot and took photographs of the same and prepared the report at the spot itself and handed over the same to the Investigating Officer.
(76) Witness has also deposed that Investigating Officer recorded the statement of Pardeep and converted the same into a rukka by making his endorsement and handed over the same to HC Chander Bhan and directed him to take the same for getting the FIR registered and investigating officer then prepared the site plan at the instance of Pardeep which site plan is Ex.PW15/B. According to him the Investigating Officer then lifted the exhibits from the spot i.e. blood from the earth with the help of a gauze, blood stained earth from four spots i.e. from K block, Mangolpuri side from the divider, two places from near the blind school and earth control/sample earth and the Investigating Officer converted the same into eight pullandas and sealed the same with the seal of RK and handed over the seal after use to him and thereafter seized the same vide memos Ex.PW15/C and Ex.PW15/D. St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 52 (77) He has testified that on 19.07.2012 he was on duty at the police station Mangolpuri and joined the investigations in the present case and he along with Inspector Raj Kumar, HC Ella Khan, Ct. Jitender were constituted into a police party/ raiding party after which they along with secret informer went to U Block Church, Mangolpuri near the ganda nala Sultanpuri in a private vehicle. According to the witness they started from the police station at about 6:15 PM after briefing and reached the spot at about 6:30 PM where they were again briefed by the Investigating Officer. He has testified that the Investigating Officer also tried to join few public persons in the area in the raiding party but none agreed and there at about 6:40 PM the secret informer pointed out towards a person who was sitting on the motorcycle as Manoj @ Lekh Raj who was the person involved in the shooting/ firing incident. Witness has further deposed that on his pointing out they all went towards the said person and parked their vehicle in front of him and apprehended him and on interrogation he disclosed his name as Manoj @ Lekh Raj and also disclosed his involvement in the firing incident on account of his previous enmity with Pardeep on account of his relations with one of his relative namely Sonam. Witness has further deposed that investigating officer thereafter arrested Manoj @ Lekh Raj vide memo Ex.PW21/A, his personal search was conducted vide memo Ex.PW21/B and his disclosure statement was also recorded vide memo Ex.PW21/C. According to the witness in the personal search of the accused Manoj a mobile phone make TATA INDICOM was found and the motorcycle bearing No. DL8AH8700 on St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 53 which he was sitting was also taken into possession vide memo Ex.PW21/D. Witness has further deposed that the accused had disclosed that he had hidden the weapon of offence in the plot in front of house and thereafter accused led them at Indira Vihar Sultanpuri, number of which he does not recollect where he took them to a vacant park/ground in front of his house. Witness has further deposed that there in the park the accused took them to the south side and dug the ground from where he got recovered a desi katta and on checking the same it was found to contain three cartridges, out of which two were live. He has proved that the Investigating Officer then prepared the sketch of both the katta and the cartridges vide Ex.PW21/E and the Investigating Officer then measured the katta and the cartridges and the barrel of the katta was found to be measuring 12.7 cm, body was 6cm, butt was 9.5 cm. According to him Investigating Officer then converted the katta and the cartridges into pullanda and sealed the same with the seal of RK and seal after use was handed over to HC Ella Khan and Investigating Officer then seized the katta and cartridges vide memo Ex.PW21/F. Witness has also deposed that Investigating Officer then prepared the site plan of the spot of recovery vide Ex.PW21/G and thereafter they went to the spot of incident where the accused pointed out the spot of the incident and Investigating Officer prepared the pointing out memo which is Ex.PW21/H. According to him, thereafter the accused was sent for medical examination and they returned to the police station where his statement was recorded by the Investigating Officer and he was relieved.
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 54 (78) He has identified the accused Manoj @ Lekhraj in the Court and also identified the case property i.e. one grey color track pant/ pyajama which is Ex.P2; one country made pistol, one 8mm empty cartridge case and two 8mm cartridges (test fired) got recovered by accused Manoj @ Lekh Raj which pistol is Ex.P3 and cartridges are collectively Ex.P4; mobile phone make Nokia of Tata Indicom of black and grey color having IMEI No. A000003313A7BD and SIM No. A1000015C75E45 (80410C74) recovered from the possession of accused Manoj @ Lekh Raj which is Ex.P5 and TVS Star, bearing No. DL8SAH8700, having Chasis No. MF5281B04902 and the other numbers are not visible due to rust, engine No. SB81062370 and remaining numbers are not visible due to rust, recovered from the possession of accused Manoj @ Lekh Raj which is Ex.P6.
(79) In his cross examination by Ld. Defence counsel, witness has deposed that he left the police station at about 4:35 PM and reached at the hospital within 1520 minutes and the statement of complainant Pardeep was recorded in front of blind school while sitting on the chairs lying at the gate of the said school. Witness has admitted that in his statement, Pardeep had not named any person as the assailant or the description of the motorcycle used by the accused or that the statement of Pardeep was read over to him by the Investigating Officer. Witness has further deposed that his statement was recorded twice in the present case and both of the same were recorded by the same Investigating Officer. Witness has admitted that the incident St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 55 took place infront of the blind school and one Astha Temple is also situated there. He is not aware if the Investigating Officer went to the blind school to make inquiries. Witness has further deposed that on 19.07.2012 they left the police station in the private vehicle of Investigating Officer whose number he does not recollect and all the officials of raiding party were in police uniform and he do not remember as to who amongst the police party were having their vehicles. According to him the secret informer met the Investigating Officer in the police station and the secret information was not conveyed in his presence to the Investigating Officer and he do not know whether the secret information was conveyed to the seniors or not. Witness has further deposed that the secret information was not reduced into writing in his presence and investigating officer did not briefed them regarding their positions for apprehending the accused. He has testified that they reached the church at about 6:30 PM but he is unable to tell the names, addresses or description of the person who were asked to join the investigations by the Investigating Officer and no legal notice was served upon them. According to him Investigating Officer did not reduced into writing the reasons given by the public persons for not joining the investigations. He states that the secret informer pointed towards the accused from a distance of about 50 meters. According to him accused was apprehended and therefore no question arises of his escaping from the spot. He also states that the accused was arrested at 7:15 PM and no information regarding the arrest of accused was conveyed by the Investigating Officer. Witness has further deposed that St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 56 Investigating Officer had asked twothree public persons to join investigations at the time of arrest and they left the spot at about 8:30 PM and reached the place of recovery within 1520 minutes and the house of accused Manoj was not searched at that time. Witness has further deposed that they did not find any public person at the spot due to late night hours and he cannot tell the area of the park from where recovery was made. He states that there was no source of light in the park and has explained there was a light from the house situated behind the park. According to him the country made pistol was recovered from the distance of about 510 feet from the adjoining wall of the plot and there was no covering of the katta at the time of its recovery. Witness has admitted that site plan was prepared in his presence and that the house of accused Manoj was shown in the site plan by the Investigating Officer. Witness has further deposed that the writing work was done while sitting under street light situated outside the plot after coming out from the same street and it took about 2030 minutes in preparing the pullanda of the country made pistol and no handing over memo of the seal was prepared by the Investigating Officer. He does not recollect whether the said fact is mentioned in the seizure memo or not and also whether the source of light is shown in the site plan or not by the Investigating Officer. Witness has further deposed that Public persons were asked by the Investigating Officer to join investigations but none agreed, but he is unable to tell whether the said persons were passerby or the residents of the said area. He states that they had remained at the spot for about one hour St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 57 and finally left the spot at about 10:30 PM. According to him it took about 1½ hours in completing the writing work and states that they returned back to the police station at about 12 midnight. He is not aware if the deceased was the Bad Character of the area. The witness has further deposed that he cannot give the details regarding the SIM or the IMEI number of the mobile allegedly recovered from the possession of the accused. He has also deposed that in his presence Investigating Officer had opened the mobile phone to check the IMEI number but he is unable to give the details and Investigating Officer had sealed the mobile phone in his presence after checking the same. Witness has denied the suggestion that no mobile phone was recovered from the possession of accused Manoj or that the same has been planted upon the accused only to connect him with the present case. According to the witness, the Investigating Officer had checked the engine number and the chases number of the motorcycle while seizing the same but he cannot tell the same. Witness has denied the suggestion that the accused has been lifted from his house along with his motorcycle belonging to his brother Babloo and then falsely implicated in the present case. Witness has further denied the suggestion that accused Manoj is not apprehended and arrested in the manner as deposed by him. Witness has denied the suggestion that all documentations were done while sitting in the police station which he merely signed on the asking of the Investigating Officer and senior officers to work out this case. He has also denied the various suggestions put to him by the Ld. Amicus Curiae.
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 58 (80) PW30 Inspector Raj Kumar is the Investigating Officer of the present case who has deposed that on 17.07.2012 he was posted at Police Station Mangol Puri, Delhi and on that day he received DD No. 34A which is Ex.PW4/A. Witness has further deposed that the information was received from SGM Hospital in the said DD that one person namely Tinkoo was admitted in the hospital by his friend Pradeep and said Tinkoo was declared as brought dead and it was also informed by the said DD that Tinkoo had received bullet injury. According to him thereafter he alongwith SI Robin Tyagi and HC Chander Bhan reached at SGM Hospital and he obtained the MLC of Tinkoo (since deceased). Witness has further deposed that in the hospital Pradeep who had admitted Tinkoo in the hospital met him and Pradeep was found under treatment and hence he also obtained his MLC. According to him the duty constable had given him five sealed parcels which were handed over to him by the doctor concerned and he seized the above said five sealed parcels vide memo Ex.PW5/A. Witness has further deposed that the details of the exhibits are mentioned in the seizure memo and crime team was called in the hospital, the photographer of the crime team took the photographs of the dead body which photographs are Ex.PW2/A1 to Ex.PW2/A6. Thereafter from the hospital he alongwith Pradeep reached at the place of incident i.e. main road, Sanjay Gandhi Hospital, Opposite K Block School, near Andh Kalyan Sanstha, Drain Mangol Puri, Delhi and Crime team also reached at the spot and he observed blood spots on the road near the K Block School, on divider and on the road St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 59 going towards Andh Kalyan Sanstha. According to him the photographer of the Crime Team took the photographs of the scene of crime whereas the Incharge SI Anil Kumar inspected the scene of crime. He has also deposed that he himself also inspected the scene of crime and then recorded the statement of SI Anil Kumar and the photographer. Witness has further deposed that he recorded the statement of Pradeep which is Ex.PW15/A and his statement was read over to him after which he put his signatures as well as his thumb impressions at point A and B and the same was attested by him at point X. Witness has further deposed that he made endorsement on the said statement and prepared the rukka which is Ex.PW30/A which rukka was sent to Police Station Mangol Puri through HC Chander Bhan for registration of FIR and thereafter he prepared the site plan Ex.PW15/B on the pointing out of Pradeep. He has further deposed that he took the blood samples from the various places i.e. from road near K Block School which was kept in a plastic vial and sealed with the seal of RK, which exhibit was given as S.No. A, from the divider which was kept in a plastic vial and sealed with the seal of RK which was given as S.No. B, from the road in front of Astha Mandir which was kept in a plastic vial and sealed with the seal of RK and the exhibit was given as S.No. C, from the road in front of the office of Andh Kalyan Samiti which was kept in a plastic vial and sealed with the seal of RK which exhibit was given as S.No. D and thereafter all these exhibits were seized vide memo Ex.PW15/C. According to the witness he also took the earth control sample from the above said places St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 60 from where he had lifted the blood samples and the above said four earth control samples were kept in separate plastic vials and sealed with the seal of RK and were seized vide seizure memo Ex.PW15/D. He has proved having recorded the statement U/s 161 Cr.P.C. of complainant Pradeep regarding the above said proceedings.
(81) Witness has further deposed that in the meanwhile HC Chander Bhan reached at the spot alongwith rukka and copy of FIR and the same were handed over to him by him after which he put the FIR Number and other details on the documents which were already prepared by then. According to him, thereafter he alongwith SI Robin Tyagi and HC Chander Bhan alongwith Pradeep proceeded in the search of accused persons from the spot but Pradeep had left them on the way. The witness has also deposed that he and other police officials searched the accused persons but they could not be apprehended at that time and hence he alongwith other police officials returned to the Police Station and the exhibits were deposited in the Malkhana by him and he recorded the statement of SI Robin Tyagi and HC Chander Bhan and also recorded statement of Duty Officer and Special Messenger. He has testified that on 19.07.2012 he went to SGM Hospital for getting the postmortem of the dead body of Tinkoo and Ct. Jitender met him in the mortuary of the hospital as he was already present to safeguard the dead body and he conducted the inquest proceedings. According to him the dead body of Tinkoo was got identified by Jagmohan vide his statement Ex.PW13/A and the dead body was also identified by Rekha @ Guddi vide St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 61 her statement Ex.PW14/A. He has also deposed that he made request for the postmortem vide his request Ex.PW30/B; brief facts prepared during the inquest proceedings is Ex.PW30/C; Form 25.35 (1)(B) was prepared vide Ex.PW30/D and the postmortem was conducted by the Autopsy Surgeon and after the postmortem the dead body was handed over to Jagmohan vide receipt Ex.PW13/B. Witness has further deposed that after the postmortem Ct. Jitender handed over three sealed parcels along with sample seal to him and seized the above said exhibits vide seizure memo Ex.PW26/A. According to him, the complainant Pradeep was also medically examined by the doctor who conducted the postmortem and gave his report on his MLC Ex.PW12/B at point X. Witness has further deposed that thereafter he alongwith Ct. Jitender returned to the Police Station and exhibits were deposited in the Malkhana and he recorded the statement of Ct. Jitender. (82) According to the witness after some time on the same day i.e. on 19.07.2012 complainant Pradeep came to the police station and disclosed the exact name of accused Manoj @ Lekh Raj although he had already narrated the description of the accused in his complaint Ex.PW15/A. According to the witness, he recorded statement of Pradeep in this respect and on the same day one other witness namely Shahid Khan came to the police station and gave the registration number of the motorcycle of the said person who had fired in this case and he recorded the statement of Shahid Khan. He has testified that on 19.07.2012 at about 6.00 PM a secret information was St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 62 received by him in the police station that accused Manoj @ Lekhraj wanted in this case is present near S Block Chowk, Mangol Puri. According to him in pursuance of the said information he alongwith SI Robin Tyagi, HC Illa Khan, Ct. Jitender and the secret informer proceeded towards the above said place in his private vehicle and when they reached at S Block Chowk, Mangol Puri accused Manoj @ Lekh Raj found sitting on his motorcycle near Church and on the pointing out of the secret informer, accused Manoj @ Lekhraj was apprehended. Witness has further deposed that the accused Manoj was interrogated who confessed about his involvement in this case and was arrested vide memo Ex.PW21/A, his personal search was conducted vide memo Ex.PW21/B during which one mobile phone make Huwei, TATA Indicom was recovered which was used in this case while passing the information on phone by CCL Sachin. The witness has also deposed that he thoroughly interrogated the accused Manoj and recorded his disclosure statement vide Ex.PW21/C. Witness has further deposed that he seized the motorcycle bearing No. DL 8S AH 8700 on which accused Manoj was found sitting at the time of his arrest vide memo Ex.PW21/D and the above said registration number of the motorcycle was also disclosed by Saheed Khan. He has testified that in his disclosure statement accused Manoj @ Lekhraj stated that he could get recovered the weapon of offence and in pursuance of his disclosure statement accused lead them to the vacant plot in front of his house and got recovered one country made pistol from beneath the sand after removing the same. The witness has also deposed St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 63 that the above said country made pistol was found kept in a gunny bag when it was recovered and two live cartridges and one cartridge case (fired shell) was also found in the said gunny bag and then prepared the sketch of the country made pistol, live cartridges and the cartridge case which is Ex.PW21/E. According to him, the above said articles were kept in the same gunny bag and the gunny bag was wrapped in a cloth piece and sealed the same with the seal of RK and seized vide seizure memo Ex.PW21/F after which he prepared the site plan of place of recovery which is Ex.PW21/G. According to the witness accused Manoj also pointed out the place of incident while returning from the place of recovery vide pointing out memo Ex.PW21/H. He has also deposed that thereafter they returned back to the police station, case property was deposited in the Malkhana and he recorded the statement of witnesses.
(83) According to the Investigating Officer on the next day i.e. on 20.07.2012 he received information that one accused (CCL) was present in the area of Y Block of Mangol Puri near bus stop of route number 901 on which he alongwith HC Niranjan and secret informer reached the above said area and after searching at some places the CCL Sachin was found sitting near water tank, Shamshan Ghaat Road Drain, Opposite Y block. He has testified that Sachin was apprehended on the identification of secret informer and after completing the necessary proceedings and one mobile phone make Virgin of black colour was recovered from CCL Sachin which phone was used by him while making conversation with accused Manoj and the same St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 64 was seized vide memo Ex.PW18/B. He has further deposed that he made inquiries from him and recorded his version vide Ex.PW18/A and the apprehension memo of CCL Sachin is Ex.PW18/C. According to him, he then produced the CCL Sachin before the J J Board and later on his separate charged sheet was filed before the J J Board.
