Delhi District Court
State vs . Ashish Page No.1/66 on 29 August, 2019
IN THE COURT OF MS. SUNENA SHARMA,
ADDITIONAL SESSIONS JUDGE-03, SOUTH DISTRICT,
SAKET COURTS,NEW DELHI
SC No.6543/16
Unique ID No.02406R0124832013
FIR No.59/13
U/s: 302 IPC & 25/27 Arms Act
Police Station : Neb Sarai
State
Vs.
Ashish
S/o Sh. Ganga Sharan
R/o 10/264, Dakhin Puri
Ambedkar Nagar
New Delhi
.... Accused
Date of Committal :22.05.2013
Arguments concluded on :22.08.2019
Date of Judgment : 29.08.2019
JUDGMENT
1. Vide this judgment, I shall decide the session case no. 6543/16 (old no.117/15), arising out of charge sheet which is an outcome of FIR no.59/13, dated 22.02.2013 of PS Neb Sarai registered in connection with the murder of deceased Sunder.
Prosecution case as per charge sheet
2. Briefly stated the facts of the prosecution case as emerging out from the charge sheet are that on 22.02.2013, a PCR call was received vide DD no.22A Ex.PW21/A regarding gun firing on a boy at C-18, Khanpur Extension, Gali no.10 and said FIR No.59/13 State vs. Ashish Page No.1/66 DD was assigned to SI Sanjeev Lahri through Ct. Dharmender. Pursuant to said DD, SI Sanjeev alongwith other police staf reached at the spot C-18, Khanpur Extension, New Delhi. Local inquiry revealed that injured had already been taken to Batra hospital. After leaving some police staf at the spot, SI Sanjeev reached Batra hospital where he found injured Sunder s/o Late Ramveer admitted vide MLC no.9162 Ex.PW27/A. The injured was however, declared unfit for statement. One sealed pullanda containing blood stained clothes of injured, one small transparent bottle containing two live cartridges which were found in wearing cloth of injured Sunder and some other exhibits were handed over by the doctor to the IO/SI Sanjeev who took the same into police possession through seizure memo Ex.PW18/E & Ex.PW18/A. One eye witness namely Sushil Kumar @ Mange Ram s/o Hari Kishan also met the IO in the hospital and his statement Ex.PW6/A was recorded by the IO.
2.1 In his statement Ex.PW6/A, complainant/eye witness Sushil @ Mange narrated the incident to the efect that complainant was living with his family at house no. 71, Khanpur village. Complainant was also having one godown at C-18, Khanpur Extension, Gali no.10, New Delhi but the same was lying vacant. Complainant had appointed one boy namely Ashish as a care taker of said godown. On 22.02.2013, at 3:00 pm when complainant was having meal in his office at the ground floor of said godown, he heard a loud sound of abuses from the basement. After hearing said sound, complainant left his meal FIR No.59/13 State vs. Ashish Page No.2/66 and rushed to the basement where he saw Ashish standing with a pistol in his hand and he had pointed out said pistol towards Sunder who was sitting on the floor and with Sunder two more boys namely Bablu and Mota were also sitting on the floor. Said three persons namely Sunder, Bablu and Mota used to visit complainant's godown to meet Ashish on earlier occasions also. In the meantime, Ashish fired bullet on Sunder's forehead with the pistol in his hand and as a result of gun shot, Sunder fell down on the ground. Complainant made a 100 number call from the STD booth and with the help of Mota, complainant took deceased Sunder to Batra Hospital in his Honda City Car and got him admitted there. In the meantime, police also arrived in the hospital and recorded his statement.
2.2 On the basis of aforementioned statement of the complainant and the MLC of the injured, SI Sanjeev Lahri prepared a rukka and sent the same to PS through Ct. Prem Chand for registration of FIR. During investigation, SI Sanjeev Lahri prepared the site plan of the place of occurrence at the instance of complainant, recorded statement of ASI Ram Niwas, I/C crime team, Ct. Jaiveer, the photographer. The crime team inspected the spot and the Honda City car of complainant bearing no. DL-2AF-0044. Thereafter, Ct. Prem Chand returned back to the spot and handed over original rukka and copy of FIR to SI Sanjeev Lahri to whom, the investigation was assigned.
2.3 During investigation, IO seized one blood stained FIR No.59/13 State vs. Ashish Page No.3/66 plastic katta from the spot and also arrested accused from the main gate of Batra hospital after he was identified by the complainant. One country-made pistol with two live cartridges was recovered from the possession of accused Ashish. The sketch of said country-made pistol and live cartridges were prepared and same was seized vide seizure memo. Disclosure statement of accused was recorded. During investigation, IO recovered one used cartridge from the place of occurrence at the instance of the accused and sketch of said cartridge was also prepared and the same was seizure vide seizure memo. IO also prepared pointing out memo of place of recovery of said cartridge at the instance of accused and seized Honda car bearing no.DL-2F AM- 0044. IO also examined the other persons who were allegedly present at the time of incident i.e. Shane Alam @ Mota, Shashank @ Golu, Bablu @ Tanka and recorded their statements u/s 161 Cr.P.C.
2.4 During investigation, IO also collected PCR form from control room and deposited the exhibits collected during investigation of the case to FSL. On 27.02.2013, a DD no.34 A Ex.PW 25/A was received in the PS from Batra hospital regarding death of injured Sunder. Said DD was marked to SI Sanjeev Lahri. Pursuant to said DD, IO/SI Sanjeev Lahri got the dead body of deceased preserved in the mortuary of AIIMS hospital. On the next date, postmortem was conducted on the dead body of deceased vide PM No. 245/13 Ex.PW2/A. Subsequently, section 307 IPC was converted into Section 302 IPC and the investigation FIR No.59/13 State vs. Ashish Page No.4/66 of the case was assigned to Inspector Jarnail Singh.
2.5 During investigation, IO Inspector Jarnail Singh collected the PM report of deceased wherein, the cause of death was opined as shock due to septicemia consequent upon above mentioned circumstances. However, viscera was also preserved to rule out any intoxication. On 13.03.2013 and 18.03.2013 other exhibits collected during postmortem of deceased were also deposited to FSL through Ct. Sanjay and Ct. Dinesh respectively. On 21.03.2013, IO got prepared the scaled site plan Ex.PW29/A of the place of occurrence through draftsman SI Mahesh Kumar at the instance of complainant Sushil Kumar. Statement of said draftsman and supplementary statement of complainant Sushil Kumar @ Mange and were also recorded by the IO.
2.6 After completing the investigation, IO filed the charge for the ofences punishable u/s 302 IPC and 25/27 of Arms Act against the accused before Ld. Magistrate on 15.05.2013, upon which Ld. Magistrate took cognizance and after compliance of Section 207 Cr.P.C, he committed the case to the Court of Sessions vide order dated 18.05.2013 and subsequently, the case came to be assigned to this court on 22.05.2013.
2.7 As per charge sheet, the FSL report and sanction of 39 Arms act were filed vide supplementary chargesheet before Ld. Magistrate on 15.05.2013 and the same was also committed to this court on 28.10.2013.
FIR No.59/13 State vs. Ashish Page No.5/663. Vide order dated 13.11.2013, the charge for the ofence punishable under Section 302 IPC & 25/27 Arms Act was framed against accused to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined 35 witnesses. For the sake of easy reference, said witnesses have been categorized under the following heads with reference to the para number where their testimonies have been discussed in this judgment.
A) Public witnesses (Pg 7 to 17 )
1. PW1/Ashok Pandit (crane operator)
2. PW6 Sushil @ Mange (complainant/eye witness)
3. PW9 Mohd. Shane Alam @ Mota (eye witness)
4. PW10 Shashank @ Golu (eye witness)
5. PW11 Vijay (dead body identification witness)
6. PW12 Sanjay (dead body identification witness)
7. PW14 Jitender @ Jeetu (STD booth owner)
8. PW16 Bablu @ Tanka (eye witness) B) Formal Police witnesses (Pg 17 to 22)
1. PW3 Ct. Jaivir Singh
2. PW4 Ct. Sanjay
3. PW7 Ct. Harish Pal
4. PW8 Ct. Udai Bhan
5. PW13 Ct. Dinesh Kumar
6. PW20 ASI Kunji Lal
7. PW21 HC Satender Singh
8. PW22 HC Satish Kumar
9. PW23 Dinesh Singh (Nodal officer)
10. PW25 ASI Goverdhan Singh
11. PW26 Dev Kumar (Nodal Officer)
12. PW32 W/Ct. Poonam FIR No.59/13 State vs. Ashish Page No.6/66 C)Material Police witnesses (Pg.22 to34)
1. PW15 Inspector Jarnail Singh
2. PW17 Ct. Ravi Dutt
3. PW18 Ct. Prem Chand
4. PW19 Ct. Dharmender
5. PW24 ASI Ram Niwas
6. PW28 DCP Pramod Singh
7. PW29 Inspector Mahesh Kumar
8. PW30 SI Sanjeev Lehri (IO)
9. PW31 Inspector Neeraj Tokas D) Medical Expert witnesses (Pg.34 to 36)
1. PW2 Dr. Shashank Pooniya
2. PW5 Dr. Vikram Dua
3. PW27 Dr. Amiya Kumar Verma E) Expert witnesses from FSL (Pg.37 to 40)
1. PW33 Dr. Adesh Kumar, FSL Rohini
2. PW34 Dr.Indresh Kumar Mishra FSL Rohini
3. PW35 Dr. Puneet Puri, FSL Rohini Public Witnesses
5. PW1/Ashok Pandit is a formal witness who used to work as Crane Operator at 'Manjeet Crane Service Shop' behind Mother Dairy, Malviya Nagar. As per his version, on 22.02.2013, upon the asking of police, he went to Batra hospital with a crane and at the instance of police, he brought one Honda City car of black colour bearing no.0044, the exact number he did not remember, to PS Neb Sarai. At that time, one constable was also accompanying him.
6. PW6/Sushil @ Mangey is the complainant as well as the eye witness of the incident. As per his version, he was FIR No.59/13 State vs. Ashish Page No.7/66 unemployed but, he used to earn his livelihood from the rental income of his godown. On 27.02.2013, he (PW6) was present on the first floor of his office at Khanpur Extension, which consisted of one basement also. Accused Ashish (correctly identified) used to work with him as a caretaker. He further deposed that on the date of incident, it was lunch time and he was taking his lunch in his office whereas, accused was taking his lunch in the basement. PW6 deposed further that during his lunch time between 1:30-2:00 pm, he heard sound of a blast, might be of bullet shot and after hearing it, he rushed towards his basement where he found one person lying on the floor and one pistol like weapon was also lying near that person. PW6 further deposed that he made a call at 100 number from a nearby STD booth and when he returned back, he found that accused Ashish had taken that person to hospital. Further that police had obtained his signature on plane paper.
6.1 As PW6 was resiling from his earlier statement, he was cross-examined by Ld. Addl. PP after taking permission of the court. During his cross-examination by Ld. Addl. PP, he PW6 deposed further that he had no enmity with the police. He further stated that police had obtained his signatures on several blank papers. He deposed further that the date of incident was 22.02.2013 but, he could not recollect the time whether it was 3:00 pm or prior to 3:00 pm. He denied the suggestion that police had recorded his statement on 22.02.2013.
