Delhi District Court
State vs Ram Kishan @ Bhaiya on 2 April, 2007
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IN THE COURT OF SH. NARINDER KUMAR
ADDL SESSIONS JUDGE: FAST TRACK COURTS
ROHINI: DELHI
Session case No: 32/02 dated 12.01.2007
Date of decision: 02/04/2007
State
Vs.
1. Ram Kishan @ Bhaiya
S/o Sh. Ram Pal
R/o H.No. 329, Gali No.2,
Kushak Road No.2, Khaddar Colony,
Swaroop Nagar, Delhi
2. Chotu Singh
S/o Sh. Ram Baneja Singh
R/o Gali No. 4, Kushak Road No.2,
Swaroop Nagar, Delhi
FIR No. 255/01
PS Shalimar Bagh
Under section: 393,397,302 IPC read with Sec-34 IPC
& Section- 3 and 4 of Explosive Substances Act.
JUDGMENT
Chotu Singh and Ram Kishan @ Bhaiya (accused) have been facing trial for the offences u/s 393, 397 and 302 IPC read with section 34 IPC and section 3 & 4 of Explosive Substances Act. Chotu Singh accused has also been facing trial for an offfence u/s 25 of the -2- Arms Act.
Case of prosecution is that on 25/04/2001 at about 4 p.m., Shyam Kumar Kriplani was present at Banana Godown, towards Banana siding, Railway shed, in the area of Azad Pur. He heard sound of explosion, then heard sound of shot being fired and also saw people running away from the place of occurrence.
On reaching the spot Shyam Kumar Kriplani found Narain Dass @ Nari lying towards the siding; his intestines coming out and blood oozing whereas Bishan Dass, brother of aforesaid Narain Dass, was lying motionless facing the ground.
Narain Dass called Shyam Kumar Kriplani and told him that bullet had hit him and that he be taken to hospital at once in his Maruti Van parked at a distance. Rajender PW was also attracted to the spot.
Shyam Kumar Kriplani lifted Narain Dass and moved him to Jaipur Golden Hospital in Van driven by Rajender. On his way to Jaipur Golden Hospital , Narain Dass asked Shyam Kumar Kriplani that first of all he should be taken to his house. Narain Dass was having a handbag with him. On reaching his house, Narain Dass handed over to his wife Smt. Jyoti the bag containing currency notes. From there, he was taken to Jaipur Golden Hospital in the same van. Smt. Jyoti wife of Narain Dass also accompanied them in the Van.
On the way, when Shyam Kumar Kriplani inquired from Narain Dass about the occurrence. He replied that two young boys had tried to snatch the bag in which he was carrying money and that when -3- he resisted, shots were fired at him and his brother.
Narain Dass was got admitted at Jaipur Golden Hospital. Bishan Dass injured was also brought to the same hospital in PCR Van after sometime in the company of Vasudev, his brother who happened to reach Banana Godown on hearing about the occurrence while he was present at his shop in Azad Pur Mandi.
Mangal Sen PW was present near the office of Banana Godown Shed, at about 4/4:15 p.m. one neighbourer came to him and told about firing of shots at Narain Dass and Bishan Dass. He then immediately reached the place of occurrence and informed PCR staff.
DD no. 19-A came to be recorded at P.S. Shalimar Bagh on 25/04/2001 at 04:27 p.m. to the effect that one person had been fired at in the area of Banana Godown and that assailants had robbed off the persons. Copy of this DD entry was handed over to SI Yashveer Singh, who accompanied by Ct. Awadh Kishore reached the spot i.e. near Pole no. 27-28, Banana siding, Railway Shed, in the area of Shalimar Bagh.
On reaching the aforesaid place, the SI and constable found blood lying there. One live cartridge of .315 bore was also found lying there. One goods-train loaded with Bananas was also standing on the Railway track towards Banana siding.
SI Yashveer Singh came to know about the removal of the injured to hospital. He left Ct. Awadh Kishore at the spot to secure it and himself reached Jaipur Golden Hospital and obtained MLC of Narain Das and Bishan Dass. On the MLC of Narain Dass, Doctor had -4- opined that he was unfit to make statement. On the MLC of Bishan Dass he was declared "brought dead".
SI Yashveer recorded the statement of Shyam Kumar Kriplani present there in the hospital and thereafter returned to the spot. On reaching the spot he appended endorsement to the statement of Shyam Kumar Kriplani and sent Ct. Awadh Kishore to P.S. where on its basis present case was registered. Special reports were delivered at the residence of area of Metropolitan Magistrate and at the residence of senior police officials by Ct. Prem Chander.