(84) Witness has further deposed that on 10.08.2012 Draftsman SI Mahesh was called and he took the measurement and prepared the rough notes of the place of incident and later on he gave the scaled site plan Ex.PW3/A to him. According to the witness, he obtained the Call Detail Record of phone numbers 9250069348 (belonging to CCL Sachin) and 9213963548 (belonging to accused Manoj). He has testified that during the investigations he has also collected the ownership records of the motorcycle number DL 8S AH 8700 which was found in the name of Babloo (brother of accused Manoj) and the said document is Ex.PW19/A. He has further deposed that exhibits and the weapon of offence were sent to FSL and obtained the report of FSL expert and he recorded statement of witnesses at the relevant time of investigation according to their roles and after completion of investigation he prepared the charge sheet in respect of accused Manoj @ Lekh Raj and filed the same in the court. (85) The witness has correctly identified the accused Manoj @ Lekhraj in the Court and the case property i.e. one country made pistol along with three empty shells of cartridges as the same as recovered at the instance St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 65 of accused Manoj, which pistol is Ex.P3, cartridges are collectively Ex.P4; one mobile phone make Huawei of Black and white color as the same which was found in the personal search of accused Manoj @ Lekhraj, which phone is Ex.P5; motorcycle make TVS Star bearing No. DL 8S AH 8700 as the same as recovered from the possession of accused Manoj Lekh Raj which motorcycle is Ex.P6 and one mobile phone make Virgin of Black colour as the same which was found in the personal search of CCL Sachin which phone is Ex.P7.
(86) In his cross examination by Ld. Defence counsel, witness has deposed that complainant Pradeep met him first time on 17.07.2012 in Sanjay Gandhi Memorial Hospital and he does not remember if the complainant Pradeep met him on 18.07.2012 also. Witness has admitted that on 17.07.2012 the complainant did not tell him the name of the accused and the make of the motorcycle. Witness has admitted that on 17.07.2012 Pradeep told him the description of the accused as whitish complexion and slim structured. According to him the statement dated 17.07.2012 was read over to the complainant after recording the same and he obtained his signatures as well as the thumb impression because he felt that he had some problem in making proper signatures and he recorded the statement of Pradeep on 17.07.2012 at the spot. He has testified that on 19.07.2012 Pradeep did not disclose about the registration of the motorcycle. He is not aware if the deceased Tinkoo was a Bad Character of the area and if there were several complaints against the deceased at Police Station Mangol Puri. Witness has admitted that the St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 66 deceased was involved in Occultism and doing the work of "Jhaar Phoonk". Witness has further deposed that he had tried to make inquiry from Sonam, the sister of CCL Sachin and also from Ram Swaroop about the affair of Sonam with Pradeep and he did not record statement of Ram Swaroop and Sonam and has voluntarily explained that he recorded the statement of Sunita, mother of CCL Sachin. He does not recollect if he made inquiries from Babloo the owner of the motorcycle or from Kuldeep S/o Bama Lal R/o Mangol Puri and admits that he did not show the motorcycle to Shahid Khan for cross verification. He has testified that he had examined Shahid Khan regarding his knowledge about Hindi numbers but he does not recollect if he had mentioned the said fact in the CD or not. However, after going through the case diaries the witness has admitted that the said fact is not mentioned in the case diaries. Witness has admitted that he has prepared the conviction slip of accused Manoj and has mentioned the description of accused in the said conviction slip as fair complexion and strong built. He has also deposed that on 19.07.2012 he was on a private car i.e. Maruti Zen of one of his relatives, when he received the information regarding this incident. According to the witness all the police officials were in uniform and the secret information was received by him when he was alone in the Police Station. He has testified that he did not convey the secret information to his senior officers and had reduced the secret information into writing in DD but he cannot tell its number. Witness has further deposed that no legal notice was served upon the public persons who refused to join the investigations. St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 67 The witness has also deposed that the secret informer pointed towards the accused at a distance of about 4050 meters. He admits that the accused did not try to escape and has explained that he was apprehended prior to his efforts to escape. According to the witness the accused Manoj was apprehended at about 6.30PM and was arrested about 7.15PM. He has testified that they reached at the place of recovery at about 8.45PM. Witness has admitted that there are residential houses at the place of recovery and states that he did not enter the house of accused Manoj at that time and is unable to tell if he had shown the house of accused in the site plan. He has explained that the area of the plot in front of the house of accused from where the pistol was got recovered is about 400 Sq. Yards. Witness has further deposed that the writing work was done while sitting on the vehicle which was parked about 5060 meters away. He does not remember the distance of the street light from the place of recovery and has explained that it took about 35 to 40 minutes in preparing the pullanda of the pistol. According to him he did not call upon any family member of the accused. He has denied the suggestion that he did not conduct the investigations of this case in a fair manner or that the accused was not arrested in the manner as stated by him. Witness has also denied the suggestion that accused was lifted on 19.07.2012 from the office of Parmuddin Saifi and falsely implicate him in the present case or that nothing was recovered at the instance of accused or that the alleged recovery was planted upon him. He has also denied the suggestion that accused Manoj had been falsely implicated in this St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 68 case at the instance of Pradeep who was willing to marry Sonam, the sister of CCL Sachin or that signatures of accused were obtained on blank papers which were later on converted into certain incriminating documents against the accused.
Court Witnesses:
(87) During the course of investigations, clarifications were sought from the Inspector SHO Police Station Mangol Puri on the aspect of user of the mobile phone No. 9213963548 by the accused Manoj @ Lekhraj at the relevant point of time which aspect was relevant and necessary for just decision of the case and the accused Manoj @ Lekhraj was disputing the user of this mobile number when the incriminating material showing the recovery of the mobile set containing this SIM was put to him. Pursuant to the same the SHO Police Station Mangol Puri placed on record the Call Detail Records of mobile No. 9212733046 issued in the name of Babloo the real brother of the accused Manoj to prove that the accused Manoj was using the mobile No. 9213963548. Thereafter this Court by exercising its powers under Section 311 Cr.P.C. examined Inspector Ashok Sharma SHO Police Station Mangol Puri as CW1 and Rajeev Ranjan Nodal Officer from Tata Teleservices as CW2 to which the Ld. Amicus Curiae has no objection because the accused Manoj was admitting the use of mobile No. 9212733046 by this brother Babloo.
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 69 (88) CW1 Inspector Ashok Sharma has placed on record the pertaining to mobile No. 9212733046 which was issued in the name of Babloo S/o Raj Kumar R/o 121, Block C10, THuts, Kumhar Basti, Sultan Puri, Delhi vide customer application form and the Call Detail Records from 12.7.2012 to 21.7.2012 which is Ex.CW1/A. The Customer Application Form in this regard is Ex.CW1/B, copy of the election ID Card which is Ex.CW1/C and the covering letter addressed to the SHO Police Station Nagloi which is Ex.CW1/C and the accused does not dispute the use of this number by this brother Babloo.
(89) The above said record has also been duly proved by CW2 Rajeev Ranjan, Nodal Officer, Tata Teleservices and has also proved the Cell ID Chart which is Ex.CW2/A and certificate under Section 65B of Indian Evidence Act which is Ex.CW2/B. STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:
(90) After completion of evidence the statement of the accused Manoj @ Lekhraj was recorded under Section 313 Cr.P.C. wherein all incriminating evidence was put to him which he has denied. The accused has stated that he is innocent and has been falsely named by Pradeep as he wanted to marry Sonam with whom his (accused) marriage talks were going on at that time.
According to the accused he has been falsely implicated in this case by Praddep so that his way to marry Sonam would clear. He has further stated St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 70 that he was not even present at the place of incident. (91) In his additional statement under Section 313 Cr.P.C. the accused Manoj @ Lekhraj has admitted that at the time of incident he was using a mobile phone make Samsung but he was not using the mobile phone of Tata Indicom as alleged by the prosecution. According to him, the mobile set recovered from his possession was returned to his brother Anuj by the police. The accused has further stated that he is not known to any Kuldeep. He has specifically denied that he was using the mobile No. 9213963548 and has stated that he was using the mobile No. 8750766126 which was issued in the name of his brother Anuj. Further, when the Call Detail Records of Babloo was put to the accused Manoj @ Lekraj, he has admitted that his elder brother Babloo is residing separately and was using the mobile No. 9212733046 but he is not aware of the call detail records. (92) However, despite opportunity the accused did not examine any witness in his defence.
FINDINGS:
(93) I have heard the arguments advanced before me by the Ld. Addl.
PP for the State and the Ld. Defence Counsel. I have also gone through the memorandum of arguments filed by both the parties and the evidence on record. I first propose to deal with all the averments made by the various witnesses individually in a tabulated form as under and later on comprehensively.
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 71
Sr. Name of the Details of deposition
No. witness
Public witnesses:
1. Jagmohan He is the uncle of the deceased who identified the dead body
(PW13) of his nephew Tinku @ Kanwar Pal S/o Jai Pal R/o J1169,
Mangol Puri in the hospital vide Ex.PW13/A and after the postmortem the dead body was handed over to them vide memo Ex.PW13/B.
2. Rekha @ Guddi She is the sister of the deceased who has proved that she (PW14) identified the dead body of his brother Tinku @ Kanwar Pal S/o Jai Pal R/o J1169, Mangol Puri in the hospital vide Ex.PW14/A and after the postmortem the dead body was handed over to them vide memo Ex.PW13/B.
3. Pradeep (PW15) He is an eye witness/ victim who has deposed on the following aspects:
1. That at the time of the incident he was residing at House No. J11931194, Mangol Puri, Delhi on rent basis and was working as Sweeper in the Kothari Hostel, Mall Road, Delhi.
2. That he knew Kanwar Pal @ Tinku who was residing near his house at Delhi in his own house and he was residing there along with his sister Guddi.
3. That on 17.7.2012 at about 3:003:15 PM he was going to purchase a TV remote for his new TV and Tinku accompanied him to the TV shop at S Block, Mangol Puri.
4. That when they were returning back to their house and they reached the school at SBlock Mangol Puri, one person namely Manoj came towards Y Block on a motorcycle and Manoj slowed down the motorcycle near them.
5. That Manoj stopped the motorcycle and pointed out a katta towards them and fired upon them on which he ducked and fell down on the ground and shoted at Tinku to save himself but unfortunately Kanwar Pal @ Tinku received gun shot injury on his chest from the above said katta as fired by Manoj.
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 72
6. That he also received the injuries caused by the lead pieces/ pellets (charre) on his right hand and thereafter Manoj ran away from the spot on his motorcycle with his katta whereas Pradeep raised an alarm for help.
7. That thereafter Pradeep took Kanwar Pal @ Tinku to Sanjay Gandhi Hospital in a rickshaw and got him admitted there in the Emergency and somebody made call to the police.
8. That one police official namely Jitender met him at the entrance of the hospital who also helped him and he was also medically treated in the hospital.
9. That he thereafter came back to the spot with police officials and his statement was recorded there which is Ex.PW15/A.
10. That he also showed the place of the incident to the police and the police prepared a site plan which is Ex.PW15/B.
11. That police also lifted blood from four places at the spot and kept the same in separate four plastic containers and sealed the same and seized the same vide Seizure memo Ex.PW15/C.
12. That the police also lifted some plain earth from the above said four places and kept the same in plastic containers and sealed the same after which they were seized vide memo Ex.PW15/D.
13. That his wearing clothes i.e. black Tshirt of Delhi University, Kothari Hostel and grey colored lower (payjama) were also taken by the doctor who examined him in the hospital and the police seized the same with other pullandas in his presence in the hospital vide memo Ex.PW5/A.
14. That Tinku @ Kanwar Pal was declared dead by the doctors in the hospital within an hour and after postmortem his dead body was returned to his relatives after two days.
15. That he was again called at the SGM Hospital on 19.7.2012 where the doctors medically examined him and that police makd inquires from him on 19.7.2012 St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 73 and recorded his statement.
16. That he did not disclose the name of the offender in his first statement to the police vide Ex.PW15/A on 17.7.2012.
17. That on 19.7.2012 he disclosed the name of the accused Manoj as the offender who fired upon them as Kanwar Pal had expired and he disclosed the true facts to the police on that day and that the accused Manoj had come to fire upon him but Kanwar Pal received the injuries as he ducked and fire instead hit Kanwar Pal.
18. That the name of his Landlord is Ram Saran and the accused Manoj is the younger brother of son in law (Babloo) of the elder brother of landlord Ram Saran.
19. That he (Pradeep) has talking terms with Ms. Sonam the daughter of his landlord Ram Saran and Manoj had suspicion upon him of having illicit relations with her.
20. That the accused Manoj protested for the same and warned him to disconnect his talking terms with Sonam as there were talks of his matrimonial alliance with Sonam.
4. Smt. Sunita She is the mother of the juvenile accused Sachin and has (PW17) proved that she had obtained a mobile number 9250069348 on her ID which mobile was being used by her son Sachin who was doing the course of mobile repair at Budh Vihar and he used to take this mobile phone with above SIM and used the same. Witness has further proved that the customer application form Ex.PW16/A bears her signatures at point B and the ID proof i.e. copy of election ID card Ex.PW16/B belongs to her.
5 Saheed Khan He residing at K237, Mangol Puri, Delhi for the last 1 ½ (PW20) years and he is having a shop of Kabari at X Block near Subzi Mandi (i.e. spot of the incident). He has deposed on the following aspects:
1. That on 17.07.2012 he was sitting in front of his shop when at around 4.00 PM, he heard a noise of firearm shot from the other side of the road and on hearing St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 74 this noise he saw that a boy was running and coming toward other side of the road and his clothes were smeared with blood.
2. That he also noticed that there was a boy on a motorcycle and he was holding something in his hand appearing to be a pistol and pointing towards the said boy who was hit and thereafter the boy on the motorcycle escaped towards the side of the police chowki.
3. That he immediately noted down the number of the motorcycle on which this boy holding the pistol was sitting.
4. That the said motorcycle number was DL 8S AH 8700 which was written in Hindi and thereafter made a call to Ct. Jitender beat constable of the area on his (Ct. Jitender's) mobile No. 9015717994 from his mobile number 9250580625.
Witnesses of Medical Record:
6. Dr. Manoj He is the Autopsy Surgeon who has proved that on Dhingra (PW12) 19.07.2012 at about 11 AM he along with Dr. Vivek Rawat conducted the postmortem on the dead body of Kanwar Pal @ Tinku vide postmortem report Ex.PW12/A according to which there were following external examination on the body of the deceased :
1. Firearm entry wound 3cm x 1.7cm cavity deep, oval shaped, over right side of chest, 7.3cm medial from right nipple, 7cm from sterna notch. Blackening & tattooing seen around the wound margin. Track of wound extends through space between 4th & 5th intercostals space, going downward & medially piercing the mediatinum, pericardium & heart then to stomach, spleen then gets lodged in the space between 8th & 9th intercostals space along the posterior axillary line.
2. Abrasion 4cm x 3cm over right side of nasal Ala.
3. Abrasion 3cm x 2cm over left cheek prominence.
4. Abrasion 4cm x 3cm over right frontal eminence area.
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 75
5. Abrasion 2.5cm x 1.5 cm over front of left half of chin.
He has proved that the cause of death in the present case was due to hemorrhage and shock associate with injury No. 1 which could be possible by projectile discharge from a fire arm weapon capable of discharging such a projectile, all injuries were antemortem in nature and time since death was about two days. Witness has further proved that after postmortem they handed over the 12 inquest papers, clothes of the deceased, bullet and blood stained gauze in sealed condition with the seal of the hospital along with the sample seal to the police.
Dr. Manoj Dhingra has also proved that on 19.07.2012 he along with Dr. Vivek Rawat also seen the MLC No. 11752 of Pardeep, S/o Gopi, male 25 years dated 17.07.2012 which MLC is Ex.PW12/B and after seeing the patient they had opined that multiple black and red color burning spots present on right hand over extension aspect of right arm and elbow, swab had already taken by the CMO. On a specific Court Question, the witness has explained that the burning spots could be on account of pieces of lead/cartridge (charre) having stuck the body. 7 Dr. Binay Kumar This witness has proved that on 17.07.2012 at around 4:30 (PW29) PM an unknown person, male, aged around 30 years was brought to SGM hospital by his friend Pradeep with alleged history of fire arm injury as told by Pardeep.
