Delhi District Court
State vs . (1) Rajesh @ Raje on 7 February, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 46/2013
Unique Case ID No.: 02404R0160992012
State Vs. (1) Rajesh @ Raje
S/o Shri Bhagawan
R/o Dispensary Wali gali,
VPO Katewra, Delhi
(Acquitted)
(2) Ram Roop @ Bholu
S/o Sh. Rajender Singh
R/o VPO Auchandi, Delhi
(Acquitted)
(3) Priyavarat @ Kala Luhar
S/o Sh. Dayanand
R/o VPO Katewra, Delhi
(Acquitted)
(4) Sanjay Rathi
S/o Ram Kumar Rathi
R/o VPO Auchandi, Delhi
(Acquitted)
(5) Pawan Pandit
S/o Sh. Sagar
R/o VPO Katewra, Delhi
(Acquitted)
St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 1 of 96
FIR No.: 24/2012
Police Station: Kanjhawla
Under Section: 302/120B/34 Indian Penal Code
Date of committal to sessions Court: 7.6.2012
Date on which orders were reserved: 7.2.2014
Date on which judgment pronounced:7.2.2014
JUDGMENT:
(1) As per the allegations on or before 10.2.2012 all the accused namely Rajesh @ Raje, Ram Roop, Priyavrat, Pawan Pandit and Sanjay Rathi all agreed to commit an illegal act of committing murder of one Kuldeep and also committed his murder in pursuance of the said agreement. It has also been alleged that on 10.2.2012 at 2:15 PM near the field of Master Diwan at QutubgarhSohti Road all the accused committed the murder of Kuldeep by causing firearm injuries upon him.
BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 10.2.2012 on receipt of DD No. 18A that a dead body was lying at QutabgarghSohti Road, near Poultry Farm was received at Police Station Kanjhawla, pursuant to which SI Naresh and Ct. Kuldeep reached the spot. In the meantime SHO Inspector Mahesh Kumar also reached the spot. The dead body of a male person aged about 2425 years old was lying in a pool of blood, whose name the police came to St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 2 of 96 know as Kuldeep a resident of village Auchandi. Five empty fired cartridges of 9 mm and four fired empty cartridges of 8 mm, two lead and two mobile phones were also found at the spot. The Crime Team was called to the spot and they inspected the scene of crime and took photographs. SI Naresh made endorsement on DD No.18A pursuant to which the present case was registered and the investigations were conducted by Inspector Mahesh Kumar. From the search of body Rs.8,120/, two mobile phones and one medicines strip of Alprequil were recovered which were taken into possession. 11.02.2012 postmortem examination on the body of the deceased was got conducted and after postmortem the dead body was handed over to his relatives.
(3) During investigations on 09.03.2012 the Investigating Officer received an information from Police Station Bawana that the accused Rajesh @ Raje was arrested by them who made a disclosure statement of their case, on which the Investigating Officer moved an application for issuance of production warrant of the accused Rajesh @ Raje. On 14.03.2012 accused Rajesh @ Raje was arrested from the Court itself and during interrogation the accused Rajesh confessed about his involvement in his case after which the accused Rajesh was arrested in this case. Three days' Police Custody remand of accused Rajesh @ Raje was obtained during which accused Rajesh @ Raje pointed out the place of incident at QutabgarhSohti Road near Poultry Farm where he alongwith his coaccused Sanjay Rathi, Pawan Pandit, Priyavar committed the murder of Kuldeep. On 15.03.2012 at the instance of accused St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 3 of 96 Rajesh @ Raje the accused Ram Roop was apprehended and arrested from his house at Village Auchandi and during interrogation the accused Ram Roop disclosed his involvement in the present case along with Sanjay Rathi, Pawan Pandit and Priyavat @ Kala Luhar.
(4) In the month of May 2012 the Investigating Officer received information regarding arrest of accused Priyavat @ Kala Luhar by police of Police Station Rai, Sonepat and police of Police Station Narela. On 28.05.2012 the accused Priyavat was interrogated in the Rohini Jail with the permission of the court wherein he confessed about his involvement in this case, after which the accused Priyavrat was arrested and his disclosure statement was recorded. On 29.05.2012 two days Police Custody remand of the accused Priyavrat was obtained during which on 30.05.2012 the accused pointed the place of incident.
(5) On 07.08.2012 the Investigating Officer received information that accused Sanjay Rathi was arrested by AATS staff pursuant to which he interrogated accused Sanjay Rathi at Rohini Jail with the permission of the Court during which the accused Sanjay Rathi confessed about his involvement in this case, after which he was arrested and his disclosure statement was recorded. On 08.08.2012 accused Sanjay Rathi was produced before the court and two days' Police Custody remand was obtained during which the accused Sanjay Rathi pointed out the place of incident. During investigations the documents from the Police Station Bawana of FIR No. 88/12 and FIR No.14/12 regarding the accused Rajesh @ Raje were collected St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 4 of 96 and documents from Police Station Rai in the case FIR No.109/12 regarding the accused Priyavat @ Kala Luhar were obtained. The documents from the AATS Outer District of the case FIR No. 229/12 of Police Station Bawana regarding the accused Sanjay Rathi were also collected. However, the accused Pawan Pandit was absconding and on 25.8.2012 the accused Pawan Pandit he was declared as Proclaimed Offender. After completion of investigations charge sheet was filed against the accused Rajesh @ Raje, Ram Roop, Priyavrat and Sanjay Rathi.
(6) The accused Pawan Pandit was later on arrested by staff of Special Cell on 3.9.2012 and then after obtaining permission from the Court on 20.09.2012 accused Pawan was arrested and his disclosure statement was recorded. The accused Sanjay Rathi was also produced before the court after which the Investigating Officer also interrogated him with the permission of the court and recorded his supplementary disclosure statement. Two days Police Custody remand of the accused Pawan was obtained during which on 21.9.2012 the accused Pawan Pandit pointed out the place of incident where he along with coaccused committed the murder of Kuldeep. the accused Pawan also pointed out a drain near the village Jatkhore where he had thrown the weapon of offence in the drain after committing the murder of Kuldeep. Efforts were made to recover the weapon of offence but the same could not be recovered. After completion of investigations supplementary charge sheet was filed against the accused Pawan Pandit.
St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 5 of 96 CHARGE:
(7) Charges under Sections 120B and 302 IPC were settled against all the accused persons to which they pleaded not guilty and claimed trial. (8) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
List of prosecution witnesses:
Sr. PW No. Name of the witness Details of witness
No.
1. PW1 Satbir Public Witness - uncle of the deceased
2. PW2 SI Anil Kumar Police Witness - Crime Team Incharge
3. PW3 SI Manohar Lal Police Witness - Draftsman
4. PW4 Ct. Sumit Police Witness - Special Messenger
5. PW5 Ct. Mahipal Police Witness - PCR Official
6. PW6 Ct. Jasvir Police Witness who had deposited the
exhibits with FSL
7. PW7 Ct. Bijender Police Witness who had deposited the
exhibits with FSL
8. PW8 HC Anoop Singh Police Witness MHCM
9. PW9 SI Ashwani Kumar Police Witness - Duty Officer
10. PW10 Ct. Harish Police Witness - Crime Team Photographer
11. PW11 Rajeshwar Dayal Public Witness - Father of the deceased
12. PW12 Dr. Manoj Dhingra Autopsy Surgeon
13. PW13 ASI Naresh Kumar Police official from PS Rai, District Sonepat,
Haryana
14. PW14 Dr. Rajender Kumar FSL Expert
15. PW15 ASI Suresh Chand Police official from PS Rai, District Sonepat,
Haryana
St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 6 of 96
16. PW16 Ct. Jagbir Singh Witness who had made PCR call
17. PW17 Mukesh Kumar Public witness who had made PCR call
18. PW18 Ct. Ramakant Police Witness who had deposited the
exhibits with FSL
19. PW19 ASI Ram Rattan Police Witness who had apprehended the
accused Rajesh @ Raje
20. PW20 HC Satender Kumar Police Witness who had apprehended the
accused Pawan
21. PW21 HC Virender Singh Police Witness who had apprehended the
accused Rajesh @ Raje
22. PW22 HC Dharampal Police Witness MHCM
23. PW23 Ct. Kuldeep Police Witness who had reached the spot
with SI Naresh
24. PW24 SI Rajesh Kumar Police Witness who had joined investigation
with Inspector Mahesh Chand
25. PW25 SI Naresh Kumar Police Witness - Initial Investigating Officer
26. PW26 Smt. Nirmala Public Witness - Mother of the deceased
27. PW27 ASI Anil Kumar Police Witness who had apprehended the
accused Sanjay Rathi and Pawan Pandit
28. PW28 HC Shamsher Singh Police Witness who had apprehended the
accused Sanjay Rathi and Pawan Pandit
29. PW29 SI Ram Kumar Police Witness - IO if case FIR No. 229/12,
PS Bawana
30. PW30 Inspector Mahesh Police Witness - Subsequent Investigating
Officer
31. PW31 Insp. Arvind Kumar Police Witness - Investigating Officer
List of documents:
Sr. Exhibit No. Details of document Proved By
No.
1. PW1/A Dead body identification Statement Satbir
2. PW 2/A Crime Team Report SI Anil Kumar
St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 7 of 96
3. PW3/1 Affidavit of SI Manohar Lal SI Manohar Lal
4. PW3/A Scaled Site Plan
5. PW4/1 Affidavit of Ct. Sumit Ct. Sumit
6. PW5/1 Affidavit of Ct. Mahipal Ct. Mahipal
7. PW5/A PCR Form
8. PW6/1 Affidavit of Ct. Jasbir Ct. Jasbir
9. PW6/A RC 45/21/12
10. PW6/B FSL receipt
11. PW7/1 Affidavit of Ct. Bijender Ct. Bijender
12. PW7/A RC 94/21/12
13. PW8/1 Affidavit of HC Anoop Singh HC Anoop Singh
14. PW8/A Copy of Reg No. 19 Sr. No. 1606
15. PW8/B Copy of Reg No. 19 Sr. No. 1609
16. PW8/C Copy of Reg No. 19 Sr. No. 1709
17. PW8/D RC 52/21/12
18. PW8/E FSL Receipt
19. PW9/1 Affidavit of SI Ashwani Kumar SI Ashwani Kumar
20. PW9/A FIR
21. PW9/B Endorsement on rukka
22. PW10/1 Affidavit of Ct. Harish Ct. Harish
23. PW10/A1 to Photographs
A25
24. PW10/B Negatives
25. PW11/A Dead body identification statement Rajeswar Dayal
26. PW11/B Dead body handed over memo
27. PW12/A Postmortem Report Dr. Manoj Dhingra
28. PW13/A Site plan ASI Naresh Kumar
29. PW13/B Sketch of pistol
30. PW13/C Seizure memo of Pistol and cartridges
31. PW13/D Copy of FIR
St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 8 of 96
32. PW14/A Biological Report Dr. Rajender Kumar
33. PW14/B Serological Report
34. PW15/A Copy of Reg No. 19 Sr. No.622
35. PW15/B Copy of RC
36. PW15/C FSL Receipt
37. PW18/1 Affidavit of Ct. Ramakant Ct. Ramakant
38. PW19/A Sketch of Katta and Cartridges ASI Ram Rattan
39. PW19/B Seizure memo of Katta and Cartridges
40. PW19/C Disclosure Statement of Rajesh
41. PW19/D Arrest memo of Rajesh
42. PW20/A Arrest memo of Pawan HC Satender Kumar
43. PW20/B Personal search memo
44. PW20/C Disclosure Statement
45. PW21/A Copy of FIR No. 88/12 HC Virender Singh
46. PW22/A Copy of Reg No. 19 Sr. No.276 HC Dharampal
47. PW22/B Copy of Reg No. 19 Sr. No. 278
48. PW22/C RC 52/21/12
49. PW22/D FSL Receipt
50. PW22/E RC 37/21/12
51. PW24/A Arrest memo of Sanjay Rathi SI Rajesh Kumar
52. PW24/B Personal search memo
53. PW24/C Disclosure Statement
54. PW24/D Pointing out memo
55. PW24/E Disclosure Statement of Sanjay Rathi
56. PW24/F Arrest memo of Pawan
57. PW24/G Pointing out memo
58. PW24/H Pointing out memo
59. PW24/I Disclosure Statement
St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 9 of 96
60. PW25/A Seizure memo of Exhibits SI Naresh Kumar
61. PW25/B Rukka
62. PW25/C Site plan
63. PW25/D Arrest memo of Rajesh
64. PW25/E Disclosure Statement
65. PW25/F Pointing out memo
66. PW25/G Arrest memo
67. PW25/H Personal search memo
68. PW25/I Disclosure Statement
69. PW25/J Pointing out memo
70. PW25/K Seizure memo of deceased articles
71. PW25/L Seizure memo of cloths of deceased
72. PW25/M Sketch of empty cartridges and one led
73. PW25/N Sketch of fired empty cartridges
74. PW27/A Seizure memo of pistol, live cartridges and ASI Anil Kumar
empty fired cartridge
75. PW27/B Seizure memo of Pistol and cartridges
76. PW27/DA Confronted statement
77. PW28/A Disclosure Statement of Sanjay Rathi HC Shamsher Singh
78. PW29/A Copy of FIR SI Ram Kumar
79. PW30/A DD No. 18A Insp. Mahesh
80. PW30/B Inquest form
81. PW30/C Brief facts
82. PW30/D Request for the postmortem
83. PW30/E Arrest memo of Priyavat
84. PW30/F Disclosure Statement
85. PW30/G Pointing out memo
86. PW31/A Ballistics Report Insp. Arvind Kumar
87. PW31/B Ballistics Report
St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 10 of 96
EVIDENCE:
(9) In order to prove its case the prosecution has examined as many as
Thirty Two witnesses as under:
Public witnesses:
(10) PW1 Satbir has deposed that he is the surpanch of village
Nilothi, District Jhajjar, Haryana and about one year back, he came to village Kanjhawala and then went to Mortuary of SGM Hospital where he identified the dead body of his nephew Kuldeep S/o Rajeshwar Dayal, who was murdered by someone on 10.02.2012. According to the witness his identification statement was recorded by the police vide Ex.PW1/A. This witness has not been cross examined by Ld. Defence counsel, despite opportunity granted in this regard.
(11) PW11 Sh. Rajeshwar Dayal is the father of the deceased who has deposed that on 10.02.2012 a telephone call was received at his house from Ram Roop from phone number 9716169958 and it was his daughter Sushma who received the call was told by Ram Roop that his son namely Kuldeep had been shot dead by Pawan Pandit, Sanjay Rathi and two other persons who had run away in a car at Sohti Road, Qutabgarh. According to the witness, his daughter immediately gave him a call and informed him about the aforesaid at his office on which he went to Police Station Kanjhawala where he met SHO of Police Station Bawana and SHO Kanjhawala alongwith ACP who simply told him that his son had been shot St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 11 of 96 dead and did not give him any details and was told to reach the SGM Hospital at Mangol Puri on 11.02.2012 after which he returned to his home.
The witness has further deposed that on 11.02.2012 he went to SGM Hospital where he identified the dead body of his son Kuldeep aged 2324 years vide Ex.PW11/A and after the postmortem examination he received the dead body of his son vide receipt Ex.PW11/B. (12) In his cross examination by Ld. Defence counsel, witness has admitted that his statement was never recorded by the police. He has further deposed that he had informed the police that Ram Roop had made a call from number 9716169958 which was received by his daughter Sushma and also informed them that Ram Roop had told his daughter Sushma on telephone that his son namely Kuldeep had been shot dead by Pawan Pandit, Sanjay Rathi and two other persons who had run away on a car at Sohti Road, Qutabgarh and his daughter immediately gave him a call and informed him about the aforesaid at his office on which he went to police station Kanjhawala where he met SHO of Police Station Bawana and SHO Kanjhawala alongwith ACP who simply told him that his son had been shot dead and they did not give him any details and was told to reach the SGM Hospital at Mangol Puri on 11.02.2012 after which he returned to his home. (13) It has been observed by this court that no statement of this witness U/s 161 Cr. P. C. has been recorded by the Investigating Officer at any point of time and hence the witness cannot be confronted by any St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 12 of 96 previous statement.
