Delhi District Court
State vs . 1.Sunil Kumar Raghav, S/O Jaipal ... on 21 December, 2013
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : North East / KARKARDOOMA
COURTS: DELHI.
Case ID Number. 02402R0004272003
Sessions Case No. 94/2012
Assigned to Sessions. 13.02.2003
Arguments heard on 16.12.2013
Date of judgment 21.12.2013
FIR No. 347/2002
State Vs. 1.Sunil Kumar Raghav, s/o Jaipal Singh,
R/o. House No.A207, Gali No.3, Rama
Garden, Karawal Nagar, Delhi.
2.Shehjad, S/o Muzaffar Hussain, r/o
Gali No.8, Phase 6, Shiv Vihar, Delhi.
3.Vinod, S/o Devender r/o Village
Vidhipur, P.S. Hathras Junction, Distt.
Hathras, U.P.
Police Station Gokalpuri
Under Section 302/120B IPC
JUDGMENT:
1. Story of prosecution is that on 13.09.2002 a DD No.73B was recorded at police station Gokalpuri regarding shooting of person by another and he is being taken to hospital and on receipt of said DD, SI Kailash Chand along with Ct. Sher Singh had gone at the spot i.e. Gali No.3, Rama Garden, Karawal Nagar, near Tipal Factory where they found blood on the ground there and they also found some public persons there who informed them that one Akhilesh has received gun shot injuries and that he has been taken to GTB Hospital. Thereafter, SI Kailash Chand along with Ct. Sher Singh went to GTB Hospital and from the hospital MLC of SC No.94/2012 State vs. Sunil Kumar Raghav and others 1/70 injured Akhilesh was collected and statement of injured Akhilesh Ex.PW25/A was recorded by SI Kailash Chand and he made endorsement Ex.PW25/B on the statement and prepared rukka and got the present case registered. Duty Ct. Mukesh had met them in the hospital and duty constable Mukesh had produced one pullanda in sealed condition with the seal of MLC GTB Hospital along with the sample seal before S.I. Kailash Chand and he had seized the same vide seizure memo Ex.PW2/A. S.I. Kailash Chand had recorded statement of Ct. Mukesh, Sanjay (brother in law/Jija of Akhilesh). S.I. Kailash Chand had called crime team officers with photographer through Duty Officer. Ct. Ratan Singh, photographer had taken photograph of the place of incident from different angles. S.I. Kailash Chand had prepared site plan at the instance of Sanjay vide Ex.PW25/C.
2. S.I. Kailash lifted the blood and converted the same in sealed parcel with the seal of KCY and seized the same vide memo Ex.PW2/A. S.I. Kailash Chand had also lifted blood stained earth and converted into sealed parcel and seized the same vide memo Ex.PW2/B. Earth control was also lifted and converted into sealed parcel with the seal of KCY and seized vide memo Ex.PW2/C.
3. On 15.09.2002, S.I. Kailash Chand again went to GTB Hospital and doctor informed him that Akhilesh was in ICU and not fit for statement. Madhu wife of Akhilesh met him at the gate of ICU and S.I. Kailash Chand had recorded her statement and after some time, Ashok (brother in law/sala of Akhilesh) met him in the hospital and S.I. Kailash Chand had also recorded his statement. SC No.94/2012
State vs. Sunil Kumar Raghav and others 2/70
4. On 18.09.2002, at about 11:20 p.m., S.I. Kailash Chand had received DD No.75B Ex.PW8/A regarding the death of injured Akhilesh in the hospital.
5. On 19.09.2002, S.I. Kailash Chand along with Ct. Sher Singh went to Mortuary of GTB Hospital and conducted inquest proceedings and filled inquest form Ex.PW25/D and he had recorded statement of Subhash Chand Raghav and Praveen Raghav vide Ex.PW7/A and Ex.PW3/A respectively regarding identification of the dead body. S.I. Kailash Chand had made request for post mortem vide Ex.PW25/E and after postmortem dead body was handed over to the relatives of the deceased vide Ex.PW2/D. During the course of investigation, police had arrested accused persons namely Sunil Kumar Raghav, Shehjad and Vinod and Station House Officer of Police Station Gokalpuri had filed a challan vide FIR No.347/2002 dated 14.09.2002 u/s 307 IPC for the prosecution of accused persons namely Sunil Kumar Raghav, Vinod Kumar and Shehzad in the court of Ld. Metropolitan Magistrate and Ld. MM committed this case before the Sessions Court for trial after compliance of section 207 Cr. P.C. and thereafter, this case was sent to this court by way of transfer from the Court of Sh. R.P.S. Teji, ld. ASJ vide order dated 22.09.2012 of Ld. District & Sessions Judge, Delhi.
CHARGE:
6. On the basis of material available on record, ld. predecessor of this court framed charges vide order dated 23.04.2003 against the accused Sunil Kumar Raghav for the offences punishable u/s 120B/302 IPC and vide separate order dated 13.07.2004 charges were framed against accused persons namely Vinod Kumar Raghav and Shejad for offences punishable u/s 120B/302 IPC to which accused SC No.94/2012 State vs. Sunil Kumar Raghav and others 3/70 persons did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
7. In order to prove its case prosecution has examined 29 witnesses namely PW1 ASI Braham Singh, PW2 Ct. Sher Singh, PW3 Dr. Gaurav Vinod Jain, PW4 Ct.
Vinod Kumar, PW5 Smt. Madhu, PW6 Ct. Mukesh, PW7 Subhash Chand Raghav, PW8 Ct. Jasbir, PW9 S.I. Ajit Malik, PW10 Ashok Kumar, PW11 Sukhlal, PW12 Pramod Vashisht, PW13 Parveen Kumar, PW14 Ct. Rattan Singh, PW15 Sh. G.L. Arora, C.M.O., GTB Hospital, PW16 HC Vinay Kumar, PW17 R.K. Singh, PW18 Sh. Anu Anand, PW19 HC Ramesh, PW20 Ct. Bhupender, PW21 ASI Gajender, PW22 Ct. Shyam Lal, PW23 S.I. Rajesh Chand Pandey, PW24 Ct. Raj Kumar, PW25 S.I. Kailash Chand Yadav, PW26 Dr. Naveen Sharma, PW27 S.I. Mukesh Kumar Jain, Draughtsman, PW28 HC Jitender and PW29 Inspector Pawan Kumar.
8. PW1 ASI Braham Singh. This witness is a formal witness being Duty Officer. This witness has proved the copy of FIR vide Ex.PW1/A which he had recorded on the basis of rukka presented before him by Ct. Sher Singh. This witness has also proved the rukka vide Ex.PW1/B.
9. PW2 Ct. Sher Singh deposed that on 13.09.2002 on receipt of DD No. 25A in the PS, he alongwith SI Kailash Chand proceeded to the spot i.e. Gali No.3, Rama Garden, Karawal Nagar where they saw that blood was lying in front of Kirpal Factory and on enquiry they came to know that the injured Akhilesh was already SC No.94/2012 State vs. Sunil Kumar Raghav and others 4/70 taken to the GTB hospital by his brother in law Sanjay. Thereafter they went to the GTB Hospital and from the hospital MLC of injured was collected and statement of injured Akhilesh was also recorded by ASI Kailash Chand and on the basis of statement of injured, ASI Kailash Chand prepared rukka and and handed over the same to him for getting the FIR registered, and after getting the FIR of this case registered, he returned back at the spot and gave copy of FIR and original rukka to ASI Kailash for further investigation. He also deposed that from the scene of occurrence, S.I. Kailash lifted the blood and converted the same in sealed parcel with the seal of KCY and seized it vide memo Ex.PW2/A. From the scene of occurrence, blood stained earth was also lifted and converted to sealed parcel with the seal of KCY and was taken into possession vide memo Ex.PW2/B. Earth control was also lifted and converted into sealed parcel with the seal of KCY and seized vide memo Ex.PW2/C.
10.This witness has further deposed that on 19.09.2002, he again joined the investigation with S.I. Kailash and he along with him had gone to GTB Hospital Mortuary where S.I. filled up the inquest form and recorded the statement regarding identification of dead body and after identification of dead body of Akhilesh, it was handed over to his brother Suresh vide memo Ex.PW2/D and in the hospital, doctor concerned had given to him one envelope sealed with the seal of GVJ containing to be blood and gauze of deceased along with sample seal which was taken into possession by S.I. Kailash vide memo Ex.PW2/E.
11.In his cross examination by Sh. Ashok Kumar Tiwari, Ld. counsel for accused Shahzad, this witness stated that he had received the DD No.73B at police station SC No.94/2012 State vs. Sunil Kumar Raghav and others 5/70 and SI Kailash Chand was on patrolling duty in the area and he handed over the DD No.73B to S.I. Kailash Chandra at New Mustafabad area and he had not made any departure DD entry in this respect. This witness further stated that he does not remember whether SI Kailash Chandra recorded the name and address of the persons who informed them that injured Akhilesh was taken to GTB Hospital by Sanjay. This witness had denied to the suggestion that no relatives of the injured Akhilesh (Sanjay, wife of Akhilesh and brother in law) were present inside the room where the Akhilesh was admitted. This witness further stated that statement of no other witnesses was recorded before his leaving with the rukka.
