Delhi District Court
State vs Ravinder @ Sabi on 17 August, 2024
IN THE COURT OF MS. SAUMYA CHAUHAN,
ASJ (FTC)-02, WEST DISTRICT, TIS HAZARI
COURTS, DELHI
CNR no. DLWT01-008302-2016
SC No.58194/2019
FIR no. 415/2016
State Vs. Ravinder @ Sabi & Anr.
PS: Nihal Vihar
Under Section: 302/195A/34 IPC and 27/54/59 Arms Act
JUDGMENT
Date of commission of offence 30.05.2016 Date of institution of the case 20.10.2016 Date of Committal in the Court 27.10.2016 of Sessions Name of the complainant Rahul Jindal Name of accused persons and 1) Ravinder @ Sabi S/o Sh.
addresses Ram Lubhaya, R/o RZ F-315,
Nihal Vihar, Delhi.
2) Ranveer @ Nika S/o Sh.
Ram Lubhaya, R/o RZ F-315,
Nihal Vihar, Delhi.
Offence complained of or proved 302/195A/34 IPC and 27/54/59 Arms Act Plea of the accused Pleaded not guilty Final Order Convicted Date of announcing of judgment 17.08.2024 BRIEF FACTS State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 1 of 62
1. The case of the prosecution in brief is that on 30.05.2016 at 7.30 p.m. at road in front of shop of Anil Jain at A-73, Kunwar Singh Nagar, Nangloi, Najafgarh Road, Delhi, both the accused persons namely Ravinder @ Sabi and Ranveer @ Nikka came riding a motorcycle and in furtherance of their common intention fired a gun shot at Rahul S/o Raj Kumar (the deceased) from a desi katta. They fled on the motorcycle after throwing the katta at the spot. The injured was taken to Satyabhama hospital by one Rahul Jindal, a nearby shop-keeper, from where he was further referred to Maharaja Agarsen Hospital. At around 09:30 PM on the same day, the injured Rahul S/o Raj Kumar died during treatment in the hospital.
2. The police recorded statement of Sh. Rahul Jindal, who stated that the deceased had told him that the accused persons had shot him. On basis of his statement, IO prepared the rukka and FIR was registered.
3. Investigation was carried out at the spot. One loaded desi katta was recovered from the spot. On unloading, a live cartridge was found having mark of firing pin. The scooty of the deceased having registration number no. DL-4SJ- 7684 was also seized from the spot. Postmortem of the deceased was conducted and the cause of death was opined as "Shock as a result of chest injury due to rifled fire arm weapon". Statement of Sh. Rajkumar (father) and Mohit (brother) of the injured were recorded. Mohit stated that the deceased had told him in Satyabhama hospital that State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 2 of 62 Sabi had fired at him and then both the accused fled on a motorcycle, which the accused Nika was driving. He also informed the IO that in the year 2013, the accused persons had stabbed him and an FIR no.314/13 under Section 307/34 IPC, PS Nihal Vihar was registered against them. Mohit and his brother Rahul (the deceased) were prosecution witness in the said matter, and the accused persons used to threaten and pressurize them to settle the dispute with them.
4. Efforts were made to trace out the accused persons, but they could not be traced out. However, the motorcycle of the accused Ravinder @ Sabi having no. DL-10SE-2456 was recovered in an abandoned condition on 14.07.2016 vide DD no.66B and was deposited in the Malkhana, PS Nihal Vihar under Section 66 DP Act. On 17.07.2016, the accused persons were arrested by the police officials of Alwar, Rajasthan where they disclosed about their involvement in the present case. IO obtained production warrant of the accused persons and they were interrogated and arrested in the present case.
5. It is the case of the prosecution that accused persons have committed an offence under Section 195A/302/34 IPC and Section 27/54/59 Arms Act.
INVESTIGATION & OTHER PROCEEDINGS
6. After completion of investigation, charge-sheet U/s 302/195A/34 IPC and 27/54/59 Arms Act was filed in the State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 3 of 62 Court of Ld. MM against the accused persons. After completion of proceedings U/s 207 Cr.P.C., Ld. MM committed the case to Learned Sessions Court. Thereafter, the case was assigned to the Court of Ld. Predecessor and was received by this court by way of transfer.
CHARGE
7. Vide order dated 11.11.2016, charge under Section 195A/34 IPC and 302/34 IPC was framed against the accused persons, to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
8. To prove the charge against the accused persons, the prosecution has examined 28 witnesses in total.
9. PW-1 Rahul Jindal had taken the deceased Rahul to Satyabhama hospital. He deposed that he has a mobile shop at Nilothi Mod. On 30.05.2016 at around 07.00-07.30 P.M., he was present at his shop when he heard the noise of dhamaka, on which he came out of his shop. He saw crowd in front of the shop of Sh. Anil Jain. He went there and saw that Rahul Mittal (deceased) was lying on the ground and blood was oozing out from his chest. On inquiry, he came to know that someone had shot Rahul Mittal and fled away. He knew Rahul Mittal beforehand and he took him to Satyabhama hospital in a battery rickshaw. He further deposed that on way to the hospital, Rahul Mittal informed him that he was shot by the same State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 4 of 62 persons who had stabbed his brother Mohit. The witness immediately called Mohit (brother of deceased) and informed him about the incident and asked him to reach hospital, where he was taking Rahul. On reaching Satyabhama hospital, he took Rahul to the Emergency ward. In the meantime, Mohit also reached there. PW-1 deposed that he had gone outside to bring the prescribed medicines. When he returned from the medical store, Mohit told him that Rahul had told him that the same persons who had previously stabbed him, had shot Rahul. He further deposed that deceased was shifted to Agarsen hospital in ambulance. The witness also reached Agarsen Hospital in Santro Car of Mohit. At around 09.30-09.40 p.m., Rahul Mittal was declared dead by the doctors of Agrasen Hospital. Police officials came there and recorded his statement which is Ex.PW1/A. He further deposed that Mohit had told him the names of the assailants as Sabi and Nika.
10. During cross-examination, PW-1 deposed that he was repairing mobile in his shop when he heard the sound of 'dhamaka'. He knew Rahul as his family was also running a grocery shop. He had not told his name to the doctor in Satyabhama hospital and voluntarily stated that his name was not asked. Mohit reached at the hospital within five minutes of his arrival. Police met them after 10-15 minutes of their arrival at Satyabhama hospital. His statement was recorded at Agarsen hospital at around 9:00 pm and at that time, Rahul Mittal was alive. He had not told about the State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 5 of 62 status of Rahul Mittal being alive or dead in his statement recorded by the police. He voluntarily stated that he had told the facts up to Satyabhama hospital. He was confronted with his statement Ex PW-1/A, where the fact regarding declaring Rahul Mittal dead is mentioned. He did not know at what time Rahul Mittal became unconscious, but voluntarily stated that he was conscious till he was taken to Satyabhama hospital. He denied the suggestion that Rahul was unconscious when he was removed from the spot or that he did not tell anything about the incident to him. He further denied the suggestion that Mohit had not told him anything about the incident.
11. PW-2 Raj Kumar, father of the deceased, deposed that the accused persons had stabbed his son Mohit about 3½ years ago and a criminal case was registered at PS Nihal Vihar. After 2-2½ years of the said incident, the accused persons started visiting his shop and used to threaten his son Rahul as and when they met him. He further deposed that 7-8 days before the incident in question, the accused persons had visited his shop and pressurized/threatened them to compromise the matter by changing statement in the court.
12. PW-2 further deposed that on 30.05.2016, the accused persons had come to his shop about one hour before the incident along with a third person and pressurized to change the statement. They also enquired about the summons or notice for making statement in the said case State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 6 of 62 on 01.06.2016. He told them that no summons was received by them. They left after saying " मोहित को समझा लेना वरना हम देख लेंगे". The witness told them that they will take appropriate steps as per their saying after receiving the summon and consulting their lawyer. However, they were making deep inquiry about Mohit and his whereabouts. After about 1-1½ hour, the accused persons shot his son Rahul. He came to know about the incident after about 10-15 minutes when he was at his shop. He went to the spot where he was told that Rahul has been taken to hospital. He called his son Mohit, who told him that Rahul had been taken to Satyabhama hospital. He reached the said hospital, where he found his son Rahul in Emergency ward. He was in severe pain. PW-2 deposed that his son was referred to Maharaja Agarsen hospital and he was shifted there in an ambulance. He further deposed that when his son Rahul was being shifted in ambulance to Agarsen hospital, he had asked Rahul who had shot him but he did not reply. However, Mohit said that Nikka and Sabi had shot him and on this Rahul nodded his head in approval. At that time, his wife and 1-2 persons were also there with him. On the next day, he was told that Rahul had expired in the night only. He identified Rahul's dead body vide Identification memo Ex.PW2/A. After post- mortem, he received the dead body vide memo Ex.PW2/B.
13. During cross-examination, PW-2 admitted that there was no enmity between the accused persons and his son Mohit State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 7 of 62 prior to the incident which had taken place with Mohit. Witness voluntarily stated, "inka jhagda kisi aur se tha". He stated that they had never informed the police nor made any complaint about the visits and threats of the accused persons after the incident of his son Mohit. He denied the suggestion that accused persons never visited his shop to pressurize or threaten to compromise the matter of his son Mohit. He admitted that on 30.05.2016, he had not made any call to police about the visit of the accused persons about 1-1.5 hours before the incident, even though he had a mobile phone. He denied the suggestion that the accused persons had not visited his shop 1-1.5 hours before the incident or that they had not given any threats or that they did not make any inquiry about his son Mohit. On 30.05.2016, Rahul was present at the shop when the accused persons had given threats prior to the incident. His statement was recorded by the police at his house after 1-2 days of the incident. He had not stated to the police that when Rahul was being shifted to ambulance, he had asked him as to who had shot him, then Rahul did not reply but Mohit said that Nikka & Sabi had shot him, on which Rahul nodded his head in approval; or that at that time, his wife and 1-2 other persons were also with him. He denied the suggestion that he had disclosed to the police only to the extent that "Raste mai mujhe ambulance ke andar hi, mere ladke Mohit ne batya ki, Rahul us se keh raha tha ki Nikka aur Sabi ne us ko goli mari hai" He voluntarily stated that he had asked from Rahul and the reply was given by Mohit. The witness stated that he had not boarded State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 8 of 62 the ambulance in which Rahul was taken to Maharaja Agrasen hospital from Satyabhama hospital.
