Delhi District Court
State vs . Pinku @ Kana & Ors. on 5 October, 2018
State Vs. Pinku @ Kana & Ors.
IN THE COURT OF PAWAN KUMAR MATTO,
SPECIAL JUDGE (NDPS), ADDITIONAL SESSIONS JUDGE,
NORTHWEST, ROHINI COURTS, DELHI
New Sessions Case Number : 51782/2016
State
versus
1. Pinku @ Kana
S/o. Sh. Sita Ram
R/o. H. No. 165, Gali No. 8,
Ambedkar Nagar, Haider Pur, Delhi.
2. Mohd. Afsar
S/o. Mohd. Akhtar
R/o. H. No. B177, Mange Ram Park, Budh Vihar, Delhi
3. Ranjeet @ Bihari
S/o. Shamsher Singh
R/o. Village Karoundhi, PS Mohali, District Sitapur, UP
4. Neeraj @ Dheeraj
S/o. Sh. Mange Ram
R/o. H. No. 202, Pitampura Village, Delhi.
First Information Report Number : 37/2011
Police Station : Maurya Enclave.
Under section : 302/394/397/34 of the Indian Penal Code.
& 25/27 Arms Act.
Date of institution : 19.10.2011
Date of receiving the case by way of transfer
in this court : 09.10.2017
FIR No.37/11 PS Maurya Enclave Page No. 1/98
State Vs. Pinku @ Kana & Ors.
Final Arguments concluded on : 26.09.2018
Date of judgment : 05.10.2018
JUDGMENT
1. Brief facts of the case are that on 06.02.2011, DD No. 24A was registered at 9:47 PM. wherein it was mentioned that two boys had caused two gun shots injuries and snatched away the bag. This DD was assigned to SI Deepak Kumar. Accordingly, SI Deepak along with Ct. Sukhbir had arrived at the spot which was near AP Block Market, Pitam Pura, near 28 Baba Jewellers Delhi, where, they found three empty bullets of 9mm and the scene of crime was preserved and SHO along with his staff also arrived at the spot and it was revealed that two injured were taken to the hospital. SI Deepak left Ct. Sukhbir for protecting the place of occurrence and he went to the Saroj hospital and he collected the MLC No.3151/11 of Ghanshyam Dass Garg and MLC No.3152/11 of Chitranjan and their gun shot injuries were kept under observation and patients were unfit for making statement. It is further stated that the Ghanshyam Dass had suffered gun shot injury in his abdomen and left ankle. Whereas, Chitranjan had suffered bullet injury in his left ankle. It is also stated that no eye witness met him there and on inquiry, it was revealed that the injured had a shop of jewellery, whose bag was snatched. So, offences under Section 394/397/34 IPC and 25/27/54/59 of Arms Act were made out. Accordingly, rukka through Ct. Sukhbir was sent. Accordingly, the present FIR was registered. The crime team had inspected the spot. Three empty covers of bullet, damaged lead of bullets, blood samples from the place of FIR No.37/11 PS Maurya Enclave Page No. 2/98 State Vs. Pinku @ Kana & Ors.
occurrence, blood stained earth, earth control and then damaged leads were picked and after making the parcels, they were sealed and seized, which were deposited in the malkhana and site plan was prepared at the instance of Karan, who had admitted to Ghanshyam Dass Garg in the Sir Ganga Ram hospital, where, he expired on dated 10.03.2011, during his treatment. Then with the order of DCP, investigation of the case was assigned to Inspector Rajbir and on dated 11.03.2011, the dead body of deceased was obtained from the mortuary of Ganga Ram Hospital and postmortem of the body of Ghanshyam Dass Garg was also got done in Babu Jagjeevan Ram hospital and the doctor had opined that, "the death was due to septicemia consequent upon infected injuries could be done to gun shot injuries as alleged" and body of the deceased was handed over to the legal heirs of the deceased. It is also stated that after postmortem, the doctor had given sealed sample of blood of the deceased, which was deposited in the malkhana on dated 20.02.2011. Accused Pinku @ Kana was arrested in another FIR No. 407/10 u/s. 379/356/34 of IPC registered in PS Maurya Enclave, wherein, he had made disclosure statement and he was arrested on dated 21.02.2011 in this case and he was remanded to judicial custody. An application for TIP was moved, but, accused Pinku @ Kana had refused for TIP. It is further stated that that police custody of this accused was obtained. But, no case properties could be recovered and on dated 20.02.2011, accused Mohd. Afsar was arrested in another case registered vide FIR No.48/11 u/s.25 of the Arms Act in the police station Maurya Enclave and he had made disclosure statement regarding his participation in the commission of offences in this case FIR No.37/11 PS Maurya Enclave Page No. 3/98 State Vs. Pinku @ Kana & Ors.
and on dated 18.03.2011, Mohd. Afsar was interrogated with the permission of the court and he was also arrested in this case and TIP proceedings of Mohd. Afsar was got concluded, wherein, Chitranjan had correctly identified to Mohd. Afsar and police custody of accused Mohd. Afsar was obtained and efforts were made by the police to recover robbed property. But, accused Mohd. Afsar and Pinku @ Kana had told to the police that on the day of occurrence, their coaccused Ranjit @ Bihari had taken with him the property robbed from the Gold Smith (deceased) and Ranjit had told them to divide the same in equal share subsequently. But, thereafter, he did not meet them. Mohd. Afsar and Pinku @ Kana also told to the police that Ranjit @ Bihari had caused bullet injuries to the Gold Smith (deceased) and his servant and he had snatched the bag of the deceased. It is further stated that accused Mohd. Afsar and Pinku @ Kana had also told that in this occurrence Neeraj @ Dhiraj s/o Mange Ram R/o H.No.202, Village Pitampura, Delhi, Raju and Amit had also participated and since initially, only Pinku @ Kana and Mohd. Afsar were arrested and other accused could not be arrested. So, on completion of the investigation, the charge sheet was filed only against accused Pinku @ Kana and Mohd. Afsar u/s. 394/397/302/34 of IPC and after supplying the copies of the charge sheet, the case was committed to the court of Sessions and it was assigned to the court of Ld. Additional Sessions Judge. Thereafter, the accused Ranjit @ Bihari and Neeraj @ Dheeraj who were arrested in another case registered vide FIR No. 113/11 u/s. 395/397 of IPC and 27/54/59 of Arms Act, in PS North Rohini, on 23.06.2011 and they had also made disclosure statements regarding their involvement in the FIR No.37/11 PS Maurya Enclave Page No. 4/98 State Vs. Pinku @ Kana & Ors.
present case. They were also arrested in this case on dated 24.06.2011. Police custody of accused Ranjit @ Bihari for two days was obtained and efforts were made to recover the case property and weapon used in the commission of crime, but, the same could not be recovered and accused Amit and Raju could not be arrested and accused Neeraj @ Dhiraj had refused for TIP. His PC remand for one day was obtained and try to find accused Raju and Amit was made, but, they could not be apprehended. On completion of the investigation against accused Ranjit @ Bihari and Neeraj @ Dhiraj, the supplementary charge sheet u/s. 394/397/302/34 of IPC was also filed against accused Ranjit @ Bihari and Neeraj @ Dhiraj and committed to the court of Sessions and assigned to the same court of Ld. Addl. Sessions Judge and on finding of prima facie case, charges under Section 392/34, 394/34 and 302/34 of IPC were framed against all these four accused. Whereas, additional charge under Section 397 of IPC was framed against accused Ranjit @ Bihari and all these four accused pleaded not guilty and claimed trial. So, all these four accused were put on the trial.
2. Since, this was an old case registered way back in the year 2010, so, it was transferred to this court and this court has received this case on dated 09.10.2017.
3. In order to prove its case, the Prosecution has examined 32 witnesses.
4. HC Mohar Pal Singh has been examined as PW1. The opportunity to cross examine this witness was given to the accused.
FIR No.37/11 PS Maurya Enclave Page No. 5/98But, the counsels for accused did not cross examine this witness. So, the opportunity of the accused to cross examine this witness was done NIL.
5. Whereas, ASI Raju Yadav has been examined as PW2. The opportunity to cross examine this witness was given to the accused. But, the counsels for accused did not cross examine this witness. So, the opportunity of the accused to cross examine this witness was done NIL.
6. Whereas, Shri Ashwini Aggarwal has been examined as PW3. The opportunity to cross examine this witness was given to the accused. But, the counsels for accused did not cross examine this witness. So, the opportunity of the accused to cross examine this witness was done NIL.
7. Whereas, Shri Shyam Sunder Garg has been examined as PW4. The opportunity to cross examine this witness was given to the accused. But, the counsels for accused did not cross examine this witness. So, the opportunity of the accused to cross examine this witness was done NIL.
8. Whereas, HC Ashok Kumar has been examined as PW5. This witness was crossexamined by Ld. Counsels for all the accused.
9. Whereas, Ct. Sukhbir has been examined as PW6. He was also crossexamined by Ld. Counsels for all the accused.
FIR No.37/11 PS Maurya Enclave Page No. 6/9810. Whereas, Dr. Bhim Singh has been examined as PW7. He was also crossexamined by Ld. Counsels for all the accused.
11. Whereas, Ct. Rajbir Sangwan has been examined as PW8. He was also crossexamined by Ld. Counsels for the accused.
12. Whereas, Ct. Ashok Kumar has been examined as PW9. He was also crossexamined by Ld. Counsels for the accused.
13. Whereas, SI Manohar Lal has been examined as PW10. He was also crossexamined by Ld. Counsels for all the accused.
14. Whereas, Ct. Subhash has been examined as PW11. He was also crossexamined by Ld. Counsels for all the accused.
15. Whereas Dr. N. P. Waghmare has been examined as PW12. The opportunity to cross examine this witness was given to the accused. But, the counsels for accused did not cross examine this witness. So, the opportunity of the accused to cross examine this witness was done NIL.
16. Whereas, HC Vinod Kumar has been examined as PW13. This witness was also crossexamined by Ld. Counsels for the accused.
17. Whereas, SI Vikas Kumar has been examined as PW14. This FIR No.37/11 PS Maurya Enclave Page No. 7/98 State Vs. Pinku @ Kana & Ors.
witness was also crossexamined by Ld. Counsels for the accused.
18. Whereas, Sh. Dheeraj Mor, Ld. MM has been examined as PW
15. The opportunity to cross examine this witness was given to the accused. But, the counsels for accused did not cross examine this witness. So, the opportunity of the accused to cross examine this witness was done NIL.
19. Whereas, Ct. Rajbir has been examined as PW16. This witness was also crossexamined by Ld. Counsels for the accused.
20. Whereas, Ct. Dalip Kumar has been examined as PW17. The opportunity to cross examine this witness was given to the accused. But, the counsels for accused did not cross examine this witness. So, the opportunity of the accused to cross examine this witness was done NIL.
21. Whereas, W/Ct. Sumitra has been examined as PW18 ( and also examined as PW 28). This witness was also crossexamined by Ld. Counsels for all the accused.
22. Whereas, Sh. Chitranjan, has been examined as PW19. He was also cross examined by the Ld. Counsels for all the accused.
23. Whereas, Dr. Ravi Kant has been examined as PW20. The opportunity to cross examine this witness was given to the accused. But, the counsels for accused did not cross examine this witness. So, FIR No.37/11 PS Maurya Enclave Page No. 8/98 State Vs. Pinku @ Kana & Ors.
the opportunity of the accused to cross examine this witness was done NIL.
24. Whereas, Sh. Karan Garg has been examined as PW21. The opportunity to cross examine this witness was given to the accused. But, the counsels for accused did not cross examine this witness. So, the opportunity of the accused to cross examine this witness was done NIL.
25. Whereas, SI Matadin has been examined as PW22. He was also cross examined by the Ld. Counsels for all the accused.
26. Whereas, HC Radha Kishan has been examined as PW23. The opportunity to cross examine this witness was given to the accused. But, the counsels for accused did not cross examine this witness. So, the opportunity of the accused to cross examine this witness was done NIL.
27. Whereas, Dr. Sukh Ram has been examined as PW24. The opportunity to cross examine this witness was given to the accused. But, the counsels for accused did not cross examine this witness. So, the opportunity of the accused to cross examine this witness was done NIL.
28. Whereas, Shri Naresh Kumar has been examined as PW25. The opportunity to cross examine this witness was given to the accused. But, the counsels for accused did not cross examine this witness. So, FIR No.37/11 PS Maurya Enclave Page No. 9/98 State Vs. Pinku @ Kana & Ors.
the opportunity of the accused to cross examine this witness was done NIL.
29. Whereas, Shri Satyender Gosain has been examined as PW26. The opportunity to cross examine this witness was given to the accused. But, the counsels for accused did not cross examine this witness. So, the opportunity of the accused to cross examine this witness was done NIL.
30. Whereas, Ms. Shunali Gupta has been examined as PW27. The opportunity to cross examine this witness was given to the accused. But, the counsels for accused did not cross examine this witness. So, the opportunity of the accused to cross examine this witness was done NIL.
31. Whereas, Ct. Ravinder has been examined as PW29. The opportunity to cross examine this witness was given to the accused. But, the counsels for accused did not cross examine this witness. So, the opportunity of the accused to cross examine this witness was done NIL.
32. Whereas, SI Deepak, has been examined as PW30. He was also cross examined by the Ld. Counsel for the accused.
33. Whereas, Inspector Mukesh, has been examined as PW31. He was also cross examined by the Ld. Counsel for all the accused.
FIR No.37/11 PS Maurya Enclave Page No. 10/9834. Whereas, Inspector Rajbir Singh, has been examined as PW32. He was also cross examined by the Ld. Counsel for all the accused.
35. Whereas, Dr. Tarun Mittal has been examined as PW33. The opportunity to cross examine this witness was given to the accused. But, the counsels for accused did not cross examine this witness. So, the opportunity of the accused to cross examine this witness was done NIL.
36. On completion of the evidence of the prosecution, the statements of all the accused persons u/s 313 Cr. PC were recorded and all the incriminating evidence led by the prosecution against them was put before them and all the accused persons have denied the correctness of the evidence led against them by the prosecution and pleaded innocence.
37. I have heard the Ld. Counsels for the parties.
38. Ld. APP for state has submitted that in the case in hand, two bullet injuries were caused by accused Ranjit to the deceased Ghanshyam Dass Garg. Whereas, one bullet injury was caused on the ankle of Chitranjan (PW19) and further submitted that MLC of Ghanshyam Dass and Chitranjan (PW19) reveal that on the day of occurrence, on 06.02.2011, they were not fit for making statements. So, the statement of Chitranjan (PW19) was recorded on 09.02.2011 and further submitted that since Neeraj and Pinku @ Kana had refused to FIR No.37/11 PS Maurya Enclave Page No. 11/98 State Vs. Pinku @ Kana & Ors.
participate in the judicial TIP, so, adverse inference may be drawn against them and further submitted that accused Afsar and Ranjeet were identified in the judicial TIP by PW19 and PW19 Chitranjan has also identified them in the court at the time of recording of his testimony and further submitted that since accused Neeraj had robbed the bag of the deceased from Chitranjan (PW19). Whereas accused Ranjit has been identified as shooter and submitted that the delay in recording of the statement of the witnesses of prosecution cannot be held to be fatal in view of unfitness of Chitranjan and deceased for making statements and submitted that since the prosecution has proved on record that all these four accused had robbed away the bag of the deceased after causing two bullet injuries on the person of Ghanshyam Dass and one bullet injury on the person of the Chitranjan and in view of the same, injuries caused to the Ghanshyam Dass Garg, he died on dated 10.03.2011. So, all the accused are liable to the convicted u/s.392/34, 394/34, 302/34 of IPC. Whereas accused Ranjit has used deadly weapon ie one pistol. So, he is also liable to be convicted u/s. 397 of IPC.
39. On the other hand, Ld. Counsels for accused have submitted that PW19 Chitranjan has admitted during his crossexamination that he was able to speak when he was removed to the hospital and further submitted that he was able to speak, till he was in the hospital and further submitted that when PW19 Chitranjan was able to speak in the hospital, then why, the statement of this witness was not recorded by the IO promptly and in view of the delay in recording statement of FIR No.37/11 PS Maurya Enclave Page No. 12/98 State Vs. Pinku @ Kana & Ors.
