Delhi District Court
Ps Narela vs Ashwani Khatri S/O Sh. Rambir Singh on 7 June, 2014
IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS)
NORTH DISTRICT:ROHINI COURTS:DELHI
SC No.09/2010
FIR No.182/2009
PS Narela
u/s 307/34 IPC & 25 & 27 Arms Act.
State
Vs.
1. Ashwani Khatri s/o Sh. Rambir Singh
R/o H. No.1052, Pana Paposian,
Narela, Delhi.
2. Surender Khatri s/o Prahlad Singh
R/o H. No.174, Nai Basti, Mammurpur,
Delhi.
3. Parveen s/o Charan Singh
R/o 274, Village Khera Khurd,
Delhi.
4. Jitender @ Billu s/o Prahlad Singh
R/o H. No.174, Nai Basti, Mammurpur,
Narela, Delhi.
Date of institution :06052010
Date when arguments concluded:06062014
Date when Judgment pronounced:07062014
Appearances: Mr. Ashok Kumar, APP for the State.
Mr. N.K. Kadyan, counsel for accused Ashwani
and Surender.
Mr. Shaileder Dahiya, counsel for accused
State v.Surender etc. 182/09 1 of32
Jitender and Parveen.
JUDGMENT
1. All four accused have been forwarded by police to face trial u/s 307/34 IPC and 25 & 27 Arms Act.
2. Facts are that complainant Meenakshi was still awoken on 24062009 at 10.30 PM but her husband Dharmender @ Cheeku and children had slept. She was watching TV after locking the main door. A neighbouring boy told her that their two guests were standing on the gate. When she reached the main gate, she found two boys of the age group of 2528 yrs. standing. One of them was holding helmet in hand and other was wearing it on the head but front screen of the helmet was raised above face. They told that they had come to meet her husband. When she told her husband that two boys had come to meet him, he asked to know their names and addresses. When she asked the boys their particulars, they told that all disclosures shall be made to Cheeku. Her husband came to the main gate and Meenakshi went inside the house. She heard the noise of firing and reached the main gate and saw her husband on ground and blood was oozing out. The two boys were still firing on her husband. She pulled him inside the State v.Surender etc. 182/09 2 of32 house. One of them was exhorting the other to fire at her also. When she raised noise, her nephew Mandeep also came there running and she and Mandeep took injured to SRHC hospital.
On above facts, DD No.74 B was registered and investigation was assigned to SI Mahender who reached the spot with Ct. Madan. Three fired bullets were lying on the spot and blood traces were going inside the room. IO reached the hospital but found Dharmender @ Cheeku unfit for statement. His wife Meenakshi was present. After recording her statement, rukka was handed over to Ct. Madan who got the case FIR registered.
Later the police developed the case that actually there were four assailants. Accused Surender and Ashwani Khatri were arrested in some other case and they got recovered pistol and revolver respectively. Injured was treated at Jaipur Golden hospital also. The doctor of that hospital removed a complete lead and two pieces of other lead and handed over to the police. Three fired bullets were lifted from the spot. All arms and ammunition were sent to the FSL and ballistic division report is to the effect that bullets recovered from spot and lead recovered from the body of injured were fired from the revolver and pistol State v.Surender etc. 182/09 3 of32 recovered from accused Surender Khatri and Ashwani Khatri.
3. Charge u/s 307/34 IPC was framed against all four accused on 19052010. Additional charge against accused Ashwani Khatri and Surender Khatri u/s 25 & 27 Arms Act was framed to which all accused claimed trial.
4. In order to substantiate the charge prosecution examined 25 witnesses. Accused also examined four witnesses in defence. In fact DW1 is accused Jitender. DW3 Savita is sister of DW1 and wife of DW2 Praveen.
5. PW6 HC Mukesh Kumar registered DD No.74 B Ex.
PW6/A on 24062009 at 11.07 PM on receipt of information from wireless operator that 56 bullets had been fired at a person in Rajeev Colony, Narela, Delhi. PW2 SI Sanjay Kumar was incharge of mobile crime team, outer district, Delhi on 24062009. He deposed that on that day at 11.20 PM, he alongwith photographer PW7 Ct. Sandeep and finger print proficient reached at the house of injured Dharmender at 12.20 AM and found SI Mahender Singh and other staff there. They noticed blood stains from main gate upto inside the house. Three empty cartridges were also lying there. He prepared report Ex.PW2/A. Ct. Sandeep took 19 State v.Surender etc. 182/09 4 of32 photographs of the spot from various angles. Only 17 photographs Ex.PW7/1 to Ex.PW7/17 are on the file. Negatives are collectively Ex.PW7/18.