FIR No.59/13 State vs. Ashish Page No.8/666.2 Upon being read over his whole statement Ex.PW6/A, PW6 denied to have made such statement to the police. Upon being confronted with his statement Ex.PW6/A from portion X to X, he denied that he had stated in his statement that on 22.02.2013, at about 3:00 pm, he was taking his lunch in his office at ground floor; or that in the meantime, he heard loud voices of abusing from basement of his godown; or that after leaving his lunch in between, he (accused) went to the basement and saw that accused Ashish was standing and at that time, he (accused) was carrying pistol in his hand; or that Ashish had pointed out the pistol towards the head of Sunder who was sitting on the floor; or that two more boys namely Bablu and Mota were also sitting on the floor; or that Sunder, Bablu and Mota used to come earlier also to his godown to meet Ashish; or that in the meantime, Ashish fired from his pistol on the head of Sunder due to which Sunder laid down; or that he (PW6) alongwith Mota brought Sunder to Batra hospital in Honda City car; or that Sunder was admitted in the hospital; or that in the meantime, police officials came there and recorded his statement. PW6 however, admitted that Mota and Bablu were also present in the basement and said Honda city car belonged to one of them and further that his signature appeared at point A on the statement Ex.PW6/A. 6.3 PW6 denied the suggestion that police had recorded his supplementary statement on 22.02.2013. Upon being read over his whole supplementary statement Mark PW6/A, he denied FIR No.59/13 State vs. Ashish Page No.9/66 to have made any such statement to the police. Upon being confronted with portion A to A of his supplementary statement Mark PW6/A, he categorically denied that in said statement he had stated to police that on the day of incident, injured Sunder was taken to Batra Hospital in Honda City car; or that said Honda City car was driven by Shashank @ Golu r/o Madangir; or that Mota was sitting on the conductor's seat; or that Mota alighted from that car on the M.B. Road in front of Batra hospital's gate on the pretext to arrange money; or that he (PW6) alongwith Shashank @ Golu admitted Sunder in the emergency of Batra hospital; or that he (PW6) was taken to place of incident by the police i.e. at C-18, Khanpur Extension; or that police had seized one blood stained plastic katta (bag) from the basement; or that police also prepared sketch of the spot or that he (PW6) signed the same.
6.4 He further denied the suggestion that while he (PW6) alongwith IO and one constable were going to Batra hospital in search of accused and the owner of said car and when they were entering in the main gate of Batra hospital, PW6 saw Ashish, who was wearing a check shirt, was coming out of the hospital; or that PW6 had told the police that Ashish was the same person, who was his caretaker/worker and who had shot Sunder; or that Ashish was apprehended by the IO with the help of constable; or that from his (accused's) search, one country-made pistol was recovered from right dub of his wearing pant and upon checking the same, it contained two live cartridges; or that the sketch of FIR No.59/13 State vs. Ashish Page No.10/66 the same was prepared; or that after interrogation, accused Ashish was arrested or that PW6 had signed his arrest memo; or that thereafter, they were taken to Batra hospital, near Emergency Gate; or that from there at his (PW6's) instance, blood was lifted from the vehicle/car bearing no.DL-2FAM-0044; or that the said vehicle was also seized through seizure memo or that PW6 had signed the said seizure memo.
6.5 PW6 however, admitted his signatures on site plan, seizure memo of said vehicle and arrest memo of accused at points A. But, he denied the suggestion that said documents were prepared in his presence or that he had signed said documents after their preparation by the IO. PW6 admitted that he had made a call at 100 number. He however, denied the suggestion that he had told the PCR officials about the incident or that he was deposing falsely; or that he had entered into any compromise with the family member of accused; or that he had been won over by the family of accused; or that he was deposing falsely under threat, fear and coercion; or that accused being his caretaker, he was deposing falsely to save him or that he was suppressing the true facts from the court.
7. PW9/Mohd. Shane Alam @ Mota is also an eye witness, who was allegedly present at the spot. In his examination in chief, he deposed that he was running a clothe shop on the ground floor of his house. On 22.02.2013, at about 3:00-3:15 pm, he had gone to clothe factory of one Mange Ram FIR No.59/13 State vs. Ashish Page No.11/66 in Khanpur from whom he used to purchase clothes. He further deposed that he knew accused Ashish (correctly identified) as he was working as a watchman at said factory and Bablu, who was residing in the factory, and he also met him there. PW9 further deposed that while he, Ashish and Bablu were taking meals, one boy namely Sunder, who was a miscreant and used to drink, came there and took out a weapon, might be a gun, and fired. On hearing gun shot sound, PW9, Ashish and Bablu ran outside the factory because of fear. Further as per PW9, Mange Ram (owner of factory) made a complaint to the police through his mobile. PW9 again said that complaint was made by Mange Ram after he, Ashish and Bablu had taken Sunder to Batra Hospital.
7.1 PW9 further testified that police had reached at Batra hospital but police did not arrive at the spot in their presence. PW9 further testified that police had made inquiries from him at Batra hospital and from there, he (PW9), Ashish and Bablu and one Shashank @ Golu, who had been accompanying them, went to PS Neb Sarai and his (PW9's) signature was taken at PS and thereafter, they were allowed to go.
7.2 As PW9 was resiling from his earlier statement, he was cross-examined by Ld. Addl. PP after taking permission of the court. During his cross-examination by Ld. Addl. PP, upon being confronted with his statement Mark PW9/A, PW9 categorically denied to have made any such statement to police. He denied the suggestion that on 24.02.2013, at about 2:00 pm, he FIR No.59/13 State vs. Ashish Page No.12/66 alongwith Bablu @ Taka, Sunder and Ashish were in the basement of C-18, Khanpur Extension where a quarrel took place between accused Ashish and deceased Sunder on the issue of money or that accused Ashish had fired upon Sunder. He further denied the suggestion that he was deposing falsely. He stated that there had been no compromise between him and accused or his family. He stated further that he was not deposing in the court under any pressure or threat of anyone.
8. PW10/Shashank @ Golu is also a material witness as he allegedly drove the Honda City car to Batra hospital to shift the deceased to the hospital after the alleged incident. As per his version, he was a student of class 12 th on the date of incident, which occurred on 22nd or 23.02.2013. On that day, he alongwith his friend Bablu were going to the office of Mange at Khanpur in the car of Himanshu and he (PW10) dropped Bablu at the office of Mange and from there, PW10 went to his house at Khanpur in said car. He further deposed that after 2-3 hours, he came back to office of Mange Ram and while he was parking his car near a doctor's clinic, his friend Shane Alam @ Mota came running and told him that Sunder had sustained gun injuries. PW10 deposed further that he inquired from Shane Alam that how Sunder was hit by a bullet to which, Shane Alam told him that he (deceased) was having gun in his hand and got him hit with bullet of his own gun. He further deposed that he reversed the car and Sunder was brought by them to the car. Further as per PW10, he (PW10), Shane Alam, Bablu and Ashish took Sunder FIR No.59/13 State vs. Ashish Page No.13/66 to Batra hospital. Further that, police came to Batra Hospital and their signatures were taken on certain documents and thereafter, they were allowed to leave the hospital.
8.1 Upon being put a leading question on the point of injuries received by Sunder, PW10 categorically denied the suggestion put to him by Ld. Addl. PP that upon his asking as to how Sunder sustained injuries, Shane Alam had told him that Ashish had fired at Sunder. He further denied the suggestion that he was deposing falsely under fear and threat of accused or that he had been won over by the accused or that he was deposing falsely to save the accused.
9. PW11/ Vijay and PW12 Sanjay are the cousin brothers of deceased. As per their versions, on 28.02.2013, they had identified the dead body of Sunder at AIIMS hospital before postmortem and IO had recorded their identification statements vide Ex.PW11/A and Ex.PW12/A respectively. Further that, after postmortem, they were handed over the dead body of deceased Sunder vide delivery memo Ex.PW11/B.
10. PW14/Jitender @ Jeetu is the owner of the STD booth from where 100 number call was allegedly made. He deposed that in the year 2013, he was running STD booth on rent at C-5, Khanpur Extension, New Delhi, owned by Naveen @ Bablu. He further deposed that on 22.02.2013, after lunch time, someone made a call on 100 number from his STD booth having no.
FIR No.59/13 State vs. Ashish Page No.14/669654872711 but he (PW4) had not seen the face of the caller. He further deposed that thereafter, he had received several calls from PS Ambedkar Nagar, Sangam Vihar and Neb Sarai. Further that, on the same day, one police official came at his STD booth and verified about the call. Further that, he did not know anything else.
10.1 As PW14 was also resiling from his previous statement, he was cross-examined by Ld. Addl. PP after taking permission of the court. During his cross examination by Ld. Addl. PP, PW4 denied the suggestion that police had recorded his statement Mark PW14/A on 29.03.2013 or that he had stated in said statement that on 22.02.2013 at about 3pm, Sushil @ Mange Bhai, who was having a godown at C-18, Khanpur Extension, New Delhi had made a call from his STD booth no. 9654872711 or that he was deposing falsely in that regard.
11. PW16/Bablu @ Tanka is also an important witness of prosecution case as he is also cited as an eye witness of incident. As per his version, he knew accused Ashish as he was working as a Chowkidar at the godown of Sushil @ Mange Ram at Khanpur. He further deposed that Sushil Kumar was also known to him and he (PW16) used to visit his office where the godown was situated in the same building. PW16 further deposed that he did not remember the date, month and year however, about 2-3 years back, between 12:00 noon -2:00PM, he was present at the office of Sushil Kumar @ Mange and he alongwith Shashank @ Golu FIR No.59/13 State vs. Ashish Page No.15/66 were having lunch. Meanwhile, deceased Sunder also came there, who was in state of intoxication and was talking with the accused. Further as per PW16, at that time, Sunder was having pistol in his hand and he was showing the same to accused Ashish. Accidentally, a shot was fired and hit on the head of Sunder. Further as per PW16, on hearing the sound of firing, all of them came out from the godown. Someone informed the police. Police arrived at the spot. By that time, PW16 left the spot. He further deposed that he did not know anything else. Further that, police made inquiries from him and he narrated all the aforesaid facts to the police.
11.1 As PW16 also turned hostile and resiled from his previous statement, he was cross-examined by Ld. Addl. PP. During his cross-examination, PW16 could not tell if the address of the said godown, where the office of Sushil was situated, was C-18, Khanpur Extn., Delhi. PW16 did not remember that the date of incident was 22.02.2013.
11.2 Upon being confronted with his statement Ex.PW16/PX, from point A to A, B to B, C to C, D to D & E to E, PW16 denied the suggestion that he had told the police that on 22.02.2013 at about 1:30-2:00 PM, Sunder R/o Dakshinpuri came to the office of Sushil Kumar and asked him (PW16) to arrange cigarette for him and PW16 asked accused Ashish to bring cigarette; or that when Ashsih brought cigarette, Sunder filled ganja in the cigarette and asked him (PW16)and Ashish to FIR No.59/13 State vs. Ashish Page No.16/66 accompany him (Sunder) in the basement area of godown for smoking or that he (PW16) alongwith Sunder, Ashish and Shane Alam went to the basement of godown and smoke cigarette filled with ganja or that in the meanwhile an altercation took place between Sunder and Ashish on account of some money matter; or that Sunder started hurling abuses to Ashish or that at this Ashish took out one country made pistol and fired on Sunder; or that Sunder was taken to Batra Hospital in Honda city car of his (PW16's) friend Himanshu by Shane Alam and Sushil and he (PW16) followed them on motorcycle. He further denied the suggestion that he was deliberately not telling the true facts as he had been won over by accused. In his cross examination by defence counsel, PW16 admitted the suggestion that gunfire which hit the deceased, was accidentally fired by deceased Sunder himself.
