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Sc No. 66/12 State vs Ranjeet Etc. Page No. 1 Of 54 on 3 April, 2014

      IN THE COURT OF ADDITIONAL SESSIONS JUDGE : SE­01
     DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET COURTS: 
                         NEW DELHI 
              PRESIDED BY : MS. RENU BHATNAGAR

CASE ID No.  02403R0094372009
SESSIONS CASE No. 66/12
FIR No. 217/2006
POLICE STATION : R.K. PURAM
U/s. 302 /120­B IPC & 25 (1) (a) ARMS ACT

STATE 

VERSUS


1.   RANJEET @ SONU, 
S/O SH. INDERJEET @ INDI@INDEE, 
R/O H. NO. 649, SECTOR­7, 
R.K. PURAM, NEW DELHI                                       


2.    INDERJEET SINGH @ INDEE, 
S/O SH. KISHORI LAL, 
R/O H. NO. 649, SECTOR­7,
R. K. PURAM, NEW DELHI                                      


3.   CHANDER SHEKHAR @ PINKU, 
S/O SH. VEER SINGH, 
R/O VILLAGE MOHAMMAD PUR KALAN, 
PS & TEH.­ SIKANDARABAD, DISTRICT BULLANDSHAHAR, UP
                                              
4.   SHYAM SINGH, 
S/O SH. MISHRIYA, 
R/O A­52, SAINIK ENCLAVE, GALI NO. 3,
MOHAN GARDEN, UTTAM NAGAR, 
NEW DELHI. 

SC No. 66/12                   State Vs Ranjeet etc.                    Page No. 1 of 54
 ALSO AT : A­54, JHUGGI AMBEDKAR BASTI,
R.K. PURAM, NEW DELHI.                                                 


5.   RATTAN SINGH, 
S/O SH. MISHRIYA, 
R/O 20/68, DAKSHIN PURI, NEW DELHI.                                    
ALSO AT: A­55,  JHUGGI AMBEDKAR BASTI,
R.K. PURAM, NEW DELHI.                                                 


DATE OF INSTITUTION         :   06.07.2006.
DATE OF RESERVING ORDER :  10.01.2014.
DATE OF DECISION             :  03.04.2014

                                      J U D G M E N T 

Case of the prosecution:­

1. Brief facts of the case are that on 06.04.2006 on receipt of DD No.31­ A dated 06.04.2006, Sub­Inspector Atthar Hussain alongwith Constable Sanjeev Kumar reached at the spot i.e Gali (through fare) in front of House No. A­49, Ambedkar Basti, Delhi and found Head Constable Etwa Oran and Beat Constable Satbir. A lot of blood was found at the spot on the road and in front of the gate of public toilets. Head Constable Etwa Oran, who reached at the spot after receipt of DD No. 30­A, was left at the spot to take care. Sub­Inspector Athar Hussain along with Constable Sanjeev Kumar reached at Safdarjung Hospital and met Sub­ Inspector Subhash Malik, who handed over MLC No. C­65871 of Manoj Kumar S/o Om Prakash R/o Jhuggi B­369 Ambedkar Basti R.K. Puram, New Delhi with the alleged history of fire arm injury penetrating wound right side of occipital area and patient was declared brought dead, mentioned on the MLC. Sh. Om Prakash, complainant met IO who stated that he was living at the above address and working as Sweeper in Sewa Sadan, R.K. Puram. He was ill since last sometime.

SC No. 66/12 State Vs Ranjeet etc. Page No. 2 of 54 On the day of the incident he along with his son Manoj was going to park for a walk through Gali of public toilets and when they reached at N.K.R Tailor, A­48 Ambedkar Basti they found two boys standing at the crossing of the Gali, out of them one was Ranjeet @ sonu S/o Inderjeet who was son of his brother­in­law and another was not known to him, but he could recognize him. They came towards them fastly and Ranjeet @ sonu stated that as they have beaten his father, so he will finish them. On this, second boy asked Ranjeet @ sonu to take out pistol quickly and fire on them. Ranjeet @ Sonu took out a Pistol and fired by putting it on the back right side of the neck of Manoj, and Manoj fell down immediately after being hit by bullet and was in pool of blood. The complainant raised noise and found his son Neeraj and nephew Rinku coming. On hearing his cries, Ranjeet @ sonu and his companion left after threatening to see his family. Complainant with the help of Neeraj and Rinku took Manoj in front of toilet. In the meantime, his wife also came there and they took Manoj to Safdarjung Hospital. Doctor after examination declared him brought dead. Ranjeet @ sonu and his accomplice, who was not known to complainant, but he could recognize him who killed Manoj by firing. On the basis of above statement, site inspection and MLC was prepared and case under section 302/34 IPC was registered. During investigation, IO reached at the spot and got place of occurrence photographed by Head Constable Ajeet Singh and got the spot inspected by crime team. Blood sample, earth control, blood stained, concrete were taken from both the spot as exhibits and were taken into possession vide separate seizure memos. After inspection of the site, unscaled site plan was prepared. During investigation, statement of Neeraj, complainant Om Prakash and Rinku were recorded and their blood stained cloths were also taken into possession vide separate seizure memos. Proceeding under section 174 Cr.P.C were completed. Search for accused was made and statement of witness were recorded. On 08.04.2006, postmortem of SC No. 66/12 State Vs Ranjeet etc. Page No. 3 of 54 deceased Manoj was got conducted and body was handed over to the claimant. Exhibits i.e. blood gauze, skin piece, projectile (Jacket with bullet), Blood stained clothes and sample seal taken by the autopsy surgeon during postmortem proceeding were taken into possession vide seizure memo and deposited in Malkhana. On 10.04.2006, an information regarding arrest of accused Ranjeet @ sonu in case FIR No. 231/06 under section 25/54/59 Arms Act, Police Station Ambedkar Nagar by Special Staff, South District was received vide DD No.15A dated 10.04.2006 at Police Station R.K. Puram, Delhi. It is mentioned in the DD entry that accused Ranjeet @ Sonu disclosed his involvement in this case. Investigation was conducted in this regard and connected papers i.e. disclosure statement, copy of FIR, Sketch of katta, copy of statements were taken from Sub­ Inspector Naresh Kumar, Special staff South District and IO of case FIR No. 231/06, Police Station Ambedkar Nagar, Delhi. Accused Ranjeet @ sonu was interrogated after seeking permission from the Court and arrested. During interrogation, accused pointed out the place of other accused. On 10.04.2006 during custody remand, he pointed out at Jhuggi No. A­54 and told that on 06.04.2006 at 04.30 PM, he along with other accused had gathered there to give a final shape to the plan made to commit the offence. Pointing out Memo was prepared. During this accused Ranjeet @ sonu pointed out place of occurrence. On 12.04.2006, during Police Custody remand accused Ranjeet @ sonu pointed out a residential room in House No. D­68, Dakshin Puri, Delhi belonging to Ratan singh and got recovered the blood stained clothes, which he was wearing at the time of commission of the offence, which were taken into possession by the police. On 13.04.2006 at the pointing out of accused Ranjeet, accused Shyam Singh and Rattan Singh were arrested in the case. On interrogation, both these accused made disclosure statements regarding their involvement. On 14.04.2006, accused Chander Shekhar @ Pinku who allegedly supplied Desi Katta to Ranjeet SC No. 66/12 State Vs Ranjeet etc. Page No. 4 of 54 Singh used by him in committing the offence, was arrested at the pointing out of accused Ranjeet @ sonu under section 25/29/54/59 Arms Act. Postmortem report was obtained and exhibits were deposited in FSL, Rohini for examination. On 03.06.2006, accused Inderjeet Singh was arrested. In the postmortem report, external injury fire arm entry wound 1 x 1 cm on the right side of occipital region with singeing of hair and charring of skin. In the internal findings, it was mentioned that occipital bone, showing entry hole on right side cerebellum shows the damage as also the left parietal lobe due to expensive forces. In the postmortem, cause of death is mentioned as head injury due to fire arm projectile fired from a close range.

2. During investigation, it came to light that a case bearing FIR No. 163/05, under section 307 IPC, PS R.K. Puram was registered regarding quarrel with Manoj etc. with the accused of this case, which is pending trial. It is alleged that due to revenge, accused persons made a plan and conspired to eliminate Manoj and his family. According to the plan, Ranjeet @ sonu with loaded Katta and other accused were sent at the spot, while other accused persons remained present at Jhuggi No. A­54 Ambedkar Basti to remain available in case of need. Accused Ranjeet @ Sonu, Inderjeet, Rattan Singh and Shyam Singh hatched a conspiracy to finish Manoj and executed their plan and committed offence under section 302/34/120B IPC. It is alleged that accused Chander Shekhar supplied the Katta and committed offence under section 25/29/54/59 Arms Act. Search was made for accused Monu at the disclosed places, but neither his identity has been established nor any clue was found. All oral and documentary evidences were collected in the case and placed on the file. FSL result has been sent for examination. Thereafter, statement of witnesses were got recorded by the Investigating officer and after completion of investigation, charge sheet under Section 302/34/120B IPC was filed against the accused Ranjeet @ Sonu, Inderjeet SC No. 66/12 State Vs Ranjeet etc. Page No. 5 of 54 @ Indee, Ratan Singh and Shyam Singh and case under section 25/29/54/59 Arms Act was filed against the accused Chander Shekhar in the court.

3. Since the offence under Section 302 IPC is exclusively triable by the court of Sessions, therefore, after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions.

Charge framed against the accused persons:­

4. Prima facie case under section 120­B IPC r/w. Section 302 IPC was made out against accused Ranjeet Singh @ Sonu, Inderjeet Singh @ Indi, Ratan Singh and Shyam Singh and prima facie case under section 302 IPC was made out against accused Ranjeet Singh @ Sonu. Charge under Section 120­B IPC r/w. Section 302 IPC was framed upon the accused persons Ranjeet Singh @ Sonu, Inderjeet Singh @ Indi, Ratan Singh and Shyam Singh and charge under section 302 IPC was framed upon the accused Ranjeet Singh @ Sonu to which they pleaded not guilty and claimed trial.

5. Prima facie case under section 25(1)(a) Arms Act was made out against the accused Chander Shekhar. Charge under section 25(1)(a) Arms Act was framed against the accused Chander Shekhar to which he pleaded not guilty and claimed trial.

Witnesses Examined:

6. In support of its case, prosecution has examined thirty witnesses in all. The brief summary of the deposition of the prosecution witnesses is as under:­ Material Witnesses as to the conspiracy, murder:­

7. PW­1 is Sh. Raman, son of complainant. He deposed that they are three brothers namely Manoj Kumar, Neeraj @ Niranjan and himself. He know Inderjeet, who is maternal uncle and Ranjeet Singh @ Sonu is the son of Inderjeet. He knew Shayam Singh and Ratan Singh, who reside in Jhugi No. A­ SC No. 66/12 State Vs Ranjeet etc. Page No. 6 of 54 54­54, Ambedkar Basti, New Delhi. He deposed that about one year back from the present incident (i.e. 06.04.2006), in 2005, date and month he did not remember, a quarrel took place between his father and his brother Manoj with Inderjeet, Ratan Singh and Shyam Singh and a case was registered against his father, brother and himself u/s 308 r/w 34 IPC, Police Station R. K. Puram, Sector­

12. PW­1 deposed that on 06.04.2006 at about 05:00 pm, he was passing through in front of Jhuggi of Ratan Singh and there Inderjeet, Ranjeet @ Sonu, Ratan Singh and Shyam Singh and one another boy, whose name he did not know were talking about them inside the Jhuggi. He hide himself behind the Jhuggi to hear their talks. He deposed that Inderjeet was stating that pistol has been arranged and Om Prakash and his sons to be finished ("Kaam Tamam Kar dena hai"). PW­1 deposed that Shyam Singh was stating that Manoj must be killed as his wife was living separately because of Manoj. He further deposed that Inderjeet and Ratan Singh were stating that Manoj has caused injuries to Inderjeet in the previous quarrel and further said that Manoj should be killed first to take revenge. Ranjeet @ Sonu in anger took out a pistol and told the other accused persons that he would just going to finish ( Kaam Tamam Kar Key) and would come back with his associates. PW­1 further stated that Inderjeet said that they will implement the plan at 6 pm which they had prepared in the morning when they will visit the park. PW­1 went to park but could not find his brother. While returning to his house he came to know that his brother has been killed by Ranjeet @ sonu with his one associate by a gun shot. PW­1 came to know that his father and brother had removed his brother Manoj to Safdarjung Hospital and he had died on the way. He saw blood lying in front of A­49, near Sauchalaya wali gali and gave his statement to the police.