Inspector Anil Kapoor and other senior police officials reached the spot, inspected the place of occurrence and prepared rough site plan. Head Ct. Subhash Chander visited the spot, took snaps and prepared photographs. Sh. Anuj Kumar Bhatti, Finger Expert also visited the spot and lifted the chance prints from wooden writing pad with clip and a Mayur Jug. Although no chance print could be found on Mayur Jug, chance prints were found on wooden writing pad. In this respect, he prepared report and handed over the same to SI Yashveer Singh. Bomb Disposal Squad summoned to the spot also inspected the place of occurrence.
The live cartridge of .315" bore, lifted from the spot, was turned into parcel and sealed with the seal impression AK and taken into possession vide memo. From the spot earth control, earth control sample, three linedar pages of a register having blood stains were picked up, sealed into a parcel and sealed with the aforesaid seal and -5- then seized vide a memo.
When grass was cut and removed from the spot on further inspection of the place of occurrence, one empty cartridge was recovered from there, turned into parcel, sealed with the aforesaid seal and then seized.
PW SI Yashveer Singh accompanied the IO to Jaipur Golden Hospital where Doctor handed over two sealed parcels containing clothes of Narain Dass and Bishan Dass, and two samples with seal of Jaipur Golden Hospital impression. These were taken into possession.
Inspector Anil Kapoor reached Jaipur Golden Hospital, conducted inquest proceedings in respect of death of Bishan Dass and filled up report, recorded brief facts and sent the dead body for postmortem examination. Dr. K. Goel conducted autopsy on the dead body of Bishan Dass and submitted his report .
On 14/05/2001 Narain Dass also expired. Inspector Anil Kapoor carried out inquest proceedings in respect of dead body, filled up death report and moved application for autopsy.
Dr. K. Goel conducted autopsy on dead body of Narain Dass on 15/05/2001 and submitted report. After autopsy, dead bodies of Narain Dass and Bishan Dass were handed over to their relatives.
Foreign materials extracted from the stomach of Narain Dass, were deposited by Inspector Anil Kapoor himself at the office of CFSL on 09/05/2001 for analysis. On 27.04.01 Dr. Ashish Chandra -6- handed over to police one sealed parcel containing plastic container and the same was seized. The SI in turn deposited the same with HC Ved Singh on 27.04.2001.
On 15/05/2001 Ct. Hasim Raja brought one sealed parcel from Mortuary, Subzi Mandi, alongwith sample sealed with the seal of KLS and the same were seized. On 18.07.01 Chotu Singh accused was arrested by Head Ct. Balwinder Singh on the basis of secret information received near GTK Bus Stop, GTK Road, Jahangir Puri, that one person was roaming with a knife. One buttondar knife was recovered from his possession. In this respect, case FIR no. 478/2001 was got registered against him. Chotu Singh was interrogated whereupon he made disclosure statement and pointed out the place of occurrence of this case. Consequently, Head Ct. Balwinder Singh informed police of P.S. Shalimar Bagh about arrest of Chotu Singh and disclosure statement made by him about this case.
On 19/07/2001, Inspector B.R. Mann accompanied by SI Yashveer Singh came to Tis Hazari Courts where Chotu Singh accused was produced in muffled face, by AATS staff, and that is how he was formally arrested in this case.
Inspector B.R. Mann obtained the copy of disclosure statement made by Chotu Singh accused, and the pointing out memo, from Head Ct. Balwinder Singh of AATS North-West District. On 19.07.01 on an application moved by the police test identification parade was conducted by Sh. Sanjay Kumar Aggarwal, learned Judicial -7- officer at Central Jail No.3, and PW1 Allauddin correctly identified Chotu accused.
On 01/8/2001 in presence of SI Yashbir Singh, Chotu took the police party to Ram Kishan (co-accused) house, in khadda colony, Sawrup Nagar, Delhi. Ram Kishan accused could not be arrested. Thereafter, Chotu took the police party to his own house at Kushak Road 4, Sawrup Nagar and from there produced a desi revolver wrapped in a polythene paper after taking it out of a trunk. Revolver was turned into a parcel, after its sketch was prepared, then the parcel was sealed with the seal bearing impression BRM and the sealed parcel was taken into possession.
On 18.09.01 case FIR no. 625/01 u/s 25 of Arms Act was registered at P.S. Samay Pur Badli in respect of recovery of one country made pistol loaded with one live cartridge from Ram Kishan accused. That case was investigated by SI Ranjeet Singh. During investigation, Ram Kishan accused made disclosure statement regarding his involvement in this case.
On 19.09.01, DD No. 23B was recorded at PS Shalimar Bagh in respect of arrest of Ram Kishan accused by PS S.P. Badli, whereupon, Inspector B.R. Mann reached PS S.P. Badli and collected copy of disclosure statement made by Ram Kishan and other documents from SI Kaushal Ganguli.
On 25.09.01 when Ram Kishan was produced from J.C., he was interrogated by the Inspector, after seeking permission from the -8- court. Ram Kishan accused made disclosure statement in respect of the present occurrence.