(14) He has further deposed that his daughter had received the call between 1.00 PM to 2.30 PM, because soon thereafter his daughter gave him a call during this period and at that time he was in his office and has voluntarily explained that he was posted as Multi Task Service/ Peon at Department of Post at Parliament Street and was present in the room of the Director. According to the witness, he reached Police Station Kanjhawala at around 5.00 PM and he had told the SHO and the ACP all the details regarding the telephone call along with the number from which the call was received by his daughter. Witness has further deposed that he is into government job for the last 25 years and he had studied till class 10th. The witness has testified that he had informed his Director Sh. S K Tripathi about the call received by his daughter but he did not give any leave application at that time and only gave oral intimation to the Director after which he was allowed to go. Witness has further deposed that after the SHO refused to take in writing the details he gave him about the telephone call but he did not gave any complaint in writing against him and ACP to any Senior Officer or to the Court at any point of time nor he informed any other responsible member of his near family or neighbor or villager regarding the call received from Ram Roop. Witness has admitted his son was involved in a case of 302 IPC and was out on bail. Witness has further deposed that he did not consult any Advocate when the police did not record his statement including the Advocate whom he engaged for his son in the criminal case. The witness has St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 13 of 96 testified that he did not mention any details of the calls received by his daughter even in the memo of identification and receiving of the dead body of his son. He has denied the suggestion that on 10.02.2012 his daughter had neither received any call from Ram Roop nor she apprised him that Kuldeep had been shot dead by Pawan Pandit, Sanjay Rathi and two other persons. (15) PW17 Mukesh Kumar has deposed that on 10.02.2012 at afternoon time he was going to Kutabgarh from Sohati and between the Poultry Farm and the Kanwar Lal Farm, he saw dead body of a male and many public persons were present there. The witness has further deposed that he made a call at 100 number by his mobile phone No. 9899158044. (16) In his cross examination by the Ld. Defence Counsel the witness has deposed that he did not know the deceased prior to the date when his body was found in the fields. According to the witness, he only went to the fields when he saw other persons gathering there and it was on reaching there that he saw the dead body. He has further deposed that he cannot tell the exact time but it was around 23 PM in the afternoon.
(17) PW26 Mrs. Nirmala has deposed that she is residing at House No. 172, Village Auchandi, Delhi has deposed that she is a housewife and was having three children i.e. two daughters who are now married and one son namely Kuldeep who was aged 25 years one month at the time of the incident. According to the witness, Kuldeep was her eldest child and he always remained with Ram Roop a resident of village Auchandi and was his good friend. She has further deposed that both Ram Roop and her son St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 14 of 96 Kuldeep were addicted to intoxicants and used to take sleeping pills i.e. Allprex pills. She has testified that on 10.02.2012 Ram Roop came to her house at about 1010:30 AM and asked for Kuldeep on which she asked him where he had to go and he responded that his sister is residing at village Sohti, Haryana and she has some work over there on which both of them went away on motorcycle brought by Ram Roop (Ram Roop ghar aya, Kuldeep ke liye poocha, maine poocha kaha jana hai, usne bataya uski Behan Sohti, Haryna mein rehte hai aur usko milne jana hai, uske baad dono motorcycle par beth kar chalye gaye jo motorcycle Ram Roop laya tha). According to the witness, at about 2:30 PM she received a call from Ram Roop that her son Kuldeep had expired and somebody had shot him on which she asked him (Ram Roop) how is that possible and he (Kuldeep) had gone with him on which he told her that there was a fire arm wound on Kuldeep but he does not know. (goli lag rahi hai, aur mujhe nahi maloom). She has further deposed that on hearing this she lost her senses and thereafter she did not know whatever was happening. She has also deposed that they have no enemies and she had no suspicion on anyone including Ram Roop whom she has correctly identified in the Court.
(18) In her cross examination by the Ld. Defence Counselt he witness has denied suggestion that Ram Roop did not come to his house or that Kuldeep was also not at home at that time and has voluntarily added that she has explained that Kuldeep was very much at home and Ram Roop had come and taken him away.
St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 15 of 96 Witness of Medical Record:
(19) PW12 Dr. Manoj Dhingra is the Autopsy Surgeon who has deposed that on 11.02.2012 at about 11.30 PM, he along with Dr. Deepak Sharma conducted postmortem on the body of Kuldeep S/o Sh. Rajeshwar Dayal, male 24 years and the dead body was sent by Inspector Mahesh Chand of Police Station Kanjhawala with alleged history found a dead body on 10.2.12 at about 2.15 PM with fire arm injuries. According to the witness, they found following injuries on the body of the deceased: ➢ Fire arm entry wound 1.3 c.m. X 1.3 cm present over let side of head 2.5 cm above left ear in left parietal region. The entry wound is surrounded by abrasion collor. On fine dissection there is 0.8 x0.8 cm fracture defect in underlying left parietal bond with radiating fractures around it. There is tearing in underlying meninges and laceration of left and right parietal lobes and frontal lobe. The wound is directed from left to right, anterior to posterior, upwards to below. Bullet found in right parietal lobe.
➢ Firearm entry wound 1.3 cm x 1.3 cm present over left side of head 3.5 cm above injury number one in left parietal region. The entry wound is surrounded by abrasion collor. On fine dissection there is 0.8 cm x 0.8 cm fracture defect in underlying left parietal bone with radiating fractures around it. There is tearing in underlying meninges and laceration and laceration of left and right parietal lobes and frontal lobe. The wound is directed from left to right, anterior to posterior, St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 16 of 96 upwards to below. Bullet fragment found in right parietal lobe. ➢ Firearm entry wound 1.3 cm x 0.8 cm present over left side of face, present 3 cm below left ear lobe and 5 cm posterior to mouth. The entry wound is surrounded by abrasion collor and blackening and tattooing and the whole wound including the surrounding stained area measured 14 cm x 8 c.m. On fine dissection it is fracturing underlying mandible bone and facial bones going below to downwards, left to right and anterior to posterior. Bullet found between facial bones and soft tissues.
➢ Firearm entry wound 1.3 cm x 0.7 cm present on left lateral side of chest in axillary region 14 cm below axillary fold. The entry wound is surrounded by abrasion collor. The wound is present 11 cm posterior to left nipple. The wound is directed backwards and from left to right. The projectile pierced through the underlying chest wall soft tissues fracturing the 4th and 5th ribes, entering chest cavity lacerating left lung and found a bullet in posterior aspect of left lung.
➢ Firearm entry and exit wound 3.2 cm x 1 cm present over right forearm lateral side just above wrist joint. The entry wound is surrounded by abrasion collor and blackening and tattooing extending to back of right hand. On fine dissection it is fracturing underlying ulnar bone and effusion of blood in soft tissues around it. ➢ Contusion 2x 0.5 cm reddish present over left side of neck at base. ➢ Laceration 0.5 x0.2 x bone deep present over medical side of left eye. St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 17 of 96 (20) The witness has further deposed on internal examination of Head there was effusion of blood present over frontal and left parietal regions of scalp on reflecting the scalp. Brain was congested, injuries mentioned in external injuries and about 200 ml. bloody was found in the pleural cavity in the chest. He has proved that the cause of death is craniocerebral damage consequent to penetrating injury to the head caused by a projectile discharged from firearm weapon capable of discharging such a projectile.
(21) On a specific court question the witness has explained that the above injury is sufficient in the ordinary course of nature to cause death. (22) According to the witness, time of death is about 12 to 36 hours. He has proved the detailed postmortem report which is Ex.PW12/A. Witness has further deposed that after postmortem, blood gauze bullet three in number and one fragment of bullet and clothes of deceased were handed over to the investigating officer in sealed condition with the seal of SGMH mortuary, Mangol Puri, Delhi. This witness has not been cross examined by Ld. Defence counsel despite being granted an opportunity in this regard. FSL Expert:
(23) PW14 Dr. Rajender Kumar Deputy Director, FSL, Rohini, Delhi has deposed that on 01.06.2012 seven sealed parcels as per forwarding letter were received in their laboratory and seals on all the parcels were intact St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 18 of 96 and as per forwarding letter and all the parcels were received from SHO Police Station Kanjhawala in connection with case FIR No.24/12, police station Kanjhawala U/s 302/120B/34 IPC and 25/27 Arms Act. According to the witness, after examining the contents of the parcels he gave the biological examination report which is Ex.PW14/A and serological report which is Ex.PW14/B. He has proved that blood was detected on Ex 2 (blood earth), 3 (blood stained road particles), 5(Lohi containing stains), 6 (blood on gauze) 7 a (pants ) 7b (Jacket with hood), 7C (Tshirt half sleeves), 7C (baniyan) and blood could not detected on 1 (plain sant), on 4 (plain road particles) and 7e (underwear). He has further proved that the serological report showed the presence of human blood on 2,3 5, 6, 7, 7a, 7b, 7c and 7d and blood of O group was found on exhibit 5 (lohi) and 7d (baniyan).
(24) In his cross examination by the witness has denied the suggestion that he had not followed the standard practices and procedures while examining the exhibits or that he had given the report on the asking of the investigating officer.
Police/ official witnesses:
(25) PW2 SI Anil Kumar has deposed that on 10.02.2012 he was posted at Mobile Crime Team, Outer District and on that day a call was received from Control Room to reach on the road from Kutubgarh to Sohati near Harish Bawanewala, Murgi Farm. According to him on this information he along with the team reached at the said place at about 3:30 PM where St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 19 of 96 Investigating Officer SI Naresh Kumar, SHO of the police station with staff were found present. Witness has further deposed that at the spot, a dead body of one Kuldeep was found lying on the road with bullet wounds and blood was lying near the dead body and empty cartridges and two lead were also found lying near the dead body. According to him the clothes worn by the dead body were also blood stained and right hand of the dead body was full of blood and after inspection of the spot and taking the photographs by the photographer from different angles at the instructions of investigating officer, he prepared his report which is Ex.PW2/A and after preparation of his report, he handed over the same to the Investigating Officer. (26) In his cross examination by Ld. Defence Counsel, witness has deposed that they remained at the spot for one hour. According to the witness, the crime team was consisting of five members i.e. ASI Manish Bhardwaj, Ct. Harish the photographer, Ct. Ravi and the driver including himself. He does not remember how many photographs were taken by the photographer and states that when they left the spot, investigating officer and other police officials were remained present there during their investigations.
Witness has further deposed that two or three passerby were present there when they left the spot and till he remained at the spot, the said empty cartridges and lead were not taken into possession by the Investigating Officer. According to the witness, his statement and statement of photographer were recorded by the Investigating Officer at the spot but he does not remember whether the statement of any other witness was recorded St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 20 of 96 by the investigating officer at the spot or not.
(27) PW3 SI Manohar Lal is a formal witness being the Draftsman who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having prepared the scaled site plan which is Ex.PW3/A. He has been crossexamined by the Ld. Defence Counsel but he has stood by his version.
(28) PW4 Ct. Sumit is a formal witness being the Special Messenger who has been examined by way of affidavit which is Ex.PW4/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having delivered the copy of FIR at the residence of senior officer. This witness has not been cross examined by Ld. Defence counsel, despite opportunity granted. (29) PW5 Ct. Mahipal is a formal witness being a PCR Official who has been examined by way of affidavit which is Ex.PW5/1 (as per the provisions of section 296 Cr.P.C.) wherein he has proved the PCR Form which is Ex.PW5/A. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity.
(30) PW6 Ct. Jasvir is also a formal witness who has been examined by way of affidavit which is Ex.PW6/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 1.6.2012 he took the exhibits of this case from the MHCM vide RC 45/21/12 copy of which is Ex.PW6/A and deposited the same with the FSL vide receipt which is Ex.PW6/B. He has been crossexamined by the Ld. Defence Counsel but he has stood by his St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 21 of 96 version.
(31) PW7 Ct. Bijender is a formal witness by way of affidavit which is Ex.PW7/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 9.10.2012 he took the exhibits of this case from the MHCM vide RC 94/21/12 copy of which is Ex.PW7/A and deposited the same with the FSL vide receipt which is Ex.PW7/B. He has been crossexamined by the Ld. Defence Counsel but but he has stood by his version. (32) PW8 HC Anoop Singh is a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW8/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the entry in register no.19 vide S.No./ Mud No.1606 copy of which is Ex.PW8/A (running into three pages); entry at Sr. No./ Mud No. 1609 copy of which is Ex.PW8/B (running into two pages); entry at Sr. No./ Mud No.1709 copy of which is Ex.PW8/C; entry in register no. 21 vide RC 45/21/12 which is Ex.PW6/A; Receipt which is Ex.PW6/B; RC No. 94/21/12 copy of which is Ex.PW7/A; Receipt of which is Ex.PW7/B; entry in register on 21 vide RC 52/21/12 copy of which is Ex.PW8/D and Receipt issued by FSL which is Ex.PW8/E. He has been crossexamined by the Ld. Defence Counsel but but he has stood by his version.
(33) PW9 SI Ashwani Kumar is also a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW9/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 22 of 96 copy of FIR No. 24/12 which is Ex.PW9/A and his endorsement on rukka which is Ex.PW9/B. He has been crossexamined by the Ld. Defence Counsel but nothing much has come out of the same but he has stood by his version.
(34) PW10 Ct. Harish is also a formal witness being the Crime Team Photographer who has been examined by way of affidavit which is Ex.PW10/1 (as per the provisions of Section 296 Cr.P.C.) wherein has has proved the photographs taken by him which are 25 in number which photographs are Ex.PW10/A1 to Ex.PW10/A25 and the photographs which are collectively Ex.PW10/B. He has been crossexamined by the Ld. Defence Counsel but but he has stood by his version.
(35) PW13 ASI Naresh Kumar has deposed that on 11.04.2012 he was posted at Police Station Rai, District Sonepat and on that day he along with EHC Rajinder and Driver Raj Singh were on patrolling duty in the official gypsy and were present at Ratdhanam, Safiabad Raod at about 5 PM. According to him one secret informer gave secret information that one person Priyawat @ Kala S/o Dayanand was coming on a motorcycle No. DL8SNC6662 who was wanted in many cases in Delhi and Haryana. The witness has testified that after 15 - 20 paces, ASI Kuldeep Singh the incharge of Sector3 Chowki met there along with two other constables on which he (witness) gave the above said secret information to him. He has further deposed that meanwhile one person was found coming on a pulsar St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 23 of 96 motorcycle from the side of Ratdhana and on seeing the police party the said person turned his motorcycle and tried to run away from there with his motorcycle which was having the above number. According to the witness, on this he followed the above said motorcycle in the gypsy whereas ASI Kuldeep also followed on his motorcycle and the above said motorcyclist turned towards the area of Peer Baba, Jagdishpur village area and after entering the fields the said person left his motorcycle and started running and also fired upon him (witness) by his firearm pistol but he saved himself and did not receive gunshot injury. The witness has testified that he also returned fire once by his official firearm and challenged him to surrender on which the said person put his firearm in his dub and they overpowered him. The witness has further deposed that he disclosed his name as Priyawat @ Kala S/o Dayanand after which his pistol was taken in possession by and the same was checked by him (witness) during which four live cartridges were found in the magazine of the pistol and at some distance, one fired empty cartridge was also found. The witness has testified that he prepared the sketch of pistol, all live cartridges and fired cartridge and also took measurement of the above said pistol and cartridges which he mentioned in the sketch. He has proved that he sealed the fire empty cartridge in a cloth pullanda and sealed the same with the seal of SS and also sealed the live cartridges with pistol and magazine in a cloth pullanda and sealed with the seal of SS and then seized the above said pullanda vide seizure memos. He has also proved having sealed the above said motorcycle after which he prepared the rukka St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 24 of 96 for registration of the FIR and on the basis of rukka, FIR No. 109/2012 was registered at the Police Station Rai, District Sonepat. He has further deposed that ASI Surender Kumar came from Police Station who conducted the further investigation. He has proved having prepared the site plan vide Ex.PW13/A. The witness has also proved the sketch of the pistols and live cartridges which is Ex.PW13/B, seizure Memo of the pistol and cartridge which is Ex.PW13/C and copy of the FIR No.109/12 Police Station Rai which is Ex.PW13/D (3 pages). He has correctly identified the accused Priyawat @ Lala Lohar in the court and also identified the Pistol with magazine which is Ex.P1, live cartridges which are Ex.P2 & Ex.P3 and empty fired cartridge which is Ex.P4 which were found in possession of the accused Priyavrat.
