Delhi District Court
State vs Sandeep Chauhan on 2 March, 2012
1
IN THE COURT OF SH. T.S. KASHYAP
ADDITIONAL SESSIONS JUDGE-04, NORTH-EAST DISTT
KARKARDOOMA COURTS, DELHI
FIR No. : 134/08
Under Section : 302/201/506/34 IPC
Police Station : Karawal Nagar, Delhi
Sessions Case No. : 10/2008
Unique I.D. No. : 02402R0799942008
In the matter of
STATE
Versus
1.Sandeep Chauhan S/o Sh. Rajbir Singh R/o H.No. A-15, Gali No.2, Maha Laxmi Vihar Karawal Nagar, Delhi.
2. Kamal Kishore S/o Sh. Tilak Ram R/o H.No. B-73, Gali No.1 Maha Laxmi Enclave Karawal Nagar, Delhi. ...ACCUSED PERSONS Date of Institution : 24.10.2008 Date of committal : 07.11.2008 Date of reserving judgment : 02.03.2012 Date of pronouncement : 02.03.2012 JU D G M E N T
1. This charge-sheet has been filed against accused Sandeep Chauhan and Kamal Kishore for facing trial for commission of offences under Section 302/201/506/34 IPC.
2. The facts of the prosecution case in brief are that an information was received on 28.07.2008 vide DD No. 35-A, on which, ASI Rajmal Singh alongwith Ct. Sandeep went to the spot i.e. 20 feet Road, Mahalaxmi Enclave, near Shiv Mandir, Shiv Vihar Pullia Karawal FIR No. : 134/08, PS : Karawal Nagar Page 1 of 23 2 Nagar, Delhi and found a dead body of male, approximately 25 years old with slim built, 5'3" inches height, lying near telephone pole in a gali adjacent to marriage home of Jagdish Pradhan. The Crime Team was called on the spot alongwith the photographer. Photographs of the dead body were taken from different angles, the dead body was inspected and no eye-witness was found on the spot. However, Sh. Mohar Singh S/o Sh. Chotte Singh R/o Gali No.5, Som Bazar, 30 feet Road, Karawal Nagar Delhi came at the spot who identified the dead body of the deceased as his son Ravinder @ Ravi @ Raju. Form 25.35 was filled up and the dead body was sent to GTB Hospital Mortuary through Ct. Sandeep. As per the facts noticed by ASI Rajmal at the spot, offence U/s 302 IPC was made out and accordingly, ASI Raj Mal sent Ct. Jugal Kishore to the Police Station with rukka for registration of the FIR. Ct. Jugal Kishore took the rukka and got the FIR registered at the PS. The investigation of this case was assigned to Inspector C.M Meena, who visited the spot and after inspection, lifted blood samples and earth control and seized the same. On the pointing out by ASI Rajmal, the site plan was prepared without scale. ASI Rajmal also handed over clothes and articles of the deceased, which were seized by IO/Inspector C.M.Meena. The statements of witnesses were recorded. The postmortem on the dead body of the deceased was got conducted and the dead body was handed over to the legal heirs. However, the doctor concerned had preserved the pullanda of the clothes, blood of the deceased on gauge as well as one small bottle containing bullet recovered from the deceased, at the time of postmortem which were sealed with the seal of SR and all these articles were separately sealed in different pullandas which were sent to MHC(M) through Ct. Sandeep alongwith seal of SR, where the same were deposited.