Formal witnesses
12. PW3/Ct. Jaivir Singh was the member of Mobile Crime Team (South District) and was posted as Photographer. As per his version, on 22.02.2013, he alongwith ASI Ram Niwas (Finger Print Proficient) reached at the spot i.e. Basement of C-18, Khanpur Extension, New Delhi where police officials from PS Neb Sarai also met them. He further deposed that they had seen there two mattresses lying on the floor and one blood stained plastic katta (bag), one iron stool on which a plier, screwdriver and red colour shirt were lying. PW3 further deposed that thereafter, they reached in a lawn, outside emergency ward of Batra hospital FIR No.59/13 State vs. Ashish Page No.17/66 where he took photographs of a black colour Honda City car bearing no. DL-2FAM-0044 from diferent angles and saw that blood was also lying on the left side of rear seat and window of said car. PW3 proved the nine photographs Ex.PW3/A-1 to A-9 and its negative Ex.PW3/B-1 to B-9.
13. PW4/Ct. Sanjay is a formal witness. As per his version, on 13.03.2013, he was posted at PS Neb Sarai and on that day, he had obtained viscera and blood in gauze of deceased Sunder from MHC(M) vide RC No.42/21/13 and 44/21/13 alongwith two sample seals of Department of Forensic Medicine AIIMS, New Delhi and deposited the same to FSL, Rohini and handed over the copy of acknowledgement/receipt of the said exhibits to MHC(M). Further that, the exhibits remained intact and untampered till the same were in his possession.
14. PW7/Ct. Harish is also a formal witness. As per his version, on 27.02.2013, he was posted at PS Neb Sarai and on that day, at the instance of IO/SI Sanjay Lahri, he took three transparent plastic boxes from the MHC(M) vide RC No.35/21/13, one containing one pistol alongwith two live cartridges and another containing one used cartridge, both were duly sealed with the seal of SL and third plastic box was containing two live cartridges duly sealed with the seal of BHMRC alongwith one sample seal. PW7 further deposed that on the same day i.e. on 27.02.2013, he also took six pullandas with one sample seal of BHMRC vide RC No.34/21/13, three pullandas were sealed with FIR No.59/13 State vs. Ashish Page No.18/66 the seal of BHMRC, while remaining three were sealed with the seal of SL. PW7 further deposed that he deposited all the aforementioned exhibits/pullandas to the Biology Division and Ballistic Division of FSL Rohini and handed over copy of receipts/acknowledgments to MHC(M). Further that, till the exhibits remained in his possession, no one had tampered with them.
15. PW8/Ct. Udai Bhan deposed that on 25.02.2013, while he was on emergency duty at PS Neb Sarai with SI Sanjeev Lahri, he had accompanied SI Sanjeev Lahri to Batra Hospital in the morning hours and IO SI Lahri gave a written request to the doctor for recording statement of injured Sunder who was admitted there but, he was declared unfit for statement. PW8 further deposed that in the hospital, SI Sanjeev Lahri took into possession the blood sample of injured alongwith sample seal and seized the same vide seizure memo Ex.PW8/A and later on, he alongwith IO, went to D-206, Dakshinpuri where IO recorded statement of one Bablu @ Taka and thereafter, they returned to PS and got the blood sample taken from Batra hospital deposited in the malkhana.
16. PW13/Ct. Dinesh Kumar had also deposited exhibits to the FSL. As per his version, on 18.03.2013, while he was posted at PS Neb Sarai, he at the instance of IO/Inspector Neeraj Tokas, obtained one sealed pullanda i.e. a plastic jar containing lead (sikka) of bullet, recovered during postmortem of deceased, FIR No.59/13 State vs. Ashish Page No.19/66 duly sealed with the seal of 'AIIMS hospital' from MHC(M) vide RC No.47/21/13 and deposited the same to FSL, Rohini and handed over copy of receipt to MHC(M). Further that, pullanda remained intact till the same was in his possession and no one tampered with the same.
17. PW20/Kunji Lal deposed that on 22.02.2013, while he was posted at PS Neb Sarai as Duty Officer, at about 6.45 PM, on receipt of rukka from Ct. Prem Chand sent by SI Sanjeev Lahri, he got registered present FIR vide Ex.PW20/A and made his endorsement on original rukka vide Ex.PW20/B. Further that, after registration of FIR, copy of FIR and original rukka were handed over to Ct.Prem Chand who returned to the spot.
18. PW21/HC Satender Singh is also a formal witness and he proved DD No.22A as Ex.PW21/A. As per his version, said DD was registered on 22.02.2013 at 3.30pm at the information received from Police Control Room, South District regarding incident of firing at C-18, Khanpur Extension, Gali No.10.
19. PW22/HC Satish Kumar deposed that on 23.02.2013, while he was posted at PS Neb Sarai, on the direction IO/ SI Sanjeev Lahri, he had gone to MCD School No.2, Sector-4, Dr.Ambedkar Nagar, New Delhi with a request letter of SI Sanjeev Lahri to collect the documents regarding age proof of accused Ashish Kumar Gautam, S/o Shri Ganga Sharan, R/o 10/264, Dakshinpuri, New Delhi. He further deposed that he collected FIR No.59/13 State vs. Ashish Page No.20/66 copies of Admission Form, Admission Register, School Leaving Certificate of Ashish Kumar Gautam vide Ex.PW22/A, Ex.PW22/B and Ex.PW22/C respectively, duly attested by the Principal and handed over the same to the IO.
20. PW23/Dinesh Singh is Nodal officer from Vodafone Mobile. But he was only partly examined in the matter.
21. PW25/ASI Goverdhan Singh is another duty officer, who registered DD No.34A. As per his version on 27.02.2013, while he was posted at PS Neb Sarai as duty officer from 4pm to 12 midnight, at about 6.10pm, one call was received from Batra hospital regarding death of Sunder and he recorded the same vide DD No.34A dated 27.02.2013 Ex.PW25/A.
22. PW26/Sh. Dev Kumar is the Nodal Officer from Vodafone, who had brought the original CAF of mobile no. 9654872711 as Ex.PW26/A. As per said CAF, said mobile number was issued in the name of Kavita Haswani. PW26 He proved on record ID card of Kavita Haswani as Ex.PW26/B. He further deposed that CDR of mobile number was not available as the same was already destroyed after one year as per guidelines of DOT.
23. PW32/WCt. Poonam deposed that on 22.02.2013, she was posted as Constable at PHQ and on that day, at about 3:18 pm, she received a call and the caller said "ek ladke ko goli maar FIR No.59/13 State vs. Ashish Page No.21/66 dee hai" at C-18, Khanpur Extension, Gali no.10, and she recorded said information vide PCR CRDD No. 22FEB131310178 Ex.PW18/L. Material Police witnesses
24. PW15/Inspector Jarnail Singh deposed that on 28.02.2013, while he was posted as SHO at PS Neb Sarai, he conducted investigation in the present case. Most of the investigation was already completed by that time. Injured Sunder had expired and inquest proceedings were conducted by SI Sanjeev. However, he (PW15) got prepared the scaled site plan through Draftsman SI Mahesh at the instance of complainant Sushil @ Mange Ram. Further as per PW15, he recorded statement of SI Mahesh and supplementary statement of Sushil @ Mange Ram as well as statement of Jitender @ Jeetu who was running PCO near the place of incident. Further that, he also recorded statement of Sanjay and Vijay who had identified the dead body of deceased Sunder.
24.1 Further as per version of PW15, from 07.03.2013 to 20.03.2013, he went on leave and during that period investigation of this case was conducted by W/Inspector Neeraj Tokas. Further that, upon his return from leave, he prepared charge sheet and filed the same in the court.
25. PW17/Ct. Ravi Dutt was also part of investigation. As per his version, on 22.02.2013, while he was posted at PS Neb FIR No.59/13 State vs. Ashish Page No.22/66 Sarai and present in the beat area of Krishna Park, the duty officer instructed him to reach at Batra Hospital and he immediately reached there where SI Sanjeev Lehri met him. He further deposed that one black colour Honda City Car bearing no.DL 2 FAM0044 was lying parked near Emergency Gate of Batra Hospital and IO SI Sanjeev Lahri lifted sample of blood from said car and took both the car and blood sample into police possession and at that time, one public person namely Sushil(complainant), Ct. Prem and accused Ashish (correctly identified) were also present with SI Sanjeev Lehri in the hospital. The car was sent to PS with the help of a crane.
25.1 PW17 testified that on 27.02.2013, he again joined investigation of this case and reached at the spot. SI Sanjeev Lehri was also present there and he received an information regarding death of injured Sunder, who was admitted in the Batra Hospital. Upon said information, he (PW17) alongwith SI Sanjeev reached Batra hospital and collected medical documents, sent the dead body to AIIMS mortuary, got it preserved and PW17 was deputed to safeguard the dead body.
25.2 PW17 further testified that on 28.02.2013, he again joined investigation of the present case and was present at AIIMS mortuary. SI Sanjeev alongwith relatives of deceased came there and got the dead body identified through relatives of deceased. After postmortem, doctor had given one sealed parcel containing viscera of deceased, a transparent sealed bottle containing bullet FIR No.59/13 State vs. Ashish Page No.23/66 recovered from the body of deceased Sunder and both said parcels were taken into police possession vide seizure memo Ex.PW17/A & Ex.PW 17/B. Further as per PW17, blood sample of deceased was also given by the doctor in sealed parcel and same was also taken into police possession vide seizure memo Ex.PW17/C.