14. PW-3 Dr. Gopal Sharma, Medical Director, Satyabhama hospital had prepared the MLC of Rahul Mittal on 30.05.2016. He deposed that there was deep wound gunshot injury on the right side of chest of injured. After giving primary treatment, the injured was referred to Maharaja Agarsen hospital. The MLC of the injured is Ex.PW3/A.
15. During cross-examination, PW-3 deposed that at the time when the patient was brought to the hospital by the PCR officials, he was semi-conscious and drowsy and not responding. Till the patient remained in Satyabhama Hospital under his treatment, he was unfit for statement. After giving first aid and supportive lifesaving care, he was referred to Maharaja Agrasen Hospital within 45 minutes in ICU Ambulance under the care of doctor accompanied by two assistants of hospital and one relative. He could not recall the name of the relative who had accompanied the patient. However, as per record the name of the relative was Mohit. He deposed that the patient was brought by PCR officials, immediately thereafter Mohit reached at the hospital. It took about 15 minutes in preparing MLR. He admitted that the name of Mohit was inserted later on in the column of name of friend or relative in the carbon copy of MLR, as Mohit reached later State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 9 of 62 on after handing over the original of MLR to the IO. The witness stated that keeping in view the nature of injury sustained by patient, there was no possibility of fitness of the patient for making statement after the treatment in Satyabhama Hospital till he died in Agrasen Hospital. However, he again said that he cannot say whether there was no possibility of fitness of the patient for making statement after the treatment in Satyabhama Hospital till he died in Agrasen Hospital. The patient was brought in the hospital on 30/05/2016 and was admitted at about 7.50 pm.
16. PW-4 Sh. Anil Aggarwal deposed that he was running a grocery shop at Shop no. A-73, Nilothi Mor, Kunwar Singh Nagar. On 30.05.2016 at about 07:15 PM, he was present at his shop and the deceased Rahul, who used to come to collect payment of Maruti Soap, had just left after collecting payment from him. At 07:30 PM, he heard the bang of gun shot. As he got up, Rahul rushed towards his shop in injured condition having injury on his chest and blood oozing out from his injuries. At the same time, he observed that two boys had fled from the spot on a motorcycle but he could not see their face. By then Rahul Jindal from neighbourhood shop arrived there and with help of his servant, the witness made Rahul sit in battery rickshaw. The injured was taken to the hospital. Rahul's blood had dropped on the floor of his shop, and he wiped it with a floor scrubber (पोंछा) which he had handed over to State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 10 of 62 the IO.
17. During cross-examination, PW-4 admitted that there are shops on the both sides of the road, where his shop is situated. Shop of mobile of Rahul Jindal is on the same side, at a distance of about 5-6 shops on right side from his shop. Rahul (since deceased) had fallen on the ground near the counter of his shop when he was taken to battery rickshaw by his servant and Rahul Jindal. Shop of deceased Rahul was situated at the opposite side of the road at a distance of 20-25 shops. Rahul (since deceased) was not unconscious at that time and had requested him to shift him to a hospital for treatment. It was about 7:30 p.m. when Rahul was shifted to battery rickshaw. Nearest hospital from there is Satyabhama hospital, approximately 500 meters far. He had not called on 100 number though he had a mobile phone at that time, nor did he inform anybody. The assailants fled on the motorcycle from the opposite side of Satyabhama hospital i.e. on the right side from his shop. Police reached his shop after 10-15 minutes of the incident and made inquiries from him. His statement was recorded by the police twice on the same day.
18. PW-5 Ct. Parvinder, photographer Crime Team, West District had visited the spot on 30.05.2016 alongwith the crime team and taken photographs from different angles. Same are Ex.P1 to Ex.P12 and negatives are Ex.P-13 (colly).
State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 11 of 6219. PW-6 ASI Mukesh, Incharge, Mobile Crime Team, West District had reached the spot alongwith Ct.Parvinder, Ct. Rajesh and driver Ct. Vijender at about 8.20 P.M. He inspected the spot and prepared his report Ex.PW6/A. He had asked the IO to collect the earth control, blood-stained earth control, ponchha and desi katta. He identified the seized articles i.e desi katta as Ex.P1 and floor scrubber (पोंछा) as Ex.P2. He also identified the photographs of the Scooty Ex.P-6, Ex.P-7 and Ex.P12.
20. PW-7 Mohit Mittal, brother of the deceased deposed that on 02.09.2013 he alongwith his friend Chirag were going on a bike. On their way, they met a boy Nishant who was Chirag's friend. Nishant asked them to drop him at 500 yards Gurudwara and they dropped him there. Chirag accompanied Nishant to the said Gurudwara. When they were turning towards 15 ft. wide street, the witness saw that accused persons and Kallu and their 1-2 associates were beating Nishant. He and Chirag tried to rescue Nishant. Accused Nikka and Kallu took out knives and stabbed them. He sustained injury on his head, right arm and abdomen. Due to the said injuries, he remained in hospital for 10-12 days. FIR no.314/13 under Section 307/34 IPC, PS Nihal Vihar was registered against the accused persons, and evidence was being recorded in the court. He deposed that accused persons had visited his shop many times and threatened and pressurized him and his brother Rahul to retract from their statements.
State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 12 of 6221. PW-7 further deposed that on 30.05.2016 at about 06:25 PM, his brother Rahul came to their residence and after washing his face at about 06:30 PM, he went out on scooty for collecting payment of goods supplied by them. At about 07:00-07:15 PM, the witness also left for their shop and performed petty works on the way. When he reached near Nathu Ram School at New Najafgarh Road, he saw that his brother was going on scooty on the opposite side of the road heading towards Nangloi from the side of Kunwar Singh Nagar and accused persons were following him on their bike. He took it casually as it was main road and thought they might be using it in routine manner. He further deposed that on his way to the shop, he stayed at Kali Mata Mandir for about 5-10 minutes. When he came out, he received call of Rahul Jindal that his brother had sustained bullet injury and that he was taken to Satyabhama hospital. PW-7 reached Satyabhama hospital within 10-15 minutes and went to the emergency ward. His brother was lying on a stretcher. PW-7 asked him who had fired at him and he took the name of the accused persons Sabi and Nikka. Rahul told him that accused persons had come in front of the shop of Anil Jain and Sabi had fired at him. Thereafter, accused persons fled on the bike which Nika was driving. When Rahul Jindal came after fetching the medicines, PW-7 apprised him that Rahul had told him that he was attacked by the same persons who had attacked him on 02.09.2013. He further deposed that his father and mother also reached there. His State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 13 of 62 father asked Rahul in the Ambulance when he was being shifted to Maharaja Agrasen hospital who had attacked him. However, Rahul was unable to answer due to oxygen mask and PW-7 told his father that Rahul had already told him that Sabi and Nikka had attacked him and Sabi had inflicted bullet injury upon him. When he was so telling, Rahul nodded his head to show that whatever he was saying was correct. He further deposed that at about 09:30 PM, during treatment at Maharaja Agrasen hospital, his brother succumbed to the injuries and died.
22. He further deposed that due to this incident, Nishant and Chirag, who were witnesses in FIR no.314/13 PS Nihal Vihar got scared and turned hostile during their testimony in the case and accused persons were acquitted in that case.
23. During cross examination, PW-7 denied the suggestion that the aforesaid accused persons were acquitted in case FIR No.314/13, P.S. Nihal Vihar as the case was false and fabricated. He voluntarily stated that they were acquitted because the material witnesses i.e. Nishant and Chirag had turned hostile. The accused persons were not known to him prior to the incident dated 02.09.2013. Kalu had shown their house to the accused persons. He came to know the names of accused persons when they started appearing before the Court in the case FIR No.314/13. He denied the suggestion that he had falsely implicated the accused persons in the present case as he got frustrated State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 14 of 62 with their acquittal in the said case. He admitted that Rahul Jindal had not told him the name of the assailants when he informed him about his brother being hit by bullet. His statement was recorded by the IO only once on 01.06.2016. He denied the suggestion that the fact from point A to A in his examination-in-chief is improvement as the same is not mentioned in his statement U/Sec.161 Cr.P.C. He voluntarily stated that probably he had not told the IO during his statement U/Sec.161 Cr.P.C. that on 30.05.2016 at about 6.25 p.m. his brother Rahul came to their residence and washed his face. The distance between their residence and their shop is 5-7 minutes by walk. He denied the suggestion that the fact from point B to B in his examination-in-chief is improvement as the same is not mentioned in his statement U/Sec. 161 Cr.P.C. When he reached Satyabhama Hospital, his brother Rahul was lying on a stretcher in Emergency Ward and he was under
tremendous pain and was asking for pain killer injection. He had not stated to the police that his brother was in ICU when he reached at hospital. (Confronted with portion from point A to A' in statement Mark PW-7/1, where it is so recorded.) He denied the suggestion that Rahul Jindal had not taken his brother to Satyabhama Hospital that is why his name is not mentioned in the MLC. He voluntarily stated that when he reached Satyabhama Hospital, Rahul Jindal had gone to fetch medicines and by that time the doctor had come to know that he was the brother of the injured and probably due to that reason Rahul Jindal's name is not mentioned in MLC. He had not State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 15 of 62 asked the doctor in Satyabhama Hospital about the health status of his brother. Again said after meeting his brother he had met the doctor.