FIR No. : 134/08, PS : Karawal Nagar Page 2 of 23 33. During the investigation, Smt. Reeta (Sister of deceased Ravinder @ Ravi @ Raju) gave statement suspecting accused Sandeep Chauhan who was their relative and alleged that accused Sandeep Chauhan was having evil eye on wife of the deceased. The deceased had also told her that accused Sandeep was also having evil eye on another girl Kirti and when the deceased forbade accused Sandeep from keeping evil eye on them, the accused Sandeep Chauhan had threatened the deceased to see him. She also stated that on 28.07.2008, accused Sandeep Chauhan had called on their phone and thereafter, having taken his meals, the deceased left the home telling that accused Sandeep had called him at Shiv Vihar Tiraha from whom he had to receive some money. On the same day, her husband namely Sh. Bhura had also left with deceased Ravinder who was having mobile phone No. 9210802258. Thereafter, efforts were made to trace the accused Sandeep Chauhan and statements of witnesses were recorded on 30.07.2008. The statement of Bhura was also recorded who was with the deceased and he stated that accused Sandeep Chauhan alongwith co-accused Kamal Kishore had killed the deceased by firing with country-made pistol. The call details of mobiles were also collected and on 01.08.2008, on the information given by secret informer, accused Sandeep Chauhan was apprehended from near Hanuman Mandir, Shiv Vihar Tiraha who disclosed that on 28.07.2008 in the night, he alongwith co-accused Kamal Kishore S/o Tilak Ram R/o B-73, Gali No.1, Mahalaxmi Enclave, Karawal Nagar Delhi, shot the deceased Ravinder @ Raju @ Ravi. When sufficient evidence against him was collected, accused Sandeep Chauhan was arrested. His disclosure statement was recorded. He pointed out the spot. On the secret information, co- accused Kamal Kishore was apprehended by Inspector C.M Meena FIR No. : 134/08, PS : Karawal Nagar Page 3 of 23 4 from near Shiv Vihar Tiraha, Brij Puri Road. He was interrogated and he disclosed that on the asking of co-accused Sandeep Chauhan, he shot deceased Ravinder @ Ravi @ Raju and threw away the country- made pistol in the nala in front of Shamshan Ghat Shiv Vihar. Accused Kamal Kishore was arrested and his disclosure statement was recorded. He also pointed out the place of occurrence. Efforts were made to trace the country-made pistol from Ganda Nala in front of Shamshan Ghat Shiv Vihar but the same could not be recovered. Therefore, Section 201 IPC was added. Accused persons were got medically examined and were taken on Police Custody Remand for a day. The statement U/s 164 Cr.P.C in respect of witnesses Lakhmi Chand and Sunil Kumar Gupta were got recorded. The efforts were again made to recover the country-made pistol on 02.08.2008 but the same could not be recovered. The scaled site plan was got prepared through S.I Mukesh Jain, Draftsman. The postmortem report in respect of deceased was collected and exhibits were sent to FSL lab. for expert report. The presence of the accused persons as well as witness Bhurey on the spot has been established from the call details of their mobile numbers and since, accused Kamal Kishore had also threatened the deceased, Section 506 IPC was also added. After the completion of the investigation, charge-sheet was filed against the accused persons.
4. Ld. Metropolitan Magistrate after supplying the necessary copies to the accused persons, committed the case to the court of sessions vide order dated 07.11.2008.
5. My Ld. Predecessor, vide order dated 17.11.2008, charged accused Sandeep Chauhan and Kamal Kishore for offences punishable U/s 302/201/34 IPC and also charged accused Kamal Kishore for offence FIR No. : 134/08, PS : Karawal Nagar Page 4 of 23 5 punishable U/s 506 IPC, to which, they pleaded not guilty and claimed trial.
6. The prosecution in support of their case examined as many as 25 witnesses.
7. The prosecution examined following material witnesses:-
1) PW-1 Sh. Dhirender @ Tinku was the brother of deceased Ravinder @ Ravi. He identified the dead body of his brother vide his statement Ex.PW1/A and had signed the receipt Ex.PW1/B as a witness, vide which dead body was handed over to PW-2 Sh. Mohar Singh.
2) PW-2 Sh. Mohar Singh was the father of the deceased. He is the witness of seizure of the articles i.e. one purse and charger of mobile, recovered from the dead body vide seizure memo Ex.PW2/A. He also identified the dead body of his son vide identification memo Ex.PW2/B and the dead body was handed over to him vide receipt Ex.PW1/B. He identified purse/wallet as Ex.PW2/Article-1.
3) PW-3 Smt. Reeta was the sister of the deceased Ravinder.
However, she turned hostile towards the prosecution case. In her cross-examination done by Ld. Addl. P.P, she identified accused Sandeep as her mama's son. She identified one mobile phone make Kyosera and Tata as the same which belongs to her brother (deceased) and was with her husband on the date of death of her brother as Ex.PW3/Article-1.
4) PW-4 Sh. Bhura was the brother-in-law of deceased. He also turned hostile towards the prosecution case.
FIR No. : 134/08, PS : Karawal Nagar Page 5 of 23 65) PW-5 Sh. Lakhmi Chand who used to sell Banana on the handcart in front of Marriage Home, Shiv Vihar Pullia. He also turned hostile towards the prosecution case.
6) PW-6 Sh. Sunil Kumar Gupta was having a pan shop at Shiv Vihar Pullia. He stated that he had not seen anything nor he saw the boys who had sustained injury and stated that he does not know anything about this case. He turned hostile towards the prosecution case.
7) PW-8 Sh. Ajay Kumar was having shop of chat pakori. He also turned hostile towards the prosecution case.
8) PW-10 Ms.Geeta Devi was the wife of the deceased Ravinder. She has also not supported the prosecution case despite her cross-examination by Ld. Addl. P.P for the State.
9) PW-13 Smt. Usha was cousin sister of deceased Ravi. She has also turned hostile towards the prosecution case.