12.In his cross examination by Sh. A.K. Tiwari, Ld. counsel for accused Shahzad, this witness stated that he had received the DD No.73B at police station and SI Kailash Chandra was on patrolling duty in the area and he handed over the DD No.73B to SI Kailash Chandra at New Mustafabad area. This witness stated that he does not remember whether SI Kailash Chandra recorded the name and address of the persons who informed them that injured Akhilesh was taken to GTB Hospital by Sanjay. This witness had denied to the suggestion that no relatives of the injured Akhilesh (Sanjay, wife of Akhilesh and brother in law) were present inside the room where the Akhilesh was admitted. This witness admits that SI Kailash Chandra recorded statement of Akhilesh whatever he stated and no other persons except him and SI Kailash Chandra were present at that time. This witness stated that he reached police station at about 12:40 a.m. mid night and came back at the spot at 1:45 a.m. SC No.94/2012 State vs. Sunil Kumar Raghav and others 6/70
13.This witness further stated that I.O. had not recorded the statement of any other witness in his presence except statement of Subhash and Praveen on identification of dead body. This witness had denied to the suggestion that he has not joined the investigation at any time or that no papers related to present case was prepared by the I.O. and he put his signatures on those papers in police station at the instance of the I.O.
14.In his cross examination by Sh. B.S. Chauhan, Ld. counsel for accused Vinod, this witness admits that there is a cutting/overwriting on the time mentioned in the Ex.PW2/A and he does not know who has done it. This witness further stated that he does not remember whether this cutting on the Ex.PW2/A was there at the time of handing over the same to him. This witness had denied to the suggestion that he had made this correction on this DD No.73B Ex.PW2/A in order to support the prosecution story.
15.PW3 Dr. Gaurav Vinod Jain, CMO G.T.B. Hospital, Delhi. This witness has proved the postmortem report vide Ex.PW3/A.
16.PW4 Ct. Vinod Kumar. This is the witness of arrest of accused Sunil Kumar Raghav.
17.PW5 Smt. Madhu is a material witness being wife of deceased. This witness stated that Ashok is her real brother and Sanjay is her Nandoi and on 13.09.2002, she along with Sanjay, Ashok and other family members were present at her house SC No.94/2012 State vs. Sunil Kumar Raghav and others 7/70 and at about 10/10:30 p.m. they all were waiting for his husband Akhilesh. This witness further stated that at that time, all of a sudden she heard the noise of gun shot fire on which Sanjay went outside the house in the lane and thereafter, it was learnt that Akhilesh was shot with a bullet. Then, she along with Sanjay and Ashok took Akhilesh to GTB Hospital in a TSR and on the way Akhilesh told that gun short was fired at him by Shahzad and it has been done at the instance of Sunil who himself has confined himself in Tihar Jail. Her husband had also told her not to tell about it to anyone and he further stated that he would also not tell about it in his statement to the police otherwise Shehzad would also kill his children.
18.This witness further stated that accused Sunil Kumar is Sandu of her husband Akhilesh and accused Sunil and her husband Akhilesh were doing the work of property dealer jointly. Her husband Akhilesh had given one plot measuring 400 yds. after purchasing it to her at Gali No.3, Rama Garden. Thereafter, her husband and accused Sunil both purchased a plot measuring 110 yds. adjacent to said plot. This witness further stated that accused Sunil had taken the possession of the plot measuring 110 yds. By cheating to her husband and he constructed his own house in that plot within the area of 60 yds. and rest 50 yds. he sold to Om Pal Singh Chauhan, son of her uncle and he had taken the amount himself and on account of this, there was tension between her husband and Sunil Kumar.
19.This witness further stated that on one occasion when accused Sunil was getting plastered the partitioned wall of her house and the house of accused Sunil, at that time her husband had raised objection and because of this objection, accused Sunil Kumar had given beating to her husband and a case was registered against Sunil SC No.94/2012 State vs. Sunil Kumar Raghav and others 8/70 pertaining to that quarrel and accused Sunil was also sent to Jail and accused Sunil used to make false complaints against Akhilesh stating that he was having apprehension of his life from Akhilesh.
20.This witness further stated that accused Sunil is the person who has killed her husband Akhilesh.
21.In her cross examination by Sh. A.K. Tiwari, Ld. counsel for accused Shehzad, this witness stated that beside herself, her brother in law, Sanjay and her brother namely Ashok and her four children were also present in the house when she heard the noise of gun shot fire and she and Ashok reached at the spot together and when she reached at the spot, Akhilesh was lying on his back side and his face was towards sky. This witness further stated that bullet had hit her husband on his back and pierced it making exit near the upper portion of chest. This witness further stated that besides her, Ashok and Sanjay were also with her when they had taken her husband to the hospital in TSR and her husband was conscious when he was brought from the TSR in the hospital and her clothes were stained with blood whereas the clothes of Sanjay and Ashok were not stained with blood when her husband was taken to hospital. This witness had denied to the suggestion that her husband had not told her anything in the TSR nor he told anything to Sanjay and Ashok about the occurrence. This witness further denied to the suggestion that her husband Akhilesh remained unconscious during the period of his removing from the spot to the hospital.
SC No.94/2012
State vs. Sunil Kumar Raghav and others 9/70
22.This witness stated that her husband remained conscious through out the period he was taken to the hospital. This witness further stated that statement of her husband was recorded by the police in his presence after his arrival in the hospital immediately.
23.This witness further stated that she can neither admit nor deny that her statement was not recorded on 13.09.2002. This witness denied to the suggestion that police obtained his signature on blank papers. This witness further stated that her previous statement that police had obtained her signature on blank papers is not correct. This witness further denied to the suggestion that she is deposing falsely that her husband had not told her anything.
24.PW6 Ct. Mukesh. This witness, on 13.09.2002 was posted as duty constable in GTB Hospital and he had handed over one sealed parcel along with sample seal duly sealed containing to be shirt of Akhilesh to the I.O. who seized the same vide memo Ex.PW6/A.
25.PW7 Subhash Chand Raghav. This witness has identified the dead body of deceased Akhilesh and in this regard his statement Ex.PW7/A was recorded and after postmortem dead body of deceased Akhilesh was handed over to him vide handing over memo Ex.PW2/B.
26.PW8 Ct. Jasbir. This witness was the duty constable in GTB Hospital on 18.09.2002 and on that day he had received information that Akhilesh who was SC No.94/2012 State vs. Sunil Kumar Raghav and others 10/70 admitted in hospital on 13.09.2002 after sustaining bullet injuries had expired and this witness had informed about the same to duty officer HC Vinay Kumar of police station Gokalpuri and this information was given at about 11:230 p.m.vide DD No.75B vide Ex.PW8/A.
27.PW9 S.I. Ajit Malik. This witness stated that on 15.02.2001, he was posted as ASI in police station Gokalpuri and on that day, he had received a call with regard to quarrel at gali No.3, Rama Garden and on this information, he along with Ct. Subhash reached there and he saw that accused Sunil Kumar was quarreling with Akhilesh Raghav (since deceased) and Mahipal Singh and at that time, accused Sunil Kumar was also saying to Akhilesh for getting plastered on the wall of his house and he tried to pacify accused Sunil Kumar Raghav but he was stiff to his stand. This witness had prepared a kalandara against Sunil Kumar Raghav vide DD No.21A. This witness has proved DD No.21A vide Ex.PW9/A and photocopy of the kalandara vide Ex.PW9/B.
28.PW10 Ashok Kumar, is a material witness being brotherinlaw of deceased. This witness stated that in the year 2002 he had come to her sister's house for treatment of his leg which got fractured due to accident and he know Akhilesh (deceased) who was his brother in law (behnoi) and he also know Sanjay who is brother in law of Akhilesh.
29.This witness further stated that on 13.09.2002 at about 10:30 p.m., he along with his sister Madhu and Sanjay were sitting in the house of his sister Madhu and they SC No.94/2012 State vs. Sunil Kumar Raghav and others 11/70 were waiting for Akhilesh, in the meantime he heard the noise of gun shot and on this Sanjay went out side in the lane, some one told that Akhilesh was shot with bullet and on this he along with his sister Madhu went outside and reached near Tripal factory and there he saw that Akhilesh was lying drenched with blood. Thereafter, this witness along with Sanjay and Madhu took Akhilesh in a TSR to GTB Hospital.
30.This witness has also told the same facts as told by PW5 Smt. Madhu, wife of deceased. This witness further stated that accused Sunil Kumar had tried to get killed to him as well as Akhilesh and even on 13.09.2002 accused Sunil Kumar because of enmity had got shot down Akhilesh with the help of Shehzad and he himself had gone to Jail.
31.This witness has also proved arrest memo Ex.PW4/C, personal search memo Ex.PW4/B and disclosure statement Ex.PW4/A of accused Sunil Kumar Raghav.
32.This witness has also proved seizure memo Ex.PW4/D of one booklet of Airtel Magic and one more booklet of Hutch which were got recovered by accused Sunil Kumar Raghav from his house.
33.This witness has also proved seizure memo Ex.PW4/E of seizing of register mentioning the entry therein with regard to Airtel and Hutch prepaid connections produced by Pramod Kumar.
SC No.94/2012
State vs. Sunil Kumar Raghav and others 12/70
34.This witness has also proved disclosure statement Ex.PW4/F of accused Sunil Kumar.
35.This witness has correctly identified booklet of Hutch prepaid and booklet of Airtel Magic Ex. P1 and P2 respectively as the same which were got recovered by accused Sunil Kumar from his house and were seized vide memo Ex.PW4/D, register Ex. P3 as the same which was seized vide memo Ex.PW4/E.
36.In his cross examination by Sh. S.P. Singh Chaudhary, Ld. counsel for accused Sunil Kumar, this witness stated that he cannot tell the date, month of his accident and his leg was plastered about 1 ½ months from the date of the incident and the plaster was removed after 45 days of the incident. This witness had denied to the suggestion that Sunil was not doing any property work/dealing with the deceased. This witness further stated that as the said plot of 110 square yards was purchased by contributing money by both the deceased as well as the accused Sunil, however, title papers were prepared in the name of Sunil and the dispute was because of same. This witness had denied to the suggestion that entire amount was contributed by Sunil nor by the deceased and he was the exclusive owner of the plot.