PW14 Ct. Madan deposed that he alongwith PW25 SI Mahender Singh reached the house of injured Dharmender. He saw empty shells and blood lying on the spot. Recovered cartridges and lock were separately sealed and seized vide memo Ex.PW14/B and Ex.PW14/A respectively. Before it, sketch Ex.PW14/C of the empty shells was prepared. Blood lying at the spot was collected, put into plastic container and pullanda was prepared and seized vide memo Ex.PW12/C. Blood stained floor and earth control were also seized, three pullandas were prepared which were sealed by the IO with his seal and taken into possession vide memo Ex.PW12/B. He further deposed that he remained at the spot and PW25 went to the hospital but returned to the spot after some time and handed him over rukka on which he got the case FIR registered. He further deposed that site plan Ex.PW14/D was prepared at the instance of wife of the injured. He identified the three empty shells as Ex.P1, Ex.P2 and Ex.P3 respectively and broken VIP lock and a key as collectively as Ex.P4. PW1 HC State v.Surender etc. 182/09 5 of32 Ramesh Kumar registered the case FIR Ex.PW1/A on 25062009 at 12.45 AM on receipt of rukka brought by Ct. Madan sent by SI Mahender Singh and made endorsement Ex.PW1/B on rukka.
6. PW11 Dr. Rajesh Kumar of SRHC hospital examined injured Dharmender medically on 24062009 at 11.30 PM who was brought there with the gun shot injury. Blood was oozing from left eye. He noticed 1.0 x 1.0 cm penetrating injury with dark margin over left deltoied region. Second injury was also penetrating and of the same size but was on left axillary region. Three penetrating injury was on left buttock. After preparing MLC Ex.PW11/A, the patient was referred to SR surgery.
PW10 Dr.S. Basu deposed that Dharmender was admitted in Jaipur Golden hospital on 25062009 with the history of gun shot injury on left shoulder, chest, abdomen and left buttock. Entry wounds were found over left shoulder, left axillary and left buttock. Left eye was also found damaged. Sigmoidloop colostumy was done on 26062009 together with resection anastomosis of small bowel. He further deposed that bullets were recovered from pelvis and left shoulder and patient was discharged on 04072009. Left eye was removed by the concerned eye State v.Surender etc. 182/09 6 of32 surgeon. Discharge summery is Ex.PW10/A. PW23 Dr. Deep Kamal was working as Assistant Medical Superintendent of Jaipur Golden hospital on 29062009. He deposed that on that day a sealed parcel containing one complete lead and two pieces of lead were handed over to IO by him. These lead pieces were taken out from the body of injured Dharmender on 26062009.
7. PW18 SI Jai Kishan,PW16 SI Narender,PW9 HC Rajbeer Singh, PW19 HC Bachchu Singh and PW8 HC Chand Ram are witnesses of FIR No.123/09 PS Crime Branch u/s 25 Arms Act. It is pertinent to mention that accused Surender Khatri and Ashwani Khatri were arrested first in that FIR.
PW18 is the first IO of FIR No.123/09. He deposed that on 25072009, on receipt of secret information that a sharp shooter namely Satyawan Sonu from Anoop Gang would come at Rithala Metro Station between 5.005.30 PM for committing a crime, a raiding team of himself, HC Mahavir Singh, HC Bachchu Singh, HC Dinesh, Ct. Somvir, Ct. Swaraj, Ct. Ajeet, Ct. Manoj, HC Partap, HC Hanuman, Ct. Ramesh, HC Rajbir was formed. They reached the spot in two private Santro cars and State v.Surender etc. 182/09 7 of32 asked 810 public persons in the way to join the forthcoming proceedings but they refused. He further deposed that at 5.15 PM, two boys came from the side of Mangolpuri riding Bajaj Discover black motorcycle No.DL8SAA 5523. They stopped the bike at Madhuban Chowk and started waiting for someone. They were apprehended at 5.30 PM and on inquiry they disclosed their identity as accused Surender @ Samunder and Ashwani Khatri. An English pistol of 7.62 bore was recovered from the right dub of accused Ashwani. It was found loaded with two live cartridges. Accused Surender Khatri was found in possession of .38 bore revolver and it was found loaded with five live cartridges. Sketch Ex.PW9/A of pistol and two live cartridges recovered from accused Ashwani was prepared and in the same way sketch Ex.PW9/B of the articles recovered from accused Surender was prepared. Weapons were seized vide memo Ex.PW9/C and Ex.PW9/D respectively. Before it, they were put into plastic containers which were wrapped with doctor tape and sealed with the seal of JK. FSL form was filled up and it was also sealed with the seal of JK and seal after use was handed over to HC Rajbeer. He prepared rukka and sent HC Bachchu Singh for registration of FIR. He further State v.Surender etc. 182/09 8 of32 deposed that second IO SI Narender PW16 reached the spot and he produced all relevant papers, bike, pullandas and accused before him(PW16). He identified the .38 bore revolver, four live cartridges and one empty shell recovered from accused Surender as Ex.P5 (revolver) and Ex.P6 (cartridges). He also identified the 7.62 bore pistol as Ex.P7 and one live and one empty shell as Ex.P8 saying that the same were recovered from the possession of accused Ashwani.