8. The prosecution also examined following formal witnesses :
1) PW-7 Dr Sumit Tellewar who conducted the postmortem on the dead body of Ravinder @ Ravi @ Raju vide PM report No. 843/2008 which is Ex.PW7/A. He opined the cause of death in this case "shock as a result of hemorrhage due to antemortem injuries to abdominal aorta and inferior vene-cava produced by projectile of a fire arm and injury is sufficient to cause death in ordinary course of nature".
2) PW-9 Sh. Virender Singh was the photographer who took photographs of the dead body from different angles. He proved the photographs as Ex.PW9/A, Ex.PW9/B, Ex.PW9/C, FIR No. : 134/08, PS : Karawal Nagar Page 6 of 23 7 Ex.PW9/D, Ex.PW9/E and Ex.PW9/F.
3) PW-11 S.I Bala Shankaram was posted as S.I Incharge Mobile Crime Team on 28.07.2008 who was called by the IO on the spot. He inspected the spot and submitted the report Ex.PW11/A to the IO.
4) PW-12 S.I Mukesh Kumar Jain, Draftsman, prepared scaled site plan which is Ex.PW12/A, as per the request of the IO.
5) PW-17 H.C Satbir was posted as Constable at PS Karawal Nagar on 29.07.2008 and he after receiving the copy of FIR from the Duty officer, delivered the same to Area Magistrate, Joint CP Range and DCP N/E at their residence.
6) PW-19 H.C Ajit Tanwar was deputed as Duty officer at PS Karawal Nagar Delhi on 29.07.2008 and at about 1.30 AM, on the receipt of rukka from Ct. Jugal Kishore, sent by ASI Rajmal, PW-19 H.C Ajit Tanwar recorded FIR of this case U/s 302 IPC which is Ex.PW19/A and also made his endorsement on the rukka which is Ex.PW19/B and after registration of the FIR, he handed over the copy of FIR and rukka to Ct. Jugal Kishore to hand over the same to IO/Inspector C.M Meena. This witness also proved the copy of DD No. 35-A Ex.PW19/C, which was recorded on the message of wireless operator regarding lying of a person in unconscious condition at Shiv Vihar, Near Shiv Mandir Pullia, Karawal Nagar, Delhi.
7) PW-24 ASI Durvesh Kumar was posted as MHC(M) at PS Karawal Nagar on 29.07.2008 with whom the case property was deposited with the malkhana. He proved the extract of the copy of the relevant entries running into four pages Ex.PW24/A. He also sent the parcels alongwith seal of SR to FIR No. : 134/08, PS : Karawal Nagar Page 7 of 23 8 FSL Rohini through Ct. Vinod vide RC No. 55/21.
9. The prosecution also examined following witnesses of arrest and investigation :
1) PW-14 Ct. Jugal Kishore on the receipt of wireless message that one person is lying in unconscious condition near Tiraha Shiv Vihar, near marriage home of Jagdish Pradhan, reached there and found the dead body of a male lying there. He also took rukka from the spot to the PS to get the FIR registered and got the FIR registered and thereafter, he returned back at the spot and handed over the copy of FIR and rukka to ASI Rajmal.
2) PW-15 Ct. Vinod was the member of police party and witness of arrest of accused Sandeep Chauhan and co-accused Kamal Kishore.
3) PW-16 H.C Sompal was also the member of the police party which was constituted to arrest the accused persons. He is the witness of arrest of accused persons namely Sandeep Chauhan and Kamal Kishore. This witness has proved the arrest memo of accused Sandeep Chauhan Ex.PW16/A, his personal search memo Ex.PW16/B, his disclosure statement Ex.PW16/C and pointing out memo Ex.PW16/D. This witness also proved the arrest memo of accused Kamal Kishore Ex.PW16/E, his personal search memo Ex.PW16/F, his disclosure statement Ex.PW16/G and pointing out memo prepared at his instance Ex.PW16/H. He also proved the Khanatalashi memo regarding search of house of accused Kamal Kishore Ex.PW16/I and khanatalashi memo of gandanala Ex.PW16/J. FIR No. : 134/08, PS : Karawal Nagar Page 8 of 23 9
4) PW-18 S.I Satender Pal Singh was the member of police party and witness of arrest of accused Sandeep Chauhan and co-accused Kamal Kishore. He also proved their arrest documents. He is also the witness of recording of their disclosure statements and of pointing out memos, prepared at the instance of accused persons.
5) PW-20 Ct. Sandeep was posted as Constable at PS Karawal Nagar on 29.07.2008 and he, on the receipt of DD No. 35-A, alongwith ASI Rajmal reached at Shiv Vihar near Shiv Mandir Pullia where dead body of a male was lying. He also removed the dead body to GTB Hospital and got preserved the same in the Mortuary, GTB Hospital for postmortem and guarded the dead body. After the postmortem, the concerned doctor had given him three parcels containing clothes, blood gauge, small bottle containing bullet and one sample seal of SR and he handed over the same to the IO who seized the same vide seizure memo Ex.PW20/A.