37.This witness had denied to the suggestion that no disclosure statement was made by accused Sunil in his presence or that accused Sunil was not arrested in his presence or that by acting in connivance with the police he had falsely implicated the accused in this case.
SC No.94/2012
State vs. Sunil Kumar Raghav and others 13/70
38.This witness further stated that accused Sunil and Akhilesh were related each other as brotherinlaw (Sadhoo) by virtue of accused Sunil's wife and deceased's wife being cousin sisters. This witness further stated that police had not made enquiry in his presence from any public person near the place of occurrence and deceased Akhilesh had stopped working with Sunil, in his property dealing business, one and a half years to two years prior to the incident and house of Madhu is situated at a distance of 2530 yards from the place of incident and no crowd had assembled at the place of occurrence at that time.
39.This witness had denied to the suggestion that in collusion with police officials he has named accused Sunil with some ulterior motive.
40.This witness was also cross examined by Sh. B.S. Chauhan, Ld. counsel for accused Vinod Kumar in detail.
41.PW11 Sukhlal. This witness has been declared hostile by ld. APP for the State as he had not supported to the case of prosecution. This witness stated that he know the accused Sunil Kumar Raghav being the resident of his gali and he did not have any Nokia mobile set 5110 and he never sold this mobile set to Sunil for Rs.1,700/ or for any other amount.
42.PW12 Pramod Vashisht. This witness stated that about 23 years ago the accused Sunil Kumar Raghav came to his shop and handed over to him photocopy of his ration card along with photographs to get Airtel Magic Prepaid connection on his mobile and he had made the entries in the relevant register. SC No.94/2012
State vs. Sunil Kumar Raghav and others 14/70
43.PW13 Parveen Kumar. This witness had identified dead body of deceased
Akhilesh in GTB Hospital and in this regard his statement was recorded vide Ex.PW13/A.
44.PW14 Ct. Rattan Singh is a photographer. This witness has proved six photographs vide Ex.PW14/A1 to A6 and its negatives vide Ex.PW14/A7 to A12.
45.PW15 Dr. G.L. Arora, C.M. GTB Hospital, Delhi. This witness has proved the MLC of injured vide Ex.PW15/A.
46.PW16 HC Vinay Kumar. This witness has proved copy of DD No.73B vide Ex.PW2/A and copy of DD No.75 vide Ex.PW8/A.
47.PW17 R.K. Singh, Nodal Officer, Bharti Televencher Delhi. This witness has proved print mout of mobile number 9810675812 vide Ex.PW17/A and A1.
48.PW18 Sh. Anu Anand, Alternate Nodal Officer Hutchissan Essar Mobile Services Ltd., Okhla PhaseII, New Delhi. This witness has proved copy of call details in respect of mobile No.9811029676 w.e.f. 01.09.2002 to 21.10.2002 vide mark 18/A1 to A4.
49.PW19 HC Ramesh. This is the witness of arrest of accused Sunil Kumar Raghav. This witness has proved arrest memo Ex.PW4/B, personal search memo Ex.PW4/C and disclosure statement Ex.PW4/A of accused Sunil Kumar Raghav. SC No.94/2012
State vs. Sunil Kumar Raghav and others 15/70 In his presence, accused Sunil Kumar Raghav had got recovered booklet of Airtel and Hutch from his house in respect of mobile belonging to him which was seized by the I.O. vide seizure memo Ex.PW3/D.
50.In his presence, I.O. has seized a register of G.G. Telecom Centre, Mukhiya Market, containing the connection holder of Air Tel and Hutch, vide seizure memo Ex.PW4/E.
51.This witness has proved call detail report of mobile No.9811029676 mark PW18/A1 to A5 and the call details of another mobile No.9810675112 mark Ex.PW17/A and A1.
52.This witness has correctly identified register vide Ex.P3, booklet of Airtel connection vide Ex.P2 and booklet of Hutch vide Ex. P1.
53.In his cross examination by Sh. B.D. Sharma, Ld. counsel for accused Sunil Kumar Raghav, this witness stated that on 18.10.2002, he in the company of Ct. Bhupender, Ct. Vinod and SI Kailash Yadav, IO had gone to Aligarh in connection of this case. This witness further stated that he had not made any DD entry about returning back to police station. This witness further stated that he had not made any departure entry in DD from the police station to go anywhere outside police station on 19.10.2002 and Ct. Bhupender had also not made any DD report about departure from police station to go outside.
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State vs. Sunil Kumar Raghav and others 16/70
54.This witness further stated that he does not remember whether any public person i.e. resident, passerby, shopkeeper etc. was asked to join the investigation at the time of arrest of accused Sunil Raghav or not. This witness admits that if any public person joins the investigation, his statement u/s 161 Cr. P.C. and his signatures were obtained on memos prepared at that time. This witness further stated that public persons were present at the time of recording of disclosure statement of accused Sunil Ex.PW4/A, however, despite asking by the I.O. those public persons to become witness, they did not come forward.
55.In his cross examination by Sh. B.S. Chauhan, Ld. counsel for accused Vinod, this witness had denied to the suggestion that he has deposed falsely or that entire writing work as narrated work was done at the police station and being subordinate officer, he had signed the same at the instance of the I.O. This witness had denied to the suggestion that on 17.10.2002, at about 8:30 p.m. accused Sunil was lifted when he was coming out from Tihar Jail on his release in another case and falsely implicated in this case to show the work out.
56.In his cross examination by Sh. A.K. Tiwari, Ld. counsel for accused Shehjad, this witness admits that Sunil Raghav had filed a writ petition in Hon'ble High Court of Delhi against him and SI Kailash Yadav and as per the direction of the Hon'ble High Court of Delhi, a enquiry was set up and said enquiry was conducted by ACP Sh. Grover. This witness had denied to the suggestion that in retaliation of that writ, he picked the accused Sunil on 17.10.2002 at about 8:30 p.m. from Gate No.1, Tihar Jail along with SI Kailash Yadav and falsely implicated him in this case. This witness had denied to the suggestion that disclosure statement of SC No.94/2012 State vs. Sunil Kumar Raghav and others 17/70 accused Sunil was not recorded in his presence or that accused Sunil had not named accused Shehjad and accused Vinod in the said disclosure statement Ex.PW4/A.
57.PW20 Ct. Bhupender. This witness is also the witness of arrest of accused Sunil Kumar Raghav and recovery.
58.PW21 ASI Gajender. This witness stated that on 20.09.2003, he was posted at police station Gokulpuri and on that day he had moved an application for production warrant of accused Shahzad in the Court No.03, Ms. Poonam Chaudhary, MM, Karkardooma Courts, Delhi. This witness has proved said application vide Ex.PW21/A. This witness has also proved application for arrest of accused Shahzad Ex.PW21/B.
59.In his cross examination by Sh. B.D. Sharma, Ld. counsel for accused Sunil Raghav, this witness stated that he had not interrogated accused Shehzad nor he had taken his arrest in any document and he had not done any writing work in this case except moving the above said two applications in the Court.
60.PW22 Ct. Shyam Lal. This is the witness of arrest of accused Vinod Kumar. This witness has proved his arrest memo Ex.PW22/B and disclosure statement Ex.PW22/A. SC No.94/2012 State vs. Sunil Kumar Raghav and others 18/70
61.In his cross examination by Sh. B.S. Chauhan, Ld. counsel for accused Vinod, this witness stated that he does not remember the exact time when he had left the the police station for the spot at T point Shiv Vihar and he along with Ct. Harinder, Cr. Raj Kumar and SI Pawan Kumar reached at the said place and informer had informed the SI Pawan Kumar about the accused Vinod in his presence. This witness had denied to the suggestion that nothing was recovered from the possession of accused Vinod. This witness had denied to the suggestion that no disclosure statement was made by accused in his presence or that he had signed all the documents in the police station on the asking of SI Pawan Kumar being a interested witness.
62.PW23 S.I. Rajesh Chand Pandey. This witness has brought the summoned copy of FIR No.702/2003 under section 307 IPC against Shahzad Ali, FIR No.703/2003 under section 25 Arms Act against Shahzad and FIR No.704/2003 under section 25 Arms Act against Sunil Kumar. This witness has proved attested copy of same vide Ex.PW23/A.
63.PW24 Ct. Raj Kumar. This witness, on 20.01.2003 had joined investigation of this case with SI Pawan Kumar. This witness along with I.O./SI Pawan Kumar came to the Karkardooma Courts where ASI Gajender was already taken the custody of accused Shahjad from the court for the purpose of interrogation. In his presence, accused Shahjad was interrogated and his disclosure statement was recorded by S.I. Pawan Kumar vide Ex.PW24/A. SC No.94/2012 State vs. Sunil Kumar Raghav and others 19/70
64.In his presence, accused was formally arrested vide arrest memo Ex.PW24/D. This witness has proved pointing out memo Ex.PW24/B.
65.This witness on 22.10.2003 had again joined investigation with SI Pawan Kumar and on that day, accused led them to Shiv Vihar Ganda Nala for recovery of mobile phone but despite making best efforts the same could not be recovered.
66.This witness further stated that on 23.10.2013, accused Shahjad was got medically examined from GTB Hospital.