(36) In his crossexamination by the Ld. Defence Counsel the witness has deposed that he received the secret information at the Barota Chowk and when he received the information they were six persons namely EHC Rajinder, Sipahi Raj Singh, Sipahi Jaideep, ASI Kuldeep and Sipahi Sunil. According to the witness, before sending the rukka to the Police Station, he had prepared the documents pertaining to Jamatalashi, sketch of the weapon along with bullets and recovery memo. He has testified that he remained at the place of incidence from 5 PM to 7.30 PM. He has further deposed that he followed the motorcycle of Priyawat on gypsy bearing no. HR697866 and all the policemen following the accused were armed. He has admitted that the road where the incident of firing took place is a road with the moving St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 25 of 96 heavy traffic and has voluntarily explained that the firing actually took place on the road. He has also deposed that some public persons had stopped when the firing took place and has voluntarily explained that he also tried to join them as witnesses but they refused. He is unable to tell the names and addresses of the persons who had refused to join the investigations. The witness has further deposed that he did not serve any notice to these persons for their refusal to join the investigations. He has denied the suggestion that no such incident took place and it is for this reason that no public persons have been shown to have joined the investigations. He has also deposed that when they left the police station, a joint entry was made by the MHCR but he did not make any separate departure entry. He has denied the suggestion that the accused was lifted from Govt. Polytechnique College and falsely implicated in the present case, or that all the documents were prepared while sitting in the police station on which all signatures of official witnesses were taken at the police station itself. He has further denied the suggestion that accused Priyawat did not make any disclosure statement or that the same was recorded by the Investigating Officer of his own or that the accused was compelled to put his signatures on papers which were converted into various memos later on. He has admitted that nobody received injuries in the alleged firing. According to the witness, the secret information was not incorporated in writing and has voluntarily explained that he orally informed the SHO on telephone about the same.
St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 26 of 96 (37) PW15 ASI Suresh Chand from Police Station Rai, District Sonepat, Haryana has deposed that on 11.04.2012 he was posted as Malkhana Mohrar at Police Station Rai, District Sonepat and on that day ASI Surender Singh deposited one sealed pullanda with the seal of SS containing pistol and four live cartridges, another sealed pullanda with the seal of SS containing empty cartridge case and one motorcycle bearing No. DL8SNC6662 in the malkhana in case FIR No. 109/12 and same was deposited in the malkhana vide serial No. 622 of register No. 19, copy of which is Ex.PW15/A. According to the witness, on 18.04.2012 two pullandas of the above said case FIR was sent to FSL Madhuban, Karnal vide RC No. 19 through EHC Surender and copy of the RC is Ex.PW15/B and copy of receipt of the FSL is Ex.PW15/C. He has proved that the case property was not tampered and seal was intact while the same remained in his possession. (38) In his cross examination, witness had denied the suggestion that the above entires have been fabricated at the instance of the investigating officer.
(39) PW16 Ct. Driver Jagbir Singh S/o Sh. Suraj Bhan, No. 4981/NW, PIS No. 28106079, PCR North West Zone, Delhi deposed that he is a resident of House No. 260, near Mogra Atta Chakki, Kutabhgarh, Delhi and on 10.02.2012 after doing the farming at his village at about 22:30 PM he saw many public persons at the Qutab Garh Sothi road near Murgi farm. According to the witness, he saw the dead body of a male person there and he immediately made a call at 100 number by his mobile phone bearing No. St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 27 of 96 9910839213.
(40) In his cross examination by the Ld. Defence Counsel the witness has deposed that he did not know the deceased prior to the date of the incident and threefour other persons were also present when he noticed the dead body.
(41) PW18 Ct. Ramakant is a formal witness who has been examined by way of affidavit which is Ex.PW18/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the RC No. 52/21/12 which is Ex.PW8/D and the FSL receipt which is Ex.PW18/E. This witness was not cross examined by Ld. Defence counsel, despite opportunity granted. (42) PW19 ASI Ram Rattan has deposed that on 9.3.2012 he was posted at police station Bawana and on that day, he along with HC Virender and Ct. Kushal Pal were present at the KanjahawalaNangal road near Shani Mandir for checking of the vehicles. According to the witness, at around 1:00 PM, one motorcycle came from the Kanjhawala area towards Nangal area and the motorcyclist was directed to stop but he accelerated his speed and thereafter HC Virender and Constable blocked the vehicle by putting barricades on the road and thereafter the motorcycle was stopped. He has testified that the motorcyclist disclosed his name as Rohit @ Sonu but he was unable to show the documents of the motorcycle and thereafter on his directions, HC Virender checked the pillion rider namely Rajesh @ Raje and one country made katta containing one live cartridge was recovered from his possession. Witness has further deposed that HC Virender conducted the St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 28 of 96 proceedings against the Rajesh @ Raje under Arms Act and prepared the sketch of the katta and cartridge vide Ex.PW19/A. According to the witness, HC Virender took the measurements of the same and sealed the katta and cartridge in a cloth pullanda and sealed the same with the seal of VS and seized the same vide seizure memo Ex.PW19/B. Witness has further deposed that HC Virender prepared the rukka and Ct. Kishore Pal went to the police station for registration of FIR with rukka and FIR No. 88/2012 was registered on the basis of the rukka. He has testified that the motorcycle which was found with Rohit and Rajesh bearing No. DL8S AH5575 was found to be a stolen property of the case FIR No.14/12 of Police Station Bawana. According to him, Ct. Kishore Pal came back from the police station and handed over the FIR No. 88/12 and the case file of FIR No.14/12 to him for further investigation after which he interrogated the accused Rajesh @ Raje and recorded his disclosure statement vide Ex.PW19/C. According to the witness, he arrested the accused Rajesh vide memo Ex.PW19/D and also having arrested the accused Rohit and Rajesh in case FIR No. 14/12.
(43) He has correctly identified the accused Rajesh in the court and also identified the case property i.e. one country made pistol with one empty fired cartridge as the pistol and cartridge recovered from the possession of the accused Rajesh @ Rajesh which Pistol is Ex.P5 and the cartridge is Ex.P6.
St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 29 of 96 (44) In his cross examination by Ld. Defence Counsel, witness has deposed that he was carrying a mobile phone which was subscribed to Idea Company. He has denied the suggestion that accused Rajesh was not arrested at the picket near the Shani Mandir or that the accused Rajesh was lifted from the Vikas Tailor shop from the village Katewara. He has also denied the suggestion that other shopkeepers also assembled there and they has also protested while they lifted Rajesh from the tailor shop or that he along with HC Virender reached at the Katewara village in a Maruti 800 car of white color belonging to HC Virender. Witness has testified that HC Virender is having a car but he is not aware whether it was Maruti or any other model. Witness has denied the suggestion that no motorcycle was recovered either from accused Rajesh @ Raje or Rohit or that HC Virender called somebody from the place of incident from his personal number and accused was arrested from his shop in the morning hours at about 7:30 AM from the Vikas Tailor shop where the younger brother of the accused, namely Vikas was also present at the shop. He has denied the suggestion Rohit was not with Rajesh @ Raje at the time of his arrest or that they have fabricated a false story regarding the incident or arrest at the barricade at Nangal road near Shani Mandir. He has further denied the suggestion that the accused Rohit was also arrested from his house from where he had returned from Sonepat after purchasing the articles for his sister's marriage or that the accused Rajesh @ Raje had not given any disclosure statement as same is concoction and fabrication by them along with the investigating officer of the St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 30 of 96 present case to implicate the innocent persons i.e. the accused. Witness has denied the suggestion that they had also gone to Katevara to the shop of the brother of the accused and has also inquired about his whereabouts and it was also informed that the wife of the accused was operated upon at the Sanjay Gandhi Hospital. Witness has denied the suggestion that HC Virender had given his personal number to the brother of accused namely Vikas and he was also directed to inform them as and when accused comes. (45) PW20 HC Satender Kumar has deposed that on 03.09.2012 he was posted at Special Cell Lodhi colony, Delhi and on that day he was present in the office of the Special Cell. He further deposed that SI Vinay Kumar received some secret information and had prepared a team comprising of himself, SI Vinay Kumar, SI Vidhya Dhar, SI Pawan Dahiya, HC Satender, HC Vinod, Ct. Vikas, Ct. Agam, Ct. Deepak, Ct. Ajay, Ct. Sunil Khatri and Ct. Anil Kumar after which they went to Police Station Bahadurgarh, Sadar in private vehicles. According to the witness, from Police Station Bahadurgah, Sadar local police were joined and at about 10:00 PM they reached village Sordha, Bahadurgarh where the secret informer pointed out the house of Mahavir Singh which house was surrounded by them and raid was conducted. The witness has also deposed that the neighbors were informed about the raid and they cooperated and from the said house Pawan S/o Mahavir was apprehended at around 10:1510:20 PM. He has also deposed that first they went to Police Station Sardar Bahadurgarh and made an entry there after which they returned to Special St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 31 of 96 Cell Office where the accused Pawan was arrested. According to him, the apprehension memo of the accused Pawan U/s 41.1 Cr. P.C. was prepared and the accused Pawan was then arrested vide memo Ex.PW20/A, his personal search was taken vide Ex.PW20/B and after interrogation the disclosure statement of accused was also recorded vide Ex.PW20/C. He has correctly identified the accused Pawan in the Court.
(46) Leading questions were put by Ld. Addl. PP for the State the witness has deposed that he is not aware if the neighboring houses were got vacated by the police and has voluntarily explained that he was made to stand at one place and it was the Investigating Officer who along with the local police was making arrangements and talking to neighbors. He has further deposed that his statement was recorded by the Investigating Officer in the office on the same day but he did not tell the Investigating Officer that the neighbors were asked to vacate their houses at the time of the raid and has voluntarily explained that he is not aware of this fact because he was on the other side.
(47) In his cross examination by the Ld. Defence Counsel the witness has deposed that they left their office at around 67 PM and no separate ravangi/ departure was made by him and has voluntarily explained that it was a combined departure. He is unable to tell how many private vehicles had gone for the raid and has stated that there were four other persons in the vehicle in which he was traveling. According to the witness, in his presence there was no public person in the police party and has voluntarily explained St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 32 of 96 that the secret informer was with the Investigating Officer but he is unable to tell if the Investigating Officer had made any attempt to join the public person in the raiding party either at Delhi or at Bahadurgarh Sadar or in village Sordha. He is unable to tell if the Investigating Officer had gone to the house of the pardhan or requested him to join the police party and has voluntarily explained that he was positioned at another place. According to him, the house of the accused Pawan which they had surrounded was not a big house and has voluntarily added that it was constructed upto first floor. The witness is unable to tell exactly how many persons were present in his house and has voluntarily explained that he had seen one aged person and one lady. He has admitted that Pawan did not offer any resistance to the police party. According to the witness, only a mobile was found in the personal search and there was no weapon or firearm recovered from the accused. The witness has also deposed that when the raid was conducted, the Delhi Police officials were in civil but the police officials of Haryana police were in uniform. He has testified that they reached back Delhi at the office of the Special Cell, Lodhi colony at around 11:3012 midnight but he is not very sure about the time. He has denied the suggestion that the accused Pawan had lifted from village Katewara bus stand on 01.09.2012 and his arrest was wrongly shown on 03.09.2012 only to legalize his illegal detention by falsely implicated him in the present case. Witness has further denied the suggestion that accused Pawan had not made any disclosure statement or that the Investigating Officer had recorded the same of his own. He has also St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 33 of 96 denied the suggestion that he had signed all the documents merely on the asking of the senior officers or that he had been unable to give the various details regarding the raid as he had never been a member of police party nor there had been any raid as claimed by him herein above.
(48) PW21 HC Virender Singh has deposed that on 09.03.2012 he was posted at police station Bawana and on that day, he along with ASI Ram Rattan and Ct. Kushal Pal were present at the Kanjhawala - Nangal road near Shani Mandir for checking of the vehicles. According to him at about 1 PM one motorcycle came from the Kanjhawala area towards Nangal area who was directed by ASI Ram Rattan to stop but he accelerated his speed. The witness has deposed that thereafter he (witness) and Constable blocked the vehicle by putting barricades on the road and thereafter motorcycle was stopped. He has further deposed that the motorcyclist disclosed his name as Rohit @ Sonu but he was unable to show the documents of the motorcycle and thereafter on the directions of ASI Ram Rattan, he checked the pillion rider namely Rajesh @ Raje. According to him one country made katta was recovered from the left dub of the accused Rajesh @ Raje and one live cartridge was found in the katta after which he (witness) conducted the proceedings against the accused Rajesh @ Raje under Arms Act. He has proved having prepared the sketch of the katta and cartridge vide Ex.PW19/A and took the measurements of the same and mentioned the same in the sketch in detail after which he sealed the katta and cartridge in a cloth pullanda and sealed the same with the seal of VS and seized the same vide St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 34 of 96 seizure memo Ex.PW19/B. Witness has further deposed that he prepared the rukka and Ct. Kishore Pal went to Police Station for registration of FIR with rukka pursuant to which FIR No.88/2012 was registered and the motorcycle found with Rohit and Rajesh bearing No. DL8SAH5575 was found to be a stolen property of the case FIR No.14/12 of Police Station Bawana. According to the witness, Ct. Kishore Pal came back from the Police Station and handed over the FIR No.88/12 to him for further investigations and he handed over all the documents to ASI Ram Rattan. Witness has further deposed that ASI Ram Rattan interrogated accused Rajesh @ Raje and recorded his disclosure statement vide Ex.PW19/C (six pages) and copy of the FIR No. 88/12 is Ex.PW21/A. According to him the accused Rajesh was then arrested by ASI Ram Rattan vide Ex.PW19/D. (49) Witness has correctly identified the accused Rajesh in the Court and also identified the case property i.e. one country made pistol with on empty fired cartridge as the same which were recovered from the possession of the accused Rajesh @ Raje, which Pistol is Ex.P5 and the cartridge is Ex.P6.