6) PW-21 H.C Vijay Dutty was the member of police party and witness of arrest of accused Sandeep Chauhan and co-accused Kamal Kishore. He is also the witness of recording of their disclosure statements, preparing of pointing out memos and Khanatalashi memos.
7) PW-22 ASI Rajmal was posted as Asst. Sub Inspector at PS Karawal Nagar, Delhi on 28.07.2009 and he, on the receipt of telephonic call from Duty Officer regarding lying of a person at Shiv Mandir Pulla, Karawal Nagar in unconscious condition, reached there alongwith Ct. Sandeep, where Ct. Jugal Kishore and Inspector C.M Meena met him. He found that one dead body of a FIR No. : 134/08, PS : Karawal Nagar Page 9 of 23 10 male namely Ravi @ Ravinder was lying there. As per the instructions of Inspector C.M Meena, he called the Crime Team and photographer at the spot. He in addition to other memos proved rukka Ex.PW22/A. He identified the articles i.e. one mobile charger and one rexin purse containing two visiting cards and one SIM card, two pocket diaries, which were recovered from the possession of deceased Ravinder @ Ravi vide Ex.PW2/Article-1 (collectively).
8) PW-23 S.I Surender Sharma was also the member of police party and witness of arrest of accused Sandeep Chauhan and co-
accused Kamal Kishore. He proved their arrest documents. He is also the witness of recording of their disclosure statements and preparing of pointing out memos.
8) PW-25 Inspector C.M Meena is the Investigating Officer who in addition to other memos proved the site plan Ex.PW25/A, inquest papers i.e. form No. 25.35 Ex.PW25/B and request for postmortem Ex.PW25/C, brief facts of the case Ex.PW25/D, call details of mobile phone of deceased from Tata Tele Services Ltd. Ex.PW25/E (colly.), FSL report (ballistic) Ex.PW25/F and other FSL reports Ex.PW25/G and Ex.PW25/H. He identified the articles recovered from the possession of deceased Ravinder @ Ravi as E.xPW2/Article-1 (colly.) and one mobile phone of silver colour make Tata Kyocera which was seized by him vide Ex.PW3/Article-1.
10. After conclusion of the Prosecution Evidence, Statements of accused persons were recorded U/s 313 Cr.P.C, wherein, they denied the Prosecution Evidence and claimed innocence.
FIR No. : 134/08, PS : Karawal Nagar Page 10 of 23 1111. Accused Sandeep Chauhan in his statement U/s 313 Cr.P.C has stated that he has been falsely implicated in this case. He had never committed any offence, as alleged by the police. He was lifted by the police from his house on 29.07.2008 in the presence of the neighborers and family members. He has no acquaintance with Kamal Kishore. He did not make any disclosure statement. His signatures were obtained by the police on blank papers forcibly. He stated that he is innocent. He opted not to lead any evidence in his defence.
12. Accused Kamal Kishore in his statement U/s 313 Cr.P.C has stated that he has been falsely implicated in this case. He had never committed any offence, as alleged by the police. On 29.07.2008, he was called by the police from his residence and his elder brother Kishore had taken him to the PS. He has no acquaintance with Sandeep. He did not make any disclosure statement. His signatures were obtained by the police on blank papers forcibly. He also stated that he is innocent and opted not to lead any evidence in his defence.
13. I have heard submissions from Ld. Addl. PP for the State and also from Ld. Defence counsels. I have also gone through the record.
14. Ld. Addl. P.P for the State has submitted that Prosecution Witnesses have been examined in the court and there is sufficient evidence on record to connect the accused persons with the alleged offence.
15. Ld. Defence Counsel has submitted that the material witnesses have not at all supported the prosecution case and have turned hostile, as such, there is no eye-witness of the alleged occurrence. The prosecution has also failed to prove on record any motive against accused persons. The prosecution has also not established the chain FIR No. : 134/08, PS : Karawal Nagar Page 11 of 23 12 of circumstantial evidence connecting the accused persons with the alleged offence. There are material contradictions in the testimony of the witnesses. It has also been submitted that the prosecution has failed to recover the alleged country-made pistol and there is no evidence against accused Kamal Kishore even of the offence U/s 506 IPC.
16. In order to establish an offence of murder, it is incumbent upon the prosecution to prove following ingredients :-
(1) death of a human being, (2) that it was caused by the accused persons, (3) that the act by which the accused persons caused it was done:-
(a) with an intention of causing death; or
(b) with the intention of causing such bodily injury as the accused persons knew to be likely to cause the death of the person to whom the harm was caused; or
(c) with the intention of causing injury to the deceased person and the injury intended to be inflicted was sufficient in the ordinary course of nature, to cause death, or
(d) with the knowledge that the act was so imminently dangerous that it must, in all probabilities, cause death or such bodily injury as is likely to cause death and committed such act without any excuse of causing death or such injury as aforesaid.