PW16 SI Narender is second IO, he recorded disclosure statement Ex.PW9/G and Ex.PW9/F of accused Surender Khatri and Ashwani Khatri respectively. The bike was seized vide memo Ex.PW9/E. He gave information about the arrest of accused and their disclosure statement regarding complicity in the present case to PS Narela upon which DD No.16 A was registered. Also, he handed over photocopies of all relevant documents to IO of the case.
PW9 HC Rajbir and PW19 HC Bachchu Singh associated themselves in all the investigation conducted by PW18 and PW16.
PW8 HC Chand Ram was posted as MHC(M) in PS Crime
branch on 25072009 when SI Narender deposited with him
State v.Surender etc. 182/09 9 of32
motorcycle No.DL8SAA5523 and two pullandas having seals of JK and one FSL form. He made entry No.369 Ex.PW8/A in register No.19. Personal search articles were also deposited on the same day by the same official. He further deposed that on 10082009, he handed over both sealed pullandas and FSL form to Ct. Rohtash vide RC No.232/21/09 Ex.PW8/B for deposit in FSL and after deposit, Ct. Rohtash handed him over receipt acknowledgment Ex.PW8/C.
8. PW5 HC Suresh Kumar was acting as MHC(M) in PS Narela on 25062009. He deposed that on 25062009 PW25 SI Mahender deposited with him five pullandas having seals of MSP and he made entry No.187 Ex.PW5/A in register no.19. SI Mahender again deposited two pullandas having seals of JGH on 29062009 and he made entry in register no.19. Two pullandas and FSL form having seals of JGH were sent to FSL through Ct. Gunwant on 23092009 vide RC No.132/21/09 Ex.PW5/C. He further deposed that four pullandas and FSL form having seals of MSP were sent to FSL Rohini on 24092009 through Ct. Dharamvir vide RC No.135/21/09 Ex.PW4/A. PW4 HC Dharamvir also asserted that he took delivery of four pullandas having seals of State v.Surender etc. 182/09 10 of32 MSP from MHC(M) on 24/09/2009 vide RC No.135/21/09 Ex.PW4/A and deposited in FSL intact.
PW17 deposed that on 23092009, he collected two sealed pullandas from MHC(M) and deposited the same at FSL Rohini vide RC No.132/21/09 and after deposit he handed over receipt acknowledgment to MHC(M). These witnesses did not tamper with the case property until it was in their possession.
PW24 Mr. V.R. Anand is the Assistant Director, Ballistic division, FSL Rohini, Delhi. He tendered into evidence FSL report as Ex.PW24/A. PW20 Mr. B.K.Singh, who was Addl. DCPI, Outer District on 27042010, deposed that he accorded sanctions Ex.PW20/A and Ex.PW20/B to prosecute accused Ashwani Khatri and Surender Khatri under Arms Act.
9. PW17 Ct. Gunwant is witness to the arrest of accused Praveen from his house on 26062009 at 8.00 PM vide arrest and personal search memos Ex.PW17/A and Ex.PW17/B. Thereafter his disclosure statement Ex.PW17/C was recorded. PW21 Ct. Hardesh and PW22 Ct. Parveen were with PW25 SI Mahender on 02082009 when accused Surender and Ashwani were taken out from lockup and they pointed the place of incident and joint State v.Surender etc. 182/09 11 of32 pointing out memo Ex.PW21/A was prepared.