On 01.10.01 on an application submitted by the IO to Sh. Sanjay Kumar Aggarwal, learned Judicial Officer conducted test identification parade of Ram Kishan at Central Jail No.3 and PW Allaudin correctly identified him.
Sanction for prosecution of accused Ram Kishan and Chotu for offence under the Arms Act was accorded. On 15.10.01 Laxmi Kant Shama, Joint Secretary (Home) Govt. of N.C.T. of Delhi accorded sanction for prosecution of Ram Kishan and Chotu accused for offence u/s. 3 & 4 Explosive Substances Act.
On 11.10.01 Chotu accused took the police party headed by Inspector B.R. Mann to his house in Sawrup Nagar where his wife produced their ration card and election I/Card. The photocopies thereof were seized.
On 01.10.01, 12 sealed parcels were sent to FSL, Malviya Nagar, after same were collected from malkhana of PS Shalimar Bagh, and deposited there.
On 09/5/2001 Sh. N.B. Vardhan examined the contents of one sealed parcel deposited at CFSL, in respect of this case, and submitted report.
On 01/10/2001 Sh. K.C. Varshney of FSL Malviya Nagar examined contents of five sealed parcels and after their analysis submitted report. On completion of investigation, challan was put in -9- court.
After compliance with provisions of Section 207 CrPC, case came to be committed to Hon'ble Court of Session. Prima facie case having been made out against the accused, charge for offences u/s 393, 397, 302 read with section 34 IPC and 3 and 4 of Explosive Substance Act was framed against both the accused. Charge for an offence u/s 25 of Arms act was also framed against Chotu Singh accused. Since accused persons pleaded not guilty and claimed trial, prosecution examined 49 witnesses.
PW-1 Allauddin has been examined to establish identity of the two accused.
PW-2 Laxman Dass, PW-3 Radha Kishan and PW-6 Harsh have been examined to prove the factum of identification of the dead body of Bishan Dass and Narain Dass.
PW-4 Shyam Kumar Kriplani, who was allegedly present near the place of occurrence on the given date and time of occurrence, has been examined to prove his visit to the place of occurrence after hearing sound of explosion; having found both the brothers in the injured condition at the spot and then having removed Narain Dass to his house in a Van and from there to Jaipur Golden Hospital in the company of wife of Narain Dass. He has also been examined to prove as to what he was told by Narain Dass on their way to the hospital.
PW-7 Vasudev is from the neighbourhood of Narain Dass and Bishan Dass. He has been examined to prove his arrival at the spot -10- and removal of Bishan Dass to Jaipur Golden Hospital in PCR Van, where he was declared brought dead.
PW-8 Rajender has deposed about his presence near the place of occurrence; his having accompanied Narain Dass and Shyam Kumar Kriplani (PW-4) from the spot to the house of Narain Dass and from there to Jaipur Golden Hospital, in the company of Smt. Jyoti W/o Narain Dass; and as to what Narain Dass told him on way to the hospital.
PW-11 Jyoti has been examined to prove that on the day of occurrence at about 4/4:25 p.m., she accompanied her husband Narain Dass to Jaipur Golden Hospital when he was brought to the house in injured condition in a Maruti Van and also as to what that her husband told. According to her, her husband told that he was injured in a Bomb Explosion whereas a gun shot hit his brother Baishan Dass.
PW-38 Mangal Sen has been examined to prove his visit to the place of occurrence on 25/04/2001 at about 04/4:15 p.m. and having informed PCR staff at no. 100 that Narain Dass and Bishan Dass were lying at the spot in the injured condition.
PW-9 Head Ct. Subhash Chander has proved photographs Ex.PW-9/A/7 to 12 and their negatives PW-9/A/1 to 6.
PW-10 Sh. Anuj Kumar Bhatti from Finger Print Bureau has been examined to prove his report Ex.PW-10/A in connection with chance prints lifted from the wooden writing pad on his visit to the spot on 25/04/2001.
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PW-12 Sh. K.C. Varshne is the Senior Scientific Officer (Ballistic) who has proved his report Ex. PX in respect of contents of five sealed parcels sent to the office of Chemical Examinr, FSL, Malviya Nagar. PW-13 Sh. N.B. Vardhan another expert witness has also proved his report Ex.PW-13/A in respect of the sealed parcels sent to the office of CFSL on 09/05/2001.
PW-16 Head Ct. Suraj Bhan has proved recording of FIR Ex.PW-16/A on the basis of ruqqa received at P.S. Shalimar Bagh on 25/04/2001 at 08:30 p.m. He also proved DD entries no. 16-B, 16-C, 16-D, 16-E , 16-F and DD entry no. 19-A, 22-A, 26-A, 47-B and 59-B. PW-28 SI Manohar Lal, Draftsman, has been examined to prove scaled site plan Ex.PW-28/A of the spot, prepared by him on 15/08/2001.