17. In order to see whether the above ingredients have been established by the prosecution on record, the facts have to be appreciated. It has to be first seen whether the prosecution has been able to prove on FIR No. : 134/08, PS : Karawal Nagar Page 12 of 23 13 record the death of injured Ravinder @ Ravi @ Raju. As per the prosecution case, a dead body of male person namely Ravinder @ Ravi @ Raju was lying near telephone pole in a gali adjacent to marriage home of Jagdish Pradhan at 20 feet Road, Mahalaxmi Enclave, near Shiv Mandir, Shiv Vihar Pullia Karawal Nagar, Delhi.
18. PW-22 ASI Rajmal deposed that on 28.07.2008, he was posted as Asst. Sub-Inspector at PS Karawal Nagar, Delhi. On that day, he left the police station to attend the call and in the meantime at about 10:45 p.m. he received another telephonic call from duty officer that a person was lying at Shiv Mandir Pullia, Karawal Nagar in unconscious condition. On the receipt of the same, he reached there with Ct. Sandeep where Ct. Jugal Kishore also met him and in the meantime Inspector C.M. Meena also reached there. He found that one dead body of a male aged about 25 years was lying, whose name we came to know as Ravi @ Ravinder. The intestine of the dead body were out of the stomach. As per the instruction of the Inspector C. M. Meena, he called the crime team, who reached at the spot and inspected the dead body. Private photographer was also called, who reached and took photographs of the dead body as per the instruction of the IO. Sh. Mohar Singh father of deceased also reached there and identified the dead body as Ravinder @ Ravi. From the possession of the dead body, one charger of mobile phone, one purse of black colour containing SIM card, some visiting cards and two small pocket diary. IO seized the same through seizure memo. Thereafter, IO lifted blood sample and earth control from the spot and seized the same through seizure memo. He prepared rukka upon DD No. 35 A, the rukka is Ex.PW-22/A and sent the same through Ct. Jugal Kishore to the police station for registration of the FIR. The dead body was also FIR No. : 134/08, PS : Karawal Nagar Page 13 of 23 14 sent to Mortuary, GTB Hospital through Ct. Sandeep for preserving for postmortem.
19. PW-25 IO/Inspector C.M Meena corroborated the testimony of PW-
22 ASI Rajmal regarding the dead body lying at the spot, registration of the FIR, seizure of exhibits from the spot as well as seizure of articles recovered from the personal search of deceased and sending of dead body to GTB Hospital through Ct. Sandeep. PW-25 IO/Inspector further deposed that on 29.07.2008, he went to GTB Hospital alongwith ASI Rajmal and prepared inquest papers i.e. form No. 25.35 which is Ex.PW25/B, request for postmortem which is Ex.PW25/C. He also deposed that Sh. Mohar Singh father of the deceased and Sh. Dhirender Singh brother of deceased also reached at GTB Hospital Mortuary and he recorded their statements regarding identification of dead body which are Ex.PW2/B and Ex.PW1/A respectively. He also prepared the brief facts of the case which are Ex.PW25/D. After the postmortem, dead body was handed over to the family members of the deceased vide receipt Ex.PW1/B.
20. PW-20 Ct. Sandeep deposed that on 29.07.2008, he was posted as Constable at PS Karwal Nagar Delhi and on the receipt of DD No. 35- A, he alongwith ASI Rajmal reached at Shiv Vihar, near Shiv Mandir Pullia where dead body of a male was lying. The name of deceased came to be known as Ravinder @ Ravi @ Raju. He testified that as per the instructions of the IO, he removed the dead body to GTB Hospital and got preserved the same in the mortuary, GTB Hospital for postmortem and he remained in the hospital to guard the dead body.
21. PW7 Dr. Sumit Tellewar, Sr. Resident, Department of Forensic FIR No. : 134/08, PS : Karawal Nagar Page 14 of 23 15 medicine, Safdarjung Hospital, has proved postmortem report of deceased Ravinder @ Ravi @ Raju which is Ex.PW7/A. The cause of death in this case was "Shock as a result of haemorrhage due to antemortem injuries to abdominal aorta and inferior vene-cava produced by projectile from a fire arm". The injury is sufficient to cause death in ordinary course of nature.
22. PW-1 Sh. Dhirender @ Tinku deposed that on 29.07.2008, he went to GTB Hospital Mortuary and identified the dead body of his brother namely Ravinder @ Ravi and his statement to this effect was recorded which is Ex.PW1/A. PW-2 Sh. Mohar Singh also deposed that he had identified the dead body of his son (deceased) Ravinder @ Ravi vide identification memo Ex.PW2/B and thereafter, the dead body was handed over to him vide receipt Ex.PW1/B. Therefore, from the ocular testimony of public witnesses, police officials and opinion given by PW-7 Dr. Sumit Tellewar, the death of Ravinder @ Ravi @ Raju stands proved on record.