26. PW18/Ct. Prem Chand is also a member of investigation team. He deposed that on 22.02.2013, he was posted at PS Neb Sarai and was on emergency duty from 8am to 8pm. On that day, at about 3.30pm, while he alongwith SI Sanjeev were returning to police station after attending a call and reached at Baandh road, one Ct. Dhramender met them and handed over a DD to SI Sanjeev regarding an incident of shooting at C-18, Khanpur extension. PW18 further deposed that upon receipt of said DD, he alongwith SI Sanjeev and Ct. Dharmender reached at the spot where they came to know that injured had already been taken to Batra hospital. PW18 deposed further that they left Ct. Dharmender at the spot and he (PW18) alongwith SI Sanjeev went to Batra hospital where injured Sunder was admitted. Injured was however, declared unfit for statement by the doctor on the MLC. Further that, doctor had handed over one sealed parcel containing a cartridge and same was taken into police possession vide seizure memo Ex.PW18/A. 26.1 PW18 further testified that one person Sushil, who claimed himself to be the eye witness of the incident also met FIR No.59/13 State vs. Ashish Page No.24/66 them and his statement was recorded upon which rukka was prepared by SI Sanjeev and he (PW18) was handed over the same for registration of FIR and accordingly, he took the same to the PS Neb Sarai and got the FIR registered and after registration of FIR, he returned back to the spot and handed over copy of FIR and rukka to SI Sanjeev Lehri and at that time complainant was also present there at the spot. Thereafter, they alongwith complainant went to Batra hospital in search of accused Ashish and upon pointing out of complainant towards a person, who as per complainant had fired upon Sunder, they apprehended said person i.e. accused Ashish(correctly identified). Further that, upon casual search of accused, one pistol was recovered from his right side dub of pant and upon checking said pistol was found loaded with two live cartridges. The sketch of recovered pistol and cartridge was prepared vide Ex.PW18/C and both the pistol and cartridges were kept in plastic bag and sealed with the seal of SL and taken into police possession vide seizure memo Ex.PW18/D. PW18 further deposed that when they first time reached at the hospital, the parcel containing clothes of injured Sunder were also handed over by the doctor and same was also taken into police possession vide seizure memo Ex.PW18/E. 26.2 PW18 testified further that accused Ashish was arrested vide arrest memo Ex.PW18/F and he was taken outside to emergency ward of Batra hospital where Honda City car, in which injured Sunder was brought to the hospital, was parked and said car was seized vide seizure memo Ex.PW18/J. Further FIR No.59/13 State vs. Ashish Page No.25/66 that, crime team was called and photographer of Crime team took photographs of the said car and after the car was taken into possession, the same was sent to police station through Ct. Ravi Dutt. Further as per version of PW18, accused was interrogated and the facts disclosed by him, were recorded as his disclosure statement Ex.PW18/G and pursuant to his disclosure statement, accused led them to the place of incident C-18, Khanpur Extension and pointed out the place of incident and one used shell of the cartridge was also recovered from the place of incident at his instance. The sketch of shell was prepared vide Ex.PW18/H and same was sealed with the seal of SL and taken into police possession vide seizure memo Ex.PW18/I. Further that, blood stained shirt of the accused, which he was wearing at the time of his arrest was also taken into police possession vide seizure memo Ex.PW18/K. Further that, accused was sent to lockup after his medical examination. Further that on 27.02.2013 he again joined the investigation of this case and on the direction of IO, he went to police control room with request letter Mark PW18/B in respect of DD No.22A dated 22.02.2013 and collected PCR form Ex.PW18/L and handed over the same to the IO. During his examination, PW18 correctly identified the pistol and two used cartridges as Ex.P18/P1, two live cartridges as Ex.P18/P2.
27. PW19/Ct.Dharmender deposed that on 22.02.2013, while he was posted at PS Neb Sarai, duty officer handed over him DD No.22A with the instructions to hand over the same to SI Sanjeev Lehri, who had gone to attend another call. He further FIR No.59/13 State vs. Ashish Page No.26/66 deposed that SI Sanjeev Lehri alongwith Ct. Prem met him on Baandh Road and he handed over said DD to SI Sanjeev Lehri. Thereafter, he alongwith SI Sanjeev Lehri and Ct. Prem reached at C-18, Khanpur Extension where they came to know that one person had sustained bullet injury and he had been taken to Batra hospital, MB Road. Further that, he was left at the spot to guard the spot and SI Sanjeev alongwith Ct.Prem left the spot for Batra hospital. Further as per version of PW19, after sometime, SI Sanjeev returned to the spot alongwith one public person i.e. complainant Sushil Kumar and at his instance, SI Sanjeev prepared site plan. PW19 testified that in the meanwhile, Ct. Prem returned to the spot and handed over the copy of FIR and original rukka to SI Sanjeev. He further testified that thereafter, SI Sanjeev alongwith Ct. Prem and complainant Sushil again left the spot for Batra hospital. Further that after sometime, SI Sanjeev Lehri again returned to the spot alongwith accused Ashish (correctly identified) who got recovered one used cartridge from the spot and the same was taken into police possession by the IO SI Sanjeev Lehri.
28. PW24/ASI Ram Niwas is the member of Mobile Crime Team South District. As per his version, on 22.02.2013, he was Finger Print Proficient in the team. He further deposed that on that day, upon receipt of a call from Control Room, he alongwith photographer Ct. Jaibir visited the spot at C-18, Khanpur Extension in the basement where as per directions of IO, photographer had taken several photographs. PW24 further FIR No.59/13 State vs. Ashish Page No.27/66 deposed that he alongwith Ct. Jaibir and IO had also visited at the place near Batra hospital where one vehicle no.DL-2F-AM-0044 black colour Honda City was found stationed and it was also examined and photographed. Further that, no chance prints could be traced at the spot or on said vehicle.
29. PW28/Sh. Pramod Singh Kushwaha deposed that on 17.09.2013, while he was posted as Addl. DCP South District, he received the case file containing certified copies of documents prepared during investigation and police file pertaining to the present case bearing FIR No.59/2013 u/s 302 IPC and 25/27/54 Arms Act of PS Neb Sarai New Delhi for sanction u/s 39 of Arms Act for prosecution of accused Ashish. He further deposed that he examined the documents regarding recovery of firearm and two live cartridges from the possession of accused Ashish and one used cartridge at the instance of accused Ashish and also perused the FSL report in respect of the said firearm and cartridges and also examined the statement of recovery witnesses and other material on record. He further deposed that on perusal of the same, he was satisfied and accorded sanction u/s 39 of Arms Act vide Ex.PW28/A for the prosecution of accused Ashish.
30. PW29/Inspector Mahesh Kumar deposed that on 21.03.2013, while he was posted as SI Draftsman at Crime Branch PHQ, at the request of Inspector Jarnail Singh, SHO PS Neb Sarai, he reached at PS. Neb Sarai and from there he FIR No.59/13 State vs. Ashish Page No.28/66 alongwith Inspector Jarnail Singh with other staf reached at place of incident i.e. basement of C-18, Khanpur Extension, New Delhi where complainant Sushil Kumar @ Mange Ram met them on the spot. He further deposed that he took rough notes and measurements at the instance of complainant Sushil Kumar @ Mange Ram. He further deposed that on 05.04.2013, on the basis of those rough notes and measurements, he prepared scaled site Plan Ex.PW29/A and handed over the same to IO. Further that, the rough notes were destroyed after preparation of scaled site plan.
31. PW30/SI Sanjeev Lehri is the IO of the case. As per his version, on 22.02.2013 he alongwith Ct. Prem Chand was on emergency duty from 08.00 a.m. to 08.00 p.m. at PS. Neb Sarai. He further deposed that on said date, while they were returning after attending another call and were present on pushta/bandh road, Ct. Dharmender met them and handed over him DD No.22A Ex.PW21/A regarding gunshot incident at C-18, Khanpur Extension. On receipt of said DD, he alongwith Ct. Prem Chand and Ct. Dharmender reached at the place of incident, where upon inquiry, they came to know that injured had been taken to the Batra hospital. Further that, after deputing Ct. Dharmender at the place of incident to guard the place of incident, he alongwith Ct. Prem Chand went to Batra Hospital and collected MLC No. 9162/30 of Injured Sunder, who was admitted there with history of gunshot injury, injured was however was not fit for statement as per the doctor. PW18 deposed further that examining doctor FIR No.59/13 State vs. Ashish Page No.29/66 handed over him two sealed parcels containing clothes of injured and two live cartridges allegedly recovered from the clothes of injured Sunder and same were taken into police possession vide seizure memo Ex.PW18/E and PW18/A respectively. PW30 further deposed that on an inquiry, they came to know that injured was brought to hospital in a Honda City car parked outside the emergency gate of hospital and on inspection of the said car, PW30 found blood spots on the rear seat of the car. He further deposed that one person namely Sushil Kumar @ Mange Ram, who claimed himself to be an eyewitness of the incident, was also present in the hospital and he (PW30)recorded his statement Ex.PW6/A upon which he prepared the rukka Ex.PW30/A and handed over the same to Ct. Prem Chand for the registration of the FIR. PW18 deposed further that he also made a request to duty officer to send crime team at the spot and to send a crane to Batra hospital for towing said Honda City car to the police station.
31.1 PW30 further testified that on his request, Ct. Ravi Dutt reached at Batra Hospital and he was deputed to safeguard the Honda City car. He further testified that thereafter, he alongwith complainant Sushil Kumar again reached at the spot. Crime team already reached at the spot by that time. Further that, at the instance of complainant, the scene of crime was inspected by crime team. Further that, Ct. Prem Chand also reached at the spot alongwith copy of FIR and original rukka and handed over the same to him. Further as per PW30, at the FIR No.59/13 State vs. Ashish Page No.30/66 instance of complainant, he prepared the site plan Ex.PW30/B. Further that, one blood stained plastic sack (plastic bag) was lying at the spot and same was taken into police possession vide seizure memo Ex.PW30/C, after sealing the same in a parcel with the seal of SL. Thereafter, he sent the crime team to hospital for the inspection of the car in which blood stains were lying on the rear seat. Thereafter, PW30 alongwith complainant and Ct. Prem Chand also reached the hospital and when they were near the main entry gate of the hospital, complainant Sushil pointed towards a boy, who was going out from the hospital i.e. accused (correctly identified).
31.2 PW30 deposed further that upon causal search of the accused, one country-made pistol was recovered from his possession and on checking the same, it was found loaded with two live cartridges. The sketch of the pistol and cartridges was prepared vide Ex.PW18/C and same was sealed in a parcel with the seal of SL and taken into police possession vide seizure memo Ex.PW18/D. PW30 deposed further that accused was interrogated and facts disclosed by him were recorded as his disclosure statement Ex.PW18/G and he was arrested vide arrest memo Ex.PW18/F and his personal search was also conducted vide search memo Ex.PW30/D. PW30 deposed further that they noticed blood stains on the shirt of accused and same was taken into police possession vide seizure memo Ex.PW18/K. Further that, thereafter, they alongwith accused reached the place where said Honda City Car was parked and the blood lying on the rear FIR No.59/13 State vs. Ashish Page No.31/66 seat was lifted with the help of gauze and same was taken into police possession vide seizure memo Ex.PW30/E. Further that, said car was also inspected by the crime team and same was taken into police possession vide seizure memo Ex.PW18/J. He further testified that he instructed Ct. Ravi Dutt to shift the car to PS. Neb Sarai. Further that, thereafter, he (PW30) alongwith Ct. Prem Chand and accused Ashish reached at the spot where at the instance of accused, used cartridge (empty shell) was lifted from the basement, where incident had taken place and sketch of same was prepared vide Ex.PW18/H and same was taken into police possession vide seizure memo Ex.PW18/I. Further that, thereafter, accused was taken to Police station and sent to lock up after his medical examination.
31.3 Further as per PW30, on 24.02.2013, he traced the eye witness of the incident namely Shahne Alam @ Mota and Shashank @ Golu and recorded their statements u/s 161 Cr.P.C. Further that, on 25.02.2013, he alongwith Ct. Uday Bhan reached at Batra Hospital and collected blood sample of injured Sunder vide seizure memo Ex.PW8/A. Thereafter, they went to D-206, Madangir where they met eye witness namely Bablu @ Tanka, he was examined and his statement u/s 161 Cr.P.C. was recorded. Further that, he collected PCR form through Ct. Prem Chand on 27.02.2013.