24. He admitted that his as well as Rahul's statement was recorded in case FIR No.314/13 before the Court of Sh. Naresh Kumar Malhotra, Ld. ASJ-05 (West Delhi) on 16.05.2015 and 14.12.2016 respectively. Certified copy of his statement dated 14.12.2016 is Mark DX-1. He identified the signatures of his brother Rahul at point 'A' on Rahul's statement Ex.PW-7/DX-1. He never had any talk with accused persons prior to 30.05.2016. He admitted that neither his father nor his brother Rahul nor him ever complained to the police or any other authority against the accused regarding threats given by them. He denied that the accused persons had never extended any threat to him or his brother or his family members. He denied that he and his family members have falsely implicated the accused persons in this case. He admitted that his brother Rahul was not the eye-witness in case FIR No.314/13. He denied that his brother Rahul had not told him that the bullet injury was inflicted by the accused Sabi.
25. He stated that on 30.05.2016, he had two mobile phones with him, however, he could not remember the numbers of the same. The said mobile phones were containing two SIM Cards each. Again said, One mobile was containing two SIM Cards and the other was containing only one SIM Card. He again said that on 30.05.2016, when he left his State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 16 of 62 home for the shop, he was carrying only one mobile phone, having two SIM Cards and both were in working condition. Rahul Jindal had informed him about the incident on his mobile No.8588918616. (Vol. At that time my said mobile was lying at my residence, but since he had diverted all the calls of said number to the mobile he was carrying, he was able to speak to Rahul Jindal on the mobile which he was carrying.) He could not recall the mobile/SIM number on which he had diverted the calls of mobile No.8588918616 as the said numbers were temporary. PW-7 admitted that he had not disclosed to the police about the call diversion. He voluntarily stated that he was not asked about the same by the police, nor he informed them. Though he had told the mobile number to the police on which Rahul Jindal had called up, but he did not tell the mobile number on which he received the said call. He had shown the said number from the phone book/contacts saved in his mobile phone.
26. He further stated that there are two ways for going to his shop from his residence. From one way it takes around 7-8 minutes to reach the shop whereas from the second way it takes around 10-15 minutes. On the day of incident, he had adopted the second way i.e. of 10-15 minutes for going to the shop. He denied the suggestion that Rahul Mittal was taken to Satyabhama Hospital by PCR van. He voluntarily stated that as per the information given by Rahul Jindal, his brother Rahul Mittal was taken to the hospital by Rahul State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 17 of 62 Jindal. After the incident, Anil had met him for the first time in the Court during the proceedings of this case. He denied that he met his brother Rahul Mittal in Satyabhama Hospital only, after he left their residence at about 6.30 p.m. He had not informed the police when he saw the accused persons following his brother on 30.05.2016, as he took it casually because it was a main road and people were using the same frequently.
27. PW-8 Dr. Anurag Thapar, SGM hospital had conducted the postmortem of the deceased Rahul on 31.05.2016 at about 12:30 PM after receiving inquest papers from SI Ashish Tyagi. His detailed postmortem report is Ex.PW8/A (running in 4 pages). He had given the opinion that cause of death was "shock as a result of chest injury due to rifled firearm weapon". After postmortem, he handed over 12 inquest papers, one bullet sealed with the seal of SGMH mortuary, blood sample on gauze piece sealed with the seal of SGMH mortuary alongwith the sample seal to the IO. He further deposed that he had counter signed the death summary which is Ex.PW8/B, and the inquest paper to perform the autopsy on the body of the deceased which is Ex.PW8/C. He had also counter signed on Form 25-35B which is Ex.PW8/D. He had countersigned on the identification statement of Braham Prakash and Raj Kumar and had also signed on the FIR attached alongwith inquest papers which is Mark Y; and also on the photocopies of rukka and crime visit report which are Mark Z (colly).State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 18 of 62
28. PW-9 SI Ashish Tyagi deposed that on 30.05.2016 he was at Mansa Ram hospital, Nangloi when he received DD No. 44 A through Ct. Naveen regarding shooting of a person near Nilothi Mor. He alongwith Ct. Naveen and Ct Rajbir reached the spot. They found blood drops on the footpath, a blood-stained mop (pochha) in front of shop and country made pistol in front of footpath. A white coloured scooty having registration no. DL-4SJ-7684 was parked near the shop. On enquiry, shopkeeper Anil Jain informed him that injured Rahul has been taken to Satyabhama Hospital. No eye witness was found at the spot. In the meantime, SHO Inspector Sharat Chandra alongwith his staff reached there. He sent message to control room for calling crime team. Thereafter, he and Ct. Rajbir went to Satya Bhama Hospital, where injured Rahul was treated vide MLC no.
1245/16 with alleged history of firing. The patient was unfit for statement. The injured Rahul was referred to Maharaja Agrasen Hospital. He collected the MLC of injured and proceeded to Maharaja Agrasen Hospital. The injured was declared dead during treatment. He recorded the statement of eye witness Rahul Jindal Ex PW-1/A. He prepared rukka Ex.PW-9/A and handed it over to Ct. Rajbir for registration of FIR. Thereafter he returned to the spot, where Incharge, Crime team handed him over the crime scene report. Ct. Rajbir came to the spot after registration of FIR and handed over the copy of FIR and original rukka to IO/SHO Inspector Sharat Chandra. IO/SHO prepared site plan at his instance and conducted State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 19 of 62 further investigation. IO lifted blood-stained piece of floor of footpath after breaking it with the help of hammer and chisel and placed the same in a plastic container and prepared a cloth pullanda and gave it Serial no.1. He also lifted floor without blood in similar manner and placed it in a plastic container and prepared cloth pullanda and gave it Serial no. 2. Blood-stained mop was also converted in a cloth pullanda and it was given serial no. 3. All the three pullandas were sealed with the seal of SCN. Seal after use was handed over to him. Aforesaid exhibits were seized vide memo Ex.PW9/B. Thereafter, IO lifted the country- made pistol lying at the spot and unloaded the same. He prepared the sketch of country-made pistol and cartridge Ex. PW-9/C. During examination, it was found that there was mark of firing the base of cartridge which was found inside the barrel of the said pistol. IO prepared pullanda of the said pistol and cartridge with the help of cloth and sealed the same with the seal of SCN. Seal after use handed over to him. The said pullanda was seized vide memo Ex PW9/D. The aforesaid scooty alongwith key was taken into possession by the I.O. vide memo Ex PW9/E.
29. PW-9 further deposed that in the morning of 31.05.2016, he alongwith Ct. Naveen visited Maharaja Agrasen Hospital, where the concerned doctor handed him over the clothes of deceased in a sealed pullanda alongwith sample seal, which he seized vide memo Ex. PW9/F. Dead body of Rahul was shifted to SGMH mortuary. The dead body State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 20 of 62 was identified by Brahm Prakash and Raj Kumar vide their statements Ex.PW-9/G and Ex PW-2/A respectively. The concerned doctor handed over one blood gauze of deceased in a sealed condition, one sealed plastic container containing bullet led recovered from the body of deceased during postmortem and one sample seal, which he had seized vide Ex.PW9/H. After postmortem dead body was handed over to Sh. Raj Kumar. The witness identified the case property i.e. concrete pieces bearing brown stains as Ex PA (Colly); one blood-stained mop Ex P-2, blood- stained clothes belonging to the deceased Ex P-3 (colly); blood in gauze of the deceased Ex P4; desi katta with live cartridge Ex P-1 (colly); a bullet led recovered from the dead body of deceased in the hospital Ex P-5. He also identified the scooty bearing registration no. DL4SJ-7684 in the photographs Ex P-6, P-7 and P-12.
30. During cross-examination, PW-9 deposed that he reached the place of incident at about 7.45 pm. He remained at the place of occurrence for about 5-7 minutes at the time of his first visit. He stated that he had seen the country made katta but did not open it, hence he cannot say whether there was any live cartridge in the same. However, no live cartridge was found separately at the spot. At that time, he had not seized and sealed the said katta because firstly the injured was to be seen in the hospital and the spot was preserved with the help of staff, who reached there. They reached Satyabhama hospital at about 8 pm. When they State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 21 of 62 reached the aforesaid hospital, injured was being shifted to Maharaja Agrasen Hospital. He met there with the brother of injured, who told him that his brother was shot and has been referred to Maharaja Agarsen Hospital. Thereafter he met with concerned doctor of Satyabhama Hospital and collected the MLC. Doctor told him that injured was serious and was unfit for statement. After staying at Satyabhama hospital for about 30 minutes, he proceeded to Maharaja Agrasen Hospital and reached there at about 9 pm. He found the injured in ICU and thereafter he was declared dead by the doctors. He had prepared the rukka at Maharaja Agrasen Hospital at about 10 pm and had sent the same at about 10.30 pm.
31. he further stated that at the time of their second visit st the spot, IO inspected the countrymade pistol in his presence and found one missed fired cartridge in the chamber of the katta. The katta with cartridge Ex.P1 was produced by MHC(M) and on examining the same, PW-9 stated that the bullet is not live cartridge but a misfired cartridge.
32. PW-12 HC Naveen corroborated the testimony of PW-9 SI Ashish. He deposed on similar lines that he had handed over DD No. 44A with to SI Ashish Tyagi at Mansa Ram hospital on 30.05.2016. On 31.05.2016, he accompanied SI Ashish Tyagi to SGM Hospital mortuary. After postmortem, he had collected the exhibits of deceased Rahul from the concerned autopsy surgeon alongwith State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 22 of 62 sample seal and handed over the same to SI Ashish Tyagi.