67.This witness further stated that on 28.01.2004, he along with SI Pawan Kumar, Ct. Shyam Lal and Ct. Harender were present at TPoint, Shiv Vihar, one secret informer informed SI Pawan Kumar that a boy namely Vinod who is Proclaimed Offender in Akhilesh murder case would come from the side of Johripur road after some time and would proceed towards Rama Garden and if raided could be apprehended. Thereafter, on this information a nakabandi was organized and that boy was apprehended and from his possession one buttondar knife was recovered by SI Pawan and he revealed his name as Vinod. Thereafter, in his presence one tahrir was written by SI Pawan with regard to recovery of that buttondar knife and this witness had taken rukka to police station for registration of FIR. Thereafter, FIR No.40/04 under Arms Act was got registered against accused Vinod and he was arrested.
68.This witness further stated that on 31.01.2004, accused Vinod had taken the raiding party at Rama Garden, there was house of his inlaws which was on rent SC No.94/2012 State vs. Sunil Kumar Raghav and others 20/70 and accused had taken them on the first floor of that house and from the room he had got recovered one mobile Nokia make 5110 and same was seized vide memo Ex.PW24/C.
69.This witness has correctly identified the mobile vide Ex.PX.
70.In his cross examination by Sh. A.K. Tiwari, Ld. counsel for accused Shahjad, this witness stated that prior to date of joining the investigation in the present case, he had no knowledge about this case. This witness further stated that all the contents had been filled up by the I.O. in the arrest memo in his presence. This witness further stated that at the time of arrest of accused in the court, public persons were also present there and I.O. did not make any efforts to join the public person in the investigation.
71.In his cross examination by Sh. B.S. Chauhan, Ld. counsel for accused Vinod, this witness stated that he had taken the tahrir from the place of apprehension of accused Vinod, to the police station at about 7:45 p.m. and he remained at the police station for about 45 minutes. This witness had denied to the suggestion that knife was falsely planted on the accused and shown to have been recovered or that recovery of mobile was also planted on the accused. This witness further stated that he has no knowledge of the fate of the Arms Act case.
72.In his cross examination by Sh. B. D. Sharma, Ld. counsel for accused Sunil Kumar Raghav, this witness stated that no sealed pullanda of mobile was prepared after its recovery and today also mobile has been produced in unsealed condition. SC No.94/2012
State vs. Sunil Kumar Raghav and others 21/70 This witness had denied to the suggestion that Vinod being relative i.e. Nephew of Sunil Raghav has been falsely implicated in Arms Act case as well as in the case under hand.
73.PW25 S.I. Kailash Chand Yadav. This witness on 13.09.2002 he was posted at Police Station Gokulpuri and on that day, he was present at New Mustafabad in an investigation and Ct. Sher Singh met him and he handed over DD No.73B to him Ex.PW2/A. Thereafter, this witness along with Ct. Sher Singh reached at gali No.3, Rama Garden Karawal Nagar, Near Tripal factory and they found blood on the ground and found some public persons there and they informed them that one Akhliesh ha received gun shot injuries and he has been taken to GTB Hospital. Thereafter, this witness left the Ct. Babu Lal and Ct. Shahan Singh at the spot to preserve the spot and he along with Ct. Sher Singh went to GTB Hospital and collected MLC of injured Akhilesh and this witness had recorded his statement in his handwriting in detail vide Ex.PW25/A and made endorsement on the statement of Akhilesh Kumar vide Ex.PW25/B and Ct. Sher Singh were sent to police station for registration of FIR along with endorsement/rukka and got the present case registered.
74.During the course of investigation, duty Ct. Mukesh produced one pullanda in sealed condition with the seal of MLC GTB Hospital along with the sample seal before him and he had seized the same vide seizure memo Ex.PW2/A. Thereafter, this witness had recorded statement of Sanjay (brotherinlaw of Akhliesh). SC No.94/2012
State vs. Sunil Kumar Raghav and others 22/70
75.During the course of investigation, this witness had prepared site plan Ex.PW25/C of the spot at the instance of Sanjay. This witness had lifted blood from the spot with the help of cotton and kept the same in polythene and same was kept in the plastic vial and same was kept in a cloth pulanda and sealed with the seal of KCY and seized the same vide seizure memo Ex.PW2/A. This witness has also proved seizure memo Ex.PW2/B and Ex.PW2/C.
76.During the course of investigation, on 15.09.2002, this witness had recorded statement of Smt. Madhu, wife of deceased and Ashok, brother in law of Akhilesh in the hospital.
77.During the course of investigation, on 18.09.2002, at about 11:20 p.m. he received DD No.75B Ex.PW8/A regarding death of injured Akhilesh in the hospital.
78.During the course of investigation, on 19.09.2002, this witness along with Ct. Sher Singh went to Mortuary of GTB Hospital and conducted inquest proceedings. This witness has proved inquest form vide Ex.PW25/D. This witness has also proved statement of Subhash Chand Raghav and Praveen Kumar Raghav vide Ex.PW7/A and Ex.PW3/A respectively about identification of the dead body. This witness has also proved request for postmortem vide Ex.PW25/E and after postmortem dead body was handed over to the relatives of the deceased vide Ex.PW2/D. This witness further stated that after postmortem, Ct. Sher Singh handed over one envelope in sealed condition with the seal of GVJ containing blood gauge of deceased Akhilesh with sample seal to him and he had seized the same vide seizure memo Ex.PW2/E. SC No.94/2012 State vs. Sunil Kumar Raghav and others 23/70
79.During the course of investigation, on 19.10.2002, accused Sunil Kumar Raghav was apprehended in front of Sardar Patel School, Kamal Vihar Pulia, Delhi. This witness has proved arrest memo Ex.PW4/C, personal search memo Ex.PW4/B and disclosure statement Ex.PW4/A of accused Sunil Kumar Raghav. Thereafter, accused Sunil Kumar Raghav had led the police party at GEE GEE Telecom, A 14A, Rama Garden, Main Road, Karawal Nagar, Delhi, Pramod Kumar Vashisht, owner of the shop GEE GEE Telecom met them there and he produced photocopy of page No.60 and 82 of register Brightways Accounts Book in respect of issuing of the above said sim to Sunil Kumar Raghav and Vinod Kumar Raghav and he seized the photocopy vide seizure memo Ex.PW4/G and the photocopies Ex.PW4/G1 at point Ex.PW12/A and the photocopy Ex.PW4/G2 at point Ex.PW12/D shows the issuance of the above said SIM card of mobile phone to Sunil Kumar and Vinod Kumar respectively.
80.During the course of investigation, on 21.10.2002, accused Sunil Kumar Raghav led the police party to the his house at A207, Rama Garden, Karawal Nagar and at the instance of accused Sunil Kumar Raghav, two prepaid connection booklet of Airtel and Hutch of sim numbers 9810675812 and 9811029676 were recovered. This witness had kept the both booklets in a cloth pullanda and sealed the same with the seal of KCY and seized the same vide seizure memo Ex.PW4/D.
81.During the course of investigation, police party again went to the GEE GEE Telecom, Rama Garden and seized the register by which he had issued above said sim of mobile phones to Sunil Kumar Raghav and Vinod Kumar Raghav vide SC No.94/2012 State vs. Sunil Kumar Raghav and others 24/70 seizure memo Ex.PW4/E. Original register on judicial record at page No.60 bearing the entry vide entry Ex.PW12/A in respect of Sunil Kumar Raghav and at page No.82 vide entry Ex.PW12/B in respect of Vinod Raghav. Booklet of Airtel prepaid mobile card of mobile phone No.9810675812 Ex.P2 and booklet of prepaid mobile of Hutch of mobile phone No.9811029676 Ex.P1 are correctly identified.
82.During the course of investigation, this witness had directed HC Ramesh to collect the call details report of mobile No.9810675812 (Service Provider Airtel) and mobile No.9811029676 (Service Provider Hutch) from their office, the call details of Airtel is Ex.PW17/A and A1 and call details from the Hutch is mark PW25/A1, A2, A3, A4, A5 and Mark PW25/A6 and he analyzed these call details and found that there was a call between mobile No.9811029676 and mobile No.9810675812 with another landline No.22173002 of Delhi before the date of incident and in the intervening night of incident. This witness had collected the telephone bill of MTNL of telephone No.22173002 to prove the ownership of telephone number in the name of Sunil Kumar and the same is Ex.PW25/Article1. This witness has also collected photocopy of the Ration Card of accused Sunil Kumar Raghav and same is Mark PW25/A7.
83.During the course of investigation, this witness has collected the photocopy of DD No.25A vide Ex.PW9/A and Ex.PW9/B. This witness has also collected CFSL report vide Ex.PW25/G. SC No.94/2012 State vs. Sunil Kumar Raghav and others 25/70
84.PW26 Dr. Naveen Sharma, Reader, Department of Surgery, UCMS & GTB Hospital, Delhi. This witness has proved the death certificate of Akhilesh Kumar Ex.PW26/A on behalf of Dr. Jaideep.
85.PW27 S.I. Mukesh Kumar Jain, Draughtsman. This witness has proved scaled site plan vide Ex.PW22/I which was prepared by the him at the instance of S.I. Kailash.
86.PW28 HC Jitender. This witness has brought summoned record i.e. daily diary register containing DD No.73B dated 13.09.2002 and proved copy of same vide Ex.PW2/A.
87.PW29 Inspector Pawan Kumar is a material witness being 2nd I.O. in this case. This witness stated that on 20.10.2003, he was posted with P.S. Gokalpuri as S.I. and on that day, SHO, P.S. Gokalpuri had directed him to come to Karkardooma Courts as one of the accused wanted in this case, namely, accused Sehzad, accused present in the court (correctly identified), was to be produced in the court on production warrant and accused Sehzad was produced before the court. This witness further stated that ASI Gajender Singh had already moved an application, Ex.PW21/B, for interrogation and arrest of accused Sehzad in the court and ASI Gajender had handed over the relevant papers to him and after court permission, this witness had interrogated accused Sehzad and arrested him formally vide memo Ex.PW24/D. This witness has proved disclosure statement vide Ex.PW24/A of accused Sehzad and this witness had moved an application, Ex.PW29/A, for PC remand of accused Sehzad and he was remanded to PC upto 23.10.2003. SC No.94/2012
State vs. Sunil Kumar Raghav and others 26/70
88.During the course of investigation, in pursuant to disclosure statement accused Sehzad had led them to Gali No.03, Rama Garden, near Tripal Factory and pointed out the placed of occurrence. This witness has proved pointing out memo Ex.PW24/B bearing his signature at point X and that of accused Sehzad at point A.