10. PW25 SI Mahender is the sole IO. He deposed that on 24062009 he alongwith Ct. Madan reached the spot. He left Ct. Madan at the spot for preservation and himself went to SRHC hospital and found injured Dharmender unfit to make statement and hence he recorded statement Ex.PW12/A of Meenakshi wife of Dharmender, made rukka Ex.PW25/A and handed over to Ct. Madan who got registered case FIR Ex.PW14/C. He prepared rough site plan Ex.PW14/D. Sketch of three empty cartridges lying at the spot was prepared. The cartridges were put into plastic containers which were sealed with the seal of MSP and taken into possession vide memo Ex.PW14/D. Broken lock and blood from two places were taken into possession vide memo Ex.PW14/A, Ex.PW12/B and PW12/C respectively. He further deposed that he came to know the same evening that Dharmender had been shifted to Jaipur Golden hospital. He reached that hospital and recorded his statement in which he disclosed that assailants were Surender, Ashwani, Parveen and Jitender. Then he deposed about the arrest of the accused.
11. PW3 Ankit deposed that injured Dharmender was his State v.Surender etc. 182/09 12 of32 neighbour and he used to call him uncle. There is only one house between their house. He could not recollect the date or month of the incident but stated that next morning he came to know that someone had fired at Dharmender. In crossexamination by APP, he deposed that incident had taken place on 24062009. PW15 Mandeep is the nephew of injured Dharmender. He deposed that he had come to the house of his mama Dharmender on 24062009. When he was on the roof at 8.309.00 PM, he heard noise of firing and when he came out he saw Dharmender lying in a pool of blood. He and PW12 took him to SRHC hospital from where was referred to LNJP hospital. Next day he was shifted to Jaipur Golden hospital.
PW12 Meenakshi is wife of PW13 injured Dharmender. She is complainant also. She deposed that on 24062009 she alongwith her bhanja Mandeep was present at home. Her husband and children were also there. She heard noise from outside her house at 10.30 PM and son of a neighbour told her that their guests were standing outside. The two boys were inquiring about her husband. She told them twice/thrice that her husband had already slept but they were insisting to meet him claiming that they State v.Surender etc. 182/09 13 of32 had urgent work. She went inside the house and woke up Dharmender who came out and she remained inside the house. She heard noise from outside as if some crackers had burst. She rushed immediately out and saw Dharmender lying on the ground bleeding profusely from eyes and face. He was dragged inside the house. The two boys who were earlier inquiring about her husband were still firing at him. She shouted for help and her bhanja Mandeep came down stairs and thereafter the two boys fled away. Dharmender was taken to SRHC hospital where her statement Ex.PW12/A was recorded. She also asserted that blood, blood stained soil and blood stained floor were picked up by the police from her house. On the identity of the accused she is complete hostile as she deposed that it was dark outside and both boys were wearing helmet. Face of one accused was fully covered with the helmet and face of other person was half covered and therefore she could not see them properly.
PW13 Dharmender supported the prosecution in examination in chief. He is complete hostile in crossexamination. He stated in the reexamination that he deposed the facts in crossexamination because he had arrived at compromise with the accused as they State v.Surender etc. 182/09 14 of32 had begged pardon from him and that he had forgiven them.
12. In their statements u/s 313 Cr. PC accused Surender Khatri and Ashwani Khatri denied every incriminating material against them and claimed that they have been implicated falsely. Accused Jitender took the plea that he was not present in Delhi in the night of incident and rather he was in village Sisoli, UP and he came to Delhi only on 25062009 at 4.30 PM. Accused Parveen took the plea that on 24062009 he was present in his home whole day as he was suffering from fever and typhoid. They claimed previous familiarity to the injured and his wife as they were residing in the same locality.
13. DW1 accused Jitender accused deposed that he was employed in Cluster Telecom Pvt. Ltd., Company from August, 2004 to June, 2010. The company was engaged in the business of installation and maintenance of Idea Cellular company mobile towers. He deposed that on 22062009 he was detailed by general manager Mr. R.K. Yadav to install and repair tower in village Sisoli, district Muzaffar Nagar, UP. He boarded the bus from Delhi on 23062009 and reached village Sisoli at 6.00 PM. He remained there till 25062009. He left village Sisoli for Delhi at 10.00 AM State v.Surender etc. 182/09 15 of32 on 25062009 and reached Delhi at 4.30 PM on the same day. He further deposed that during those days he was using Idea post paid mobile phone No. 9911274747 for which company used to issue him bill after one month of usage. Mobile phone bill is Ex. DW1/D and CDR of that phone from 15062009 to 29062009 are Ex.DW1/E (8 pages). He further deposed that he and his sister DW3 Savita published a notice in the newspaper titled as Punjab Kesri dated 22072009 for disowning their brother accused Surender Khatri. He further deposed that he had moved anticipatory bail application in the Sessions court on 31102009 in which he had annexed certificate of employment mentioning therein that he was present in village Sisoli in the night intervening 24/25062009.