(50) In his cross examination by Ld. Defence Counsel, witness has deposed that they remained at the spot upto 5:30 PM which spot is a lonely spot and the very few people moved around there. Witness has admitted that the Kanjhawala Nangla road is a CoalTar road. According to the witness, during their proceedings some persons passed away from there but they were St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 35 of 96 not asked by them to join the proceedings. He has further deposed that the sketch and seizure memo prepared by him before sending the rukka to the Police Station. Witness has further deposed that the sketch Ex.PW19/A and seizure memo Ex.PW19/B were prepared by him and the contents are the same which were mentioned by him. According to him nothing was added or deleted later on. He has testified that Ct. Kushal Pal reached at the spot at about 3:30 PM with copy of FIR. He has also deposed that Investigating Officer did not record statement at at that spot. The witness has further deposed that they reached at the Police Station at about 5:30 PM and the Investigating Officer made arrival DD at the Police Station. He is not aware the dates of earlier raidchecking of the vehicles near the Shani Mandir prior to the date of incident. He does not remember the DD number by which they reached at the spot for checking of the vehicles. He has denied the suggestion that they were not checking vehicles on the Kanjhawala Nangal Road on 09.03.2012 and accused Rajesh @ Raje was not apprehended on that spot. Witness has denied the various suggestions put to him by the Ld. Defence Counsel.
(51) PW22 HC Dharampal has deposed that on 09.03.2012 he was posted as MHC(M) at Police Station Bawana and on that day Ct. Virender deposited one sealed pullanda duly sealed with the seal of VS containing one desi katta and one live cartridge as per the seizure memo, pursuant to which he deposited the same in the Malkhana vide entry No.276 in Register No.19 copy of which is Ex.PW22/A (running into two pages). The witness has St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 36 of 96 further deposed that on 10.03.2012 ASI Ram Rattan had deposited one Swift car bearing No. DL1CL8062 and he deposited the same in the malkhana vide entry No. 278 in register No. 19 copy of which is Ex.PW22/B. According to the witness, on 28.03.2012 on the directions of Investigating Officer HC Virender he send the exhibits to the FSL, Rohini through Ct. Ram Avtar vide RC No. 52/21/12 copy of which is Ex.PW22/C and after depositing the same in the FSL, Ct. Ram Avtar handed over to him receipt of FSL, copy of which is Ex.PW22/D. He has further deposed that on 17.03.2012 he sent the Swift Car to Police Station Narela on the directions of SHO through SI Deepak, Police Station Narela as an FIR No.57/12 in the respect of the same was registered at Police Station Narela vide RC No. 37/21/12, copy of which is Ex.PW22/E. (52) In his cross examination, the witness has denied the suggestion that above entries have been anti dated and fabricated on the directions of the Investigating Officer and senior officers or that the same are incorrect. (53) PW23 Ct. Kuldeep has deposed that on 10.02.2012 he was posted as Constable at Police Station Khanjawala and was on duty from 8AM to 8PM with SI Naresh. According to the witness, at about 2:30 PM they received a call vide DD No.18A on which he along with SI Naresh reached at Qutab Garh, Sohti Road where a dead body was found on the side of the road and the head of the dead body was towards the east and the legs were towards the west and there was blood around the head of the deceased and blood was coming out from the left side ribs and from the wrist of right side hand. The St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 37 of 96 witness has further deposed that blood was also lying on the ground and there were five empty cartridges of 9 mm and two empty cartridges/ hole of 8 mm and two lead pieces around the body and in the meantime, the SHO and ACP also reached the spot. He has also deposed that Crime Team was called by the SHO and after the crime team reached the spot they inspected the spot and lifted the exhibits and sealed the same. According to him, SI Naresh then prepared a tehrir and handed over the same to him and directed him to take the same to the Police Station for registration of the case pursuant to which he brought the tehrir to the Police Station and handed over to the Duty Officer who got the case registered. The witness has also deposed that he then returned to the spot alongwith the copy of the FIR and original tehrir and handed over the same to Inspector Mahesh Chand.
(54) In his cross examination by the Ld. Defence Counsel the witness has deposed that information regarding DD No. 18A was received at about 2:34 PM and he reached the spot along with SI Naresh in his private vehicle after about half an hour and has voluntarily explained that the road to the spot was broken and it was of distance between 1516 Kms of the spot from the police station and therefore it took them about half an hour. He has testified that large number of public persons had gathered when they reached there and PCR personals had already reached the spot. According to him, SI Naresh had made inquiries from the public persons standing there regarding eye witnesses but he could not find any eye witness at that time and has explained that he had not confirmed if anybody had claimed to be eye St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 38 of 96 witnesses but he saw him questioning some public persons. He has also deposed that the tehrir was handed over to him at around 6 PM which he took to the Police Station and thereafter he returned to the spot at around 8:308:35 PM. The witness has further deposed that he was not very sure but the Crime Team remained at the spot for the long time i.e. must be around one hour. He has denied the suggestion that he had not signed any documents at the spot.
(55) PW24 SI Rajesh Kumar has deposed that on 07.08.2012 he was posted at Police Station Kanjhawala and on that day he along with Inspector Mahesh Chand reached at Rohini Jail where Sanjay Rathi was in Judicial Custody and was interrogated by Inspector Mahesh Chand. He has proved that Sanjay Rathi was arrested vide Ex.PW24/A, his personal search was taken vide Ex.PW24/B and his disclosure statement was also recorded vide Ex.PW24/C after which accused Sanjay Rathi was handed over to the Jail authority of Rohini Jail. According to the witness, on the next day, he along with Inspector Mahesh Chand reached at Rohini Courts where accused Sanjay Rathi was produced before the concerned court and his Police Custody Remand was obtained by the Investigating Officer. He has testified that accused Sanjay Rathi pointed out the place of incidence at Qutub Garh Sohti road near poultry farm pursuant to which the Investigating Officer prepared the pointing out memo vide Ex.PW24/D. The witness has testified that he again joined the investigations with the Investigating Officer Inspector Arvind Kumar on 20.09.2012 and on that day he along with St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 39 of 96 Inspector Arvind reached at Rohini Courts where all the five accused of this case were produced. He has also deposed that the Investigating Officer interrogated the accused Sanjay Rathi and Pawan Pandit with the permission of the court and the Investigating Officer recorded a supplementary disclosure statement of accused Sanjay Rathi which is Ex.PW24/E. Witness has further deposed that after interrogation the Investigating Officer arrested the accused Pawan Pandit vide Ex.PW24/F and obtained the Police Custody remand of accused Pawan Pandit during which the accused Pawan Pandit pointed out the place of incident at Qutubgarh, Sohti road near poultry farm vide Ex.PW24/G. Witness has further deposed that the accused also pointed out a drain near village Jatkhod where he had thrown the katta i.e. the weapon of the offence on which the Investigating Officer prepared the pointing out memo vide Ex.PW24/H. The witness has explained that before Police Custody Remand of accused Pawan Pandit the Investigating Officer recorded disclosure statement of accused Pawan Pandit vide Ex.PW24/I (three pages). He has correctly identified the accused Sanjay Rathi and Pawan Pandit in the Court.
(56) In his cross examination by the Ld. Defence Counsel, the witness has deposed that the Investigating Officer did not record his statement regarding the proceedings conducted on 07.08.2012 and 08.08.2012. He has denied the suggestion that accused Sanjay Rahti was not interrogated, arrested in Rohini Jail in his presence that is why his statement was not recorded or that no disclosure statement of Sanjay Rathi was recorded in his St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 40 of 96 presence or that investigating officer obtained his signatures on blank papers at Police Station. Witness has further deposed that he does not remember for how many days the Investigating Officer obtained the Police Custody Remand of the accused Sanjay Rathi on 08.08.2012. He has also deposed that accused Sanjay Rathi was medically examined at about 3:00 to 4:00 PM and the accused thereafter pointed out the place of incident after about two hours. According to the witness, they were in the official gypsy and departure was made at the police station. He has further deposed that they remained at the place of incident during the pointing out proceedings for about 15 to 30 minutes and at that time there was normal traffic on the road. Witness has further deposed that the Investigating Officer had asked public persons to join the police proceedings but none agreed and investigating officer did not serve any notice upon the public persons who refused to join the police proceedings. He has also deposed that the Investigating Officer did not call the Naib courts at the time of recording of supplementary disclosure statement of the deceased Sanjay Rathi. According to the witness, the supplementary disclosure statement is in his handwriting. He has testified that he did not state in his statement to the Investigating Officer that the accused Pawan pointed out the place of incident i.e. Qutubgarh, Sohti road near the poultry farm. He has also deposed that he did not state in his statement to the Investigating Officer that the accused Pawan Pandit pointed out the drain near village Jatkhod where he had thrown the katta, the weapon of offence and investigating officer prepared the pointing out memo. He has St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 41 of 96 denied the suggestion that investigating officer did not record his statement on 20.09.2012 or that accused Pawan did not point out any place of incident and any drain near village Jatkhod that is why he did not state so to the police. Witness has further deposed that they tried to search the weapon of offence that is katta near the village Jatkhod at the instance of accused Pawan Pandit for about 45 minutes but no katta as recovered from there. He has also deposed that the Investigating Officer did not call any public persons during the above said proceedings of search in the drain. Witness has further deposed that there was twothree feet deep water and mud in the drain and it was Beat Constable Vijender and Sandeep who entered in the drain in search of the katta on the directions of Investigating Officer. He is not aware whether the Investigating Officer recorded their statement or not and states that the Investigating Officer did not obtained the signatures of Ct. Vijender and Sandeep on the pointing out memo. According to him, on 20.09.2012 they returned back to the Police Station at about 7:30 and 8 PM. He does not remember for how many days Police Custody Remand of accused Pawan Pandit was obtained by the Investigating Officer. He has testified that the Ivestigating Officer might have made arrival DD at the Police Station but did not make arrival DD in his presence. He has denied the suggestion that he did not join the investigation on 20.09.2012.
(57) PW25 SI Naresh Kumar has deposed that on 10.02.2012 he was posted at Police Station Kanjhawala and on that day he was on duty along with Ct. Kuldeep and on receipt of DD No. 18A, he reached the spot i.e. at St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 42 of 96 Qutab Garh, Sohti road at the farm of Mr. Deewan where a dead body of a young man aged around 2324 years was lying with his head towards east and legs were towards west. He has further deposed that he noticed a pool of blood under the head of the deceased and also noticed that there were two firearm injuries on the back side of his head. According to the witness, the deceased was wearing green T shirt and Grey paint which were blood stained and there was a loi wrapped around the body which was also blood stained. The witness has testified that five empty cartridges/khols of 9mm, two empty cartridges/ khols of 8mm and two led pieces were found lying around the dead body. He has also deposed that large number of persons were standing there and also passing through the area and he made inquiries from them and came to know that the deceased was Kuldeep S/o Rajeshwar Dayal, Resident of village Auchandi, Delhi. According to him, in the meantime the ACP and SHO also reached the spot and a message was also send to the Crime Team by the SHO pursuant to which the Crime Team came to the spot and inspected the scene of crime. He has proved having lifted the blood sample, earth control, blood stained earth, plain earth, fired cartridges/empty kohls, leads, loi lying at the spot which he took into possession and all the above exhibits were converted into pullandas and sealed with the seal of NKY and seized vide seizure memo Ex.PW25/A. The witness has also proved having prepared a tehrir which is Ex.PW25/B and handed it over the same to Ct. Kuldeep and directed him to take the same to the Police Station for registration of the case and the dead body was then got sent to mortuary of St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 43 of 96 SGM hospital through beat constable Bijender along with the request letter to the CMO mortuary for preserving the dead body. He has further deposed that in the meanwhile Ct. Kuldeep returned to the spot after registration of the FIR and handed over to the SHO Inspector Mahesh Chand Meena the original tehrir and the copy of the FIR and he (witness) also handed over the seizure memo with exhibits to the Investigating Officer. According to the witness, at his instance and pointing out the Investigating Officer prepared the site plan vide Ex.PW25/C after which the Investigating Officer tried to search for the suspects in the area but no one could be apprehended and thereafter his statement was recorded at the spot and he was relieved. The witness has further deposed that on 11.02.2012 at about 10:30 AM he reached the SGM Hospital along with the Investigating Officer where the Investigating Officer got the postmortem of the deceased conducted after identification of the dead body by the relative of the deceased. According to him, after the postmortem the dead body was handed over to the family members of the deceased. He has also deposed that on 14.03.2012 he came to Rohini Court Complex along with the Investigating Officer where the accused Rajesh was being produced in the court of Ld. MM vide a production warrant and after taking permission from the Ld. MM, the Investigating Officer interrogated the accused Rajesh outside the Court Room i.e. in the Ahlmad Room. The witness has proved that the Investigating Officer arrested the accused Rajesh vide memo Ex.PW25/D and also recorded his disclosure vide Ex.PW25/E. According to the witness, an St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 44 of 96 application was filed by the Investigating Officer for taking the Police Custody remand of the accused pursuant to which three days Police Custody remand was given by the Ld. Court after which the accused Rajesh was got medically examined from SGM hospital and then the accused Rajesh led them to the spot of incident and pointed out the place where the dead body of the deceased Kuldeep was lying and disclosed that it was the place where he and his associates had shot the deceased. He has proved that the Investigating Officer then prepared the pointing out memo which is Ex.PW25/F after which the accused Rajesh led them to various places at Delhi and Haryana and they searched for other accused persons. He has testified that on 15.03.2012 accused Rajesh took them to village Auchandi to the house of Ram Roop and on the pointing out of accused Rajesh, the accused Ram Roop was apprehended from his house and thereafter the Investigating Officer interrogated Ram Roop and arrested him vide memo Ex.PW25/G, his personal search was conducted vide memo Ex.PW25/H and his disclosure statement was also recorded vide Ex.PW25/I. The witness has further deposed that the accused Ram Roop then led them to the spot of the incident and pointed out the place where they had shot the deceased and where the dead body was found which pointing out memo is Ex.PW25/J. According to him, the accused were then got medically examined from SGM hospital after which they returned to the Police Station where his statement was recorded by the Investigating Officer.
St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 45 of 96 (58) With the permission of the Court leading questions were put to the witness by the Ld. Addl. PP for the State, wherein the witness admitted that on 10.02.2012 in the formal search of deceased Kuldeep Rs.8,120/, one mobile phone of TATA Indicom and another mobile phone FARRAY, one strip of tablet of Alprequil of .25 quantity 20 were recovered which were seized by the Investigating Officer Inspector Mahesh Chand vide memo Ex.PW25/K. He has further admitted that after postmortem doctor handed over one plastic container containing four lead in sealed condition with the seal of SGMH Mortuary, Mangolpuri Delhi and one plastic bag containing the clothes of the deceased in sealed condition with the seal of SGMH mortuary and one envelope containing the blood on gauze of the deceased in sealed condition with above said seal with sample seal to Inspector Mahesh Chand who seized the same vide Ex.PW25/L. The witness has also admitted that on 10.02.2012 he prepared the sketch of two empty cartridges and one lead vide Ex.PW25/M and on 10.02.2012 he prepared the sketch of the fired empty cartridges of 9mm vide Ex.PW25/N. (59) The witness has correctly identified the accused Rajesh and Ram Roop in the Court and also identified the case property i.e. one Loi which is Ex.P7, two fired cartridges case of 8 mm and one lead which are collectively Ex.P8, four empty cartridge cases of 9mm as recovered from the spot which are collectively Ex.P9.