33. PW-13 HC Rajbir corroborated the testimony of PW-9 and PW-12 and deposed on the same lines about the proceedings conducted by PW-9 at the spot and at the two hospitals. He had taken the rukka to the PS and got FIR No. 415/16 registered through DO. He returned back to the spot and handed over copy of FIR and original rukka to Inspector Sharat Chandra.
34. PW-10 Dr. Alok Aggarwal was posted as Senior Consultant, Surgery Maharaja Agrasen hospital as on 30.05.2016. On that day, patient Rahul was received from Casualty at about 8:32 PM, in critical gasping state with history of gun-shot injury in his right upper thorax with blood pressure and pulse rate not recordable with very feeble carotid pulsation. All efforts made to revive the said patient were in vain. The patient Rahul was declared dead at 9.30 PM on 30.05.2016 with the evidence of flat line ECG. He prepared his death summary Ex. PW-10/A.
35. PW-11 Ct. Amit had joined the investigation with IO Inspector Sharat Chandra on 21.07.2016. He identified his signatures on disclosure statements of both the accused Ex.PW11/A and Ex.PW11/B, Pointing out memo of the place of occurrence Ex.PW11/C and Ex.PW11/D, and of place where they had parked their bike Pulsar bearing registration no. DL-10SE-2456, Ex.PW11/E and State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 23 of 62 Ex.PW11/F. During cross-examination, witness admitted that no audio or video recording was conducted regarding the said alleged disclosures.
36. PW-14 Retired SI Om Prakash had prepared the scaled site plan Ex. PW-14/A at the instance of Rahul Jindal on 01.08.2016.
37. PW-15 HC Satish Kumar MHC(M) PS Nihal Vihar had handed over one sealed parcel containing Desi katta and one missed live cartridge, one sealed plastic container containing fired bullet, five live cartridges for test firing and one sample seal of SGMH MORTUARY to Ct. Vinod vide RC No. 184/21/16 on 28.09.2016, copy of the which entry is Ex. PW15/A(OSR). Ct. Vinod deposited the said exhibits at FSL Rohini and after deposit handed over the acknowledgment to him.
38. PW-16 HC Vinod deposed that on 23.08.2016 he had collected the exhibits of the present case i.e. four sealed pullandas and two sample seals from MHC(M) vide RC No. 166/21/16 and deposited the same at FSL, Rohini. After deposit, he handed over the acknowledgment to MHC(M) HC Harish. On 28.09.2016 on the instructions of IO, he collected one sealed parcel stated to be containing Desi katta and one missed live cartridge, one sealed plastic container containing fired bullet, five live cartridges for test firing and one sample seal of SGMH MORTUARY from MHC(M) HC Satish Kumar vide RC No. 184/21/16. He deposited the said exhibits at FSL, Rohini. After State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 24 of 62 deposit, he handed over the acknowledgment to MHC(M) HC Satish Kumar.
39. PW-17 ASI Dinesh and PW-25 Insp Pawan deposed that on 19.07.2016 they alongwith Ct. Rajesh and Ct. Surender had gone to PS Kotwali, District Alwar, Rajasthan, where they met ASI Hawa Singh and HC Anil of PS Nihal Vihar who had left for Alwar prior to them. ASI Hawa Singh handed over the permission obtained from Ld. MM of Alwar for interrogating both the accused. They proceeded to Central Jail, Alwar where Inspector Pawan Kumar interrogated and arrested both the accused vide arrest memo Ex.PW17/A and Ex.PW17/B. Thereafter, both the accused persons were brought to PS Nihal Vihar, Delhi. On 20.07.2016, IO recorded the disclosure statement of accused Ravinder @ Sabi Ex.PW-17/C.
40. PW-18 HC Ramesh Chand deposed that on 14.07.2016, he was on duty as Duty officer from 8:00 AM to 4:00 PM at PS Nihal Vihar. The wireless operator gave information about one bike lying abandoned at Shiv Ram Park, Lucky Garden in front of gali no.4. Accordingly, he lodged DD No. 12A Ex.PW18/A (OSR) and instructed Ct. Rampal to handover copy of the same to HC Dhanesh for necessary action. On the same day, HC Dhanesh returned to PS after seizing motorcycle bearing number plate DL-10SE-2426 u/s 66 DP Act. He had lodged DD No. 66B in this regard which is Ex.PW-18/B (OSR).
State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 25 of 6241. PW-19 Assistant Section Officer, RTO Raja Garden produced the vehicle particulars of the motorcycle bearing registration no.DL-10SE-2456 and proved that the said motorcycle is registered in the name of accused Ravinder @ Sabi. The computerized attested copy of the said record is Ex.PW19/A (OSR).
42. PW-20 Retired SI Badlu Ram deposed that on 30.05.2016 he was on duty as Duty Officer from 4.00 pm till 12.00 night. At about 7.39 pm wireless operator came to DO room and gave information that one person has been caused bullet injury at near Nilothi Mor and the assailants were on bike and the injured was taken to Satyabhama hospital by the caller. The caller had made a call from mobile no. 9716626917 to the command room. Accordingly, he lodged DD No. 44A and handed over the copy of said DD to Ct. Naveen for handing over the same to ASI Ashish. He had also informed the contents of DD No. 44A to the concerned SHO by phone. The true copy of said DD is Ex.PW20/A. On the same day at about 11.00 pm, he had received rukka brought by Ct. Rajbir sent by SI Ashish. On basis of said rukka, he got FIR no. 415/16 registered through computer operator Ct. Kapil. The computerized copy of FIR No.415/16 is Ex.PW20/B and his endorsement on rukka Ex.PW20/C. His certificate u/s 65-B Indian Evidence Act is Ex.PW20/D. After the registration of FIR, he handed over copy of FIR and original rukka to Ct. Rajbir for handing over the same to SHO Inspector Sharad Chandra. He had also handed over State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 26 of 62 the copy of FIR to HC Dinesh for supplying the same to Ld. Area MM and senior police officials. In cross- examination, he denied the suggestion that ante-dated or ante-time FIR was registered.
43. PW-21 HC Dhanesh Kumar had deposed that on 14.07.2016 he was on emergency duty from 8.00 am to 8.00 pm alongwith Ct. Rohit. At about 11.00 am, DD No. 12A was marked to him as per which one motorcycle was found lying in abandoned condition at in front of Shiv Ram Park, Lucky Garden in gali no. 4. Accordingly, he alongwith Ct. Rohit reached there and found motorcycle bearing registration no. DL10SE2456 bearing chasis no. 84265 and engine no. 82729 Pulsar Black colour parked there. He had seized the said motorcycle and thereafter, deposited the said motorcycle in the malkhana of PS Nihal Vihar vide DD No. 663. The true copy of DD No. 66B is already Ex. PW18/B and true copy of DD No. 12A is already Ex.PW18/A.
44. PW-22 ASI Ram Bhajan deposed that on 16.07.2016, he was posted at PS Raini District Alwar, Rajasthan as HC. On that day, he alongwith Ct. Arshad and Ct. Om Prakash were on patrolling duty and received a secret information that one person in possession of illegal arm could be found at Jamdoli road, Bulehri Tiraya. They reached at the said place, where they saw one person who upon seeing them tried to escape and climbed on pahari. They chased and managed to apprehend him. Name of the said person was State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 27 of 62 revealed as Ranveer @ Nikka. One country made katta loaded with one live cartridge was recovered in his formal search. The accused could not show any license for possessing the said arm and ammunition. He prepared the sketch of said arm and ammunition and after sealing, seized the said arm and ammunition. He got registered case FIR No.170/2016 u/s 25 Arms Act at PS Raini. On interrogation, accused Ranveer @ Nikka confessed that he alongwith his brother Ravinder @ Sabi had committed the murder of one Rahul in Nihal Vihar area, Delhi by causing gunshot injury to him.
45. PW-23 Dr. Soni Khampa, Jr. Forensic/Chemical Examiner (Biology), FSL had examined four parcels received vide letter no. 3084/SHO/Nihal Vihar dated 23.08.2016. Upon checking, the seals over the said parcels were found intact as per forwarding authority's letter. Out of the said four parcels, two were sealed cloth parcels, one was sealed adhesive taped and one was sealed small polythene. She opened the said parcels and material contained in them were marked as Exhibit. 1 in parcel no.1; Exhibit 2 in parcel no. 2; Exhibit 3a to 3e in parcel no.3 and Exhibit 4 in parcel no.4. Upon biological analysis, blood was detected on Exhibit 1, 2, 3a, 3c, 3d, 3e and 4, however, blood could not be detected on Exhibit 3b. The aforesaid exhibits were also subjected to DNA examination. Similar male DNA profile was generated from the source of exhibits 2, 3a, 3c, 3d, 3e and 4, however, DNA profile could not be generated from source of Exhibit 1. DNA State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 28 of 62 profile (STR) analysis were performed on Exhibits 2, 3a, 3с, 3d, 3e and 4 were sufficient to conclude that the male DNA profile generated from the source of Exhibit 4 was found to be matching with the male DNA profile generated from the source of Exhibits 2, 3a, 3c, 3d and 3e. Thereafter, he had sealed the remnants of the Exhibits with the seal of SKH FSL DELHI. The FSL report dated 23.06.2017 prepared by him is Ex.PW23/A.
46. PW-24 Retired SI Hawa Singh deposed that he alongwith HC Anil had gone to PS Raini Alwar, Rajasthan on 17.07.2016. He collected the interrogation report and other relevant documents in respect of accused Ravinder @ Sabi and Ranveer @ Nikka, arrested in FIR No. 169/2016 and FIR No. 170/2016 PS Raini from the SHO SI Gopal Ram. Both the accused had disclosed their involvement in the present case in their respective disclosure statements. On 18.07.2016, he obtained production warrant of both the accused from learned CJM, Rajgarh, Alwar and informed IO Inspector Pawan Kumar. On 19.07.2016 Inspector Pawan Kumar, Ct. Rakesh and HC Dinesh came to PS Kotwali, Distt. Alwar anf arrested the accused.