8. PW­2 is Sh. Aas Mohd, neighbour of the deceased who correctly identified accused Ranjeet @ Sonu present in the court and deposed that he do SC No. 66/12 State Vs Ranjeet etc. Page No. 7 of 54 not know the other accused persons. He deposed that he do not know as to how deceased Manoj sustained injuries and who had caused injuries to him. The witness was further cross examined by the Ld. Additional Public Prosecutor for the state but nothing material has come on record.

9. PW­3 is Sh. Neeraj who stated that he is residing in the locality since last 20 years. He correctly identified the accused Inderjeet, Shyam singh and Ratan Singh in the court and stated that accused Inderjeet is his maternal uncle. He stated that about one year prior to incident a quarrel took place between accused and them wherein accused Inderjeet singh had sustained injuries and case was registered against them. Accused persons kept personal enmity with them and used to say that they will kill them in order to take revenge. PW­3 stated that on 06.04.2006 at 6.05 pm he along with his relative Rinku were present, some one told him that his brother Raman was searching him and when they both reached at the gate of shauchalaya, he saw his brother Manoj and Father coming and in the meantime, accused Ranjeet @ Sonu put pistol on the neck of Manoj and fired the gun shot at him. His brother Manoj sustained injuries and fell on the road. His father raised alarm. In the meantime, accused Ranjeet @ sonu and his associate ran away from the spot. Thereafter, PW­3 along with his father and Rinku lifted Manoj and took him to hospital. But on the way his brother Manoj succumbed to injuries. Their clothes were smeared with blood and police seized the same. Dead body after postmortem was handed over to them and he identified the dead body of Manoj. He has also identified the clothes in the court which were seized by the police.

10. PW­4 is Sh. Sammi Kapoor who deposed that he do not know anything about the case. Police had not made any inquiry from him and no statement was recorded by the police official. He did not identify any of the accused persons present in the court. The witness was cross examined by the Ld. SC No. 66/12 State Vs Ranjeet etc. Page No. 8 of 54 Additional Public Prosecutor for the state but nothing material came out from his cross examination.

11. PW­11 is Sh. Rinku. He is cousin of Manoj (deceased). He deposed that on 06.04.2006, he alongwith his brother Neeraj were present near CRPF block side, when one boy told them that their brother Raman was searching them. PW­11 deposed that when they were coming from the side of toilets towards their basti, then they saw Om Prakash and Manoj coming from the front side. In the meantime, Sonu, whose real name is Ranjeet, came out of the gali and two­three boys were with him then Ranjeet @ sonu fired a shot on the backside of neck of Manoj. PW­11 deposed that seeing this, they ran behind Ranjeet @ sonu and others, but they could not apprehend them. He alongwith Om Prakash and Neeraj took Manoj in a TSR to Safdarjung Hopsital, where Manoj was admitted and by mistake the name of Manoj was given as Ranjeet to the Doctor. He deposed that from the Hospital they came back to their House. Police made inquiries from him and recorded his statement. He had told to the police the cause of quarrel as a dispute in the year 2005 between Inderjeet, Shyam Singh, Neeraj, Manoj and Om Prakash etc. His blood stained clothes were taken by the police, which were having blood stains. He did not know how the police came to the spot in the night, when they had returned from the hospital, however, he did not make a telephone call to the police about their arrival at the spot from hospital. PW­11 testified that deceased was taken to near public toilet, which was at a distance of about 5­7 steps from the place, where he fell down. He admitted that Ranjeet did not receive any injury. He did not notice any blood on the clothes of Ranjeet at the time of incident. PW­11 deposed that he had told the police on 06.04.2006, he alongwith his brother Neeraj were present near CRPF blood side. He deposed that it took them about 15­20 minutes after the incident of firing, to leave the spot in SC No. 66/12 State Vs Ranjeet etc. Page No. 9 of 54 the TSR.

12. PW­27 is ACP Braham Prakash Yadav, Investigating officer who deposed that investigation of the case was assigned to him after registration of the FIR. He got inspected the scene of crime by the officials of the crime team and also inspected the place of occurrence and prepared site plan Ex.PW27/A. He stated that in the case there were two spots as stated by the complainant. One was spot A where the injury was inflicted on the person of deceased and other spot was where injured was kept. He lifted the exhibits including blood, blood stained concrete and control concrete from both the places and these exhibits were also taken into possession vide memos Ex.PW6/A and Ex.PW6/B. He made pullanda of all the exhibits and sealed them with the seal of BPY. He also seized the blood stained clothes Ex.PW6/D of complainant Om Prakash. He also seized the blood stained clothes of Neeraj and Rinku , prepared the separate pullandas and sealed them with the seal of BPY. Seizure memos were prepared which are Ex.PW3/C and Ex.PW6/C respectively. He recorded the statement of Neeraj, Rinku, Raman, supplementary statement of complainant, SI Attar Hussain, HC Etwar Oran, Ct. Satbir, Ct. Sanjeev, SI Udham Singh and photographer HC Ajit. During the course of investigation, he had conducted proceedings under section 174 Cr.P.C and prepared the inquest papers including application for postmortem Ex.PW27/B, brief facts Ex.PW27/C, death report Ex.PW27/D, statement of Neeraj and Raman Ex.PW3/B and Ex.PW27/E regarding identification of the dead body. He also got the dead body preserved for the postmortem. Postmortem was got conducted on 08.04.2006 vide PM report Ex.PW25/A. After the postmortem, the dead body was handed over to its relatives Ex.PW3/A. Exhibits along with sample seal which were given by the Autopsy Surgeon were also taken into possession vide memo Ex.PW10/A. On 10.04.2006 a call was received from Special Staff regarding arrest of accused Ranjit in FIR No. 221/06, PS Ambedkar Nagar, U/s­ SC No. 66/12 State Vs Ranjeet etc. Page No. 10 of 54 25 Arms Act. On information that accused disclosed his involvement in the present case and was stated to be produced at Patiala House Courts he along with other staff went to Patiala House Courts and contacted the IO of this case SI Naresh Kumar who handed over to him the relevant papers including disclosure statement of accused Ranjit Mark X, rukka Mark 19/C, copy of FIR Mark X1, seizure memo and sketch of the case property Mark 19/B and Mark 19A and statement of witnesses recorded in that case. He conducted inquiry from the SI regarding the facts of the case and moved an application Ex.PW27/F seeking permission for interrogation and arrest of the accused. He then arrested the accused vide arrest memo Ex.PW10/B and also conducted his personal search memo Ex.PW10/C. He produced the court and obtained his police custody remand vide Ex.PW27/G. Accused pointed out the place of occurrence Ex.PW10/D and place of conspiracy Ex.PW10/E. On 12.04.2006 accused got recovered his clothes Ex.PW10/F which was stated to have stained with blood of the deceased. Accused was further interrogated who revealed that one Shammi can tell about the address of the person who had supplied the weapon of offence. He on inquiry told name and address of accused Chander Shekhar. On 13.04.2006 at the instance of accused Ranjit, IO arrested the accused Shyam Singh and Ram Singh from Dakshin Puri Ex.PW10/H and Ex.PW10/G respectively and conducted personal search memo Ex.PW10/K and Ex.PW10/J respectively. Both accused were interrogated vide memo Ex.PW10/M and Ex. PW10/L. On 14.04.2006, IO at the instance of accused Ranjit and witness Shammi Kumar arrested accused Chander Shekhar Ex.PW4/A, conducted personal search memo Ex.PW4/B , recorded disclosure statement Ex.PW23/A. On 28.04.2006 he got the exhibits of this case deposited at FSL, Rohini through Ct. Ved Pal and proved on record Ex.PW27/H, Ex.PW27/J, Ex.PW27K. On 03.06.2006 he arrested accused Inderjeet at the instance of secret informer from Sector­7, Bus Stand, Opposite SC No. 66/12 State Vs Ranjeet etc. Page No. 11 of 54 Som Vihar vide Ex.PW7/A, conducted personal search Ex.PW7/B, recorded his disclosure statement Ex.PW27/L. He recorded the statement of all the witnesses who joined the proceedings during the course of investigation. He also took the draughtsman at the spot and got prepared the scaled site plan Ex.PW26/A. He in his examination in chief deposed that he mentioned the wrong FIR 221/06 pertaining to the arrest of the accused Ranjit however, the correct number of FIR is 231/06. Case property was identified by the witness in the court and has also duly proved all the exhibits in this regard.

Formal Witnesses:­

13. PW­5 is Assistant Sub­Inspector Ajit Singh. He deposed that on 06.04.2006, on the direction of IO, he took six photographs of the place of occurrence. Photographs Ex.PW5/A1 to Ex.PW5/A6 and negatives Ex.PW5/B (collectively) were duly proved on record.

14. PW­6 Assistant Sub­Inspector Etwaoraon. He deposed that on 06.04.2006, he was on emergency duty and on receipt of DD No.30­A, he along with Constable Satbir reached at A­48, Ambedkar Basti, R. K. Puram, where blood was found outside the house and common toilets. PW­6 deposed that Sub­ Inspector Attat Hussain recorded statement of Om Prakash and sent rukka through Constable Sanjeev Kumar. He deposed that Inspector B. P. Yadav reached at the spot, who took blood sample and blood earth control from outside the house as well as from outside the toilets and the same were sealed with the seal of BPY and seized vide memo Ex.PW6/A and Ex.PW6/B. PW­6 deposed that IO also seized the blood stained clothes of Rinku, Om Prakash and Neeraj vide memo Ex.PW3/C, Ex.PW6/C and Ex.PW6/D respectively and duly proved the same on record.

15. PW­7 is Head Constable Rajesh Kumar. He deposed that on SC No. 66/12 State Vs Ranjeet etc. Page No. 12 of 54 03.06.2006, he alongwith IO/Inspector B.P. Yadav, HC Ram Khiladi joined the investigation. He deposed that while they were present near Sangam Cinema, a secret information was received on the basis of which accused Inderjeet was arrested vide memo Ex.PW7/A and IO conducted personal search of accused vide memo Ex.PW7/B and all the memos have been duly proved on record.

16. PW­8 is Inspector Subhash Malik. He deposed that on 06.04.2006, at the instruction of Senior Officers, he had gone to Safdarjung Hospital, where he found that one Manoj Kumar s/o Sh. Om Prakash was 'brought dead' on the MLC No. C65871. He handed over the MLC to Sub­Inspector Attar Hussain, who also reached there for further action.