23. The prosecution was further required to prove that the death of Ravinder @ Raju @ Ravi was caused by the accused persons namely Sandeep Chauhan and Kamal Kishore,
(a) with an intention of causing death, or
(b) with the intention of causing such bodily injury as the accused persons knew to be likely to cause death of the person to whom the harm was caused, or
(c) with the intention of causing injury to the deceased person and the injury intended to be inflicted was sufficient in the ordinary course of nature to cause death, or
(d) with the knowledge that the act was so imminently dangerous that it must in all probabilities FIR No. : 134/08, PS : Karawal Nagar Page 15 of 23 16 cause death or such bodily injury as is likely to cause death and committed such act without any excuse of causing death or such injury as aforesaid.
24. The prosecution has projected that its case is based on (ocular) evidence and as per the statement of PWs, the deceased Ravinder @ Ravi @ Raju was related to accused Sandeep Chauhan and Smt. Reeta (sister of deceased) had suspected accused Sandeep Chauhan who was having evil eye on the wife of deceased Ravinder as well as on her niece Kirti, for which the deceased had forbidden him and the accused Sandeep had threatened the deceased to see him. On 28.07.2008, on the receipt of phone of accused Sandeep Chauhan, the deceased after having his dinner had left the house, stating that accused Sandeep Chauhan had called him at Tiraha of Shiv Vihar and he had to receive some payment from accused Sandeep Chauhan. At that time, Sh. Bhura, husband of Smt. Reeta had also accompanied deceased Ravinder and he was having phone No. 9210802258. Statement of PW Bhura was recorded who had stated that accused Sandeep Chauhan and co-accused Kamal Kishore have killed deceased Ravinder @ Ravi @ Raju by gun shot. Subsequently on 01.08.2008, on the information given by secret informer, accused Sandeep Chauhan was apprehended at Tiraha, Shiv Vihar, near Hanuman Mandir and disclosed that he alongwith co-accused Kamal Kishore had killed the deceased Ravinder.
25. PW-Smt. Reeta has been examined in the court as PW-3 but in her examination-in-chief, she has no where stated that on the fateful day, PW-Bhura had accompanied deceased Ravinder. Rather, she stated that she does not know anything else about the present case. She had also stated that she does not know anything about the murder of FIR No. : 134/08, PS : Karawal Nagar Page 16 of 23 17 her brother. She only identified accused Sandeep as her mama's Son, on a leading question put by Ld. Addl. P.P. She denied the suggestion given by Ld. Addl. P.P that she had stated to the police that her brother Ravi told her that accused Sandeep visits his house in his absence and on this issue, there were always fights between him and his wfie and on this issue, Sandeep takes side with the wife of deceased. She denied the suggestion that she was deliberately suppressing this fact. She also denied the suggestion that she received a call of accused Sandeep over her phone. She denied specific suggestion from Ld. Addl. P.P for the State that she had stated to the police that after sometime, another phone call was received from accused Sandeep which was heard by deceased and thereafter, deceased told her that it was Sandeep and the deceased Ravi had to take some money from Sandeep and for that purpose, Sandeep had called him at Shiv Vihar Tiraha. She also denied the suggestion given by Ld. Addl. P.P that she had made supplementary statement on 29.09.2008 where she stated to the police that she went alongwith her husband Bhura and her husband Bhura handed over the mobile phone having connection No. 9210802258 which was given to her by her brother Ravi (deceased). She also denied the suggestion that she had stated to the police in the supplementary statement that on the day of occurrence, when her brother Ravi left her house, her husband also accompanied him and was carrying phone. Therefore, she totally resiled from the material facts stated by her to the police. In her cross-examination by Sh.S.R Raghav, Ld. Defence Counsel for accused Kamal Kishore, she admitted that after taking food, her husband Bhura remained with her at her house and he had not gone with deceased Ravi.