31.4 PW30 stated that on 27.02.2013, he with Ct. Harish took the case exhibits to FSL Rohini and deposited the same with FIR No.59/13 State vs. Ashish Page No.32/66 FSL. He further testified that he reached at the spot for the purpose of investigation and joined Ct. Ravi Dutt beat constable of the area and in the meanwhile, he received an information regarding death of injured Sunder, who was admitted in the hospital. On receipt of this information, he (PW30) alongwith Ct. Ravi Dutt reached at Batra hospital and sent the dead body to AIIMS hospital through Ct.Ravi Dutt alongwith an application to preserve the dead body and Ct. Ravi Dutt was deputed to guard the dead body lying at mortuary. Further that, thereafter, he returned to the police station and recorded statement of Ct. Harish and section 302 IPC was added.
31.5 Further as per PW30, on 28.02.2013, he reached at AIIMS hospital and collected the inquest proceedings, filled up form no.25.35 (1) (b) Ex.PW30/G and moved an application Ex.PW30/H for conducting postmortem on the dead body. Further that, statement of deceased's brothers namely Sanjay and Vijay were also recorded. Further that, after the postmortem, doctor handed over him fired bullet recovered from the body of deceased and viscera of deceased alongwith sample seal and same were seized vide seizure memo Ex.PW17/A and Ex.PW17/B. Further that, after the postmortem the dead body was handed over to the relatives. PW30 then returned to police station and deposited the aforesaid exhibits with MHCM and recorded statement of Ct. Ravi Dutt. Thereafter, investigation of this case was assigned to Inspector Jarnail Singh. PW30 correctly identified accused's shirt of white colour and blue check print as FIR No.59/13 State vs. Ashish Page No.33/66 Ex.PW30/P1 and pistol including two cartridges as Ex.PW18/P1 recovered from the possession of accused and fired bullet Ex.PW18/P2 recovered from the body of deceased.
32. PW31/Insp. Neeraj Tokas deposes that on 08.03.2013, while he was posted as Inspector Investigation at PS Neb Sarai, he joined the investigation of present case FIR as main IO of the case was on leave. During course of investigation, PW31 collected postmortem report of deceased Sunder and got deposited the viscera seized by main IO in FSL Rohini through Ct. Sanjay on 13.03.2013. On 18.03.2013, he got deposited bullet/cartridge which was extracted from the body of deceased by the postmortem team with FSL Rohini through Ct. Dinesh. He also recorded statement of Ct. Sanjay, Ct. Dinesh and MHC (M) HC Narbir u/s 161 Cr.PC. Further that, in the meanwhile, main IO joined back his duty and he handed over the case file to the main IO for further investigation.
Medical Expert witnesses
33. PW2/Dr. Shashank Pooniya is the Sr. Resident, AIIMS, who conducted postmortem on the body of deceased Sunder, vide PM report No. Ex.PW2/A. As per his version, during postmortem, the deceased was having surgically stitched-curved wound of length 29 cm present over his right side of scalp, extending from inner margin of left eyebrow to tragus of right ear, passing through frontal, right parietal and right temporal bone. Another stitched wound of length 4 cm was present FIR No.59/13 State vs. Ashish Page No.34/66 vertically over left side of frontal bone. On dissection difuse sub- scalp hematoma was present. Right fronto-parieto-temporal craniotomy of size 11 cm x 8 cm was present. Sub-dural and sub- arachnoid hemorrhage was present over right cerebral hemisphera. On dissection of brain, bullet of length 1 cm and 0.5 cm x 0.8 cm thickness was found embedded in right occipital cortex. Intra-cerebral hemorrhage was present in right cerebral hemisphera. A bony defect of size 1.2 x 0.8 cm was present in frontal bone, 2 cm above nasion. On further examination, pleural cavities were found to contain about 500 ml of straw colour fluid. Pus was present in lungs bilaterally. Peritoneal cavities were found to contain about 1000 ml of straw colour fluid. Pus was also present in Kidneys.
33.1 PW2 further deposed that as per brief history, there was firearm injury on 22.02.2013 and deceased was admitted in Batra hospital and died on 27.02.2013. The time since death was about 18 hours. He further deposed that the cause of death in this case was shock due to septicemia, consequent upon abovementioned circumstances. However, viscera was preserved to rule out any intoxication. He further deposed that recovered bullet was sealed and handed over to the IO alongwith sample seal. Further that, IO was also handed over viscera, blood in gauze and inquest papers.
34. PW5/Dr. Vikram Dua is the Neurosurgeon, Batra Hospital. As per his version, the patient Sunder s/o Rambir, aged FIR No.59/13 State vs. Ashish Page No.35/66 28 years, male was admitted at Batra hospital under his care on 22.02.2013 vide admission no.13/11949. Patient was admitted with a gun shot injury with severe head injury and was operated for the same. PW5 further deposed that he (injured) expired on 27.02.2013. PW5 proved the death summary of said patient (deceased) as Ex.PW5/A.
35. PW27/Dr. Amiya Kumar Verma, Deputy Medical Superintendent, Batra Hospital and Medical Research Centre, 1 Tughlakabad Institutional Area, New Delhi, deposed that MLC No. 9162 dated 22.02.2013 Ex.PW27/A of Mr. Sunder son of Late Rambir, aged 28 years was prepared by Dr. Rubeena, who was working at Batra hospital as CMO but after she left the hospital, her whereabouts were not known. She further deposed that Dr. Rubeena was working under her supervision as CMO and she had seen her writing and signing in her (PW27) official capacity. She further deposed that as per MLC, deceased Sunder was admitted in the hospital with the alleged history of gun shot injury and according to informant Mange Ram, patient was allegedly shot at his head by his friend Ashish with a pistol on 22.02.2013 at 3:00 pm at C-18, Gali No.10, Khanpur Extension and he was brought to casualty at 3.30pm. Further that, two live cartridges were found in patient's pocket. PW27 further deposed that Dr. Rubeena had opined nature of injuries as dangerous at point A on the MLC. She further deposed that Dr. Rubeena had also informed to the police vide form Ex.PW27/B. FIR No.59/13 State vs. Ashish Page No.36/66 E) Expert witnesses from FSL
36. PW33/Dr. Adesh Kumar, the then Sr. Scientific Officer, FSL, Rohini has deposed that on 13.03.2013, one sealed corrugated box was received in the office and marked to him for chemical examination. The parcel was properly sealed and intact. He had examined the content of the box. On chemical examination and TLC examination, no metalic poison, Ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizer and pesticides could be detected. After examination, remains of the exhibits were sealed with the seal of AY, FSL, DELHI. His examination report is Ex.PW33/A.
37. PW34/Sh.Indresh Kumar Mishra, the then Sr. Scientific Officer, Biology at FSL, Rohini has deposed that on 27.02.2013, six sealed parcels were received in the office and marked to him for biological and serological examination. The parcels were properly sealed and intact. He had examined the content of the parcels. On biological examination, blood was detected on Ex.1, 2, 3a, 3b, 3c, 3d, 4, 5 and 6. Human Blood of B group was detected as Ex.1, 3a and 3b. His examination report is Ex.PW34/A and serological report is Ex.PW34/B, both reports bear his signature at Point A. 37.1 PW34 deposed further that on 13.03.2013, one sealed parcel was received in the office marked to him for biological and serological examination. The parcel was properly sealed and intact. He had examined the content of the parcel. On FIR No.59/13 State vs. Ashish Page No.37/66 biological examination, blood was detected on Ex.1B. His biological examination report is Ex.PW34/C and serological examination report is Ex.PW34/D bearing his signature at point A.
38. PW35/Sh. Puneet Puri, the then Sr. Scientific officer, Ballistics, Rohini has deposed that on 27.02.2013, three sealed parcels, parcel no.1 and 3 with seal of SL and parcel no.2 sealed with the seal of BHMRC were received in FSL through constable Harish Kumar and marked to him for examination. The seals on the parcels were intact and as per the specimen seals provided with the FSL form.
38.1 PW35 deposed further that on opening the first parcel, one improvised pistol of 7.65 mm bore and two 7.65 mm cartridges were taken out and marked as Ex.F1, A1 and A2 respectively by him. On opening the second parcel, two .32 inch cartridges were taken out and marked as Ex. A3 and A4 respectively. On opening the third parcel, one 7.65 mm cartridge case was taken out and marked as Ex.EC1.
38.2 PW35 deposed further that on examination, he found that the improvised pistol marked Ex.F1 was in working order. Test fire was conducted successfully by using the cartridges marked A1 and A2, the test fired cartridge cases were marked as TC1, TC2 and the two recovered test fired bullets were marked as TB1 and TB2. The .32 inch cartridge marked Ex. A3 and A4 were live ones. The cartridge case marked Ex.EC1 was a fired empty FIR No.59/13 State vs. Ashish Page No.38/66 cartridge and had been fired through the improvised pistol marked Ex.F1 as the individual characteristics of firing pin marks present on evidence cartridge case marked Ex.EC1 and on test fired cartridge cases marked TC1 and TC2 were found identical when examined under the comparison microscope. The improvised pistol marked Ex.F1 was a firearm, the cartridges marked Ex.A1 to A4 and cartridge case marked Ex.EC1 were ammunition as defined in Arms Act, 1959. The exhibits were then re-sealed with the seal of TPFSL, Delhi. His detailed report is Ex.PW35/A bearing his signature at point A on both sides of his report no.2013/F-1542 dated 31.05.2013.
38.3 PW35 deposed further that on 18.03.2013, one sealed parcel sealed with the seal of DEPARTMENT OF FORENSIC MEDICINE, AIIMS, NEW DELHI was received in FSL through Const. Dinesh Kumar and same was marked to him for examination. The seal on the parcel was intact and as per the specimen seal provided with the FSL form.
38.4 PW35 deposed further that on opening the parcel, one deformed bullet was taken out and marked as Ex.EB1.On examination, he found that the deformed bullet marked Ex.EB1 was corresponding to the bullet of 7.65 MM cartridge and no opinion could be given whether it has been discharged through the improvised pistol 7.65 mm bore marked Ex.F1 in case FSL No.2013/F-1542, FIR no.59/13, PS Neb Sarai as the individual characteristics of striations present on evidence deformed bullet FIR No.59/13 State vs. Ashish Page No.39/66 were found insufficient for comparison and opinion. The bullet marked Ex.EB1 was an ammunition as defined in Arms Act, 1959. The exhibit was then re-sealed with the Seal of PPFSL, Delhi. His detailed report bearing no.FLS2013/F-2138 dated 19.06.2013 is Ex.PW35/B bearing his signature on both sides of his report at Point A. Statement of accused
39. After completion of evidence, statement of accused was recorded u/s 313 Cr.PC. Accused pleaded his innocence by stating that he has been falsely implicated in this case and no recoveries were efected from his possession or at his instance. He further stated that since he was also present at the basement, he only assisted other witnesses to take the deceased to the hospital and he was arrested by the police in the hospital and a pistol was also planted on him. Accused did not wish to lead any evidence in his defence, hence case was adjourned for arguments.