(60) In his cross examination by the Ld. Defence Counsel the witness St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 46 of 96 has deposed that he does not know who had first made a call to the police on 100 number and has voluntarily explained that only the Investigating Officer can tell. He has further deposed that when he reached the spot a large number of public persons were standing there. He has also deposed that around 4050 persons must have been present and most of them were just looking at the spot and then going. According to the witness, accused Ram Roop was not present at the spot when he reached there. Witness has denied the suggestion that he took Ram Roop to the police station along with him for purposes of interrogation or that Ram Roop had informed him that one Vijay was consuming Ganja along with the deceased Kuldeep when the assailants came and shot at Kuldeep. Witness has further denied the suggestion that Ram Roop also informed him that Vijay had called him while he was sitting at pullia about 200 meters away from the spot of the incident and told him about the shouting incident on which Ram Roop made a PCR call. He is unable to tell whether the first 100 number call made by Ram Roop was went to Sonepat on which Ram Roop again made a second call on 100 number which was directed to Delhi police and informed them about the incident. He has denied the suggestion that Ram Roop met him at the spot and had informed him about the same or that he was deliberately concealing this aspect of Ram Roop had made a 100 number call. Witness has further denied the suggestion that Vijay had been lifted from Sonepat on 12.02.2012 and detained in the police station but later on let off or that one Satpal @ Kukki was also lifted from village Auchandi and detained for investigations and St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 47 of 96 later on let off. He has also denied the suggestion that the accused Ram Roop has no connection with accused Sanjay Rathi or any other accused in the present case and he has been falsely implicated by diverting the investigations towards him. He has also denied the suggestion that accused Ram Roop was lifted from his house at Burari on 09.03.2012 after he was released on bail on 06.03.2012 in FIR No. 12/2012, PS Bawana U/s 186 IPC dated 10.02.2012 when he was arrested in the above FIR on 16.02.2012. Witness has further denied the suggestion that Ram Roop was continuing in illegal detention of the police since 09.03.2012 and only to legalized the detention he was falsely implicated in the present case. He has also denied the suggestion that Ram Roop and Rajesh had made no disclosure statements as claimed by him. He has admitted the suggestion that pursuant to the disclosure made by the accused there was no recovery. According to the witness, the seal after use on the exhibits seized by him was handed over to Ct. Kuldeep which seal was taken back by him on the next day but no memo regarding the handing over the seal or taking over the same was prepared. The witness has testified that the Investigating Officer did not join any public witness in his presence at the time of apprehension and arrest of accused Ram Roop and recording his disclosure statement nor the Investigating Officer joined any public witness while recording the disclosure of Rajesh outside the court despite the availability of court staff and other public persons. Witness has denied the suggestion that the above exhibits lifted by him from the spot were tampered by him in order to falsely implicate and St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 48 of 96 connect the accused persons with the offence in the present case. Witness has denied the suggestion that one katta was found in possession of the deceased Kuldeep which has deliberately not been shown in the various documents prepared by him at the spot.
(61) PW27 ASI Anil Kumar has deposed that on 12.07.2012 he was posted at AATS, Outer District, Delhi and they were receiving information regarding Sanjay Rathi and Pawan Pandit who were rewarded criminals. According to the witness, on 12.07.2012 at about 12.00 Noon they received information that Sanjay Rathi and Pawan Pandit were coming to the Bawana Area which information was given to the senior officers and on the directions of senior officers they proceeded further and made DD entry vide DD No.4 in their office. He has further deposed that Raiding Team was formed consisting of HC Shamsher, HC Balraj, Ct. Rajiv Raghav, Ct. Ramesh Rana, Ct. Manoj, Inspector Swadesh Prakash and himself after which they proceeded towards the Bawana Canal with the secret informer. The witness has also deposed that they asked threefour public persons to join the police proceedings after disclosing the secret information to them but none agreed and left the place without telling their names and addresses on the one pretext or other. He has testified that at about 2.10 PM one motorcycle came from the Village Harevali area and only one motorcyclist was on the motorcycle, on which the secret informer pointed out the motorcyclist as Sanjay Rathi and then the secret informer left the place. According to the witness, HC Balraj and Ct. Manoj were in police uniform and they directed motorcyclist St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 49 of 96 Sanjay Rathi to stop but he turned his motorcycle and returned to the way from where he was coming on which his motorcycle slipped and HC Shamsher and Ct. Rajiv Raghav ran towards him. The witness has further deposed that the motorcyclist took out his pistol and fired upon HC Shamsher but he saved himself and did not receive any injury after which HC Shamsher and Ct. Rajiv Raghav overpowered him and his pistol was handed over to him (witness) by HC Shamsher. According to the witness, he checked the pistol and three live cartridges were found in the magazine of the pistol and one empty fired cartridge was also found on the ground near the place. The witness has proved having prepared the sketch of the pistol, live cartridges and empty fired cartridge vide Ex.PW27/A. He has testified that he sealed the above said recovered articles in a cloth pullanda with the seal of AK and seized the same vide seizure memo Ex.PW27/B after which he also filled the FSL form and handed over the seal to HC Shamsher after use. He has proved having seized the motorcycle which was found a stolen property from Police Station Vijay Vihar. According to the witness, he prepared the rukka and handed over the same to Ct. Rajiv Raghav for the registration of FIR and on the basis of same FIR No.229/12 was registered at Police Station Bawana and thereafter SI Ram Kumar came at the spot being the Investigating Officer of the case and he handed over all the seized articles and document prepared by him to SI Ram Kumar after which he left the spot.
(62) The witness has correctly identified the accused Sanjay Rathi in the court and has also identified one pistol with magazine and one live St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 50 of 96 cartridge and three empty fired cartridges recovered from the possession of the accused Sanjay Rathi, which pistol is Ex.P10 and cartridges are collectively Ex.P11.
(63) In his cross examination by the Ld. Defence Counsel the witness has deposed that he is not aware if they ever recorded any DD regarding the information against accused Sanjay Rathi and Pawan Pandit. He has further deposed that the Investigating Officer recorded his statement in this case but he is unable to tell about the date when his statement was recorded. According to the witness, he informed senior officers immediately about the information and they were eight persons including the secret informer when they proceeded from their office. He has also deposed that the secret informer came to their office at 12.00 Noon and they proceeded from their office in two vehicles, one was Verna car belonging to HC Balraj and the other was one Santro car belonging to him. The witness has also deposed that he did not mention the registration number and make of above vehicles in the departure DD entry. According to him, they reached the spot at about 1.45 PM. He has further deposed that he did not serve any notice to the persons who refused to join the police proceedings. He has testified that two police officials were in police uniform and were on the road and the secret informer pointed towards the accused Sanjay Rathi from a distance of about 100 meters. He has also deposed that the accused Sanjay Rathi was wearing helmet at that time and the police officials HC Balraj, Ct. Manoj and himself directed the motorcyclist to stop his motorcycle at a distance of 10 to 15 St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 51 of 96 paces. He has further deposed that accused Sanjay Rathi stopped his motorcycle and tried to turn his motorcycle but his motorcycle slipped and he fell down on the road. The witness has also deposed that there were only minor scratches caused on motorcycle but accused Sanjay Rathi did not receive any injury due to the fall. He has also deposed that the motorcycle was not mechanically inspected in his presence. According to the witness, he prepared the seizure memo, sketch and rukka at the spot and he left the spot at about 5.00 PM. The witness has also deposed that he did not state in his statement to the Investigating Officer that secret informer left the spot after pointed towards the accused Sanjay Rathi. He has further deposed that he did not prepare any site plan and it was SI Ram Kumar, Investigating Officer of the case who prepared the site plan at his instance. The witness has further deposed that he handed over the seal to HC Shamsher at the spot after use but he did not prepared any memo regarding handing over of the seal. He has also deposed that he did not point out to the Investigating Officer while he prepared the site plan about the position of secret informer. According to the witness, he had shown the place of arrest of accused Sanjay Rathi and the place from where lifted the empty fired cartridge while Investigating Officer prepared the site plan. The witness has also deposed that he sent rukka at about 4.00 PM and Ct. Rajiv Raghav did not return from the police station with copy of FIR in his presence. He has stated that he told the Investigating Officer in his statement that HC Shamsher and Ct. Rajiv Raghav ran towards accused Sanjay Rathi and he took out his motorcycle and fired upon HC St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 52 of 96 Shamsher but when confronted with his statement Ex.PW27/DA the above fact was not found so recorded. He has also deposed that the Investigating Officer of this case and Investigating Officer of FIR No. 229/12 of Police Station Bawana recorded his statement. He has further testified that the Investigating Officer of case FIR No. 229/12 did not record statement of any witness in his presence. He has denied suggestion that no raid was conducted on 12.07.2012 or that accused was not arrested in the manner as alleged by him. He has also denied suggestion that no arms was recovered from the possession of accused Sanjay Rathi in his presence or that the same has been planted upon him falsely or that the accused had been lifted from Meerut when he had gone there to meet his friend.
(64) PW28 HC Shamsher Singh has corroborated the testimony of SI Anil in toto and has proved the apprehension and arrest of accused Sanjay Rathi and Pawan Pandit. He has also proved that SI Ram Kumar arrested accused Sanjay Rathi and recorded his disclosure statement vide Ex.PW28/A. (65) The witness has correctly identified the accused Sanjay Rathi in the court and has also identified one pistol with magazine and one live cartridge and three empty fired cartridges recovered from the possession of the accused Sanjay Rathi, which pistol is Ex.P10 and cartridges are collectively Ex.P11.
(66) He has been crossexamined by the Ld. Defence Counsel at length but nothing much has come out of the same and there are no material St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 53 of 96 contradictions.
(67) PW29 SI Ram Kumar has deposed that on 12.07.2012 he was posted at AATS, Outer District, Delhi and on that day on the directions of the senior officers he reached at the spot i.e. GhoghaHarevali Road near Canal where ASI Anil alongwith his staff met him and produced the accused Sanjay Rathi before him. The witness has further deposed that ASI Anil also produced the documents alongwith sealed pullanda before him after which he (witness) prepared the site plan at his instance. According to the witness, Ct. Rajiv Raghav reached at the spot and handed over copy of the FIR No. 229/12 of Police Station Bawana copy of which is Ex.PW29/A and original rukka to him for further investigations. The witness has proved having arrested the accused Sanjay Rathi and having recorded his disclosure statement vide Ex.PW28/A after which he informed the concerned Police Station regarding the arrest of accused Sanjay Rathi and his disclosure statement. He has testified that he submitted the charge sheet accused Sanjay Rathi in case FIR No. 229/12 of Police Station Bawana. He has correctly identified the accused Sanjay Rathi in the Court.
(68) In his cross examination by the Ld. Defence Counsel the witness had deposed that he did not call any public witness during his proceedings. He has admitted that nothing was recovered in pursuance of the disclosure statement of accused Sanjay Rathi which was recorded by him. He has denied the suggestion that no disclosure statement was made by accused Sanjay Rathi or that same was recorded by himself after obtaining the St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 54 of 96 signatures of accused Sanjay Rathi on blank papers.
(69) PW30 Inspector Mahesh is the Investigating Officer of the present case who has deposed that on 10.02.2012 he was posted at Police Station Kanjhawala as SHO and on that day a DD No.18A was recorded in police station which was attended by SI Naresh who informed him that a dead body was found at the spot i.e. at QutabgarghSohti Road, near Poultry Farm pursuant to which he also reached the spot at about 3.153.30PM. According to the witness, SI Naresh, Ct. Kuldeep and the PCR Van were present at the spot. He has further deposed that he saw the dead body of a male person aged about 2425 years old and blood was also found at the spot. The witness has also deposed that five empty fired cartridges of 9 mm and four fired empty cartridges of 8mm and two lead were also found at the spot and two mobile phones were also found at the spot. He has proved having called the Crime Team at the spot and they inspected the scene of crime and took photographs after which he (witness) obtained the crime team report which is Ex.PW2/A. According to the witness, SI Naresh made endorsement on DD No.18A vide Ex.PW25/B for registration of FIR through Ct. Kuldeep which DD No.18A is Ex.PW30/A and thereafter he took over the investigation of this case. He has proved having prepared the site plan at the instance of SI Naresh which site plan is Ex.PW25/C. He has also proved having seized the personal articles of the deceased Kuldeep i.e. Rs.8,120/, two mobile phones and one medicines strips of Alprequil vide seizure memo Ex.PW25/K after which the dead body of Kuldeep was shifted to SGM St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 55 of 96 Hospital Mortuary for postmortem examination. According to the witness, on 11.02.2012 he reached at the SGM Hospital Mortuary and filledup the inquest form which is Ex.PW30/B. The witness has proved having recorded the statement of Rajeshwar Dayal and Satbir Singh for identification of dead body vide Ex.PW11/A and Ex.PW1/A respectively, having prepared the brief facts vide Ex.PW30/C and having made request for the postmortem vide Ex.PW30/D. He has also deposed that after postmortem he handed over the dead body to the relatives of the deceased vide Ex.PW11/B and the doctor handed over one plastic container in sealed condition with the seal of SGMH Mortuary, Mangolpuri, Delhi containing four lead and one plastic bag in sealed condition with the above said seal containing the clothes of the deceased; one envelop in sealed condition with above said seal containing blood on gauze of the deceased with one sample seal to him which he seized vide seizure memo Ex.PW25/L. The witness has testified that he deposited the above said articles in the malkhana and recorded the statement of witnesses.
(70) The witness has further testified that on 09.03.2012 they received an information from Police Station Bawana that the accused Rajesh @ Raje was arrested by them who made a disclosure statement of their case, on which he moved an application for issuance of production warrant of the accused Rajesh @ Raje. He has testified that on 14.03.2012 accused Rajesh @ Raje appeared before the court and with the permission of the court he interrogated the accused Rajesh who confessed about his involvement in his St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 56 of 96 case after which the accused Rajesh was arrested vide Ex.PW25/B and his disclosure statement was recorded vide Ex.PW25/E. The witness has proved that three days' Police Custody remand of accused Rajesh @ Raje was obtained during which accused Rajesh @ Raje pointed out the place of incident at QutabgarhSohti Road near Poultry Farm where he alongwith his coaccused Sanjay Rathi, Pawan Pandit, Priyavar committed the murder of Kuldeep and he (witness) prepared the pointing out memo Ex.PW25/F. The witness has also deposed that on 15.03.2012 at the instance of accused Rajesh @ Raje they reached at Village Auchandi and at his instance accused Ram Roop was apprehended and was interrogated after which the accused Ram Roop was arrested vide memo Ex.PW25/G, his personal search was taken vide Ex.PW25/H and his disclosure statement was recorded by him vide Ex.PW25/I. The witness has also deposed that the accused Ram Roop also pointed out the place of incident vide memo Ex.PW25/J. According to the witness, he recorded the statement of witnesses and also searched the co accused Sanjay Rathi, Pawan Pandit and Priyavat @ Kala Luhar but they could not be apprehended. He has testified that he produced the accused Rajesh @ Raje and Ram Roop before the court and they were sent to the Judicial Custody. The witness has also deposed that he obtained the NBWs of accused Sanjay Rathi, Pawan Pandit and Priyavat @ Kala Luhar and got prepared the scaled site plan through SI Manohar Lal. He has further deposed that exhibits of this case were sent to FSL, Rohini Delhi and FSL St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 57 of 96 Madhuban, Karnal, Haryana. The witness has testified that in the month of May 2012 he received information regarding arrest of accused Priyavat @ Kala Luhar by police of Police Station Rai and police of Police Station Narela.
(71) According to the witness, on 28.05.2012 he interrogated the accused Priyavat in the Rohini Jail with the permission of the court and he confessed about his involvement in this case, after which he arrested the accused Priyavrat vide memo Ex.PW30/E, his disclosure statement was recorded vide Ex.PW30/F. He has also deposed that on 29.05.2012 two days Police Custody remand of the accused Priyavrat was obtained during which on 30.05.2012 he pointed the place of incident vide Ex.PW30/G. The witness has also deposed that he recorded statement of witnesses after which the accused Priyavrat was produced before the court and he was sent to Judicial Custody. He has testified that proceeding under Section 82 Cr.P.C. was initiated against accused Pawan Pandit and Sanjay Rathi and after completion of investigations he submitted charge sheet against accused Rajesh @ Raje, Ram Roop and Priyavrat @ Kala Luhar.