89.This witness further stated that accused Sehzad had disclosed in his disclosure statement that the countrymade pistol used in the commission of crime of the present case had already been recovered by the officials of P.S. Loni, Ghaziabad, U.P. in case FIR No.702 & 703 of the year 2003. (Objected to Ld. defence counsel) and he had made efforts to get transferred the countrymade pistol seized by the officials of P.S. Loni Ghaziabad, used in the commission of crime by accused Sehzad to P.S. Gokalpuri, but same could not be transferred due to some technical objections.
90.During the course of investigation, this witness had collected sanction order u/s 39 Arms Act, accorded by the District Magistrate, Ghaziabad, U.P. to prosecute accused Sehzad in case registered at P.S. Loni, Ghaziabad. This witness has proved certified copy of that order Ex.PW29/B. This witness has also proved copy of the chargesheet of case FIR No.702/2003, P.S. Loni, Ghaziabad, U.P. vide Ex.PW29/C.
91.This witness further stated that he had made efforts to search for the mobile phone having connection no.9811029676, which was used in the commission of crime by accused Sehzad but the same could not be recovered. Neither information from SC No.94/2012 State vs. Sunil Kumar Raghav and others 27/70 service provider could be provided in this regard because aforesaid number was not in use at the relevant time. This witness witness further stated that he had made efforts to collect the details of hand set if being used by any other number but same could not be provided by the operators and he had mentioned these facts in charge sheet. This witness examined the witnesses and recorded their statements.
92.During the course of investigation, on 28.01.2004, this witness had received a secret information to the effect that one absconding accused, namely, Vinod would be going to Rama Garden side via Shiv Vihar Pulia. This witness along with his staff laid a trap at Shiv Vihar Pulia and at about 06:30pm accused Vinod Kumar, present in the court (correctly identified), was apprehended at the pointing out of secret informer and on the search of accused Vinod one button actuated was knife was recovered from his possession and a separate case was registered in this regard.
93.This witness has proved arrest memo Ex.PW22/B of accused Vinod and disclosure statement vide Ex.PW22/A and pursuance to his disclosure, accused Vinod had got recovered mobile phone handset, make NOKIA5110, bearing IMEI No.490549300888818 which was used in the conspiracy having Airtel connection no.9810675812 from the house of his fatherinlaw, Sh. Satyapal Singh, situated in Gali No.05, Govind Vihar, Delhi and this witness had seized the mobile phone vide seizure memo Ex.PW24/C. SC No.94/2012 State vs. Sunil Kumar Raghav and others 28/70
94.This witness has correctly identified the case property i.e.age, one black colour mobile phone handset, which had been recovered at the instance of accused Vinod vide Ex. PX.
95.In his cross examination by Sh. A.K. Tiwari, Ld. counsel for accused persons namely Sehzad and Vinod, this witness admits that prior to him, S.I. Kailash Yadav had been investigating the present case and on the oral direction of SHO, he had come to Karkardooma Court and reached near about the lunchtime.
96.During the course of cross examination, after going through the judicial record, witness submits that application for interrogation and formal arrest of accused Sehzad was moved by A.S.I. Gajender Singh and he had obtained custody of accused Sehzad being S.I.
97.This witness further stated the he had not recorded the statements of U.P. police officials producing accused Sehzad at Karkardooma Courts, nor he had received any document in respect of accused Sehzad from those police officials.
98.This witness has further stated that prior to formal arrest of accused Sehzad, he had not prepared any document.
99.This witness further stated that he cannot say if any public person was present on that day in the court. This witness had denied to the suggestion that no information regarding arrest of accused Sehzad was given either to his father or his friends or that he has manipulated this fact in order to complete the formalities. SC No.94/2012
State vs. Sunil Kumar Raghav and others 29/70
100.This witness further stated that he had not requested any court staff or any other public person to be witness of that proceeding. This witness had denied to the suggestion that he had deliberately not asked any public person to join the proceeding so that he can manipulate the documents or that accused Sehzad had not made any disclosure statement or that he had obtained his signatures forcibly on some blank papers or that same had been used against him in the present case.
101.This witness further stated that on 20.10.2003, he had taken accused Sehzad to GTB Hospital for his medical examination. This witness admits that place of occurrence was surrounded by the dwelling houses and they had reached at the place of occurrence at about 06:30pm and they stayed there for about 30 minutes and they had called persons to join the proceeding but ladies had refused to join the proceedings. This witness had denied to the suggestion that place of occurrence was in his knowledge prior to pointing out by accused Sehzad. This witness had denied to the suggestion that accused Sehzad had not led them to the place of occurrence or that he had not pointed out the same or that he had not prepared pointing out memo at his instance or that pointing out memo was prepared by him at P.S. or that he was aware with the place of occurrence prior to pointing out by accused Sehzad or that he had obtained his signatures forcibly on blank paper or that same had been used in the form of pointing out memo.
102.This witness had denied to the suggestion that there was no Nala between Shiv Vihar Tiraha and Pulia. This witness further stated that the distance between place of occurrence and Shiv Vihar Ganda Nala was about 1 ½ or 2 kms. but he cannot SC No.94/2012 State vs. Sunil Kumar Raghav and others 30/70 say by what means he had reached there and the distance between Tiraha and Pulia was about 500 meters.
103.This witness further stated that he had tried to find out the mobile phone from the Nala by putting a Thaili. This witness again said that it was a net with long bamboo which had been arranged by Ct. Raj Kumar and he had searched the mobile phone between the distance of 5 to 10 meters as pointed out by the accused Sehzad.
104.This witness further stated that he had not taken the help of any public person while searching the mobile phone and he had not prepared the site place to this effect and he had not recorded statement of any public person in this regard.
105.This witness had denied to the suggestion that accused Sehzad had not taken him at the Nala on that particular day and time or that he had not searched the mobile phone in the alleged manner or that therefore, he had not mentioned the manner of searching the mobile either in case diary or in chargsheet or that due to this reason same has not been mentioned in the statement of Ct. Raj Kumar.
106.This witness had denied to the suggestion that accused Sehzad had not led them on 22.10.2003 and 23.10.2003 to Nala or that he had not searched the mobile phone with the help of Ct. Raj Kumar and one sweeper. This witness had denied to the suggestion that he had made an improvement in his statement today before the court in order to fill up the lacuna of the case or that to create false evidence against the accused Sehzad so that he may be implicated falsely in the present case SC No.94/2012 State vs. Sunil Kumar Raghav and others 31/70 or that he had not cited the aforesaid sweeper as he had not joined the proceeding of this case. This witness further stated that thereafter, accused Sehzad had not taken them anywhere as investigation in this respect was completed. This witness stated that he had obtained the certified copies last year in respect of the involvement of accused Sehzad, vide Ex.PW29/B and Ex.PW29/C. This witness further stated that it is not in his knowledge that accused Sehzad had been acquitted in case FIR No.702 and 703 of year 2003, Police Station Loni.
107.During the course of cross examination, ld. counsel for accused Sehzad had produced certified copy of judgment regarding his acquittal and same has been tendered vide Ex.PW29/DA running into eight pages.
108.This witness further stated that he had not mentioned the facts regarding receiving of certified copies neither in case diary nor in charge sheet. Firstly, he had visited Police Station Loni to transfer case property i.e. country made pistol (desi katta) and its sketch and on their instructions he had approached to Judicial Magistrate but he had not moved any application to receive certified copies of the same. However, he had approached to Reader of ACJMI, Ghaziabad, U.P. who had told him that as per High Court rules he cannot provide him the record.
109.This witness had denied to the suggestion that he had manipulated the facts of case in this regard so that accused Sehzad may be implicated in the present case. This witness had further denied to the suggestion that no PWs have made their statements after sending the accused Sehzad to JC or that he has manipulated the statement of cited PWs as per his choice.
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State vs. Sunil Kumar Raghav and others 32/70
110.This witness was again cross examined on 12.07.2013 by Sh. A.K. Tiwari, Ld. counsel for accused Sehzad and Vinod. In his cross examination, this witness stated that he had not prepared any site plan regarding the place of recovery of mobile phone from accused Vinod and he had not prepared any sealed parcel of the aforesaid mobile phone. This witness further stated that he had not placed any documentary evidence on record regarding the mobile phone handset recovered from accused Vinod. This witness admits that at that time the mobile phone make Nokia5110 was easily available in the open market. This witness further stated that he had not enquired as to in whose name the mobile phone connection number 9810675812 was issued as it was already on record that this number was issued in the name of accused Sunil Kumar Raghav and it was also already on record that this number was being used by accused Sunil Kumar Raghav during those days.