PW19, the possibility of after thought and colourful version cannot be ruled out and further submitted that site plan is alleged to have prepared by the IO at the instance of son of deceased namely Karan and submitted that PW19 Chitranjan could be the good witness, at whose instance, the site plan could be prepared and also submitted that testimony of the PW19 is contradictory and further submitted that in his examination in chief, he has deposed that he was shouting and some persons came to rescue them from the Sharma dhaba and accused persons had fled away from the spot. Whereas, in his cross examination, he has stated that no public witness was present there and further submitted that Ld. Addl PP has argued that accused Neeraj has been identified as snatcher of the bag. Whereas, Ld. Addl PP for the State had given suggestion to this witness during his cross examination by Ld. Addl. PP for the State that accused Pinku had snatched away the bag and this witness had admitted the same suggestion to be correct and thus the testimony of this witness is inconsistent to his previous testimonies and further submitted that since this witness had categorically admitted that he had not given any facial description of any of the accused to the IO, so on what basis the IO had arrested the accused persons, is also a mystery and further submitted that PW19 who is alleged to be an eye witness has admitted during his crossexamination that when bullet injury was caused on the person of this witness, he became concerned for saving his life and therefore, he did not not see the assailants and submitted that since this witness had admitted during his crossexamination that accused Pinku @ Kana and Afsar were not seen at the spot, they may be around the spot, but not FIR No.37/11 PS Maurya Enclave Page No. 13/98 State Vs. Pinku @ Kana & Ors.
seen by this witness. So, the testimony of this witness is inconsistent, contradictory and suspicious, so it cannot be relied upon and further submitted that since this witness has admitted in his crossexamination that for about 7 days, he remained in police station, so the possibility of tutoring this witness cannot be ruled out and in view of the material inconsistencies in the testimony of this witness, accused cannot be convicted and in view of the suspicious testimony of this witness. Ld. Counsels for the accused have further submitted that DD No. 24A dated 06.02.2011 was registered on the 100 number call given by Munish, but, neither the statement of this witness Munish was recorded by IO nor he is produced in the court. They have further submitted that statement of Chitranjan recorded on different dates are contradictory to each other. It is further submitted that the testimony of this witness is found to be contradictory and inconsistent. So, it cannot be relied upon. If the crossexamination of this witness is looked into, the accused Pinku was already shown to this witness by the police. So, even if TIP was done, it is inconsequential. It is further submitted that this PW 19 is the alleged eye witness and at the time of recording of his first statement by the IO, he has no where told about the description of the any of the accused either they were tall, long, fat or thin, so, the TIP of accused Pinku @ kana conducted cannot be read against the accused. Ld. Counsel for the accused has also submitted that accused have been falsely implicated in the present case and neither any pistol nor any alleged robbed money or articles have been recovered from any of the accused and further submitted that testimony of injured, who has been examined as PW 19 is full of contradictions, as at the time of FIR No.37/11 PS Maurya Enclave Page No. 14/98 State Vs. Pinku @ Kana & Ors.
recording of his first statement by the IO, he has not named all the accused and further submitted that the Chitranjan in his first statement Ex.W19/DA recorded by the IO has levelled the allegations of firing and snatching of bag against Ranjit. Whereas, at the time of recording of his statement Ex.PW19/A, he has alleged that bag was snatched by accused Pinku @ Kana and further submitted that at the time of his examination in the court, he has alleged that bag was snatched by Pinku @ Kana and stated that Pinku @ Kana and Afsar were not there. Accused Pinku @ Kana was arrested in the case registered vide FIR No. 407/2010, u/s. 379 of IPC and while he was in the judicial custody, then, he was arrested in the present case and case of the prosecution is based on the disclosure statements of accused which are not admissible under the law. He has further submitted that in the case in hand PCR call was made by Munish and he has not been examined by the IO nor he is produced in the court and further submitted that DD No. 24A dated 06.02.2011 was registered at 9:47 PM on the call of Munish, wherein, it was alleged that boys shooted and robbed away the bag. He has further submitted that occurrence is alleged to have taken place on 06.02.2011, whereas, the IO has recorded the first statement of Chitranjan on 09.02.2011 and delay in recording of the statement of this witness has not been explained and in view of delay in recording of the statement of this witness, doubts are created in the version of the prosecution. He has further submitted that at the time of cross examination of this witness (PW19) in the court dated 19.02.2015. This witness has admitted that he did not see accused Afsar and Pinku at the spot and doubts are created, since PW19 Chitranjan has deposed FIR No.37/11 PS Maurya Enclave Page No. 15/98 State Vs. Pinku @ Kana & Ors.
that he was able to speak. So, he was fit for making statement and in view of delaying of recording of statement, the possibility of after thought version cannot be ruled out and also submitted that thus on the testimony of PW 19, it is clear that he failed to support the case of the prosecution. He has further submitted that this witness has admitted that accused Pinku @ Kana and Afsar were not seen by him at that spot and also submitted that PW 30 SI Deepak has admitted that on dated 09.02.2011, he did not ask to witness Chitranjan about the description of the accused. He has further submitted that Chitranjan in his statement recorded u/s. 161 Cr.PC recorded on dated 09.02.2011, he has alleged that one person who had given fist blow, robbed bag and jewellery, same person had caused bullet injury to the deceased and also to this witness, he has named him as Ranjit and whereas, at the time of recording of supplementary statement Ex.PW19/A u/s 161 Cr.PC. on dated 28.02.2011, he has alleged that the bag snatched by Pinku @ Kana and during his crossexamination, he has admitted that on dated 28.02.2011, he had not gone to Pitam Pura and also admitted that IO did not meet him on 28.02.2011 and submitted that if this witness did not go at Pitam Pura on 28.02.2011 and he did not meet IO on 28.02.2011, then, how his supplementary statement on 28.02.2011 could be recorded. He has further submitted that site plan is alleged to have been prepared at the instance of Karan, who has been examined as PW21 whereas, Karan was not present at the spot at the time of alleged occurrence, so, how could he tell about the occurrence. He has further submitted that testimony of PW19 is full of improvements and contradictions and also submitted that occurrence is alleged to have FIR No.37/11 PS Maurya Enclave Page No. 16/98 State Vs. Pinku @ Kana & Ors.
taken place near Sharma Dhaba, but, none has been examined Sharma Dhaba by the IO and the Ld. Counsel for accused has further submitted that PW19 Chitranjan, who is the star witness of the prosecution has failed to support the case of the prosecution, as PW19 has admitted during his cross examination that accused Mohd. Afsar was shown to him in police station by the police officials. He has further submitted that during his examination in chief, this PW19 has admitted that Pinku and Afsar were not seen at the spot. He has further submitted that the testimony of this witness is not reliable being contradictory to his statements recorded under section 161 Cr.PC. He has further submitted that Chitranjan was able to speak even on the date of occurrence i.e. on dated 06.02.2011, 07.02.2011 and 08.02.2011, but, the statement of this witness was not recorded on the said date and it also creates clouds of suspicion on the version of the prosecution and PW30 has deposed in the court that he did not know when PW19 was discharged and none of the accused were named in the FIR and submitted that since, the testimony of this PW19 is found to be inconsistent, so, it is not reliable and it would not be safe to convict the accused, on such inconsistent and unreliable testimonies of the witnesses of the prosecution and submitted that since, the accused have been falsely implicated in the present case, so, they are liable to be acquitted.
40. I have given the thoughtful consideration to the submissions made by counsel for the parties and perused the record. Since perusal of the record reveals that in the case in hand that on 06.02.2011, DD FIR No.37/11 PS Maurya Enclave Page No. 17/98 State Vs. Pinku @ Kana & Ors.
No. 24A Ex.PW1/A was registered at 9:47 PM. wherein it was mentioned 2 boys had caused gun shots injuries and robbed away the bag. This DD was assigned to SI Deepak Kumar who had arrived at the spot alongwith the Ct. Sukhbir. SI Deepak Kumar had prepared the rukka and sent to the Police Station through Ct. Sukhbir on the basis of which FIR No. 37/11 was registered u/s.394/397/34 of IPC and 25/27 of Arms Act and investigation was carried out and in order to prove its ase, the prosecution has examined 32 witnesses.
41. HC Mohar Pal Singh has been examined as PW1, who has deposed that on 06.02.2011, he was posted as PS Maurya Enclave as duty officer and his duty hours were from 4:00 PM to 12:00 midnight and on that day, at about 9:47PM, he was given information by telephone operator through intercom that two boys had fired shots at AP Market and ran away and the said information was reduced into writing vide DD No. 24A dated 06.02.2011 by him and thereafter, the said DD was handed over to SI Deepak Kumar. He has proved the copy of DD No. 24A Ex.PW1/A and deposed that on the same day i.e. 06.02.2011, at about 11:55p.m., he had received a rukka through Ct. Sukhvir, sent by SI Deepak for the registration of the case and after receiving the rukka, he made endorsement Ex.PW1/B and FIR No.37/11 u/s. 397/394/34 IPC and 25/27/59 Arms Act was got registered by him through computer operator. He has further deposed that after registration of the case, the investigation was assigned to SI Deepak Kumar and he handed over computerized copy of FIR and rukka in original to Ct. Sukhvir and proved the computerized copy of FIR FIR No.37/11 PS Maurya Enclave Page No. 18/98 State Vs. Pinku @ Kana & Ors.
Ex.PW1/C. The opportunity to cross examine this witness was given to the counsels for accused. But, this witness was not crossexamined by the Ld. Counsels for the said accused, so, the opportunity of the accused to cross examine this witness was done NIL.
42. Whereas, ASI Raju Yadav has been examined as PW 2, who has deposed that on 21.02.2011, he was posted at police station Maurya Enclave as ASI and on that day, he had joined the investigation of the present case with IO SI Deepak and HC Ashok Kumar. He has further deposed that when, they were present at GP Block, Pitampura and IO SI Deepak was talking with secret informer, in the meantime, SI Deepak received an information that accused Pinku @ Kana was in the lockup at PS and accused Pinku had made disclosure about his involvement in the present case. He has further deposed that thereafter, they immediately came back to the PS and IO SI Deepak took out accused Pinku from the lockup, who was in muffled face at that time and accused was interrogated by the IO and he made disclosure statement Ex.PW2/A. He has further deposed that accused Pinku was arrested in the present case vide memo of arrest Ex.PW2/B and his personal search was also conducted vide personal search memo Ex.PW 2/C and accused Pinku led them to the spot of incident at AP Market, Pitampura, where, the pointing out memo Ex.PW2/D was prepared at his instance and accused Pinku also told to the IO that he and his other coaccused namely Ranjit, Afsar, Amit, Raju and Neeraj used to meet at Railway Line Keshav Puram. Accordingly, they went to the Railway Line Keshavpuram. However, none of the coaccused of accused Pinku met FIR No.37/11 PS Maurya Enclave Page No. 19/98 State Vs. Pinku @ Kana & Ors.
them there. He has further deposed that thereafter at the instance of Pinku, they went to the residence of accused Neeraj at H.No.202, Gadariya Mohalla, Village Pitampura, Delhi. But, accused Neeraj was not found there and pointing out memo Ex.PW2/E in this regard was also prepared by the IO and thereafter, accused Pinku was brought back to PS. Accused Pinku was correctly identified by this witness in the court. The opportunity to cross examine this witness was given to the counsels for accused Mohd. Afsar, Ranjeet @ Bihari and Neeraj @ Dhiraj, but, they did not cross examine this witness, so, their opportunity to cross examine this witness was done NIL. Whereas, Ld. Counsel for accused Pinku @ Kana has crossexamined this witness and during his crossexamination, this witness has deposed that he did not remember as to at what time, he arrived in the hospital on 11.03.2011 and also deposed that there were 78 persons with him.
43. Whereas, Sh. Ashwini Aggarwal has been examined as PW 3, who has deposed that on 11.03.2011, he had identified the dead body of deceased Ghanshyam Dass Garg, (who was his friend) at the mortuary of BJRM Hospital vide dead body identification memo Ex.PW 3/A and after identifying the dead body, same was taken by them for the last rites. This witness was cross examined by Ld. Counsel for accused Pinku @ Kana and during his cross examination, he has deposed that he did not remember the time, when, he reached in the hospital on dated 11.03.2011, but, it was morning time and there were 7/8 other persons with him at that time. The opportunity to cross examine this witness was given to the counsels for accused, but, they did not cross FIR No.37/11 PS Maurya Enclave Page No. 20/98 State Vs. Pinku @ Kana & Ors.
examine him, so opportunity of the accused to cross examine this witness was done NIL.
44. Whereas, Sh. Shyam Sunder Garg has been examined as PW4, who has deposed that on 11.03.2011, he identified the dead body of deceased Ghanshyam Dass Garg, who was his real uncle (Chacha) at the mortuary of BJRM Hospital vide dead body identification memo Ex. PW 4/A and after identifying the dead body, same was taken by them for the last rites. This witness was cross examined by Ld. Counsel for accused Pinku @ Kana, during his cross examination, he has deposed that he did not remember the time, when, he reached in the hospital on 11.03.2011, but, it was morning time. There were 7/8 other persons with him at that time. The opportunity to cross examine this witness was given to the counsels for accused, but, they did not cross examine him, so opportunity of the accused to cross examine this witness was done NIL.
45. Whereas, HC Ashok Kumar has been examined as PW 5, who has deposed that on 21.02.2011, he was posted at PS Maurya Enclave and on that day, he alongwith ASI Raju joined the investigations of the present case with IO SI Deepak Kumar. He has further deposed that they went in search of accused persons of the present case and when, they were present at GPBlock, Pitampura, SI Deepak received an information that one accused, who was arrested in some another case, made disclosure statement about his involvement, in the present case. He has further deposed that after receiving this information, they went FIR No.37/11 PS Maurya Enclave Page No. 21/98 State Vs. Pinku @ Kana & Ors.
to PS Maurya Enclave, where one accused was found in lockup of the PS in muffled face, whose name was revealed as 'Pinku @ Kana' and the said accused was taken out by SI Deepak Kumar from lock up and was interrogated and he made disclosure statement Ex. PW 2/A. He has further deposed that thereafter the accused was arrested vide memo of arrest Ex. PW 2/B and his personal search was also conducted vide memo of personal search Ex. PW 2/C and thereafter accused Pinku, who was in muffled face, led the police party to the spot i.e. in Gali of APBlock Market, Pitampura and he pointed out the place, while saying that he alongwith his the coassociate fired on a jeweller and his servant and robbed bag containing jewellery from them. This witness has proved pointing out memo Ex. PW 2/D which was prepared by the IO and further deposed that thereafter accused Pinku led the police party near Railway Track at Keshav Puram in search of his other coassociates, but, none was found there. He has further deposed that thereafter accused Pinku led the police party to the house of coaccused Neeraj at Village Pitampura i.e. H. No.202 and he pointed out vide pointing out memo Ex. PW 2/E that the said house belongs to his coaccused Neeraj, but, accused Neeraj was not found present there and after the medical examination of accused Pinku at BSA Hospital, he was brought to PS and he was put in the lockup and his statement was recorded by the IO in this regard. He has further deposed that on 18.03.2011, he again joined the investigations of the present case with the IO Inspector Rajbir Singh and on that day, he accompanied the IO to Rohini Court, where, accused Mohd. Afsar was produced, on production warrant. Inspector Rajbir Singh formally FIR No.37/11 PS Maurya Enclave Page No. 22/98 State Vs. Pinku @ Kana & Ors.
arrested the accused Mohd. Afsar after seeking permission from the court, vide arrest memo Ex PW 5/A. He has further deposed that during the course of interrogation accused Mohd. Afsar made disclosure statement Ex.PW5/B. This witness has correctly identified to accused Pinku @ Kana and Mohd. Afsar who were present in the court. This witness was also cross examined by Ld. Counsel for accused. During his crossexamination, he has denied that disclosure statement of accused Pinku was forged and fabricated, while sitting at PS or that the names of the accused persons Mohd. Afsar and Neeraj were involved later on while sitting in the PS. He has deposed that they interrogated the accused Pinku @ Kana in PS Maurya Enclave, where, he was arrested by the concerned police and at that time, when, accused Pinku @ Kana was interrogated, he was muffled face. He did not recognize the accused Pinku @ Kana, as he was muffled face at that time. At the time of interrogation at PS Maurya Enclave the accused Pinku @ Kana was empty handed and accused was already in lock up of Police Station, when, he was taken out for interrogation and hence, no incriminating material regarding this case was with him at that time.
46. Whereas, Ct. Sukhbir has been examined as PW 6, who has deposed that on 06.02.2011 he was posted as constable in PS Maurya Enclave and on that day, DD no. 24A was received by SI Deepak Kumar and after receiving the above said DD, he accompanied SI Deepak to AP Block Market, Pitam Pura, Delhi. He has deposed that on reaching there, they came to know that two persons received bullet injuries and their bag was snatched by someone and the injured were FIR No.37/11 PS Maurya Enclave Page No. 23/98 State Vs. Pinku @ Kana & Ors.
already taken to the hospital and the blood was found lying at two places at the spot, empty cartridges (fired cartridges) and two damaged lead of bullets were also found lying at the spot. He has further deposed that thereafter, SI Deepak went to the hospital after leaving him at the spot for safe guard of the spot and subsequently, SI Deepak returned to the spot. He has further deposed that Crime team was also called at the spot, who inspected the spot and took the photographs. SI Deepak prepared rukka on the basis of DD no. 24A and he took the same to PS for registration of the case. Subsequently, he returned to the spot after getting the case registered and he handed over rukka in original and computerized copy of FIR Ex.PW1/C to SI Deepak. He has further deposed that blood, blood stained earth and earth control were also lifted from the spot and same were put in six separate plastic jars and said jars were converted into parcels of cloth and were sealed parcels with the seal of DD and were taken into possession, vide seizure memo Ex. PW 6/A and IO SI Deepak had also lifted the three empty cartridges and both damaged leads of the bullet and same were put in a transparent plastic dibbi(jar) and said dibbi was converted into parcel of the cloth and the parcel was sealed with the seal of DD and was taken into possession vide seizure memo Ex. PW 6/B. He has further deposed that the seal was handed over to him after use and on 25.03.2011, he again joined the investigations of the present case and on that day, doctor of Saroj Hospital handed over two parcels sealed with the seal of SHARMA to the IO, who took the same into possession vide seizure memo Ex.PW6/C. He has further deposed that on 16.08.2011, MHC(M) handed over two parcels alongwith one sample FIR No.37/11 PS Maurya Enclave Page No. 24/98 State Vs. Pinku @ Kana & Ors.
seal to him and he took the same to FSL Rohini vide RC no. vide RC NO. 8521/11 and deposited the same at FSL, Rohini and he obtained the receipt from FSL and handed over the same to MHC(M). He has further deposed that during the period, the parcel remained in his custody neither he nor any other person tampered with the same. He has correctly identified plastic container/dibbi wrapped in a cloth parcel bearing particular of the case FIR and seal of DD and on opening the plastic container, it is found to contain three 9 MM empty cartridge cases in a transparent polythene bag, on which EC1 to EC3 has been written and two deformed/damaged metallic pieces (Damaged leads of the bullet) Ex. P1 and damaged leads of the bullet are Ex P2. This witness was also cross examined by ld. Counsel for accused. During his crossexamination he has denied that he never joined the investigation or that his signatures were obtained later on while sitting in the PS or nothing was seized in his presence or that he never visited the place of incident.
47. Whereas, Dr. Bhim Singh has been examined as PW 7, who has deposed that on 11.03.2011 at about 1130 AM, he had conducted the postmortem on the dead body of deceased Ghanshyam Dass Garg S/o. Late M. L. Garg, at the request of Inspector Rajbir Singh of PS Maurya Enclave and on examination he found the following external injuries on the dead body:
1. Stitched laparotomy wound in the size of 30 cm on the left side of abdomen shows open wound 30CM X 18M into exposing intestines.