17. PW­9 is Sub­Inspector Atatt Singh. He deposed that on 06.04.2006, on receipt of DD No. 31­A (Ex.PW9/A), he alongwith Constable Sanjeev reached at Jhuggi No. A­49, Ambedkar Nagar Basti, R. K. Puram, where in front of jhuggi blood was lying and regarding injured it was found that injured was taken to Safdarjung Hospital. PW­9 deposed that he went to Safdarjung Hospital, where SI Subhash Malik met him and handed over to him MLC No. C­65871 of Manoj, who was brought dead in the Hospital. He deposed that Sh. Om Prakash, father of deceased met him in the Hospital and he recorded statement of Om Prakash (Mark­X). PW­9 deposed that on the statement of Om Prakash, he prepared tehrir (Ex.PW9/B) and gave rukka to Constable Sanjeev. He is the witness to the seizure memo Ex.PW6/A of sample of blood, earth control and concrete stained with blood . He is also a witness to the seizure memos of clothes of Neeraj, Om Prakash and Rinku, which is Ex.PW3/C, Ex.PW6/C and PW6/D. He was cross examined by Learned Defence Counsel. In his cross examination, he deposed that he did not record statement of any other witness except Om Prakash and has duly proved all the memos in this regard.

18. PW­10 is Sub­Inspector Harender. He deposed that on 08.04.2006, he SC No. 66/12 State Vs Ranjeet etc. Page No. 13 of 54 joined the investigation with IO/Inspector B. P. Yadav. He deposed that the postmortem on the dead body of the deceased was got conducted and IO had seized four sealed pullandas prepared by the Doctor alongwith sample seal vide memo Ex.PW10/A. PW­10 deposed that on 10.04.2006, he alongwith IO had gone to Patiala House Courts, where accused Ranjeet had been produced in the Court in another case. He deposed that IO sought permission from Learned MM to interrogate the accused, which was granted and after interrogation, accused Ranjeet was arrested vide arrest memo Ex.PW10/B and his personal search conducted vide memo Ex.PW10/C. PW­10 testified that IO prepared pointing out memo (Ex.PW10/D) of the place of incident i.e. near Jhuggi No. A­49 and also the place near R. K. Tailors, where accused Ranjeet was waiting for deceased Manoj at the instance of accused Ranjeet. IO also prepared pointing out memo (Ex.PW10/E) of place i.e. Jhuggi No. A­54, where accused Ranjeet alongwith other accused persons namely Inderjit, Shyam Singh, Rattan Singh & Ors. had finally planned and conspired to commit murder of Manoj soon before his death on 06.04.2006 at instance of accused Ranjeet. PW­10 also testified that on 12.04.2006, accused Ranjeet point out H. No. B­68, Dakshin Puri from where under a bed, he got recovered the clothes, which he was wearing at the time of incident and IO seized the same in a pullanda vide seizure memo Ex.PW10/F. He further deposed that on 13.04.2006, while they were searching for another accused persons in the area of Dakshin Puri, accused Ranjeet pointed out Rattan Singh and Shyam Singh being his co­accused, who were arrested vide memo Ex.PW10/G and Ex.PW10/H and their personal search was conducted vide memos Ex.PW10/J and Ex.PW10/K and IO also recorded their disclosure statements vide memo Ex.PW10/L and Ex.PW10/M. In the Court on 28.03.2011, witness pointed out towards accused Inderjit as Rattan Singh and then again witness pointed out towards accused Rattan Singh (Correctly). The witness duly proved all the memos.

SC No. 66/12 State Vs Ranjeet etc. Page No. 14 of 54

19. PW­15 is Sh. Vijay. He deposed that he did not know anything about this case. He deposed that he know accused Rattan Singh, but he did not know four other accused persons. He was cross examined by Learned Addl. PP. In cross examination, he denied all the suggestions put to him by the Learned Addl. PP for the State.

20. PW­12 Inspector Udham Singh, Incharge Mobile Crime Team. He deposed that on 06.04.2006, he alongwith photographer HC Ajit Singh and other police officials reached at the spot. He inspected the site and Head Constable Ajit singh (Photographer) took photographs of the spot from difference angles. His report is Ex.PW12/A.

21. PW­13 is Constable Satbir. He deposed that on 06.04.2006, at about 06:45 pm, Duty Officer gave him a DD Entry No. 30­A, which he took to Ambedkar Basti and gave to Head Constable Itwaoram and remained at the spot till 10:30 pm or 11:00 pm.

22. PW­14 is Head Constable Vedpal. He deposed that on 28.04.2006, he had taken fourteen sealed pullandas to the office of FSL, Rohini vide RC No. 164/21 and deposited the same. Copy of RC is Ex.PW14/A and proof of receipt is Ex.PW14/B which is duly proved by PW­14.

23. PW­17 is SI Bishen Lal who deposed that DD No. 30 was recorded by him on the information from PCR regarding shooting of one Manoj/deceased on his head and he was being taken to Safdarjung Hospital and proved the same vide Ex.PW17/A. He recorded DD No. 31A and proved the same vide Ex.PW9/A(OSR). He registered the FIR and proved the copy of FIR Ex.PW17/B and endorsement on the tehrir Ex.PW17/C.

24. PW­18 is Ct. Sanjeev Kumar he along with SI Attar Hussain had gone to Ambedkar Basti. Several public persons were present there and one HC Itwa Ram and Ct. Satbir were also present there. Blood was lying on the spot. Injured SC No. 66/12 State Vs Ranjeet etc. Page No. 15 of 54 was reported to have gone to Safdarjung Hospital so he along with SI Attar Hussain reached Safdarjung Hospital where IO prepared tehrir and gave him the same which he took to PS R.K. Puram and gave it to Duty officer who registered the FIR. He then obtained copy of FIR and original tehrir and gave to Inspector B.P. Yadav at the spot.

25. PW­19 is ASI Ashok Kumar who deposed that he along with HC Hawa Singh, HC Manoj , Ct. Jai Prakash were patrolling at Pushpa Bhawan Chowk. At the instance of informer, one person was apprehended whose name was found to be Sonu. From his left dub one country made katta of 0.315 bore was recovered and from his jeans pant right pocket 03 empty cartridges were recovered. On checking the said katta, one live cartridge was found in it. Sketch Mark PW19/A was prepared, katta and cartridges were seized vide seizure memo Mark PW19/B, Tehrir Mark PW19/C was prepared by him and on the basis of which FIR was registered. Further investigation was done by SI Naresh. Accused Ranjeet was correctly identified by the witness in the court.

26. PW­20 is HC Ram Khilari who deposed that on 03.06.2006 he along with HC Rajesh, Inspector B.P. Yadav reached at Sangam Cinema. An information was received by the IO that at Sector­7, DTC Bus Stand, one Inderjeet involved in this case was waiting for somebody. Public persons were requested by the IO to join but nobody agreed. They reached at the Bus stand and apprehended the said person namely Inderjeet. He was arrested and his disclosure statement was recorded by the IO. Accused has been correctly identified by the witness in the court. However, witness has stated that he is not able to recollect the said Inderjeet due to lapse of time.

27. PW­21 is HC Shyam Lal who deposed that on 28.04.2006 he was working as MHC(M) at PS R.K. Puram. On that day, he handed over the exhibits of this case to Ct. Ved Pal for depositing the same in FSL Rohini vide RC No. SC No. 66/12 State Vs Ranjeet etc. Page No. 16 of 54 164/21, copy of which is Ex.PW14/A.

28. PW­22 is Ct. Sanjay Kumar who deposed that on 06.04.2006 he was posted at PS R.K. Puram. Duty officer had given him copies of FIRs for delivering the same to senior officers and he had delivered the copies of FIRs to Joint CP, DCP and to Ilaka Magistrate.

29. PW­23 is Inspector Praveen who took the accused Ranjeet along with witness Shammi, Ct. Satpal and Ct. Suraj to village Mohammad Pur Alam in Bulandshahar, UP in search of accused Chander Shekhar, got the Katta obtained by Shanu Khan, on secret information he along with other police officials arrested the accused Chander Shekhar and duly proved Ex.PW4/A, Ex.PW4/B and Ex.PW23/A. Witness has correctly identified the accused Chander Shekhar in the court.

30. PW­24 is Inspector Naresh Kumar, Investigating officer who deposed that ASI Ashok Kumar had apprehended one Ranjeet and after registration of the case, investigation of the case was taken over by him. He had collected the documents and pullandas from ASI Ashok. He recorded the statement of witnesses and accused Ranjeet was arrested who was correctly identified by the witness in the court. On interrogation accused Ranjeet had disclosed that he had shot one Manoj on 06.04.2006 from the same katta which was recovered from him. Exhibits were sent to FSL and after investigation, charge sheet was filed in the court.

31. PW­26 is SI Madanpal who deposed that on 22.06.2006 at request of IO/Inspector B.P. Yadav, he visited the spot with IO in front of at Jhuggi No. A­ 49, Ambedkar Basti, Sector­1, R.K. Puram. Thereafter, he inspected the spot and took some rough notes and measured the spot. He then prepared a sketch site plan on the basis of rough notes Ex.PW26/A and handed over the same to IO. Rough notes were destroyed by him after preparing the scaled plan.

SC No. 66/12 State Vs Ranjeet etc. Page No. 17 of 54

32. PW­28 is Ms. Chetna Bhardwaj, UDC who has brought the summoned record of case FIR No. 231/06 PS Ambedkar Nagar U/s­ 25 Arms Act and proved on record Ex.PW28/A(OSR). She also stated that there is a seizure memo dated 09.04.2006 , disclosure statement of accused Ranjit dated 10.04.2006, arrest memo of accused Ranjit dated 10.04.2006, personal search memo of accused Ranjit dated 10.04.2006, FSL report running into three sheets dated 09.06.2006 (OSR).

33. PW­29 Inspector Man Mohan who deposed that on 10.01.2011 he received order of Hon'ble Court of Sh. D.K. Sharma, Ld. ASJ to inspect the spot where allegedly the conspiracy was hatched. On 08.02.2011 he conducted investigation and Sh. J.S. Kushwaha, counsel for accused had also accompanied him for spot inspection. He had filed supplementary charge sheet Ex.PW29/A. He had concluded in further investigation that there was sufficient space in the said jhuggi of accused Ranjit to hatch a conspiracy easily and the same can also be heard by anybody passing near the window of the spot. Further it could not be established whether the spot of hatching of conspiracy in this case was separated in two portions at the time of offence or otherwise. Photographs taken from digital camera and the same are Ex.PW29/1 to Ex.PW29/15. However, presently there was a wall inbuilt window impression, in the wall which was present to divide the portions. On inspection of the spot, there was nothing to suggest that the alleged conspiracy could not be hatched practically at the site i.e. lane adjoining to the house which the witness Raman claimed to be the spot of hatching conspiracy. SI Mahesh had inspected the aforesaid site on 08.02.2011 and prepared site plan and the same was handed over to him which he filed with the supplementary charge sheet.

34. PW­30 is SI Mahesh Kumar who deposed that on 08.02.2011 on asking by Inspector Manmohan he accompanied him, his staff to Jhuggies SC No. 66/12 State Vs Ranjeet etc. Page No. 18 of 54 Ambedkar Basti, Sector­1, R.K. Puram where they met Raman. He took rough notes and measurement of Jhuggi Ratan Singh at the instance of said Raman. On 09.02.2011 he prepared the scaled site plan Ex.PW20/A and gave it to Inspector Manmohan. Later he destroyed the rough notes and measurement. Medical Witnesses:­

35. PW­16 is Dr. Kishan Kumar. He deposed on behalf of Dr. Avinash Prakash. He placed on record MLC No. C/65871 (Ex.PW16/A) of Manoj, 26 years male prepared on 06.04.2006 by Dr. Avinash Parakash and duly proved the same. He stated that patient was declared brought dead at 6.45 PM.