Medical evidence is available in the statements of PW-39 Dr. K. Goel who conducted autopsy on the dead body of Bishan Dass on 25/04/2001 and autopsy on the dead body of Narain Dass on 15/05/2001. PW-42 Ravinder Kumar, Medical Record Incharge, has been examined to prove handwriting and signatures of Dr. Jyoti Shankar Rai on MLCs Ex.PW-42/A and Ex. PW-42/B in respect of Narain Dass and Bishan Dass. PW-48 Dr. Ashish Chandra has been examined to prove delivery of one sealed parcel to Sub Inspector of P.S. Shalimar Bagh on 27/04/2001 vide memo Ex.PW-29/A. PW-31 Head Ct. Mahavir Singh has deposed about -12- recording of FIR no. 478/01 for an offence u/s 25 of Arms Act EX.PW- 31/A. PW-34 Head Ct. Jitender proved recording of FIR EX.PW- 34/A bearing FIR No. 625/01 for an offence u/s 25 of Arms Act.
PW-41 Sh. Deepak Kumar Shah, LDC from Food & Supply Department, has been examined to prove copy of Ration Card Ex.PW- 41/A, issued to Smt. Misri Devi W/o Chotu Singh and Ex.PW-41/B i.e. copy of relevant entry no. 3714 at page no. 37 of the relevant register.
PW-43 Laxmi Kant Shama, then posted as Joint Secretary (Home) Govt. of N.C.T. of Delhi, has been examined to prove sanction accorded for initiating criminal proceedings against Ram Kishan and Chotu accused for offfences u/s. 3 & 4 Explosive Substance Act.
PW-45 Sh. Sanjay Kr. Aggarwal, learned Judicial Officer, has proved test identification proceedings in respect of Chotu Singh and Ram Kishan @ Bhaiya accused.
PW-46 Sh. Anil Kumar Ojha, the then Addl. Deputy Commissioner of Police, North-West Distt. Delhi, has been examined to prove sanction Ex.PW46/A accorded to initiate criminal proceedings against Ram Kishan @ Bhaiya accused and against Chotu for an offence u/s 25 of Arms Act.
PW-5 Ct. Awadha Kishore, PW-14 Head Ct. Ashok Kumar, PW-15 Ct. Bir Singh, PW-17 Head Ct. Jeeva Ram, PW-18 Head Ct. Harpal Singh, PW-19 W.H.Ct. Sunita Sharma, PW-20 Ct. Rakam Singh, PW-21 Head Ct. Mohd. Yaseen, PW-22 Inspector Anil Kapoor, PW-23 -13- Ct. Prem Chandra, PW-24 Ct. Hasim Raja, PW-25 Ct. Hans Raj, PW-26 Head Ct. Balwinder Singh, PW-27 Head Ct. Ved Singh, PW-29 SI Amleshwar Rai, PW-30 SI Kaushal Ganguli, PW-32 Ct. Sachin Kumar, PW-33 Head Ct. Rajinder, PW-35 Ct. Jai Parkash, PW-36 ASI Ved Prakash, PW-37 Head Ct. Rajender Singh, PW-40 ASI Jeet Singh, PW- 44 SI Yashveer Singh, PW-47 Inspector B.R. Mann, PW-49 Head Ct. Amar Pal Singh have deposed about investigation part of the prosecution story.
When examined U/s. 313 CrPC, the accused persons have denied all incriminating circumstances appearing in evidence against them and claimed false implication.
Plea put forth by Ram Kishan accused reads as under:
I have been falsely implicated. Initially, I was shown to have been arrested in a case U/s. 326 IPC of PS. S.P.Badli. Lateron I was falsely implicated in this case for the reasons best known to the police. Prior to the marriage of my nephew, police of PS S.P. Badli visited and contacted me at my house but left stating that they would contact me after the marriage was over.
Ultimately, I was arrested by the police in September,2001 and falsely implicated in this case. Plea put forth by Chotu Singh accused reads as under:
I was picked up by the police of P.S. -14- Jahangir Puri from my house and then falsely implicated in a case under the Arms Act. IN that case I have been acquitted by the concerned Court. My custody by way of police remand was obtained by police of P.S. Shalimar Bagh when I was produced in court by the police of PS Jahangir Puri.
In defence accused Ram Kishan @ Bhaiya accused has examined DW-1 Shashi and DW-2Smt. Mukesh. In defence Chotu Singh accused has examined DW-1 Smt. Misri Devi.
Arguments heard. File perused.