47. PW-25 Inspector Pawan Kumar deposed on the same lines as PW-17 ASI Dinesh and PW-24 Retired SI Hawa Singh. He further deposed that on 20.07.2016 he had interrogated both the accused persons at PS Nihal Vihar and recorded the disclosure statement of accused Ravinder @ Sabi Ex.PW17/C. State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 29 of 62
48. PW-26 Inspector Sharat Chandra deposed that on 30.05.2016, he was posted as SHO at PS Nihal Vihar. SI Ashish received DD no.44 from PCR regarding receiving of gun shot injury. On receipt of said call, He reached place of occurrence i.e. shop no. A-73, Nangloi Najafgarh Road. When he reached there, he found some blood drops on the pavement. One pocha stained with blood was lying outside the aforesaid shop. One country made pistol was lying on the road just adjoining the pavement. One white colour scooty bearing no.7684 along with key was standing there. Shopkeeper namely Anil Jain met him and informed that injured has been taken by public persons to Satyabhama Hospital. He sent SI Ashish Tyagi to the hospital, and after deputing the police staff to protect the spot, he also left for the hospital. On reaching the hospital he found that injured has been referred to Maharaja Agarsen Hospital, Punjabi Bagh. He deputed SI Ashish along with the injured and returned to the spot. At about 9.00 P.M. the crime team reached the spot. The crime team official clicked photographs and also inspected the spot. He received a phone call from SI Ashish that injured had expired in the hospital. He directed SI Ashish to get preserved the dead body and to record statement of any witness available in the hospital. SI Ashish recorded statement of witness Rahul and sent a Rukka to the police. At about 11.00 P.M. SI Ashish reached the spot. He prepared site plan Ex. PW26/A at the instance of SI Ashish. He received the crime scene report from ASI State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 30 of 62 Mukesh through SI Ashish. He lifted the exhibits from the spot vide seizure memo Ex.PW9/B. He seized the scooty of the deceased vide seizure memo Ex.PW9/A. He checked the country made pistol lying at the spot and it was found containing one live cartridge. He prepared the sketch of the cartridge and country made pistol and prepared a sealed pullanda of the same and appended seal of SCN.
49. PW-26/IO further deposed that on 31.05.2016 he sent SI Ashish for post-mortem of the deceased. On 31.05.2016 he recorded statement of Raj Kumar, father of deceased. On 01.06.2016, he again returned to the house of deceased and recorded statement of Mohit, brother of deceased. On 17.06.2016, he collected the post-mortem report through SI Ashish from the hospital.
50. The witness further deposed that on 17.07.2016, information was received from PS Raini, District Alwar, Rajasthan regarding apprehending two boys namely Nikka and Sabi in Arms Act case. The accused persons disclosed about their involvement in the present case. On 19.07.2016, inspector Pawan arrested both the aforesaid accused persons. Accused were brought to Delhi and produced in the court. Both the accused were taken on two days police remand.
51. On 21.07.2016, he interrogated the accused persons and recorded their disclosure statements. He prepared pointing State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 31 of 62 out memos of place of occurrence Ex.PW11/C and Ex.PW11/D and Ex.PW11/E and Ex.PW11/F of place where they left the motor cycle bearing no. 2456 black colour Pulsar in front of Lucky Garden. The said motorcycle was already deposited in the Malkhana as unclaimed.
52. On 01.08.2016, he got prepared scaled site plan of the place of occurrence from PW-14 at the instance of Rahul Jindal. He got the exhibits sent to FSL and collected the photographs from the crime team office. After completing the investigation, he prepared the charge sheet and submitted the same. Witness identified case property seized by him in the present case.
53. In cross-examination, PW-26 admitted that no written complaint was made by the family of deceased in the police station qua the threatening of the witnesses. There were oral complaints by the family of victim but there was no DD entry in this regard.
54. The raid on the house of accused persons was conducted by him on the intervening night of date of incident itself and later on. He denied the suggestion that Anil Jain has not given the statement that the injured was taken to the hospital by PW-1 Rahul Jindal. No chance prints were available on the pistol recovered from the spot due to rough surface of the same by the crime team. He denied the suggestion that when he reached Satyabhama hospital, State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 32 of 62 the injured and Rahul were not there. He voluntarily stated that he reached hospital he saw that injured was being shifted in the ambulance by hospital staff in presence of Rahul and family members of injured (now deceased) for taking him some other hospital. He or SI Ashish had not recorded statement of any witness at Satyabhama hospital.
55. He admitted that when the rough site plan was prepared by him neither Rahul Jindal nor Mohit Mittal was there at the spot. He admitted that he had not taken any action against Anil Jain for his act of cleaning the blood from his own shop with the help of mop (pochha). He denied the suggestion that the disclosure statement of the accused persons were recorded on blank signed papers. He further denied that signatures of the accused persons were forcibly taken on blank and printed format papers.
56. PW-27 Dr. V. R. Anand, Assistant Director (Ballistics) deposed that on 28.09.2016, two sealed parcels were received in the office of FSL, which were marked to him for examination. The seals of the parcels were intact as per the specimen seal. The parcel 1 was sealed with the seal of SCN and parcel no.2 was sealed with the seal of SGMH MORTUARY, MANGOLPURI, DELHI-83. On opening parcel no.1, one countrymade pistol .315 inch bore and one 8 mm/.315-inch cartridge were taken out and marked as F1 and A1 respectively. On opening the parcel no.2, one bullet was taken out and marked as EB1. He examined the said exhibits and found that the country-made pistol was in State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 33 of 62 working order and test fire was conducted successfully. The bullet marked Ex.EB1 corresponded to the bullet of 8mm/.315 inch cartridge. The 8 mm/.315 inch cartridge marked Ex.A1 was a misfired cartridge. Four 8mm/.315 inch cartridges received for test firing were test fired through the countrymade pistol. The test fire cartridges were marked as TC1 to TC4 and three recovered bullets were marked as TB1 to TB3. The witness deposed that the individual characteristic of striation marks present on evidence bullet marked Ex. EB1 and on test fired bullets TB1 to TB3 were compared under comparison microscope and were found insufficient. Hence, no opinion could be given whether the bullet marked Ex.EB1 had been discharged through the country-made pistol marked Ex.F1 or not. He further deposed that the individual characteristic of firing pin dent mark present on the percussion cap of misfired cartrige mark Ex.A1 and on TC1 to TC4 were compared under comparison microscope and were found identical. Hence, the firing pin dent mark present on percussion cap of Ex.A1 has been caused through the countrymade pistol .315 inch bore marked Ex.F1. The Ex. F1/A1 and EB1 were fire arm/ammunition as defined in the Arms Act 1959. All the exhibits were sealed with the seal of VRA FSL DELHI after examination. His report is Ex.PW27/A bearing my signature at point A on each page. He admitted that no opinion can be given on the evidence bullet marked Ex.EB1 whether it has been fired through the countrymade pistol marked Ex.F1 or not.
State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 34 of 6257. PW-28 retired ACP Jitendra Kumar was Inspector CPCR, PHQ, Delhi. He deposed that on 30.05.2016 his duty hours were from 02:00P.M. to 08:00 P.M. At about 19:35:08 hours a call was received in their office pertaining to "caller bol raha hai ki ek pulsar bike wala goli mar kar bhag gaya hai with inj." The place of incident was near Nilothi Mor. The said call was dispatched to communication operator HC Chander Shekhar of CPCR. The call was transferred to PWR/68(PCR Van) for necessary action at 19:37:31 hours. The PCR vehicle reached the spot at 20:22:33 hours. The PCR officials reported about the incident at 20:22:33 hours. The PCR form is Ex.PW28/A.
58. After conclusion of Prosecution Evidence, statement of both the accused were recorded under Section 313 Cr.P.C. The accused persons denied the entire prosecution evidence and stated that they have been falsely implicated in the present case by the brother of the deceased Mohit as he was upset with their acquittal in FIR no.314/13 PS Nihal Vihar. The accused persons did not lead any evidence despite opportunity and case was listed for final arguments.
59. In final arguments, Ld. Counsel for accused has submitted that the accused persons have been falsely implicated in the present case. The main points of defence raised by the Ld. Counsel are:-
State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 35 of 621. PW-1 Rahul Jindal is a planted witness and he was not even present at the spot. He has been planted later on by the IO in connivance with Mohit, brother of the deceased with a view to falsely implicate the accused persons as there was previous enmity between them. This is proved that as the name of Rahul Jindal is not mentioned on the MLR prepared at Satyabhama Hospital.
Instead, it has been mentioned that the deceased/injured Rahul was brought to the hospital by PCR. Hence, it is not proved that PW-1 Rahul Jindal brought the deceased to Satyabhama hospital. None of the police officials including the IO had met Rahul Jindal at Satyabhama hospital.
2. The manner of recovery of the motorcycle of the accused Ravinder is highly doubtful as it was found in abandoned condition. Further, no independent/public person was made a witness to the said recovery.
3. Statement of PW-7 Mohit was recorded two days later i.e. on 01.06.2016 which creates a doubt regarding the truthfulness of his statement. He is highly unreliable. On the date of incident, as admitted in his cross- examination, he had taken the longer route to his shop from his house. His version of being present at the Kali Mata Mandir from where he saw the accused persons following his brother is a concocted one and an afterthought. He also made up a story about his mobile phone number being forwarded to another number.
State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 36 of 624. PW- Anil Jain is also a doubtful witness as his name is somewhere mentioned as Anil Jain and somewhere as Anil Aggarwal.