36. PW­25 is Dr. Gaurav Vinod Jain who deposed that he conducted the postmortem of the deceased body and proved his report Ex.PW25/A. Statement and Defence of accused persons :­

37. Statement of accused under Section 313 Cr.P.C was recorded wherein the accused denied the case of the prosecution and stated that it is a false case made by the complainant. Accused Ranjit stated that police in connivance with the witnesses falsely implicated him in the present case as his father had lodged an FIR against the complainant and his sons under section 308/34 IPC and since that time they were having enmity with him and his family. He stated that he was lifted from his house by Inspector Brahm Prakash Yadav and falsely implicated in the present case. Accused Inderjeet stated that he was lifted by the police from Village Kanoja in Muradnagar, District Ghaziabad. He had gone to that place to meet his colleague Brahm Pal for borrowing money for the operation of his wife and falsely implicated in this case. Accused Chander Shekhar stated that on 13.04.2006 three or four police officials came to his village and brought him to PS R.K. Puram where one Shammy, Vijay and one Mohmaddan person was found sitting. He was also made to sit in the police station and was asked to sign on a SC No. 66/12 State Vs Ranjeet etc. Page No. 19 of 54 paper. Accused Shyam Singh stated that as complainant of this case and his sons were accused persons in case under section 308/34 IPC and he also sustained injuries in that case and that is why the complainant party having the enmity with him and his family, falsely implicated him. Accused Ratan Singh stated that he was lifted by the police from H.No. 20/68, Dakshin Puri and was taken to the police station. He was residing on the first floor of the said house as tenant of Sh. Nepal Singh. In jhuggi A­55, Ambedkar Basti a tenant namely Gangawati was residing who was given the said jhuggi about 6 months prior to this incident and she was evicted by the police forcibly and the jhugii was locked by the police. He left the said jhuggi after the case was registered against the complainant party under section 308/34 IPC and due to fear being attacked by the complainant party, he had left jhuggi and started living in the rented accommodation. The police did not recover any cloth from H.No. 20/68, Dakshinpuri, New Delhi. Accused persons further stated that they wish to lead defence evidence.

38. DW­1 is Sh. Surender Kumar who stated that he is working as private draughtsman. On the asking of one Ms. Rashmi he had gone to Ambedkar Basti, sector number he does not remember at R.K. Puram, New Delhi on 5 th or 6th month of 2008, date he does not remember. He stated that Rashmi showed him the location and he prepared the site plan Ex.DW1/A of A­54.

39. DW­2 is Sh. Nepal Singh who had proved his voter I­card Ex.DW2/A. He stated that he know accused Ratan Singh who came in his house as tenant in February, 2006 and started living with his wife and son. He had let out one room at first floor to Ratan Singh. Relatives of accused had asked him to let out the room to Ratan Singh as his premises were under construction. Ratan Singh resided in the said tenanted premises for four months. He stated that on 06 and 07 April, 2006 he was on his duty in AIIMS when police came to his house. At 10 AM on 07.04.2006 four police officials came , they got put one lock of him over SC No. 66/12 State Vs Ranjeet etc. Page No. 20 of 54 the lock of accused Ratan Singh on the door of the tenanted room of accused Ratan Singh.

40. I have heard the Ld. Defence counsel for the accused and Ld. APP for state and have carefully perused the record.

Arguments of Ld. Defence Counsels for accused persons:­

41. It is argued by the counsel for accused except accused Ranjeet that the present case relates to the murder of the deceased Manoj by the accused Ranjeet and one other accomplice and as such as per the case of the prosecution the conspiracy to commit murder of deceased Manoj was hatched at the jhuggi of accused Shyam Singh and Rattan Singh by the accused persons. As per the allegations of the prosecution katta was procured by accused Ranjit from accused Chander Shekhar.

42. As far as accused Chander Shekhar is concerned it is argued that as per the prosecution case his name was disclosed by the accused Ranjeet in his disclosure that one Shammi can disclose the whereabouts of the accused Chander Shekhar from whom Ranjeet procurred the Katta from Bulandshehar which is allegedly used for murdering the deceased Manoj. It is argued that so far as PW Shammi is concerned he is examined as PW­4 however, he has turned hostile and has not supported the case of the prosecution. He even denies that he know accused Chander Shekhar and has also denied his signatures on Ex.PW4/A, B and C. It is argued by the counsel for the accused that infact PW Shammi had given katta to accused Ranjeet but the IO had left him and in his place involved accused Chander Shekhar in this case. It is also argued that in the disclosure statement of accused Ranjeet there is no reference to the name of PW Shammi or accused Chander Shekhar. As per his disclosure he and his father Inderjeet took Katta from Bulandshehar. IO states that he had arrested the accused Chander Shekhar at SC No. 66/12 State Vs Ranjeet etc. Page No. 21 of 54 the instance of accused Ranjeet. It is argued that PW­23 states that he arrested accused Chander Shekhar at the instance of PW Shammi and also given the version that he had gone to Bulandshehar, UP in search of accused Chander Shekhar. On the other hand, PW­27 is silent as to whose incident accused Chander Shekhar was arrested. There are no signatures of PW Shammi on the disclosure of the Chander Shekhar. As per the cross examination of PW­27 he has stated that he had met PW Shammi on 12.04.2006, 13.04.2006 and 14.04.2006. It is stated that as per his statement no statement of PW Shammi was recorded on 12.04.2006 and 13.04.2006. It is argued that from the case diary the court can confirm if the IO had met PW Shammi on the alleged date of 12.04.2006 and 13.04.2006. It is also argued that the statement of PW­27 to the effect that 8 to 10 persons had gone to Bulandshehar in search of accused Chander Shekhar in a car which was not a SUV, makes his statement inherently improbable as a car cannot accommodate 8 to 10 persons. Further, as per the statement of PW­27 in his cross examination he had not made any enquiries from the people in the village of Chander Shekhar then how he visited his place of residence is not made clear. Further, as per the statement of PW­27 they had gone to the village of Chander Shekhar on 13.04.2006 but PW­23 does not speak about the same. It is also argued that the fire arm is not produced in the court nor the IO had taken any sanction under section 39 Arms Act to prosecute the accused hence, it is argued that accused Chander Shekhar is liable to be acquitted as the prosecution failed to prove that it was the accused Chander Shekhar who had provided the weapon of offence i.e. Desi Katta to accused Ranjeet.

43. So far as the other accused persons are concerned it is argued that only witnesses to prove the conspiracy to commit murder of the deceased Manoj, by accused Inderjeet, Shyam Singh, Ranjeet, Rattan Singh and one other person whose identity was not known is PW Raman but he is an interested witness being SC No. 66/12 State Vs Ranjeet etc. Page No. 22 of 54 the brother of the deceased. It is also argued that no site plan of the jhuggi of Ratan Singh where the conspiracy is allegedly hatched is prepared by the IO. No witness is examined by the prosecution to prove that accused Rattan Singh lives in Jhuggi A­55. As per the statement of IO, PW Raman had taken them to the Jhuggi where the alleged conspiracy was hatched and overheard by him while he was passing through in front of the said Jhuggi but no site plan of the Jhuggi was prepared whether a person can overhear the talks of conspiracy from outside the Jhuggi is also doubtful. As per the statement of PW Neeraj, all the Jhuggies have common wall at their back side. PW Neeraj and all other witnesses states that there is no space behind the Jhuggi to give any opportunity to witness PW Raman to hear the conspiracy. It is stated that in the present case on the application of accused Inderjeet, Sh. D.K. Sharma, the then Ld. ASJ had passed an order on 10.01.2011 for further investigation of the case with regard to the Jhuggi in which the conspiracy to commit murder of the deceased was hatched by the accused persons. The SHO had filed the supplementary charge sheet and the report is proved by him while appearing as PW­29 and the site plan prepared by PW­30 and attached with this supplementary charge sheet is proved by PW­30. It is stated that admittedly there is previous enmity between the parties as the accused Inderjeet, his son accused Ranjeet, accused Shyam Lal maternal uncle of the complainant side are all relatives of the complainant party and all of them are the witnesses in a case under section 308 IPC which is registered against the complainant and his sons. Hence, to get rid of that case the accused have been falsely implicated by the complainant party.

44. It is argued that as per the case of the prosecution accused Ranjeet had got recovered the blood stained clothes from his Jhuggi which he was allegedly wearing at the time of murdering the deceased Manoj. To prove recovery, prosecution has made one witness PW­15 Vijay who is an independent SC No. 66/12 State Vs Ranjeet etc. Page No. 23 of 54 witness however PW Vijay has also turned hostile. The clothes were recovered from B­68, Dakshinpuri, New Delhi which house is of accused Rattan Singh and not of accused Ranjeet. No other witness from the said four storey building was asked by IO to become a witness of the recovery.

45. So far as accused Ranjeet is concerned it is argued that PW­2 Aas Mohd is hostile in this case. PW Neeraj is the real brother of the deceased and PW­11 Rinku who is the son of maternal uncle of the deceased and both the witnesses are interested witnesses and should not be believed. It is argued that in DD No. 30 there is no reference as to how the incident had happened. It is also argued that in the MLC of the injured earlier the name of the deceased was given by PW Neeraj as that of accused Ranjeet and thereafter, the correction was made in the name of deceased Manoj in the MLC which show that PW Neeraj was not at the place of incident as alleged by him and was not aware as to his brother had died in the incident and that is why a wrong name is given in the MLC which was later on got corrected. In the DD entry there is no name of Ranjeet. It is also argued that the maker of the FIR PW Om Prakash, who is the father of deceased, had already died and is not examined in the court. PW Aas Mohd had turned hostile and other witnesses are interested witnesses. As per the cross examination of PW Neeraj he heard the noise of some cracker (Patakha) and then came out which show that he was not an eye witness. As per the statement of PW Neeraj he ran after accused Ranjeet for 50­60 steps but the other eye witness PW Rinku shows that they ran at about 15­20 steps. There are also contradictions on the point of age of the accused Ranjeet in the cross examination of the witnesses. There is also contradiction in their statements if they had gone straightway to the hospital or to the police station from the spot after the incident had happened. As per the statement of IO he recorded the statement of PW Rinku and Neeraj on the spot but both of them have stated that their statements were recorded at the SC No. 66/12 State Vs Ranjeet etc. Page No. 24 of 54 hospital. As per the statement of PW Neeraj he has admitted that the back wall of the Jhuggi where the conspiracy have taken place is common. PW Rinku says that there were 2­3 boys with accused Ranjeet at the time of incident but PW Neeraj says that there was one boy. On the other hand, PW Om Prakash though not examined in the court but in the rukka had spoken about the presence of one more person with accused Ranjeet at the time of incident. As per the statement of PW Neeraj, deceased was taken to the police station but the prosecution case is that deceased was taken to the hospital straightway. PW Rinku in his statement before the court could not tell the name of the persons who told them that his brother is looking for them.

46. All the witnesses have deposed differently on the point of recording of the statement of deceased Om Prakash, maker of the FIR. PW Raman says that his statement was recorded in the hospital. PW­6 says that his statement was recorded on the spot. PW­9 says that his statement was recorded in the hospital. Similarly, PW­11 says that the statement was recorded in the police station though, PW­27 says that he recorded the statement at the spot at about 11­11.30 PM.