2. Stitched wound on left ankle joint with fracture dislocation.
FIR No.37/11 PS Maurya Enclave Page No. 25/983. 3 drainage wounds right side of abdomen
4. Tracheostomoy wound front on neck.
The blood sample in a gauze piece was sealed with the seal of 'BJRM Hospital' and handed over to the police and he opined about the cause of death was due to septicemia consequent upon infected injuries, which could be due to gun shot injuries as alleged. He has further deposed that time since death was about 19 hours and proved postmortem report Ex.PW7/A. This witness was also cross examined by Ld. Counsel for accused. During his crossexamination, he has deposed that he had conducted the postmortem examination after more than one month of the alleged incident and thus none of the actual injuries were visible during the postmortem and he only found surgical wounds on the dead body. He had received 13 papers at the time of postmortem, which included the copy of MLC of deceased from Saroj Hospital and Heart institute, death summary of Sir Ganga Ram Hospital and inquest papers prepared by the IO and he conducted the postmortem examination after going through those papers. He has further deposed that since, it was an operative case, he could not corelate the initial injuries with the findings during postmortem examination from the testimonies of the witness, it is clear that the cause of death of deceased Ghanshyam was septicemia consequent to the infected injuries.
48. Whereas, Ct. Rajbir Sangwan has been examined as PW 8 who has deposed that on 11.03.2011, he had joined the investigation with Inspector Rajbir Singh and they reached at Ganga Ram Hospital at FIR No.37/11 PS Maurya Enclave Page No. 26/98 State Vs. Pinku @ Kana & Ors.
about 9:30 AM and from there, one dead body was taken and brought to the mortuary of BJRM Hospital. He has further deposed that the dead body was got identified by one Shyam Sunderrelative and Ashwini Kumarfriend of the deceased and after postmortem on the dead body of the deceased, the same was handed over to his son Karan. He has further deposed that IO left him at the mortuary to collect the blood sample and viscera of the deceased. He has further deposed that he had remained at the mortuary till 5:00 PM and thereafter, he collected the sealed blood sample and sealed viscera of the deceased and brought them to PS and handed them over to IO, who seized the same vide seizure memo Ex.PW8/A. This witness was also cross examined by Ld. Counsel for accused. During his crossexamination, he has admitted that he did not know who was the deceased and the dead body was collected as directed by the IO.
49. Whereas, Ct. Ashok Kumar has been examined as PW 9, who has deposed that on 21.02.2011, he had joined the investigations with SI Vikas in case FIR No. 407/10 u/s. 379/356/411/34 IPC, as, SI Vikas received a secret information that accused Pinku was sitting in a District park, Pitampura and on receiving this information, they reached there. He has further deposed that at the instance of secret informer, accused Pinku @ Kana, was arrested. He has further deposed that accused made disclosure statement regarding his involvement in the present case. He has further deposed that accused Pinku @ Kana was arrested from inside the District Park, Pitampura, while he was sitting on a bench and IO recorded his disclosure statement, in which, he FIR No.37/11 PS Maurya Enclave Page No. 27/98 State Vs. Pinku @ Kana & Ors.
confessed regarding his involvement in the present case, as well as, in other cases and proved the copy of disclosure statement Ex.PW9/A and copy of memo of arrest of accused Pinku @ Kana Ex.PW9/B. This witness was also cross examined by Ld. counsel for accused Pinku @ Kana, During his crossexamination, who has deposed that he did not remember the date of registration of FIR No. 407/2010, PS Maurya Enclave. He had admitted it to be correct that nothing was recovered in pursuance of disclosure statement of accused Pinku @ Kana. He has denied that accused Pinku @ Kana did not make any disclosure statement Ex.PW 9/A or that the same was written by SI Vikas on his own or that signature of accused Pinku @ Kana were obtained on the same forcefully. Since, the disclosure statement Ex.PW9/A of accused Pinku @ Kana was recorded in the custody of the police and nothing has been recovered in furtherance of the the said disclosure statement of accused Pinku @ Kana. So, the entire disclosure statement of the accused Pinku @ Kana is inadmissible.
50. Whereas, SI Manohar Lal has been examined as PW 10, who has deposed that on 21.04.2011, he was posted as draftsman at North West District, Delhi and on that day, he alongwith IO Inspector Rajveer Singh and SI Deepak visited the place of occurrence i.e. AP Block Market, Pitam Pura, Delhi and he took the measurement on the place of occurrence at the instance of IO and SI Deepak and took rough notes. He has further deposed that on the basis of those measurement and rough notes, he had prepared the scaled site plan Ex. PW 10/A of the place of occurrence. After preparation of the scaled site plan and he FIR No.37/11 PS Maurya Enclave Page No. 28/98 State Vs. Pinku @ Kana & Ors.
destroyed the rough notes and his statement was recorded by the IO. This witness was also cross examined by Ld. Counsel for accused. During his crossexamination, he has denied that he did not visit the place of occurrence or that he had prepared the site plan while sitting in the PS, at the instance of IO.
51. Whereas, Ct. Subhash has been examined as PW 11, who has deposed that on 06.02.2011, he was posted as photographer at Mobile Crime Team, North West District, Delhi and on that day, on receiving the message from control room by Incharge SI M.D. Meena, he alongwith SI M.D. Meena (Incharge), and Ct. Ramesh Chand, Finger Print Proficient, reached at AP Block, Pitampura, Delhi and there, he took the photographs of the place of incident from different angles on the instructions of IO and Incharge of Crime Team and he has proved the eight negatives of those photographs Ex. PW 11/A1 to Ex. PW 11/A8 and the photographs Ex.PW 11/B1 to Ex.PW 11/B8. This witness was also cross examined by Ld. counsel for accused. During his cross examination, he has denied that he did not visit the place of occurrence or that he had manipulated the photographs, at the instance of IO.
52. Whereas, Dr. N. P. Waghmare has been examined as PW 12, who has deposed that on 01.08.2011, one sealed parcel sealed with the seal of FSL NK Delhi was sent internally by Biology Division to Ballistic Division and the seals on the parcels were intact. He has further deposed that on opening the parcel, it was found containing one full FIR No.37/11 PS Maurya Enclave Page No. 29/98 State Vs. Pinku @ Kana & Ors.
sleeve shirt mark S1, one half sleeve blue colour sweater mark SW1, one gray colour full sleeve thermowear mark TW1, one brown colour full pant mark P1, one white colour underwear mark U1, one white colour full sleeve shirt mark S2 having a hole mark exhibit 'H1' present on the lower left portion of backside, one white colour half sleeve thermowear mark TW2 having a hole marked as Ex. H2 present on lower left portion at back side and one white colour sando baniyan mark B1 having a hole marked as H3 present on the lower left portion at back side. He has further deposed that he took the cotton swab at and around the hole marked exhibit H1 present on the full sleeve shirt marked exhibit S1, H2 on half sleeve thermo wear marked exhibit TW2 and H3 present on white colour sando baniyan marked exhibit B1 alongwith respective controls and analyzed the same under the atomic absorption spectrometer for detection of gun shot residue/bullet residue. He has further deposed that after analyzing, he found that no opinion could be given whether the exhibit holes marked H1, H2 and H3 present on the above stated clothes marked exhibit S1, TW2 and B1, were caused due to gun shot residue/bullet residue or not, because of insufficient data available on them. He has proved his detailed report Ex. PW 12/A and his after examination the exhibits/remnants have been resealed with the seal of FSL NPW Delhi. The opportunity to cross examine this witness was given to the counsels for accused, but, they did not cross examine him, so opportunity of the accused to cross examine this witness was done NIL.
53. Whereas, HC Vinod Kumar has been examined as PW 13, who FIR No.37/11 PS Maurya Enclave Page No. 30/98 State Vs. Pinku @ Kana & Ors.
has deposed that on 20.02.2011, he was posted as HC in operation cell and on that day, he was handed over investigations of case FIR No. 48/11, u/s. 25 Arms Act, qua accused Mohd. Afsar son of Mohd. Akhtar, who was apprehended by the team of SI Ajay from Tpoint, AU Block, Outer Ring Road, Delhi, alongwith accused Naushad, Hari and Umar Ali and one desi katta was recovered from accused Mohd. Afsar after his apprehension and investigations after registration of FIR were handed over to him. He has further deposed that he had arrested accused Mohd. Afsar and recorded his disclosure statement, wherein, he had disclosed about his involvement in other cases and he had also disclosed about robbery of a jeweller, regarding which, a case was registered at PS Maurya Enclave. He has further deposed that he passed on the information to the concerned IO SI Deepak at PS Maurya Enclave regarding the same and Ct. Gajender was member of the team of SI Ajay and had joined investigations of the case FIR No. 48/11 with him . This witness was cross examined by Ld. Counsel for accused. During his crossexamination who has denied that disclosure statement of Mohd. Afsar was planted later on, while sitting in the PS or after due deliberation and consultation from senior officers, his involvement was shown in the present case or the alleged katta recovered from Mohd. Afsar was planted by them while sitting in the PS or that he did not join the investigation or that his statement was recorded by the IO, later on while sitting in the PS.
54. Whereas, SI Vikas Kumar has been examined as PW 14, who has deposed that on 21.02.2011, he was posted as SI in PS Maurya FIR No.37/11 PS Maurya Enclave Page No. 31/98 State Vs. Pinku @ Kana & Ors.
Enclave and on that day, he was handed over the investigation of the case FIR No.407/10 u/s.379/356/411/34 IPC wherein accused Chaman, Mallah and Neeraj were already arrested and he received a secret information that accused Pinku @ Kana, who was wanted in case FIR No. 407/10 was sitting at District Park, Pitampura, Delhi and thereafter, he alongwith Ct. Ashok went there and apprehended accused Pinku @ Kana, present in the court today from District Park, Pitam Pura during the noon time. He has further deposed that he had interrogated the accused and he disclosed about commission of offence, wherein, one jeweller was robbed by him alongwith associates Ranjit, Neeraj, Raju and Amit, regarding which, a case was registered in PS Maurya Enclave and he had recorded the disclosure statement of Pinku @ Kana and passed on the information to the concerned IO SI Deepak Kumar at PS Maurya Enclave. This witness was also cross examined by Ld. Counsel for accused. During his crossexamination he has denied that disclosure statement of Pinku @ Kana was planted later on, while sitting in the PS, after due deliberation and consultation from senior officers, his involvement was shown in the present case or that he did not apprehend the accused Pinku @ Kana in the manner as stated by him or that his statement was recorded by the IO of present case, later on, while sitting in the PS.
55. Whereas, Sh. Dheeraj Mor, Ld. MM has been examined as PW 15, who has deposed that on 22.02.2011, an application for TIP of accused Pinku @ Kana was moved by SI Deepak Kumar and it was assigned to him on the same day and he fixed the TIP of accused Pinku FIR No.37/11 PS Maurya Enclave Page No. 32/98 State Vs. Pinku @ Kana & Ors.
@ Kana for 26.02.02011 at Tihar, Central Jail No.7. He has further deposed that on 26.02.2011, he had visited the Central Jail No.7 for conducting the TIP and accused Pinku @ Kana was produced before him by Sh. Rishi Kumar, Assistant Superintendent, Tihar, Jail No. 7 for his TIP proceedings and accused was identified by the Assistant Superintendent. Accused Pinku @ Kana had refused to participate in the TIP and he was warned and cautioned that if he would not join the TIP proceedings, an adverse inference may be drawn against him during the trial. Despite of it, he refused to join the TIP. He has further deposed that he recorded the statement Ex. PW 15/A of accused Pinku @ Kana regarding his refusal. He has further deposed that he concluded the TIP proceedings Ex. PW 15/B and also proved the application moved by the IO for TIP Ex. PW 15/C and copy of TIP proceedings Ex. PW 15/D was given to IO SI Deepak Kumar. He has further deposed that on 18.03.2011, the application for TIP of accused Mohd. Afsar was moved by Inspector Rajbir Singh before Sh. Neeraj Kumar, Ld. MM and it was assigned to him on the same day and he fixed the TIP of accused Mohd. Afsar for 22.03.2011 at Rohini Jail and on 22.03.2011, TIP of the accused could not be conducted, as he was sent on police remand and TIP of accused Mohd. Afsar was again fixed for 23.03.2011 and on 23.03.2011, he visited the Rohini Jail for conducting the TIP and accused Mohd. Afsar was produced before him by Sh. Parmod Maan, Assistant Superintendent, Rohini Jail for his TIP proceedings and accused was identified by Asstt. Superintendent. However, TIP of accused Mohd. Afsar was conducted after taking necessary precautions, as mentioned in details in the proceedings itself, FIR No.37/11 PS Maurya Enclave Page No. 33/98 State Vs. Pinku @ Kana & Ors.
and identity of the accused was not revealed to the complainant. He has further deposed that in the TIP proceedings, complainant Chitranjan duly identified the accused Mohd. Afsar and he recorded his statement Ex. PW 15/E and he concluded the TIP proceedings. He has further deposed that TIP proceedings are Ex. PW 15/F and application moved by Inspector Rajbir Singh for TIP is Ex. PW 15/G and copy of TIP proceedings Ex. PW 15/H was given to Inspector Rajbir Singh. He has further deposed that on 24.06.2011 the application for TIP of accused Ranjeet @ Bihari was moved by Inspector ATO before Sh. Neeraj Kumar, Ld. MM and it was assigned to him on the same day and he fixed the TIP of accused Ranjeet @ Bihari for 25.06.2011 at Rohini Jail. He has further deposed that on 25.06.2011 he visited Rohini Jail for conducting the TIP and accused Ranjeet @ Bihari was produced before him by Sh. Udai Raj Singh, Asstt. Superintendent, Rohini Jail for his TIP proceedings and accused was identified by Asstt. Superintendent and TIP of accused Ranjeet @ Bihari was conducted after taking necessary precautions, as mentioned in details in the proceedings itself and the identity of the accused was not revealed to the complainant and in the TIP proceedings, complainant Chitranjan duly identified the accused Ranjeet @ Bihari and he recorded his statement is Ex. PW 15/I . He has further deposed that he concluded the TIP proceedings Ex.PW15/J and application moved by Inspector ATO for TIP is Ex. PW 158/K and copy of TIP proceedings was given to Inspector Satyender Gosain Ex. PW 15/L. The opportunity to cross examine this witness was given to the counsels for accused, but, they did not cross examine him, so opportunity of the accused to cross examine this witness was done NIL.
FIR No.37/11 PS Maurya Enclave Page No. 34/9856. Whereas, Ct. Rajbir has been examined as PW 16, who has deposed that on 11.03.2011, he was posted in the PS Maurya Enclave as Constable and on that day, he joined the investigation of the present case with IO Inspector Rajbir Singh and they went to Ganga Ram Hospital, where the, IO collected the death summary and other documents pertaining to deceased Ghanshyam and his dead body was got shifted from Ganga Ram Hospital to Mortuary of BJRM Hospital. He has further deposed that in the mortuary the dead body of Ghanshyam was identified by Shyam Sunder Garg and Ashwani Aggarwal and thereafter postmortem on the dead body was got conducted and thereafter the dead body was handed over to Karan Garg i.e. the son of deceased. He has further deposed that the autopsy surgeon handed over the sealed pullanda containing the blood sample of the deceased with one sample seal to him and the same was produced by him before the IO, who took the same into possession vide memo Ex. PW 8/A and his statement was recorded by the IO. This witness was cross examined by Ld. Counsel for accused Pinku @ Kana and during his cross examination, he had failed to tell the exact time, when the dead body was handed over to him at Ganga Ram Hospital and the blood sample was taken by him from the doctor at BJRM Hospital. He has denied that dead body was not identified by any of its relatives in the hospital as deposed by him.
57. Whereas, Ct. Dalip Kumar has been examined as PW 17, who has deposed that on 26.08.2011 on the instructions of IO, he had FIR No.37/11 PS Maurya Enclave Page No. 35/98 State Vs. Pinku @ Kana & Ors.
brought the result of FSL and pullandas from FSL Rohini and handed over the same to the MHC(M) and an authority letter was given to him by the MHC(M) to collect the said result and the pullanda from FSL Rohini. He has further deposed that his statement was recorded by the IO. The opportunity to cross examine this witness was given to the Ld.counsels for accused, but, they did not cross examine him, so opportunity of the accused to cross examine this witness was done NIL.
58. Whereas, Dr. Ravi Kant has been examined as PW 20, who has deposed that on 06.02.2011 , while working as CMO in Saroj Hospital and Heart Institute, Madhuban Chowk, Rohini, Delhi he had examined Chitranjan and Ghanshyam Dass Garg at the casualty on being brought by Shri Karan Garg and had prepared MLC NO. 3152 and 3151 respectively in this behalf. He has further deposed that both the injured persons had received gun shot injuries and the history was narrated to him by Shri Karan. The MLCs proved by him are Ex. PW 20/A and Ex.PW20/B. The opportunity to cross examine this witness was given to the counsels for accused, but, Ld. Counsel for the accused did not cross examine this witness, so the opportunity of the accused to cross examine this witness was done NIL.
59. Whereas, SI Matadin Meena has been examined as PW 22, who has deposed that on 06.02.2011, while working as Incharge Mobile Crime Team of NorthWest District, Pitam Pura, Delhi, on receipt of information from the IO, he had gone to AP Block Market, Pitampura, Delhi and reached there, at about 10:15 PM and inspected the spot. IO FIR No.37/11 PS Maurya Enclave Page No. 36/98 State Vs. Pinku @ Kana & Ors.
SI Deepak alongwith staff was already present there and they found two lead and three empty bullet cartridges with engraving 9mm separated from each other lying on the road and blood was scattered at one place. He has further deposed that the team photographer Ct. Subhash had taken photographs of the spot and he had prepared a report Ex.PW22/A and delivered the same to IO SI Deepak. He was crossexamined by Ld. Counsel for accused Pinku @ Kana and during his cross examination, he has deposed that he did not know number of photographs taken by the Photographer Subhash at the spot. He had left the spot at 11.15PM. The opportunity to cross examine this witness was given to the counsels for other accused. But, Ld. Counsel for other accused did not cross examine this witness, so their opportunity to cross examine this witness was done NIL.