He has further proved that the pulse of the patient was not palpable, BP was not recordable, chestB/L (bilateral) breath sound absent, CVS (cardio vascular system) - both heart sounds not audible, Pupil - B/L dilated and fixed. According to the witness, he declared the patient brought dead after which the dead body was shifted to mortuary for postmortem examination and the MLC in this regard is Ex.PW29/A. He has further proved that since the history was of a firearm injury hence on the request of Inspector Raj Kumar, he directed XRay of skull, chest and abdomen at 5:30 PM.
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 76 Nodal Officer:
8. M. N. Vijayan This witness has proved that the mobile number 9250069348 (PW16) Nodal has been issued in the name of Ms. Sunita wife of Ram Officer from Tata Saran, R/o 1194, block J, Mangolpuri, Delhi vide Customer Teleservices Ltd. Application Form which is Ex.PW16/A, copy of the ID proof i.e. copy of election ID card is Ex.PW16/B and the copy of the call details record from 15.07.2012 to 17.07.2012 running into two pages is Ex.PW16/C. He has further proved that the number 9213963548 has been issued in the name of Kuldeep S/o Banna Lal, R/o C3/522, Nand Nagri, resettlement colony, block C8, Delhi vide Customer Application Form which is Ex.PW16/D, the copy of the ID proof i.e. copy of election ID card is Ex.PW16/E ; copy of call detail record from 15.07.2012 to 17.07.2012 running into two pages is Ex.PW16/F; Cell ID Chart which is Ex.PW16/G and certificate U/s 65B of Indian Evidence Act which is Ex.PW16/H. FSL Experts:
9. Dr. N. P. This witness has proved the Ballistic Report which is Waghmare Ex.PW23/A according to which:
(PW23) Assistant 1. Exhibit marked F1 is a firearm as defined in Arms Director, Ballistics Act and it is a country made pistol, capable of (FSL) chambering and firing standard 8mm/ .315 inch ammunition.
2. That 8 mm/.315 cartridges marked A1 and A2 and two 8mm/.315 inch cartridges taken from laboratory stock were chambered and successfully test fired through exhibit country made pistol marked F1 and hence he opined that exhibit country made pistol marked F1 is in normal working order and exhibit 8mm/.315 inch cartridges marked A1 and A2 were live ammunition before they were test fired in the laboratory, recovered cartridge cases and bullets were used for comparison and examination purpose.
3. The individual characteristic marks of country made pistol marked exhibit F1 present on the crime cartridge case marked exhibit EC1 were compared St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 77 with test cartridge cases fired through country made pistol marked exhibit F1 under a comparison microscope.
4. After thorough examination and comparison, firing pin and breech face marks present on exhibit empty cartridge case EC1 were similar with firing pin and breech face marks present on test cartridge cases and hence he opined that exhibit empty cartridge case marked EC1 had been fired through the country made pistol marked exhibit F1.
5. The individual striation marks present on crime bullet marked exhibit EB1 were compared with recovered test bullets fired through exhibit country made pistol marked F1 under a comparison microscope.
6. After thorough examination and comparison, individual striation marks present on exhibit bullet marked EB1 were similar with individual striation marks present on test bullets fired through exhibit country made pistol marked F1 and hence he opined that exhibit bullet marked EB1 had been discharged through exhibit country made pistol marked F1.
7. The exhibit swab samples marked S1 and S2 taken from the site of injury along with control swab sample marked C1 taken from left arm of injured/eye witness were analyzed under Atomic Absorption Spectrophotemeter (AAS) for the detection of Gun shot Residue / bullet residue. As a result of analysis, no opinion can be given due to in sufficient data available on them.
10. Ms. Seema Nain This has proved having given the Biological Report (PW28) Senior Ex.PW28/A and Serological Report Ex.PW28/B given by Scientific Officer her in respect of the exhibits sent to her. According to the (Biology) Biological Report, blood was detected on Ex.1 (gauze cloth piece), 2 (gauze cloth piece), 3 (gauze cloth piece), 4 (gauze cloth piece), 5 (concrete material described as blood pieces of road), 6 (concrete material described as blood pieces of St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 78 divider), 7 (concrete material described as blood pieces of road), 8 (concrete material described as blood pieces of road), 9a (jeans pant), 9b(shirt), 9c (baniyan having brownish stains), 9d(underwear) and 10 (blood gauze of deceased). On serological examination, human blood was detected on all the above exhibits and Blood of B Group was detected on Ex 2 (gauze cloth piece) and 9a(jeans pant), 9b (shirt), 9c (baniyan having brownish stains), 9d (underwear) and 10 (blood gauze of deceased).
Police/ Official witnesses:
11 SI Anil Kumar He is a formal witness being the Crime Team Incharge who (PW1) has proved the Crime Team Report which is Ex.PW1/A.
12. Ct. Sandeep He is a formal witness being the Crime Team Photographer (PW2) who has proved the photographs Ex.PW2/A1 to Ex.PW2/A18 and negatives of the same are collectively Ex.PW2/B.
13. SI Mahesh Kumar He is a formal witness being the Draftsman who has proved (PW3) the scaled site plan which is Ex.PW3/A.
14. SI Janak Raj He is a formal witness being the Duty Officer who has (PW4) proved DD No.34 which is Ex.PW4/A, FIR No. 262/12 copy of which is Ex.PW4/B, endorsement on rukka which is Ex.PW4/C, DD No. 38A and DD No. 41 A which are Ex.PW4/D and Ex.PW4/E respectively.
15. HC Chander He is a formal witness who has proved that on 17.7.2012 on Bhan (PW5) receipt of DD No. 34A he along with SI Robin Tyagi reached SGM Hospital. He has further proved that he collected two pullandas and three tube swab sealed with the seal of SGMH Mangol Puri which the IO seized vide memo Ex.PW5/A.
16. Ct. Suresh Kumar He is a formal witness who has proved that on 31.7.2012 he (PW6) took seven exhibits of this case from the MHCM vide RC No. 48/21/12 copy of which is Ex.PW6/A and deposited the same with the FSL vide receipt Ex.PW6/B. St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 79
17. Ct. Naveen Kumar He is a formal witness who has proved that Ct. Jitender No. (PW7) 1362 is his friend who got issued a mobile No. 9015717994 on his Voting ID Card Ex.PW7/A and it was Ct. Jitender who was using the said number.
18. HC Suresh (PW8) He is a formal witness being the Computer Operator who has has proved that on 17.7.2012 he fed the contents of the rukka in the computer installed in the Police Station and recorded the FIR copy of which is Ex.PW4/B.
19. Ct. Ramesn He is a formal witness being the Special Messenger who has (PW9) proved that on 17.7.2012 he delivered the copy of FIR to the Ld. MM and senior officers on his private motorcycle bearing No. HR 12L 7713.
20. Ct. Ratnesh He is a formal witness being who has proved that on (PW10) 3.8.2012 he took ten pullandas from the MHCM vide RC No. 55/21/12 copy of which is Ex.PW10/A and deposited the same at FSL Rohini vide receipt Ex.PW10/B.
21. HC Mahavir He is a formal witness being the MHCM who has proved the Prasad (PW11) entry in register no. 19 vide S. No. 6159 dated 17.07.12 copy of which is Ex.PW11/A, S.No. 6160 dated 19.07.12 copy of which is Ex.PW11/B, entry at S. No. 6162 dated 20.07.12 copy of which is Ex.PW11/C; RC No. 48/21/12 copy of which is Ex.PW6/A; receipt issued by FSL copy of which is Ex.PW6/B; RC No. 55/21/12 copy of which is Ex.PW10/A and receipt issued by FSL copy of which is Ex.PW10/B.
22. Ms. Radha She is running NGO under the name and style of DAV Bhardwaj (PW18) Education and Welfare Society and has deposed on the following aspects:
1. That on 20.07.2012 she was called by the Investigating Officer Inspector Raj Kumar at Y Block, Mangol Puri, Shamshan Ghat Road since a minor/ juvenile had been apprehended and she reached at the spot i.e. near the water tan DJB, Opp.
Y Block Mangol Puri at about 9.15 AM where she met Inspector Raj Kumar alongwith HC Niranjan and the minor/ Juvenile Sachin.
2. That the father of Sachin had also reached the spot and was brought by HC Niranjan and in his presence St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 80 the search of Juvenile was conducted and from his pocket a black color old mobile phone was recovered.
3. That Sachin also informed that Pradeep used to harass his sister (Pareshan Karta hai) and Sachin also informed that he alongwith one Manoj who is younger brother of his Jija Babloo had time and again advised / counseled Pradeep to remain away from his sister but Pradeep continued with his conduct and therefore they planned to eliminate him (Pradeep).
4. That Sachin further informed that Manoj told him that he had a desi katta with him and that Sachin should call Pradeep through a common friend Tinku on the pretext of purchasing a remote for his television after which Manoj would kill him with a Katta.
5. That Sachin further informed the police that pursuance to the above planning Tinku brought Pradeep to the S Block on the pretext of purchasing of TV remote on 17.07.2012 in the after noon whereas in the meanwhile Sachin kept talking to Tinku to ascertain his location.
6. That Sachin also informed that on coming to know that Pradeep was at the SBlock Sachin then communicated Manoj about their location and Manoj came to the S Block on his bike and shot at Pradeep but incidentally the bullet had hit Tinku and not Pradeep.
7. That Sachin further informed the police that he (Sachin) was nearby and was witnessing the entire incident on which he immediately informed Manoj that the wrong person i.e. Tinku had been hit on which both of them i.e. Sachin and Manoj ran away.
8. That police recorded the statement of Juvenile Sachin copy of which is Ex.PW18/A and the mobile phone of Sachin was taken by the Investigating Officer and seized vide memo Ex.PW18/B and the copy of apprehension memo Ex.PW18/C. St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 81
23. Manish Khatri He is the LDC from Transport Department and has proved (PW19) that the motorcycle No. DL 8S AH 8700 is in the name of Babloo S/o Raj Kumar R/o RZ 199, Rao Vihar, Village Nangloi, Delhi110087 and certified copy of the above vehicle issued by their department is Ex.PW19/A.
24. HC Illa Khan This witness has joined investigations with the Investigating (PW21) Officer and has proved the following documents:
Ex.PW21/A Arrest memo of accused
Ex.PW21/B Personal search memo of accused
Ex.PW21/C Disclosure statement of accused
Ex.PW21/D Seizure memo of Motorcycle
Ex.PW21/E Sketch of Pistol and Cartridges
Ex.PW21/F Seizure memo of Pistol and Cartridges
Ex.PW21/G Site plan of the spot from where the Pistol
and Cartridges were recovered
Ex.PW21/H Pointing out memo
25. HC Niranjan This witness has also joined investigations with the
Singh (PW22) Investigating Officer who has proved that apprehension of
juvenile accused Sachin. He has proved the statement of
Juvenile Sachin copy of which is Ex.PW18/A; the mobile phone of Sachin was taken by the Investigating Officer and seized vide memo Ex.PW18/B and copy of apprehension memo which is Ex.PW18/C.
26. Inspector Satya He is a formal witness who has proved that on 16.05.2013 he Prakash (PW24) filed the supplementary charge sheet in the present case after obtaining FSL results and permission U/s 39 of Arms Act.
27. Sh. M.A. Rizvi He is the then Addl. DCP Outer District who has proved that (PW25) on 01.05.2013 and after going through the documents i.e. seizure memo, ballistic examination report dated 24.04.2013 and the investigation record and after being satisfied he accorded the sanction U/s 39 of Arms Act for purposes of prosecuting the accused Manoj @ Lekh Raj, S/o Raj Kumar which is Ex.PW25/A. St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 82
28. HC Jitender This witnesses has deposed on the following aspects:
(PW26) 1. That on 17.07.2012 he was posted at police post Sanjay Gandhi Memorial Hospital, police station Mangolpuri.
2. That on that day at about 4 PM while he was patrolling in the area covered in his beat, he received a call from one Shahid Khan, a kabari in the area that one boy had shot some person near the Ashram of blind persons which person was on a motorcycle with number plate written in Hindi i.e DL8S AH8700 (all written in Hindi) and was going towards the S Block Chowk.
3. That he immediately reached to S Block Chowk and started checking the vehicles when at about 4:30 PM while he started moving towards the gate of the SGM Hospital and reached near the gate, he found that two boys were coming in a cycle rickshaw out of whom, one was injured and when he made inquiries from the boy who was not injured, he informed that his name was Pardeep where the name of the other person/ injured was Tinku.
4. That he also informed him that Tinku had received firearm injury and he immediately took them to Emergency for purposes of treatment and send information to the Police Chowki.
5. That after some time SHO came to the hospital and on inquiry they came to know that the injured had been declared brought dead to the hospital and the SHO also got medical of Pardeep done.
6. That after sometime Insp. Raj Kumar directed the dead body to be shifted in the mortuary and made a request to the CMO and he was directed to remain with the same to preserve the dead body and to ensure that the same was not tampered and he remained there till the postmortem was conducted on 19.07.2012.
7. That after the postmortem examination of the deceased the doctor had handed over to him four sealed parcels duly sealed with the seal of the St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 83 hospital and the sample seal which he handed over to the Investigating Officer who seized the same vide memo Ex.PW26/A. This witness has also joined investigations with the Investigating Officer and has proved the following documents:
Ex.PW21/A Arrest memo of accused
Ex.PW21/B Personal search memo of accused
Ex.PW21/C Disclosure statement of accused
Ex.PW21/D Seizure memo of Motorcycle
Ex.PW21/E Sketch of Pistol and Cartridges
Ex.PW21/F Seizure memo of Pistol and Cartridges
Ex.PW21/G Site plan of the spot from where the Pistol
and Cartridges were recovered
Ex.PW21/H Pointing out memo
29. SI Robin Tyagi This witness had reached the spot along with Inspector Raj
(PW27) Kumar pursuant to the information. He has proved the
following documents:
Ex.PW4/A DD No. 34A
Ex.PW5/A Seizure memo of exhibits taken from
Pradeep by the doctor
Ex.PW5/B Rough site plan
Ex.PW5/C & Seizure memo of the exhibits lifted from the PW5/D spot Ex.PW21/A Arrest memo of accused Ex.PW21/B Personal search memo of accused Ex.PW21/C Disclosure statement of accused Ex.PW21/D Seizure memo of Motorcycle Ex.PW21/E Sketch of Pistol and Cartridges Ex.PW21/F Seizure memo of Pistol and Cartridges Ex.PW21/G Site plan of the spot from where the Pistol and Cartridges were recovered St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 84 Ex.PW21/H Pointing out memo
30. Inspector Raj He is the Investigating Officer of the present case. He has Kumar (PW30) proved the following documents:
Ex.PW4/A DD No. 34A
Ex.PW5/A Seizure memo of exhibits taken from
Pradeep by the doctor
Ex.PW15/A Statement of Pradeep
Ex.PW30/A Rukka
Ex.PW15/B Rough site plan
Ex.PW5/C & Seizure memo of the exhibits lifted from the PW5/D spot Ex.PW13/A Dead body identification statement Ex.PW14/A Dead body identification statement Ex.PW30/B Request for postmortem Ex.PW30/C Brief facts Ex.PW30/D Form 25.35 (1)(B) Ex.PW13/B Dead body handing over memo Ex.PW26/A Seizure memo of exhibits of the deceased Ex.PW21/A Arrest memo of accused Ex.PW21/B Personal search memo of accused Ex.PW21/C Disclosure statement of accused Ex.PW21/D Seizure memo of Motorcycle Ex.PW21/E Sketch of Pistol and Cartridges Ex.PW21/F Seizure memo of Pistol and Cartridges Ex.PW21/G Site plan of the spot from where the Pistol and Cartridges were recovered Ex.PW21/H Pointing out memo Ex.PW18/A Statement of Juvenile Sachin Ex.PW18/B Seizure memo of Mobile phone Ex.PW18/C Copy of Apprehension memo St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 85 Court Witnesses
31. Inspector Ashok He is the SHO Police Station Mangol Puri who has proved Sharma (CW1) the Call Detail Records of mobile No. 9212733046 which was used by Babloo the elder brother of accused Manoj @ Lekhraj. He has proved the following documents:
Ex.CW1/A Call Detail Record of mobile No.
9212733046
Ex.CW1/B Customer Application From
Ex.CW1/C Copy of the election ID Card
Ex.CW1/D Covering letter
32. Sh. Rajeev He is the Nodal Officer from Tata Teleservices Ltd. who has
Ranjan (CW2) proved the following documents:
Ex.CW1/A Call Detail Record of mobile No.