(72) The witness has further deposed that on 07.08.2012 he received information that accused Sanjay Rathi was arrested by AATS staff pursuant to which he interrogated accused Sanjay Rathi at Rohini Jail with the permission of the Court and he confessed about his involvement in this case, after which he arrested the accused Sanjay Rathi in this case vide memo Ex.PW24/A, his personal search was taken vide Ex.PW24/B and his St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 58 of 96 disclosure statement was recorded vide Ex.PW24/C. According to the witness, on 08.08.2012 accused Sanjay Rathi was produced before the court and two days' Police Custody remand was obtained during which the accused Sanjay Rathi pointed out the place of incident vide Ex.PW24/D and thereafter he was produced before the court and was sent to Judicial Custody. He has testified that during his investigations he collected the documents from the Police Station Bawana of FIR No. 88/12 and 14/12 regarding the accused Rajesh @ Raja. He has proved having collected the documents from Police Station Rai in the case FIR No.109/12 regarding the accused Priyavat @ Kala Luhar. The witness has further deposed that he also collected the documents from the AATS Outer District of the case FIR No. 229/12 of Police Station Bawana regarding the accused Sanjay Rathi and also collected the postmortem report, inquest papers and the photographs. According to him, thereafter he was transferred from the police station and he handed over the case file to the MHC(R). He has correctly identified the accused Rajesh @ Raje, Ram Roop, Priyavat @ Kala Luhar and Sanjay Rathi in the Court. (73) In his cross examination by the Ld. Defence Counsels the witness has deposed that he reached at the spot alongwith driver and operator but he did not remember their names now. According to the witness, Crime Team officials reached the spot but he does not remember the exact time when they reached at the spot and has stated that the Crime Team officials left the spot at about 5.30PM. He has also deposed that when he reached the spot he was informed by SI Naresh about the identity of the deceased as he was informed St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 59 of 96 earlier by some unknown person of Village Auchandi. The witness has further deposed that accused Ram Roop came at the spot and informed about the identity of deceased Kuldeep. According to the witness, he was informed by accused Ram Roop that he (Ram Roop) alongwith deceased Kuldeep were walking and when four to five unknown persons shot dead his friend Kuldeep. The witness has further deposed that he did not record statement of Ram Roop at that time who was present at the time of incident. He has testified that he collected the PCR Form which is Ex.PW5/A. He has admitted that Ram Roop has been shown as informant on Ex.PW5/A and has deposed that he had made investigations on the aspect if Ram Roop was an eyewitness to the incident. He has denied the suggestion that the investigations confirmed Ram Roop to be an eye witness but since it was a blind murder he was implicated as an accused to workout the case. Witness has further deposed that investigations could not bring forth any motive against Ram Roop for the reason why he would have killed Kuldeep. He has denied the suggestion that Ram Roop had disclosed to the police that Vijay S/o Suraj Prakash was also with them at the time of incident and had witnessed the incident after he had ran away from the spot on which he had detained Vijay and interrogated him but later let him off. The witness has also denied suggestion that Ram Roop had been lifted from his house on 09.03.2012 after he was released in FIR No. 51/2012 of PS Bawana on 06.03.2012 and thereafter illegally detained and falsely implicated in this case to workout this case or that Ram Roop remained in their custody St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 60 of 96 throughout since 09.03.2012. The witness has testified that SI Naresh lifted the exhibits from the spot in his presence after the proceedings of the crime team officials. He has also deposed that he did not record statement of crime team officials at the spot. He does not remember the number of photographs taken by the crime team photographer. He has testified that SI Naresh pointed out the poultry farm (murgi farm) and the same has been shown by him in the site plan but he had not shown the position of the empty cartridges and lead found at the spot, in the site plan. According to him, 5060 public persons were present at the spot when he reached there but he did not know their names and addresses. He has further deposed that he asked them i.e. public persons to join the proceedings but none agreed but did not serve any notice for their refusal. He has also deposed that SI Naresh sent rukka at 6.00PM and Ct. Kuldeep brought the copy of FIR and original rukka at the spot at 7.45PM. The witness has testified that on 11.02.2012 he recorded the statement of Rajeshwar Dayal and Satbir Singh as what they have told him and after recording the statement he had read over the statement to them which they have accepted as true and correct and that they had made their statement voluntarily. According to the witness, Rajeshwar Dayal and Satbir had not expressed any suspicion on any person at that time. He has further deposed that he did not record any other statement of Rajeshwar Dayal at Satbir except the statements Ex.PW11/A and Ex.PW1/A. He has also deposed that before 15.03.2012 he did not make any efforts to arrest accused Ram Roop as there was no incriminating evidence against Ram Roop on St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 61 of 96 record.
(74) The witness has further deposed that the police officials of Police Station Bawana had sent a message to Police Station Kanjhawala regarding the arrest of Rajesh @ Raje and a separate DD entry was made in this regard but he is unable to tell the number of the said DD nor is he able to tell whether the said DD is placed on record or not. He has denied the suggestion that accused Rajesh @ Raje did not make any disclosure statement or that he had not pointed out the spot of incident or that his signatures were obtained on blank papers or that he has been falsely implicated. He has also deposed that on 14.03.2012 he alongwith accused Rajesh @ Raje reached at the spot of incident at about 7.00PM and no public person was asked to join the investigation at the spot. He has testified that on 15.03.2012 he reached the house of accused Ram Roop at Village Auchandi at about 6.00PM in a government Gypsey and he made departure entry in this regard but the same is not on record. According to him, they made search for accused Sanjay Rathi at various places but he is unable to tell the places where he had searched for him. The witness has testified that he only recorded statement of MHC(M) of Police Station Rai and not of other police official. He has also deposed that he recorded disclosure statement of accused Priyavat and Sanjay Rathi at Rohini Jail but did not cite the superintendent or other official as witness to the disclosure statement nor he joined any jail staff in the interrogation of the accused Priyavat and Sanjay Rathi. He has denied the suggestion that he had not conducted the investigation in a fair manner or that St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 62 of 96 he had implicated the accused persons falsely and also created false memos and disclosure statements by obtaining the signatures of accused persons on the blank papers.
(75) PW31 Inspector Arvind Kumar is the subsequent Investigating Officer who has deposed that on 12.09.2012 he took over the charge of SHO of the police station Kanjhawala and also took over the investigations of this case. According to the witness, on 20.09.2012 accused Pawan was produced before the court after which he interrogated the accused Pawan with the permission of the court and arrested the accused Pawan Pandit vide memo Ex.PW24/F, his disclosure statement was recorded vide Ex.PW24/I. He has testified that accused Sanjay Rathi was produced before the court after which he (witness) also interrogated him with the permission of the court and recorded his supplementary disclosure statement which is Ex.PW24/E. According to him, two days Police Custody remand of the accused Pawan was obtained during which on 21.9.2012 accused Pawan Pandit pointed out the place of incident where he along with coaccused committed the murder of Kuldeep, vide Ex.PW24/G. He has testified that the accused Pawan also pointed out the place a drain near the village Jatkhore where he had thrown the weapon of offence in the drain after committing the murder of Kuldeep. He has proved having prepared the pointing out memo vide Ex.PW24/H after which drain was searched but no weapon was recovered from there and then accused Pawan was produced before the court and was sent to Judicial Custody. He has proved having collected the documents of Kalandara U/s St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 63 of 96 41 Cr.P.C of DD No. 21 dated 03.09.2012 of Police Station Special Cell, Lodhi Colony New Delhi regarding the accused Pawan Pandit. (76) The witness has further deposed that on 09.10.2012 exhibits of this case were sent to the FSL Rohini, Delhi through Ct. Bijender to match the same with the case property of case FIR No. 88/12, Police Station Bawana. He has proved having collected the FSL results Ex.PW14/A and Ex.PW14/B, the Ballistics Expert report from FSL Rohini which is Ex.PW31/A and also collected the Ballistics expert report from FSL Madhuban Karnal, Haryana which is Ex.PW31/B. The witness has further deposed that after completion of investigations he filed the supplementary charge sheet in this case. He has correctly identified the accused Pawan Pandit and accused Sanjay Rathi in the court.
(77) In his crossexamination by the Ld. Defence Counsel the witness has admitted that the disclosure statements of accused Pawan Pandit and accused Sanjay Rathi do not bear the signatures of any public witnesses. He has also admitted that both these accused were interrogated outside the Court. According to the witness, he did not join any public witness or court staff while interrogating these accused outside the court. He has denied the suggestion that the accused Pawan Pandit and accused Sanjay Rathi did not make any disclosure statement or that he recorded the same of his own only to connect them with the present case and work out the same. He has admitted that there was no recovery pursuant to the above disclosures of the accused Pawan Pandit and accused Sanjay Rathi.
St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 64 of 96 STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:
(78) After completion of prosecution evidence the statements of the accused persons have been recorded under Section 313 Cr.P.C. wherein all incriminating evidence was put to them which they have denied. The accused Rajesh @ Raje has stated that he is innocent and has been falsely implicated. According to the accused, he is a tailor by profession and he was at his house when he was picked up by SI Ram Rattan and SI Virender after which they falsely implicated him in the present case.
(79) The accused Ram Roop has stated that he is innocent since he had a quarrel with HC Krishan Pal on the date of incident and a false FIR bearing No. 51/2012 was lodged under Section 186/353/332/34 IPC read with 25/27 of Arms Act at Police Station Bawana. According to the accused, on the day of incident he along with the deceased Kuldeep were on the run as they were afraid that they might be implicated in a false case of rape since Kuldeep was in a love affair with a village girl namely Pooja who was with Kuldeep for the last two nights and on the date of incident in the morning hours she had gone to her house in the village. He has further stated that he along with Vijay S/o Kitab Singh were there and Kuldeep and Vijay were taking gaanja by filling the same in the cigarette. According to him, he was also on motorcycle and they were coming towards Qutub Garh and he was 200 meters ahead of both of them and was waiting for them when in the meantime Vijay came running to him and informed that fourfive persons with muffled faces had shot at Kuldeep who was lying there on which he St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 65 of 96 immediately rushed to the place of incident and made a call at 100 number.
The accused has also stated that his call was attended by the Police Station at Sonepat and was directed to make a call to Delhi on which he again made a call at 100 number which was attended by Delhi Police and he informed them about the incident. He has further stated that on reaching the police at the spot he and Vijay narrated the entire incident to the police after which both of them were taken to Police Staiton Kanjhawla where they were detained for one week. According to him, one Satpal @ Kukki was also detained by the police along with them but after one week Vijay and Kukki were set free whereas he was handed over to Police Station Bawana for investigations in the case registered vide FIR No. 51/2012 and he was released on bail on 6.3.2012 and was again arrested from his brother's house at Burari (Nathupura) on 9.3.2012 in the presence of his father and brother and later on implicated in the present case. According to the accused, he never met with any of the coaccused persons in this case and he never seen or talked with any other them prior to his arrest in this case. He has further stated that he is being victimized because he had a quarrel with HC Krishan Pal. (80) The accused Priyavrat has stated that he is innocent and has been falsely implicated by the police. According to the accused, he was lifted by the police from in front of Government PolyTechnique Sonepat. He has stated that he has not committed any offence as alleged in this case and he is not known to the coaccused of this case.
St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 66 of 96 (81) The accused Sanjay Rathi has similarly stated that he is innocent and has been falsely implicated by the police. According to the accused, he was lifted by the police from Ganga Nagar, Meerut and falsely implicated in this case. He has stated that he has not committed any offence as alleged in this case and he is not known to the coaccused of this case. (82) The accused Pawan Pandit has stated that he is innocent and has been falsely implicated by the police. According to the accused, he was lifted by the police from Katewra Bus Stand and falsely implicated in this case. He has stated that he has not committed any offence as alleged in this case and he is not known to the coaccused of this case.
(83) The accused Ram Roop has examined as many as Five witnesses in his defence. DW1 Sh. R.K. Singh, Nodal Officer from Bharti Airtel Ltd. has brought the record pertaining to mobile No. 8130584341 which is issued in the name of Ram Roop S/o Sh. Rajender Singh, R/o Village and post office Auchandi, copy of which is Ex.DW1/A, copy of driving licence in support of residence proof which is Ex.DW1/B. The witness has proved that the said number remained with Ram Roop from 17.03.2011 till 12.02.2010 and thereafter it was issued on 19.06.2012 to Harender Sahni S/o Sh. Raja Dev Sahni, R/o 487, Duggal colony, Khanpur, Delhi vide Customer Application Form which is Ex.DW1/C, copy of Election voter ID Card in support of residence proof which is Ex.DW1/D which was remained with him from 19.06.2012 to 01.07.2012. He has also proved that thereafter on St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 67 of 96 21.11.2012 the said number was issued to Rajan Saini S/o Sh. Mahesh Saini, R/o 3H/28, NIT, Haryana, Faridabad, Haryana vide Customer Application Form which is Ex.DW1/E, copy of passport in support of residence proof which is Ex.DW1/F which is still with him from 21.11.2012. The witness has placed on record the call details from the period 01.01.2012 to 31.12.2012 which are Ex.DW1/G (running into 51 page), Cell ID Chart which is Ex.DW1/H (running into 13 page) and Certificate U/s 65 B of Indian Evidence Act which is Ex.DW1/I. He has not been crossexamined by the Ld. Addl. PP for the State despite opportunity in this regard. (84) DW2 SI Jasmer Singh, Incharge Police Control Room Sonepat, Haryana has deposed that the PCR call details record dated 10.02.2012 has been destroyed, and hence he is unable to tell whether on 10.02.2012 there was any call made to PCR Sonepat, Haryana regarding murder at Auchandi, Haryana. He has proved they entry No. 10 in their destruction record register reflects that the record was destroyed on 02.07.2013, copy of which is Ex.DW2/A. He has not been crossexamined by the Ld. Addl. PP for the State despite opportunity in this regard.
(85) DW3 Sh. Rajender Singh is the father of accused Ram Roop. He has deposed that he had retired as ASI from Haryana Police and on 09.02.2012 the accused Ram Roop and deceased Kuldeep had an altercation with some police personals in the village on the issue of a girl namely Pooja of Balmiki Community as she had an affair with deceased Kuldeep. He has St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 68 of 96 also deposed that thereafter both the deceased Kuldeep and Ram Roop ran away from the village and did not return till next day and on the next day i.e. 10.02.2012, he called up accused Ram Roop on his telephone and asked him to come home on which he replied that there were chances that he and Kuldeep might be implicated in a false rape case and hence they would not return. The witness has further deposed that on 10.02.2012 police personals from Police Station Bawana came and picked up his son Jagat Roop and the mother of deceased Kuldeep and a false case was registered against accused Ram Roop and Kuldeep vide FIR No. 51/2012 at Police Station Bawana U/s 186/353/332/34 IPC and at that time when he (witness) was at Chandigarh, Ram Roop called him on telephone and informed that Kuldeep was shot dead by some unknown persons. The witness has testified that later on he came back from Chandigarh and went to Kanjhawala Police Station as Ram Roop was detained there and he met with SHO Inspector Mahesh Meena and on inquiry it was informed that his son was interrogated by the police. According to the witness, he requested to have a meeting with his son Ram Roop on which he was allowed and he met him and give him meals. He has further deposed that thereafter his son Ram Roop was detained in the Police Station Kanjhawala for about 78 days and thereafter he had regularly inquired on telephone with SI Naresh and SI Rajesh about his son and they replied that they would leave Ram Roop after inquiry but later on his son was handed over to Police Station Bawana with regard to investigations in FIR No.51/12. He has testified that thereafter he got the accused Ram Roop St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 69 of 96 bailed on 08.03.2012 and then on 09.03.2012 from the house of his elder son Raj Roop at 662, Nathupura, New Delhi in his presence and also in the presence of his other son Raj Roop three police personals came from Police Station Bawana and took his son Ram Roop in their custody. The witness has also deposed that he recollects the name of one police person as HC Parmanand Saini but the name of two other police personals, he does not recollect. He has further deposed that Ram Roop was kept in police custody at Police Station Bawana for two days and thereafter custody of his son Ram Roop was handed over to the officers of Police Station Kanjhawala. The witness has also deposed that again he was in touch with the police officials of Police Station Kanjhawala and he has been regularly visiting his son and on 15.03.2013 at about 7 PM he received a call from police official Naresh who called him and asked him to come at police post Auchandi Border. He has testified that his son Ram Roop was shown as arrested from there and his signatures were obtained at his arrest memo. He has further deposed that his son Ram Roop has been falsely implicated in the present case and he never knew the other accused persons in the present case as he never met them before his arrest and he is innocent.