60. Whereas, HC Radha Kishan has been examined as PW 23, who has deposed that on 07.02.2011, he was posted as Malkhana Moharrar at PS Maurya Enclave, Delhi and on that day, SI Deepak Kumar had delivered two seizure memos, in which, one parcel sealed with the seal of DD pertain to one memo and six parcels sealed with the seal of DD pertain to other memo and he had entered them in the malkhana register vide entry no. 307/11. He has further deposed that on 11.03.2011, Inspector Rajbir had deposited the blood sample with sample seal of BJRM Hospital, which he had entered at serial no. 381/11 in the malkhana register and the copy of relevant entries of the malkhana register are Ex.PW 23/A and Ex.PW23/B. He has further deposed that on 25.03.2011, SI Deepak had deposited two parcels FIR No.37/11 PS Maurya Enclave Page No. 37/98 State Vs. Pinku @ Kana & Ors.
sealed with the seal of Saroj Hospital and a sample seal in the malkhana, which he had entered at serial o. 388/11 in register no. 19 and photocopy of extract of register containing the relevant entry is Ex. PW23/C. He has further deposed that on 25.03.2011 itself, he had handed over seven sealed parcels and a sample seal to SI Deepak Kumar for depositing the same in FSL Rohini vide RC No. 37/21/11 and the copy of RC Ex.PW23/D. He has further deposed that after depositing the parcels in FSL, SI Deepak had handed over him acknowledgement of which copy Ex.PW 23/E. He has further deposed that on 19.04.2011, SI Deepak Kumar was given a parcel sealed with the seal of Saroj Hospital and sample seal for depositing in FSL Rohini vide RC No. 46/21/11, the copy of RC is Ex.PW23/F and after depositing the parcels in FSL, SI Deepak had handed over him acknowledgement Ex.PW23/G and so long, the case property remained in his custody and same was not tampered with and seals remained intact. The opportunity to cross examine this witness was given to the counsels for all the accused. But, Ld. Counsels for all the accused did not crossexamine this witness, so, the opportunity of the accused to cross examine this witness was done NIL.
61. Whereas, Dr. Sukh Ram has been examined as PW 24, who has deposed that he was deputed by the MS of the hospital to depose in this case and he has seen the death summary report in respect of deceased Gyanshyam Dass Garg Reg. No. 0888054 and as per death summary, the patient was admitted in hospital on 11.02.2011 and expired on 10.03.2011 and the detail of the treatment given to the FIR No.37/11 PS Maurya Enclave Page No. 38/98 State Vs. Pinku @ Kana & Ors.
patient is mentioned in the death summary, prepared by Dr. Tarun Mittal and he has identified the signature of Dr. Tarun Mittal on the death summary report Ex.PW24/B at point A, as he has seen him while writing and signing during the course of his duties. The opportunity to cross examine this witness was given to the counsels for all the accused. But, Ld. Counsels for all the accused did not crossexamine this witness, so, the opportunity of all the accused to cross examine this witness was done NIL.
62. Whereas, Sh. Naresh Kumar has been examined as PW 25, who has deposed that on 25.03.2011, seven parcels sealed with the seal of 'DD' & 'FMT BJRM Hospital, Delhi' were received in the office of the FSL regarding the present case and at that time of opening the parcels seals were compared with the specimen seals provided with the FSL Form and the specimen seal and the same were tallying with the specimen seal and were examined regarding the presence of human blood and human blood was detected on Ex.1,2,4,5 & 7 and on Serological examination, Ex.1,4 & 7, blood of 'O' group was detected and his detailed biological report in this regard dated 29.07.2011 is Ex. PW 25/A signed by him on both the pages at point A and his serological report is Ex.PW25/B. He has further deposed that remnants of the exhibits were resealed with the seal of 'NK FSL Delhi'. He has further deposed that on 19.04.2011, one sealed polythene bag parcel sealed with the seal of 'SAROJ HOSPITAL' was received in the office of FSL in connection with present case. He has further deposed that seals on the parcel were found intact and were tallying with the specimen seal FIR No.37/11 PS Maurya Enclave Page No. 39/98 State Vs. Pinku @ Kana & Ors.
provided with the FSL form and on opening the said parcel it was found containing 8 exhibits which were marked by him form 1A1 to 1A8. He has further deposed that on examination, human blood was detected on Ex. 1A2, 1A3, 1A4, 1A5, 1A6 and 1A8 and on serological examination, human blood of 'O' group was detected on exhibits 1A2, 1A3, 1A4, 1A6 and 1A8 and his detailed biological report is Ex.PW25/C and his detailed serological report is Ex. PW 25/D. He has further deposed that all the above mentioned exhibits from 1A1 to 1A8 were resealed with the seal of NK FSL Delhi and were sent to ballistics division of FSL Rohini on 04.08.2011. He has further deposed that on 16.08.2011, two parcels, one sealed with the seal of DD and other sealed with the seal of SAROJ HOSPITAL were received in the office of FSL and the seals on the said two parcels were found intact and were found tallying with the specimen seals forwarded with FSL Form . He has further deposed that parcel no. 1 which was sealed with the seal of DD was sent to ballistic division of FSL Rohini in sealed condition and on opening parcel no. 2 it was found containing exhibit 2 i.e. one metallic piece described s bullet lead and human blood of which group could not be ascertained was found on the said bullet lead. He has further deposed that his detailed biological report in this regard is Ex. PW 25/E and his detailed serological report is Ex. PW 25/F and remnants of exhibits were sealed with the seal of NK FSL Delhi and same were sent along with said parcel no.1 to ballistics division on 16.01.2012. The opportunity to cross examine this witness was given to the counsels for all the accused. But, Ld. Counsels for all the accused did not cross examine this witness, so, the opportunity of the accused to cross FIR No.37/11 PS Maurya Enclave Page No. 40/98 State Vs. Pinku @ Kana & Ors.
examine this witness was done NIL.
63. Whereas, Sh. Satyender Gosain has been examined as PW 26, who has deposed that during the year 2011 he was posted as Inspector Investigation in PS Maurya Enclave and on 25.06.2011 the above said case file was entrusted to him for investigation as main IO Inspector Mukesh Kumar was on leave. He has further deposed that pursuant to the production warrant issued by Ld. MM, accused Neeraj was produced before the court of Sh. Neeraj Gaur, Ld. MM and with the permission of the court, he had interrogated and formally arrested accused Neeraj vide memo of arrest Ex.PW26/A and also recorded disclosure statement of accused Neeraj Ex. PW 26/B. He has further deposed that he had moved an application for the TIP of accused Neeraj Kumar Ex.PW26/C, which was fixed for 07.07.2011 but the same could not be conducted as on that day, accused was not there in Rohini Jail. Thereafter date was fixed on 08.07.2011 and on 08.07.2011, accused Neeraj refused to participate in the TIP Proceedings and as such TIP proceedings were concluded. He has further deposed that he obtained one copy of TIP proceedings and same was made part of the record. He has further deposed that on 07.07.2011, he had obtained two days police custody remand of accused Ranjit @ Bihari and as per direction of SO, he handed over the custody of accused Ranjit @ Bihari to Inspector Mukesh Kumar as he had to attend the TIP proceedings of accused Neeraj Kumar and on 08.07.2011 he handed over the case file to Inspector Mukesh Kumar for further investigation. The opportunity to cross examine this witness was FIR No.37/11 PS Maurya Enclave Page No. 41/98 State Vs. Pinku @ Kana & Ors.
given to the counsels for all the accused. But, Ld. Counsels for all the accused did not crossexamine this witness, so, the opportunity of the accused to cross examine this witness was done NIL.
64. Whereas, Ms. Shunali Gupta has been examined as PW 27, who has deposed that an envelope sealed with the seal of SG available on judicial file is opened and on opening it is found containing TIP proceedings of accused Neeraj. She has further deposed that on 06.07.2011 an application moved by Inspector Satyender Gosain before the court of Ld. MM Sh. Neeraj Gaur for the TIP of accused Neeraj @ Dhiraj , was marked to her being Link MM of Sh. Neeraj Gaur and she fixed the date for conducting the TIP for 07.07.2011and said application is Ex. PW 27/A . She has further deposed that on 07.07.2011 TIP could not be conducted due to nonavailability of accused Neeraj in Rohini Jail as he was in one day police custody remand in case FIR No,. 52/11 PS Shalimar Bagh. She has further deposed that on 08.07.2011 she reached District Jail Rohini and Inspector Satyender Gosain alongwith the witness met her outside the main gate of the jail and she asked them to wait there. She has further deposed that she reached in the TIP Room and accused Neeraj S/o. Mange Ram was produced before her by Sh. Parmod Mann, Assistant Superintendent Rohini Jail and he identified the accused. She has further deposed that she recorded statement of Sh. Parmod Mann is Ex. PW 27/B. Thereafter Sh. Parmod Mann left the TIP room and in isolation she explained the meaning of TIP in Hindi to the accused and thereafter she asked him whether he wanted to join the TIP proceedings, but, he refused for the same FIR No.37/11 PS Maurya Enclave Page No. 42/98 State Vs. Pinku @ Kana & Ors.
despite her warning that an adverse inference shall be drawn against him during the trial. She has further deposed that she recorded statement of accused Neeraj is Ex. PW 27/C. She has further deposed that her certificate regarding the true and correct record of TIP proceedings is Ex. PW 27/D. She directed her Ahlmad to handover copy of TIP proceedings to the IO after his application being allowed by him and to sent the original proceedings in sealed cover to the concerned court through Ld. ACMM. The opportunity to cross examine this witness was given to the counsels for all the accused. But, Ld. Counsels for all the accused did not crossexamine this witness, so, the opportunity of the accused to cross examine this witness was done NIL.
65. Whereas, Ct. Ravinder has been examined as PW 29, who has deposed that on 06.07.2011 he was posted at PS Maurya Enclave as Constable and on that day he joined the investigation of the present case alongwith IO/Inspector Satender and reached Rohini Courts, Delhi there accused Neeraj, present in the court today correctly identified was produced before the court of Ld. MM, Room no. 105 from judicial custody and IO after obtaining the permission from Ld. MM, interrogated accused Neeraj and with the permission of the court formally arrested him vide arrest memo Ex.PW26/A. He has further deposed that IO also recorded disclosure statement of accused Neeraj Ex.PW26/B and accused Neeraj refused to sign on his disclosure statement Ex. PW 26/B and thereafter accused Neeraj was remanded to judicial custody and accused Neeraj was interrogated in muffled face and IO also got FIR No.37/11 PS Maurya Enclave Page No. 43/98 State Vs. Pinku @ Kana & Ors.
the date of TIP of accused Neeraj fixed for 07.07.2011 from ld. Link MM. He has further deposed that accused Ranjeet @ Bihari was also produced from judicial custody and IO obtained his two days police custody remand. He has further deposed that his custody was obtained by the IO from the lock up and thereafter pursuant to the disclosure statement of Ranjeet Bihari, search was made for accused Raju and Amit, first at Kashmiri Gate bus stand and thereafter at New Delhi Railway station but in vain. Thereafter, they reached at PS Maurya Enclave and custody of accused Ranjeet @ Bihari was entrusted to SI Ram Kumar who got him medically examined at BSA Hospital. He has further deposed that later on the SHO PS Ashok Vihar also arrived at PS Maurya Enclave and interrogated accused Ranjeet @ Bihari and IO recorded his statement. The opportunity to cross examine this witness was given to the counsels for all the accused. But, Ld. Counsels for all the accused did not crossexamine this witness, so, the opportunity of the accused to cross examine this witness was done NIL.
66. Whereas, Inspector Mukesh Kumar has been examined as PW 31, who has deposed that on 23.06.2011, he was posted in PS Maurya Enclave as Inspector and on that day, the case file of the present case was marked to him for further investigation by SHO. He has further deposed that he collected the case file from MHC(R) and inspected the same and he came to know that the accused persons involved in the present case were running in JC in case bearing FIR No.113/11, PS North Rohini. He has further deposed that he appeared before the concerned Court and on his application, Hon'ble Court issued FIR No.37/11 PS Maurya Enclave Page No. 44/98 State Vs. Pinku @ Kana & Ors.
Production Warrants against accused Ranjit @ Bihari and Neeraj @ Dheeraj for 24.06.2011. He has further deposed that on 24.06.2011, only accused Ranjit @ Bihari was produced before the Court. With the permission of the Court, he interrogated and formally arrested accused Ranjit @ Bihari vide arrest memo Ex.PW31/A. He has further deposed that HC Guman Singh was with him on that day and he recorded disclosure statement of accused Ranjit Ex.PW31/B and accused refused to sign the same. He has further deposed that he moved an application for the judicial TIP of accused Ranjit, on which, the date was fixed for 25.06.2011 and his application is Ex.PW31/C and From 25.06.2011 to 06.07.2011, he remained on leave and he again took up the investigation on 07.07.2011. He has further deposed that on 07.07.2011, accused Ranjit @ Bihari was on police custody remand and accused Ranjit led the police party consisting of himself and HC Ashok Kumar and pointed out the street behind House No. AP19/A, which was behind AP Block Market, vide pointing out memo Ex.PW31/D and thereafter they came back to the PS and accused was put in the lockup and he had recorded statement of HC Ashok Kumar. He has further deposed that on 11.07.2011, he alongwith Ct. Sandeep reached Rohini Courts and he obtained one day PC remand of accused Neeraj and from the Court, they alongwith accused Neeraj in custody reached Police station and from there, accused led them to the spot and pointed out the spot vide pointing out memo Ex.PW31/E signed by him at point X. They came back to the police station. Witness Chitranjan arrived at the police station and he had identified accused Neeraj in the police station and he had recorded his statement. He has further deposed that FIR No.37/11 PS Maurya Enclave Page No. 45/98 State Vs. Pinku @ Kana & Ors.
on 16.08.2011, he got the exhibits of the present case deposited at FSL through Ct. Sukhbir and on that day he had recorded statements of Ct. Sukhbir. He has further deposed that on 24.08.2011, he recorded statement of draftsman SI Manohar Lal and thereafter, he had prepared the supplementary chargesheet qua accused Ranjit and Neeraj and filed the same in the Court alongwith FSL result of exhibits which were sent earlier. He has further deposed that no efforts could be made for the arrest of accused Amit and Raju, whose names were figured in the disclosure statements of other accused as their parentage and addresses were not available. The opportunity to cross examine this witness was given to the counsels for accused but this witness was not crossexamined by the Ld. Counsel for the accused, so, the opportunity of the accused to cross examine this witness was done NIL. Since this witness has prepared the supplementary chargesheet qua the accused Ranjeet and Neeraj and this investigating officer has also failed to make any effort for recording the statement of Munish who had made call at 100 number soon after the alleged occurrence. Despite of the fact that complete address of the Munish was mentioned in the PCR Form Ex. PW 18/A (and also Ex. PW 28/A). Since in the chargesheet accused Amit and Raju are also alleged to have been involved . But this witness has admitted that he did not make any effort to arrest the Amit and Raju and since this witness also did not bother to contact with Munish to record his statement. So, investigation by this witness is also held to be defective and lapse on the part of this witness is also observed.
67. Whereas, Inspector Rajbir Singh has been examined as PW 32, who has deposed that on 10.03.2011, he was posted at PS Maurya FIR No.37/11 PS Maurya Enclave Page No. 46/98 State Vs. Pinku @ Kana & Ors.
Enclave as Inspector ATO and on that day, the investigation of this case was marked to him by the SHO. He has further deposed that he received the case file from SI Deepak and perused the same and on 11.03.2011, an information was received from Sir Ganga Ram Hospital regarding the death of injured Ghanshyam Dass in the present case. He has further deposed that he along with Ct. Rajbir reached at Ganga Ram hospital, where he received all the medical documents including death summary along with dead body of Ghanshyam Dass and he along with Ct. Rajbir shifted the dead body from Ganga Ram hospital to BJRM hospital. He has further deposed that he had conducted the inquest proceedings and the dead body was identified by Ashwani Aggarwal and Shyam Sunder Garg as they had also accompanied them from Ganga Ram hospital to BJRM hospital. He has further deposed that he recorded their statements Ex.PW1/A and Ex.PW2/A respectively, both signed by him and his request for the postmortem is Ex.PW32/A, brief facts are Ex.PW32/B, signed by him, form 25.35(1)(B) is Ex.PW32/C. He has further deposed that after the postmortem, dead body was handed over to the relatives of deceased and after the postmortem, doctor handed over blood sample of deceased Ghanshyam Dass, in a white envelope sealed with the seal of FMT BJRM hospital along with one sample seal to Ct. Rajbir and he in turn handed over the same to him and he seized the same vide seizure memo Ex.PW8/A and he deposited the case property in the malkhana. He has further deposed that on 21.02.2011, HC Vinod Kumar of Special Staff, N/W, passed the information to duty officer, PS Maurya Enclave vide DD no.63B that accused Mohd. Afsar who has been arrested in FIR No.37/11 PS Maurya Enclave Page No. 47/98 State Vs. Pinku @ Kana & Ors.
FIR No.48/11, u/s.25 Arms Act of PS Maurya Enclave, had made a disclosure statement about his involvement in the present case. He has further deposed that he moved an application before the concerned court of PS Maurya Enclave for issuance of production warrants against accused Mohd. Afsar, in pursuance thereof, accused Mohd. Afsar, was produced before the court on 18.03.2011 and he along with HC Ashok Kumar had reached there. With the permission of the court, he interrogated accused Mohd. Afsar in the court today and recorded his disclosure statement Ex.PW5/B and thereafter, accused Mohd. Afsar was arrested vide arrest memo Ex.PW5/A. He has further deposed that he had moved an application for the TIP of accused Mohd. Afsar on 18.03.2011 and got his judicial TIP conducted on 23.03.2011. He has further deposed that he obtained the copy of TIP proceedings and same was made part of record and on 25.03.2011, he had obtained one day PC remand of accused Mohd. Afsar and the efforts were made to arrest other accused persons and to recover robbed articles but in vain. He has further deposed that on 26.03.2011, accused Mohd. Afsar was produced in the court and remanded to JC and during the investigation of this case, he recorded the statements of mobile crime team and other witnesses. He has further deposed that on 21.04.2011, he along with draftsman SI Manohar Lal and SI Deepak had visited the spot and SI Manohar Lal took measurement and prepared rough notes at the instance of SI Deepak and thereafter, he prepared the scaled site plan on 22.04.2011 at his office and handed over the same to him later on. He has further deposed that he had recorded the statement of SI Manohar Lal and he got the exhibits of the present case deposited in FIR No.37/11 PS Maurya Enclave Page No. 48/98 State Vs. Pinku @ Kana & Ors.