14. DW2 accused Parveen Kumar deposed that he was engaged in poultry farming from 2001 to 2010. Basically he is resident of village Khera Khurd but due expiry of his parentinlaws and also due to fact that accused Jitender was minor, he started residing in the parental house of his wife in village Narela. He deposed that he was knowing injured and his wife Meenakshi as they were their neighbour in village Narela. Their house was only State v.Surender etc. 182/09 16 of32 34 houses away from his house. He further deposed that he was summoned by two police officials in PS Narela on 26062009 on the pretext that SHO wanted to inquire some facts from him about his brotherinlaw accused Surender Khatri. Accordingly he visited PS on 26062009 where he was detained saying that a person namely Dharmender had been injured and in that case his name was also figuring. He further deposed that coaccused Surender is his brotherinlaw(sala) and police officials used to visit his and his wife's house frequently to know whereabouts of Surender. Due to this harassment, his wife Savita DW3 had filed a writ petition in the Hon'ble High Court of Delhi against the police.
DW3 Savita deposed that accused Surender and Jitender are her real brothers and accused Parveen is her husband. In 2009 she used to reside in her parental H. No.174, Nai Basti, Panna Mammurpur, Narela, Delhi and PW13 Dharmender also used to reside in their vicinity about 23 houses away from her house. They are related to her in line of ascendancy from parental side. She further deposed that her husband Parveen fell ill before 24062009 and on 24062009 also he was ill as he was suffering from fever. He was present at home whole day. She further State v.Surender etc. 182/09 17 of32 deposed that Parveen was summoned by SHO in PS Narela on 26062009 on the ground that Dharmender @ Cheeku had been fired at by somebody and names of his brother and husband were figuring. He was arrested on that very day. She further deposed that her brother Surender's name had figured in a case in 2004 and due to that reason police used to visit her house frequently to inquire about him. Due to frequent visits of the police, she and her brother accused Jitender disowned Surender and published a disownment notice in Punjab Kesri on 22072005 Ex.DW1/C. Also she had filed a petition in the High Court of Delhi for restraining Delhi Police from visiting her house frequently on which order dated 20072005 and 29082005 Ex.DW2/C were passed by the High Court.
DW4 Sagar Tirath is resident of Panna Mammurpur, Narela, Delhi. He was born there in 1974 and is residing in that area since then. He deposed that Nai Basti and Rajiv Colony are the names of one and the same locality. He further deposed that he was knowing Meenakshi and Dharmender as they were also residing in Nai Basti. He further deposed that they were residing in that very house even on the day of his deposition. He knows accused State v.Surender etc. 182/09 18 of32 Jitender, Parveen, Savita and Surender. Parveen is husband of Savita and was 'gharjamai' of the village. About accused Surender and Jitender, he deposed that they had a house in Nai Basti where Parveen alongwith his wife Savita used to reside. He told the distance between the house of PW12 and PW13 on one side and of accused on the other side as 34 houses.
15. APP argued that case is hinging on the testimony of injured witness PW13 Dharmender @ Cheeku. He supported the prosecution case in examination in chief but he resiled completely from his previous statement in writing in crossexamination. When he was was reexamined by the APP, he deposed that he had stated facts in crossexamination due to compromise with the accused as they had begged mercy from him and he had pardoned them. APP further argued that reexamination of PW13 shows that he did not support the prosecution case in crossexamination due to compromise. He argued that only examination in chief of PW13 be taken into account. APP also relied upon a strong circumstance against accused Ashwani and Surender Khatri that .38 bore revolver and five live cartridges were recovered from accused Surender and a pistol of 7.62 bore and two live cartridges were State v.Surender etc. 182/09 19 of32 recovered from accused Ashwani by Special cell on 25072009. IO of the present case had lifted three fired bullets from the spot. The doctors of Jaipur Golden hospital had handed him over a complete lead and two lead pieces removed from the body of PW13. Fired bullets, lead and recovered arms were sent to the FSL and FSL report is to the effect that those were fired from the revolver and pistol recovered from accused Surender and Ashwani.