47. It is also argued that Katta is not produced in this court from which the gun shot was fired. The deformed bullet which was recovered from the body of the deceased is not tallied with the fire arm allegedly recovered from the accused Inderjeet by CFSL's experts and the prosecution has failed to prove that the fire arm which was recovered from accused Ranjeet in other FIR No. 231/06, PS Ambedkar Nagar, is the same fire arm which is used in this case by the accused to cause gun shot injury.

48. On the other hand, Ld. counsel for accused Ranjeet apart from filing of written arguments has also advanced oral arguments. It is argued that from the statement of PW­1 Raman number of the Jhuggi as A­54 is not duly proved. Further as per the statement of PW­1 he did not inform anybody after hearing the SC No. 66/12 State Vs Ranjeet etc. Page No. 25 of 54 conspiracy. The other unknown boy who was accompanying accused Ranjeet was never arrested in this case. Statement of PW­1 was recorded after 2­3 days of the incident without there being any sufficient explanation. As per the statement of PW­1, his duty hours are from 9 AM to 4 PM though the shop at which he works closes by 9 PM in the night. The duty hours as putforth by PW1 does not appear convincing and makes the presence of PW­1 near the Jhuggi of PW Shyam Singh suspicious. It is also argued that PW­1 came in picture after 3 days of the incident. Admittedly, previous enmity between the parties and motive of false implications by PW­1 cannot be ruled out. It appears that PW­1 is a planted witness as he did not inform anybody about the conspiracy which is against the tendency of human nature. PW­3 speaks about the shot on the neck which is negated by the postmortem. In MLC wrong name of deceased is given making the presence of PW­3 on the spot doubtful. It is also argued that infact accused had taken the deceased to the hospital and during that time the blood might have fallen on the clothes of the accused. It is also argued that there is no evidence collected by the prosecution to prove motive. The Katta is not shown to the doctor who had conducted the postmortem of the deceased. No evidence is collected to connect the bullet with the Katta shown to be recovered from the accused Ranjeet. As per the statement of PW­3 he went to the police station and then to the hospital but the FIR was not registered on his version. From the statement of PW­3 if he has gone to the police station then admittedly, he had not removed the deceased to the hospital and the statement of such an eye witness who has neither informed the police nor taken the injured to the hospital must be believed with caution.

49. It is also argued by the counsel for accused Ranjeet that after the incident no hue and cry was raised by the eye witness or maker of the FIR nor any complaint was made to the police nor any steps were made to save the deceased and as such, the prosecution story becomes doubtful. Ld. counsel for accused has SC No. 66/12 State Vs Ranjeet etc. Page No. 26 of 54 cited the case of Naveen Kumar Ahuja Vs State of NCT report as Manu/D/3363/2012 and argued that the case is clearly covered within four corners of this case referred to Para No.10 of this case. He has also cited Liyakat Hussain Vs State 2009 (ILR 2 Delhi 599). It is also argued that so far as disclosure statement of the accused Ranjeet is concerned the same is not admissible on the point of motive. Only that part which lead to any recovery is admissible in evidence in view of section 27 of Indian Evidence Act. Similarly, as per the case of the prosecution the Katta was firstly recovered from accused Ranjeet in another case of PS Ambedkar Nagar thereafter disclosure was recorded in this case. The recovery is not in pursuance of the disclosure statement made in this case and as such the same is not admissible in law. The recovery of blood stained clothes as effected from accused Ranjeet was after four days. It is against the human nature as to why the accused kept the blood stained clothes with him after the incident. The recovery becomes doubtful. Perhaps sample blood of the deceased was with the IO who put it on the clothes of the accused so as to falsely frame him in this case. Since the eye witness has also stated that he did not find any blood on the clothes of accused Ranjeet at the time of incident.

50. To rebut this argument, Ld. Counsel for complainant and the APP has argued that judgment of Naveen Kumar is not applicable to the facts of this case since in this case the father of the deceased who was accompanying the deceased at the time of incident made the FIR on the same day. The accused Ranjeet was arrested by the special staff of PS Ambedkar Nagar and was later on transferred in this case and his disclosure was recorded by the special staff of that case. In the present case the prosecution has proved the two fold motive/genesis of quarrel and the serological report of CFSL clearly prove that the clothes of the accused contain blood of the deceased and as such the case of Naveen is distinguishable. The case of Liyakat Ali is also distinguishable as in this case the recovery is not SC No. 66/12 State Vs Ranjeet etc. Page No. 27 of 54 from a public place but from the house of the co­accused and the same is within special knowledge of the accused and the place is such where the public persons have no access. In the case of Liyakat Ali the recovery was effected from public place where public persons can easily go making the recovery doubtful which is not the case here. Moreover, the case of Liyakat Ali is based on circumstantial evidence but in the present case the case is based on the direct evidence of the eye witness. Counsel for accused except Ranjeet has also cited the following judgments :­

1. Ramesh Vs State etc. 2013 (1) JCC 468

2. Surender Kumar Vs State of Delhi 2013 (3) JCC 452.

Counsel for complainant has cited the following judgments:­

1. Ganga Bhawani Vs Raja Pati Venkat Raiddy Crl A No. 84/11.

2. State of Rajasthan Vs Dhool Singh AIR SC 1264.

3. Gurjinder Singh Vs State of Gujarat 2011 SC 972.

4. Jai Shree Yadav Vs State of UP AIR 304 SC 344.

5. Akhtar and others Vs State of Uttarakhand JT (2009)(5) SC 408. Arguments of Ld. APP for state and counsel for complainant:­

51. It is argued that in this case accused Ranjeet was arrested by the police of PS Ambedkar Nagar under section 25/54/59 Arms Act after two days of the offence in this case and the Katta which was used by the accused Ranjeet for murdering deceased Manoj was recovered from his possession by the police of PS Ambedkar Nagar. Accused Ranjeet was tried in the said court of PS Ambedkar Nagar and has been convicted in the said case. It is stated that the investigating officers and the police officials in the present FIR and in the FIR No. 231/06 PS Ambedkar Nagar under section 25/54/59 Arms Act are different and there is no question of any false implication by the police officials. It is also SC No. 66/12 State Vs Ranjeet etc. Page No. 28 of 54 argued that it is not a blind murder case. The FIR is registered by the eye witness PW Om Prakash, father of the deceased, who was accompanying the deceased at the time of incident. It is also argued that accused Shyam Singh has admitted the enmity between the parties. It is stated that Fard Nishandehi of the Jhuggi has been prepared by the IO. It is argued that the IO of FIR No. 231/06, PS Ambedkar Nagar is examined in this case and the statement made by the accused in the said case may be treated as confession in this case and is not hit by section 25 of Indian Evidence Act as the IO of the said case is not a person in authority in this case. Ld. APP for the state has referred the authority of State of Punjab Vs Palwinder Kaur. It is argued by the Ld. APP for the state that arguments in this case are based at two points:­

1) Medical evidence.

2) Ocular evidence.

52. It is argued that motive is two fold in this case. First, deceased Manoj was having illicit relations with the wife of accused Shyam Singh due to which she was residing separately from accused Shyam Singh. Secondly, complainant and his family members had a scuffle with the accused party one year back and on account of said incident an FIR under section 308/34 IPC is registered against the complainant and his family members and as such due to the said enmity in which the complainant and his family had caused injury to the father of the accused Ranjeet namely Inderjeet, the accused party was willing to take revenge from the complainant party and as such, deceased Manoj has been killed. It is also argued that the FSL result is also proved in this case and as per the FSL result the blood group of deceased had matched with the blodd found on the clothes of the accused Ranjeet. It is also stated that prosecution has also examined the witness who has filed on record the judgment in the case FIR No. 231/06 PS Ambedkar Nagar wherein accused Ranjeet was convicted under section SC No. 66/12 State Vs Ranjeet etc. Page No. 29 of 54 25/54/59 Arms Act for recovery of the weapon .315 Bore Katta from his possession along with live cartridges. The FSL result with regard to the ballistic opinion in respect of deformed bullet which was recovered from the body of the deceased shows that deformed bullet corresponds to the bullet of 8 mm / .315 Inch cartridge which corresponds to the weapon which was recovered from the possession of accused Ranjeet who was arrested in the case of FIR No. 231/06, PS Ambedkar Nagar after two days of the incident of this case. The incident of this case had happened on 06.04.2006 and the accused Ranjeet was apprehended with the Katta on 09.04.2006 by the police officials of PS Ambedkar Nagar. It is also argued that clothes of the eye witness PW Neeraj, Rinku and Om Prakash were also having same blood group i.e. 'O' which was of the deceased and it also proves the presence of all the eye witnesses on the spot and also proves the fact that PW­ 3, PW­11 and PW Om Prakash, maker of the FIR had taken the deceased to the hospital and were present at the spot. It is stated that admittedly the weapon of offence is not recovered in this case but the same was recovered in other FIR No. 231/06, PS Ambedkar Nagar and the Katta and the Cartridges recovered in the said case matched with the cartridge in this case. As per the report of FSL expert, in the said case of PS Ambedkar Nagar the weapon was in working order in the said case. The disclosure statement of accused Ranjeet is also there that he used the said weapon in this case, is also recorded. The bullet which was recovered from the body of the deceased Manoj was not sent to the FSL as the jacket (khoka) was not recovered and there was nothing to match the same with in the absence of weapon or the jacket. But the FSL result shows that bullet has the same bore as recovered from the Katta recovered by accused Ranjeet in the case of PS Ambedkar Nagar.

53. So far as ocular evidence is concerned PW­1 has specifically deposed that he has heard the conspiracy between all the four accused whose SC No. 66/12 State Vs Ranjeet etc. Page No. 30 of 54 voices were admittedly familiar with him as accused Inderjeet and Ranjeet are his relatives. The window was embedded on the back wall of the Jhuggi and there is a gali behind the Jhuggi through which voice can be heard from PW­1. As per the statement of PW­1 he heard the conspiracy at about 5 PM which was executed at 6 PM. PW­1 specifically said that he can identify the four persons who were also there amongst the conspirators. From the statement of PW­1 it is clear that there is not a long time gap between the hatching of conspiracy and the execution thereof. PW­1 in his cross examination as admitted that there is a gali and a window in the Jhuggi. So far as the cutting in the name of the deceased Manoj in his MLC is concerned, PW­3 in his statement has sufficiently explained as to how that same has occurred and how the correction was made on the same day. It is also argued that a suggestion is put to PW­11 Rinku that at the time of incident only the accused Ranjeet was there and nobody else was there. This suggestion is an admission on the part of the accused Ranjeet that he was involved in the incident. So far as the recovery of weapon in FIR No. 231/06, PS Ambedkar Nagar is concerned PW­28 UDC has produced the copies of the entire file along with judgment and the same can be taken into evidence. PW­27 IO has proved disclosure statement made by the accused Ranjeet and the recovery of clothes at his instance, weapon in other case. Except incriminating part in the disclosure, the entire disclosure statement of the accused is admissible under Indian Evidence Act in view of the judgment of State Vs Balwinder Kaur. On the application of accused Inderjeet the court has passed an order directing the SHO to make further investigation with regard to the Jhuggi where the alleged conspiracy has taken place. SHO PW29 has duly proved the report given by him. He is an independent witness and in not connected with this case. From his report it is clear that the accused had partitioned the jhuggi of accused Shyam and Rattan Singh and thereafter moved an application in the court to show that in a small place the SC No. 66/12 State Vs Ranjeet etc. Page No. 31 of 54 conspiracy cannot be hatched. However, the report of PW9 negatives the said submission. It is argued that from the statement of eye witness, PW­1 witness to the conspiracy, FSL results, Postmortem report of the deceased and the statement of the police officials clearly prove the offence against all the accused and as such they be convicted.