FSL through SI Deepak, but he did not remember its date due to lapse of time and on that day, he had recorded the statement of SI Deepak and the then MHC(M) HC Radha Kishan. He has further deposed that he prepared charge sheet against accused Pinku @ Kana and accused Mohd. Afsar and filed the same in the court. This witness was also cross examined by Ld. Counsel for accused. During his cross examination, he has denied that accused Mohd. Afsar was not produced in muffled face on 18.03.2011 by the Jail authorities. He did not remember, whether he had mentioned this fact in his application for TIP proceedings or not. The attention of this witness was drawn by Ld. Defence Counsel, towards the application dated 18.03.2011 moved by this witness for TIP proceedings of accused Mohd. Afsar Ex.PW32/DA, wherein, this fact was not mentioned that accused Mohd. Afsar was being produced in muffled face. He has further admitted that he did not request the Jail Authorities to produce accused Mohd. Afsar in muffled face and he did not remember, as to on which date, accused Mohd Afsar was arrested and was remanded to JC in case FIR No. 48/11, PS Maurya Enclave. The telephonic information was passed to the duty officer, PS Maurya enclave by the officials of Special staff regarding arrest of accused Mohd. Afsar and same was recorded vide DD No.63B. He has further deposed that the distance between PS Maurya Enclave and the office of Special Staff N/W is about 2½ kilometer. He has denied that during the period, when accused Mohd. Afsar remained in the custody of Special Staff in case FIR No.48/11, they had guided the complainant to identify the accused or accused was not produced from the JC in the muffled face and deposed that neither he can admit FIR No.37/11 PS Maurya Enclave Page No. 49/98 State Vs. Pinku @ Kana & Ors.
nor he can deny that accused Mohd.Afsar was produced by the Special Staff before the court with open face. He has denied that he had not followed the procedure in the investigation of the present case or that he has not done the investigation in a proper and fair manner. This witness has admitted during his crossexamination that he did not request to the Jail Authorities to produce the accused Mohd. Afsar in muffled face. This witness has also deposed during his cross examination that "neither he can admit nor he can deny that Mohd. Afsar was produced by the Special Staff with open face. So, it is probable that this accused Mohd. Afsar would have been produced in the court by the Special Staff with open face. So, in the given circumstances, the proceedings of the TIP of Mohd. Afsar becomes doubtful. This witness also did not try to contact with Munish who had dialled 100 number to call to the police after the occurrence despite of the fact that his complete particulars were available in the PCR form Ex.PW18/A.
68. Whereas, Dr. Tarun Mittal has been examined as PW 33, who has deposed that he was working as consultant Surgeon at Ganga Ram hospital since 2010 and he has seen the death certificate of Ghanshyam Dass Garg dated 10.03.2011 prepared by Dr. Swapnil, the then S.R. ICU. He has further deposed that Dr. Swapnil has left the hospital and his present whereabouts are not known to him. He has further deposed that the death certificate Ex.PW33/A is in the handwriting of Dr. Swapnil and bears his signature at point A. He has further deposed that he could identify the handwriting and signature of Dr. Swapnil, as he had seen him writing and signing in the course of his FIR No.37/11 PS Maurya Enclave Page No. 50/98 State Vs. Pinku @ Kana & Ors.
official duties. He has further deposed that he has seen the death summary of Ghanshyam Dass Garg, 57 year old male, who was admitted in Sir Ganga Ram hospital on 11.02.2011 vide registration No. 0888054 and he died on 10.03.2011. His said death summary Ex.PW24/A was prepared by him. The opportunity to cross examine this witness was given to the Ld. counsel for accused, but, he was not cross examined by Ld. Counsel for the accused, so, the opportunity of the accused to cross examine this witness was done NIL.
69. Whereas, Sh. Chitranjan has been examined as PW19, who has deposed that earlier, he used to reside in Delhi alongwith his friend Murli, as tenants and he did not remember the name of the owner of the house. He has further deposed that he hailed from Orissa. He has further deposed that he was employed as a sales man at Baba Jewellers, Shop no. 28, AP Block, DDA Market, Pitampura, New Delhi and Shri Ghanshyam Garg was the owner of this jewellery shop. He has further deposed that he had started working in that shop in 1993 and the shop used to open at 10:00 AM and close at 09:0009:15 PM and after closing the shop, he and his owner used to leave for his home, which was situated in AP Block, Pitampura at a distance of about 200 meters from the shop and Monday was weekly off, of the shop, so, the owner used to take Gold items and jewellery at home from his shop, while closing it on Sunday night. He has further deposed that the owner used to go to his home on foot. He has further deposed that on 06.02.2011, his owner Sh. Ghanshyam Garg had kept all the jewellery and gold items of the shop in a black colour bag, prior to the closing of FIR No.37/11 PS Maurya Enclave Page No. 51/98 State Vs. Pinku @ Kana & Ors.
shop, at about 9:15 pm, as it was Sunday on that day and thereafter, they closed the shop and started going to home on foot. He has further deposed that only he and his owner had left from the shop. He has further deposed that the jewellery articles were comprised of 10 gold rings and jewellery articles being about 150 grams of gold and some silver jewellery. He has further deposed that after closing the shop at 9:15 pm, they had taken about twenty steps from the shop and saw a boy standing on the roadside facing Sharma Dhaba and without taking much cognizance of him, they continued walking. He has further deposed that he was half a step ahead of Sh. Ghanshyam Garg and there, at about 9:30 PM, a boy, who was standing on the roadside facing Sharma Dhaba who had given punch blow on the back of Sh. Ghanshyam Garg and as a result of which, he fell down. He has further deposed that another boy came from back side immediately and had fired two shots with pistol on Sh. Ghanshayam Garg, when, he was struggling to stand. He has further deposed that one of the bullets hit him on his abdomen (left side) and another on the lower left leg. He has further deposed that he immediately took the black bag containing jewellery, gold and silver items from the hand of Sh. Ghanshyam Garg. He has further deposed that both the boys had tried to snatch that bag from his hand and when, he did not leave the bag from his left hand, one of the boys asked the other, "Ranjeet isko bhi goli maar" and the other boy addressed as Ranjeet, who had earlier fired on Sh. Ghanshyam Garg, then fired a third round on him and the bullet hit on his left ankle. He has further deposed that both the boys then fled away from the shop taking away the black bag containing jewellery with them FIR No.37/11 PS Maurya Enclave Page No. 52/98 State Vs. Pinku @ Kana & Ors.
towards the road. He has further deposed that after about 1015 minutes, son of the owner, Sh. Karan Garg had come from home and took this witness (PW19) and his father (Ghanshyam Garg) in his car in Muni Maya Ram Hospital and from there to Saroj Hospital, Madhuban Chowk, Rohini. This witness after having a look at the screen of computer, had identified Neeraj (through video conferencing produced from Central Jail No.5) and deposed that he had snatched the bag and this witness had come to know the name of Neeraj in July, 2011, after his arrest. He has further deposed that he had seen him ( accused Neeraj) in July, 2011, when he was in police custody and his name was disclosed to this witness by the IO. On seeing on the screen, this witness has also identified accused Ranjeet and deposed that he had fired two bullets on Sh. Ghanshyam Garg and one bullet on him and he also fled away with Neeraj and further deposed that he had gone to the Jail for four times for the purpose of identification of the accused persons. He has further deposed that he had identified accused Ranjeet in Jail and accused accused Neeraj had refused to participate in the TIP. He has also deposed that the TIP proceedings of accused Ranjeet are Ex.PW5/A and his statement Ex. PW 15/I was also recorded by Ld. MM with regard to TIP proceedings of accused Ranjeet, bearing his thumb impression at point X. He has further deposed that he had also identified accused Afsar and accused Pinku @ Kana had refused to participate in the TIP proceedings. He has further deposed that the TIP proceedings of accused Mohd. Afsar are Ex.PW 15/E and his statement Ex.PW15/F was also recorded by Ld. MM with regard to TIP proceedings of accused Afsar, bearing his thumb impression at point X. FIR No.37/11 PS Maurya Enclave Page No. 53/98 State Vs. Pinku @ Kana & Ors.
This witness was asked the question that he had stated the role of two accused persons, what had he to say about other accused persons. Then, this witness has deposed that accused Pinku and Afsar were not seen at the spot and they may be present around the spot, but, they were not seen by him. On this Ld. Addl. PP has sought permission to crossexamine this witness as, he had resiled from his previous statement. After hearing, the Ld. APP for the state was allowed to cross examine this witness by the Ld. Predecessor of this court and during his crossexamination by Ld. Addl. PP for the State, this witness has admitted it to be correct that he had identified accused Pinku @ Kana on 28.02.2011, when he was in custody of SI Deepak Kumar at Pitampura Village, where he had gone to meet his brother. He has denied that accused Pinku @ Kana had snatched the bag from the hand of his employer namely, Sh. Ganshayam Garg on 06.02.2011 and voluntarily deposed that he might have remained present around the spot. This witness was confronted with portion A to A of his statement recorded under section 161 Cr.P.C. dated 28.02.2011 Ex.PW19/A, where, it was so recorded and when this witness was asked question by Ld. APP for the state that he had identified accused Mohd. Afsar in the judicial TIP and on what basis he had identified him in Judicial TIP. Then he has deposed that after commission of the crime, accused Ranjeet and Neeraj had fled from the spot on the motorcycle being driven by accused Mohd. Afsar, whom he had seen and as such, he had identified accused Mohd. Afsar in the judicial TIP. He has further deposed that he had also seen accused Mohd. Afsar in the custody of SI Deepak Kumar in the Police Station. He has denied that he has FIR No.37/11 PS Maurya Enclave Page No. 54/98 State Vs. Pinku @ Kana & Ors.
deposed falsely regarding the role played by accused Pinku @ Kana or that accused Pinku @ Kana had also helped accused Neeraj, while snatching the bag from the hands of Late Sh. Ghanshaym Garg. He has also denied that he had deposed falsely qua accused Pinku @ Kana due to the threats. This witness was cross examined by Ld. Counsel for accused and during his cross examination, he has deposed that he used to open the jewellery shop of Ghanshyam Dass in the morning at about 10:00 am and some other persons had also worked in the said shop of Ghanshyam Dass for short durations. He has further deposed that no dispute had ever arisen between Ghanshyam Dass and his employees on the issue of payment of salary. He has denied that at Tpoint there is a bakery and dairy shop and voluntarily stated that the said dairy and bakery shop is situated prior to the Tpoint. He has further deposed that Murli, with whom, he used to reside at the time of incident also belong to Orissa and as such, he became his friend. He has denied that Murli is his brother. He has further admitted that he did not go to village Pitampura to meet his brother on 28.02.2011 and on that day, SI Deepak did not meet him. He has further deposed that his statement was recorded by the police on three occasions and one of his statement was recorded on 09.02.2011, at the residence of his employer deceased Ghanshyam Dass and he did not remember the dates of his rest of two statements. He has further deposed that he had stated in his statement dated 09.02.2011 about the fact that Mohd. Afsar was driving the motorcycle, on which the coaccused had fled away. He was confronted with statement recorded u/s. 161 Cr. P. C. Ex. PW 19/DA, wherein, it is not so recorded. He has admitted it to be FIR No.37/11 PS Maurya Enclave Page No. 55/98 State Vs. Pinku @ Kana & Ors.
correct that in his subsequent statement recorded by the police recorded u/s. 161 Cr.P.C., the fact of fleeing away of coaccused on motorcycle driven by Mohd. Afsar is not mentioned. He has also admitted it to be correct that he had not stated in his statement Ex.PW 19/DA and other two statements u/s. 161 Cr.P.C. that accused were riding on the motorcycle, driving the motorcycle or standing on the motorcycle at the spot. He has admitted that he had no proof of his identity. He has admitted it to be correct that road, which leads to Sharma Dhaba is the same road, where incident took place. He has admitted it to be correct that the Sharma Dhaba was visible from the spot. He has further deposed that he shouted for help, but, no one came for help from Sharma Dhaba and voluntarily stated that one boy named Satish came from nearby shop and he did not know any person by the name of Satish. He has further deposed that he was not having mobile at that time, so he did not call the police and he did not tell about the incident to Karan (son of deceased) about the incident and its manner. He has voluntarily stated that Satish had told Karan about the incident. He has further admitted it that he did not tell the number of accused, as well as the manner of firing the bullet or that the place, where the accused fled away, to Satish. He has voluntarily stated that he had only told that "Goli maar di hai". He has further deposed that he had not stated in his statement Ex.PW19/DA as well as Ex. PW 19/A and Ex. PW 19/DB dated 11.07.2011 about the description of Mohd. Afsar. He has further deposed that he did not tell about the registration number and colour of bike in his aforesaid statements. He has voluntarily stated that after receiving gun shot injury, he was managing FIR No.37/11 PS Maurya Enclave Page No. 56/98 State Vs. Pinku @ Kana & Ors.
his wound and did not pay attention towards the registration number and colour of bike. He has further deposed that he did not tell this fact in his aforesaid statements. He has further deposed that the police was accompanying him on 06.02.2011, the date of incident from Muni Maya Ram Hospital to Saroj Hospital. He has further deposed that he had not stated to the police on the way from the spot to Muni Maya Ram Hospital and then to Saroj Hospital regarding the number of persons, who had fired the bullet and that he is the eye witness of the said incident. He has admitted it to be correct that the blood was oozing out from his wound and his pants also got stained with blood and police official had taken his said pants. He has further deposed that his statement for the first time was recorded by the police officials in the hospital on 06.02.2011. He has admitted it to be correct that for the first time, accused Mohd. Afsar was shown to him in the police station by the police officials and he did not count the number of accused persons who were standing in the row on the day of TIP of accused Mohd. Afsar. He has further deposed that he did not remember due to lapse of time whether the persons who were standing alongwith accused Mohd. Afsar during the TIP proceedings were shorter or longer in height. He has admitted it to be correct that the persons, who were standing with accused Mohd. Afsar in TIP proceedings, were wearing clothes of different colour. He has admitted it to be correct that the person, who was standing in TIP proceedings with accused Mohd. Afsar were having different facial features as of Mohd. Afsar. He has voluntarily stated that everybody has a different face, as he is also having a different face and different feature. He has denied that accused Mohd. Afsar was not FIR No.37/11 PS Maurya Enclave Page No. 57/98 State Vs. Pinku @ Kana & Ors.
present at the spot or that for the first time before this court, he took the plea that accused Mohd. Afsar was on motorcycle and helped the co accused to flee from the spot. He has denied that he had not mentioned the physical description of any of the accused, as the actual assailant were not visible to him or that it was blind murder case or that he was planted as a false witness on 09.02.2011 by the police officials or that his initial statement dated 06.02.2011 was not inconsonance with the prosecution case, so, the police officials did not rely upon his statement dated 06.02.2011 and also did not fill it alongwith the chargesheet or that he did not appear before this court for deposition earlier, as, he was not an eye witness in this case or that he was not ready to give false evidence before this court or that he has deposed falsely. He has admitted it to be correct that he himself had not read the statement Ex. PW 19/DA, but, it was read over to him and it might had taken about five minutes to the incident. He has further deposed that he cannot tell the approximate time, on which, he reached at the hospital for the first time. He has voluntarily stated that they had reached Saroj Hospital by 10:00 PM and he cannot say whether the car by which both of them i.e. he and his employer Ghanshyam Garg were removed to hospital, had got any blood stains at the time of removing them from the spot to the hospital. He has admitted it to be correct that when he was being removed to hospital, he was able to speak or till the time, he remained in the hospital, he was able to speak. He has further deposed that police did not meet him in the hospital and at the spot, when the incident took place, there was no public person present. This witness was asked that he has stated that there was no public person at the FIR No.37/11 PS Maurya Enclave Page No. 58/98 State Vs. Pinku @ Kana & Ors.
spot and he has stated in his examination in chief that he had shouted for help and he was asked to explain the reason of shouting, to which, he had replied that after receiving bullet injury on his leg, he had moved towards dhaba, shouted for help and on the way, one shopkeeper heard his screams and came there. He has admitted it to be correct that after his admission in Saroj Hospital, there was a conversation between him and doctor and his all three statements were recorded by the police at different places, but, he cannot tell the place where his two supplementary statements were recorded. He was also asked that in his statement dated 17.11.2011 u/s.161 Cr. P. C., he had stated before the IO that "RANJEET NE KAHA KI NEERAJ BAG CHHEEN LE" but had he stated this fact to the IO in his statement Ex.PW19/DA, to which, he had replied that this fact was wrongly mentioned in his statement dated 17.11.2011 Ex.PW19/DB. He has denied that he had seen the accused persons namely Neeraj and Ranjeet for the first time in the PS. He has voluntarily stated that he had seen the accused persons at the spot at the time of incident and he had seen accused Ranjeet and Neeraj second time in the jail, during the TIP proceedings. He has denied that he had seen the photographs of accused Ranjeet and Neeraj in the police station. He has further deposed that it took about one hour to the police in recording his statement Ex.PW19/DA. He has admitted it to be correct that he had not given the facial features, clothes, age built of the assailants to the police in his statement Ex. PW 19/DA. He has admitted it to be correct that after receiving bullet injury, he became concerned for saving his life and therefore did not see the assailants and for this reason, he had not disclosed their description, age, clothes of the FIR No.37/11 PS Maurya Enclave Page No. 59/98 State Vs. Pinku @ Kana & Ors.
assailants to the police, but, he had seen the assailants before receiving the bullet injury, when, they had fired at Shri Ghanshyam Garg. He has further deposed that the police had inquired from him about the age, clothes and the complexion of assailants and he had disclosed a little information about these specifications to the police. He has admitted it to be correct that he could not disclose the physical appearance, age, clothes of the assailants because he was not able to see them properly. He has further deposed that he was of 14 yeas of age, when, he had joined the employment of deceased Shri Ghanshyam Garg. He has further deposed that Shri Garg used to get jewellery articles prepared by his employees and none of the other family members of deceased used to sit with him at his shop and the jewellery articles, which the deceased was carrying with him had come from another shop. He has further deposed that he had stated to IO in his statement Ex. PW 19/DA that he was working as a Salesman since 1993 at the shop of deceased. He was confronted with the statement Ex. PW19/DA, where in the words since 1993, as a salesman are not recorded. He has admitted it to be correct that the Ex. PW 19/DA, it is not mentioned that deceased put any jewellery articles in the bag in his presence. He has denied that he had not seen the assailants when they have taken about 20 steps from the shop and saw a boy standing on the road side facing Sharma Dhaba and without taking much cognizance of him, they continued walking . This witness is confronted with his statement recorded u/s.161 of CrPC Ex.PW19/DA, where it was not so recorded, but the fact of 1520 steps is mentioned therein. He has further deposed that he had stated to the police on 09.02.2011, that the boy facing FIR No.37/11 PS Maurya Enclave Page No. 60/98 State Vs. Pinku @ Kana & Ors.