Defence Arguments
40. Sh. Aditya Wadhwa, Ld. Defence Counsel vehemently argued that prosecution has miserably failed to prove the charges against the accused as all the eye witnesses examined in the case turned hostile and did not support the prosecution case. Even in the cross examination, which Ld. Addl. PP did after seeking permission from the court, he could not elicit anything from the eye witnesses in support of the prosecution case. It is FIR No.59/13 State vs. Ashish Page No.40/66 further argued that as per the prosecution case, the accused had fired upon the deceased in the presence of PW9 Shane Alam @ Mota, PW16 Bablu @ Tankha and PW6 Sushil @ Mange Ram in the basement of C-18, Khanpur Extension belonging to complainant PW6 Sushil @ Mange Ram, who at that time was present at the ground floor of said address and after hearing the abuses from the basement, he reached the spot in the basement. However, neither the complainant nor the other two eye witnesses supported the prosecution case as they have come up with entirely diferent versions supporting the defence plea that the deceased, who was BC of the area had accidentally got himself injured with the gun shot while he was checking the gun. It was further submitted that even the document Ex.PW27/B which was a police intimation form also mentioned the history of gun shot injury sustained by the patient at Tigri on 22.02.2013 at 3pm when he and his friend were checking the gun and bullet was fired in his head.
40.1 It was further argued by the defence counsel that the country made pistol and the cartridge which was allegedly recovered from the accused at the time of his arrest were also planted on the accused by the police in order to implicate him in this case and same is also evident from the fact that no public witness was joined at the time of seizure of the pistol which was seized vide seizure memo Ex.PW18/D whereas, the arrest memo of the accused Ex.PW18/F and his personal search memo Ex.PW30/D which were prepared contemporaneously at the FIR No.59/13 State vs. Ashish Page No.41/66 hospital were prepared in the presence of complainant Sushil @ Mange Ram and both said memos bear his signature. Counsel further argued that when the IO was confronted with this fact in his cross examination, he came up with evasive reply saying that there was no specific reason for not taking the signature of complainant Sushil on the seizure memo of the gun and perhaps it slipped his mind.
40.2 It was further argued that the only incriminating evidence which has come up against the accused was the FSL report Ex.PW35/A wherein, the cartridge case Ex.EC1 which was allegedly recovered from the spot at the instance of the accused got matched with the improvised pistol Mark F1 allegedly recovered from the possession of the accused. Counsel further argued that the case of the prosecution is however, shrouded with serious doubts both with regard to the recovery of aforementioned pistol Mark F1 and cartridge case Ex.EC1 in as much the complainant was not joined at the time of recovery of aforementioned pistol as he was not cited as a witness to the seizure memo of said pistol despite his availability with the police at the time of alleged recovery of said pistol from the accused which is evident from the fact that arrest memo and the personal search memo of the accused which are contemporary documents prepared at the same time when the alleged recovery of pistol was efected from the accused, do have the signature of the complainant as the attesting witness. Whereas, no such signature of the complainant were taken on the seizure memo of FIR No.59/13 State vs. Ashish Page No.42/66 the pistol which itself shows that pistol was planted on the accused subsequently, just to implicate him in the present case.
40.3 It is further argued that recovery of cartridge case Ex.EC1 is also not free from doubt for the reason that same was allegedly recovered by the police at the instance of the accused after he was arrested in the hospital at the instance of the complainant. Whereas, prior to said alleged visit of the accused to the spot with the police after his arrest, the spot was already visited by the IO with other police staf and was minutely searched. It is further argued that not only the IO but even the crime team had inspected the place of incident much prior to the time when accused allegedly led the police team to the place of occurrence and pointed out the spot and also allegedly got recovered the aforementioned cartridge case Ex.EC1. Counsel vehemently argued that it was highly unlikely that the cartridge case would have escaped the eyes of the IO as well as the members of the crime team when they visited and searched the spot prior to the arrest of the accused.
Arguments by Ld. Addl. PP
41. Ld. Addl. PP Sh. Pravin Rahul submitted that although the eye witnesses have not supported the prosecution case with regard to involvement of accused in the murder of deceased but, there is other incriminating evidence in the form of forensic report which is sufficient to prove the prosecution case against the accused. Ld. Prosecutor argued that as per the ballistic report FIR No.59/13 State vs. Ashish Page No.43/66 Ex.PW35/A which has been duly proved on record by the ballistic expert PW35, the pistol Ex.F-1 recovered from the possession of the accused got matched with the empty cartridges Ex.EC-1 recovered from the spot. It is further stated that even the ofence of section 25 Arms Act has been duly proved against the accused because, both the recovery witnesses have consistently deposed in their examination before the court and even the sanction Ex.PW28/A of section 39 Arms Act has been duly proved on record by witness DCP Pramod Singh/PW28 who had granted the sanction on the basis of ballistic report and statement of recovery witnesses.
Court discussion
42. I have given my thoughtful consideration to the submission raised from both the sides and also perused the entire record very carefully. As already noted above accused faced trial for the ofences of section 302 IPC, 25/27 Arms Act. To prove said charges against the accused, the prosecution has relied upon both the direct evidence as well as the circumstantial evidence. Direct evidence, which the prosecution has led is that of eye witnesses namely Sushil @ Mange Ram, Mohd. Shane Alam @ Mota and Bablu @ Tanka and circumstantial evidence on which reliance has been placed is the ballistic report Ex.PW35/A and the alleged recoveries efected at the instance of accused i.e. of a country made pistol allegedly used in the ofence and that of the cartridge case of the bullet allegedly fired on the deceased. As per prosecution case, accused Ashish was arrested FIR No.59/13 State vs. Ashish Page No.44/66 from the hospital at the instance of complainant Sushil @ Mange Ram within few hours on the very same date of alleged incident and from his possession, one country made pistol was recovered and later on at the instance of accused, one cartridge case was also recovered from the spot and as per the ballistic report said cartridge case was of the bullet fired from said pistol allegedly recovered from the possession of accused.
43 Let us now first advert to the testimony of the eye witnesses. PW6 is the complainant on whose statement Ex.PW6/A, the FIR was lodged on 22.02.2013. In his statement Ex.PW6/A, he narrated the incident to the efect that Ashish was a caretaker in his godown at C-18, Khanpur Extension, Gali no.10 and on 22.02.2013 at about 3pm, when complainant was having meal at his office at the ground floor, he heard the sound of abuses from the basement. On hearing said abuses, he left his meal and rushed to the basement where he saw accused Ashish standing with a pistol in his hand and he had pointed out said pistol towards deceased Sunder who was sitting on the floor with two more boys namely Bablu (PW16) and Mota (PW9) and in the meantime Ashish fired bullet on Sunder's forehead and as a result Sunder fell down on the ground. Thereafter, complainant made a call to police at 100 number and took Sunder to Batra hospital with the help of PW9 Mota in his (mota's) Honda City car.
44. Surprisingly, when complainant was examined in the court, he turned completely hostile because, as per his FIR No.59/13 State vs. Ashish Page No.45/66 deposition, by the time he reached the spot, the firing had already taken. As per his examination in chief, when he was having meal at the ground floor, he heard the sound of blast/ gunshot and after hearing it, when he went to the basement, he saw one person lying on the floor and one pistol like weapon was lying near him. He made a 100 call from nearby STD booth and when he returned back, accused Ashish had already taken that person to hospital.
45. As is clear from above version, PW6 nowhere claimed to have himself witnessed the incident of firing, as narrated in Ex.PW1/A. In his examination, the complainant does not even talked about the presence of any other person at the spot when he first saw the deceased in injured condition. He also alleged that his signatures were taken by police on plain papers. Even in his cross examination by Ld. Addl. PP, PW6 did not support the prosecution case and categorically denied to have stated anything as narrated in Ex.PW6/A or in his supplementary statement Mark PW6/A, to police at any point of time.
46. PW1 categorically denied having seen accused Ashish with the pistol in the basement or having seen him firing gun shot at deceased or having seen Bablu or Mota with deceased sitting on the floor of basement. He also categorically denied having stated to police in his supplementary statement that accused Ashish was arrested at his instance or having told police that Ashish was the same person who had shot deceased Sunder.
FIR No.59/13 State vs. Ashish Page No.46/66Here, I would like to mention that Ld. Addl. PP though confronted PW6 to his statement Ex.PW6/A and Mark PW6/A and its contents specifically by asking that he had stated said facts to police in said statements, the accused however, categorically denied the same. But, the witness was not specifically confronted with the factual position narrated in said statements i.e. that he had seen the accused with the pistol in his hand in the basement or his having fired upon deceased with the pistol etc. PW6 has not supported the prosecution case even with regard to recovery of pistol Ex.P18/P1, or the cartridge case Ex.P18/P2, as he categorically denied that recovery was efected in his presence at his instance.
47. Perusal of testimony of other two eye witnesses namely Shane Alam @ Mota and Bablu @ Tanka examined as PW9 and Ex.P16, also shows that they also turned hostile and came up with entirely diferent stories, which is neither in consonance with their statements recorded u/sec 161 Cr.PC, nor even there is any consistency even in their versions recorded in the court. PW9 Shane Alam, in his examination deposed that on the date of incident i.e. on 22.02.2013, at about 3-3.15pm, when he (PW9), Ashish and Bablu were taking meal, boy namely Sunder also arrived. Sunder was a miscreant as he used to drink. Sunder took out his weapon, may be a gun and fired. After hearing the gun shot sound, he (PW9), Ashish and Bablu got frightened and ran outside the factory. Further as per his version, owner of factory Mange Ram made a complaint to police FIR No.59/13 State vs. Ashish Page No.47/66 from his mobile after they took Sunder to Batra hospital. Police reached Batra hospital and made inquiries from him. Further he deposed that from Batra hospital, he (PW6), Ashish, Bablu and one Shashank@ Golu, who had accompanied them, went to police station Neb Sarai where his signatures were taken and they were allowed to leave.
48. It is important to note that as per prosecution story, complainant had also accompanied the deceased in Honda city car to shift him to Batra hospital and at that time, Shashank @ Golu (PW10) had driven said car, while Mota (PW9) was sitting on seat adjoining to driver's seat, he (PW9) though alighted from the car at the gate of Batra hospital to arrange money. But, neither complainant's own version is on the said lines nor even PW9 has deposed on these lines. As per PW6, it was Ashish, who took deceased to hospital. While PW9 says that not only accused Ashish but he (PW9), Bablu and Shashank @ Golu had also accompanied deceased to hospital. PW9 also did not talk about presence of complainant with them while they shifted the deceased to Batra hospital in Honda City car. Further, as per PW9, it was deceased, who took out the gun and fired. The witness PW9 is however, silent about the fact as towards whom the deceased allegedly fired i.e. whether gun was fired in air or he fired towards accused Ashish or towards the witness PW9 or Bablu (PW16). As such, even PW9 turned hostile and did not attribute any role to accused in the alleged incident of firing.
FIR No.59/13 State vs. Ashish Page No.48/6649. Even in his cross-examination, Ld. Addl.PP was not able to elicit anything to incriminate the accused. The witness PW9 categorically denied to have stated anything as contained in his statement recorded u/sec.161 Cr.PC, despite being confronted with the contents of same specifically. He categorically denied that any quarrel occurred between accused and deceased on the issue of money or that it was Ashish (accused) who fired upon deceased Sunder. He also denied that he had deposed in the court under any pressure or threat of anyone.