FACTUM OF DEATH OF THE TWO BROTHERS:
Occurrence in this case is alleged to have taken place on 25.04.2001 at about 4 p.m, in between Poll No. 27 and 28, Banana Siding at Railway Shed, Shalimar Bagh, Delhi. In the occurrence, Narain Dass and his brother Bishan Dass suffered injuries and as a result Bishan dass, when removed to hospital, was declared brought dead, whereas Narain Dass survived upto 14.05.2001, but he was not fit to make statement. Narain Dass left this world on 15.05.2001. Medical evidence available in the shape of statements of PW39 Dr. K. Goel, PW42 Sh. Ravinder Kumar, PW-48 Dr. Ashish Chandra and MLCs Ex.
PW42/A and Ex.PW42/B and autopsy reports Ex.PW39/A and Ex.PW39/B would reveal that cause of death of Bishan Dass was asphyxia consequent upon haemothorax as a result to the fire arm injury to the lungs, while injury No.3 out of the total 5 injuries was sufficient to -15- cause death in the ordinary course of nature. As regards Narain Dass, the doctor declared that the cause of death was septicaemia consequent upon infected injuries caused by blast effect of fire arm. But probable duration that elapsed between death and postmortem examination of the two brothers was about 20 hours.
From the medical evidence, it stands established that both the brothers were brought to Jaipur Golden Hospital on 25.07.2001 whereas Bishan Dass was declared brought dead, Narain Dass left this world on 15.05.2001. But the question arises as to who caused death of the two brothers by causing injuries on 25.04.2001 at about 4 p.m. at Railway Shed, Shalimar Bagh.
WHO INFLICTED INJURIES ON THE PERSON OF THE TWO BROTHERS RESULTING IN THEIR DEATH?:
Present case was registered on the statement made by Shyam Kumar Kriplani who deals in fruit at New Subzi Mandi, Azadpur, under the name and style Vicky Trading Company. Case of prosecution is that on the day of occurrence at about 4 p.m, he was present at Banana Godwon and getting unloaded his stock of Banana at Banana Siding shed. While appearing in court as PW4, he deposed that on hearing the sound of explosion, he saw people running from the spot. He heard another sound of fire and started running towards the side of firing. On reaching there, he found two persons lying on the ground and they were Narain Dass and his brother Bishan Dass. Further, according to him, Narain Dass called him and told that he had been hit by a bomb -16- and that he be removed to hospital at once. At that time, Narain Dass was lying on ground on his one side with his intestines coming out of his stomach and blood was oozing, whereas Bishan Dass was lying facing the ground without showing any movement and the people were saying that Bishan Dass was dead.
PW4 further stated that Narain Dass told him that his maruti van was standing at a distance and that he be taken to hospital. According to the witness, one Rajinder (PW8) was also present there. He started the van and accordingly Narain Dass was removed from the spot for being taken to hospital. However, on the way, Narain Dass told him (the witness) that he should be taken to his house first. Accordingly, Narain Dass was taken to his house . On reaching his house, Narain Dass handed over a bag to his wife and then he (the witness) and wife of Narain Dass took Narain Dass to Jaipur Golden Hospital in the van. According to PW4, on the way, Narain Dass told him that two young boys had tried to snatch the bag containing money from him and that when he resisted, he and his brother were fired at.
In the statement of PW4, there is nothing to suggest that Narain Dass apprised him (PW4) o Rajinder (PW8) or his wife (PW11) that such and such person had tried to snatch the bag containing money or that such and such was the description of the boys/assailants.
PW8 Rajinder also deposed to have heard sound of explosion at about 4 p.m, while he was present at Banana Godown Siding and saw people running away from the spot. After sometime, -17- another explosion took place. Thereafter, another explosion took place and he reached the spot of the explosion and found Narain Dass and Bishan Dass lying on the ground in injured condition. Further according to the witness, Narain Dass called Shyam Kumar Kriplani, who was present there, and requested him to remove him to hospital immediately. At that time, Narain Dass was not showing any movement. Further, according to PW8, Shyam Kumar Kriplani PW then lifted Narain Dass and then proceeded to the hospital in a van. However, on the way, Narain Dass asked Shuyam Kumar Kriplani to first take him to his house and then he was taken to his house situated at Shalimar Bagh and there Narain Dass handed over the bag to his daughter. Thereafter, Narain Dass was taken to Jaipur Golden Hospital in the company of Shyam Kumar Kriplani and Smt. Jyoti, wife of Narain Dass. It is in his statement that on the way, Narain Dass told them that two boys had tried to snatch the bag from him and that when he and his brother Bishan Dass resisted, they were fired by those two boys.
It is true that PW8 has deposed that Narain Dass told them about opening of fire by those two boys but there is nothing in his statement to suggest as to who were those two boys and what were their identifying marks or particulars.