9212733046
Ex.CW1/B Customer Application From
Ex.CW1/C Copy of the election ID Card
Ex.CW1/D Covering letter
Ex.CW2/A Cell ID Chart
Ex.CW2/B Certificate u/s. 65 B of Evidence Act
(94) Coming now the microscopic evaluation of the evidence against
the accused.
Medical Evidence:
(95) Dr. Binay Kumar (PW29) from SGM Hospital has proved the
MLC of the deceased Tinku Ex.PW29/A who was brought to SGM Hospital by his friend Pradeep on 17.07.2012 at around 4:30 PM with alleged history of firearm injury. He has proved that on examination the pulse was not St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 86 palpable, BP was not recordable, chestB/L (bilateral) breath sound absent, CVS (cardio vascular system) - both heart sounds not audible, Pupil - B/L dilated and fixed and hence he declared the patient brought dead after which the dead body was shifted to mortuary for postmortem examination. (96) Dr. Manoj Dhingra (PW12) has proved that on 19.07.2012 at about 11 AM he along with Dr. Vivek Rawat conducted the postmortem on the dead body of Kanwar Pal @ Tinku vide postmortem report Ex.PW12/A according to which following injuries were found on the body of the deceased : ➢ Firearm entry wound 3cm x 1.7cm cavity deep, oval shaped, over right side of chest, 7.3cm medial from right nipple, 7cm from sterna notch. Blackening & tattooing seen around the wound margin. Track of wound extends through space between 4th & 5th intercostals space, going downward & medially piercing the mediatinum, pericardium & heart then to stomach, spleen then gets lodged in the space between 8th & 9th intercostals space along the posterior axillary line.
➢ Abrasion 4cm x 3cm over right side of nasal ala.
➢ Abrasion 3cm x 2cm over left cheek prominence.
➢ Abrasion 4cm x 3cm over right frontal eminence area. ➢ Abrasion 2.5cm x 1.5 cm over front of left half of chin. (97) He has proved that the cause of death was due to hemorrhage and shock associate with injury No. 1 which could be possible by St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 87 projectile discharged from a fire arm weapon capable of discharging such a projectile. The witness has also proved that after postmortem they handed over 12 inquest papers, clothes of the deceased, bullet and blood stained gauze in sealed condition with the seal of the hospital along with sample seal to the police.
(98) In so far as the victim/ witness Pradeep is concerned, Dr. Manoj Dhingra (PW12) has proved his MLC which is Ex.PW12/B and having opined that multiple black and red color burning spots present on right hand over extension aspect of right arm and elbow, swab had been taken by the CMO. The perusal of the MLC Ex.PW12/B shows that on local examination there was Tatooing (dotdot burning) over exterior surface of right forearm and lower half of lateral aspect of right arm. On a specific Court Question, the witness has explained that the burning spots could be on account of pieces of lead/cartridge (charre) having stuck the body. It is evident from the above MLC that the injured/ witness Pradeep has been shown to have been brought to the SGM Hospital by Ct. Jitender thereby establishing the presence of Ct. Jitender (Beat Constable of the area) in the hospital along with the Investigating Officer Inspector Raj Kumar. (99) The above medical evidence on record corroborates the testimony of Pradeep (PW15) to the effect that during the incident he also received singes injury and it was he who took Tinku @ Kanwar Pal to SGM Hospital where Ct. Jitender met them and got admitted in the hospital. The St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 88 medical evidence is also compatible to the prosecution case that the death of the deceased was caused on account of firearm injury. The Medical Evidence also conclusively establishes that the bullet recovered from the body of the deceased during postmortem examination was handed over to the police in a sealed condition (which bullet is found to be matching with the firearm allegedly got recovered by the accused Manoj). Forensic Evidence:
Biological & Serological Reports:
(100) Ms. Seema Nain (PW28) Senior Scientific Officer (Biology) has proved the biological report Ex.PW28/A and serological report Ex.PW28/B. I have gone through the above said reports and according to Biological Report Ex.PW28/A blood was detected in Ex.1 (gauze cloth piece), 2 (gauze cloth piece), 3 (gauze cloth piece), 4 (gauze cloth piece), 5 (concrete material described as blood pieces of road), 6 (concrete material described as blood pieces of divider), 7 (concrete material described as blood pieces of road), 8 (concrete material described as blood pieces of road), 9a (jeans pant), 9b(shirt), 9c (baniyan having brownish stains), 9d(underwear) and 10 (blood gauze of deceased). Further, the serological report Ex.PW29/B shows that human blood was detected on all the above exhibits and Blood of B Group was detected on Ex.2 (gauze cloth piece) and 9a (jeans pant), 9b (shirt), 9c (baniyan having brownish stains), 9d St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 89 (underwear) and 10 (blood gauze of deceased). (101) The above Biological / Serological reports confirm the Blood Group of the deceased as 'B' which was found on his clothes. It also confirm and establishes the spot of incident as claimed by the eye witness Pradeep.
Ballistic Report:
(102) It is also the case of the prosecution is that the country made pistol along with one 8mm/ .315" cartridge case, two 8mm/ .315" cartridges allegedly got recovered by the accused and one standard 8mm/ .315" bullet recovered from the body of the deceased, had been sent to FSL for examination. Dr. N. P. Waghmare (PW23) Assistant Director, Ballistics (FSL) has proved the Ballistic Report Ex.PW23/A according to which:
➢ Exhibit marked F1 is a firearm as defined in Arms Act and it is a country made pistol, capable of chambering and firing standard 8mm/ .315 inch ammunition.
➢ 8 mm/.315 cartridges marked A1 and A2 and two 8mm/.315 inch cartridges taken from laboratory stock were chambered and successfully test fired through exhibit country made pistol marked F1 and hence it has been opined that exhibit country made pistol marked F1 is in normal working order and exhibit 8mm/.315 inch cartridges marked A1 and A2 were live ammunition before they were test fired in the laboratory, recovered cartridge cases and bullets were used for comparison and examination purpose. St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 90 ➢ That the individual characteristic marks of country made pistol marked exhibit F1 present on the crime cartridge case marked exhibit EC1 were compared with test cartridge cases fired through country made pistol marked exhibit F1 under a comparison microscope and after thorough examination and comparison, firing pin and breech face marks present on exhibit empty cartridge case EC1 were similar with firing pin and breech face marks present on test cartridge cases, hence, it has been opined that exhibit empty cartridge case marked EC1 had been fired through the country made pistol marked exhibit F1.
➢ The individual striation marks present on crime bullet marked exhibit EB1 were compared with recovered test bullets fired through exhibit country made pistol marked F1 under a comparison microscope and after thorough examination and comparison, it was observed that individual striation marks present on exhibit bullet marked EB1 were similar with individual striation marks present on test bullets fired through exhibit country made pistol marked F1, hence, it is opined that exhibit bullet marked EB1 had been discharged through exhibit country made pistol marked F1. ➢ That the exhibit swab samples marked S1 and S2 taken from the site of injury along with control swab sample marked C1 taken from left arm of injured/eye witness were analyzed under Atomic Absorption St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 91 Spectrophotemeter (AAS) for the detection of Gun Shot Residue/ bullet residue but no opinion could be given due to in sufficient data available on them.
(103) The aforesaid Ballistic Report Ex.PW23/A confirms that on comparison the individual striation marks present on the bullet recovered from the body of the deceased (exhibit EB1) were similar with individual striation marks present on test bullets fired through country made pistol (marked F1) recovered at the instance of the accused Manoj @ Lekhraj and the firing pin and breech face marks present on empty cartridge case exhibit EC1 were similar with firing pin and breech face marks present on test cartridge cases.
(104) This being the background, I hereby hold that the Ballistic Report conclusive confirms that the bullet recovered from the body of the deceased Tinku was fired through the country made pistol allegedly got recovered by the accused Manoj @ Lekhraj by digging the corner of the empty plot in front of his house (aspect of recovery being discussed separately) thereby connecting him with the alleged offence.
Electronic Evidence:
(105) The case of the prosecution is that at the time of incident the accused was using a mobile No. 9213963548 and was in close contact with juvenile accused Sachin who was using the mobile phone bearing No. 9250069348. It is also the case of the prosecution that it was the juvenile St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 92 accused Sachin who was passing on the information about the location of Pradeep to the accused Manoj @ Lekhraj. In this regard the prosecution has examined Sh. M. N. Vijayana (PW16) Nodal Officer from Tata Teleservices Ltd. who has proved that the mobile number 9250069348 has been issued in the name of Ms. Sunita, W/o Ram Saran (i.e. the mother of juvenile accused Sachin), R/o 1194, Block J, Mangolpuri, Delhi vide Customer Application Form Ex.PW16/A and the copy of the ID proof i.e. copy of election ID card Ex.PW16/B. He has proved the the call detail records of the above mobile number from 15.07.2012 to 17.07.2012 which is Ex.PW16/C. Sh. M.N. Vijayan has also proved that the number 9213963548 has been issued in the name of Kuldeep S/o Banna Lal, R/o C3/522, Nand Nagri, resettlement colony, block C8, Delhi vide Customer Application Form Ex.PW16/D and the copy of the ID proof i.e. copy of election ID card Ex.PW16/E. He has also proved the copy of call detail record from 15.07.2012 to 17.07.2012 running into two pages is Ex.PW16/F; Cell ID Chart which is Ex.PW16/G and certificate U/s 65B of Indian Evidence Act which is Ex.PW16/H. (106) I have gone through the Customer Application Forms of the above mobile phones and it stands established that the juvenile accused Sachin was using the mobile No. 9250069348 which was in the name of his mother. However, in so far as the mobile No. 9213963548 is concerned it has been issued in the name of one Kuldeep S/o Banna Lal, R/o C3/522, St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 93 Nand Nagri, Resettlement Colony, Block C8, Delhi who according to the prosecution was the close friend of accused Manoj @ Lekhraj and had expired two years ago. However, since the accused Manoj @ Lekhraj denied having used the mobile No. 9213963548 hence a specific clarification was sought from the prosecution with regard to the accused Manoj @ Lekhraj being the user of the above mobile phone.
(107) The Ld. Addl. PP for the State has pointed out that the mobile number of one Babloo who is the real brother of the accused Manoj and also the son in law of Ram Saran, whose mobile number finds reflected in the Call Details Records Ex.PW16/F which establishes the use of this mobile by accused Manoj @ Lekhraj. In order to prove the aspect of user of the mobile phone bearing No. 9213963548 by the accused Manoj @ Lekhraj, the Addl. PP for the State had filed an application for placing on record the Call Detail Records and Customer Application From of the mobile phone No. 9212733046 which was used by Babloo the elder brother of the accused Manoj @ Lekhraj to confirm the user of mobile phone No. 9213963548 by the accused Manoj. The SHO Police Station Mangol Puri Inspector Ashok Sharma was then examined as CW1 who has placed on record the Call Detail Records of mobile No. 9212733046 (Ex.CW1/1) which has been issued to Babloo S/o Raj Kumar, R/o 121, Block C10, THuts, Kumhar Basti, Sultan Puri, Delhi (the elder brother of the accused Manoj) vide Customer Application Form Ex.CW1/B and the election ID Ex.CW1/C. St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 94 Thereafter an additional/ further statement of the accused Manoj @ Lekhraj was recorded under Section 313 Cr.P.C. wherein he again stated that he was not using the SIM No. 9213963548 at the time of the incident and was in fact using Mobile No. 8750766126 which was issued in the name of his brother Anuj. This Court thereafter allowed the application of the Addl. PP for the State for summoning the Nodal Officer to prove the above Call Detail Records in accordance with law pursuant to which on 17.4.2014 Sh. Rajeev Ranjan Nodal Officer from Tata Teleservices Ltd. was examined as CW2. Thereafter in his additional statement under Section 313 Cr.P.C. the accused Manoj @ Lekhraj admitted that his brother Babloo was using the mobile phone No. 9212733046 and was residing separately.
(108) I have gone through the call detail records of mobile no. 9212733046 (Ex.CW1/A) being used by Babloo the elder brother of accused Manoj @ Lekhraj and it is evident from the same that there were numerous calls between the mobile No. 9212733046 and mobile No. 9213963548 (used by the accused Manoj @ Lekhraj) and also to mobile No. 8750766126 which according to the accused Manoj was issued in the name of his other brother Anuj. This mobile no. 9213963548 could not have been reflected in the Call Detail Records of Babloo unless it was someone known to him who was using the same. This establishes that the accused Manoj @ Lekhraj was in fact lying when he in his statement under Section 313 Cr.P.C. denied being the user of mobile no. 9213963548 which number finds reflected in the Call St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 95 Detail Records of his brother Babloo along with the number used by his brother Anuj and it stands proved that it was Manoj @ Lekhraj who was the user of mobile No. 9213963548.
(109) Coming now to the Call Detail Records of mobile No. 9213963548 used by the accused Manoj @ Lekhraj and the Call Detail Records of mobile No. 9250069348 being used by the juvenile accused Sachin. I may mention that this Court is not making any observations as regards the juvenile accused Sachin but his call detail records is necessary for assessing the connection between the accused Manoj @ Lekhraj with the juvenile accused and the communication between them. For the sake of convenience the relevant entries along with the location of the users of the above mobile phones are being put in a tabulated form as under:
S. Calling No. Called No. Date Time Duration Location of Location of No Manoj Sachin
1. 9250069348 9213963548 16.07.12 16:03:56 176 Sec JJ Colony JJ Colony (Sachin) (Manoj) Sultan Puri Sultan Puri 2 9213963548 9250069348 16.07.12 16:12:35 16 Sec JJ colony JJ colony Sultan (Manoj) (Sachin) Sultan Puri Puri 3 9213963548 9250069348 16.07.12 16:34:35 6 Sec XBlock, XBlock, (Manoj) (Sachin) Mangol Puri Mangol Puri
4. 9250069348 9213963548 17.07.12 10:03:55 22 Sec XBlock, XBlock, (Sachin) (Manoj) Mangol Puri Mangol Puri 5 9250069348 9213963548 17.07.12 12:0:14 33 Sec CBlock, CBlock, Sultan (Sachin) (Manoj) Sultan Puri Puri 6 9213963548 9250069348 17.07.12 12:10:50 21 Sec CBlock, CBlock, Sultan (Manoj) (Sachin) Sultan Puri Puri 7 9250069348 9213963548 17.07.12 15:42:05 29 Sec X Block, X Block (Sachin) (Manoj) Mangol Puri Mangol Puri St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 96 8 9250069348 9213963548 17.07.12 15:46:05 70 Sec XBlock XBlock (Sachin) (Manoj) Mangol Puri Mangol Puri 9 9250069348 9213963548 17.07.12 15:49:32 15 Sec XBlock XBlock (Sachin) (Manoj) Mangol Puri Mangol Puri
10. 9213963548 9250069348 17.07.12 15:55:44 90 Sec SBlock, JJ SBlock, JJ (Manoj) (Sachin) Colony, Colony, Mangol Mangol Puri Puri 11 9250069348 9213963548 17.07.12 16:06:36 59 Sec CBlock, XBlock (Sachin) (Manoj) Sultan Puri Mangol Puri 12 9213963548 9250069348 17.07.12 16:15:46 19 Sec XBlock XBlock (Manoj) (Sachin) Mangol Puri Mangol Puri 13 9250069348 9213963548 17.07.12 16.38.28 44 Sec XBlock XBlock (Sachin) (Manoj) Mangol Puri Mangol Puri 14 9250069348 9213963548 17.07.12 16:41:21 59 Sec CBlock, CBlock, Sultan (Sachin) (Manoj) Sultan Puri Puri 15 9250069348 9213963548 17.07.12 16:43:10 24 Sec CBlock, C Block, (Sachin) (Manoj) Sultan Puri Sultan Puri, 16 9250069348 9213963548 17.07.12 17:21:07 89 Sec CBlock, CBlock, Sultan (Sachin) (Manoj) Sultan Puri Puri 17 9250069348 9213963548 17.0712 17:40:11 58 Sec Village Village Mangol (Sachin) (Manoj) Mangol Puri Puri (110) The aforesaid call details records of the mobile phone No. 9213963548 which was being issued by the accused Manoj @ Lekhraj and that of mobile No. 9250069348 which was being used by juvenile accused Sachin, conclusively establishes that both of them were in regular touch with each other throughout the date of incident and even earlier. From a joint reading and analysis of Call Detail Records of both the mobile phones, the following aspects are conclusively established:
➢ That on 16.7.2012 at 16:03:56 the juvenile accused Sachin made a call to accused Manoj @ Lekhraj which call lasted for 176 Seconds and the St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 97 location of both the accused Manoj and the juvenile accused Sachin was in the area of JJ Colony Sultan Puri.