5. PW-2 and PW-7 Mohit have deposed that the accused persons used to threaten them but they never made any complaint to the police regarding the same.
60. Per contra, Learned Chief Prosecutor for the state has submitted that the prosecution has proved its case beyond reasonable doubts and the accused persons are liable to be convicted. He submits that PW-1 had taken injured to the hospital and on his way the deceased told him that the accused persons had shot him. The deceased told his brother Mohit (PW-7) the same thing. Hence, these statements are to be treated as oral dying declaration of the deceased, and can be relied upon to convict the accused persons. Further, admittedly a criminal case was registered against the accused persons, wherein Mohit and deceased Raul were prosecution witnesses. Hence, the accused persons had the motive to kill the deceased as they were pressurizing the deceased and Mohit to change their statement. He has submitted that delay in recording statement of PW Mohit is not material as it was recorded within two days from the date of incident. Further PW-1 is a reliable and trustworthy witness as he was present at the spot as his mobile shop was nearby. There is no reason for him to falsely implicate the accused persons.
Court findings State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 37 of 62
61. I have heard the final arguments addressed on behalf of the accused and the State and perused the entire record carefully.
62. It is a settled principle of criminal jurisprudence that in a criminal trial, a duty is cast upon the prosecution that it has to prove the guilt of the accused beyond reasonable doubt. Even an iota of doubt in the prosecution story entitles the accused to the benefit of doubt.
63. The accused persons have been charged under Section 302/34/195-A IPC. Section 302 IPC prescribes the punishment for offence of murder. The offence of 'murder' is defined under Section 300 IPC. As per the said Section, culpable homicide is murder if-
i) the act is done with the intention of causing death, or
ii) the act is done with the intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom the harm is caused, or
iii) the act is done with the intention of causing bodily injury to any person and such bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or
iv) if the person committed the act knows that it is so imminently dangerous that it must in all probability, cause death or such bodily injury and is likely to cause death.
State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 38 of 6264. Section 195-A IPC prescribes punishment for threatening any person to give false evidence. The same is reproduced verbatim as under:-
"Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
65. As per Section 34 IPC, when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
66. It is the case of the prosecution that the accused Ravinder @ Sabi and Ranveer @ Nikka, in furtherance of their common intention to kill the deceased Rahul Mittal, had fired at him on his chest from a country-made pistol. As a result of the said injury, Rahul Mittal died within two hours during treatment at hospital.
67. There is no eye-witness in the present case and the prosecution has relied heavily on the oral dying declarations made by the deceased Rahul to PW-1, PW-2 and PW-7.
68. Learned Chief prosecutor has submitted that the deceased had given oral dying declaration to PW-1 as well as PW-2 and PW-7, wherein he had named the accused persons as the persons who had shot him. The question before this State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 39 of 62 court is whether the oral dying declarations made by the deceased is a reliable piece of evidence, to bring home the guilt of the accused persons or not.
69. The doctrine of dying declaration is enshrined in the legal maxim 'Nemo moriturus praesumitur mentire', which means "a man will not meet his Maker with a lie in his mouth". It is an exception to Section 32 Indian Evidence Act, 1872. Same is reproduced verbatim as under:-
"(1)When it relates to cause of death. - When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
70. A dying declaration can be in any form- it can be oral or written or in form of signs & gestures. It can form the sole basis for conviction, however, the court must ascertain that such a dying declaration is wholly reliable, voluntary and truthful and that the maker of the said statement was in a fit mental condition to make it. The court must also be satisfied that such a statement was not as a result of tutoring, prompting or a product of imagination. In the case titled as "Uttam v. State of Maharashtra" 2022 SCC OnLine SC 749, Hon'ble Apex court discussed and assessed the law of dying declaration. The relevant portion of the said judgment is reproduced as below, State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 40 of 62 "11. Dying declaration is the last statement that is made by a person as to the cause of his imminent death or the circumstances that had resulted in that situation, at a stage when the declarant is conscious of the fact that there are virtually nil chances of his survival. On an assumption that at such a critical stage, a person would be expected to speak the truth, courts have attached great value to the veracity of such a statement. Section 32 of the Evidence Act, 1872 (for short "the Evidence Act") states that when a statement is made by a person as to the cause of death, or as to any of the circumstances which resulted in his death, in cases in which the cause of that person's death comes into question, such a statement, oral or in writing made by the deceased victim to the witness, is a relevant fact and is admissible in evidence. It is noteworthy that the said provision is an exception to the general rule contained in Section 60 of the Evidence Act that "hearsay evidence is inadmissible" and only when such an evidence is direct and is validated through cross-examination, is it considered to be trustworthy."
71. It would be also be apposite to refer to the judgment in the case titled as 'Parbin Ali and Anr. Vs. State of Assam' (2013) 2SCC81, wherein Hon'ble Supreme Court of India had discussed at length the various aspects of dying declaration and also referred to some important case laws on the subject. It was observed, "13. Before we proceed to scrutinise the legal acceptability of the oral dying declaration, we think it seemly to refer to certain decisions in regard to the admissibility and evidentiary value of a dying declaration. In Khushal Rao v. State of Bombay [AIR 1958 SC 22 : 1958 Cri LJ 106] , Kusa v. State of Orissa [(1980) 2 SCC 207 : 1980 SCC (Cri) 389 :
AIR 1980 SC 559] and in Meesala Ramakrishan v. State of A.P. [(1994) 4 SCC 182 : 1994 SCC (Cri) 838] (SCC p. 183, para 4) it has been held that the law is well settled that the conviction can be founded solely on the basis of dying declaration if the same inspires full confidence.State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 41 of 62
14. In Ranjit Singh v. State of Punjab [(2006) 13 SCC 130 : (2007) 2 SCC (Cri) 604] , it has been held that: (SCC p. 134, para 13) "13. ... conviction can be recorded on the basis of a dying declaration alone, if the same is wholly reliable, but in the event there exists any suspicion as regards the correctness or otherwise of the said dying declaration, the courts in arriving at the judgment of conviction shall look for some corroborating evidence."
In this context, we may also notice the judgment in Nanhau Ram v. State of M.P. [1988 Supp SCC 152 :
1988 SCC (Cri) 342] wherein it has been stated that normally, the court, in order to satisfy itself whether the deceased was in a fit mental condition to make the dying declaration, looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.
15. While dealing with the evidence of the declarant's mind, the Constitution Bench in Laxman v. State of Maharashtra [(2002) 6 SCC 710 : 2002 SCC (Cri) 1491] , has laid down thus: (SCC pp. 713-
14, para 3) "3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross- examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 42 of 62 or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy itself whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite."
16. In this context, it will be useful to refer to the decision in Puran Chand v. State of Haryana [(2010) 6 SCC 566 : (2010) 3 SCC (Cri) 197] wherein it has been stated that a mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous and it is the duty of the court to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration. The Court further opined that: (Puran Chand case [(2010) 6 SCC 566 : (2010) 3 SCC (Cri) 197] , SCC p. 572, para 18) "18. The law is now well settled that a dying declaration which has been found to be voluntary and truthful and which is free from any doubts can be the sole basis for convicting the accused."
17. Regard being had to the aforesaid principles; we shall presently advert how to weigh the veracity of an oral dying declaration. As has been laid down in Laxman [(2002) 6 SCC 710: 2002 SCC (Cri) 1491] by the Constitution Bench, a dying declaration can be oral. The said principle has been reiterated by the Constitution Bench. Here we may refer to a two- Judge Bench decision in Prakash v. State of M.P. State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 43 of 62 [(1992) 4 SCC 225 : 1992 SCC (Cri) 853] wherein it has been held as follows: (SCC p. 234, para 11)
11. ... In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody's case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with."
72. Coming to the present case, PW-1 Rahul Jindal has deposed that the deceased Rahul had told him on way to Satyabhama hospital that he was shot by the same guys who had stabbed his brother Mohit. To reproduce the testimony of PW-1, "Rahul Mittal was known to me, therefore, I took him to Satyabhama hospital, Nangloi in a battery rickshaw. On the way, I made inquiries from Rahul Mittal and he told me that the persons who had stabbed his brother Mohit, had shot him'.
73. It has been alleged that PW-1 Rahul Jindal is an unreliable witness as he is a planted witness. His presence at the spot as well as at the hospital has not been proved by the prosecution. It is not proved that he had taken the injured/deceased to Satyabhama hospital. His name is State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 44 of 62 neither mentioned on the MLR nor did any of the police official met him at Satyabhama hospital.
74. IT has been deposed by PW-4 Anil Jain that Rahul Jindal, who is running a mobile shop near his shop arrived at the spot and with help of his servant made the deceased sit in a battery rickshaw and took him to the hospital. This witness has been cross-examined at length by the defence counsel. However, no suggestion was given to him that the injured was not taken to the hospital by Rahul Jindal. Even otherwise, there is no reason for this witness to depose falsely that the injured was taken to hospital by Rahul Jindal.
75. Further, during cross-examination of PW-1 also, no suggestion was given to him that he was not running his mobile shop near the spot, nor any suggestion has been given that he did not accompany the injured to the hospital. Infact, the only suggestion given by the defence counsel to PW-1 is that the deceased had become unconscious on his way to the hospital. Hence, it is not disputed by the defence also that Rahul Jindal had taken the deceased Rahul Mittal to Satyabhama hospital.