Conclusion:­

54. The present case is a case of direct evidence of murder of deceased whereby as per the case of the prosecution accused Ranjeet along with one other accomplice (who is not arrested) had caused the death of deceased Manoj by means of a gun shot injury on his head and he is charged for murdering deceased Manoj where as the other accused namely Shyam Singh, Inderjeet, Rattan Singh including Ranjeet are charged for committing conspiracy to commit offence of murder and the accused Chander Shekhar is charged for providing the fire arm to accused Ranjeet by which deceased Manoj was murdered.

Cause of Death­ Medical Evidence:­

55. As per the postmortem report Ex.PW25/A of the deceased Manoj a fire arm entry wound 1 x 1 cm was present on the right side of the occipital area with singeing of hair and charring of skin. No gas tearing and no abrasion collar was present. The injury had gone through the occipital bone and the right lobe of cerebellum. It had further gone through the temporal bone and the right middle ear and made an exit through the facial bones of the right side. The injury had stopped in the subcutaneous tissues beneath the right eye from where a deformed jacketed bullet was recovered. A piece of the jacket was also recovered at the point of entry in the occipital bone. On internal examination, the occipital bone showed an entry hole on the right side. The cerebellum and the left parietal lobe showed damage due to expansive forces. Internal organs were all congested. Rest SC No. 66/12 State Vs Ranjeet etc. Page No. 32 of 54 was unremarkable. The following items were preserved in this case:

1. the bullet with its jacket and the piece of jacket.

2. Blood on gauze.

3. Clothes.

4. Skin margins around the entry wound.

As per this report Ex.PW25/A, duly proved by Dr. Vinod Jain the cause of death was head injury due to a fire arm projectile fired from a close range.

56. The MLC of the deceased Manoj is also proved as Ex.PW16/A wherein the patient was declared brought dead at 6.45 PM by the concerned doctor. Hence, from the postmortem report and the MLC, the cause of death of the deceased is proved to be fire arm injury.

Legal Aspect:­

57. Now coming to legal aspect, in the scheme of Indian Penal Code, all murders are culpable homicide but not vice versa. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degree of culpable homicide. The first is what may be called culpable homicide of first degree. This is gravest form of culpable homicide which is defined in the Sec. 300 "Murder". The offence made punishable under first part of Sec. 304 falls in second category whereas offence of second part of Sec. 304 are the third category of culpable homicide. The acts done with the intention of causing death will always be murder as defined in 300(1) of IPC and it will be culpable homicide only if the act falls in any of exception of Sec. 300 IPC. It is pertinent to note that words "intention to cause death" is not an essential requirement of clause (2) or clause (3) of Sec. 300 IPC. For clause (2) the intention of causing the bodily injury coupled with the offender's knowledge of SC No. 66/12 State Vs Ranjeet etc. Page No. 33 of 54 the likelihood of such injury causing the death of the particular victim is sufficient to bring the killing within the ambit of this clause. Clause (3) of Sec. 300 deals with those cases where act is done with the intention of causing such bodily injury which are sufficient in ordinary course of nature to cause death. So, by this interpretation it can safely be said that the intention to cause death" is the essential ingredient of only clause (1) of 300 IPC whereas for clauses (2) and (3) the intention is not for causing death and rather it is limited to the intention to inflict bodily injuries. Thus for the cases falling in clause (1) the main emphasis is upon the acts done with the intention of causing death. For all 4 clauses of Sec 300 one proper illustration is given in IPC. For clause (1) the illustration (a) is given which simply says that A shoots Z with the intention to kill him, Z dies in consequence A commits murder. Similarly illustration (b) (c) & (d) are given for the remaining clauses i.e. Clauses (2), (3) and (4) of Sec. 300 IPC.

58. According to the rule laid down in Virsa Singh Vs. State of Punjab (AIR 1958 SC 465) even if the intention of accused was limited to the infliction of bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be of murder. To judge as to whether act was done with the intention of causing death, all the acts, utterances and circumstances will be counted together otherwise there will be no difference in cases falling in clause (1) and clause (3) of Sec 300. To clarify the position the discussion held in the House of Lords in R V. Moloney (All England Law Reports 1025 HL 1985) will be significant wherein the point of consideration was whether the accused was having the necessary intent either to kill or to cause really serious bodily harm. The following passage quoted from this judgment clarifies the position:

"In deciding the question of the accused man's intent, you will decide whether he did intend or foresee that result by reference to all the evidence, SC No. 66/12 State Vs Ranjeet etc. Page No. 34 of 54 drawing such inferences from the evidence as appear proper in the circumstances. Members of the jury, it is a question of fact for you to decide. As I said I think when I was directing you originally you cannot take the top of a man's head off and look into his mind and actually see what his intent was at any given moment. You have to decide it by reference to what he did, what he said and all the circumstances of the case. An intent may be an impulsive intent or it may be premeditated. Nobody has suggested in this case that there was that element of premeditation. What the prosecution have said is that when he pulled the trigger of that gun it must have been pointing at the deceased and that the accused knew that it was pointing at him, knew it was loaded and when he by a deliberate act pulled the trigger and fired the live barrel of that gun at his stepfather then, say the Crown, he must have intended at the very least to have caused him some really serious bodily injury. To constitute murder what had now to be proved was either an intention to kill (express malice) or an intention to do grievous bodily harm (implied malice). The admirably clear and simple directions to the jury given by Hinchdiffe J., the trial judge, were expressly approved as 'impeccable'. Those directions several times indicated that to support a conviction for murder an intention to kill or do grievous bodily harm must be proved. The next case I must consider is DPP Vs Smith (1960) All ER 161, (1961) AC 290. The case is important for three reasons. The first is that the House, reversing the court of criminal appeal, approved a direction by the trial judge, Donovan J, in a capital murder case, in the following terms:

"The intention with which a man did something can usually be determined by a jury only by inference from the surrounding circumstances including the presumption of law that a man intends the natural and probable consequences of his acts."

59. We respectfully accept [the counsel for the apellant's] submission, SC No. 66/12 State Vs Ranjeet etc. Page No. 35 of 54 based on the dictum of Lawton LJ. in the R v. Beer (1976 Cr) 1976 R 222 at 225, that in most cases there is no need, indeed it is undesirable to give a jury any definition of intent or intention in a murder case. It is usually sufficient to direct them, as indeed the learned judge after the passage to which I have already referred, that intent or intention is a question of fact for them to determine, taking into account all the circumstances of the case."

Ocular Evidence:­

60. Now let us consider the evidence led by prosecution to prove that accused Ranjeet with one accomplice (not arrested) had caused the murder of deceased Manoj.

61. To prove that accused Ranjeet had caused the murder of deceased the material witnesses are PW­3 Neeraj and PW­11 Rinku who both are the eye witnesses of the incident. As per the story of the prosecution the deceased along with his father Om prakash, who is the maker of the FIR, were coming together when accused Ranjeet @ Sonu had put the pistol on the neck of Manoj and fired the gun shot as a result of which Manoj sustained injuries and died. PW­ 3 Neeraj had specifically deposed that when he along with PW­11 Rinku were coming from front of Shauchalaya and were present at the gate of Shauchalaya he saw that his brother Manoj and his father were coming and in the meantime Ranjeet @ 'Sonu put pistol on the neck of Manoj and fired a gun shot as a result of which Manoj sustained injuries and fell down on the road. PW ­3 further deposed that his father raised alarm. Accused Ranjeet along with the pistol and h is a ssociate ran away from there. He further deposed that he chased the accused for some distance and thereafter he along with his friend Rinku and his father lifted Manoj and shifted him near Shauchalaya and from there they took him to the Hospital. He further deposed that on the way Manoj succumed to his injury. On the similar Line PW­ SC No. 66/12 State Vs Ranjeet etc. Page No. 36 of 54 11 had deposed that on 06.04.2006 he along with his brother Neeraj were present near the CRPF block side. Then one boy told them that their brother Raman was searching for them and when they were coming from the side of toilet towards their basti then from the front side they saw Om Prakash and Manoj were coming. In the meantime Sonu whose real name was Ranjeet came out of the gali and two three boys were there with him then Ranjeet fired a shot on the back side neck of Manoj. He further deposed that seeing this they ran behind Ranjeet and others but could not apprehend them. So they came back and picked up Manoj and moved him near the toilets and he along with Om Prakash and Neeraj took Manoj in a TSR to Safdarjung Hospital.

62. The court while evaluating facts of the case is supposed to form opinion about the credibility of the witness examined in the case. The judge has to form his own estimate of the evidence produced before him and to articulate an opinion about the credibility of the witness. For the purpose of assessing the credibility, the court has to consider the evidence of a witness to find out as to how he has fared in the cross examination and what impression is created by his evidence, taken in context of other facts of the case. Law recognizes following ways in which the evidence of a witness can be termed unreliable:­

a) the witness statement is inherently improbable or contrary to the course of nature,

b) his deposition contains mutually contradictory or inconsistent passage,

c) he is found to be bitter enemy of the opposite party,

d) he is found not to be a man of veracity,

e) he is found to have been bribed or accepted any other corrupt inducement to give evidence and,

f) his demeanor, while under examination, is found abnormal and SC No. 66/12 State Vs Ranjeet etc. Page No. 37 of 54 unsatisfactory.

63. The above statement of both the eye witnesses are consistent on the material points. It is pertinent to mention that the identity of the accused Ranjeet is already known to the witnesses as the accused party as well as the complainant party are related to each other. Both the eye witnesses have stated specifically about the act of accused Ranjeet in causing gun shot injury on the back side neck of the deceased Manoj. Both of them have stated that they have chased accused Ranjeet @ Sonu to some distance. Both have stated that when the deceased fell down on the ground they moved him near the toilet that is why the crime team had found the blood at two points on the spot. The testimony of both the witnesses on the material point of causing gun shot injury by the accused is consistent. There is a minor discrepancy in the statement of PW­11 with regard to the number of accomplice who was accompanying accused Ranjeet at the time of offence but the said minor discrepancy does not go to the root of the testimony of PW3 and PW11 who both have attributed the same role to accused Ranjeet that he had given gun shot injury to the deceased which proved fatal. The difference in the number of persons accompanying accused Ranjit at the time of incident, as came in the statement of PW­11 can be attributed to the fact that human memory is fallible and fades away with the passage of time. In the statement to the police PW­11 had mentioned the presence of one accomplice with Ranjeet. This discrepancy does not make the presence of PW­11 doubtful on the spot, nor shatters his testimony.

64. The presence of both the eye witnesses at the scene of crime is also established by the presence of blood which was found on the clothes of both the witnesses and proves that both of them along with the maker of FIR PW Om Prakash had removed the deceased to the hospital. The FSL result shows that the blood of the deceased was found on their clothes. The MLC of the deceased shows that name of PW Neeraj in the column of person who has brought the SC No. 66/12 State Vs Ranjeet etc. Page No. 38 of 54 deceased. From DD No. 31A which is proved by PW­17 it is clear that PW Neeraj had admitted the deceased in the hospital and as such, the presence of PW Neeraj on the spot is also proved from DD No. 31A. When the presence of a eye witness is proved on the spot, the minor discrepancies on the points as to where the statement of the eye witnesses were recorded, whether he had firstly visited the hospital or the Police station cannot shatter his testimony.

65. Ld. Counsel for the accused had argued that there is discrepancies in the statement of PW3 and PW11 on the point that one witness says that he had chased the accused Ranjeet for 15­20 steps while the other says that they have chased the accused Ranjeet for about 50­60 steps. This is also not a material contradictions so as to discard the testimony of PW3 and PW11.