➢ That on 16.7.2012 at 16:12:35 the accused Manoj made a call to juvenile accused Sachin which call lasted for 16 Seconds and the location of both the accused Manoj and the juvenile accused Sachin was in the area of JJ Colony, Sultan Puri.
➢ That on 16.7.2012 at 16:34:35 the accused Manoj made a call to juvenile accused Sachin which call lasted for 6 Seconds and the location of both the accused Manoj and the juvenile accused Sachin was in the area of X Block, Mangol Puri.
➢ That on 17.7.2012 at 10:03:55 the juvenile accused Sachin made a call to accused Manoj @ Lekhraj which call lasted for 22 seconds and the location of both the accused Manoj and the juvenile accused Sachin was in the area of X Block Mangol Puri.
➢ That on 17.7.2012 at 12:10:14 the juvenile accused Sachin made a call to accused Manoj @ Lekhraj which call lasted for 33 seconds and the location of both the accused Manoj and the juvenile accused Sachin was in the area of C Block Sultan Puri.
➢ That on 17.7.2012 at 12:10:50 the accused Manoj made a call to juvenile accused Sachin which call lasted for 21 seconds and the location of both the accused Manoj and the juvenile accused Sachin was in the area of C Block Sultan Puri.
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 98 ➢ That on 17.7.2012 at 15:41:05 the juvenile accused Sachin made a call to accused Manoj @ Lekhraj which call lasted for 29 seconds and the location of both the accused Manoj and the juvenile accused Sachin was in the area of X Block Mangol Puri (just before the incident). ➢ That on 17.7.2012 at 15:46:05 the juvenile accused Sachin made a call to accused Manoj @ Lekhraj which call lasted for 70 seconds and the location of both the accused Manoj and the juvenile accused Sachin and the location of both the accused Manoj and the juvenile accused Sachin was in the area of X Block Mangol Puri (just before the incident).
➢ That on 17.7.2012 at 15:49:32 the juvenile accused Sachin made a call to accused Manoj @ Lekhraj which call lasted for 15 seconds and the location of both the accused Manoj and the juvenile accused Sachin was in the area of X Block Mangol Puri (around the time when the incident took place).
➢ That on 17.7.2012 at 15:55:44 the accused Manoj made a call to the juvenile accused Sachin which call lasted for 90 seconds and the location of both the accused Manoj and the juvenile accused Sachin was in the area of S Block, JJ Colony Mangol Puri (after the incident).
➢ That on 17.7.2012 at 16:06:36 the juvenile accused Sachin made a call to accused Manoj @ Lekhraj which call lasted for 59 seconds while St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 99 the juvenile accused Sachin was in the area of C Block Sultan Puri, the accused Manoj was in the area of X Block, Mangol Puri (after the incident).
➢ That on 17.7.2012 at 16:15:46 the accused Manoj made a call to juvenile accused Sachin which call lasted for 19 seconds and the location of both the accused Manoj and the juvenile accused Sachin was in the area of X Block Mangol Puri (after the incident). ➢ That on 17.7.2012 at 16:38:28 the juvenile accused Sachin made a call to accused Manoj @ Lekhraj which call lasted for 44 seconds and the location of both the accused Manoj and the juvenile accused Sachin was in the area of X Block Mangol Puri (after the incident). ➢ That on 17.7.2012 at 16:41:21 the juvenile accused Sachin made a call to accused Manoj @ Lekhraj which call lasted for 59 seconds and the location of both the accused Manoj and the juvenile accused Sachin was in the area of C Block Sultan Puri (after the incident). ➢ That on 17.7.2012 at 16:43:10 the juvenile accused Sachin made a call to accused Manoj @ Lekhraj which call lasted for 24 seconds and the location of both the accused Manoj and the juvenile accused Sachin was in the area of C Block Sultan Puri (after the incident). ➢ That on 17.7.2012 at 17:21:07 the juvenile accused Sachin made a call to accused Manoj @ Lekhraj which call lasted for 89 seconds and the location of both the accused Manoj and the juvenile accused Sachin St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 100 was in the area of CBlock Sultan Puri (after the incident). ➢ That on 17.7.2012 at 17:40:11 the juvenile accused Sachin made a call to accused Manoj @ Lekhraj which call lasted for 58 seconds and the location of both the accused Manoj and the juvenile accused Sachin was in the area of Village Mangol Puri.
(111) A dispute has been raised by the Ld. Amicus Curiae on the aspect of user of mobile phone by the accused Manoj @ Lekhraj and it is submitted that the Call Details have been fabricated only to work out the present case. The accused however failed to adduce any evidence to establish any such fabrication and the submission of accused is devoid of merit.
(112) I may observe that a joint reading / analysis of the aforesaid call details of both mobile numbers show the close association of the accused Manoj @ Lekhraj and juvenile accused Sachin. When the aforesaid material was put to the accused under Section 313 Cr.P.C. he simply denied the same and claimed that the mobile phone recovered from his possession was returned by the police to his brother Anuj. The evidence on record is in fact to the contrary. As per the prosecution version and also proved by the various witnesses of the police the mobile bearing SIM No. 9213963548 was in fact recovered from the personal search of the accused Manoj @ Lekhraj.
In case if this mobile set containing the SIM in question was not recovered from the possession of the accused as claimed by him then it became all the more necessary for the accused to have explain how the number of juvenile St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 101 accused Sachin and the elder brother of the accused Manoj namely Babloo finds reflected in the same. Further the analysis of the location chart of the mobile number establishes the location of the accused Manoj @ Lekhraj in and around the area where the incident took place before the time of the incident, at the time of the incident and soon thereafter and the movement/ route taken both by accused Manoj @ Lekhraj and juvenile Sachin is similar. This not only belies his defence that he was not present at the spot of the incident but also confirms his user of the mobile number 9213963548. Also, despite an opportunity being granted the accused Manoj has not called his real brothers Babloo or Anuj to controvert the claims of the prosecution as regards the user of the above mobile number by him (accused Manoj). (113) It therefore stands established from the electronic evidence on record that the accused Manoj @ Lekhraj and juvenile accused Sachin were in constant touch with each other not only on the date of incident but even prior to the same. Further, it also stands established that at the time of the incident the location of the accused Manoj @ Lekhraj was in the area particularly at the spot of incident, an aspect which finds independent confirmation from the version given by the eye witness Pradeep who had also received injuries during the incident and from the testimony of Saheed Khan who had given the number of the motorcycle of the assailant to the police as DL8SAH8700 which motorcycle has been registered in the name of Babloo the elder brother of accused Manoj @ Lekhraj. St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 102 (114) In view of the above I hereby hold that the electronic evidence connects the accused Manoj @ Lekhraj with the offence and lends credence to the version of the eye witness Pradeep and the defence has not been able to successfully demolish the case so put forth by the prosecution as aforesaid.
Motive of the offence/ Conspiracy:
(115) The case of the prosecution is that the injured Pradeep was into a close relationship with the sister of one Sachin (Juvenile accused) which was objected to by him and hence Sachin told the accused Manoj @ Lekhraj who was known to him being the brother of his brother in law (Jija) about the same. Thereafter Sachin and accused Manoj @ Lekhraj entered into a plan by which Sachin would keep a watch on the movement of Pradeep and also keep Manoj @ Lekhraj informed who would then execute the plan of killing Pradeep. It is pursuant to the aforesaid plan that on the date of incident i.e. 17.7.2012 the deceased Pradeep was with Kanwar Pal @ Tinku and they both left the house together for market for purchasing a TV Remote.
In the meanwhile Sachin in whose house Pradeep was a tenant followed them and kept the accused Manoj informed about their movements. Thereafter as planned Manoj went to the spot as was conveyed to him by Sachin and when he saw Pradeep and Tinku walking on the road, he shot at Pradeep but incidentally Pradeep noticed Manoj coming on the motorcycle towards him and pulling out a pistol on which he i.e. Pradeep immediately St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 103 ducked and fell on the ground to save himself and also called out to Tinku to save himself but the said fire which was directed towards him, instead fatally hit Kanwar Pal @ Tinku whereas he i.e. escaped with pellets/ charra injuries on his right hand. After receiving the bullet injury on his chest Tinku ran towards the main road but just fell down in the middle of the road where there was excessive bleeding. Pradeep then put Tinku in a rickshaw and rushed him to Sanjay Gandhi Hospital where he was declared brought dead. (116) Before coming to the merits of the allegations involved, I may observe that the motive has to be gathered from the surrounding circumstances and such evident should form one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is best known to the perpetrator of the crime and not to others. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive. (117) Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 104 significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence. (118) Existence of motive for committing a crime is not an absolute requirement of law but it is always relevant fact, which will be taken into consideration by Courts as it will render assistance to Courts while analysing prosecution evidence and determining guilt of accused. [Ref.: IV (2012) SLT 257].
(119) Moreover, in a case where there is clear proof of motive for the commission of a crime, it affords added support to the finding of the court that the accused is guilty of the offence charged with. However, at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone, who knows as to what circumstances prompted him to certain course of action leading to the commission of the crime [Ref.: State of U.P. Vs. Bahu Ram reported in 2000 (4) SCC 515 and Ujjagal Singh Vs. State of Punjab reported in 2007 (14) SCALE 428].
(120) Applying the settled principles of law to the facts of the present case, in so far as the motive of crime is concerned, it is Sachin the juvenile accused who informed about the same to the police at the first instance and St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 105 the said aspect was not known to anybody prior to that. I may observe that despite having known this fact no investigations have been conducted by the Investigating Officer to confirm about the allegations of intimate relationship between Pradeep and sister of Sachin. No inquiry has been made from her nor she i.e. Sonam D/o Ram Saran has been cited as a witness nor any witness has been examined to establish this motive. Pradeep (PW15) has explained that the accused Manoj is the younger brother of son in law of the elder brother of landlord Ram Saran. He has further alleged that he was on talking terms with Ms. Sonam the daughter of his landlord Ram Saran and Manoj had suspicion upon him of having illicit relations with her and hence protested of the same and warned him to disconnect his talking terms with Sonam. The accused Manoj also does not dispute this fact. Rather it is his own defence that he was into a matrimonial alliance with Sonam the sister of Sachin who is the other sister in law (Sali) of Babloo the brother of Manoj. The case of Manoj is that Pradeep has incriminated him as he was wanting to marry Sonam and wants him i.e. Manoj out of his i.e. Pradeep and Sonam's way. This only confirms what is alleged by the prosecution as regards the Motive so alleged by the prosecution. I hereby hold that the motive of the crime as alleged cannot be ruled out.
(121) Coming now to the aspect of Conspiracy. The case of the prosecution is that the accused Manoj @ Lekhraj along with Sachin (juvenile accused) hatched a criminal conspiracy to commit the murder of Pradeep who has having an affair with the sister of Sachin.
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 106 (122) However, before coming to the evidence on merits, I may observe that since conspiracy is the primary charge against the accused, we first advert to the law of conspiracy - its definition, essential features and proof.
(123) Section 120A IPC defines "criminal conspiracy" as under: "Definition of criminal conspiracy When two or more person agree to do, or cause to be done, (1) An illegal act, or (2) An act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof Explanation: It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object." (124) It is clear from the above noted definition of "criminal conspiracy" that the three essential elements of offence of conspiracy are (a) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished; (b) a plan or scheme embodying means to accomplish that object; (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means. Thus, the gist of offence of criminal conspiracy is an agreement to break the law.
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 107 (125) Sections 120A and 120B were brought on the statute book by way of Criminal Law Amendment Act, 1913. Earlier to the introduction of Sections 120A and 120B, conspiracy per se was not an offence under the Indian Penal Code except in respect of the offence mentioned in Section 121A. In the Objects and Reasons to the Amendment Bill, it was explicitly stated that the new provisions (120A & B) were "designed to assimilate the provisions of the Indian Penal Code to those of the English Law...." Thus, Sections 120A & 120B made conspiracy a substantive offence and rendered the mere agreement to commit an offence punishable. (126) Proof of a criminal conspiracy by direct evidence is not easy to get and probably for this reason Section 10 of the Indian Evidence Act was enacted. It reads as under: "10. Things said or done by conspirator in reference to common design:Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
(127) Thus, the substantive section of the IPC i.e. Section 120A adumbrated thereon Section 10 of the Indian Evidence Act give us the legislative provisions applicable to conspiracy and its proof. St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 108 (128) After survey of the case law on the point, following legal principles pertaining to the law of conspiracy can be conveniently culled out: (A) When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy. (State v Nalini (1999) 5 SCC 253) (B) The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are coparticipators in the main object of the conspiracy. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 109 there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role. (Yash Pal Mittal v State of Punjab AIR 1977 SC 2433 and State v Nalini (1999) 5 SCC 253) (C) It is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the graham of the crime of conspiracy.
(D) The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the conspirators. The agreement need not be entered into by all the parties to it at St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 110 the same time, but may be reached by successive actions evidencing their joining of the conspiracy. Since a conspiracy is generally hatched in secrecy, it would quite often happen that there is no evidence of any express agreement between the conspirators to do cause to be done the illegal act. For an offence under Section 120B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act; the agreement may be proved by necessary implication. The offence can be only proved largely from the inference drawn from acts or illegal omission committed by the conspirators in pursuance of a common design. The prosecution will also more often rely upon circumstantial evidence. It is not necessary to prove actual meeting of conspirators. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design is sufficient. Surrounding circumstances and antecedent and subsequent conduct of accused persons constitute relevant material to prove charge of conspiracy. (Shivnarayan Laxminarayan Joshi v State of Maharashtra AIR 1980 SC 439, Mohammad Usman Mohammad Hussain Maniyar v State of Maharashtra AIR 1981 SC 1062 and Kehar Singh v State AIR 1988 SC 1883) (E) A conspiracy is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts. So long as its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity. A crime is complete as soon as the agreement is made, but it is not a thing of the moment. It does not end with the making of the agreement. It will continue so long as there are two or more St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 111 parties to it intending to carry into effect the design. Its continuance is a threat to the society against which it was aimed at and would be dealt with as soon as that jurisdiction can properly claim the power to do so. The conspiracy designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to the agreement are agreed to be finalized or done, attempted or even frustrated and vice versa.
(F) Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the coconspirators. In short, the section can be analysed as follows: (1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co conspirator and not in his favour. (See the decision of Supreme Court reported as Sardar Sardul Singh v State of Maharashtra AIR 1957 SC 747).
(129) As discussed in the foregoing paras, more often than not, the prosecution would adduce circumstantial evidence to prove the charge of conspiracy. The question which arises is that what should be the nature of St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 112 circumstantial evidence in a case of conspiracy to bring home the guilt of the accused persons.
(130) Applying the settled principles of law to the facts of the present case, I may observe that the details whatsoever has been disclosed by the juvenile accused Sachin and also by the accused Manoj @ Lekh Raj find due confirmation from the electronic record i.e. Call Detail Records which confirms the frequent calls between them and their respective locations at the time of the incident and also before and after the same. The accused Manoj @ Lekhraj was known to the injured Pradeep but not to the deceased Tinku @ Kanwar Pal. The electronic record (as is being discussed separately) confirms the numerous calls between Sachin (juvenile) and accused Manoj @ Lekh Raj and also corroborates and confirms the disclosure statement of Sachin (juvenile accused) thereby confirming the existence of conspiracy, prior meeting of mind between the accused and juvenile Sachin. It is writ large that the entire conspiracy was hatched to kill Pradeep but the plan went haywire when there was a misfire and the bullet which was aimed at Pradeep instead hit Kanwar Pal @ Tinku because Pradeep was fortunate enough to notice the accused Manoj @ Lekhraj pulling out the pistol and firing on him and quick enough to fall on the ground to save himself which the deceased Tinku who was with him unfortunately did not notice. This being the background, I hereby hold that the criminal conspiracy as alleged by the prosecution stands established and proved.
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 113 Ocular Evidence:
(131) Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspect connected with the offence, there is no reason to reject their testimonies. In the present case the prosecution is placing its reliance on the sole testimony of Pradeep (PW15) who is an eye witness to the incident and also received injuries in the incident. (132) However, before coming to the testimony of Pradeep, I may observe that since the prosecution is placing its heavy reliance on the testimony of Pradeep (PW15) hence it is necessary for this Court to first determine whether what they have deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 114 in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
(133) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons and one of the reasons is that they do not have courage to depose against habitual criminal apprehending threats to their life. A rustic or an illiterate witness may not be able to withstand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at times under the stress of crossexamination, certain answers are snatched from him. When such a person is faced with an astute lawyer, there is bound to be imbalance and, hence minor discrepancies have St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 115 to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State of Bihar reported in AIR 2002 SC 1965).