Sharma Dhaba had hit the deceased on his back, due to which, he had fallen down. This witness is confronted with his statement recorded u/s.161 of CrPC Ex.PW19/DA, where it was not so recorded, but, this fact that one boy punched seth ji is mentioned. He has further deposed that he had disclosed before the police on 09.02.2011, that when the deceased was struggling to stand, another boy soon came from behind and immediately fired two shots with pistol on Shri Ghanshyam Garg. This witness was confronted with his statement recorded u/s.161 of CrPC Ex.PW19/DA, where it was not so recorded, however, the fact that the boy who had given a punch to seth ji and had tried to snatch the bag took out a revolver and fired two bullets on Sethji, is mentioned therein. He has further deposed that he had stated to the IO in his statement that both the boys had tried to snatch the bag from his hand. This witness was confronted with his statement recorded u/s.161 of CrPC Ex.PW19/DA, where it was not so recorded, but, it is recorded that meanwhile two boys came and tried to snatch the bag from his possession. He has further deposed that he had stated to the police in his statement that those two boys ran away from the spot. This witness was confronted with his statement recorded u/s.161 of CrPC Ex.PW19/DA, where it was recorded that all the said four boys ran away. He has further deposed that he had stated to the police on 09.02.2011, about the time within which Karan had come to the spot. This witness is confronted with his statement recorded u/s.161 of CrPC Ex.PW19/DA, wherein the time 1520 minutes is not recorded. He has further deposed that police men have brought him from Orissa to Delhi and he had received summons from the court but since he had gone FIR No.37/11 PS Maurya Enclave Page No. 61/98 State Vs. Pinku @ Kana & Ors.
somewhere else for work, he could not attend the case and he had come to Delhi on 12.02.2015 and he was staying alongwith police since then. He has voluntarily stated that since his life was in danger, therefore, he was staying with the police in police protection, as, he was not having any place to reside at Delhi. He has denied that police officials are continuously tutoring him. He has further deposed that his statements were read over to him only when the same were recorded and thereafter, no body read over him his statements. He has further deposed that he did not remember the date or day of his birth. He has voluntarily stated that his father had told him that he was born in 1976. He has further deposed that after the incident, he had left Delhi in 2011 itself and he did not remember the total number of months, for which, he had worked with the deceased and they are five brothers. He has admitted it to be correct that he would not be able to tell the date of birth of any of his siblings and he did not remember the date, day and the month in which the festivals of Holi and Diwali were celebrated since 2011 onwards. He has denied that he had told about the date of incident as 06.02.2011, due to continuous tutoring by the police men since the day he had come to Delhi. He has voluntarily stated that the date of incident was in his mind from the day of incident itself. He has denied that he did not see face of any assailant nor he was able to explain their description or that for the said reasons, there was delay in recording his statement. He has denied that he has deposed falsely or that he identified the accused persons at the instance of police officials. He has denied that he was a false witness or that only because of this reason he has not come to depose before the court for such a long FIR No.37/11 PS Maurya Enclave Page No. 62/98 State Vs. Pinku @ Kana & Ors.
time. He has denied that he had deposed falsely. Since, this is an injured and also sole eye witness examined by the prosecution, so, he is a material witness. But, perusal of the record reveals that this witness has deposed in his examination in chief that accused Pinku @ Kana and Afsar were not seen at the spot and also deposed that they may be present around the spot, but, they were not seen by him and this witness was crossexamined by Ld. Addl. PP for the State and only at the time of his crossexamination by APP for the State, he has admitted that he had identified accused Pinku @ Kana on 28.02.2011 and this witness even during his crossexamination by Ld. APP for the State, he has denied that Pinku @ Kana had snatched the bag from the hands of his employer namely Ghanshyam Dass Garg on dated 06.02.2011. and the Ld. APP for the State had confronted him with his statement recorded u/s.161 of CrPC Ex.PW19/A, where, it was so recorded and this witness has also deposed that he had seen the accused Afsar in the custody of SI Deepak Kumar in the police station. So, it is probable that for this reason, he would have identified accused Mohd. Afsar during the TIP. Since, this witness during his crossexamination by Ld .counsel for accused, has admitted that he did not go to Village Pitampura to meet his brother on dated 28.02.2011 and also deposed that SI Deepak did not meet him on that day. So, the statement of this witness Ex.PW19/A allegedly recorded by SI Deepak Kumar on dated 28.02.2011, becomes doubtful. If this witness did not go to Village Pitampura on dated 28.02.2011, then, how did this SI Deepak Kumar write his statement Ex.PW19/A is a mystery and perusal of the statement Ex.PW19/A reveals that it is stated therein that this witness FIR No.37/11 PS Maurya Enclave Page No. 63/98 State Vs. Pinku @ Kana & Ors.
had identified accused Pinku @ Kana, as the accused who had robbed away the bag from the employer of this witness on the night of 06.02.2011. But in his examination in chief, he has denied the same. Thus, the statement of this witness Ex.PW19/A becomes suspicious. Perusal of record also reveals that the statement of this witness Ex.PW19/DA was allegedly recorded on dated 09.02.2011. Wherein, this witness has alleged that one boy had given fist blow to his employer who shouted and this witness took turn towards his back and this witness had seen that one boy was tying to rob away the bag from his employer and at the same time, three boys also came and then, the same boy who had given fist blow and tried to rob away the bag from the employer of this witness, took out the revolver and caused bullet injuries in the stomach and foot of the employer of this witness, namely Sh. Ghanshyam Dass Garg and he has also stated therein that this witness had caught the bags from the hand of his employer and then, two boys had tried to rob away the bag from this witness and when this witness did not give the bag to the accused then third boy had exhorted that "Ranjeet isko bhi goli maar" and that boy had caused bullet injury in his foot and two boys had robbed away the bag and fled away. He has also stated therein that the crowd had also gathered and the son of his employer had also come and with the help of the crowd, they were put in the car and taken to Muni Maya Ram hospital and from there, they were taken to Saroj hospital, where they (both) were admitted. Whereas, at the time of his crossexamination in the court, this witness has deposed that no one came to help and voluntarily stated that one boy namely Satish came from the nearby shop and at the same time, he FIR No.37/11 PS Maurya Enclave Page No. 64/98 State Vs. Pinku @ Kana & Ors.
has also deposed that he did not know any Satish and thus the testimony of this witness is found to be self contradictory and if any Satish had come to rescue this witness and deceased, then, why did he not disclose his name in his statements Ex.PW19/A, Ex.PW19/DA and Ex.PW19/DB and why did IO of the case not record the statement of this Satish, it has not been explained. This witness has admitted during his crossexamination that he did not tell about the incident and the manner, in which, this occurrence had taken place to Karan, son of deceased and if this witness did not tell about the incident and the manner in which the offences are committed, to Karan, who has been examined as PW21. Then, Karan was not aware about the manner in which this occurrence had taken place, then, how PW21 could be helpful for the IO to prepare the site plan Ex.PW30/B is a mystery. So the site plan Ex.PW30/B allegedly prepared by the IO at the instance of PW21 Karan also becomes doubtful. This witness has admitted during his crossexamination that he did not tell the number of the accused, as well as, the manner of firing the bullet or the place, where the accused had fled away, to the Satish. Since, this witness has deposed during his crossexamination that police had accompanied him on dated 06.02.2011 at the time of the incident to Muni Maya Ram hospital and also to the Saroj hospital. Then, why did IO not record the statement of this witness promptly, it has not been explained. Since this witness has deposed during his crossexamination that he did not tell to the police from the spot to the Muni Maya Ram hospital and then to Saroj hospital regarding the number of persons, who had fired the bullet and this witness has further deposed that for the first time, his statement was FIR No.37/11 PS Maurya Enclave Page No. 65/98 State Vs. Pinku @ Kana & Ors.
recorded by police officials in the hospital on 06.02.2011 and the perusal of the record reveals that the police has not filed any such statement of this witness allegedly recorded on 06.02.2011 for the best reason known to the IO and perusal of record reveals that first statement of this witness was allegedly recorded on dated 09.02.2011 and if, the statement of this witness is taken to be proved, then, he had given his first statement on dated 06.02.2011 and since, the said alleged statement has not been placed on record by the IO. So, an adverse inference is drawn against the prosecution. Since, this witness has admitted it to be correct that for the first time, accused Mohd. Afsar was shown to him in the police station. So, the TIP of accused Afsar also becomes suspicious. Since, this witness has admitted during his crossexamination that he did not read the statement Ex.PW19/DA, so, the said alleged statement also becomes doubtful. The statement of this witness Ex.PW19/DB reveals that this witness has alleged therein that Neeraj had snatched away the bag. Whereas, perusal of his statement Ex.PW19/A reveals that Pinku @ Kana is alleged to have snatched the bag from the hands of his employer. Whereas, his statement Ex.PW19/DA reveals that the person who had given fist blow and snatched away the bag and the same accused is alleged to have caused bullet injury to his employer and the same statement Ex.PW19/DA also reveals that the bullet injuries were caused by accused Ranjeet. Thus the testimony of this witness is inconsistent and contradictory. Since, this witness has admitted during his cross examination that when he was removed to the hospital, he was able to speak till the time, he remained in the hospital then, what had prevented FIR No.37/11 PS Maurya Enclave Page No. 66/98 State Vs. Pinku @ Kana & Ors.
to the IO to record his statement promptly. Since the first statement of this witness is alleged to have been recorded on 09.02.2011 and Ld. Addl PP for the State has submitted that this witness was unfit for making statement. So, his statement was not recorded. But as this witness has admitted that he was able to speak, when he was removed to the hospital and till he remained in hospital. So such submission of Ld. APP for the State does not have any force and in view of delay in recording his statement, his testimony becomes doubtful and possibilities of introduction of afterthought and colourful version cannot be ruled out. Since this witness during his crossexamination has admitted it to be correct that after receiving the bullet injury, he became concerned for saving his life and therefore, he did not see the assailants and also admitted that he was not able to see the assailants properly. So, in the considered opinion of this court, it will be unsafe to convict to the accused on the basis of such improved, embellished, inconsistent, contradictory and suspicious testimony of this witness and since, this witness during his crossexamination has admitted that he had come to Delhi on dated 12.02.2015 and since then, he was staying with the police and thus, from such testimony of this witness, it is clear that at the time of recording of the evidence in the court, this witness stayed with the police for about one week. So, the possibilities of tutoring of this witness by the police cannot be ruled out. Since, the testimony of this witness is suspicious, so, it is not believed.
70. Whereas, Sh. Karan Garg has been examined as PW 21, who has deposed that on 06.02.2011, at about 9:009:30PM, when FIR No.37/11 PS Maurya Enclave Page No. 67/98 State Vs. Pinku @ Kana & Ors.
he was present at his home, a phone call was received on the landline number about his father having been shot by somebody and that he should immediately reach near the shop of his father. He has further deposed that the address of said shop is Shop No. 28, AP Market, Pitampura, Delhi which is situated at a distance of about 150 yards from their house. He has further deposed that he immediately took the keys of his car and ran towards the shop of his father and at a distance of about 4050 steps from the shop, his father was sitting on the road side, who had sustained one bullet injury in his stomach and another on his leg. He has further deposed that he did not remember, whether the second bullet shot was on his left or right leg. He has further deposed that their employee Chitranjan was also sitting with his father with a bullet injury on his foot. He has further deposed that he immediately ran back to his house to bring the car to take his father and Chitranjan to the hospital. He has further deposed that he took them to Muni Maya Ram Hospital, but, after seeing the condition of injured persons, the staff of the hospital refused to admit them and then, he took them to Saroj Hospital at Madhuban Chowk and got them admitted therein and after staying at the hospital for about 11 ½ hour, he had returned to the spot. He has further deposed that police was already present there and the persons from neighbourhood were also standing there and were informing the sequence of events to the police. He has further deposed that police had recorded his statements as was told to him by Chitranjan, while being taken to the hospital and he had narrated the same to police, on the basis of which, police had prepared a site plan Ex.PW21/A in his presence. He has further deposed that after 56 days, FIR No.37/11 PS Maurya Enclave Page No. 68/98 State Vs. Pinku @ Kana & Ors.
the condition of his father had deteriorated due to which, he was shifted to Sir Ganga Ram Hospital, where he unfortunately expired on 10.03.2011. The opportunity to cross examine this witness was given to the counsels for accused. But the Ld. Counsel for accused did not crossexamine this witness, so, the opportunity of the accused to cross examine this witness was done NIL. But, the testimony of this witness appears to be inconsistent to the testimony of PW19. As PW19 has deposed in his crossexamination that he did not tell about the occurrence and the manner in which the offences were committed, to (PW21) Karan. Whereas, this witness Karan has deposed that he had deposed before the police, as told by the Chitranjan. Since, this witness is not an eye witness. Since this witness has not seen the occurrence and if the testimony of PW19 Chitranjan, injured, is looked into, then, he had not told to this witness (Karan) about this occurrence and if this witness has not seen the occurrence and PW19 had not told to this witness about the manner in which this occurrence had taken place, then, how the IO has prepared the site plan Ex.PW21/A at the instance of this witness and without having any knowledge of this occurrence. Thus, how this witness could tell to PW30 as to in which direction, the assailants fled away after committing the offences, so, site plan Ex.PW21/A, which is prepared at the instance of PW21 is suspicious and doubtful and correctness thereof is doubted. This PW21 has deposed that on dated 09.02.2011 at about 9.00PM9.30PM, he had received a call on his landline phone who told about this incident of firing to him. This witness has not disclosed the name of the person, who had telephonically informed to this witness about this incident. IO FIR No.37/11 PS Maurya Enclave Page No. 69/98 State Vs. Pinku @ Kana & Ors.
also did not bother to ask this witness at the time of recording of statement of this witness, during the investigation about the person, who had informed this witness about this incident on telephone, as he could be an eye witness and he could reveal about the assailants in better way. But, IO remained negligent. This witness (PW21) has deposed that initially, he had taken his father and Chitranjan to Muni Maya Ram Hospital. But the staff of the said hospital had refused to admit the injured, then, he had taken both the injured to the Saroj hospital and if the testimony of PW19 Chitranjan is looked into, then, he has deposed that on dated 06.02.2011, the police accompanied him from Muni Maya Ram hospital and also to Saroj hospital and if the police was accompanying the injured, then, why did police not help the injured for their treatment in Muni Maya Ram hospital and how the staff of Muni Maya Ram hospital could refuse to give even first aid to the injured that too in the presence of the police. Whether the police was mere mute spectator, when the injured were refused even first aid by the staff of the said hospital, is a mystery and thus, these circumstances shows that police was not policing in real sense and the laps is found on the part of those police officers who did not help the injured even in such condition and there is need to do some needful to improve the conduct of such police officials.
71. Whereas, W/Ct. Sumitra has been examined as PW 18, who has deposed that on 06.02.2011, she was posted in Central Police Control Room to attend the calls made at no. 100 and on that day at 21:46:06 hours, she received a telephonic call from mobile no. 9311316888 that FIR No.37/11 PS Maurya Enclave Page No. 70/98 State Vs. Pinku @ Kana & Ors.
"shop no. 29, AP Market, Pitampura, Delhi, Do Admiyo Ne Goli Marker Bag Cheen kar Le gaye Hain + injured two persons". She passed this information to the concerned net as well as to the CATS Ambulance, as well as, to senior officers and the form Ex. PW 18/A in this regard was filled by her. This witness was also cross examined by Ld. Counsel for accused. During her cross examination, she has deposed that the call dated 06.02.2011 which was received by her was in the name of Munish Talwar with address mentioned as JD63 A, Pitam Pura, Delhi. This witness was also examined as PW 28 in the court of Predecessor of this court and during her examination in chief again examined on 10.09.2015, the PCR form was again exhibited as Ex. PW 28/A and this witness has also tendered the certificate u/s. 65 B of The Indian Evidence Act and on that day the Predecessor of this court was pleased to grant opportunity to counsel for the accused to cross examine this witness, but, the counsels for the accused did not cross examine this witness. So, the opportunity of the accused to cross examine this witness on dated 10.09.2015, was done nil. Thus, from the testimony of the witness it is clear that DD No. PCR call was received from Munish Talwar and name & address of Munish Talwar is well mentioned in PCR form Ex. PW 18/A (and also Ex. PW 28/A) wherein it was mentioned that two persons had fired on two persons and succeeded in snatching away the bag. This was the first information which was received by the police on dated 06.02.2011 at 21:40:06 hrs., but the IO did not bother to contact with Munish Talwar despite of the availability of his phone number and the address with the police and since Munish Talwar could be the best witness, who had dialled at 100 FIR No.37/11 PS Maurya Enclave Page No. 71/98 State Vs. Pinku @ Kana & Ors.
number soon after the occurrence. If this document PCR Form Ex. PW18/A is looked into, it is mentioned therein that two accused were allegedly involved in this incident of firing as told by the Munish Talwar, were two persons. Whereas, four accused have been chargesheeted in the present case and as per the case set up by the police, six accused are involved and accused Raju and Amit, could not be found. So, they are not chargesheeted. Since, the IO did not bother to contact with the Munish Talwar, who is alleged to have informed about the occurrence, so, it remained mystery, as to who were those two accused persons, who had fired on the deceased Ghanshyam Dass Garg and PW 19 Chitranjan and nonexamination of Munish Talwar by the IO is laps on the part of IO.