111.This witness had denied to the suggestion that the mobile handset had not been recovered from the tenanted house of fatherinlaw of accused or that the same was planted by him upon the accused Vinod in order to create evidence against him to implicate him in the present case. This witness had denied to the suggestion that Airtel mobile connection number 9810675812 was never used by accused Vinod in conspiracy with any other coaccused persons. This witness had further denied to the suggestion that the said Airtel mobile connection was not in the name of accused Sunil Kumar Raghav or that it was not being used by accused Sunil Kumar Raghav at that time or that therefore, he had not made any enquiry about the ownership of aforesaid mobile phone number. This witness had denied to the suggestion that he had not visited the house of fatherinlaw of accused Vinod on SC No.94/2012 State vs. Sunil Kumar Raghav and others 33/70 31.01.2004 at any point of time or that he had prepared all the relevant documents of this case in relation to accused Vinod while sitting at P.S. or that he had obtained the signatures of witnesses on the aforesaid documents forcibly.
112.This witness stated that he cannot tell if he was posted at police station till the filing of chargesheet in respect of accused Vinod without going through the posting record.
113.This witness was again cross examined on 13.09.2013 by Sh. Ashok Kumar Tiwar, Ld. counsel for accused Shehzad and Vinod. In his cross examination, this witness had denied to the suggestion that he had not collected evidence against accused Vinod during investigation or that the recovery of any articles shown in relation to the accused Vinod were planted one. This witness had denied to the suggestion that accused Vinod and Shehzad have falsely implicated in this case or that false evidence has been created against them.
STATEMENT OF ACCUSED U/S 313 CR. P.C.:
114.After prosecution evidence, statement of accused persons u/s 313 Cr. P.C. was recorded where accused persons had denied all the allegations, evidence and circumstances put to them and claimed to be innocent.
115.Accused Vinod Kumar Yadav claimed that he is innocent and falsely implicated in the present case and he was lifted from his fatherinlaw's house situated in Karawal Nagar by the police officials of Police Station Gokalpuri and first shown to be involved in a case bearing FIR No.40/2004 u/s 25/54/59 Arms Act of Police SC No.94/2012 State vs. Sunil Kumar Raghav and others 34/70 Station Gokalpuri and he was acquitted by the concerned court in that case. He further claimed that Inspector Pawan Kumar manipulated the contents of the documents and later on implicated him in the present case being the real nephew of accused Sunil Kumar Raghav. He further claimed that Late Sh. Akhilesh Kumar was doing the business of property dealing and he has had strained relations with many persons. Due to the strained relations of his real uncle Sh. Sunil Kumar Raghav with Akhilesh Kumar and his family members as well as SHO, SI Kailash Yadav (I.O. of this case) and HC Ramesh Chand of Police Station Gokalpuri. Therefore, they have been implicated falsely in this case. He further claimed that he has not committed any offence in any manner as alleged by the prosecution against him and other accused persons. It is a false and fabricated case made by the police officials of Police Station of Gokalpuri with connivance of family members of Late Sh. Akhilesh Kumar Raghav.
116.Accused Sehzad claimed that he is innocent and falsely implicated in the present case. Accused further claimed that many cases had been registered against him in P.S. Gokalpuri and the police officials of this P.S. had enmity with him as he was a desperate criminal of the area in the eyes of the police officials of P.S. Gokalpuri and surrounding police stations and due to that he has been falsely implicated in this case. Accused further claimed that he had not committed any offence as alleged by the prosecution against him.
117.Accused Sunil Kumar Raghav claimed that he is innocent and falsely implicated in the present case due to enmity with the family of the deceased as well as due to enmity with the SHO, IO/SI Kailash Chand Yadav and HC Ramesh Chand of P.S. SC No.94/2012 State vs. Sunil Kumar Raghav and others 35/70 Gokalpuri as he had given a telegram addressed to Hon'ble Chief Justice, Delhi High Court on 26.01.2002 and also to the commissioner of Delhi Police and Hon'ble High Court of Delhi had taken cognizance on that telegram vide Criminal Writ No.218/2002 and Sh. S.K. Gautam, Deputy Commissioner of Police (vigilance) had submitted his report to Hon'ble High Court of Delhi and on the basis of that report the Hon'ble High Court had decided the said writ vide its order dated 08.04.2002.
118.Accused further claimed that there was a plot measuring 215 square yards situated at Moonga Nagar, Karawal Nagar, Delhi which was purchased by him from Smt. Shimla Devi on 15.01.2002 but SI Kailash Yadav and HC Ramesh Chand and SHO of P.S. Gokalpuri wanted to grab that plot and they had also demanded money if he wanted to remain in possession of the said plot and ultimately the above named police officials had fabricated a criminal case against me vide FIR No.144/2002 u/s 420 IPC, P.S. Gokalpuri, Delhi.
119.Accused further claimed that in that criminal case, he had moved for anticipatory bail but the said bail application was rejected and thereafter, there was a regular pressure of the police hence he had surrendered before the hon'ble court on 11.09.2002 and the present case has been fabricated against him and other accused by the police with the collusion of the family members of deceased. In fact, he was lifted by the police from the exit of the Tihar Jail on 17.10.2002 when he was released from the Tihar Jail and he was kept in P.S. Gokalpuri upto 19.10.2002 the date on which he was arrested in this case. I was arrested in this case on 19.10.2002 after knowing this fact that his wife had moved an application before SC No.94/2012 State vs. Sunil Kumar Raghav and others 36/70 the concerned court regarding non releasing of me from Tihar Jail. Accused persons had preferred to lead defence evidence. DW1 Sh. Sunil Machanda, LDC, Karkardooma Courts and DW2 Sandeep Kumar, Judicial Assistant, High Court of Delhi were examined as defence witnesses.
120.DW1 Sh. Sunil Manchanda, LDC, Karkardooma Courts. This witness has brought the summoned record in this case i.e. Goshwara register pertaining to the case FIR No.40/2004 u/s 25/54 Arms Act, police station Gokalpuri, titled as 'State v. Vinod Kumar' which is mentioned at serial No.256/06 of Goswara Register with the result 'acquitted' vide order dated 17.02.2006. The witness has proved the copy of same vide Ex.DW1/A. This witness stated that trial court record of aforesaid case has been destroyed.
121.DW2 Sandeep Kumar, Judicial Assistant, High Court of Delhi, New Delhi. This witness has brought summoned record i.e. Digitized record in respect of criminal writ petition No.218/2002 titled as 'Sunil Kumar Raghav Vs. State' as the original record had been destroyed and digitized record is running into nine pages plus two pages of bar code and same are Ex.DW2/A1 to A11.
122.In his cross examination by Ld. APP for the State, this witness stated that he has no personal knowledge about the destruction of present record and he has not brought the certificate under section 65B Indian Evidence Act, 1872. Thereafter, D.E. was closed.
123.Thereafter, case was listed for final arguments.
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State vs. Sunil Kumar Raghav and others 37/70
ARGUMENTS
124. Ld. APP for the State has argued that charges were framed against accused persons namely Sunil Kumar Raghav, Shehzad and Vinod Kumar Raghav for the offences punishable u/s 302/120B IPC.
125.Ld. APP for the State submitted that on or before 13.09.2002, accused Sunil Raghav and Sehzad had entered into a criminal conspiracy to kill the deceased and later on other accused had also joined criminal conspiracy and as per criminal conspiracy accused Sehzad killed the deceased on 13.09.2002 by gunshot injury and death of deceased occurred on 18.09.2002.
126.Ld. APP further submitted that except accused Sehzad, deceased and accused persons namely Sunil Raghav and Vinod Kumar are relative.
127.Ld. APP further submitted that there was motive behind the killing of deceased as accused Sunil Raghav and deceased were in business of property dealing and due to some business problem tension which resulted in quarrel and then murder of deceased.
128.Ld. APP further submitted that on 02.09.2002, conspiracy was hatched between Sunil Raghav and Sehzad. Accused Sunil had pruchased a mobile phone and SIM on identity of accused Vinod. PW12 has testified that SIM was purchased by Vinod and he had identified Sunil and Vinod in the court. Mobile No. 9811029676 accused Sehzad was in contact with Sunil and there is call record of conversation between accused Sunil and Sehzad which shows conspiracy. SC No.94/2012
State vs. Sunil Kumar Raghav and others 38/70
129.Accused Sunil had surrendered in the court in case of cheating vide FIR No.144/2002 police station Gokalpuri, committed cheating with Shimla Devi a widow. Accused Sunil had taken over the property of Shimla Devi by forging the document of property of Shimla Devi.
130.Ld. APP further submitted that present case is based on dying declaration of Akhilesh (deceased) and on circumstantial evidence, recoveries effected at the instance of accused Sunil in pursuance of his disclosure statement and conduct of accused Sunil and phone call records supported by strong motive.
131.Ld. APP further submitted that in dying declaration deceased had not named any person but only disclosed description of the persons who had shot at him and that is matched with accused Sehzad. PWs Sanjay, Ashok and Madhu are the witness of dying declaration. All the witnesses were present at the house of Madhu at the time of gun shot fire and they had taken the deceased to hospital as per their testimonies. Ld. APP for the State further submitted that the deceased was under
apprehension that the person who had shot at him may cause harm to his family and due to this apprehension, he had not disclosed the name of Sehzad in his statement to police. Ld. APP further submitted that deceased had also cautioned his wife PW5 and his brother in law, PW10 not to disclose the name of Shehzad to police.
132.Ld. APP further submitted that accused Shehzad was in visiting terms with accused Sunil. Deceased had not disclosed the name of any accused because he was under apprehension that his children would be killed. SC No.94/2012
State vs. Sunil Kumar Raghav and others 39/70
133.Ld. APP further submitted that one country made pistol was recovered at the instance of accused Sehzad in case in police station Loni but has not produced before this court.
134.Ld. APP further submitted that accused Sunil had been involved in four cases in U.P. and accused Sehzad was a B.C. of Gokalpuri, Delhi.
135.Ld. APP further submitted that PW5 Madhu, wife of deceased and PW10 Ashok, brotherinlaw of deceased are material witnesses and both these PWs have deposed on same facts regarding incident, however, PW10 is also the witness of arrest of accused Sunil and recoveries at his instance.