(86) In his crossexamination by the Ld. Addl. PP for the State the witness has admitted that Ram Roop was not in custody in any case and was a free man on 10.02.2012. He has denied the suggestion that the accused was apprehended from Auchandi border or that accused Ram Roop was not arrested from Nathupura as claimed by him. According to the witness, he did St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 70 of 96 not make any complaint to any senior officer regarding the arrest of his son Ram Roop from Auchandi border nor he made any complaint/ application to any authority regarding this false arrest of Ram Roop.
(87) DW4 Sh. Yogesh has deposed that he had taken the mobile number 9716169958 of Aircel company in his name which he had given to Ram Roop for his personal use and throughout the mobile number remained with him. According to the witness, on the date of incident i.e. 10.02.2012 Ram Roop was using the aforesaid telephone number.
(88) In his crossexamination by the Ld. Addl. PP for the State the witness has deposed that Ram Roop is not directly related to him but belongs to his community and is related to him in village relation as an uncle and was also his classmate. According to the witness, he did not inform the service provider when he gave the same to Ram Roop for use nor any document was executed in respect of thereof. He has denied the suggestion that he did not hand over the above mobile number 9716169958 to Ram Roop or that in order to save the accused from penal consequences he is deposing falsely. (89) DW5 Sh. Naveen Kumar, Reader in the court of Sh. Sachin Gupta, Ld. MM, Rohini Courts, Delhi has brought the summoned record relating to FIR No. 51/12, against Ram Roop and Kuldeep (deceased in the present case) U/s 186/353/332/34 IPC and 25/54/59 Arms Act, Police Station Bawana. He has proved the copy of FIR which is Ex.DW5/A (running into three pages); statement of HC Krishan Pal Malik which is Ex.DW5/B and has deposed that as per the record the accused Ram Roop was arrested on St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 71 of 96 15.02.2012 at 8:40 PM vide arrest memo Ex.DW5/C and his surety bond was accepted on 05.03.2012. He has not been crossexamined by the Ld. Addl. PP for the State despite opportunity in this regard.
FINDINGS:
(90) I have heard the arguments advanced before me by the Ld. Addl.
PP for the State and the Ld. Defence Counsels. I have also gone through the written memorandum of arguments filed on behalf of the parties and the evidence on record. My findings are as under:
Ocular Evidence/ Last Seen Evidence:
(91) Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspects connected with the offence, there is no reason to reject their testimonies. However, in the present case there is no direct/ ocular evidence and the entire case of the prosecution is based upon the last seen and circumstantial evidence. The case of the prosecution is that the deceased Kuldeep was last seen alive in the company of his friend i.e. accused Ram Roop. In this regard the prosecution has placed its reliance on the testimony of Smt. Nirmala (PW26).
St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 72 of 96 (92) Before coming to the evidence on merits, I may observe that the 'Last Seen' theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It is a settled law that even in such cases the courts should look for such corroboration.
(Sanjay Vs. State of U.T. Chandigarh Criminal Appeal No. 1699/2005 decided by the Hon'ble Supreme Court on India on 5.5.2006). (93) It is settled law that where there is no direct evidence against the accused and the prosecution rests its case on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be in compatible with the innocence of the accused or the guilt of other person. [Ref: Ved Prakash @ Bhagwan Dia Vs. State of Haryana reported in 2006 (3) RCR (Criminal) 992]. (94) Further, in the case of Mohibur Rahman Vs. State of Assam reported in AIR 2002 SC 3064 the Hon'ble Supreme Court has observed that: "....... The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death a rational mind may be persuaded to reach St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 73 of 96 an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own he liability for the homicide....." (95) A similar view was taken by Supreme Court in the decision reported as Amit @ Ammu Vs. State of Maharashtra reported in AIR 2003 SC 3131. Further, in the decision reported as State of Rajasthan Vs. Kashi Ram reported in AIR 2007 SC 144 Hon'ble Supreme Court has observed as under: "....... It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him.
Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 74 of 96 consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras,
218. ..."
(96) Hon'ble Mr. Justice Pradeep Nandrajog in the case of Sharda Jain Vs. State in Crl. Appeal No. 51/2007 decided on 27.8.2009 has on the basis of the various judicial pronouncements of the Hon'ble Supreme Court, succinctly laid down the factors on which the effect of last seen on the guilt of accused depends, which are as under:
(i) Proximity between the time of last seen and time of death of the deceased.
(ii) Proximity between the place where the deceased was last seen with the deceased and place of murder of the deceased.
(iii) Nature of place of murder of the deceased.
(iv) Attending circumstances enwombing the time and place of last seen.
(v) Reasonableness of the explanation offered by the accused.
(97) Now applying the settled principles of law to the facts of the present case, it is evident that Smt. Nirmala (PW26) has proved that it was the accused Ram Roop who had come to her house on 10.2.2012 in the morning at about 10:0010:30 AM after which both her son Kuldeep and Ram Roop left the house on the pretext that they were going to village Sohti, Haryana where the sister of Ram Roop is residing and thereafter at about 2:30 PM she received a call from Ram Roop that Kuldeep had been shot by St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 75 of 96 some unknown persons and had expired.
(98) The prosecution has also placed its reliance on the testimony of Rajeshwar Dayal (PW11) the father of the deceased who at the time of the incident was in his office. He has stated that the he had received a call from his daughter Sushma informing him that they had received a call from Ram Roop from mobile phone No. 9716169958 that Kuldeep had been shot dead by Pawan Pandit, Sanjay Rathi and two other persons who had run away on a car at Sohti Road, Qutubgarh. Here, I may observe the sister of the deceased Ms. Sushma who had informed her father Rajeshwar Dayal about the murder of her brother, has neither been cited as a witness nor examined in the Court. I may also note that in so far as Rajeshwar Dayal is concerned, the Investigating Officer has not recorded his statement under Section 161 Cr.P.C. and the witness Rajeshwar in his testimony before this court has admitted that at no point of time the police interacted him or recorded his statement and hence under the given circumstances the defence was deprived of an opportunity to confront this witness with any of his previous statement and hence it is writ large that in this background the prosecution having failed to call or examine the witness Sushma (not cited by the IO) and in the absence of statement of Rajeshwar Dayal under Section 161 Cr.P.C. being recorded by the IO, the possibility of the names of accused Pawan Pandit, Sanay Rathi etc. being an improvement cannot be ruled out. Even otherwise Rajeshwar Dayal is a witness of hearsay and has deposed on the basis of what was conveyed to him by his daughter Sushma (not examined). It is the St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 76 of 96 mother of the deceased who had last seen her son Kuldeep alive in the company of accused Ram Roop. She has explained that both of them were very good friends and were addicted to sedatives like Allprex pills and most of the time remained together. This aspect of addiction also confirmed from the fact that one strip of tablet of Alprequil was also found at the spot near the dead body of the deceased when the police reached the spot. (99) The Ld. Defence Counsel appearing on behalf of the accused Ram Roop has vehemently argued that Ram Roop was a very good friend of deceased Kuldeep and in the morning when they left the house they have been shown to be involved in a police case vide FIR No. 51/2012, Police Station Bawana, under Section 186/353/334/34 IPC. He submits that in fact the accused Ram Roop was apprehensive that he and Kuldeep would be implicated in a false case since there was a big dispute in the village as Kuldeep was having a love affair with a girl who had eloped and stayed with him (deceased Kuldeep) for two nights on account of which there was a charged atmosphere in the village due to which reason both he i.e. the accused Ram Roop and the deceased Kuldeep were on run. He submits that Kuldeep was with one Vijay on a motorcycle and were taking gaanja and the accused Ram Roop was on a different motorcycle and while they were coming towards Qutub Garh, Ram Roop was 200 meters ahead of both of them and was waiting for them when Vijay came running to him and informed that fourfive persons with muffled faces had shot at Kuldeep. Ld. Counsel has further pointed out that it was the accused Ram Roop who made St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 77 of 96 repeated calls to the police and other authorities and also the family of the deceased and this fact was within the full knowledge of the Investigating Officer who withheld the same from this Court. The Ld. Counsel has further submitted that there was no reason for Ram Roop to have killed his good friend Kuldeep. In his defence the accused Ram Roop has placed before this Court the Call Details Record of his mobile phone No. 8130584341 and has also examined the service provider R.K. Singh as DW1. The accused has also examined his father Rajender Singh as DW3, one Yogesh as DW4 who has proved that he has given his mobile number 9716169958 of Aircel Company which he gave to Ram Roop who was using the said number on the date of incident. The detail record in respect of FIR No. 51/2012, Police Station Bawana, under Section 186/353/332/34 IPC has also been placed on record and got proved through DW5 Sh. Naveen Kumar Reader in the Court of Sh. Sachin Gupta, Ld. MM which conclusively establishes the defence of the accused Ram Roop.
(100) Here, I may observe that the Call Details Record of mobile No. 9716169958 have not been placed on record by the accused and it was the call detail record of mobile phone No. 8130584341. However, the Call Detail Record of mobile No. 9716169958 for the relevant period has been found present on police file which electronic record establishes that it was Ram Roop who was using the No. 9716169958 belonging to DW4 Yogesh and had made a call at 100 number and also a call at 1090 number (Emergency Services) and also informed the family of the deceased and had St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 78 of 96 been making random calls. Had he been the author of crime, I am sure he would not have done what he has done in order to save the deceased. He had gone all the way out to inform the police and made call the Ambulance for reaching to the spot for shifting Kuldeep to Hospital and also informed the family of Kuldeep (as borne out from the Call Detail Records present on the police file which the prosecution is not disputed and has withheld from the Court).
(101) Rather, for this act an adverse inference has to be drawn against the Investigating Officer who was already aware of this evidence i.e. Call Details of mobile No. 9716169958 which Call Detail Records were found place on police file, which they deliberately withheld for obvious reasons because these call details caused a dent in the version being put forward by them by confirming the calls made by Ram Roop to police, Ambulance and family of the deceased. Even otherwise, there is no reason or motive for Ram Roop to have killed Kuldeep his best friend with whom he had run away from the village to escape the wrath of the villagers and the police. (102) Further, it is also evident from the reading of FIR No. 51/2012 that it was registered at Police Station Bawana in the morning pursuant to the call of a quarrel in the village and it confirms that it was the accused Ram Roop who had facilitated the escape of Kuldeep. This material evidence had been concealed and withheld from the Court which has now come on record and is relevant. This FIR confirms that after the accused Ram Roop and Kuldeep were on run as is being claimed by Ram Roop, after Ram Roop told St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 79 of 96 the mother of Kuldeep that they were going to the house of his sister at Sohti Haryana and while they were still in the village there was a quarrel between Kuldeep and other villagers near the Harijan Chaupal on account of the fact that Kuldeep was having an affair with a girl from Harijan/ Balmiki Basti who had eloped with him and had stayed with him for two nights. The spot of incident as reflected in FIR No. 51/2012 as per the information received by the police vide DD No. 11A and 15A is near Harijan Chaupal on which the police reached the spot at around 10:00 AM where they found Kuldeep in the gali and on seeing the police Kuldeep started running in the gali on which it was the present accused Ram Roop who immediately came on his red coloured Platina motorcycle bearing No. DL8SAC9496 and there was a physical altercation with the police and Ram Roop who was then successful in freeing Kuldeep from the police officials after which Kuldeep escaped on the motorcycle of Ram Roop and then both of them went away. These are the allegations made in FIR No. 51/2012 on the same day of the incident of killing of Kuldeep in respect of which the present FIR was registered, which FIR No. 51/2012 has been withheld from the Court not being a part of the present charge sheet and the version given in the said FIR No. 51/2012 cannot be doubted. It was pursuant to the aforesaid incident which took place at village Bawana, near Harijan Chaupal in which Ram Roop assisted in the escape of Kuldeep after which both the them i.e. Kuldeep and Ram Roop came to the QutubgarhSohti Road where the incident of killing of Kuldeep took place. It is this FIR No. 51/2012 recorded on the same day in St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 80 of 96 respect of an incident which took place a few hours before the killing of Kuldeep which has been concealed from this Court by the Investigating Agency which turns the table around and demolishes the version put forth by the prosecution regarding the accused Ram Roop to be involved in the murder of Kuldeep. Rather, the argument put forth by the Ld. Defence Counsel that the possibility that while the deceased Kuldeep and the accused Ram Roop were fleeing on the motorcycle, they were stopped by the villagers (perhaps the family members of girl with whom Kuldeep had eloped and with whom there was a quarrel on the same day near Harijan Chaupal on which call on 100 number was made and Local Police came to the spot and apprehended the deceased Kuldeep when Ram Roop came to the spot on his bike and facilitated the escape of Kuldeep on which FIR No. 51/2012 was registered) and thereafter killed, cannot be ruled out and appears to be more probable under the given circumstances.
(103) Under these circumstances the possibility of Ram Roop being the author of crime is rather remote and the possibility of some persons having followed and traced Kuldeep and Ram Roop while they were escaping and of having killed Kuldeep in cold blood appears to be more probable and possible specifically keeping in view the manner in which bullets have been pumped into the body of the deceased Kuldeep with different firearms of 8 and 9 mm (four empty cartridges of 9 mm, empty cartridge and lead of 9 mm and two empty cartridges of 8 mm recovered from the spot) on his vital parts which were targeted. This repeated and St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 81 of 96 continuous fire on the deceased Kuldeep which is a close range fire (as per the nature of injuries present on the body of the deceased) indicates and confirms a sense of extreme hatred and vengeance which the assailants had entertained for the deceased when they surrounded him and killed him and it is this which impels this court to conclude that the killing of Kuldeep which took place later was an outcome/ fall out of the incident which took place in the morning in respect of which FIR No. 51/2012 was registered which the Investigating Officer has deliberately withheld and concealed from the Court. (104) In fact, the Investigating Officer has conveniently given a twist to the case and despite there being direct evidence of a prior quarrel between the deceased and the villagers of a particular community, hours before the incident all on account of love affair between the deceased and another girl of the same village of a different community, no investigations have been conducted on the same. On the contrary this entire incident was concealed from the Court raising Serious Questions on the credibility and fairness of the Investigations particularly the Investigating Officer and for which the officers concerned are required to be made accountable. (105) Hence it is writ large from the evidence placed before this Court as discussed herein above that two views are possible one of which heavily favours the accused and demolishes the entire prosecution case and is liable to be read in favour of the accused Ram Roop. In so far as the other accused namely Rajesh @ Raje, Priyavrat, Pawan Pandit and Sanjay Rathi are concerned, there is no direct or last seen evidence against them nor any other St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 82 of 96 evidence to indicate and confirm the prior meeting of mind or existence a conspiracy or even their involvement in the alleged offence of killing of Kuldeep.