On the other hand defence counsels argued that most competent witness about the identity of the accused was PW12 as she had more opportunity to see them but she could not identify them. They referred to the testimony of neighbouring boy PW3 who also did not identify any of the accused. Their contention is that accused Jitender and Parveen had no occasion to support accused Surender and Ashwani as they had already disowned Surender and disownment notice was published in Punjab Kesri. About accused Jitender it is argued that on the night of incident, he was present in village Sisoli, District Muzaffar Nagar, UP. About accused Parveen, it is argued that he was ill throughout the day on 24062009 and ailing person cannot participate in the crime. About accused Surender and Ashwani it is argued that three fired State v.Surender etc. 182/09 20 of32 bullets were not seized from the spot by the IO. It is further submitted that a complete lead and two lead pieces were recovered from the body of PW13 Dharmender by doctors of Jaipur Golden hospital on 26062009 but those were handed over to the IO only on 29062009. Nobody knows in whose custody the lead were between these two dates. Last reliance is on the testimony of MHC(M) PW5 HC Suresh Kumar who has completely spoiled the prosecution case.
16. CASE AGAINST ACCUSED JITENDER & PARVEEN Criminal justice system had come into motion on the statement of PW12 Meenakshi. In statement Ex.PW12/A she had stated before the police that a neighbour boy told her on 24062009 at 10.30 PM that two guests were standing outside her house. In evidence also she deposed that when she went to the main gate, the two boys inquired about her husband Dharmender. She told them 23 times that her husband had already slept but they were insisting to meet him claiming that they had urgent work. She went inside and woke up her husband who came out and she remained inside the house. She heard the noise of burst of crackers and when she came out she saw her husband lying near State v.Surender etc. 182/09 21 of32 the main gate bleeding profusely from eye and face and at that time two boys were still firing at him. She further deposed that it was dark outside and both the boys were wearing helmets. Face of one accused was fully covered with the helmet and the face of other accused was half covered and therefore she could not see them properly. These two accused have been identified in examination in chief by PW13 Dharmender. As per statement Ex.PW12/A, she had three occasions to see the accused. First occasion was when she went to the main gate on the call of the neighbouring boy. Second time she went to the main gate when her husband asked her to inquire names and addresses of two boys who were standing outside the main gate. Third occasion was when she came out after hearing the sound of firing. At that time also the two accused were firing at her husband. Despite having three opportunities, she could not identify them. It has been deposed by DW1, DW2, DW3 and DW4 that PW12 and PW13 were their neighbourers. Moreover complainant and accused party are the ascendant of the common ancestor in parental line. Accused Parveen was gharjamai residing in village Narela Nai Basti(Rajiv Colony). PW12 can be presumed to have known the accused State v.Surender etc. 182/09 22 of32 Jitender and Parveen even. Though she could not see their faces due to helmet, she could have identified them by physique and voice. But she could not identify them. PW3 is also the neighbour of accused and complainant party. He also could not identify them.
It has been deposed by DW1, DW2 and DW3 that name of accused Surender had figured in a case in 2004 and police used to frequently visit their house to inquire about him. They were feeling harassed due to frequent visits of the police. In order to save themselves from such harassment, they had got published a public disownment notice Ex.DW1/C in the newspaper titled as Punjab Kesri dated 22072005 circulated in the area of Delhi. They were already scared of police as well as of accused Surender and that is why they took that extreme step. So they cannot be expected to associate with the person who was already disowned by them four years ago.
Case of accused Jitender Khatri is that he was not present in Delhi in the night of the incident. His claim is that he was employed in M/s Cluster Telecom Pvt. Ltd., engaged in the business of erection, installation and repair of telecom towers of State v.Surender etc. 182/09 23 of32 Idea company. On 22062009 he was asked by the company to village Sisoli, District Muzaffar Nagar, UP for erection of a tower. He left Delhi for Sisoli on 23062009 and returned Delhi at 4.30 PM on 25062009. During that time he was using mobile phone No. 9911274747. Ex.DW1/D is the bill of the phone showing that it was owned by accused Jitender Khatri. CDRs from 15062009 to 29062009 are Ex. DW1/E. As per CDR, his phone left home territory i.e. Delhi and was in roaming from 23062009at 12.34 PM. It kept on roaming till 25062009. It entered the home territory only at 10.39 AM of 25062009. From these CDRs it is conclusively proved that accused Surender was not in Delhi in the night intervening 24/25062009. Also there is certificate Ex.DW1/B issued by Cluster Telecom Pvt. Ltd. to the effect that Jitender Khatri was working in that company since August, 2004 as a technical engineer. It is further mentioned that from 22062009 to 26062009 he was out of Delhi for technical duties. He had taken all these pleas in anticipatory bail application Ex.DW1/A. The police should have verified those documents. But it thought it unnecessary to go into the details and straightway chargesheeted the accused. So it is held that Jitender was not in Delhi in the State v.Surender etc. 182/09 24 of32 night of the incident.