72. Whereas, SI Deepak Kumar has been examined as PW30, who has deposed that on 06.02.2011, he was posted at PS Maurya Enclave, Delhi as SI and on that day, on receiving DD No.24A, he along with Ct. Sukhbir Singh reached AP Block Market, Pitampura, Delhi. He has further deposed that near Shop No.28, Baba Jewellers, blood and three empty cartridge cases were lying and meanwhile, SHO along with staff also reached there. He has further deposed that there, he came to know that two persons had sustained bullet injuries who were already been shifted to hospital and he left Ct. Sukhbir to preserve and protect the spot and he went to Saroj Hospital. He has further deposed that there two persons namely Ghanshyam Dass and Chitranjan were found admitted and he obtained their MLCs. He has further deposed that both the injured were declared unfit for statement by the doctor and no eye FIR No.37/11 PS Maurya Enclave Page No. 72/98 State Vs. Pinku @ Kana & Ors.
witness was found either at the spot or at Saroj hospital. He has further deposed that he again reached at the spot and crime team was called by him and he got the spot inspected and photographed through crime team. He has further deposed that on inquiry from Karan s/o (deceased) Ghanshyam Dass, he came to know that deceased was running a jewellery shop and his bag containing jewellery was robbed and he prepared a tehrir on DD no.24A, same is Ex.PW30/A, signed by him at point X. He has further deposed that he had handed over the tehrir to Ct. Sukhbir for getting, the present FIR registered. He has further deposed that after sometime, Ct. Sukhbir came back to spot and handed over him the original tehrir and copy of FIR and he prepared the site plan Ex.PW30/B at the instance of Karan. He has further deposed that the blood was lying there at two places and same were marked by him in the site plan as A1 and A2. He has further deposed that he lifted blood with the help of cotton from both the said places and he also lifted the blood stained earth material and earth control from both the said places A1 and A2. He has further deposed that all the above mentioned six exhibits were kept in separate plastic containers and six separate pulandas were prepared and all the pulandas were sealed with the seal of DD and same were seized vide seizure memo already Ex.PW6/A. He has further deposed that three empty cartridge cases and two defaced bullet leads which were found at the spots were also seized vide seizure memo already Ex.PW6/B, signed by him at point X, after keeping said articles in a plastic container and preparing a pulanda and sealing the same with the seal of DD. He has further deposed that seal after the use was handed over to Ct. Sukhbir and he recorded statements of Ct.
FIR No.37/11 PS Maurya Enclave Page No. 73/98Sukhbir and Karan. He has further deposed that on 09.02.2011, injured Chitranjan was declared fit for statement and was discharged from the hospital and he had recorded his statement at his house and on 21.02.2011, he received an information from PS Maurya Enclave that accused Pinku @ Kana was arrested in case FIR No. 407/10, PS Maurya Enclave and had confessed about his involvement along with his other associates in this case. He has further deposed that he along with ASI Raju Yadav and HC Ashok interrogated accused Pinku @ Kana and recorded his disclosure statement Ex.PW2/A and he was arrested vide memo of arrest Ex.PW2/B and his personal search was conducted vide memo Ex.PW2/C. He has further deposed that pursuant to his disclosure statement, accused Pinku pointed out the house of his coaccused Neeraj i.e H.No. 165, Gali No.8, Ambedkar Nagar, Haiderpur, Delhi, vide pointing out memo Ex.PW2/E and also pointed out the place of occurrence vide memo Ex.PW2/D. He has further deposed that he served a notice to accused Pinku @ Kana to keep himself in muffled face and he was produced before the court and was sent to JC. He has further deposed that he moved an application for conducting TIP of accused Pinku @ Kana Ex.PW30/C and date for his TIP was fixed for 26.02.2011 and on 26.02.2011, accused Pinku @ Kana refused to participate in TIP and he obtained copy of TIP proceedings and same were made part of record. He has further deposed that on 28.02.2011, he obtained PC remand for two days of accused Pinku @ Kana and on the same day, when he alongwith accused Pinku @ Kana reached at Pitampura regarding the investigation of the present case, Chitranjan met them and he identified FIR No.37/11 PS Maurya Enclave Page No. 74/98 State Vs. Pinku @ Kana & Ors.
accused Pinku @ Kana. He has further deposed that he had recorded his statement and after two days PC remand, accused was produced before the court and was remanded in JC. He has further deposed that on 10.03.2011, he had handed over the case file to Inspector Rajbir Singh, as further investigation was marked to him. He has further deposed that on 25.03.2011, he alongwith Ct. Sukhbir reached in the Saroj hospitals and from there, he collected two pullandas both sealed with the seal of Saroj hospital along with one sample seal. He has further deposed that one pullanda was stated to be containing clothes of Ghanshyam Dass and Chitranjan and other pullanda was stated to be containing the bullet lead, which was extracted by the doctors from the body of Ghanshyam Dass. Same were seized by him vide seizure memo Ex.PW6/C. He has further deposed that on 19.04.2011, as per the instruction of Inspector Rajbir, he collected one sealed pullanda and one sample seal, from MHC(M) vide RC No. 46/21/11 and deposited the same along with FSL form and other documents in FSL Rohini. He has further deposed that after depositing the said pullanda, he returned one copy of RC and acknowledgment of FSL to MHC(M). He has further deposed that the said pullanda was not tampered, during the period said pullanda remained in his custody and Inspector Rajbir recorded his statement on that day. This witness was cross examined by Ld. Counsel for accused. During his crossexamination, he has deposed that he had reached at the spot at about 10.00pm and he had left the spot first time at about 10.15pm. He has further deposed that public persons were present there, when, he had reached at the spot and he made inquiries from the public persons, who were present there and FIR No.37/11 PS Maurya Enclave Page No. 75/98 State Vs. Pinku @ Kana & Ors.
voluntarily stated that none of them revealed anything regarding the incident. He has further deposed that Chitranjan met him during the course of investigation conducted by him in this case on 09.02.2011 and he had recorded his statement in his own handwriting. He has further deposed that he had recorded the said statement as per dictation of Chitranjan in one go without making any initial inquiries from him. He has further deposed that after knowing from Chitranjan that he could identify all the said four assailants, he did not ask him as to on what basis, he was claiming to identify them. He had admitted it to be correct that he did not ask Chitranjan about the ages, heights, features, colour of clothes of assailants. He had also admitted it to be correct that he did not ask Chitranjan about the make, any specific mark or fabric of bag. He had also admitted it to be correct that it was not mentioned in the statement of Chitranjan that he was on duty as an employee of deceased on 06.02.2011 or that the deceased had kept the jewellery articles in a black bag in his presence. He has denied that he has not conducted a fair investigation in this case being IO of this case or that PW19 Chitranjan is a false and planted witness or that for that reason, all these details were not mentioned in his statement or that he has deposed falsely. He has admitted that nothing was recovered at the instance of any of the accused, during the period, investigation remained with him. He has denied that none of the accused made any disclosure statement or that their disclosure statements were recorded by him on his own after obtaining their signatures forcibly. He is denied that accused persons were not kept in muffled faces by him or that none of the accused had pointed out the place of occurrence. He has FIR No.37/11 PS Maurya Enclave Page No. 76/98 State Vs. Pinku @ Kana & Ors.
further deposed that he had prepared the site plan at the instance of son of deceased, namely Karan, on 07.02.2011 after 12.00 midnight, but he did not remember exact time, even by approximation and prior to the preparation of site plan, no statement of Karan was recorded by him. He has further deposed that he had recorded the statement of Karan at the spot on 07.02.2011 at about 00.45 hrs. Karan did not tell him as to in which direction, accused persons had fled away. He has further deposed that he did not mention the direction in the site plan, in which assailants had fled away. He has denied that he had mentioned the said direction of running away of assailants in the site plan. The attention of the witness was drawn towards the site plan Ex.PW30/B in which the path opted by accused persons for fleeing away from the spot is shown by arrows. He has further deposed that he did not obtain the signature of Karan on site plan and on 06.02.2011, he had not recorded the statement of any person on 06.02.2011, he has not inquired from any person about being eye witness of this case. He has further deposed that crime team reached at the spot at about 11.00pm and remained there till about 12.30am and during this period, he was present at the spot. He has further deposed that he came back at the spot from Saroj hospital at about 11.00pm and he had lifted the exhibits from spot at about 1.00am. He did not remember, whether he had recorded the statement of any of the crime team official on that night. He had left the spot at about 2.00am. He has further deposed that during the period of the inspection of spot by crime team, Karan remained present there. He has denied that he had not visited the spot or that he had not prepared the site plan or he had not recorded the FIR No.37/11 PS Maurya Enclave Page No. 77/98 State Vs. Pinku @ Kana & Ors.
statement of any of the police officials who had accompanied him from the PS, at the spot. He has deposed that he did not remember the date and time, when Chitranjan was discharged from the hospital and he had visited Chitranjan in the hospital on 07.02.2011 and 08.02.2011, but, his statement could not be recorded, as he was unfit for statement. He did not remember whether endorsement of said patient being unfit for statement was taken by him or not, although he had met the doctor on both the dates and he had made departure entries at the PS for visiting the hospital on both the dates and he did not remember the DD number for those entries. He has further deposed that he has brought two DD entries of his departure of dated 07.02.2011 and dated 08.02.2011 bearing No.14 and 20 respectively. He has admitted it to be correct that in the said DD entries it is not mentioned that he had left the Police Station to go to Saroj Hospital. He has denied that on 07.02.2011 and 08.02.2011 witness Chitranjan was fit for statement or that even on 06.02.2011, he was fit for statement. He has denied that he has not disclosed the names of doctors, deliberately, because of the reason that they had declared Chitranjan fit for statement on the said dates. He did not remember whether DD No.24A contained the name, address and telephone number of the caller and he did not interrogate Sh. Munish Talwar R/o JD63A, Pitampura, Delhi having mobile number 9311316888 and he could not contact or interrogate Sh. Talwar. He did not come to know of him, even subsequently, till the investigation remained with him. He has further deposed that he did not remember whether he had examined the PCR officials who had shifted Chitranjan from spot to the hospital. He has denied that accused Mohd. Afsar had FIR No.37/11 PS Maurya Enclave Page No. 78/98 State Vs. Pinku @ Kana & Ors.
been shown to Chitranjan at police station and he did not obtain Call Detail Record of accused, whom he had arrested. He had also not collected CDRs of other accused persons. He has denied that he has deposed falsely. The perusal of the testimony of this witness reveals that DD No.24A Ex.PW11/A was assigned to this witness and the same DD was lodged on the basis of the information received at 100 number and PCR form Ex.PW18/A reveals that the 100 number call was made by one Munish Talwar, on dated 06.02.2011 at PP 21:46:06 hrs. and the DD No.24A Ex.PW11/A reveals that it is mentioned therein that two boys had caused bullet injuries and robbed away the bag and this investigating officer PW30 did not bother to contact with the Munish Talwar on the basis of which, DD No.24A was lodged, despite of the fact that his proper address and phone number were written in the PCR form Ex.PW18/A and it is worthwhile to mention here that this witness did not try to know from Munish Talwar as to who were those two accused who had caused bullet injuries on the persons of Chitranjan and Ghanshyam Dass. This witness has deposed in his examination in chief that injured were unfit for making statements. Wheres, the testimony of (PW19) Chitranjan recorded in the court reveals that he was conscious at the time he was taken to Muni Maya Ram hospital and at the time when he was taken to Saroj hospital. If the testimony of PW19 Chitranjan is looked into, he has deposed in his cross examination that the police had accompanied him to the Muni Maya Ram hospital and also to Saroj hospital. But, he has not cleared the name of police personnels, who had accompanied Chitranjan and Ghanshyam Dass to the hospitals. If DD No.24A was assigned to this FIR No.37/11 PS Maurya Enclave Page No. 79/98 State Vs. Pinku @ Kana & Ors.
PW30, so, it was the duty of this investigating officer to approach to the injured and to record his statement promptly and if the testimony of PW19 is looked into, he has deposed in the court that his first statement was recorded by the police on 06.02.2011. Whereas, the perusal of the record reveals that no statement of PW19 allegedly recorded on dated 06.02.2011 was filed with the chargesheet, for the best reasons known to the investigating officer and since the perusal of the record also reveals that first statement of this PW19 recorded on 09.02.2011 is filed with the charge sheet and as per the testimony of this witness, the statement of PW19 was also recorded on dated 28.02.2011 at Pitampura. Whereas, this witness has also deposed in his examination in chief that on dated 28.02.2011, he took the accused Pinku @ Kana at Pitampura and Chitranjan met him at there and he had identified to the accused Pinku @ Kana. But, as PW19 during his crossexamination has deposed that he never went at Pitampura on 28.02.2011, so, the testimony of this witness is found to be inconsistent to the testimony of PW19 and statement of Chitranjan Ex.PW19/A allegedly recorded on dated 28.02.2011 also becomes doubtful. This witness has alleged that disclosure statements were made by the accused Pinku @ Kana and disclosed about his involvement and involvement of other accused and during his crossexamination, this witness has admitted that nothing has been recovered from the accused Pinku @ Kana and since the alleged disclosure statements were recorded during the custody of police, so the same are inadmissible, as nothing incriminating has been recovered in furtherance thereof. This witness has deposed that he had prepared the site plan Ex.PW30/B at the instance of (PW21) Karan. Since PW21 FIR No.37/11 PS Maurya Enclave Page No. 80/98 State Vs. Pinku @ Kana & Ors.
Karan has not witnessed the occurrence and if the testimony of PW19 Chitranjan is looked into, he has deposed that he did not tell Karan (PW21) as to in what manner offences were committed, so, how could Karan (PW21) assist PW30 in preparing the site plan Ex.PW30/B, wherein PW30 has mentioned the path opted by the accused persons for fleeing away from the spot, which clearly manifests that this investigating officer had prepared site plan Ex.PW30/B of his own. This witness has deposed that the injured were unfit for making statement. This court has perused the MLC of Chitranjan Ex.PW20/A, wherein Chitranjan was stated to be unfit for making statement on 06.02.2011 at 11.53PM and MLC of Ghanshyam Dass Garg Ex.PW20/B reveals that Shri Garg was declared unfit for statement on 06.02.2011 at 11:55 PM. But as the testimony of PW19 makes it clear that soon after the occurrence, that witness remained conscious and since PW19 has admitted it to be correct in the court that when he was being removed to the hospital, he was able to speak and till the time, he remained in the hospital, he was able to speak and since, PW30 has claimed that he had also gone to the hospital on 07.02.2011 and 08.02.2011. But, the prosecution has failed to show any document or the statement of any doctor which may enable this court to draw an inference that Chitranjan (PW19) was unfit for making statement even on 07.02.2011 and 08.02.2011. So, such oral testimony of this PW30 does not inspire any confidence that Chitranjan was even unfit for making statement on 07.02.2011 and 08.02.2011. Since, the perusal of DD No.24 A Ex.PW11/A reveals that two accused are alleged to have caused bullet injuries whereas report u/.s.173 A of CrPC reveals that six accused FIR No.37/11 PS Maurya Enclave Page No. 81/98 State Vs. Pinku @ Kana & Ors.
were involved in the commission of the offences and the police has filed the charge sheet against four accused and accused Amit and Raju are not arrested. Since, the initial investigation was done by this PW30, but he did not bother to contact with Munish Talwar who had called the police, who could be the best witness to prove the case of the prosecution and since admittedly, neither PW30 who has initially investigated the present matter nor PW32 who had conducted the investigation in the present case at later stage, resorted to contact with Munish Talwar, who had called to the police by dialling 100 number who had told to the police that two assailants had caused bullet injuries. So, in view of withholding of best evidence by the police and also by the prosecution, an adverse inference is drawn against the prosecution and thus, the investigation done by the Investigating Officers, are found to be faulty.
73. Since in the case in hand, it is alleged by the prosecution that all the accused in furtherance of their common intention with their coaccused Raju and Amit (who are not arrested) have robbed away the bag of Ghanshyam Dass Garg (deceased) allegedly containing 10 gold rings, other gold and silver jewellery caused grievous injuries on the person of Chitranjan by way of firing at him with a revolver and also committed murder of Ghanshyam Dass Garg and accused Ranjeet @ Bihari has used deadly weapon of revolver, while committing the robbery, so it was incumbent on the part of prosecution to prove its case beyond reasonable doubt. But as PW19 Chitranjan is the only eye witness who has been examined by the prosecution and perusal of the FIR No.37/11 PS Maurya Enclave Page No. 82/98 State Vs. Pinku @ Kana & Ors.
record reveals that his first statement Ex.PW19/DA was recorded on dated 09.02.2011, he has alleged that one boy had given fist blow to his employer who shouted and this witness took turn towards his back and this witness had seen that one boy was trying to rob away the bag from his employer and at the same time, three boys also came and then, the same boy who had given fist blow, had tried to rob away the bag from the employer of this witness, took out the revolver and caused bullet injuries in the stomach and foot of the employer of this witness, namely Sh. Ghanshyam Dass Garg and he has also stated therein that this witness had caught the bags from the hands of his employer and then, two boys had tried to rob away the said bag from this witness and when this witness did not give the bag to the accused, then, third boy had exhorted that "Ranjeet isko bhi goli maar" and that boy had caused bullet injury in his foot and two boys had robbed away the bag and fled away. He has also stated therein that the crowd had also gathered and the son of his employer had also come and with the help of the crowd, they were put in the car and taken to Muni Maya Ram hospital and from there, they were taken to Saroj Hospital, where this witness (PW19) Chitranjan and his employer Ghanshshaym Das Garg were admitted. Whereas, at the time of his crossexamination in the court, this witness has deposed that no one came to help them and voluntarily stated that one boy namely Satish came from the nearby shop and at the same time, he has also deposed that he did not know any Satish and thus the testimony of this witness is found to be self contradictory and if any Satish had come to rescue this witness (PW19) and deceased (Ghanshaym Das Garg), then, why did he not disclose his name in his FIR No.37/11 PS Maurya Enclave Page No. 83/98 State Vs. Pinku @ Kana & Ors.
statements Ex.PW19/A, Ex.PW19/DA and Ex.PW19/DB and why did IO of the case not record the statement of Satish, It has not been explained. Since this witness has deposed during his crossexamination that police had accompanied him on dated 06.02.2011 from the spot to Muni Maya Ram Hospital and also to the Saroj hospital. Then, why did IO not record the statement of this witness, it has not been explained. Since this witness (PW19) has deposed during his crossexamination that he did not tell to the police from the spot to the Muni Maya Ram hospital and then to Saroj Hospital regarding the number of persons, who had fired the bullets and this witness has further deposed that for the first time, his statement was recorded by police officials in the hospital on 06.02.2011 and the perusal of the record reveals that the police has not filed any such statement of this witness allegedly recorded on 06.02.2011 for the best reason known to the IO and perusal of record reveals that first statement of this witness was allegedly recorded on dated 09.02.2011 Ex.PW19/A and if, the statement of this witness is taken to be true that , he had given his first statement on dated 06.02.2011 and since, the said alleged statement has not been placed on record by the IO, So, an adverse inference is drawn against the prosecution. Since, this witness has admitted it to be correct that for the first time, accused Mohd. Afsar was shown to him in the police station, so, the proceedings of the TIP done qua accused Mohd. Afsar becomes suspicious and inconsequential. Since, this witness has admitted during his crossexamination that he did not read the statement Ex.PW19/DA, so, the said alleged statement also becomes doubtful. Whereas, the supplementary statement of this FIR No.37/11 PS Maurya Enclave Page No. 84/98 State Vs. Pinku @ Kana & Ors.