FIR No. : 134/08, PS : Karawal Nagar Page 17 of 23 1826. PW Bhura has been examined in the court as PW-4. In his examination-in-chief he has not at all deposed that on the fateful day, he had accompanied deceased Ravinder @ Ravi. He only stated that he does not know anything about the murder of Ravi (deceased). Since, he had resiled from his previous statement, Ld. Addl. P.P had also cross-examined him. He has denied the suggestion given by Ld. Addl. P.P for the State that he had stated to the police that deceased Ravi had told him or his wife that accused Sandeep Chauhan was threatening to kill him. He only admitted that on 28.07.2008, after taking the dinner, he alongwith deceased Ravi had left the house for sleeping in the rented house of deceased Ravi and voluntarily, added that due to his ill health, he returned back. He denied the suggestion that the deceased Ravi had told him that accused Sandeep Chauhan had called him at Shiv Vihar Pullia to return back his money (Ravi's money). He denied the suggestion that he had stated to the police that on 28.07.2008, at about 10.00 pm, when he alongwith deceased Ravi reached near Shiv Vihar Tiraha Marriage Home, 20 foota Road, Sandeep Chauhan and Kamal Kishore were already present and on seeing them, Ravi had told him that he would take money back from Sandeep and he stopped there. He also denied the suggestion given by Ld. Addl. P.P that accused Sandeep Chauhan had caught hold the hand of Ravi and told Kamal Kishore to kill him as he was Ravi, who was obstacle in his way, on which, Kamal Kishore also caught hold hand of Ravi and asked Ravi about him (PW). He also denied the suggestion that he had stated to the police that it so happened that Ravi had told Kamal Kishore "tu kahan ka dada hain ek mahine se sar foorwa ke para hain tu unka hi kuch nahi kar saka to mera kya karega"
and in the meantime, Sandeep Chauhan told to Kamal Kishore that "Der kis baat ki hai" and on hearing the same, Kamal Kishore took out FIR No. : 134/08, PS : Karawal Nagar Page 18 of 23 19 katta (country made pistol) from dub and fired on the stomach of Ravi. He further denied the suggestion that after firing in the stomach of deceased Ravi, Kamal Kishore told him (PW) that "bhag ja nahi to tera bhi yahi hal hoga" and due to fear he ran away from there. He also denied the suggestion that he was deliberately suppressing the material facts and has not supported the prosecution case on material particulars.
27. PW-5 Sh. Lakhmi Chand has deposed that he did not see any occurrence and he does not know accused present in the court. In the cross-examination by Ld. Addl. P.P for the State, PW-5 Sh. Lakhmi Chand denied that he was standing near his handcart on 28.07.2008, at about 10.00 pm and heard a voice of firing and turned back and saw one young person lying in injured condition who was crying in pain and near him, Kamal Kishore, known to him, was having some arm in his hand, which was witnessed by him in the light. He also denied the suggestion that he had stated to the police that he reached the injured, who was writhing in pain and was saying that "Kamal ne goli mar kar thik nahi kiya" . Ld. Addl. P.P pointed out towards accused Kamal Kishore and Sandeep Chauhan present in the court as the persons whom the witness had seen on the day of occurrence and accused Kamal Kishore was previously known to the witness but witness deposed that he does not know any of them. PW-5 Sh. Lakhmi Chand also resiled from his statement Ex.PW5/A recorded by Ld. Metropolitan Magistrate U/s 164 Cr.P.C and denied the suggestion that his statement made to the Ld. M.M was true, correct and voluntarily statement or he was deliberately not stating so as he was won over by the accused persons.
28. PW-6 Sh. Sunil Kumar Gupta also deposed that he had not seen FIR No. : 134/08, PS : Karawal Nagar Page 19 of 23 20 anything nor he saw the boy who had sustained injury and does not know anything about the case. In the cross-examination by Ld. Addl. P.P, PW-6 Sh. Sunil Kumar Gupta stated that he had not given any statement to the police officials. He also denied the suggestion that he had made the statement to the police on 29.07.2008 that at about 11.00 am, Lakhmi Chand, who sells banana on 'rehri' came to him and told that one boy namely Kamal who used to sell eggs on the rehri and brother of Kishore Langra had fired at boy previous night and ran away with his accomplice and Lakhmi had properly identified him as Kishore. On pointing out by Ld. Addl. P.P, PW-6 stated that he could not identify accused Kamal Kishore. PW-6 also resiled from his statement Ex.PW6/A recorded U/s 164 Cr.P.C by Ld. M.M and voluntarily added that he had so stated before Ld. M.M as he was asked by the police officials to give the name of Kamal Kishore in his statement.
29. PW-8 Sh. Ajay Kumar has deposed that when he returned to his shop on the second day from the incident, he came to know that someone was shot. He does not know who was shot and by whom. In the cross- examination by Ld. Addl. P.P, this witness had denied the suggestion that he had stated to the police in his statement mark F that on 28.07.2008, at about 10 PM, he was present on his rehri and he saw that accused Sandeep, present in the court and known to him earlier, was standing near his rehri and was talking on phone to someone. He also denied the suggestion that he stated to the police that as he crossed the road, within two-three mintues, he heard a noise of bullet shot from the side of 20 foota road, Laxmi Enclave, Marriage Home. He further denied the suggestion that statement mark F portion F to F and F1 to F1 is his true and correct statement made by him voluntarily FIR No. : 134/08, PS : Karawal Nagar Page 20 of 23 21 to the IO. He also denied the suggestion that he has been won over by the accused persons.