PW11 Smt. Jyoti, wife of Narain Dass has supported the case of prosecution as narrated by PW4 Shyam Kumar Kriplani and PW8 Rajinder by stating that on 25.07.2001, while she was present at her house, at about 4.15 p.m, her husband Narain Dass was brought -18- there in injured condition in a maruti van. She further deposed that her husband was having a black colour bag of raxine which she handed over to her daughter Geeta and that the bag was containing cash. Then she deposed to have accompanied her husband in the same van to Jaipur Golden Hospital. PW11 further deposed that on the way, her husband told her that he was injured in a bomb explosion. Narain Dass further told her that his brother Bishan Dass was also hit with a gun shot and that his condition was serious.
As noticed above, PW4 and PW8 deposed that they were told by Narain Dass on way to the hospital that he and his brother were fired at by two boys. But according to PW11, she was told by her husband that he was injured in a bomb explosion. PW4 and PW8 nowhere deposed that Narain Dass told them about attack on his person with a bomb. The fact remains that PW11 also nowhere deposed to who were the two assailants, who had attacked her husband and her brother in law Bishan Dass.
According to PW1, on the given date, time and place of occurrence, he was returning after completion of his job as a labourer at Kela Godown, Shalimar Bagh and that on reaching near the spot, he found the people present there running away. According to the witness he was apprehended by some police official to inquire from him his name and particulars. However, he denied to have seen anything else. In his cross examination, he admitted to have identified both the accused before the learned judicial officer during test identification -19- parade, but added that prior to the identification he was shown photographs of the accused persons in the Police Station.
Case of prosecution is that while participating in test identification parades, PW Allaudin identified the two accused as the culprits. In this respect, attention of Court has been drawn to statement of PW45-the concerned Learned Judicial Officer who held these parades on 28.7.2001 and 3.10.2001. Reports prepared in this respect are Ex.PW45/A and Ex.PW45/E. It is well settled that identification tests do not constitute substantive evidence. These tests are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. Tests are also done to check upon veracity of concerned witness who claims to have seen the culprits at the time of occurrence. It is trite to say that the substantive evidence is the evidence of identification in Court. The identification can only be used as corroborative of the statement. In this view of the matter, reference may be made to the decision in Matru v. State of U.P, (1971 (2) SCC 75; Santokh Singh v. Izhar Hussain, (1973 (2) SCC 406 ); Kanta Prashad v. Delhi Administration, AIR 1958 SC 350; Vaikuntam Chandrappa and others v. State of Andhra Pradesh, (AIR 1960 SC 1340): Budhsen and another v. State of U.P. (AIR 1970 SC 1321); Rameshwar Singh v. State of Jammu and Kashmir (AIR 1972 SC 102); and Amitsingh -20- Bhikamsing Thakur v. State of Maharashtra, AIR 2007 SC 679.
PW1 Allaudin while appearing in Court did not support the case of prosecution regarding involvement of the accused in commission of the crime. He was put leading questions by Addl. Public Prosecutor, whereupon he admitted the factum of his presence at the railway shed at 4 p.m when work of unloading from the train was on; that he heard sound of firing of bullet; that he noticed stampede at the loco shed and on reaching near the place of explosion he saw two persons lying on the ground; that he saw Narain Dass and Bishan Dass running towards the goods train; that he saw public chasing two persons who had open fire. However, the witness denied to have seen those boys running on a motor cycle. In his cross-examination, the witness denied to have seen the accused persons either firing or throwing some bombs on the two persons or to have made any statement to the police. The witness denied that he was deposing falsely to save the accused persons from punishment or that he had been won over by the accused persons. He denied to have stated before the police that the accused had fired shots on the two persons.
As regards, test identification of the two accused, the witness reiterated that he had identified accused persons because their photographs were shown to him and after seeing the photographs he had told that they might be the assailants. He further stated that he was terrorized by the police. In view of what the witness has stated about the manner in which he was made to identify the two accused, evidence -21- regarding their identification during investigation does not help the prosecution so as to connect the accused with the present crime, particularly when the witness while appearing in Court did not raise any accusing finger towards any of the two accused.
Chance Prints on Writing Pad recovered from the spot It is case of prosecution that PW10 Anuj Kumar Bhatti was called to the spot on 25.4.2001 and that he lifted chance prints from wooden writing pad. According to PW10, chance prints were lifted from the wooden writing pad but no chance print was observed on Mayur Jug. The witness has proved his report Ex.PW10/A. But in his cross- examination, the witness replied that he could not say as to whom the chance prints belong. In his report, PW10 had instructed the Investigating Officer to send palm impression slips of inmates/suspects and that of deceased for comparison with the developed chance prints at the earliest. Accordingly, it was duty of the Investigating Officer to have such impressions of the accused for being sent to the Finger Print Bureau. But nothing on the record would reveal that the Investigating Officer ever took any step to have any such impression of the accused or the deceased or any inmate so as to tally the same with the developed chance prints.