(134) Applying the settled principles of law to the facts of the present case, the relevant portion of the testimony of Pradeep (PW15) is reproduced as under:
"....... At the time of the incident I was residing at House No. J11931194, Mangol Puri, Delhi on rent basis. I was working as Sweeper in the Kothari Hostel, Mall Road, Delhi. I knew Kanwar Pal @ Tinku who was residing near my house at Delhi in his own house. He was residing there along with his sister Guddi.
On 17.7.2012 at about 3:003:15 PM I was going to purchase a TV remote for my new TV. Tinku accompanied me to the TV shop at S Block, Mangol Puri. When we were returning back to our house and we reached the school at SBlock Mangol Puri, one person namely Manoj came towards Y Block on a motorcycle. Manoj slowed down the motorcycle near us and stopped the motorcycle and pointed a katta towards us and fired upon us. I bowed down and fell down on the ground and Kanwar Pal @ Tinku received gun shot injury on his chest from the above said katta as fired by Manoj. I also received the injuries caused by the lead pieces / pellets (charre) on my right hand. Thereafter Manj ran away from the spot on his motorcycle and katta. I raised an alarm for help. Thereafter I took Kanwar Pal @ Tinku to Sanjay Gandhi Hospital in a rickshaw and St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 116 got him admitted there in the Emergency. Somebody made call to the police. One police official namely Jitender met me at the entrance of the hospital who also helped me. I was also medically treated at the hospital. Thereafter I came back to the spot with police officials and my statement was recorded there which is Ex.PW15/A bearing my signatures at point A. I also put my thumb impression on the same at point B. I also showed the place of incident to the police and the police prepared a site plan which is Ex.PW15/B bearing my thumb impression at point A. Police also lifted blood from four places at the spot and kept the same in separate four plastic containers and sealed the same and seized the same vide Seizure memo Ex.PW15/C bearing my thumb impression at point A. Police also lifted some plain earth from the above said four places and kept the same in plastic containers and sealed the same after which they were seized vide memo Ex.PW15/D bearing my signatures at point A. My wearing clothes i.e. black Tshirt of Delhi University, Kothari Hostel and grey colured lower (payjana) were taken by the doctor who examined me in the hospital and the police seized the same with other pullandas in my presence in the hospital vide memo already Ex.PW5/A bearing my thumb impression at point B. Tinku @ Kanwar Pal was declared dead by the doctors in the hospital within an hour. After postmortem his dead body was returned to his relatives after two days.
I do not know the reasons why Manoj fired upon us.
Accused Manoj is present in the Court today.
Witness correctly identified the accused Manoj. St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 117
I can also identify my clothes if shown to me.
At this stage the MHCM has produced one parcel No.1 in sealed condition with the seal of FSL NPW Delhi.
The same is opened and one black colour T Shirt bearing D.S. Kothari Hostel, University of Delhi is taken out and shown to the witness who correctly identified the same as belong to him and sealed by the doctors. The T Shirt is Ex.P1.
MHC(M) also produced one parcel No.2 in sealed condition with the seal of FSL NPW DELHI and the same is opened and one grey colour track pant is taken out and the same is shown to the witness who correctly identified the same belonging to him and sealed by the doctor. The grey colour track pant is Ex.P2.
At this stage, the Ld. Addl. PP for the State seeks permission to put leading questions to the witness about the reasons why Manoj fired upon him and deceased Kanwar Pal @ Tinku.
Heard. Permission is granted.
It is correct that police made inquires from me and recorded my statement. It is correct that I was again called at the SGM Hospital on 19.7.2012 and the doctors medically examined me. It is also correct that police make inquires from me on 19.7.2012 and recorded my statement. It is correct that I did not disclose the name of the offender in my first statement to the police in Ex.PW15/A on 17.7.2012. It is correct that on 19.7.2012 I disclosed the name of the accused Manoj as the offender who fired upon us as Kanwar Pal had expired and I disclosed the true facts to the police on that day. It is correct that the accused Manoj had come to fire upon me but Kanwar Pal received the injuries as I bowed down. The name of my Landlord is Ram Saran. It is St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 118 correct that the accused Manoj is the younger brother of son in law of the elder brother of landlord Ram Saran. It is correct that I have talking terms with Ms. Sonam the daughter of my landlord Ram Saran and Manoj had suspicion upon me of having illicit relations with her. It is correct that accused Manoj protested of the same and he warned me that I have to disconnect my talking terms with Sonam. It is correct that on the day of incident Manoj came at the spot to fire upon me and he pointed the katta towards me and since I bowed down, Kanwar Pal received the gun shot injuries. It is correct that the accused Manoj was a Wrestler and due to fear I did not disclose his name in my first statement to the police as I was apprehending that Manoj could harm me......"
(135) It is evident from the above that the accused Manoj was known to the witness Pradeep (PW15) previously despite which he did not name the accused Manoj in his first statement to the police. In this regard a valid explanation is forthcoming from the witness when leading questions were put to him by the Ld. Addl. PP for the State wherein he has explained that the accused Manoj was a Wrestler and due to fear he did not disclose his name in his first statement to the police as he was apprehending that Manoj could harm him but later in his crossexamination by the Ld. Amicus Curiae that the witness has stated that it was in fact the police who informed him that the accused Manoj was a Wrestler. Further, in his crossexamination Pradeep has stated that he does not remember whether he had stated to the police that the accused Manoj came on his motorcycle and slow down his St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 119 motorcycle and thereafter stopped the same and fired upon them. However, it is evident from his statement Ex.PW15/A that the name of accused Manoj is not present but it is reflected from his first statement that the motorcycle rider slow down his motorcycle and took out a pistol like object from his right side and fired on them. In his crossexamination Pradeep has also explained the reason why he named the accused Manoj @ Lekhraj after two days. He has stated that he felt and thought to himself that he used to go alone for his work every day and these people i.e. assailants can also kill him. It is this fear which made him inform and disclose to the police the name of the assailant after they too persuaded him to come out with the name of of the assailant fearing that he could again be targeted. This explanation given by the witness Pradeep who is also a victim of the crime offers a justification as to why he disclosed the name of the assailant after two days (the incident being of 17.7.2012 and the witness having given the name of the accused on 19.7.2012). The explanation given is natural, probable and appears to be convincing. The witness Pradeep is totally illiterate and was allegedly into an intimate relationship with the daughter of his landlord which was objected to by her family members including her brother Sachin (juvenile accused). This is also an admitted case of the defence as borne out from the crossexamination of the witness Pradeep and also the statement of accused Manoj @ Lekhraj under Section 313 Cr.P.C. The accused Manoj too had an interest in marrying the sister of Sachin namely Sonam because in the crossexamination itself a specific suggestion St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 120 was put to the witness Pradeep by the defence counsel himself that it is for the said reason that Pradeep wants him to out of his way that he has falsely implicated Manoj. In his statement under Section 313 Cr.P.C. this is what the accused Manoj had to say ".... I am innocent. I have been falsely named by Pradeep as he wanted to marry Sonam with whom my marriage talks were going on at that time. I have been falsely implicated in this case by Pradeep so that his way to marry Sonam would clear. I was not even present at the place of incident..."
(136) Under the given circumstances, when the victim/ witness Pradeep knows that his life is in danger and has been fired upon by the close family member of a lady with whom he was into a relationship, the fears of the victim/ witness from such a person is always natural because he would have been in a state of extreme shock, nervousness and fear or encountering death which he missed by a fraction of a second. Hence, the fact that he came out with the name of the assailant two days later, which is a fairly reasonable time to enable any person in a state of shock to come to terms with reality, would not be fatal to the prosecution case, more so since the Electronic Record and Forensic Evidence independently confirms the presence of Manoj in the area which presence he does not explain and also connects him to the firing which happened at the spot. The above testimony of Pradeep (PW15) also finds due confirmation from the statement of independent eye witness of the area namely Saheed Khan (PW20) who is running a Kabari Shop at XBlock, near Subzi Mandi for last about 1½ years St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 121 which shop is situated just next to the spot of the incident which aspect is neither disputed nor controverted. He has stated that on 17.7.2012 he was sitting in front of his shop when at about 4:00 PM he heard a noise of firearm from the other side of road and he saw a boy coming towards other side of road which his clothes smeared with blood. According to Saheed Khan, he also noticed a boy on a motorcycle who was holding a pistol like object in his hand which he pointed out towards the said boy who was hit and thereafter the said boy on the motorcycle escaped towards the side of Police Chowki. He has stated that he noted down the number of the said motorcycle as DL8SAH8700. He is the one who had made a call to the Beat Constable Jitender from his mobile No. 9250580625 on the mobile of Ct. Jitender which he was using at that time i.e. 9015717994. In his cross examination Shaheed Khan has explained that he did not see the actual incident of firing and has explained that he had only seen a pistol like object in the hands of the motorcycle rider after he heard the loud noise of a shot of firearm. He has also explained that he could not see the face of the motorcycle rider who had allegedly fired on the other boy and did not pay attention as to whether the said boy was wearing a helmet or his face was covered or open since he was very shocked at that time and he only saw the person who had received the injury. He has further stated that for the first time he disclosed the number of motorcycle to the police was on 19.7.2012 and has also explained that his shop is in the area (which shop is hardly 1012 steps away from the place of incident) and because he had kept the St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 122 number of the Beat Constable saved in his mobile, he informed the Beat Constable of the area i.e. Constable Jitender about the incident immediately. (137) The testimony of Saheed Khan finds due corroboration from the testimony of Ct. Jitender (PW26) who has explained that while he was patrolling in the area on 17.7.2012 he received a call from one Saheed Khan a kabari in the area that one boy had been shot near the Ashram of blind persons by a person who was on motorcycle with number plate DL8S AH8700 which were written in Hindi. According to the witness, he immediately reached S Block and started checking the vehicles when at about 4:30 PM he started moving towards the gate of SGM Hospital and found that two boys were coming in a rickshaw out of whom one was injured and when he made inquiries from the boy who was not injuries, he informed his name as Pradeep whereas the other injured/ person was Tinku. He has proved that he immediately took them to Emergency where the person who had received the injury was declared 'Brought Dead'. He has confirmed the mobile number of Saheed Khan from which he had received the call i.e. 9250580625. During the course of arguments the Ld. Amicus Curiae has vehemently argued that the Investigating Officer has miserably failed to establish that Saheed Khan was well versed with Hindi language and can read and write Hindi so as to notice the motorcycle number which was written in Hindi. In this regard I may observe that it was open to the Ld. Amicus Curiae to have questioned Saheed Khan on this aspect in his cross examination and the Ld. Amicus Curiae has himself failed to put this St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 123 suggestion to Saheed Khan and the only suggestion he has put is to the Investigating Officer. The Ld. Defence Counsel having failed to put this suggestion to the witness so as to able to tell that he was not aware of Hindi and it cannot be presumed that Saheed Khan would not be able to read and write Hindi more so when in the Court too, Saheed Khan had signed his testimony in Hindi. The assumption in fact is rather to the contrary that Saheed Khan knows Hindi.
(138) The ownership of the said motorcycle has been duly confirmed by Manish Khatri (PW19) LDC from Transport Department who has proved that the motorcycle in question i.e. DL8SAH8700 has been registered in the name of Babloo S/o Raj Kumar, R/o RZ 199, Rao Vihar, Village Nangloi, Delhi and the certificate in this regard is Ex.PW19/A. Here, I may observe that this Babloo S/o Raj Kumar is the elder brother of the accused Manoj @ Lekhraj who is married to the first cousin of Sachin which fact is not disputed.
(139) This being the background, I hereby hold Pradeep (PW15) to be credible, truthful and trustworthy whose oral testimony find due corroboration from the circumstantial evidence in the form of electronic record of the mobile phone of the accused and the report of the forensic report. From the testimony of Pradeep (PW15) the following facts stand established:
➢ That Pradeep was residing at House No. J11931194, Mangol Puri, Delhi on rent and was working as Sweeper in the Kothari Hostel, Mall St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 124 Road, Delhi.
➢ That Sachin and his sister Sonam with whom Pradeep was having an intimate relationship and were the children of landlord Ram Saran were also residing in the same house i.e. J11931194, Mangol Puri, Delhi.
➢ That one Tinku @ Kanwar Pal was also residing near the house of Pradeep along with his sister.
➢ That Pradeep was in talking terms with Sonam the sister of Sachin and daughter of landlord Ram Saran which was objected to by her family. ➢ That on 17.7.2012 at about 3:003:15 PM Pradeep along with Tinku had gone to the market of S Block, Mangol Puri to purchase a TV remote.
➢ That while they were returning back to their house and they reached the school at SBlock Mangol Puri, the accused Manoj came towards Y Block on a motorcycle from the front side.
➢ That the accused Manoj slowed down the motorcycle near them and stopped the motorcycle and pointed a katta towards them and fired upon them.
➢ That Pradeep saw Manoj pulling out the firearm and ducked and fell down on the ground and also asked Tinku to save himself but Kanwar Pal @ Tinku caught unaware and the fire shot instead hit Tinku. ➢ That Tinku received injury on his chest from the above said shot fired by Manoj from his katta and Pradeep also received the injuries/ singes St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 125 caused by the lead pieces / pellets (charre) on his right hand. ➢ That thereafter Manoj ran away from the spot on his motorcycle with the katta.
➢ That Pradeep took Kanwar Pal @ Tinku to Sanjay Gandhi Hospital in a rickshaw where he met Ct. Jitender on the gate.
➢ That Pradeep got Tinku admitted in SGM Hospital in the Emergency where after examining Tinku the doctors declared him 'Brought Dead'. ➢ That Ct. Jitender got admitted Pradeep to SGM Hospital where he was provided treatment for the singes/ burn injuries which he had received in the incident.
➢ That Pradeep was also provided treatment and on the basis of his statement immediately the FIR was registered at 8:15 PM. ➢ That Pradeep has explained that initially he was in shock at the time of incident and therefore he did not mention the details of the person who had fired at Kanwar Pal @ Tinku and later on 19.7.2012 he named the accused Manoj @ Lekhraj as the assailant. (140) This being the background, I hereby hold that the ocular evidence in the form of testimony of Pradeep (PW15) which finds independent corroboration from the testimony of Saheed Khan (PW20) and from the electronic and forensic evidence (as discussed separately) conclusively connects the accused Manoj @ Lekhraj with the alleged offence of killing of Tinku @ Kanwar Pal.
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 126
Arrest of the accused Manoj @ Lekhraj, Disclosure Statement and recovery of motorcycle and firearm:
(141) The case of the prosecution is that the eye witness/ complainant Pradeep was into an intimate relationship with one Sonam the daughter of his landlord Ram Saran who is related to the accused Manoj @ Lekhraj and is also the sister of juvenile accused Sachin. This relationship was objected to by her family members and Manoj @ Lekhraj being a close relative to the family of the landlord being the younger brother of the son in law of elder brother of Ram Saran, there was a talk of marriage alliance between Sonam and Manoj @ Lekhraj a fact which has not been been disputed by the accused but has rather been confirmed by him in his defence. According to the prosecution version on account of this objection Sachin (juvenile) and Manoj @ Lekhraj hatched a criminal conspiracy to eliminate Pradeep who was coming in the way of the marriage alliance between Manoj and Sonam.
Sachin then kept a watch on Pradeep who was residing in the same house as tenant. On the fateful day i.e. 17.7.2012 Pradeep had gone to market along with Tinku @ Kanwar Pal his neighbour to purchase a remote and Sachin followed them and informed Manoj about their locations. According to the prosecution pursuant to a premeditated plan and conspiracy the accused Manoj came to the spot on his motorcycle bearing No. DL8SAH8700 belonging to his brother Babloo and fired at Pradeep but fortunately Pradeep noticed Manoj coming towards him and pulling out his pistol and aiming at him when he ducked and fell on the ground to save himself and also called St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 127 out to Tinku to save himself but the fire instead hit Tinku who was accompanying Pradeep.
(142) On the basis of the statement of Pradeep which was recorded in SGM Hospital the FIR was registered at 20:15 PM. The request for postmortem was made on 19.7.2012 and during postmortem examination a bullet was recovered from the body of the deceased which bullet was sealed with the seal of SGM Hospital. On the same day i.e. 19.7.2012 Pradeep approached the local police and informed then that he had concealed the identity of the assailant being fearful of him but now he wanted to give the complete details because he was convicted that the assailant may again target him when he is alone. He then informed the police that it was Manoj @ Lekhraj who was known to him previously who had fired upon him. Pradeep had also explained that in fact he was the target of firing but since he had seen Manoj @ Lekhraj taking his pistol out and firing at him therefore he immediately ducked and saved himself but the bullet unfortunately hit his friend Tinku who was accompanying him at that time and could not save himself. Pradeep informed the police that it was out of selfcondemnation when he felt that he was targeted but his friend received the injuries, that he informed the police about the identity of the assailant since he was convinced that the accused could again harm him and would not leave him. Thereafter on the same day pursuant to a secret information the juvenile accused Manoj @ Lekhraj was apprehended who disclosed about his involvement in the present case along with the juvenile accused St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 128 Sachin the brother of Sonam. In pursuance to the aforesaid the accused Manoj @ Lekhraj was apprehended while he was sitting on the motorcycle bearing No. DL8SAH8700 which was also seized and found to be same on which the accused had come to the spot. During interrogation the accused Manoj @ Lekhraj brokedown and disclosed about his involvement in the present case and thereafter led the police party to an open plot situated in front of his house and from the corner of the plot after digging the earth and removing sand, he got recovered a country made pistol from the corner of the plot which on checking was found to contain one empty cartridge case and two live cartridges.