76. Another argument raised by the defence is that in the MLR Ex.PW3/A, prepared at Satyabhama hospital, it is shown that the injured was brought by PCR. It is correct that the name of Rahul Jindal is not mentioned on the MLR Ex. PW3/A. However, as per the PCR form Ex.PW28/A, the information regarding the incident was received by the State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 45 of 62 PCR at 19:35 hours, but the PCR reached the spot only at 20:22 hours i.e. almost after one hour of the incident. PW- 28 has deposed that the PCR vehicle had reached the spot at 20:22:33 hours and reported the incident. In the MLR Ex.PW3/A, the date and time of arrival of the injured is mentioned as 30.05.2016 at 07:50 PM. Hence, it is impossible that the PCR had reached Satyabhama hospital alongwith the injured at 07:50 PM, when it had reached the spot itself at about 20:22:33 hours.
77. Secondly, the name, age and father's name as well as full address of the injured has been mentioned in detail on the said MLR which shows that the person who had brought the injured to the hospital was well acquainted with him. Not only this, PW-20 Retired SI Badlu Ram also deposed that on 30.05.2016, at about 7.39 pm, wireless operator came to DO room and gave information that one person has been caused bullet injury at near Nilothi Mor and the assailants were on bike and the injured was taken to Satyabhama hospital by the caller. The caller had made a call from mobile no. 9716626917 to the command room. Accordingly, he lodged DD No. 44A.
78. PW-1 had also informed Mohit about the incident and that he was taking the deceased to hospital. PW-7 Mohit has also deposed that he was informed by Rahul Jindal that his brother has been shot and that he had brought him to Satyabhama Hospital. He knew the deceased Rahul beforehand as they had business dealings and the deceased used to supply goods to him. He reached the spot on State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 46 of 62 hearing the sound of gunshot (dhamaka). His presence at the spot is natural. He is not a planted witness. Further, he is not related to the deceased or his family either through blood or law. Merely because he was acquainted with the deceased beforehand and used to carry business with him does not make him an interested witness and to discard his testimony.
79. PW-2 Sh. Raj Kumar had also deposed that his son Rahul had nodded his head when his other son Mohit said that he was shot by the accused persons. the relevant portion of his testimony is, "When my son Rahul was being shifted in ambulance for shifting to Maharaja Agrasen Hospital, I asked him as to who had shot him, then Rahul did not reply but Mohit told that Nika and Sabi had shot him, on this Rahul shook head in approval."
80. His testimony is corroborated by PW-7 Mohit who has also deposed that when his brother was being taken to the ambulance for going to Maharaja Agarsen hospital, his father has asked Rahul who has attacked him. Since he was unable to speak due to oxygen mask, PW-7 told his father that that Raul had already told him that Sabi and Nikka had attacked him and Sabi had inflicted bullet injury upon him and when he was so telling, Rahul Mittal nodded his head to show that whatever the witness was saying is correct.
State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 47 of 6281. PW-7 Mohit has also deposed that when he reached Satyabhama hospital emergency ward, his brother was lying on stretcher. When he asked him who had fired at him, he informed him that Sabi and Nika had come in front of the shop of Anil Jain and Sabi had fired at him. Thereafter, both of them fled away on bike.
82. Hence, the deceased has given three oral dying declarations, one to PW-1, second to PW-7 and third to PW-2. In all the dying declaration he had either named or affirmed at the accused persons as his assailants. There is no contradiction in the said three dying declarations. There was no occasion for any family member or any other person to have tutored or brainwashed the deceased as the incident had taken place at around 07:30 PM and the deceased expired on the same day at about 09:30 PM.
83. In "Prakash v State of MP" AIR 1993 SC 65 it was held that where deceased victim knew the assailants and gave their names to his family members at first opportunity, his dying declaration could be relied upon.
84. One of the arguments raised by Learned defence counsel is that the said Dying Declarations are not admissible as there is no doctor's certificate indicating that the deceased was in a fit state of mind. To the contrary, as per the MLR Ex. PW3/A, the patient Rahul was declared unfit for statement by the doctor. Now, the first statement was made by the deceased to PW-1 on their way to Satyabhama hospital. There is nothing to show that the deceased was State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 48 of 62 not in a condition to make any statement at that point of time. PW-1 has denied in his cross-examination that the deceased has become unconscious on his way to the hospital. Similarly, no such suggestion has been given to PW-2 or PW-7 that the deceased was not in a fit mental state to give any statement. Even PW-3 Dr. Gopal Sharma, who had prepared the MLR Ex. PW3/A, has stated that he cannot say whether there was no possibility of fitness of the patient for making statement after the treatment in Satyabhama Hospital till he died in Agrasen Hospital. Hence, it cannot be said that the deceased was not in a fit mental condition to make any statement. Further, it is clear from the testimony of PW-2 and PW-7 that at the time of being shifted to the ambulance, the deceased was unable to speak and had only nodded to affirm that Sabi and Nikka had shot him. Had PW-2 wanted to frame the accused persons, he would have plainly stated that the deceased took the name of the accused persons as his assailants. Why would he make up the story of nodding of head by the deceased. This confirms the truthfulness of the testimony of PW-2 and lends credence to it.
85. Regarding the lack of medical certificate, in the case titled as "Dharmender Kumar @ Dhamma v State of M.P." 2024 SCC OnLine SC 1651, it was observed by Hon'ble Apex court, "66. As regard to the assessment of mental fitness of the person making a dying declaration, it is indubitably the responsibility of the court to ensure that the declarant was in a sound state of mind. This State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 49 of 62 is because there are no rigid procedures mandated for recording a dying declaration. If an eyewitness asserts that the deceased was conscious and capable of making the declaration, the medical opinion cannot override such affirmation, nor can the dying declaration be disregarded solely for want of a doctor's fitness certification. The requirement for a dying declaration to be recorded in the presence of a doctor, following certification of the declarant's mental fitness, is merely a matter of prudence.
67. The Constitution Bench in Laxman v.
State of Maharashtra has authoritatively ruled that:
"3....But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite.....What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind...."
86. The deceased has given a very brief and precise statement to PW-1 and PW-7. He has merely nodded when Mohit told PW-2 that Sabi and Nikka had shot him. However, merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. Merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Reliance placed on "State of Maharashtra v. Krishnamurti Laxmipati Naidu" 1981 SCC (Cri) 364 and "Surajdeo Ojha v. State of Bihar" 1979 SCC (Cri) 519] .) State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 50 of 62
87. It would also not be out of place to refer to the observation made by Hon'ble Apex court in "Muthu Kutty v. State", (2005) 9 SCC 113, "Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence."
88. The testimony of all the above said witnesses i.e. PW-1, PW-2 and PW-7 have remained intact on all the material points and there are no major contradictions in their testimony. All these witnesses were natural witnesses as PW-1 had taken the deceased to the hospital and PW-2 and PW-7 had reached the hospital being the father and brother of the deceased respectively. The injured had expired within two hours of receiving the fatal gunshot injury. Hence, there was no occasion for the family members of the deceased to have tutored the deceased to falsely frame the accused persons. Also, it is highly unbelievable that deceased's father and brother who must be shocked with news of their son being shot, would tutor him to name the accused persons to get even with them, instead of asking him about the real culprits.
89. In view of the above discussion, this court is of the considered opinion that the oral dying declarations relied upon by the prosecution are clear and reliable. There is no contradiction in the 3 statements. The said statements appear to be voluntarily made by the deceased and do not appear to be a result of any tutoring or brainwash by State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 51 of 62 family members. The deceased was in fit mental condition to make the said statements. They are free of any blemish and can be safely relied upon.
90. Another argument raised by Learned defence counsel is that PW-7 is a planted witness. He has falsely deposed that he had seen the accused persons following his brother Rahul to falsely implicate them. During cross-examination he has admitted that his shop was only 5 minutes away from his house, despite that he took a longer route to reach his shop. Secondly, he had deposed that his mobile phone was forwarded to another number but he failed to disclose the said number. Thirdly, the statement of Mohit under Section 161 Cr.P.C was recorded on 01.06.2016 i.e. two days after the incident which shows that he was tutored by the police in between.
91. Ld. Defence counsel has further submitted that PW-7 has made various improvements in his examination in chief. Firstly, he has deposed that on 30.05.2016 at about 06:25 PM his brother Rahul had come home and washed his face and left at about 06:30 PM. Secondly the fact that PW-7 stated that he stopped at Kali Mata Mandir for about 5-10 minutes on way to his shop is not mentioned in his statement under Section 161 Cr.PC. which is Mark PW7/1.
92. As far as omission to mention some facts in the statement under Section 161 Cr.P.C or additions made during testimony recorded before court is concerned, the same cannot be said to be such omission/addition which may State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 52 of 62 strike at the root of the prosecution case. It is a settled law that a witness is not expected to have an exceptional memory. He may make minor contractions in his testimony and in his statement under Section 161 Cr.P.C. Similarly, he may make certain additions in his testimony before the court, which he may not have stated in his earlier statement. However not all such additions are to be treated as improvements. The additional facts told by PW- 7 in his examination in chief are minor ones and there are no major improvements as such. Hence, this argument holds no ground.
93. Further, the deposition of PW-7 with respect to his mobile numbers or call forwarding is not material, as it has already been proved by the prosecution that PW-7 had reached Satyabhama hospital on being called by PW-1.
Whether accused persons had MOTIVE to kill the deceased
94. It has been submitted by Learned Chief Prosecutor that the accused persons had enmity with the deceased and his brother Mohit. An incident had taken place between the accused persons and PW-7 Mohit in the year 2013, where the accused persons had stabbed Mohit with knife. An FIR no.314/13 under Section 307 IPC PS Nihal Vihar was registered against the accused persons. Both Mohit and deceased Rahul were prosecution witness in the said charge-sheet. It has been alleged that the accused persons were pressurizing them to change their statement in favour State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 53 of 62 of the accused persons. Hence, in furtherance of this previous enmity, the accused persons had shot the deceased in his chest which resulted in his death. Hence, the accused persons had motive to kill the deceased.