30. PW-10 Smt. Geeta, Wife of the deceased, has deposed that accused Sandeep Chauhan, present in the court, was not known to her and that he is son of maternal uncle of deceased Ravinder. She deposed that there was no quarrel between her and her husband nor there was any quarrel in relation to coming of accused Sandeep Chauhan to their house. Her husband Ravinder had come to her maternal house, where she was staying, on Sunday and stayed there with them throughout the day. He left their house for going to his parent house at about 3-4 pm and on Monday night, police came to their house but police did not disclose to her regarding the murder of her husband nor this fact was was disclosed to her when she visited PS Gokalpuri. She identified the dead body of deceased at GTB Hospital. In her cross- examination by Ld.Addl. P.P, this witness denied the suggest that she had stated to the police in her statement mark G that accused Sandeep Chauhan present in the court, used to come to her house in the absence of her husband which was objected by deceased Ravinder. She also denied the suggestion that she has stated to the police that sister of Ravinder namely Reeta and her husband had arranged the rented house for Ravinder at Mustafabad but she does not want to go there as she wants to live near her parents house.
31. PW-13 Smt. Usha deposed that she does not know anything about the incident of this case. She does not know how Ravinder died. She was also cross-examined by Ld. Addl. P.P for the State. She denied the suggestion that she made statement mark PW 13/A to the IO that on 27.07.2008 at about 2.00 PM, Ravi and Sandeep came to her house and Ravi had told her that Sandeep is the Son of his Maternal FIR No. : 134/08, PS : Karawal Nagar Page 21 of 23 22 uncle and at that time, her husband had gone to his job and when she was preparing the tea, Ravinder was telling Sandeep "jab main apne gharwali ke paas nahi jata to tu kyon meri gharwali ke paas jata hain aur tu meri chacheri bahan Usha ki ladki ko bhi galat najar se dekhta hain" and on this Sandeep had told Ravinder "main aisa hi karunga jo tere se ho kar lena yadi jyada bakwaas ki to tujhe bhi dekh lunga". She also denied the suggestion that she has been won over by the accused Sandeep and as such, deposing falsely and suppressing the truth to save the accused persons.
32. From the testimonies of all the material/public witnesses, it is established on record that none of them has supported the prosecution version and have totally resiled from their statements as recorded by the IO during the investigation. Since they had resiled from there statements made to the IO and even after cross- examination by Ld. Addl. P.P for the State, they denied all the suggestions on material particulars, therefore, prosecution has failed to prove on record that any of the PWs had witnessed the alleged killing of deceased Ravinder by the accused persons Sandeep Chauhan and Kamal Kishore. As such, prosecution has failed to prove on record that death of deceased Ravinder was caused by gun shot injury by accused persons or that accused persons were present on the spot on the alleged date, time and place of occurrence. Prosecution has failed to prove the commission of offence U/s 302/34 IPC having been committed by the accused persons Sandeep Chauhan and Kamal Kishore.
33. None of the prosecution witness has testified in the court that accused Kamal Kishore had intimidated PW Bhura S/o Munna, the witness of alleged incident to face dire consequences. PW-4 Sh. Bhura himself FIR No. : 134/08, PS : Karawal Nagar Page 22 of 23 23 has not supported the prosecution version and has turned hostile. Therefore, the prosecution has miserably failed to prove offence under Section 506 IPC against accused Kamal Kishore.
34. Now coming to the offence U/s 201 IPC, there is no evidence on record that accused Kamal Kishore and Sandeep Chauhan had fired the gun shot on the deceased Ravinder @ Ravi and therefore, it is doubtful that they had knowingly caused disappearing of evidence of offence. The prosecution has failed to recover the country made pistol from the possession or at the instance of the accused persons. There is no eye-witness who had seen them causing gun shot injuries to the deceased. Therefore, no presumption can be drawn that accused persons had made to disappear the country-made pistol. Therefore, accused persons namely Sandeep Chauhan and Kamal Kishore are entitled to benefit of doubt for offence U/s 201/34 IPC.
35. In view of the above discussion, accused persons namely Sandeep Chauhan and Kamal Kishore are entitled to be acquitted. Accordingly, accused Sandeep Chauhan and Kamal Kishore are acquitted of the charges U/s 302/34 IPC, 201/34 IPC and accused Kamal Kishore is acquitted of the charge U/s 506 IPC. Their bail bonds stand cancelled. Sureties stand discharged. Case property if any, be destroyed after the expiry of appeal period. File be consigned to record room.
Announced in the open court T.S. KASHYAP
today i.e. on 02.03.2012 ASJ-04/NORTH-EAST/DELHI
FIR No. : 134/08, PS : Karawal Nagar Page 23 of 23