(143) In this regard the prosecution has placed its reliance not only on the testimony of Pradeep (PW15) but also to the testimonies of the various officials of the police including HC Illa Khan (PW21), HC Jitender (PW26), SI Robin Tyagi (PW27) and Inspector Raj Kumar (PW30) in whose presence the accused had got the recovery of country made pistol effected. All the above witnesses have corroborated each other. Inspector Raj Kumar (PW30) has duly proved that after the witness/ injured Pradeep disclosed the name of the assailant as Manoj @ Lekhraj, one person namely Saheed Khan also came to the Police Station and gave the registration number of the motorcycle of the assailant who had fired. They have proved that on 19.07.2012 at about 6.00 PM a secret information was received that accused Manoj @ Lekhraj wanted in this case was present near S Block Chowk, Mangol Puri pursuant to which Inspector Raj Kumar alongwith SI Robin St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 129 Tyagi, HC Illa Khan and Ct. Jitender and the secret informer reached at S Block Chowk, Mangol Puri accused Manoj @ Lekh Raj found sitting on his motorcycle near Church and on the pointing out of the secret informer, accused Manoj @ Lekhraj was apprehended. The accused Manoj was interrogated who confessed about his involvement after which he was arrested vide memo Ex.PW21/A, his personal search was conducted vide memo Ex.PW21/B during which one mobile phone make Huwei, TATA Indicom was recovered which was used in this case while passing on the information to Sachin (juvenile accused). Thereafter the disclosure statement of the accused Manoj was recorded vide Ex.PW21/C and the motorcycle bearing No. DL 8S AH 8700 was taken into possession vide memo Ex.PW21/D. Pursuant to the said disclosure stateent He has testified that in his disclosure statement accused Manoj @ Lekhraj stated that he could get recover the weapon of offence and in pursuance of his disclosure statement accused lead them to the vacant plot in front of his house and got recovered one country made pistol from beneath the sand after removing the sand. The above said country made pistol was found kept in a gunny bag when it was recovered and two live cartridges and one cartridge case (fired shell) was also found in the said gunny bag and then prepared the sketch of the country made pistol, live cartridges and the cartridge case which is Ex.PW21/E. All the above witnesses i.e. HC Illa Khan (PW21) HC Jitender (PW26), SI Robin Tyagi (PW27) and Inspector Raj Kumar (PW30) have duly St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 130 proved the recovery of the firearm Ex.P3 along with the cartridges which are collectively Ex.P4 at the instance of the accused Manoj @ Lekhraj and also the recovery of motorcycle bearing No. DL8SAH8700 Ex.P6 which has been found to be registered in the name of Babloo the brother of accused Manoj @ Lekhraj.
(144) The Ld. Amicus Curiae has vehemently argued that the testimony of Pradeep cannot be believed because he had waited for good almost 48 hours to disclose the identity of the accused and further even the recovery of the pistol and the motorcycle cannot be believed not only because the vacant plot was accessible to general public but also because despite opportunity no public witness has been joined (145) I have considered the rival contentions but before coming to the merits of the argument, it is necessary to first briefly discuss the relevant provisions of law. As per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer. St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 131 (146) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:
a) Anything, state of things, or relation of things, or capable of being perceived by the senses,
b) Any mental condition of which any person is conscious. (147) It further provides five illustrations as to what would constitute a fact which are as under:
1. That there are certain objects arranged in a certain order in a certain place, is a fact
2. That a man heard or saw something, is a fact.
3. That a man said certain words, is a fact.
4. That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
5. That a man has a certain reputation, is a fact.
(148) A cojoint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 132 the place where I have kept the articles".
(149) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. KingEmperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under: "Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......"
".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 133 unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S. 27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information........... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."
"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.
This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 134
(150) After considering the settled principles the Hon'ble Apex Court observed as under:
"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 135 this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence....."
(151) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must establish the information given by the accused led to St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 136 the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.
The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence..."
(152) In the said case the Hon'ble Supreme Court further went to explain that:
"..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 137 In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"
(153) In the recent past the Hon'ble Supreme Court has in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 reinforced the above view when it observed that "discovery of fact" should be read with the definition of "fact" as contained in Section 3 of the Evidence Act which defines the "fact" as meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be confirmatory in character guaranteeing the truth of the information given to which facts the police officer had no access earlier which also includes recovery of material object. The Hon'ble Court further observed that so much of the information as relates distinctly to the fact thereby discovered is admissible. (154) Applying the settled principles of law to the facts of the present case it is evident that the place where the firearm was hidden was not within the knowledge of the Investigating Agency and it was the accused Manoj who disclosed about the same. In so far as the argument of the Ld. Amicus Curiae that the place of recovery was accessible to general public is St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 138 concerned, I may observe that though the said place was accessible to general public but the exact spot from where the firearm was recovered was neither within the sight or could have been known of anybody. It was the accused who had hidden the pistol under the sand. He was the only one who could have been aware of the exact corner where he had hidden the firearm by digging the ground/ removing sand. It was the accused Manoj @ Lekhraj who got recovered the pistol by digging the ground and removing the sand. It is not possible that anybody else could have planted the same at that place the spot not being visible to all. In this regard I may observe that the requirement of law is not that the place was accessible to others or not but whether it was visible to others and if not then it is immaterial that the place of concealment is accessible to other. [Ref.: State of HP Vs. Jeet Singh reported in AIR 1999 SC 1293 and Tahir & Others Vs. State reported in 87 (2000) DLT 207 (Delhi) (DB)]. Hence, in this background I hereby hold that this recovery cannot be doubted in view of the fact that there is an independent corroboration forthcoming to the use of this firearm from the ballistic report which confirms that the bullet so recovered from the body of the deceased was discharged through the firearm got recovered by the accused.
(155) Further, in so far as the non joining of public witnesses are concerned, I may observe that this will not be fatal to the case of the prosecution because all the witnesses of recovery have proved that the Investigating Officer made efforts to join the public witness who are St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 139 residents of the same area during the proceedings but they refused to join the same. It is common experience that public persons are generally reluctant to join police proceedings and there is general apathy and indifference on the part of public to join such proceedings. This position of law was reiterated in Aslam and Ors. (Mohd.) Vs. State reported in 2010 III AD (Delhi) 133.
(156) It was observed by Hon'ble High Court that reluctance of the citizens to join police proceedings is well known and needs to be recognized. It cannot be disputed that public does not want to get dragged in police and criminal cases and wants to avoid them, because of long drawn trials and unnecessary harassment. Similar view was taken in Manish vs. State, 2000 VIII AD (Scheduled Caste/ Scheduled Tribes (Prevention of Atrocities) Act, 1989) 29 and in A. Bhai vs. State, AIR 1989 SC 696, where it was held that we cannot be oblivious to the reluctance of the common man to join such raiding parties organized by the police, lest they are compelled to attend police station and Courts umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit. (157) Moreover, there is no reason to disbelieve the testimonies of police officials regarding recovery of firearm at the instance of accused Manoj @ Lekhraj. Their testimonies cannot be rejected merely because they happen to be police officers. As observed by the Hon'ble Supreme Court in Tahir Vss. State, reported in (1996) 3 SCC 338, no infirmity attaches to the testimony of police officials merely because they belong to the police St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 140 force. It was observed in the case of Aner Raja Khima Vs. The State of Saurashtra, reported in AIR 1956 SC 217 that the presumption that a person acts honestly and legally applies as much in favour of police officers as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof. These two authorities were also relied upon by Hon'ble High Court in Aslam & Ors (Mohd.) Vs. State, reported in 2010 III AD (Delhi) 133. (158) In so far as the aspect of recovery of motorcycle is concerned, no doubt there is a failure of the Investigating Officer in recording the statement of Ct. Jitender on 17.7.2012 despite his presence being shown in the hospital in the MLC of Pradeep and despite the fact that it stood confirmed that Saheed Khan had made a call to Ct. Jitender on 17.7.2012 at 16.05:58. Here, I May observe that the Call Detail Records of the mobile phone bearing No. 9015717994 which was being used by Ct. Jitender (PW26) and was actually in the name of Ct. Naveen (PW7) as is confirmed by Ct. Naveen, confirms the call made by Saheed Khan from his mobile No. 9250069348 to the mobile number used by Ct. Jitender i.e. 9015717994. Despite the same the Investigating Officer did not bother to record the statement of Ct. Jitender till 19.7.2012. This is a serious lapse committed by the Investigating Officer but for the said lapse the case of the prosecution cannot be made to suffer. Saheed Khan (PW20) is a Kabari and has a shop in front of the spot of incident and has confirmed having made a call to the Beat Constable which St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 141 cannot be doubted and he seems to be a truthful witness his presence at the spot being natural and probable. The fact that Saheed Khan had noted down the number of the motorcycle which was written in Hindi and informed Ct. Jitender about the incident whose statement in fact was recorded on 19.7.2012 cannot be doubted because had he been a planted witness as claimed by the Ld. Amicus Curiae then I am sure that under the given circumstances he would have also confirmed the identity of the assailant which he has not done. Saheed Khan has very clearly informed the Court that his entire focus was on the person who had been hit though he had seen the person on the motorcycle holding a pistol like object and while the person on the motorcycle fleeing away he immediately noted down the registration of motorcycle number which is a natural instinct of any reasonable person under similar circumstances. He is thus a reliable witness and his testimony cannot be doubted. The motorcycle in question was belonging to the brother of accused Manoj @ Lekhraj namely Babloo which motorcycle had been recovered from the possession of the accused Manoj @ Lekhraj. (159) Alternatively, assuming what has been stated by Saheed Khan regarding his having informed Ct. Jitender about the motorcycle number is incorrect and that Saheed Khan has in fact been planted as a witness at much later stage, even then this will not be fatal to the prosecution case, because in case, if the number of the motorcycle was not within the knowledge of the police then apparently it came to be known to them after the disclosure made by the accused Manoj @ Lekhraj which is then a discovery of fact and is St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 142 admissible in evidence the motorcycle being recovered from his possession. (160) Coming next to the recovery of mobile phone recovered from the possession of the accused Manoj @ Lekhraj, I may observe that a mobile phone make Nokia of Tata Indicom of black and grey color having IMEI No. A000003313A7BD and SIM bearing No. 9213963548 having Serial No. A1000015C75E45 (80410C74) was recovered from his possession and it was the accused Manoj @ Lekhraj who disclosed that he was using the said mobile phone for receiving information from juvenile accused Sachin about the location of Pradeep. The Electronic Evidence on record (as discussed separately) confirms the presence of the accused Manoj @ Lekhraj in the area where the incident had taken place and his close contact with the juvenile accused Sachin. Therefore the disclosure made by the accused Manoj @ Lekhraj to the extent that he was receiving information about the location of Pradeep from juvenile accused Sachin through the above mobile number is a relevant fact which is admissible being discovery of fact as contemplated under Section 27 of Evidence Act as the Investigating Agency was not aware of the same and the Electronic Record independently confirms this aspect and also also the locations of the accused during the incident [Reference in this regard is made to the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820].
(161) This being the background, I hereby hold that the portion of the disclosure statement of the accused which is discovery of facts as aforesaid is St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 143 admissible in evidence and is a strong pointer towards the guilt of the accused.
Charges Established:
(162) In view of my discussion as aforesaid, I hereby hold that on the basis of the direct ocular evidence in the form of testimony of Pradeep (PW15) finding due confirmation from the oral testimony of Saheed Khan (PW20) and independent corroboration from the medical, forensic and electronic evidence, the prosecution has been able to successfully prove and establish the charges against the accused Manoj @ Lekhraj of having conspired with the juvenile accused Sachin to commit the murder of Pradeep for which the accused Manoj @ Lekhraj is hereby held guilty of the offence under Section 120B r/w 302 IPC. The prosecution has further been able to establish the intent and knowledge (as contemplated under Section 299 IPC) of the accused Manoj @ Lekhraj to commit Culpable Homicide amounting to Murder thereby causing death of Kanwar Pal @ Tinku for which the accused Manoj @ Lekhra is hereby held guilty of the offence under Section 302 Indian Penal Code. It also stands established that the accused Manoj @ Lekhraj had fired the shot by aiming towards Pradeep who was the target of the fire but since he was able to save himself by falling on the ground the bullet so discharged only brushed passed him causing singes injuries/ burns (after which it fatally hit Tinku @ Kanwar Pal), for which the accused Manoj @ Lekhraj is also held guilty of the offence under Section 307 Indian Penal St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 144 Code in addition to Section 302 IPC (being a part of the same transaction as the bullet first brushed passed Pradeep and then fatally hit Kanwar Pal @ Tinku). It also stands established that for giving effect to his plan in furtherance of the conspiracy the accused Manoj @ Lekhraj had used a desi katta/ illegal firearm which he got recovered from the corner of a plot situated in front of his house after removing the sand from the ground. He is hence also held guilty of the offence under Section 27 Arms Act for having used the illegal firearm/ desi katta in causing injuries to Pradeep and death of Kanwar Pal @ Tinku.
FINAL CONCLUSIONS:
(163) In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 145
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(164) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. The accused Manoj @ Lekhraj has been identified as the assailant. On the basis of the evidence on record the following aspects stand established:
➢ That Pradeep was residing at House No. J11931194, Mangol Puri, Delhi on rent and was working as Sweeper in the Kothari Hostel, Mall Road, Delhi.
➢ That Sachin and his sister Sonam with whom Pradeep was having an intimate relationship and were the children of landlord Ram Saran were also residing in the same house i.e. J11931194, Mangol Puri, Delhi.
➢ That one Tinku @ Kanwar Pal was also residing near the house of Pradeep along with his sister.
➢ That Pradeep was in talking terms with Sonam the sister of Sachin and St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 146 daughter of landlord Ram Saran which was objected to by her family. ➢ That the accused Manoj @ Lekhraj is related to Ram Saran being the younger brother of son in law of the elder brother of Ram Saran and there were talks of alliance of the accused Manoj @ Lekhraj with the daughter of Ram Saran namely Sonam.
➢ That on 17.7.2012 at about 3:003:15 PM Pradeep along with Tinku had gone to the market of S Block, Mangol Puri to purchase a TV remote.
➢ That while they were returning back to their house and they reached the school at SBlock Mangol Puri, the accused Manoj came towards Y Block on a motorcycle from the front side.
➢ That the accused Manoj slowed down the motorcycle near them and stopped the motorcycle and pointed a katta towards them and fired upon them.
➢ That Pradeep saw Manoj pulling out the firearm and ducked and fell down on the ground and also asked Tinku to save himself but Kanwar Pal @ Tinku caught unaware and the fire shot instead hit Tinku. ➢ That Tinku received injury on his chest from the above said shot fired by Manoj from his katta and Pradeep also received the injuries/ singes caused by the lead pieces / pellets (charre) on his right hand. ➢ That thereafter Manoj ran away from the spot on his motorcycle with the katta.
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 147 ➢ That Pradeep took Kanwar Pal @ Tinku to Sanjay Gandhi Hospital in a rickshaw where he met Ct. Jitender on the gate.
➢ That Pradeep got Tinku @ Kanwar Pal admitted in SGM Hospital in the Emergency where after examining Tinku the doctors declared him 'Brought Dead'.
➢ That Ct. Jitender got Pradeep admitted to SGM Hospital where he (Pradeep) was provided treatment for singes/ burn injures which Pradeep had received in the incident.
➢ That Saheed Khan a Kabari by profession is having his shop of Kabari at X Block near Subzi Mandi.
➢ That on 17.07.2012 Saheed Khan was sitting in front of his shop when at around 4.00 PM, he heard a noise of fire arm shot from the other side of the road and he saw that a boy was running and coming toward other side of the road and his clothes were smeared with blood. ➢ That Saheed Khan also noticed that there was a boy on a motorcycle who was holding something in his hand appearing to be a pistol and pointing towards the said boy who was hit.