Chance prints on .315" bore live cartridge recovered from the spot At the time of visit and inspection of the spot by PW 44 SI Yashveer Singh, one .315" bore live cartridge was found lying there. At -22- that time, the SI did not seize the same because he opted to go to Jaipur Golden Hospital for the reason that injured had been removed from the spot. It was on return from the hospital that the SI seized the live cartridge vide memo Ex.PW5/A. But no chance print could be detected by PW10 Anuj Kumar Bhatti, the expert witness on the cartridge.
Therefore, statement of PW10 also does not help the prosecution to connect any of the accused with the crime. Recovery of empty cartridge shell from the spot.
According to PW44 SI Yashveer Singh, further search of the spot and removal of grass from there led to recovery of one empty cartridge shell. It was sealed into a parcel with the seal bearing impression AK and then taken into possession vide memo Ex.PW5/E. He further deposed that the seal after use was handed over to Constable Avadh Kishore.
Rough site plan Ex.PW22/A was prepared at the spot. It depicts only one point i.e. point 'A' as the place where blood and .315"
bore live cartridge were found lying at the spot. It is not case of prosecution that the empty cartridge shell was recovered after preparation of the site plan Ex.PW22/A. In such a situation, place of recovery of empty cartridge shell should also have been depicted. However, no such point or marginal note finds depicted/recorded in Ex.PW22/A i.e. the site plan prepared on 25.4.2001. -23-
Scaled site plan Ex.PW28/A was prepared at the pointing out of important positions by SI Yashveer Singh. Had the SI recovered any such empty cartridge shell from the spot on 25.4.2001 firstly he would have depicted the same in the rough site plan prepared by him and secondly, pointed out the place of recovery of empty cartridge shell to SI Manohar Lal on 14.8.2001. Surprisingly, no such point stands depicted or marginal note stands recorded even in the scaled site plan Ex.PW28/A which was prepared much later on 15.8.2001 on the basis of rough notes and measurements taken by PW 28 SI Manohar Lal on 14.8.2001.
The fired empty cartridge was sent to FSL for analysis. Report Ex.PX would reveal that for want of sufficient data, the expert witness could not give any opinion if it had been fired through country made pistol .315" bore or not.
Furthermore, in none of the recovery memos Ex.PW5/A,B,C,E prepared at the spot on 25.4.2001 it stands recorded that after use, the seal was handed over by SI Yashveer Singh to Constable Awadh Kumar to support their oral testimony in this respect and so as to rule out possibility of tampering with the case property.
Therefore, prosecution cannot take any advantage from this piece of evidence as well, so as to connect any of the accused with the present crime.-24-
Recovery of bullet from the dead body of Bishan Dass It is in medical evidence that one bullet recovered by Dr.K.Goyal from the chest of Bishan Dass was turned into a parcel and the sealed parcel was handed over to the police. In this respect, memo Ex.PW5/D was prepared on 26.4.2001. This bullet contained in sealed parcel was also sent to FSL for analysis. Report Ex.PX submitted by Dr.K.C.Varshney would reveal that the expert witness found that individual characteristic of striations present on fired bullet were insufficient for comparison and opinion. Therefore, even recovery of bullet from the dead body does not connect any of the accused with commission of crime.
Recovery of Country made revolver from Chotu Singh accused Case of prosecution is that Chotu Singh accused was apprehended by police of P.S.Jehangirpuri, Delhi on 19.7.2001 and he made disclosure statement and therein offered to get recovered one revolver from his house situated in street No.4, Kushak Road No.2, Swarup Nagar, Delhi, which he had allegedly used in firing at one of the two deceased. He was then handed over to police of P.S.Shalimar Bagh and on 1.8.2001 he got recovered one revolver from his house. The revolver was then sealed into a parcel and seized vide memo Ex.PW49/D. In this respect, mainstay of prosecution was on the statements of PW26-HC Balwinder Singh, PW 20 Constable Rakam Singh, PW32 Constable Sachin Kumar of AATS-North West District-Jehangirpuri and -25- PW47-Inpector B.R.Mann and PW 44 SI Yashveer Singh of P.S.Shalimar Bagh.
As regards disclosure statement Ex.PW20/A made by Chotu Singh accused before the staff of AATS, Jehangirpuri is concerned, record would reveal that PW20 Constable Rakam Singh, PW20 HC Balwinder Singh and PW32 Constable Sachin Kumar nowhere deposed as to what was the disclosure statement made by him. In absence of any deposition containing atleast admissible portion of such a disclosure statement, disclosure statement Ex.PW20/A cannot be said to have been duly proved.