136.Ld. APP further submitted that PW2 Ct. Sher Singh had gone to spot and had come to know that injured had been taken to hospital by Sanjay whereas PW Sanjay has been dropped by prosecution. In cross examination of PW5 it has come on record that PW Ashok and Sanjay were present at her house at the time of hearing voice of gunshot fire. PW5 in her cross examination had submitted that there was dispute between her and accused Sunil on the issue of plastering the wall. It is sufficient to draw the inference for conspiracy.
137.PW9 S.I. Ajit Malik in his testimony has deposed that on 15.02.2001, he received a call relating to quarrel and on receipt of the same, he along with Ct. Subhash reached at the spot and saw that Sunil present in the court was quarreling with Akhilesh and Mahipal Singh and accused Sunil Kumar Raghav was also SC No.94/2012 State vs. Sunil Kumar Raghav and others 40/70 saying to Akhilesh that he will install ballies in the plot of Akhilesh for getting plaster on the wall of the house. PW12 is the witness of recovery of mobile phone at the instance of accused Vinod. PW 29 is the witness of arrest of accused Sehzad and Vinod.
138.Ld. APP further submitted that CDR is material for the purpose of the case.
139.On these grounds, ld. APP for the State has prayed that prosecution has proved its case against the accused persons for offences punishable u/s 302/120B IPC.
140.On the other hand, Sh. Malkhan Singh with Sh. A.K. Tiwari, Ld. counsel for accused persons namely Sunil Raghav, Vinod and Sehzad admitted enmity upto extent that there was dispute over plot measuring 110 Sq. yds during the putting plaster on constructed structure upon the aforesaid plot, deceased had objected and police was called. Due to strained relation with family of deceased, accused Sunil have been implicated. A plot measuring 400 sq. yds. was purchased by accused Sunil from the mother of Shimla Devi and Shimla Devi obstructing on transaction with connivance of police and police was demanding heavy amount, therefore, a complaint to High Court of Delhi was made against SHO police station Gokalpuri and I.O. S.I. Kailash Chand Yadav. Hon'ble High Court had taken suo moto action on the complaint of Sunil Raghav and DW Sandeep has been examined.
141.Ld. counsel for accused Sunil Raghav further submitted that I.O. Kailash Chand was having enmity with Sunil Raghav because an inquiry had been conducted against him, SHO and Ct. Ramesh Chand. Facts of strained relation with SC No.94/2012 State vs. Sunil Kumar Raghav and others 41/70 complainant and police are reason of implication of present innocent persons.
142.Ld. counsel further submitted that in DD No.73B dated 13.09.2002 time 10:45 p.m. police station Gokalpuri, there is some overwriting on time in the said DD.
143.Ld. counsel further submitted that since there was a gunshot fire heard by PW Madhu but she did not come to spot. No where mentioned in MLC of injured that he was brought by PW Madhu or she had accompanied PW Sanjay while taking the injured to GTB Hospital. Moreover, Sanjay has not been examined and he has been dropped from the list of witnesses by the prosecution and he had been dropped by prosecution just in order to avoid bring truth on record.
144.Ld. counsel for accused further submitted that in the present case, there was no eye witness of the incident and entire case based on the circumstances evidence and the prosecution is liable to prove the circumstantial evidence in a chain beyond all reasonable doubts which pointed towards the guilty of the accused person.
145.Ld. counsel for accused persons further submitted that as per the version of PW2 Ct. Sher Singh and PW25 S.I. Kailash Yadav deposed that Sanjay who is the brother in law of deceased Akhilesh, has taken him to GTB Hospital, and as per the M.L.C. prepared by PW15 shows that Sanjay who is the brother in law of deceased, admitted the deceased in GTB Hospital on 13.09.2002 in the night. It is submitted that Sanjay is the natural, independent and material witness (he has taken the deceased/injured Akhilesh to GTB Hospital), who was withheld by the prosecution by giving unbelievable explanation i.e. he was won over by the SC No.94/2012 State vs. Sunil Kumar Raghav and others 42/70 accused persons and the application to withheld/drop him (Sanjay) was moved by PW5 forwarded by the APP for the State. It is basic principal that every witness mentioned in FIR be examined by prosecution in all circumstances and withheld/dropped any said witness from the list would leave to the rejection of the evidence of other witnesses also. It is also point out here that non examination of material witnesses may give rise to an inference that if he examined, he might not have supported the prosecution case.
146.Ld. counsel for accused further submitted that as per version of I.O. Kailash Chand, two constables namely Ct. Babu Lal and Ct. Sohan Singh on motorcycle had already reached there but they have not been examined by the prosectuion.
147.Ld. counsel for accused further submitted that MLC of injured clearly states that on general examination, general condition was poor, pulse was not pulpable and blood pressure was not recordable. In these circumstances, a person cannot make statement. If recorded so, why the I.O. had not obtained the certificate of fitness of injured before recording his statement. PW25 states that when he reached in GTB Hospital, injured was in ICU and he had talked with him and recorded his statement which proves that injured was not able to talk and not fit to make the statement, hence, question arises as to how the I.O. had recorded his statement.
148.Ld. counsel for accused further submitted that as per rule of recorded of dying statement, fitness certificate of patient and a independent witness is must. Since rule of medical jurisprudence has been violated, hence, statement cannot be treated as dying declaration. Since injured was admitted in the hospital and MLC was SC No.94/2012 State vs. Sunil Kumar Raghav and others 43/70 prepared and injured was in ICU, hence, provision of Medical Jurisprudence must have been complied with. Even if, dying declaration is presumed to be correct. Further, it does not disclose the name of any of accused person and PW Madhu and Ashok had stated in their testimonies that injured had not named accused Sehzad because he had told them, accused Sehzad is dangerous and desperate person but again question arises that if accused Sehzad was a dangerous person why PW Madhu and Ashok had named the accused Sehzad.
149.Ld. counsel further submitted that in dying declaration, deceased Akhilesh had stated that maine pichhe se dekhan aur voh bhag gaya and some one had brought him to hospital. Despite the fact the injured had been known to Ashok, Sanjay and his wife, even he did not mention the name of person who had brought him to GTB Hospital.
150.Ld. counsel further submitted that as per statement of Akhilesh (deceased) when he reached near Water Tank and near Tirpal Factory, he had the shot. The endorsement made by PW25 on the statement of Akhilesh yadav also mention the place of incident is near Pani Ki tanki, Gali No.3, Rama Garden, Karawal Nagar (near Tripal Factory), Delhi Exhibited as Ex.PW25/B. As per the D.D. No. 73B dated 13.09.2002, the place of incident mentioned as Rama Garden, Tripal Factory, Gali No.3, near T.B. Hospital, where a person fired on another person and taking the injured to the hospital. As per the site plan, the place shown of incident is pointA where the deceased Akhilesh was shot down and in place of "Pani ki Tanki" the place shown is Pani ki Tonti is Exhibited as Ex.PW25/C. As per the SC No.94/2012 State vs. Sunil Kumar Raghav and others 44/70 statement of PW14, Ct. Ratan Singh, photographer, the place of incident is A70, Gali No.3, Rama garden, Delhi near Market where he had found the blood spot lying here and there at the ground floor of the premises and he had taken the photographs of that place. It is relevant to point out here that the material evidence which came on the record, shows different place of same incident, which cannot be possible under the ordinary course, hence there were no reliability on evidence/version of the witnesses and the same were create doubt about the prosecution case. It is pertinent to mention here that "Pani Ki Tanki" means a reservoir of water (container containing large amount of water) for supply of water further or a large container which is used for storage of water. "Pani ki tonti"
means - the end point of passage through which the supply of water continue and used by the consumer as per her choice by opening and closing.
151.Ld. counsel further submitted that as per the PW10, Ashok Kumar admitted in his cross examination that there was no "Pani ki tanki" in Rama garden, Karawal Nagar, Delhi. It is relevant to point out here that the persecution failed to prove the actual place of incident, the place of incident knocks out the very bottom of the prosecution and the same itself can be a sufficient ground throw out the prosecution case. If the place of incident did not take at a purported place of incident, the evidence of the witness who depose that the incident take place there, is obviously rendered untruthful and unreliable. As per the prosecution the place of incident is near Tripal Factory, Gali No.3, Pani Ki Tanki, Rama Garden, Delhi and the statement of PW14 completely destroyed the evidence in relation to the place of incident and created a new place of incident. The new place of incident i.e. A SC No.94/2012 State vs. Sunil Kumar Raghav and others 45/70 70, Gali No.3, Rama Garden, Delhi is the place where the PW5 Smt. Madhu and deceased Shri Akhilesh resided alongwith their families. As per the statement of PW5 and PW10 Ashok on the date of incident they were present at the above said address alongwith one Sanjay (Jija of deceased) and children of deceased Akhilesh. This shows that the deceased Akhilesh has been shot down/murdered at his house and the incident was caused by the person who was present in that house at that time.
152.According to DD No.73B, near T.B. Hospital a person had been shot at by other person and injured was taken to GTB Hospital from the spot.
153.Ld. counsel for accused persons further submitted that PW14 Ct. Ratan Singh had reached at the spot on being called by I.O. Kailash Yadav and had taken the photographs at A70, Gali No.3, Rama Garden, Delhi, near market whereas he had noticed blood on the ground floor of house of deceased and he had taken photographs of the spot. Despite bringing different place of proof by this witness, this witness was not cross examined by prosecution. I.O. had prepared the site plan at the instance of PW Sanjay, who had been dropped by prosecution, hence, it cannot said that site plan is proved.