witness Ex.PW19/DB allegedly recorded U/s 161 of Cr.PC on dated 11.07.2011 reveals that this witness has alleged therein that Neeraj had robbed away the bag of his employer (Ghanshyam Das Garg). Whereas, perusal of his statement recorded on dated 28.02.2011 Ex.PW19/A reveals that this witness (PW19) has identified therein Pinku @ Kana as accused, who had robbed away the bag from the hands of his employer and since this witness during his examination in chief has deposed that Pinku @ Kana and Afsar were not seen at the spot and they may be present around the spot but they were not seen by him so the case of the prosecution against Pinku @ Kana and Afsar becomes doubtful. Since, the testimony of this witness is found to be inconsistent on the material points regarding the snatching of bag as in one statement, he has alleged that bag of his employer was snatched by Pinku @ Kana, whereas another statement he has alleged that the bag of his employer was snatched by accused Neeraj. and since this witness during his crossexamination has admitted it to be correct that after receiving bullet injury, he became concerned for saving his life, therefore he did not see the assailants. Thus, from such testimony of this witness it is clear that this witness has failed to prove on record beyond reasonable doubt that these accused had committed the offences. Since the prosecution has alleged that this witness has identified to the Pinku @ Kana on 28.02.2011 at village Pitam Pura, but, during his crossexamination, this witness has admitted he did not go to village Pitampura on 28.02.2011. So, the statement of this witness Ex.PW19/A also becomes doubtful. Since this witness (PW19) has admitted during his cross examination that when he was taken to the FIR No.37/11 PS Maurya Enclave Page No. 85/98 State Vs. Pinku @ Kana & Ors.
hospital he was able to speak and also admitted it to be correct that till the time, he remained in the hospital he was able to speak and police did not meet him in the hospital and thus, the testimony of PW19 is found to be inconsistent to the testimony of PW30, as, PW30 has stated that this witness was unfit for making the statement but the MLC of the this injured and of Ghanshayam Dass Garg reveals that PW19 was unfit for making statement on dated 06.02.2011 and this witness (PW30) has failed to bring on record any documentary proof showing that this witness was also unfit for making statement on 07.02.2011 and 08.02.2011. Since, as per the record the first statement Ex.19/A of this witness was recorded by the IO on dated 09.02.2011 and since this witness has deposed that he was able to speak when he was taken to the hospital and till, he remained in the hospital. So, the IO could record his statement promptly and even if the MLC of PW19 looked into he was unfit for making statement on 06.02.2011. But, there is a considerable delay in recording the statement of this witness by the IO. As, the IO has failed to explain any cogent reason for such delay in recording the statement of this witness .
74. As their Lordship of High Court Of Delhi in case Sonu Arora Vs. State. Crl. A. 241/1997 was pleased to observe "In his crossexamination, Lalu Prasad stated that he had put Zaheer in PCR van and blood stains had come on his shirt. He also stated that the blood stains were shown by him to the police but his clothes were not seized by the police. There is no explanation for not seizing the bloodstained clothes of Lalu Prasad despite his having FIR No.37/11 PS Maurya Enclave Page No. 86/98 State Vs. Pinku @ Kana & Ors.
shown them to the police. The failure of the Investigation Officer to seize the clothes of Lalu Prasad is an indication that, in fact, he had not witnessed the actual stabbing and had not put Zaheer in PCR van, as claimed by him. Had he done so, the Investigating Officer would definitely have seized his bloodstained shirt."
"It would also be pertinent to note here that though Lalu Prasad claims to be a friend of deceased Zaheer and also claims to have accompanied him to AIIMS in PCR van, his name does not find mention in the MLC of the deceased against the name of relative/friend and it is name of HC Virender Singh which has been shown against the relative/friend column of the MLC. If Lalu Prasad had accompanied deceased Zaheer to the hospital, as claimed by him, his name and not the name of the police Official would have been recorded against the column of 'relative or friend' of the injured brought to the hospital. These facts and circumstances lead to a strong inference that either Lalu Prasad had not witnessed this incident at all or he had left when the quarrel intensified and that is why, he did not meet the police officer either on the spot or in the hospital and his shirt was not seized by the police."
"Also, had Lalu Prasad witnessed the stabbing of Zaheer and Nizam, there would have been no contradiction, in the statement given by him to the police on the one hand, and his deposition during trial on the other hand, with respect to the core part of his testimony i.e who had stabbed Zaheer and who had stabbed Nizam."
"According to the Investigating Officer, though Lalu Prasad had met him on the spot at about 1:30 am and he had also obtained signatures FIR No.37/11 PS Maurya Enclave Page No. 87/98 State Vs. Pinku @ Kana & Ors.
of the witness on the memos prepared on the spot, his statement under Section 161 Cr. P. C. was recorded by him only at 5:30 PM. There is absolutely no explanation from the prosecution for his abnormal delay n recording the statement of Lalu Prasad."
"Ex. PW 17/A is the site plan stated to have bee prepared by the IO in the nigh of 18/19 October, 1993 at the instance of Lalu Prasad. The site plan indicates point 'G' as the place where Lalu Prasad had fight with accused persons and was beaten in front of Paan shop of Raj Karan by Mahmood and Anis @ Munna @ Nanhey. It has also been noted in the plan that Lalu Prasad and Raj Karan saw the incident from the rear point 'G'. These nothings on the site plan show that the Investigating Officer had already examined Lalu Prasad in respect of the incident in question. Without questioning him, the Investigating Officer could not have known the point where Lalu Prasad had fight with the accused persons and was beaten in front of the Paan Shop of Raj Karan. Similarly, without talking to him the Investigating Officer could not have known the place from where he had seen the incident taking place. No explanation, however, has been given by the prosecution for recording the statement of Lalu Prasad at 5:30 pm, i.e., after a gap of abut 16 hours from the time he met the Investigating Officer. The unexplained delay in recording the statement of Lalu Prasad need to be viewed in the light of the fact that he did not meet the police officer, SI Raj Singh, either on the spot when he reached there on receipt of information from Police Control Room or in the hospital, despite his claim that he had accompanied PCR Officials to the hospital in their van and had returned to spot with them in the same van and no official on FIR No.37/11 PS Maurya Enclave Page No. 88/98 State Vs. Pinku @ Kana & Ors.
duty in PCR van has been produced to prove that Lalu Prasad had met them on the spot, had accompanied them to AIIMS and then returned to spot with them in their van. The delay also needs to be viewed in the light of the fact that there is material contradiction in the statement given by Lalu Prasad to the police and his statement in the court as regards who stabbed whom Raj Karan."
"As held by the Supreme Court in State of UP V. Mundrika and Ors. MANU/SC/0786/2000: (2001) 9 SCC 346, the unexplained delay in recording of statement of material eyewitness throws a serious doubt as to whether he was really an eyewitness or not . If the delay in recording the statement of eyewitness remains unexplained, the inference is that either he was not an eye witness or the version of the incident given by him was a fabricated version. In Maruti Rama Naik v. State of Maharashtra MANU/SC/0684/2003:(2003) 10 SCC 670, a witness examined as PW 3 was examined by police after one day of the incident. The explanation given by the Investigating Officer with regard to the delay in recording his statement was that the witness was injured and had to be taken to Bombay and brought back to Panvel for treatment. Considering the nature of his injury and the opportunity available to the Investigating Officer to record his statement, Supreme Court rejected the explanation and disbelieved the witness."
"In the present case, no attempt at all has been made by the Investigating Officer to explain the abnormal delay of 16 hours in recording the statement of Lalu Prasad despite his being available to the police and his signatures having been taken on the memos alleged to have been prepared on the spot. The delay on the part of the FIR No.37/11 PS Maurya Enclave Page No. 89/98 State Vs. Pinku @ Kana & Ors.
Investigating Officer in recording the statement of Lalu Prasad when considered in the light of the fact that there is material contradiction in his statement to the police and his deposition in the court as to who had a stabbed whom, there was no visible injury on the person of Lalu Prasad despite the incident having started on account of an altercation between him an accused Mahmood, the version of the incident given by him as regards the role attributed to the appellant Sonu is contradictory to the version recorded in the brief facts prepared by the Investigating Officer on 20th October, 1993. He did not meet the investigating Officer either in the hospital or at the spot, his clothes were not been seized despite his assertion that he had shown bloodstained clothes to the Investigating Officer and Raj Karan, Paanwala, has not supported his claim regarding his (Raj Karan's) being present at his sop creates, serious doubt on the truthfulness jof the deposition of this witness. There is a strong probability of Lalu Prasad having left the spot before the stabbing took place. That also explains his not having met the Investigating Officer either in the hospital or at the spot, no bloodstained clothes of this witness having been seized, contradiction being found in his statement, as to who had stabbed whom and absence of any role attributed to the appellant Sonu in the brief fats recorded by the Investigating Officer on 20th October, 1993".
75. Their Lordship of High Court of Delhi in case State of NCT of Delhi vs. Taj Mohd. @ Taju & Anr. MANU/DE/3448/2013 was pleased to observe "In our view, the circumstances of the recovery of the razor, the FIR No.37/11 PS Maurya Enclave Page No. 90/98 State Vs. Pinku @ Kana & Ors.
scooter and the bloodstains on the shirt of the accused Taj Mohd. also do not inspire confidence and the reasoning given by the Trial Court in paragraph 31 to 33 of the judgment is free from any perversity or illegality. The said paragraphs are reproduced for ready reference as under: "Next are the circumstances of the recovery of the razor, the scooter and the bloodstained shirt of the accused Taj Mohd. The said recoveries were effected pursuant to the disclosure statement. The recording of the disclosure statement in the manner as deposed in the examination in chief by PW 14 and PW 15 and PW 21 becomes doubtful in view of the fact that there is a material contradiction with regard to recording of th disclosure statement in the respective deposition of said three witnesses. For PW 14, the disclosure statement was recorded by the IO i.e. PW21 while standing on the bonnet of the vehicle but for PW15, the disclosure statement of the accused was recorded by him at the dictation of the IO and sae was recorded while sitting at the Mangol Puri Bus Terminal whereas for PW 21, it was not in his memory as to whether the disclosure statement was recorded by him or at his dictation by some other staff member."
"The recovery of the shaving razor (ustra) is admittedly from an open place accessible to all and no public witness was joined in the investigation at the time of recovery of the said razor despite their admittedly availability by PW 14, PW15 and PW 21. For PW 15, it was recovered from kuccha ground, 20 to 25 Sq. yards away from the main road which was lying in a pit and for PW 21, there was no pit at the place from where the said having razor was recovered. NO site plan of FIR No.37/11 PS Maurya Enclave Page No. 91/98 State Vs. Pinku @ Kana & Ors.
the recovery of the shaving razor was prepared. The said razor was allegedly bloodstained but the blood detected on the same could not be linked with the blood group of the deceased which was of "B" group as per FSL result Ex. PW 17/B."
"The recovery of the alleged bloodstained shirt of the accused Taj Mohd. which he was wearing at the time of the incident was again deposed with material contradiction by said three witnesses. For PW 14, the shirt was recovered by the IO when they started from the house of the accused and the same was seized at the time of reaching the PS. For PW 15, the said shirt of the accused was recovered from the house of the accused whereas for PW 21 the shirt of the accused was seized reaching the PS and its seizure memo was also prepared at the PS and he did not remember if other shirt was arranged for the accused or not. Further joit to the deposition with regard to said shirt having bloodstains is given by the FSL result Ex. PW 17/B which mentioned that no blood was detected on the said shirt. The recovery of the scooter is not very material because it is a thing having specific registration number and the accused has admitted the same to be in his name but it could not be linked otherwise by any other evidence on the record, as discussed above."
"It is a cardinal principle of criminal jurisprudence that every accused person is innocent unless proved guilty and this presumption of innocence gets strengthened when such an accused is acquitted by the Trial Court after passing a wellreasoned order. Finding no illegality or perversity in the impugned judgment dated 7th August 2010, the present petition deserves to be rejected being devoid of any merit.FIR No.37/11 PS Maurya Enclave Page No. 92/98
State Vs. Pinku @ Kana & Ors.
Therefore, the same stands dismissed. It is ordered accordingly."
76. In the light of the abovesaid judgments, I inclined to hold that in view of the delay in recording the statement of this prosecution witness PW 19, the case of the prosecution becomes doubtful as the statement of this PW 19 is full of contradictions and inconsistencies and in view of delay in recording the statement by the IO the possibility of introduction of an afterthought and colourful version cannot be ruled out.
77. Since, the disclosure statements of the accused were recorded during the custody of the police and nothing incriminating has been recovered, so, the disclosure statements of the accused are inadmissible. The prosecution has failed to prove on record as to which articles were kept in the bags which is allegedly robbed away by the accused. The investigating officers have also failed to recover the weapon used in the commission of the offences and also failed to recover the alleged robbed bag or any article kept in the alleged robbed bag. Since PCR form Ex.PW18/A reveals that assailants who had caused bulled injuries were two. Whereas, chargesheet has been filed against four accused and if the chargesheet is looked into, then, the offences are alleged to have been committed by six persons and Raju and Amit who are also allegedly involved in the commission of the offences could not be arrested and only sole eye witness (PW19) Chitranjan has been examined whose testimony is full of contradictions, inconsistencies and it is suspicious, so, it does not inspire any confidence. Since Munish Talwar who had intimated the police soon FIR No.37/11 PS Maurya Enclave Page No. 93/98 State Vs. Pinku @ Kana & Ors.
after this occurrence could be the best witness to prove the case of the prosecution and since admittedly, PW30 who has initially investigated the present matter and PW32 who had conducted the investigation in the present case at later stage, had not resorted to contact with Munish Talwar, who had called to the police by dialing 100 number. So, in view of withholding of best evidence by the police and also by the prosecution, an adverse inference is liable to be drawn against the prosecution. Since, the charges under Section 392/34/394/34/302/34 of IPC were framed against all the accused, so, it was incumbent on the part of the prosecution to prove it's case beyond reasonable doubt's that all the accused had robbed away the bag of Ghan Shayam Dass Garg containing 10 gold rings and other gold and silver jewellery and caused grievous injury on the person of the Chitranjan (PW19) and also caused murder of Ghan Shayam Dass Garg but as the prosecution has examined Chitranjan being only eye witness and testimony of this witness is found to be contradictory and inconsistent to the testimony of other prosecution witnesses as discussed herein above and since the charge u/s. 397 of IPC was framed against Ranjeet @ Bihari and since the testimony of sole eye witness is found to be self contradictory and inconsistent to the testimonies of other prosecution witness so the same are held to be suspicious. So, the same do not inspire any confidence.
78. Since there are many lacunas and infirmities in the case of the prosecution, from which the possibilities of false implication cannot be ruled out.
79. As their lordship of Supreme Court in case State of FIR No.37/11 PS Maurya Enclave Page No. 94/98 State Vs. Pinku @ Kana & Ors.
Rajasthan V. Raja Ram, V (2003) SLT 45III (2003) CCR 198 (SC)=(2003) 8 SCC 180 was pleased to hold that:
"There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case, where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not (see Bhagwan Singh v. State of M.P., (2002) 4 SCC 85). The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Badade v. State of Maharashtra, (1973) 2 SCC 793; Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 and Jaswant Singh v. State of Haryana, (2000) 4 SCC 484."FIR No.37/11 PS Maurya Enclave Page No. 95/98
80. Since, in the case of State of West Bengal v. Orilal Jaiswal and another (1994) 1 Supreme Court Cases 73, "it was held that Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law. In the case of Mohan Singh and anr. v. State of M.P. (1999) 1 Supreme Court Reports 276, it was held that the courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused."
81. In the case of Mohan Singh and anr. v. State of M.P. (1999) 1 Supreme Court Reports 276, it was held that "the courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the FIR No.37/11 PS Maurya Enclave Page No. 96/98 State Vs. Pinku @ Kana & Ors.
moment suspicions are created. It is onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scott free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused."
82. Cumulative effect of the above discussion, is that since the testimonies of the PW19 Chitranjan, PW21 Karan and PW30 SI Deepak Kumar are found to be inconsistent, contradictory and suspicious, so they do not inspire any confidence and benefits of doubt are given to the accused.
83. In view of the above discussion, I am of the considered opinion that it will be unsafe to convict to the accused, as there are so many infirmities, holes and lacunae in the version of the prosecution as discussed hereinabove. Since doubts are also there in the version of witnesses of the prosecution and benefits of doubts are given to the accused. Therefore,I am inclined to hold that the prosecution has failed to prove it's case beyond reasonable doubt against the accused Pinku @ Kana, Mohd. Afsar, Ranjeet @ Bihari and Neeraj @ Dheeraj. Accordingly, these accused are acquitted of the charges framed against them. They are directed to be released on furnishing bail bonds in a sum of Rs.10,000/ with one surety of like amount each for a period of six months to ensure their attendance and appearance before the Ld. Appellate Court, as per provision of Section 437A of Cr.PC. The case FIR No.37/11 PS Maurya Enclave Page No. 97/98 State Vs. Pinku @ Kana & Ors.
properties are ordered to be disposed off after expiry of statutory period of filing of the appeal, as per law. (and after verifying from the Hon'ble Appellate forum regarding the pendency of appeal, if any.)
84. File be consigned to the Record Room on furnishing of the bail bonds / surety bonds under Section 437A of CrPC.
Digitally signed by PAWAN PAWAN KUMAR
KUMAR MATTO
Announced in the Open Court on MATTO
Date: 2018.10.05
16:46:31 +0530
05th October, 2018 (Pawan Kumar Matto)
Special Judge (NDPS),
Additional Sessions Judge, N/W
Rohini Courts, Delhi.
FIR No.37/11 PS Maurya Enclave Page No. 98/98