66. The third eye witness who is the maker of FIR i.e. Om Prakash is not produced as a witness in this case as he had died prior to recording of his testimony in this case however, the rukka on which the FIR is registered is duly proved by PW­9 and PW­17. Though, Om Prakash who is the maker of the FIR is not examined but the rukka is duly signed by him and is duly proved by the police officials and the said rukka also gives the same story as putforth by PW3 and PW11. In this rukka also, Om Prakash has mentioned that when he was coming with his son deceased Manoj and reached at 848, N.K. Art Tailors, Ambedkar Basti at the corner of the street accused Ranjeet and one other boy were standing who came towards them hurriedly and accused Ranjeet stated that they had beaten his father and as such today he wants to put an end to the story. On this the other boy asked him to take out the pistol and to kill them. Hearing this accused Ranjeet @ Sonu took out a pistol and put the same on the right hand back side of the neck of deceased Manoj and fired the gun shot as a result of which Manoj fell down. On this Om prakash raised noise and found that his other son Neeraj and the son of his sister namely Rinku/PW­11 were coming towards them. On raising SC No. 66/12 State Vs Ranjeet etc. Page No. 39 of 54 the noise accused Ranjeet and his accomplice ran away from the spot giving threat. It is also mentioned in the rukka that with the help of Neeraj and Rinku the deceased was moved to the gate of shauchalya and thereafter he was taken to Safdarjung hospital where the deceased was declared as 'brought dead'. Hence, this rukka also proves the presence of PW Neeraj as well as PW Rinku on the spot.

67. As per the prosecution story the weapon of offence i.e. Katta which was used in this case by accused Ranjeet is recovered from his possession by the police of PS Ambedkar Nagar for which an FIR No. 231/06 PS Ambedkar Nagar, U/s­ 25/54/59 Arms Act was registered. The accused Ranjeet was arrested in the said case with a Katta on 10.04.2006 at 2.15 AM i.e. after four days of the incident in this case. In the said case, the accused has been convicted under section 25/54/59 Arms Act by the concerned Metropolitan Magistrate vide judgment dated 12.04.2007. PW­28, the concerned LDC , has produced the certified copies of the judgment and the recovery memo etc, the FSL result, the arrest memo, disclosure statement of accused, the sketch of the fire arm and certified copy of the said documents are exhibited as Ex.PW28/A in this case.

68. Though the Katta which is the weapon of offence, is not produced in the court but as per the FSL result Ex.PX the deformed bullet which was recovered from the body of deceased corresponds to the bullet of 8mm / .315 Bore Cartridge and the same is an ammunition. The Katta which was recovered in FIR No. 231/06 PS Ambedkar Nagar from the accused is also opined .315 bore fire arm and the cartridges which were recovered were of 8 mm/.315 bore cartridge. Ld. Counsel for accused has argued that since the weapon is not produced in this case nor sent for ballistic opinion so as to match from the deformed bullet recovered in this case and the flesh so it is not proved that the said bullet was triggered by this fire arm.

SC No. 66/12 State Vs Ranjeet etc. Page No. 40 of 54

69. Even if, we go by this argument of Ld. counsel for the accused, the recovery of a weapon in a case of such like nature is not fatal as the case is of the direct evidence where the accused was seen giving gun shot injury to the deceased by a fire arm. Even if, the weapon is not recovered the fact is otherwise proved from the postmortem report that the death has resulted from the gun shot injury caused to the deceased. In the present case, after the arrest of the accused Ranjeet in this case, at his instance the police had recovered the blood stained clothes which the accused was wearing at the time of offence. The recovery of clothes was effected from a house which place was not a public place and the place of recovery was within the special knowledge of the accused. The argument that the said place is the residence of co­accused Rattan Singh is not a material circumstance in view of the fact that the recovery of the clothes were effected from the said house at the instance of the accused Ranjeet Singh. Moreover, the FSL result Ex.PW27/H show that blood stains which were found on the clothes of accused Ranjeet i.e. Ex.PW14/A and Ex.PW14/B was containing 'O' Group which is the blood group of the deceased and found on his clothes, floor pieces as well as on the clothes of all the three eye witnesses. Since the blood of the deceased was found on the clothes of the accused which he was wearing at the time of offence, the turning of PW­15 Vijay, the recovery witness of the clothes, as hostile is not making the recovery doubtful. The accused could not account for as to how blood of deceased came on his clothes.

70. So far as the cutting in the name of the patient in the MLC Ex.PW16/A is concerned, PW­3 Neeraj has sufficiently explained that as he was frightened he has mentioned the name of accused Ranjeet in the MLC instead of his brother Manoj which was stand corrected by his mother. The mental trauma and condition of a brother who witnesses the murder of his brother and who dies in front of his eyes can very well be imagined. PW­17 has proved the DD entries SC No. 66/12 State Vs Ranjeet etc. Page No. 41 of 54 No. 30 which was recorded at 6.41 PM giving information regarding shooting of Manoj on his head and his being taken to Safdarjung Hospital, DD No. 31 A which was recorded at 6.50 PM from Safdarjung Hospital that Manoj Kumar was brought dead and admitted by Neeraj and on the basis of said tehrir the FIR was registered.

MOTIVE:­

71. So far as the motive is concerned, it is an admitted fact by both the sides that a case under section 308 IPC is pending between the complainant party and the accused party and in the said case the complainant party herein is an accused for causing injuries to the father of accused Ranjeet i.e. accused Inderjeet Singh. Though the complainant of this case Om Prakash could not be produced in the court due to his death to prove the rukka which is proved by the police officials and the said rukka also mentions that while causing gun shot injury to the victim, the accused Ranjeet has referred to the said case. The pendency of the said case between the parties for causing of injury to the father of accused by victim and his family is obviously a motive for the accused to commit murder of the victim. Causing gun shot injury by a firearm from a close range and that to in the head by the accused must be with the intention of causing death and the act of the accused is squarely covered by the first illustration of Section 300 IPC. From the statement of eye witnesses, medical and other evidence and recovery of blood stained clothes, the prosecution has proved its case beyond doubt that accused Ranjeet with one accomplice (not arrested) had committed murder of the victim Manoj and is liable to be convicted under Section 302 IPC.

The authorities cited by the Ld. Counsel for accused Ranjeet are distinct on their own facts and circumstances. The case of Liyakat Hussain is not a case of direct evidence. The case of Naveen Kumar Ahuja is also SC No. 66/12 State Vs Ranjeet etc. Page No. 42 of 54 distinguishable as in the said case the testimony of the complainant was not relied upon as he did not raise any hue and cry which is not the position in our case because in the present case the maker of FIR Om Prakash had raised noise after the accused gave gun shot injury to his son.

CONSPIRACY:­

72. Now, coming to the offences committed by the accused Inderjeet, Rattan Singh and Shyam Singh; the first and foremost issue involved in the present case is if the accused acted in conspiracy or if everyone acted on his own or were part of illegal agreement to commit murder of deceased Manoj.

73. Conspiracy has been defined in section 120­A IPC which runs as under :

"120A. Definition of criminal conspiracy.­­ When two or more persons agree to do, or cause to be done,­ (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation.­ It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."

74. It is a settled law that conspiracy is always hatched in privacy or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually both, the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. In Regina v. Murphy (1873) 173 ER 502, while summoning up for the Jury it was held that :

SC No. 66/12 State Vs Ranjeet etc. Page No. 43 of 54 "...I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by comroeff means and so to carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means of proving any such thing and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, 'Had they this common design, and did they pursue it by these common means ­ the design being unlawful?' it is not necessary that it should be proved that these defendants met to concoct this scheme, nor is it necessary that they should have originated it. If a conspiracy be already formed, and a person joins it afterwards, he is equally guilty. You are to say whether, from the acts that have been proved, you are satisfied that these defendants were acting in concert in this matter.

75. In "State of Himachal Pradesh vs. Krishan Lal Pardhan, (1987) 2 SCC 17, it was held that "If pursuant to the criminal conspiracy the conspirators commit several offences, then all of them will be liable for the offences even if some of them had not actively participated in the commission of offences."

76. In Nalini's case the Hon'ble Supreme Court explained that conspiracy result in a joint responsibility and everything said, written or done in furtherance of common purpose is deemed to have been done by each of them.

77. In "Yakub Abdul Razak Memon vs. State of Maharashtra, 2012 (3) SCALE 565, it was observed that :

"A charge of conspiracy may prejudice the accused because it forces SC No. 66/12 State Vs Ranjeet etc. Page No. 44 of 54 them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of the object of conspiracy but also of the agreement. In the charge of conspiracy the court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand "this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders".

78. As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished."

79. It was further observed that "Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. Contrary to the usual rule, in conspiracy prosecutions, any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each co­ conspirator." It was further observed that : "78. Section 10 of the Evidence Act further provides a unique and special rule of evidence to be followed in cases of conspiracy. Section 10 reads as under :

"10. Things said or done by conspirator in reference to common SC No. 66/12 State Vs Ranjeet etc. Page No. 45 of 54 design - Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such person in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the person believed to so conspiring, as well for the purpose of proving the existence of conspiracy as for the purpose of showing that any such person was a party to it" It is to be seen that there are three conditions in the Section. One is, before utilizing the section for admitting certain statements of co­accused from a confession, there should be a reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong.

80. According to this Section, only when this condition is satisfied in a given case, then only the question of utilizing the statement of an accused against the co­accused can be taken into consideration. Thus, as per Section 10, the following principles are agreed upon unanimously :­

1. There shall be prima facie evidence affording a reasonable ground for the Court to believe that two or more persons were part of a conspiracy to commit a wrongful act or offence ;

2. Once this condition was fulfilled, anything said, done or written by any of its members, in reference to their common intention, will be considered as evidence against other co­conspirators ;

3. This fact would be evidence for the purpose of existence of a conspiracy and that the person were a part of such conspiracy."

81. Now, let us consider what evidence is adduced by the prosecution in this case to prove the conspiracy. The prosecution has tried to prove the ingredients of conspiracy with the help of deposition of PW1 to show that conspiracy existed between the accused persons. As per the statement of PW1 SC No. 66/12 State Vs Ranjeet etc. Page No. 46 of 54 Raman on 06.04.2006 at about 5 PM when he was passing through in front of jhuggi of Rattan Singh, there accused Inderjeet, Ranjeet @ sonu, Rattan Singh, Shyam Singh and one other boy whose name he did not know were talking about them, he hid himself behind the jhuggi and heard about the conspiracy when Inderjeet was saying that pistol has been arranged and Om prakash and his sons have to be finished, Shyam Singh was saying Manoj must be killed as his wife was living separately because of Manoj and Inderjeet and Rattan Singh were saying that Manoj had caused injuries to Inderjeet in previous quarrel and Manoj is to be killed first and hearing this Ranjeet in anger took out a pistol from his dub and stated that he would be going to finish and would come back with his associate and Inderjeet said that the plan which they prepared in the morning be implemented at 6 PM when they will visit the park. After hearing this PW­1 went in search of his brother in different parks and when he reached near the Shauchalya wali gali he came to know that accused Ranjeet had killed his brother Manoj.