Statement u/s 161 Cr. PC of PW13 Dharmender was recorded on 25062009 in the hospital. In that statement he had alleged that accused Surender @ Samunder and Ashwani had fired at him and accused Jitender and Parveen had exhorted them to fire at him. He made a major improvement in examination in chief by deposing that accused Jitender had also fired at him.
In view of above discussion, the police has failed to bring any evidence on record against accused Jitender and Parveen.
17. CASE AGAINST ACCUSED SURENDER & ASHWANI KHATRI Both these accused have been identified by PW13 as the same person who had fired him. His crossexamination was deferred and it was conducted on 250620012 and on that day he completely overturned the prosecution case. He deposed that when he came out in the night of 24062009 at 10.00 PM, there was complete darkness outside. He further deposed that the two boys who had fired at him were wearing helmet and hence he could not see their faces. He answered in affirmative that he had given the names of two persons to the police on the information given by police itself. He further deposed that on the day of State v.Surender etc. 182/09 25 of32 incident he had seen only two persons and not the four. He further clarified that he had named accused Jitender and Parveen at the instance of IO. In reexamination by APP he deposed that his statement recorded on that day was the only correct statement. He further added that his earlier statement i.e. examination in chief was also correct. In further clever reexamination, he stated that he had deposed facts in crossexamination because he had arrived at compromise with the accused who had begged pardon from him and that he had forgiven them. In further crossexamination by the defence counsel he deposed that accused Surender and Ashwani being covillager, were on visiting terms with him and his family. His wife was also knowing them.
Defence counsel argued that testimony of PW13 is of wavering in nature and such a witness is never credit worthy. In Anil & Ors. v. State of Maharashtra, Crl. Appeal No.1324/2008 decided by Supreme Court on 24012013, the complainant had three versions to tell one in FIR, second in examination in chief and third in crossexamination. Her evidence was not relied upon by the Apex Court. Other eye witnesses were hostile and the accused were acquitted.
State v.Surender etc. 182/09 26 of32 In the case in hand also, PW3 and PW12 are hostile. In his statement u/s 161 Cr. PC, PW13 had stated that accused Surender and Ashwani had fired at him and other two accused Parveen and Jitender had exhorted them. When he appeared in witness box, he deposed in examinationin chief that accused Surender, Ashwani and Jitender Kumar fired at him. The third version came in cross examination that he could not identify the persons who had fired at him as it was darkness and also the accused were wearing helmets. The fourth version is coming in reexamination by APP in which he deposed that he did not support prosecution case due to compromise with the accused. He further deposed that facts deposed by him in examination in chief were the correct facts. He further changed story and fifth version is coming in further cross examination by the accused in which he deposed that he had named the accused at the instance of IO. In the cited case, the complainant had three versions and in the case in hand, injured witness have five versions. So the authority of Supreme Court is covering the case of the accused squarely.
In Mrinal Das & Ors. v. State of Tripura (2011) 9 SCC 479 the Supreme Court held as under:
State v.Surender etc. 182/09 27 of32 "It is a settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. However, the Court has to be very careful, as primafacie, a witness who makes different statements at different times, has no regard for the truth. The Court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses."