Similarly, PW44 SI Yashveer Singh has not deposed as to what was the disclosure statement made by Chotu Singh so as to find out if any such disclosure statement was actually made in his presence. Surprisingly, PW47 Inspector B.R.Mann nowhere stated that any disclosure statement was made by Chotu Singh accused after custody of the accused was obtained under orders of the Court. He straightway deposed about recovery of one country made revolver from the house of Chotu Singh on 1.8.2001. PW47 should have specifically deposed that recovery was got effected by Chotu Singh from such and such place of his house. Furthermore, as rightly argued by learned defence counsel, this is a case where provisions of Section 100(4)Cr.PC were not complied with by the police before house-search of Chotu Singh. It was duty of the Investigating Officer to associate persons from the locality before conducting house search. However, no person from the locality -26- was associated, for the reasons best known to the Investigating Officer. Non joining of witness from the public speaks volumes against the Investigating Oflficer, particularly when accused has come forward with the plea that he was picked up by the police of P.S.Jehangirpuri from his house, then falsely implicated in a case under the Arms Act and then in this case, and in support of his defence plea the accused has examined his wife DW1 Smt.Misri Devi.
There is nothing in the recovery memo Ex.PW44/D that after the revolver was turned into a sealed parcel, the seal was entrusted to anyone, so as to rule out possibility of tampering with the case property.
The revolver was sent to FSL for analysis. On analysis, the expert opined that the revolver was country made revolver, but it was found to be not in working order in the given condition as it required repair of the fire mechanism to bring into working order and that no test fire could be conducted. It may be mentioned here there is nothing on record to suggest that any bullet or any empty cartridge of .38" bore was recovered during investigation of this case so as to connect Chotu Singh accused with firing of shot at any of the two deceased.
In view of the above discussion, this court comes to the conclusion that prosecution has failed to establish either recovery of any revolver from Chotu Singh accused or to connect him with murder of either of the two brothers.-27-
Recovery of country made pistol and cartridge from Ram Kishan accused Case of prosecution is that Ram Kishan accused was apprehended by SI R.S.Dahiya of Police station S.P.Badli on 18.9.2001 in presence of constable Dilbag Singh and from his possession one country made pistol loaded with a live cartridge was recovered. Separate case under Section 25 of Arms Act was got registered against Ram Kishan in respect of the recovery. It may be mentioned here that during present trial, no evidence regarding recovery of the country made pistol and cartridge from Ram Kishan has been led by the prosecution. In absence of statements of SI R.S.Dahiya and Constable Dilbag Singh or any other admissible evidence, it cannot be said that any such firearm or ammunition was recovered from Ram Kishan accused on 18.9.2001.
Ram Kishan accused is alleged to have made disclosure statement before SI Kaushal Ganguly in presence of Constable Dilbag Singh regarding his involvement in this case.
While appearing in Court as PW30 SI Kaushal Ganguly deposed that he took over investigation of case FIR No.625/2001, under Section 25 of Arms Act from SI Ranjit Singh. He further deposed about production of Ram Kishan accused before him and that during investigation the accused made disclosure statement Ex.PW30/A. However, PW30 nowhere deposed as to what was the disclosure statement made by Ram Kishan. In absence of any deposition containing atleast admissible portion of such a disclosure statement, -28- disclosure statement Ex.PW30/A cannot be taken into consideration. Consequently, no reliance can be placed on the evidence that Ram Kishan led the police party to the place of occurrence of this case and pointed out the same in pursuance of any such disclosure statement.
It is case of prosecution that on 19.9.2001 Ram Kishan was arrested in in this case by Inspector B.R.Mann. But it is not case of prosecution that Ram Kishan made any disclosure statement before Inspector B.R.Mann regarding his involvement in this case. No recovery of any fact is alleged to have been made from Ram Kishan during the period he remained in custody of Police of P.S.Shalimar Bagh. For the reasons recorded above, in view of statement of PW1 Allaudin no reliance can be placed on the test identification parade of Ram Kishan and his identification as accused, when PW1 clearly stated that he was shown photographs of the accused and terrorized by the police.
The parcel containing country made pistol and cartridge allegedly recovered from Ram Kishan accused was sent to FSL for analysis. The pistol was found to be a country made pistol of .315"bore. As discussed above, prosecution has failed to prove factum of recovery of country made pistol or cartridge from Ram Kishan on 18.9.2001, as none of the witnesses to recovery has been examined in this case. Even otherwise, as per report of the expert (Ex.PX), no opinion could be given if the fired empty cartridge of .315" bore had been fired through country made pistol .315" bore or not, due to insufficient data. -29-
As a result, this court comes to the conclusion that prosecution has failed to connect even Ram Kishan accused with commission of the present crime.
CONCLUSION:
In view of the above discussion, both the accused Ram Kishan and Chotu Singh are acquitted of the charges framed against them. Case property be destroyed in according with rules on expiry of period of appeal/revision, if none is preferred or subject to decision thereof. File be consigned to record room.
Announced in open court today on 2nd of April, 2007 [NARINDER KUMAR] ASJ: FTC: Rohini 02.04.2007