Medical Evidence:
(106) The Autopsy Surgeon Dr. Manoj Dhingra (PW12) has proved that on 11.02.2012 at about 11.30 PM, he along with Dr. Deepak Sharma conducted postmortem on the body of Kuldeep S/o Sh. Rajeshwar Dayal vide postmortem report Ex.PW12/A. He has proved the following injuries on the body of the deceased: ➢ Fire arm entry wound 1.3 c.m. X 1.3 cm present over let side of head 2.5 cm above left ear in left parietal region. The entry wound is surrounded by abrasion collor. On fine dissection there is 0.8 x0.8 cm fracture defect in underlying left parietal bond with radiating fractures around it. There is tearing in underlying meninges and laceration of left and right parietal lobes and frontal lobe. The wound is directed from left to right, anterior to posterior, upwards to below. Bullet found in right parietal lobe.
➢ Firearm entry wound 1.3 cm x 1.3 cm present over left side of head 3.5 cm above injury number one in left parietal region. The entry wound is surrounded by abrasion collor. On fine dissection there is 0.8 cm x 0.8 cm fracture defect in underlying left parietal bone with radiating fractures around it. There is tearing in underlying meninges and St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 83 of 96 laceration and laceration of left and right parietal lobes and frontal lobe. The wound is directed from left to right, anterior to posterior, upwards to below. Bullet fragment found in right parietal lobe. ➢ Firearm entry wound 1.3 cm x 0.8 cm present over left side of face, present 3 cm below left ear lobe and 5 cm posterior to mouth. The entry wound is surrounded by abrasion collor and blackening and tattooing and the whole wound including the surrounding stained area measured 14 cm x 8 c.m. On fine dissection it is fracturing underlying mandible bone and facial bones going below to downwards, left to right and anterior to posterior. Bullet found between facial bones and soft tissues.
➢ Firearm entry wound 1.3 cm x 0.7 cm present on left lateral side of chest in axillary region 14 cm below axillary fold. The entry wound is surrounded by abrasion collor. The wound is present 11 cm posterior to left nipple. The wound is directed backwards and from left to right. The projectile pierced through the underlying chest wall soft tissues fracturing the 4th and 5th ribes, entering chest cavity lacerating left lung and found a bullet in posterior aspect of left lung.
➢ Firearm entry and exit wound 3.2 cm x 1 cm present over right forearm lateral side just above wrist joint. The entry wound is surrounded by abrasion collor and blackening and tattooing extending to back of right hand. On fine dissection it is fracturing underlying ulnar bone and effusion of blood in soft tissues around it. St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 84 of 96 ➢ Contusion 2x 0.5 cm reddish present over left side of neck at base. ➢ Laceration 0.5 x0.2 x bone deep present over medical side of left eye. (107) The witness has proved the cause of death is craniocerebral damage consequent to penetrating injury to the head caused by a projectile discharged from firearm weapon capable of discharging such a projectile, which is sufficient in the ordinary course of nature to cause death. The above evidence of Dr. Manoj Dhingra has gone uncontroverted since he has not been crossexamined by the Ld. Defence Counsels and there is no reason to doubt the postmortem report.
(108) This being the background, I hereby hold that the medical evidence on record is compatible to the prosecution case that the death of the deceased had occurred on account of firearm injuries. These injuries also indicate a close range indiscriminate firing upon the deceased on his vital parts leaving little time for him to escape. The manner in which the repeated firing has been made killing the deceased Kuldeep instantaneously is reflective and confirms the extreme sense of hatred, indignation and vengeance which the assailants had entertained for the deceased.
Forensic Evidence:
(109) Dr. Rajender Kumar (PW14) has proved the Biological Report which is Ex.PW14/A and serological report which is Ex.PW14/B. He has St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 85 of 96 proved that blood was detected on Ex 2 (blood earth), 3 (blood stained road particles), 5(Lohi containing stains), 6 (blood on gauze) 7 a (pants ) 7b (Jacket with hood), 7C (Tshirt half sleeves), 7C (baniyan) and blood could not detected on 1 (plain sand), on 4 (plain road particles) and 7e (underwear).
He has further proved that the serological report showed the presence of human blood on 2,3 5, 6, 7, 7a, 7b, 7c and 7d and blood of O group was found on exhibit 5 (lohi) and 7d (baniyan).
(110) However, the most important evidence in the present case which could have connect the accused with the alleged offence was the Ballistic Reports but it is evident from the what has been sent to comparison in the FSL are only the cartridge cases recovered from the spot (not the bullets recovered from the body of the deceased). None of the firearms allegedly recovered from the accused Rajesh @ Raje, Priyavrat and Sanjay Rathi have been sent for comparison to connect the accused with the alleged offence. It is evident from the ballistic report Ex.PW31/A that two 8 mm/ . 315 cartridge cases (marked as Ex.EC1 & Ex.EC2) and one bullet (marked Ex.EB1) were sent to the FSL, Rohini which were compared with the country made pistol Ex.F1 in case FIR No. 88/2012, PS Bawana. It has been opined that the individual characteristics of firing pin marks, breech face marks and chamber marks present on evidence fired cartridge case Ex.EC1 were insufficient for comparison and opinion whether it has been fired through the country made pistol Ex.F1 and no opinion could be given whether the 8 St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 86 of 96 mm/ .315" cartridge case marked Ex.EC2 whether it has been directed through the country made pistol due to insufficient data as the percussion cap was absent. Further, the CFSL Report Ex.PW31/B shows that four 9 mm cartridge cases were sent to the CFSL, Madhuban, Karnal Haryana and it has been opined that the said fired cartridges were fired from one and the same firearm but not from the country made pistol marked As W/1 (recovered in case FIR No. 109/2012, U/s. 186/353/307 IPC, PS Rai).
(111) This being the background, I hold that in so far as the ballistic report is concerned, it does not assist the prosecution in any manner and does not connect any of the accused with the alleged offence. It is strange that the Investigating Officer did not get the comparison of the leads/ bullets from the body of the deceased along with the firearms recovered from the accused. The possibility of this being deliberately cannot be ruled out because had this been done, it could have exposed the Sham Investigations conducted by the Investigating Officer and his attempts to divert, sidetrack and switch over the investigations of the crime by directing it upon the accused Ram Roop, Rajesh @ Raje, Priyavrat, Pawan Pandit and Sanjay Rathi.
Motive of the offence:
(112) The case of the prosecution is that the deceased Kuldeep was a local criminal and had taken a Supari for killing of the accused Sanjay Rathi St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 87 of 96 which fact came to be known to Sanjay Rathi and finding an opportune time Sanjay Rathi along with his associates Rajesh @ Raje, Priyavarat @ Kala Luhar and Pawan Pandir caught him at QutubgarhSohti Road and fired him and killed him at the spot.
(113) However, before coming to the evidence on merits, I may observe that the motive has to be gathered from the surrounding circumstances and such evident should form one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is best known to the perpetrator of the crime and not to others. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive. (114) Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 88 of 96 consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
(115) Existence of motive for committing a crime is not an absolute requirement of law but it is always relevant fact, which will be taken into consideration by Courts as it will render assistance to Courts while analysing prosecution evidence and determining guilt of accused. [Ref.: IV (2012) SLT 257].
(116) Moreover, in a case where there is clear proof of motive for the commission of a crime, it affords added support to the finding of the court that the accused is guilty of the offence charged with. However, at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone, who knows as to what circumstances prompted him to certain course of action leading to the commission of the crime [Ref.: State of U.P. Vs. Bahu Ram reported in 2000 (4) SCC 515 and Ujjagal Singh Vs. State of Punjab reported in 2007 (14) SCALE 428].
(117) Applying these settled principles of law to the facts of the present case it is writ large that the prosecution has not been able to place on record any evidence to establish the motive so alleged by them and the only material on record is the disclosure statement of the accused which is not admissible in evidence. However, from the evidence brought on record by the accused Ram Ropp in the form of oral testimony of his father Rajender St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 89 of 96 Singh (DW3) and Yogesh (DW4) and the charge sheet in the case FIR No. 51/2012 of Police Station Bawana under Sections 186/353/323/332/34 IPC, gives a twist to the entire case of the prosecution. A reading of the testimony of the mother of the deceased Smt. Nirmala (PW26) and considering the aforesaid record it is writ large that the deceased Kuldeep was in to an intimate affair with a girl of different community of the same village (Balmiki community) and a couple of days prior to the date of incident i.e. 10.2.2012 this girl had stayed overnight with the deceased on account of which there was a large scale resentment and outrage in the village and even an altercation/ quarrel had taken place in the same day morning (on which the killing of the deceased took place) on which a telephone call was made to the local police as a result of which the Police of Police Station Bawana had come to the spot at 10:00 AM which the same time when the mother of the deceased had last seen her son with the accused Ram Roop. The time so given in the FIR No.51/2012 is compatible to the time given by the mother of the deceased when she had last seen her alive with Ram Roop on his motorcycle. The evidence on record also shows that the spot of incident of quarrel is near the Harijan Chaupal which is adjoining to the house of the deceased Kuldeep and hence the possibility that as soon as the deceased and Ram Roop left their house on the way they were stopped by certain persons of the village being agitated by the affair of Kuldeep with the girl of the same village pursuant to which there was a quarrel and a police call was made and as soon as the police came and apprehended and it was Ram Roop who came St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 90 of 96 to his rescue and even had a physical altercation with the police official who had caught hold of Kuldeep and thereafter managed to free Ram Roop from these officers of Police Station Bawana on which one HC Krishan Pal had also received the injuries pursuant to which the FIR No. 51/2012, PS Bawana was registered. I may observe that the spot of incident is an isolated road and on the way finding an opportune time when the deceased Kuldeep and accused Ram Roop were spotted at GutubgarhSohti Road the unknown assailants came and shot Kuldeep at a point blank range thereby killing him at the spot itself. It was the accused Ram Roop who desperately made calls at 100 number, emergency services and family members of the deceased and also remained at the spot, a fact which finds due corroboration and confirmation from the PCR Form Ex.PW5/A and also from the Call Details Record of the mobile phone of the accused Ram Roop which show that he was in the area of Auchandi and shows his movement towards Qutubgarh at the time when the incident had taken place and thereafter he remained at the spot till the police had arrived. It is this electronic evidence which nails the lies of the Investigating Agency and the Investigating Officer has not bothered to investigate this aspect of Honour Killing of the deceased and the involvement of the persons of the village with whom there was a dispute of the deceased in the morning when a call was made to the police.
(118) It is a settled law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 91 of 96 [Ref.: Bhagwan Singh & Anr. Vs. State of MP reported in 2002 (4) SCC 85; State of Rajasthan Vs. Raja Ram reported in 2003 (8) SCC 180; State of Goa vs. Sanjay Thakran reported in 2007 (3) SCC 755]. There is no evidence against the accused Rajesh @ Raje, Priyavrat @ Kala Luhar, Sanjay Rathi and Pawan Pandit to connect them with the alleged offence and in so far as the accused Ram Roop is concerned the evidence on record does nmot prove his guilt to the hilt.
(119) This being the background I hereby hold that the prosecution has not been able to substantiate and prove the allegations made against the accused Rajesh @ Raje, Ram Roop, Priyavrat @ Kala Luhar, Sanjay Rathi and Pawan Pandit beyond reasonable doubt and hence benefit of doubt is liable to be given to the accused persons.
FINAL CONCLUSIONS:
(120) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ' must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 92 of 96 hypothesis except that the accused is guilty;
3. the circumstances should be of conclusive nature and tendency;
4. they should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(121) Applying the settled principles of law to the facts of the present case, it is evident that the Medical Evidence on record establishes that the cause of death is craniocerebral damage consequent to penetrating injury to the head caused by a projectile discharged from firearm weapon capable of discharging such a projectile, which is sufficient in the ordinary course of nature to cause death. The injuries also indicate a close range indiscriminate firing upon the deceased on his vital parts leaving little time for him to escape. The manner in which the repeated firing has been made killing the deceased Kuldeep instantaneously is reflective and confirms the extreme sense of hatred, indignation and vengeance which the assailants had entertained for the deceased.
(122) In so far as the ballistic report is concerned, it does not assist the prosecution in any manner and does not connect any of the accused with the alleged offence. It is strange that the Investigating Officer did not get the comparison done of the leads/ bullets from the body of the deceased along St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 93 of 96 with the firearms recovered from the accused. The possibility of this being deliberately cannot be ruled out because had this been done, it could have exposed the Sham Investigations conducted by the Investigating Officer and his attempts to divert, sidetrack and switch over the investigations of the crime by directing it upon the accused Ram Roop, Rajesh @ Raje, Priyavrat, Pawan Pandit and Sanjay Rathi.
(123) Also, as discussed above, the electronic evidence nails the lies of the Investigating Agency and the Investigating Officer has not bothered to investigate this aspect of Honour Killing of the deceased and the involvement of the persons of the village with whom there was a dispute of the deceased in the morning when a call was made to the police. In so far as accused Ram Roop is concerned, two views are possible one of which heavily favours the accused and demolishes the entire prosecution case and is hence liable to be read in favour of the accused Ram Roop. In so far as the other accused namely Rajesh @ Raje, Priyavrat, Pawan Pandit and Sanjay Rathi are concerned, there is no direct or last seen evidence against them nor any other evidence to indicate and confirm the prior meeting of mind or existence a conspiracy or even their involvement in the alleged offence of killing of Kuldeep.
(124) This being the background, I hereby hold that in so far as the accused Rajesh @ Raje, Ram Roop, Priyavrat @ Kala Luhar, Sanjay Rathi and Pawan Pandit are concerned, the circumstances reflected from the material on record do not stand conclusively established. The facts are also St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 94 of 96 are not consistent only with the hypothesis of the guilt of the accused. There is nothing on record to definitely establish which of the accused actually committed the offence and who did not participate in the crime. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the guilt of the accused persons. The materials brought on record by the prosecution are insufficient so as to hold that each of the accused was guilty beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused namely Rajesh @ Raje, Ram Roop, Priyavrat @ Kala Luhar, Sanjay Rathi and Pawan Pandit. Crucially, the material and evidence on the record do not bridge the gap between "may be true" and must be true" so essential for a court to record a finding of guilt of an accused, particularly in cases based on circumstantial evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Rajesh @ Raje, Ram Roop, Priyavrat @ Kala Luhar, Sanjay Rathi and Pawan Pandit, beyond reasonable doubt and hence, benefit of doubt is being given to them who are acquitted of the charges under Section 120B/302/34 Indian Penal Code.
(125) Before I end, I may observe that in the cases of Dayal Singh & Ors. vs State Of Uttranchal in Criminal Appeal No.529 of 2010 decided on 3.8.2012 and in the case of State of Gujarat Vs. Kishanbhai Etc. in St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 95 of 96 Criminal Appeal No. 1485/2008 decided on 7.1.2014, the Hon'ble Apex Court has obligated upon the Trial Courts to bring on record all the acts of omissions and lapses committed by the investigating officers etc. while observing that ".......Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the concerned official may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability. We also feel compelled to require the adoption of some indispensable measures, which may reduce the malady suffered by parties on both sides of criminal litigation......". (126) In terms of the aforesaid and in view of the lapses and wrongs of the Investigating Officer as highlighted herein above, I hereby direct that a copy of this order be placed before the Commissioner of Police, Delhi and GNCT of Delhi (Home Department) through the Director of Prosecution, Delhi for information and appropriate action in accordance with law, in terms of the directions of Hon'ble Supreme Court in the case of State of Gujarat Vs. Kishanbhai Etc. in Criminal Appeal No. 1485/2008 decided on 7.1.2014, copies of which have already been circulated by the Hon'ble Apex Court to Home Secretaries of all the States and UTs for compliance.
(127) File be consigned to Record Room. Announced in the open court (Dr. KAMINI LAU) Dated:7.2.2014 ASJII(NW)/ ROHINI St. Vs. Rajesh @ Raje Etc., FIR No. 24/2012, PS Kanjhawla Page No. 96 of 96