➢ That thereafter the boy on the motorcycle escaped towards the side of the police chowki and he (Saheed Khan) immediately noted down the number of the motorcycle on which this boy holding the pistol was sitting.
➢ That the said motorcycle number was DL 8S AH 8700 which was St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 148 written in Hindi and thereafter Saheed Khan made a call to Ct. Jitender beat constable of the area on his mobile No. 9015717994. ➢ That on 19.7.2012 pursuant to the secret information the accused Manoj @ Lekhraj was apprehended form near Church, Sultanprui Drain, Mangol Puri who was found in possession of motorcycle bearing No. DL8SAH8700.
➢ That the accused was found in possession of a mobile phone with SIM No. 9213963548 which was taken into possession. ➢ That during interrogation the accused Manoj @ Lekhraj disclosed about his involvement in the present case on which his disclosure statement was recorded.
➢ That Pursuant to his disclosure statement the accused got recovered a desti katta along with two live cartridges and one fired cartridge from in front of his house of G Block area, Indra Jheel, Sultan Puri, Delhi. (165) The medical evidence on record establishes that the cause of death was due to hemorrhage and shock associate with injury No. 1 (Firearm entry wound 3cm x 1.7cm cavity deep, oval shaped, over right side of chest, 7.3cm medial from right nipple, 7cm from sterna notch. Blackening & tattooing seen around the wound margin. Track of wound extends through space between 4th & 5th intercostals space, going downward & medially piercing the mediatinum, pericardium & heart then to stomach, spleen then gets lodged in the space between 8th & 9th intercostals space along the St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 149 posterior axillary line). The Autopsy Surgeon has also proved that this injury was possible by projectile discharge from a fire arm weapon capable of discharging such a projectile. This establishes that the injury was sufficient to cause death in ordinary course of nature.
(166) The medical evidence further establishes that during the incident Pradeep who had rushed Kanwar Pal @ Tinku to the Hospital had also received multiple black and red colour burning spots on right hand over extension aspect of right arm and elbow which confirms the testimony of Pradeep to the effect that during the incident it was he who was the target of the fire but since he was able to save himself by falling on the ground the bullet so discharged only brushed passed him causing singes injuries/ burns and the hit Kanwar Pal @ Tinku on his chest.
(167) It stands established from the electronic evidence on record that the accused Manoj @ Lekhraj and juvenile accused Sachin were in constant touch with each other not only on the date of incident but even prior to the same. Further, it also stands established that at the time of the incident the location of the accused Manoj @ Lekhraj was in the area particularly at the spot of incident, an aspect which finds independent confirmation from the version given by the eye witness Pradeep who had also received injuries during the incident.
(168) The Forensic Evidence on record confirms that the bullet recovered from the body of the deceased Tinku was fired through the country made pistol got recovered by the accused Manoj @ Lekhraj thereby St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 150 conclusively connects him with the alleged offence. The ocular evidence in the form of testimony of Pradeep on record also conclusively connects the accused Manoj @ Lekhraj with the alleged offence.
(169) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
(170) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
(171) This being the background I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 151 Maonj @ Lekhraj of having conspired with the juvenile accused Sachin to commit the murder of Pradeep for which the accused Manoj @ Lekhraj is hereby held guilty of the offence under Section 120B r/w 302 IPC. (172) Further, the prosecution has been able to establish the intent and knowledge (as contemplated under Section 299 IPC) of the accused Manoj @ Lekhraj to commit Culpable Homicide amounting to Murder thereby causing death of Kanwar Pal @ Tinku for which the accused Manoj @ Lekhra is hereby held guilty of the offence under Section 302 Indian Penal Code.
(173) It also stands established that the accused Manoj @ Lekhraj had fired the shot by aiming towards Pradeep who was the target of the fire but since he was able to save himself by falling on the ground the bullet so discharged only brushed passed him causing singes injuries/ burns (after which it fatally hit Tinku @ Kanwar Pal), for which the accused Manoj @ Lekhraj is also held guilty of the offence under Section 307 Indian Penal Code in addition to Section 302 IPC (being a part of the same transaction as the bullet first brushed passed Pradeep and then fatally hit Kanwar Pal @ Tinku).
(174) Further, the accused Manoj @ Lekhraj is also held guilty of the offence under Section 27 Arms Act for having used the illegal firearm/ desi katta in causing injuries to Pradeep and death of Kanwar Pal @ Tinku. St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 152 (175) The accused Manoj @ Lekhraj is accordingly convicted for the offence under Section 120B read with 302 Indian Penal Code, Section 302, 307 Indian Penal Code and Section 27 of Arms Act. Be listed for arguments on sentence on 25.4.2014.
Announced in the open court (Dr. KAMINI LAU)
Dated: 19.4.2014 ASJII(NW)/ ROHINI
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 153
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 38/2013 Unique Case ID No.: 02404R0284022012 State Vs. (1) Manoj @ Lekhraj S/o Raj Kumar R/o GBlock, Indra Jheel, Near M.D. Memorial Public School, Sultan Puri, Delhi (Convicted) FIR No.: 262/12 Police Station: Mangol Puri Under Sections: 302/120B/34 IPC and 25 Arms Act Date of Conviction: 19.4.2014 Arguments concluded on: 25.4.2014 Date of Sentence: 28.4.2014 APPEARANCE:
Present: Sh. Tofeeq Ahmed, Ld. Addl. PP for the State.
Convict Manoj @ Lekhraj in Judicial Custody with Sh. Rajneesh Antil Advocate/ Amicus Curiae.
ORDER ON SENTENCE:
As per allegations, on or before 17.7.2012 the accused Manoj @ Lekhraj along with one Sachin (since juvenile) hatched a criminal St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 154 conspiracy to commit murder of Pradeep S/o Gopi Nath pursuant to which on 17.7.2012 at about 3:45 PM at Main Road, Sanjay Gandhi Hospital, Opposite K Block School, near Andh Kalyan Sansthan, Nala, Mangolpuri, Delhi the accused Manoj @ Lekhraj fired upon Pradeep but the bullet instead hit Tinku @ Kanwar Pal killing him thereby committed his murder whereas singing/ burn injuries were caused to Pradeep.
On the basis of the testimonies of the various prosecution witnesses particularly the eye witness/ injured Pradeep and Saheed Khan and also on the basis of the medical, forensic, electronic and other circumstantial evidence on record, this Court vide a detailed judgment dated 19.4.2014 held the accused Manoj @ Lekhraj guilty of the offence under Section 120B read with 302 IPC, Section 302, Section 307 IPC and Section 27 of Arms Act.
Vide the detail judgment this court has observed that the prosecution has been able to successfully establish that Pradeep was residing at House No. J11931194, Mangol Puri, Delhi on rent and was working as Sweeper in the Kothari Hostel, Mall Road, Delhi; that Sachin and his sister Sonam with whom Pradeep was having an intimate relationship and were the children of his landlord Ram Saran were all residing together in the same house i.e. J11931194, Mangol Puri, Delhi; that one Tinku @ Kanwar Pal was also residing near the house of Pradeep along with his sister; that Pradeep was in talking terms with Sonam the sister of Sachin and daughter of landlord Ram Saran which was objected to by her family; that the accused St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 155 Manoj @ Lekhraj is related to Ram Saran being the younger brother of son in law of the elder brother of Ram Saran and there were talks of matrimonial alliance of the accused Manoj @ Lekhraj with the daughter of Ram Saran namely Sonam.
Further the prosecution has been able to establish that on 17.7.2012 at about 3:003:15 PM Pradeep along with Tinku had gone to the market of S Block, Mangol Puri to purchase a TV remote; that while they were returning back to their house and they reached the school at SBlock Mangol Puri, the accused Manoj came towards Y Block on a motorcycle from the front side; that the accused Manoj slowed down the motorcycle near them and stopped the motorcycle and pointed a katta towards them and fired upon them; that Pradeep saw Manoj pulling out the firearm and ducked and fell down on the ground and also asked Tinku to save himself but Kanwar Pal @ Tinku was caught unawares and the fire shot instead hit Tinku; that Tinku received injury on his chest from the above said shot fired by Manoj from his katta and Pradeep also received the injuries/ singes caused by the lead pieces / pellets (charre) on his right hand; that thereafter Manoj ran away from the spot on his motorcycle with the katta; that Pradeep took Kanwar Pal @ Tinku to Sanjay Gandhi Hospital in a rickshaw where he met Ct. Jitender on the gate; that Pradeep got Tinku @ Kanwar Pal admitted in SGM Hospital in the Emergency where after examining Tinku the doctors declared him 'Brought Dead'; that Ct. Jitender got Pradeep admitted to SGM Hospital where he (Pradeep) was provided treatment for singes/ burn injures St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 156 which Pradeep had received in the incident.
It has been observed that the prosecution has also been successfully able to establish that Saheed Khan a Kabari by profession is having his shop of Kabari at X Block near Subzi Mandi; that on 17.07.2012 Saheed Khan was sitting in front of his shop when at around 4.00 PM, he heard a noise of fire arm shot from the other side of the road and he saw that a boy was running and coming toward other side of the road and his clothes were smeared with blood; that Saheed Khan also noticed that there was a boy on a motorcycle who was holding something in his hand appearing to be a pistol and pointing towards the said boy who was hit; that thereafter the boy on the motorcycle escaped towards the side of the police chowki and he (Saheed Khan) immediately noted down the number of the motorcycle on which this boy holding the pistol was sitting; that the said motorcycle number was DL 8S AH 8700 which was written in Hindi and thereafter Saheed Khan made a call to Ct. Jitender beat constable of the area on his mobile No. 9015717994.
This Court has further observed that the prosecution has been able to successfully establish that on 19.7.2012 pursuant to the secret information the accused Manoj @ Lekhraj was apprehended form near Church, Sultanprui Drain, Mangol Puri who was found in possession of motorcycle bearing No. DL8SAH8700; that the accused was found in possession of a mobile phone with SIM No. 9213963548 which was taken into possession; that during interrogation the accused Manoj @ Lekhraj St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 157 disclosed about his involvement in the present case on which his disclosure statement was recorded; that Pursuant to his disclosure statement the accused got recovered a desti katta along with two live cartridges and one fired cartridge from in front of his house of G Block area, Indra Jheel, Sultan Puri, Delhi.
It has been observed by this Court that the medical evidence on record establishes that the cause of death was due to hemorrhage and shock associate with injury No. 1 and the Autopsy Surgeon has also proved that this injury was possible by projectile discharge from a fire arm weapon capable of discharging such a projectile, which establishes that the injury was sufficient to cause death in ordinary course of nature.
The medical evidence further established that during the incident Pradeep who had rushed Kanwar Pal @ Tinku to the Hospital had also received multiple black and red colour burning spots on right hand over extension aspect of right arm and elbow which confirms the testimony of Pradeep to the effect that during the incident it was he who was the target of the fire but since he was able to save himself by falling on the ground the bullet so discharged only brushed passed him causing singes injuries/ burns and the hit Kanwar Pal @ Tinku on his chest.
Further, it has been established from the electronic evidence on record that the accused Manoj @ Lekhraj and juvenile accused Sachin were in constant touch with each other not only on the date of incident but even prior to the same. It has also been established that at the time of the incident St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 158 the location of the accused Manoj @ Lekhraj was in the area particularly at the spot of incident, an aspect which finds independent confirmation from the version given by the eye witness Pradeep who had also received injuries during the incident.
This Court has further observed that the Forensic Evidence on record confirms that the bullet recovered from the body of the deceased Tinku was fired through the country made pistol got recovered by the accused Manoj @ Lekhraj thereby conclusively connects him with the alleged offence. The ocular evidence in the form of testimony of Pradeep on record also conclusively connects the accused Manoj @ Lekhraj with the alleged offence.
Therefore, vide detail judgment dated 19.4.2014 this Court has observed that the prosecution has been able to prove and substantiate the allegations against the accused Maonj @ Lekhraj of having conspired with the juvenile accused Sachin to commit the murder of Pradeep for which he has been held guilty of the offence under Section 120B r/w 302 IPC.
Further, the prosecution has been able to establish the intent and knowledge (as contemplated under Section 299 IPC) of the accused Manoj @ Lekhraj to commit Culpable Homicide amounting to Murder thereby causing death of Kanwar Pal @ Tinku for which the accused Manoj @ Lekhra has been held guilty of the offence under Section 302 Indian Penal Code.
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 159
It has been established that the accused Manoj @ Lekhraj had fired the shot by aiming towards Pradeep who was the target of the fire but since he was able to save himself by falling on the ground the bullet so discharged only brushed passed him causing singes injuries/ burns (after which it fatally hit Tinku @ Kanwar Pal), for which the accused Manoj @ Lekhraj has also been held guilty of the offence under Section 307 Indian Penal Code in addition to Section 302 IPC (being a part of the same transaction as the bullet first brushed passed Pradeep and then fatally hit Kanwar Pal @ Tinku).
Further, the accused Manoj @ Lekhraj has also been held guilty of the offence under Section 27 Arms Act for being in possession and for having used the illegal firearm/ desi katta in causing injuries to Pradeep and death of Kanwar Pal @ Tinku.
Heard arguments on the point of sentence. The convict Manoj @ Lekhraj is stated to be aged about 24 years having a family comprising of aged parents and four brothers. He is 5th class pass and is Rickshaw Puller/ Halwai by profession. Ld. Amicus Curiae has vehemently argued that the convict is a young boy and has no previous criminal involvements. He has prayed that a lenient view be taken against the convict Manoj @ Lekhraj.
On the other hand the Ld. Addl. Public Prosecutor has placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 160 reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convict Manoj @ Lekhraj. It is also stated that the convict has not been able to show any mitigating circumstances in his favour which could make out a case for imposition of sentence of imprisonment for life.
I have considered the submissions made before me. At the very outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be keep in mind before awarding a death sentence in any given case.
The law is well settled in the decision in Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], wherein it was held that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. Again it was cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the accused as also the offence. Some aggravating circumstances were also culled out, they being:
(a) Where the murder has been committed after St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 161 previous planning and involves extreme brutality; or
(b) Where the murder involves exceptional depravity. The mitigating circumstances which were mentioned in that judgment were:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance;
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;
(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;
(d) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) above;
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;
(f) That the accused acted under the duress or domination of another person; and
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], wherein the Hon'ble Supreme Court insisted upon the mitigating circumstances being balanced against the St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 162 aggravating circumstances. The aggravating circumstances were described as under:
(a) When the murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.
(b) When the murder of a large number of persons of a particular caste, community, or locality is committed.
(c) When the murder of an innocent child, a helpless woman is committed.
It was also observed by the Hon'ble Court that at the same time it must be kept in mind that the principle of there being a proportion between punishment and offences ought not to be so mathematically followed so as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes.
The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is the desirability to keep the offender out of circulation. St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 163
Now I would like to draw a balance sheet of aggravating and mitigating factors. The mitigating factors in the present case are that the convict Manoj @ Lekhraj is a young boy of 24 years and the Investigating Officer has not been able to place before this Court any record of his previous criminal involvements. The aggravating factors are that the deceased Tinku @ Kanwar Pal was also a young boy of 30 years and was the only brother of his three sisters who was the accidental victim of the firing which was in fact targeted at Pradeep who was accompanying him.
After having considered the submissions made before me and the various aggravating and mitigating factors, I hold that the case in hand certainly does not fall within the category of Rarest of Rare or least even in category of Rare Case. Therefore I award the following sentences to the convict Manoj @ Lekhraj:
1. For the offence under Section 120B read with 302 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.5,000/ (Rs. Five Thousand). In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 15 days.
2. For the offence under Section 302 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.2,00,000/ (Rs. Two Lacs). In default of payment of fine the St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 164 convict shall undergo Simple Imprisonment for a period of Six Months. The entire fine amount of Rs.2,00,000/ (Rs. Two Lacs) if deposited by the convict shall be given to the family of the deceased Kanwar Pal @ Tinku as compensation under Section 357 Cr.P.C.
3. For the offence under Section 307 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Five (5) years and fine to the tune of Rs.2,000/ (Rs. Two Thousand). In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Week.
4. For the offence under Section 27 of Arms Act the convict is sentenced to Rigorous Imprisonment for a period of Five (5) Years and fine to the tune of Rs.2,000/ (Rs. Two Thousand). In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Week.
All the sentences shall run concurrently.
Benefit of Section 428 Cr.P.C. shall be given to the convict for the period undergone by him during the trial.
The convict is informed that he has a right to prefer an appeal against the judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 165 Delhi.
Copy of the judgment and order of sentence be given to the convict free of costs and one copy of sentence be attached with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 28.4.2014 ASJII(NW)/ ROHINI
St. Vs. Manoj @ Lekhraj, FIR No. 262/12, PS Mangol Puri Page No. 166