82. I have considered the statement of PW­1. It is not stated by the PW­ 1 that he had seen the faces of any of accused inside the jhuggi. Though both sides are known to each other , it becomes difficult to believe that PW­1 was so familiar with their voices that he recognized each one of them by their voices, without actually seeing their faces. The number of the jhuggi is also not conclusively proved by PW­1. PW­1 had heard the accused persons saying that the plan which they formed in the morning be implemented at 6 PM when they will visit park however, it is not the case of prosecution that any of these three accused had actually visited the park where the deceased Manoj was killed by accused Ranjeet @ Sonu. Further, how the accused persons were sure about the fact that deceased will come in the park in the evening at 6 PM so as to give an opportunity to them to implement the conspiracy. It is not the case of any public SC No. 66/12 State Vs Ranjeet etc. Page No. 47 of 54 witness that it was usual for the deceased to come to the park in the evening at 6 PM. PW­1 has also not stated that since the deceased was usually coming to the parks, he kept on searching for the deceased in various parks instead of going to his house. It is worthwhile to note that PW­1 could not locate his brother in 1 hour after hearing the conspiracy at 5 PM but one of the conspirator Ranjeet could locate him in the park at 6.05 PM and murdered him. It also creates suspicion on the testimony of PW­1. The conduct of PW­1 is apparently against the human nature. A person who hears about a conspiracy with regard to the murder of his brother would certainly go directly to his house in search of his brother and shall also try to inform his family members about the conspiracy, he will not try to search his brother in different parks for near about 1 hour. Why PW­1 was searching his brother in different parks is also not explained. This conduct of PW­1 is not convincing to a reasonable mind.

83. Further, as per the proviso of Section 120A IPC, apart from an agreement between the persons to commit an offence, there must be some overt act done by the one or more parties to the agreement. In the present case, as per the story of the prosecution the murder of deceased Manoj was committed by accused Ranjeet @ Sonu along with one other person whose identity was not known and who was not arrested. It is not the case of the prosecution that at the time of incident any of the accused namely Rattan Singh, Inderjeet or Shyam Singh were present at the spot of incident. No other act is alleged to be done by any of these three accused persons in committing the murder of Manoj. It is pertinent to mention that all these three accused were already known to the complainant party being relatives and none of the eye witnesses had named these three accused to be present on the spot of incident. Even the FIR refers to accused Ranjeet @ Sonu accompanied by one other unknown person who both fled away from the spot after giving gun shot injury to deceased Manoj. No other specific SC No. 66/12 State Vs Ranjeet etc. Page No. 48 of 54 act is assigned by the prosecution to these three accused either prior to the commission of the offence or thereafter.

84. Like most crimes, conspiracy requires an act (Actus Reus) and an accompanying mental state (Mens Rea). Conspiracy criminalizes an agreement to commit a crime. The law punishes the conduct that threatens to produce the harm as well as the conduct that has actually produced it. In this case, except the statement of PW­1 to the effect that he had heard about the conspiracy being hatched by the accused persons in the jhuggi, no other overt act is assigned to any of the three accused in completion of the crime.

85. The prosecution had also tried to show that accused Inderjeet had accompanied accused Ranjeet to Bulandshaher, UP from where they had purchased the Katta for giving effect to their plan of murdering Manoj. However, PW Shami who is an independent witness to prove the presence of accused Ranjeet in Bulandshehar has turned hostile. The disclosure statement of accused Ranjeet that accused Inderjeet had accompanied him or the disclosure statement of accused Inderjeet himself are not admissible in evidence. Hence, there is no evidence to show any Actus Reus on the part of accused Inderjeet to show that he was involved in the conspiracy.

86. Admittedly both the parties are involved in previous litigation and are at enmity. The Court is not oblivious of the fact that the people have a tendency to falsely rope in all the members of the other party along with the original culprit to wreak vengeance.

87. As I have already discussed above the statement of PW1 is not convincing as the same is against the human nature. Mere overhearing of a plan of conspiracy by PW­1 without there being any act being done by the accused in the actual offence cannot prove the conspiracy. In the absence of any specific act/role being played by accused Rattan Singh, Shyam Singh and Inderjeet it is not SC No. 66/12 State Vs Ranjeet etc. Page No. 49 of 54 proved that the accused persons had conspired together with accused Ranjeet to commit murder of the deceased Manoj.

Case against accused Chander Shekhar:­

88. Accused Chander Shekhar has been charged in this case for committing offence under section 25(1) A Arms Act for procuring and selling the country made pistol along with three live cartridges to accused Ranjeet for a consideration of Rs. 5,000/­ in contravention of section 5 of the Arms Act.

89. Before going further it is relevant to the provisions of Section 25 and Section 5 of the Arms Act, 1959.

Section 25 of the Arms Act, 1959 (in so far as relevant) provides :­

1. Whoever ­

a) manufactures, sells , transfers , converts, repairs, test or proves, or exposes or offers for sale or transfer or has in his possession for sale, transfer, conversion , repair , test or prove , any arm or amunition in contravention of section 5; or

b) not relevant ;

c) omitted;

d) not relevant;

shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

90. Section 5 of the Arms Act, 1959 (in so far as relevant) provides :­

1. No person shall ­

a) use, manufacture, sell, transfer, convert, repair, test or prove, or

b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, SC No. 66/12 State Vs Ranjeet etc. Page No. 50 of 54 any firearms or any other arms of such class or description as may be prescribed or any ammunition unless he holds in this behalf a license issued in accordance with the provision of this act and the rules made there under.

2. Not relevant.

91. A fire arm has been defined in Section 2 (e) which provides :­ "firearms" means arms of any description designed or adapted to discharge a projectile or projectiles of any kind by the action of any explosive or other forms of energy, and includes,­

(i) artillery, hand­grenades, riot­pistols of weapons of any kind designed or adapted for the discharge of any noxious liquid, gas or other such things,

(ii) accessories for any such firearms designed or adapted to diminish the noise or flash caused by the firing thereof,

(iii) parts of, and machinery for manufacturing, firearms, and

(iv) carriages, platforms and appliances for mounting, transporting and serving artillery".

92. Now let us consider the evidence led by prosecution to prove the charge against accused Chander Shekhar. As per the case of the prosecution, the offence in this case was committed on 06.04.2006 and accused Ranjeet was arrested on 10.04.2006 in another case FIR No. 231/06 PS Ambedkar Nagar under section 25 Arms Act wherein he made disclosure statement with regard to his involvement in the present case. As per the prosecution case accused Ranjeet had made disclosure in which he had disclosed about the name of one Shami to the IO who can tell about the person who had sold the katta and live cartridges to accused Ranjeet.

93. Ld. Counsel for accused has argued that in this case before prosecuting accused Chander Shekhar the prosecution has not taken the sanction SC No. 66/12 State Vs Ranjeet etc. Page No. 51 of 54 under Section 39 of Arms Act and as such, the accused is liable to be acquitted. So far as this argument is concerned, it has no substance since as per the provisions of section 39 of Arms Act, 1959, the sanction is required for prosecuting the persons in respect of any offence under Section 3 of the Arms Act, 1959 and not for the offences under Section 5 of Arms Act, 1959 r.w. Section 25 of Arms Act with which the accused is charged.

94. Ld. counsel for Chander Shekhar has further argued and rightly so, that in the disclosure statement of accused Ranjeet he has not given name of any person by the name of Shami. During the cross examination of IO PW27 it is stated by him that he made further enquiries from accused Ranjeet after his arrest in this case with regard to the weapon of offence and on his further interrogation the accused Ranjeet had disclosed the name of Shami whereafter he contacted the same person PW Shami who disclosed to him that it was accused Chander Shekhar @ Pinku who had sold the Katta and the live cartridges to accused Ranjeet. He has also stated that accused Ranjeet and the said Shami was taken to Bulandshehar, UP in search of the accused Chander Shekhar on 12.04.2006 and 13.04.2006 but no statement of witness Shami was recorded on those dates. I have referred to the case diary of 12.04.2006 and 13.04.2006 recorded by the IO wherein the statement of the IO with regard to the further interrogation from accused Ranjeet, disclosure of the name of the Shami by him during further interrogation, visiting at Bulandshehar, UP along with Shami and Ranjeet in search of the Chander Shekhar (whose name was allegedly disclosed by Shami) is mentioned. However no statement of PW Shami to this effect is recorded. The statement of PW Shami is only recorded with regard to the arrest of the accused Chander Shekhar on 14.04.2006 from the area of Sangam Vihar at his instance as well at the instance of accused Ranjeet. However, said witness PW Shami has turned hostile in the court and has not supported the case of the prosecution.

SC No. 66/12 State Vs Ranjeet etc. Page No. 52 of 54 Admittedly, the disclosure statement of accused Ranjeet does not disclose the name of Shami and since the said witness has turned hostile the only evidence against the accused Chander Shekhar remains is that of his own disclosure statement which is not admissible in law. The disclosure statement of the co accused Ranjeet or his father Inderjeet, who has allegedly accompanied the accused Ranjeet to Bulandshehar, UP for the purchase of Katta is silent about the name of the accused Chander Shekhar. The most vital connecting evidence of PW Shami is not available now as he has turned hostile. Further, there are other discrepancies in the statement of the IO. As per his statement 8­10 persons had gone in a car to the village of accused Chander Shekhar. Whether a car can accommodate 8­10 persons is also questionable. As per the statement of IO himself he did not make enquiries from the village persons with regard to the accused Chander Shekhar nor any enquiries were made from the family members of the accused. If the IO had visited the village of accused Chander Shekhar on 13.04.2006 no statement of any of the police officials of his raiding party is recorded by the IO. No signatures of PW Shami had appeared on the disclosure statement of accused Chander Shekhar though as per the statement of PW­23 PW Shami was with them when the disclosure statement of Chander Shekhar was recorded and his disclosure was signed by him as well as by PW Shami however, no signatures of PW Shami had appeared on the disclosure statement of accused Chander Shekhar. No other disclosure statement of accused Ranjeet was recorded by IO on 12.04.2006 when he had made the disclosure of the name of PW Shami. As per the statement of IO he did not visit the village of accused Chander Shekhar on 12.04.2006 but had visited on 13.04.2006 in a car along with SI Harender, Ranjeet, Shami , HC Ramanand and some other police officials.

95. Hence, seeing the contradictions in the testimony of PW­23 and PW­ 27 and in view of the fact that the public witness PW Shami had turned hostile SC No. 66/12 State Vs Ranjeet etc. Page No. 53 of 54 and also in view of the fact that name of P W Shami or accused Chander Shekhar is not coming in the disclosure statement of accused Ranjeet, the involvement of accused Chander Shekhar in this case becomes doubtful. It is not proved that accused Chander Shekhar had supplied Katta to accused Ranjeet for a consideration of Rs. 5,000/­. Hence, prosecution has miserably failed to prove its case against accused Chander Shekhar.

96. In view of the above discussion, accused Ranjeet is convicted for the offence under section 302 IPC however, as the conspiracy is not proved he is acquitted under section 120B IPC. Accused Inderjeet, Shyam Singh and Rattan Singh are acquitted for the charge under Section 120B IPC r.w. 302 IPC and accused Chander Shekhar is acquitted under Section 25 (1)(A) Arms Act.

97. In view of the Section 437A of Cr.P.C, accused Inderjeet, Shyam Singh, Rattan Singh and Chander Shekhar are directed to furnish bail bond in a sum of Rs. 30,000/­ with one surety of like amount for the period of six months with the condition that they shall appear before the Hon'ble High Court as and when notice be issued in respect of any appeal filed by the state against the judgment within a period of 6 months. Case property be confiscated to the state after expiry of period of revision/appeal, if any.

ANNOUNCED IN THE OPEN COURT ON 03.04.2014.

                                                                  ( RENU BHATNAGAR )
                                                                   DESIGNATED JUDGE
                                                                    TADA/POTA/MCOCA
                                                                  ASJ SE­01/NEW DELHI




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