18. APP argued that though PW13 is hostile but he has been corroborated by the FSL report because it has been opined by the laboratory that three fired bullets collected from the spot and three led pieces recovered from the body of PW13 were fired from the arms recovered from both the accused. Regarding seizure of three fired bullets from the spot, evidence of PW14 Ct. Madan is highly relevant. He deposed in crossexamination that they had noticed three shells lying near the gate. They had seen those shells when they had reached there at 11.30 PM. They were encircled with the chalk by the IO but were not lifted till return of IO from hospital. He further added that IO had lifted those shells before going to the hospital and handed them over to him while going to the hospital. He kept them in a bag till the returning of State v.Surender etc. 182/09 28 of32 IO from hospital. Seizure memos were prepared before going to hospital. In further crossexamination he deposed that he had not taken the case property in PS at the time of taking of rukka. So, the evidence of PW14 regarding the seizure of three fired cartridges from spot is highly defective. The IO lifted the fired bullets without making pullanda of them, he gave custody of those bullets to PW14. He kept them in bag. These were seized after return of IO from the hospital. Moreover he prepared seizure memos before going to the hospital but seized the bullets after return from hospital. It is also beyond comprehension why he did not hand over that case property to PW14 when he was going to PS with rukka for registration of FIR.
Seizure of three led pieces from the doctors of Jaipur Golden hospital is also defective. Those pieces were handed over to IO by PW13 Dr. Deep Kamal on 29062009. In crossexamination he deposed that the led pieces were recovered from the body of PW13 during treatment. He is not aware in whose possession the three led pieces were between 26062009 to 29062009. He could not recollect whether the led pieces were in sealed or unsealed condition when the same were produced before him. Prosecution State v.Surender etc. 182/09 29 of32 has failed to account for the custody of led pieces from 26062009 to 29062009.
The prosecution case has been made doubtful by the evidence of PW5 HC Suresh Kumar who was posted as MHC(M) during those days. Prosecution case is that the spent bullets and led pieces were sent to FSL on 23092009 vide RC No.132/21/09. But it has been deposed by PW5 in crossexamination that six pullandas (four pullandas of spent bullets and two pullandas of lead pieces) were sent to FSL on 23092009 vide RC No.131132/21/09. Four pullandas were not accepted by the FSL as there was some objection given by FSL in writing. The pullandas were again sent on 24092009. Crossexamination of PW5 shows that when six pullandas (including four pullandas of spent bullets and two of lead pieces) were sent to FSL on 23092009 vide RC No. 131/21/09, they were returned by the FSL on technical ground. It further shows that all six pullandas were sent vide same RC number. That RC has not been placed on record. The objection of FSL was in writing and that objection has not been mentioned in register no.19. In further crossexamination, PW5 deposed that objection of the FSL was that seal was not proper and this single State v.Surender etc. 182/09 30 of32 sentence is eating away the whole prosecution case. Due to improper seal, the pullandas were returned to MHC(M). It seems, thereafter,the MHC(M) prepared another RC no.132/21/09 Ex. PW5/C and sent two pullandas of spent bullet and led to the FSL on 23092009. Proper course for the prosecution was to place on record RC No.131/21/09 and also the objections of FSL which were in writing. But it concealed both documents and the only reason may be that these might be going against them.
Three fired cartridges were taken into possession from spot on 25062009 and three led pieces were seized on 29062009. There is no explanation with the police why it sent those pullandas to FSL on 23092009 and 24092009 i.e. after elapse of three months. In Surender @ Babli v. State (GNCT of Delhi) Crl. Appeal No.1547/2010 decided by Supreme Court on 28072011, the facts were that the fired bullet recovered from dead body matched with the revolver recovered at the instance of the accused. Hon'ble High Court of Delhi had acquitted the two accused who were not identified by the complainant but had convicted the accused on whose instance revolver was recovered. The Supreme Court reversed the finding of the High Court on the ground that bullet State v.Surender etc. 182/09 31 of32 was recovered from body on 08022001, revolver was recovered at the instance of accused on 28022001 but the bullet and revolver were sent to FSL on 03042001 i.e. after elapse of one month and three days. Another defect in the cited case was that there was contradiction about preparation of seizure memo of the pistol. Two prosecution witnesses had stated that it was written by a person X and some other PWs had stated it was written by Y. In the case in hand the defect was pointed out by FSL and as per PW5, that defect was in seal. So the cited case is fully applicable on the facts of the present case. Hence prosecution has failed to prove its case even against accused Surender and Ashwani.
18. CONCLUSION In view of above discussion, all the four accused persons are acquitted of the charges levelled against them. They be set at liberty if not wanted in any other case. Their bail bonds are cancelled. Surety bonds discharged. Endorsement, if any, be cancelled. File be consigned to recordroom.
Announced in the Open Court On day of 7th June, 2014.
(UMED SINGH GREWAL)
ASJ/Special Judge (NDPS)
North Distt: Rohini Courts: Delhi
State v.Surender etc. 182/09 32 of32