50. PW16 Bablu @ Tanka is another eye witness, who was also present in the basement at the time of alleged incident. I have carefully perused his examination. However, his version is also totally diferent from the prosecution story set out in the chargesheet. His version is not only diferent from his statement u/s 161 Cr.PC but, also very diferent from the version of other eye witnesses namely, complainant Sushil @ Mange Ram (PW6) or Shane Alam (PW9). As per his (PW16) version, incident relates to 2-3 years back from date of his examination and had occurred between 12 noon -2pm. On that day, he was present at the office of Sushil @ Mange Ram and he (PW16) was having lunch with Shashank @ Golu and in the meantime, deceased Sunder came in the state of intoxication and he (deceased) was having pistol in his hand. Deceased was talking to accused Ashish, who was working as chowkidar in the godown of Sushil @ Mange Ram. Further as per PW16, deceased was showing said pistol to Ashish FIR No.59/13 State vs. Ashish Page No.49/66 and accidentally shot was fired and hit on the head of Sunder. On hearing sound of firing, they all came out from godown and someone informed police but, before police arrived at the spot, he had already left from there. Later on, police made inquiries from him and he narrated the above facts to police.
51. Surprisingly, said witness PW16 did not even talk about the presence of Shane Alam @ Mota, who as per complainant's version was also present with PW16 in the basement. There is no mention of presence of Shashank @ Golu at the time of alleged incident either in the testimony of complainant Sushil (PW6) or Shane Alam @ Mota (PW9) nor even in their statements u/sec.161 Cr.PC or complaint Ex.PW6/A. As per the chargesheet, Shashank @ Golu had driven the car wherein, deceased was shifted to Batra hospital but, at the time of alleged incident only Bablu & Shane Alam were present with deceased and accused and Shashank @ Golu had only accompanied them to hospital as it was, he (Shashank Golu PW10), who had driven the Honda City car in which deceased was taken to Batra hospital.
52. In view of above, even PW16 turned hostile and did not support the prosecution case. Even in his cross-examination by Ld. Prosecutor as he categorically denied the suggestion that on the date of incident, he was present with Shane Alam @ Mota (PW9), deceased and accused in the basement of Godown or that an altercation took place between deceased and accused on FIR No.59/13 State vs. Ashish Page No.50/66 some money matter or at that accused took out pistol and fired on deceased Sunder or that deceased was taken to Batra hospital in Honda City car of his friend Himanshu by Shane Alam @ Mota and complainant Sushil or that he (PW16) had followed them on motorcycle. He categorically denied that he was deliberately not telling the true facts.
53. PW10/ Shashank @ Golu is also one of the material witnesses, as it was he who allegedly shifted the deceased to Batra hospital in the Honda City car. But, he also did not support the prosecution case as he also did not attribute the gun shot injuries sustained by deceased, upon the accused. As per his version, on the date of incident, he had dropped his friend Bablu (PW16) to the office of Mange at Khanpur and thereafter, he went to his house at Khanpur in said car and after 2-3 houses, he came back to the office of Mange Ram and while, he was parking his car near a doctor's clinic, his friend Shane Alam (Mota) came running and told him that Sunder had sustained gunshot injuries as he (deceased) got him hit with the bullet of his own gun. Further as per PW10, Sunder was brought by them to the car and he (PW10), Shane Alam, Bablu and Ashish took deceased to Batra hospital in said car.
54. As PW10 also resiled from his previous statement, he was also cross examined by Ld. Prosecutor but, even in his cross examination, PW10 did not utter a word to support the charge against accused. He denied the suggestion put to him by Ld. FIR No.59/13 State vs. Ashish Page No.51/66 Prosecutor that Shane Alam had told him that Ashish i.e. the accused had fired at deceased Sunder. He denied that he had been won over or he was deposing falsely to save the accused.
55. From above version of eye witnesses, it is apparently clear that none of them supported the prosecution case. Not only their testimonies are contrary to what they allegedly told to police but, their versions given in the court are also not in consonance with each other. None of the eye witnesses raised any allegation against accused nor attributed any role to him. Rather as per PW9 Shane Alam and PW10 Shashank @ Golu, accused had accompanied them and helped them in shifting the deceased to Batra hospital and it was deceased who himself got fired with his own gun accidentally.
56. In this regard, I have carefully seen the MLC Ex.PW27/A, discharge summary Ex.PW5/A and PM report Ex.PW2/A and the version of concerned doctors who proved said documents i.e. PW2, PW5 and PW27. As per discharge summary Ex.PW5/A, deceased was admitted in Batra hospital on 22/2/2013 at 3.30pm with alleged history of gunshot injury on forehead. However, neither the MLC Ex.PW2/A nor the PM Report Ex.PW27/A mentions the location of entry wound or exit wound. But, in view of the fact that upon dissection of brain, bullet was found embedded in right occipital cortex, it appears that the bullet remained embeded in the head and did not exit from the head and hence, there was no exit wound. As per PM Report FIR No.59/13 State vs. Ashish Page No.52/66 Ex.PW2/A, the deceased expired after 5 day of occurrence i.e. on 27.02.2013. After admission on 22.02.2013, deceased was operated and the wound was surgically stitched but, he died on 27.02.2013 and cause of death was shock due to septicemia due to aforementioned circumstances.
57. However, neither the testimony of eye witnesses nor the examination of medical experts is suggestive of anything to enable the court to reach to any conclusive finding as to whether it was a case of suicidal, accidental or homicidal death. As per version of PW9 deceased got injured with gun shot from the bullet of gun which he himself was carrying. In his examination in chief, he has deposed that Sunder, who was a miscreant came there and took out a weapon, might be a gun and fired. For the sake of arguments, even if it is believed that it was a case of homicidal death, even in that case, from the material on record no conclusion can be drawn that it was accused Ashish who had murdered the deceased. Because, as per prosecution case, besides the accused, two more persons namely Bablu @ Tanka and Shane Alam @ Mota were also present with the deceased in the basement. Even the complainant was also present at the ground floor of the same building and as per his complaint Ex.PW6/A, he had also reached the spot before the gunshot was fired.
58. In above circumstances, unless there is some independent incriminatory material against the accused, his FIR No.59/13 State vs. Ashish Page No.53/66 mere presence on the spot will not be sufficient to prove the charge against him. In this regard, prosecution has relied upon the ballistic report Ex.PW35/A, as per which the cartridge case Ex.EC1 allegedly recovered from the spot at the instance of accused was fired through improvised pistol Mark Ex.F1 which was allegedly recovered from the possession of accused at the time of his arrest. Ld. Prosecutor has drawn my attention to the evidence of ballistic expert PW35 Sh. Puneet Puri, Assistant Director FSL wherein he has deposed that the individual characteristics of firing pin marks present on evidence cartridge case Ex.EC1 and test fired cartridge cases marked TC1 and TC2 (i.e. the cartridge cases of the test fired bullet A1 and A2 allegedly recovered from the magazine of improvised pistol Ex.F1) were found identical when examined under comparison microscope.
59. I have carefully perused the ballistic report Ex.PW35/A as well as testimony of ballistic expert PW35. Perusal of the same shows that cartridges case A1 and A2 of 7.65mm bore were taken out from parcel no.1 and same were also allegedly recovered from the possession of accused Ashish after his arrest. The report further shows that two more cartridges taken out from second parcel which contained the two cartridges recovered from the pocket of the deceased, but the same were of .32 inch bore and they were never test fired from the improvised pistol.
FIR No.59/13 State vs. Ashish Page No.54/6660. The report Ex.PW35/A further shows that on 18.03.2013, one sealed parcel sealed with the seal of Department of Forensic Medicine AIIMS New Delhi was also received at the FSL with the specimen seal and FSL form and upon opening, the same was found containing one deformed bullet mark Ex.EB1. As per prosecution case, said bullet was recovered from the body of deceased upon the dissection of the brain at the time of postmortem. As per the testimony of PW35, said deformed bullet mark Ex.EB1 was corresponding to the bullet of 7.65 mm cartridge but, no opinion could be given whether it had been discharged through improvised pistol 7.65 mm bore Ex.F1 because the individual characteristics striations present on the evidence deformed bullet were found insufficient for comparison and opinion. Further as per version of PW35, the improvised pistol mark Ex.F1 was a fire arm and the cartridges marked A1 to A4, cartridge case mark EC1 and deformed bullet Ex.EB1 were the ammunition as defined in Arms Act 1959.
61. On the basis of the aforementioned report of the ballistic expert, it is vehemently contended by the Ld. Prosecutor that said forensic report clearly contains inculpatory evidence against the accused because the pistol recovered from his possession got matched with the cartridge case recovered at his instance from the place of incident and said circumstantial evidence coupled with the fact that accused was present with the deceased in the basement where the gunshot injuries were sustained by the deceased, is sufficient to prove the fact that it FIR No.59/13 State vs. Ashish Page No.55/66 was the accused who had fired upon the deceased from aforementioned gun recovered from his possession and killed the deceased. It is further contended by Ld. Addl.PP that recovery of aforementioned gun from the possession of accused and the cartridge case from the spot at the instance of accused has been duly proved on record with the consistent testimony of police witnesses namely Ct. Prem Chand and IO SI Sanjeev in whose presence said recoveries were efected.
62. As per the record, country made pistol loaded with two live cartridges was allegedly recovered from the possession of the accused and both the pistol as well as two cartridges were seized vide seizure memo Ex.PW18/D dated 22.02.2013. The sketch of said pistol and cartridges was also prepared by the IO and same is available on record as Ex.PW18/C dated 22.02.2013. One used cartridge case was also allegedly recovered from the spot at the instance of the accused on the very same date of incident i.e. on 22.02.2013 and same was seized vide seizure memo Ex.PW18/I and its sketch prepared by the IO is Ex.PW18/H. All the aforementioned documents i.e. Ex.PW18/D, Ex.PW18/E, Ex.PW18/I and Ex.PW18/H were prepared by Ist IO SI Sanjeev Lahiri in the presence of Ct.Prem Chand, who had signed all the said documents as attesting witness.
63. It is important to note that the aforementioned recovery of improvised pistol Ex.F1 with two live cartridge A1 and A2 was efected after the accused was apprehended by the Ist IO FIR No.59/13 State vs. Ashish Page No.56/66 outside the gate of Batra hospital and as per prosecution case, accused was apprehended after he was pointed out by the complainant as the person who had fired at the deceased. But, in this regard, complainant/PW6 has turned completely hostile as he categorically denied that he had identified the accused outside the gate of Batra hospital or got him apprehended by the police. It is also very pertinent to note here that all the documents i.e. the arrest memo of the accused Ex.PW18/F, his personal search memo Ex.PW30/D as well as the seizure memo of the pistol and live cartridges Ex.PW18/D are contemporaneous documents as they all were prepared by the IO immediately after the arrest of the accused but surprisingly, the arrest memo and the personal search memo do bear the signature of the both complainant Sushil and Ct.Prem Chand whereas, the seizure memo of the pistol and the live cartridges allegedly recovered from the accused does not bear complainant's signature as it only bears only the signature of Ct.Prem Chand as an attesting witness. There is no explanation tendered by the prosecution or the IO for not joining the complainant at the time of preparation of said seizure memo of the pistol and live cartridges especially when the complainant was very well present with the police team even at the time of preparation of said document which was prepared immediately after arrest of accused. The IO appears to have given a very vague and evasive reply in his cross examination when he was confronted with lack of complainant's signature or regarding his non joining at the time of seizure of said pistol and cartridges. In his cross examination, the IO came FIR No.59/13 State vs. Ashish Page No.57/66 up with the evasive reply that there was no specific reason as to why he could not get the complainant Sushil to sign on the seizure memo of the gun, perhaps it slipped his mind.