95. Ld. Defence counsel has vehemently opposed this allegation and submitted that the accused persons had already been acquitted in the earlier FIR no.314/13. Hence, there was no reason for the accused persons to kill the deceased. Further, admittedly neither the deceased, nor PW-2 or PW-7 had ever made any complaint with the police or before the concerned court where the said case was pending that they have been receiving threats from the accused persons.
96. Certified copy of the judgment dated 23.08.2017 in FIR no.314/13, under Section 307/326/34 IPC and 25 Arms Act, PS Nihal Vihar has been placed on record by Ld. Defence counsel vide which the accused persons were acquitted for the offence under 307/326/34 IPC and 25 Arms Act. The testimony of PW-13 Rahul in the said case was recorded on 16.05.2015 while the testimony of PW-16 Mohit was recorded on 14.12.2016. The incident in question had taken place on 30.05.2016 i.e. before the testimony of PW-16 Mohit was recorded in FIR no.314/13. Hence, a possibility cannot be ruled out that the accused persons were threatening and pressurizing Mohit and Rahul not to give testimony against them. They could have shot Rahul with a view to scare Mohit and discourage State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 54 of 62 him from appearing in the court in that case, or to change his statement.
97. Further, PW-7 has been cross-examined at length by Ld. Defence counsel. One of the suggestions given by Ld. Defence counsel that he had falsely implicated the accused person in the present case as he was frustrated on their acquittal in FIR no.314/13 PS Nihal Vihar. However, as per the certified copy of the judgment in FIR no.314/13 PS Nihal Vihar, the same was pronounced by the concerned court on 23.08.2017 i.e. after the incident in question had taken place. Hence, PW-7 had no occasion to falsely implicated the accused persons as on 30.05.2016, for the reason that he was frustrated with their acquittal in FIR no. 314/13.
98. Ld. Defence counsel has put a question mark on the identity of PW-4 Anil Jain saying that he has somewhere named himself as Anil Jain and somewhere as Anil Aggarwal. Hence, his identity not proved. However, no question or suggestion pertaining to the identity of this witness was given to him during his cross-examination. Even PW-12 or PW-26, who were the investigating officers, were not given any suggestion regarding the identity of PW-4 Anil Jain. Hence, this argument does not hold any ground.
99. The medical evidence on record is also supportive of the prosecution case. As per the MLR Ex.PW3/A the deceased/injured was having difficulty in breathing and State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 55 of 62 has pain in his chest. He had deep wound on his chest and it was bleeding. He was in a semi-conscious and drowsy condition.
100. Further, as per the post-mortem report Ex.PW8/A the deceased had received the following injuries, "A Firearm entry wound, oval shaped, 1.5 x 1.5 cm over front of upper right chest, 6 cm lateral to midline & 132 cm above heel, 7cm upper and medial to right nipple surrounded by abrasion collar and grease collar around the wound margin. Blackening and Tattoing was present in 18cm of surrounding area. On exploration, injury track passing through underlying skin, s/c tissues, muscles & between 4th and 5th right ribs, passing through upper lobe of right lung, bruising anterior wall of heart, and bullet found embedded in subcutaneous tissues in right axillary line, 116cm from heel and 30cm medial to midline. Injury track is running right to left; above downwards with extensive blood extravasation along the track. The length of bullet was 30.85mm."
101. The cause of death was opined as "Shock as a result of injury due to rifled firearm weapon."
102. Ld. Defence counsel has argued that as per Ex.PW8/A the cause of death was chest injury due to rifled firearm weapon, whereas the prosecution case is that the injury was caused by a country made pistol. However, Ex. PW8/A was prepared by a doctor and the weapon of offence was not even produced before him. He is not an expert as far as firearms are concerned. Hence, this is not a material contradiction so as to negate the prosecution story.
State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 56 of 62103. It has also been alleged that recovery of Pulsar bike of the accused Ravinder @ Sabi is planted one. There is no public witness regarding recovery of the said bike. However, the said pulsar bike was found in an abandoned condition from Lucky Garden. It has been held in a plethora of cases that failure to join public/independent witness to the proceedings to recovery of articles by accused persons is not a material irregularity. Section 100 (4) Cr. PC is only directory and failure to comply with the said provision will not be fatal to the case of the prosecution.
104. Further, the motorcycle bearing registration no. DL10SE 2456 admittedly belonged to accused Ravinder @ Sabi and was recovered by the police on 14.07.2016 in an abandoned condition. No explanation has been given by the accused as to why his motorcycle was found in an abandoned condition. Admittedly no report/complaint of theft or loss of the said motorcycle was ever lodged by the accused Ravinder @ Sabi. Hence, the conduct of the accused in not taking any steps regarding his motorcycle, which was found abandoned, leads to an adverse inference against the accused that he had abandoned his motorcycle after the incident and had absconded to avoid arrest.
105. Ld. Defence counsel has submitted that the prosecution has failed to establish the complete chain of circumstances against the accused persons. The prosecution has failed to prove that accused persons used to threaten the deceased and PW-7 Mohit. The prosecution has also failed to prove State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 57 of 62 that the country made pistol recovered from the spot, which was sent for examination at CFSL is the same with which the deceased has been killed. Hence, the chain of circumstances is incomplete.
106. As per FSL report Ex.PW27/A, the countrymade pistol which was recovered from the spot was in a working condition, one cartridge Ex.A-1 was a misfired cartridge. However, no opinion could be given regarding bullet Ex.EB-1 i.e. the bullet which was recovered from the body of hte deceased, as the individual characteristic of Striation Marks were found insufficient. Hence, the court agrees that it could not be established that the bullet recovered from the body of the deceased was fired from the said Katta.
107. The court further agrees with the arguments of the Ld. Defence counsel that the chain of circumstances has not been proved beyond reasonable doubts by the prosecution. It is not been proved that the Katta Ex. P-1 as recovered from the spot, was used to fire at the deceased as no opinion could be given by the FSL. The court further agrees with the contention that at no point of time the deceased or his father or brother made any complaint before the court or the police regarding the threats being given by the accused persons to them. However, even though the chain of circumstances has not been proved by the prosecution, the dying declarations made by the deceased are sufficient to prove the case of the prosecution. As already discussed, the testimony of PW-1, State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 58 of 62 PW-2 and PW-7 is sufficient to establish that the deceased had named the accused persons as the persons who had come on bike and shot him. He has specifically named Sabi as the person who had shot him with the firearm and Nika as the person driving the motorcycle. There is no reason for PW-1 to falsely implicate the accused persons. There is also no reason for PW-2 and PW-7 to falsely implicate the accused persons by letting the real culprit who killed their son/brother go scot-free. No suggestion has been given to any of the prosecution witnesses that deceased Rahul had enmity with some other person and that was the reason for his death. There is no reason to disbelieve and discard the testimony of PW-1, and PW-2 and PW-7. Their testimonies have remained intact and withstood the rigors of detailed and lengthy cross- examination. In court's opinion, the dying declarations are free of any blemish. They appear to be voluntarily made by the deceased and there was no occasion for tutoring the deceased to give such a statement. The deceased was in a fit mental condition to give the said statements. Hence, it can solely form the basis of conviction and no further corroboration is needed.
108. Before concluding, the court considers it necessary to refer to the "Krishna Mochi & Ors vs State Of Bihar" AIR 2002 SUPREME COURT 1965, wherein Hon'ble Supreme Court observed that 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 State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 59 of 62 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. The relevant portion of the judgment is reproduced verbatim as under, "68. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the Court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, court should tread upon it, but if the same are boulders, court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". I find this Court in recent times has conscientiously taken notice of these facts from time to time. In the case Inder Singh and another v. State (Delhi Administration ), AIR 1978 Supreme Court 1091, Krishna Iyer, J. laid down that "Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes." In the case of State of U.P. v. Anil Singh AIR 1988 Supreme Court 1998, it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. In the case of State of West Bengal v. Orilal Jaiswal and State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 60 of 62 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."
109. In view of the above discussion and in light of the aforesaid judgments, this court is of the considered opinion that the prosecution has been successful in proving the allegations against accused persons Ravinder @ Sabi and Ranveer @ Nika. It has been proved that both the accused persons had come to the spot on the motorcycle of accused Ravinder @ Sabi which accused Ranvir @ Nikka was driving with a common intention to kill the deceased. The accused Ravinder @ Sabi had fired at the deceased, wounding him on his chest, and then both of them fled on the said motorcycle. Their act of shooting the deceased on his chest was done with intention of causing his death or with knowledge that the injuries inflicted by them on the deceased were likely to cause death. The injured Rahul died within 2 hours of receiving the said injury. Hence, the prosecution has proved the charge against the accused persons beyond reasonable doubt. The prosecution has successfully proved the ingredients of Section 302 IPC read with Section 34 IPC against both the accused persons. It has also been proved that the accused persons used to threaten the deceased and his brother Mohit to change their statement in FIR no. 314/13 PS Nihal Vihar. Hence, the accused Ravinder @ Sabi and Ranveer @ Nikka are convicted under Section 302/195-A/34 IPC.
State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 61 of 62110. Copy of this judgment be supplied to the accused free of cost.
Digitally signed by SAUMYASAUMYA CHAUHAN CHAUHAN Date:
2024.08.17 16:21:37 +0530 Announced in the open court (Saumya Chauhan) today i.e. 17th August, 2024 ASJ/FTC)-02, West Tis Hazari Courts/Delhi Certified that this judgment contains 62 pages and each page bears my signatures.Digitally signed by SAUMYA
SAUMYA CHAUHAN CHAUHAN Date: 2024.08.17 16:21:53 +0530 (SAUMYA CHAUHAN) ASJ (FTC)-02, WEST TIS HAZARI COURTS, DELHI.State Vs. Ravinder @ Sabi and Ors. FIR No. 415/2016) Page 62 of 62