64. Even as per the version of the IO, arrest memo, personal search memo of the accused as well as the seizure memo of the recovered fire arm were prepared contemporaneously in the hospital itself. Further, at the time of preparation of all said documents complainant Sushil @ Mange Ram was well present with the IO despite that, IO did not join the complainant as an attesting witness to the seizure memo of the fire arm though, he took complainant's signature on the other two contemporary documents i.e. arrest memo and personal search memo of the accused. In said circumstances, there is neither any reason available on the record nor even the IO came up with any valid explanation for not joining the complainant as an attesting witness to the seizure memo of the recovered gun. Hence, despite availability of the complainant with the police at the time of alleged recovery of said weapon of ofence, non joining of the complainant to said seizure memo raises a serious doubt on the alleged recovery of said weapon from the accused. Had the recovery been actually efected from the accused after his arrest at the gate of Batra hospital as alleged in the chargesheet, the seizure memo must have also born the signature of the complainant and since there is no signature of the complainant on the seizure memo despite the fact that other two contemporary documents i.e. the arrest memo and personal FIR No.59/13 State vs. Ashish Page No.58/66 search memo of the accused do bear his signature, a serious doubt has arisen on the truthfulness of the prosecution case regarding recovery of fire arm from the accused. As per complainant's deposition, a pistol like weapon was also lying near the deceased and in view of the above discrepancy in the prosecution case, possibility of planting of said pistol on the accused after his arrest in the case, cannot be ruled out.
65. Let us now advert to the evidence adduced on record with regard to the recovery of cartridge case Ex.EC1. As per prosecution case, the same was recovered at the instance of accused after he was brought to the spot after his arrest. It is important to note here that before said visit of the accused to the spot, the IO as well as the crime team had already searched and inspected the spot minutely. As per prosecution case, Ist IO SI Sanjeev Lahiri alongwith Ct. Prem Chand had received a DD in respect of shooting at C-18, Khanpur from Ct. Dharmender and same was received by them while they were returning to police station after attending a call at about 3.30.pm. After receipt of said DD, SI Sanjeev and Ct. Prem Chand reached st the spot and they were also followed by Ct. Dharmender on his motorcycle. After reaching the spot, they came to know that injured had already been taken to Batra hospital. Thereafter, IO left Ct. Dharmender at the spot while he himself alongwith Ct.Prem Chand went to Batra hospital where they found Sunder admitted in the hospital. The injured was declared unfit by the doctor on his MLC. Further in the hospital, they also met one FIR No.59/13 State vs. Ashish Page No.59/66 person Sushil i.e. the complainant who claimed himself to be the eye witness of the ofence. IO recorded the statement of complainant, prepared rukka on the same and got the FIR registered trough Ct. Prem Chand. After registration of the FIR, Ct. Prem Chand returned to the spot, where he handed over copy of FIR and rukka to Sanjeev Lahiri and at that time complainant was also present with the IO at the spot. Thereafter, IO SI Sanjeev Lahiri, Ct. Prem Chand and the complainant again visited Batra hospital and it is only at their second visit at Batra hospital, the accused was allegedly arrested on the identification of the complainant and from his possession the recovery of one pistol with two live cartridges was allegedly efected. Further as per prosecution case, the cartridge case Ex.EC1 was recovered at the instance of accused only after his arrest when he was brought to the spot by the IO.
66. In above circumstances, it is highly unlikely that despite minute inspection of the spot not only by the IO but also by the crime team, the said cartridge case Ex.EC1 escaped the attention of the IO Sanjeev Lahiri, Ct. Prem Chand and the members of the Crime team especially when the basement was empty and there was nothing in the basement except the chairs as deposed by Ct.Prem Chand/PW18 in his cross examination recorded on 28.05.2016. Ex.PW18/I is the seizure memo of said cartridge Ex.EC1 and same bears only the signature of Ct. Prem Chand and no independent witness was joined by the IO even at the time of recovery of said cartridge case.
FIR No.59/13 State vs. Ashish Page No.60/6667. Here, it is also pertinent to note that as per the arrest memo the accused was arrested at 9.30pm. Whereas, PW18 Ct. Prem Chand in his cross examination deposed that accused Ashish was apprehended at 8.30pm. He denied the suggestion that accused Ashish was apprehended at Batra hospital by SHO alongwith staf SI Vivek Malik and Manmeet Singh at 4.24pm. In this regard, Ld. Defence Counsel has drawn my attention to PCR form Ex.PW18/L which mentions that at about 16:24:50(4.24pm) accused Ashish who allegedly shot the deceased was apprehended by the SHO in Batra hospital with other police staf SI Manmeet Singh and SI Vivek Malik. Ex.PW18/L further mentions that at about 4'O clock when PCR van reached the spot, caller Mange s/o Hari Krishan was found present at the spot and he told the police that one boy namely Ashish r/o Dakshin Puri had fired upon a person whose name he did not know and said injured person had already been taken to Batra hospital and at that time ambulance CAT/KIS/13 as well as the SHO of concerned police station with other police station namely SI Manmeet Singh and SI Vivek Malik were also present at the spot and thereafter, the PCR left for Batra hospital and reached there at 4.24pm and the PCR personnel found the injured to have already been taken inside by the doctors for the treatment and by that time SHO had also reached there.
68. Having regard to the aforementioned reporting on the PCR form Ex.PW18/L it appears that accused was already FIR No.59/13 State vs. Ashish Page No.61/66 apprehended by the police at about 4.30pm and the version of PW18 and PW30 to the efect that he was apprehended on the identification of the complainant at 9.30pm i.e. at the time of IO's second visit to the hospital with complainant does not appear to be correct.
69. There is one more very material aspect worth noting. Ex.PW27/A is the MLC No.9162 which records the alleged history given by the informant Mange Ram as "patient was allegedly at C-18,Gali no.10, Khanpur Extension when his friend Ashish shot him in his head with the pistol on22.02.2013 at 3pm." The MLC further mentions that patient was brought to the casualty by Mange Ram and two live cartridges were found in the pocket of the patient. Ex.PW27/B is another document which is Police Intimation Form filled up for medico legal cases in respect of MLC No.9162. The same was prepared after the preparation of the MLC No.9162 and as per said police form Ex.PW27/B, patient Sunder c/o Ashish was brought to the hospital with alleged history of gunshot injury. The said document Ex.PW27/B further mentions that patient was at Tigri on 22.02.2013 at 3pm when he and his friend were checking the gun and the bullet was fired in his head.
70. It is surprising to note that both the above documents Ex.PW27/B and Ex.PW27/A, wherein the alleged history of injuries sustained by the patient, has been recorded in totally diferent manner, are written by the same doctor Dr. Rubeena and same is FIR No.59/13 State vs. Ashish Page No.62/66 also evident from the testimony of PW27 Dr.Amitya Kumar Verma as per whose version both the said documents were prepared by Dr. Rubeena. The said witness PW27 in his cross examination was put a question by the defence counsel in answer to which he replied that they usually mentioned, 'care of'(c/o) for the person, who had brought the patient to the hospital. PW27 voluntarily stated that in the present case as per the MLC, the patient was brought by Mange Ram as mentioned at point X on Ex.PW27/A. He also admitted the suggestion that Ex.PW27/B i.e. Police Intimation Form dated 22.02.2013 was also in the handwriting of Dr.Rubeena.
71. In the instant case, as Dr.Rubeena had already left the hospital and her whereabouts were not known therefore, Dr.Amitya Kumar Verma in whose supervision the concerned doctor Dr.Rubeena had worked, was examined at her place.
72. In view of the fact that Dr. Rubeena, who had prepared Ex.PW27/A and Ex.PW27/B was never examined for the above reason, the defence did not get the opportunity to confront her with said two diferent noting regarding alleged history recorded by her in said two documents. There is no explanation from the side of prosecution to clear said discrepancies appearing in said documents regarding the alleged history of injuries as well as with regard to the person who had brought the patient to the hospital.
FIR No.59/13 State vs. Ashish Page No.63/66Conclusion
73. In the light of the aforementioned discussion, it is apparently clear that prosecution case has miserably failed not only on account of the eye witnesses turning hostile and not supporting the prosecution case but it also failed on account of serious infirmities and discrepancies in the circumstantial evidence. As already noted above all the material witnesses of the prosecution case resiled from their previous statement and did not support the prosecution case. Their depositions are not only contrary to their versions given to police but, there are inherent inconsistency in their interse versions. None of the eye witness has come out with any inculpatory deposition against the accused. Even the recovery of weapon of ofence from the accused and recovery of the cartridge case from the spot at his instance is also shrouded with serious doubts as already discussed in the preceding paras of this judgment. As such, the version of the recovery witnesses of said pistol and the cartridge case is not credible or worthy of reliance.
74. In Balwinder Singh Vs. State of Punjab AIR 1996 SC 607, it has been laid down that circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond reasonable doubt and the established circumstances should be consistent only with the hypothesis of guilt of accused and totally inconsistent with his innocence. In a FIR No.59/13 State vs. Ashish Page No.64/66 case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof.
75 In Harish Chandra Ladaku Thange Vs. Stae of Maharasthra AIR 2007 SC 2957, while dealing with the validity of inferences to be drawn from circumstances evidence, it has been emphasized that where the case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person and further the circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principle fact sought to be inferred from those circumstances.
76. It is one of the fundamental principles of criminal jurispurdence that an accused is presumed to be innocent till he is proved guilty. It is equally well settled that suspicion however, strong can never take the place of proof. There is indeed a long distance between the accused "may have committed the ofence" and "must have committed the ofence" which must be transversed by the prosecution by adducing reliable and cogent evidence. Presumption of innocence has been recognized as a FIR No.59/13 State vs. Ashish Page No.65/66 human right which cannot be washed away. Reliance placed on Kailash Guar & Ors. State of Aasam (2012) 2 SCC 34.
77. Whereas, in the instant case the prosecution case has failed on both the fronts of direct evidence and circumstantial evidence. In the backdrop of said circumstances, I feel no hesitation to hold that prosecution has miserably failed to prove its case against the accused what to talk of proving the same on the yardstick of 'beyond reasonable doubt'. Accordingly, accused is acquitted. Earlier bail bond/surety bond stand canceled and discharged. File be consigned to Record Room.
Announced in open Court
on 29.08.2019 (Sunena Sharma)
Additional Sessions Judge-03(South)
Saket Courts, New Delhi
Digitally signed
by SUNENA
SHARMA
SUNENA Date:
SHARMA 2019.09.03
13:14:33
+0530
FIR No.59/13
State vs. Ashish Page No.66/66