154.It is relevant to point out here that PW25 has been examined in chief by the prosecution and the cross was deferred. After that it came on record that PW25 has been murdered by his colleague in police station. Therefore, his cross examination was not conducted. It is submitted that if the witness is not tendered for cross examination, his previous statement cannot be admissible in evidence but SC No.94/2012 State vs. Sunil Kumar Raghav and others 46/70 his examinationinchief can be used for corroboration for defence purpose on behalf of accused persons. Therefore, the evidence of PW25 is inadmissible under the provision of Evidence Act but it can be used for the purpose of contradiction with other evidence which is on record for defence purpose.
155.Ld. counsel for accused persons further submitted that since deceased Akhilesh had stated in his statement that he can identify that person if he be produced before him. Meaning thereby none of accused was involved in this case because two out of three are relative of deceased. He could have disclosed the name of any of them but he had not disclosed the name of them.
156.Ld. counsel for accused further submitted that as per prosecution basis of conspiracy are two mobile phones i.e. 9810675812 and 9811029676. Mobile phone No. 9810675812 belongs to accused Sunil Raghav. Accused Sunil Raghav was in custody of police on 11.09.2002, just two days before and he had handed over this phone to accused Vinod Raghav. It is allegations of prosecution that accused Vinod Raghav used to talk with mobile phone No.9811029676 which belongs to Sehzad. Ld. counsel for accused submitted that mobile phone No.9811029676 was never with accused Sehzad.
157.Ld. counsel for accused further submitted that as per prosecution Mobile No.9811029676 was purchased on I.D. of Vinod Raghav but no documentary proof has been brought on record to this effect.
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158.Ld. counsel for accused further submitted that PW12 Parmod Vashisht stated that accused Sunil nor Vinod who were present before court not identified by this witness. This PW had been declared hostile by prosecution.
159.Ld. counsel for accused persons further argued that as per the prosecution, the mobile set Nokia 5110 was sold by PW11 Sukh Lal to Sunil Kumar Raghav for Rs. 1700/ and the said mobile set was handed over to the accused Shahzad by accused Sunil Kumar Raghav. The PW11 Sukh lal when examined before the Hon'ble court, he had not supported the prosecution case and he stated that he did not have any Mobile Set Nokia 5110 at that time and he never sold the said mobile set to Sunil Kumar Raghav for Rs. 17,00/ or any other amount. He during his cross examination, he stated that during that time he has only a landline number and never used any mobile phone in the year 2002. It is pertinent to mention here that one link which shows by the prosecution being the link of criminal conspiracy between the accused persons was destroyed by the present witness PW11 Sukh lal and created a doubt about prosecution case.
160.Ld. counsel for accused persons further submitted that as per prosecution mobile Nos. 9810675812 and 9811029676 were used by the accused persons to remain in contact with each other prior to the incident as well as on or after the date of incident i.e. 13.09.2002. The prosecution also stated that mobile phone no. 9810675812 was purchased by the accused Sunil Kumar Raghav on the basis of his Ration Card from the shop of PW12 Pramod Vashisht and used by Sunil Kumar Raghav prior to his surrender before the court in another case bearing FIR No. 144/02 U/s 420/467/468 IPC of P.S. Gokalpuri and later it was handed over to his SC No.94/2012 State vs. Sunil Kumar Raghav and others 48/70 nephew Vinod Kumar, one of the accused in the present case and who used thereafter. The prosecution also stated that the mobile phone no. 9811029676 was purchased by accused Vinod kumar from the shop of PW12 Pramod Vashist and later on the same was handed over to accused Shahzad who used the said mobile Number and through this mobile Number the accused Shahzad remained in contact with the other accused persons. It is pertinent to mention here that when the mobile No. 9810675812 was not in the name of Sunil Kumar Raghav then how it was given to Vinod Kumar Raghav when he surrendered on 11.09.2002. Similarly 9811029676 was not in the name of Shahzad then question not arise to have contact and any conversation on that mobile with Vinod Kumar Raghav. PW17 Shri R.k. Singh Nodal Officer Airtel in relation to the mobile no. 9810679812 and PW18 Shri Anu Anand Nodal officer of Hutch in relation to mobile No. 9811029676 were examined who had not brought any report before the Hon'ble court in relation to the ownership of these mobile phones except the computerized mobile call detail record which was not duly attested by the authorities of these mobile companies. The prosecution failed to prove that the accused persons were the owners of these mobile phones during that period and the said mobile nos. were used by them at that time. The PW12 who was partly hostile on the part of the identity of the accused person and he also stated that the documents on the basis of which he had issued the mobile nos. to the consent person were sent to the consent company. They also admitted that during his cross examination that he had not mention the parentage and addresses of the person whom the mobile nos. were provided by him in the register which he maintained for that purpose. He also admitted in her cross examination on 08.08.2005 that he has not mentioned the year 2002 at page No.60 and he also admitted that several person by the name of SC No.94/2012 State vs. Sunil Kumar Raghav and others 49/70 Sunil Kumar Raghav may be there. He also admitted that in his cross dated 08.08.2005 that according to the company rule and practice whenever a new connection is given by Airtel or Hutch then the person applying for the connection submits duly filled enrolment form and the same is also signed by the person (the said enrolment form of both the above said mobile nos. has not been brought before the court to show/confirm the ownership of these mobile nos.) It is relevant to point out here when there is no record which shows the ownership of the mobile nos. and the using of these mobile phones by the accused persons and unless the computerized CDR is neither attested nor signed by any authorized person of the cellular mobile companies, then these computerized CDR papers are inadmissible under the provision of evidence act. PW18 in his examination in chief dated 24.02.2006 stated that I cannot say whether the computerized call detail record is the same call details of the said mobile number unless these documents bear the signature or stamp of any officer of his company. So it is basic principle unless any computerized documents bears the signature and stamps of the officer of the company are inadmissible under the provision of evidence act. Unless the ownership and the using of the said mobile Phone Numbers were used by the accused persons, prosecution failed to prove the criminal conspiracy ingredients between the accused persons to commits the alleged offence.
161.Ld. counsel for accused further submitted that PW17 Sh. R.K. Singh, Nodal Officer, Bharti Telecommunication, could not disclosed as to whose name mobile No.9810675812 was issued issued after going through the record. Even original print paper in respect of mobile number 9810675812 could not be brought in the SC No.94/2012 State vs. Sunil Kumar Raghav and others 50/70 court.
162.Ld. counsel for accused further submits that PW18 Anu Anand in respect of Mobile Phone No.9811029676. This witness had not brought CDR of mobile phone No.9811029676 to year 2002, hence, it cannot be produced and on seeing the document this witness had stated that since document pertaining to Mobile No.9811029676 does not bear the stamp/seal of Huchison Essar, hence, he was unable to say whether this document had been issued by his company.
163.Ld. counsel for accused further submitted that the weapon of offence has not been brought on record or before the Hon'ble court. The empty cartridge of the bullet which was shot down by the assailant on the injured/deceased Akhilesh Kumar Raghav was not recovered from the spot by the police in the present case. As per the prosecution, the weapon of offence was recovered by police officials of P.S. Loni, Ghaziabad, U.P.in case bearing No. 702/2003 and 703/2003. But the prosecution failed to brought the weapon of offence, any documents related to the weapon of offence as well as the disclosure statement of accused Shahzad which shows that the weapons recovered by the police officials of P.S. Loni is the same weapon of offence which was used by the accused in commission of the present offence. The prosecution has not taken any steps to collect the weapon of offence and to hide its skin, prosecution take a concocted and fabricated plea in that regard. It is relevant to point out here that it is the duty of the prosecution to bring the CFSL report, connected records of the weapons as well as the weapons related to the present offence in order to bring home the guilty of accused person and also got the opinion from the concerned Doctor who has conducted the postmortem of SC No.94/2012 State vs. Sunil Kumar Raghav and others 51/70 the deceased to match whether the alleged offence has been committed by the weapon of offence or not. There is no expert opinion on record which shows any corroboration between the injuries of the deceased and the claimed weapons of offence used by the assailant in committing the offence. It is relevant to point out here that it creates doubt about the prosecution case and the benefit of doubt may always given to the accused persons. If the above said irregularities in relation to the weapon of offence and defective investigation, these omission is sufficient to acquit the accused persons by giving them benefit of doubt.
164.Ld. counsel for accused further submitted that weapon of offence not produced. Since prosecution had stated that the weapon was seized from the possession of accused Sehzad in some other case in a case of Loni. Neither the disclosure of accused Sehzad had been brought on record. Since no disclosure of accused Sehzad had been brought on record. It is very surprising that how the prosecution come to know about the identity of accused Sehzad. Nor any TIP in respect of accused Sehzad requested nor got conducted. Since it is admitted case of prosecution that accused Sehzad is B.C. of police station Gokalpuri, hence, it is easy for prosecution to implicate such person because that person always remain under surveillance so that name of the accused Sehzad had been implicated in the present false case.
165.Ld. counsel for accused persons have relied upon the following judgments/citations :
i. State of Punjab Vs. Harbans Singh & Others, 2004, Supreme Court Cases (Cri.) 75 SC;
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State vs. Sunil Kumar Raghav and others 52/70 ii. Kuldeep Kumar & Others Vs. State of H.P., 1991 (3) crimes 426; iii. Rehmat Vs. State of Haryana, 1996(3) RCR 588 SC; iv. Emmannuel Uchenna Vs. Narcotics Control Bureau & Other JCC 2003(1) 417 of DHC; v. State of Rajasthan Vs. Teja Singh, 2001 (1) RCR 698 SC; vi. Suresh Rai & Others Vs. State of Bihar, AIR 2000 SC 2207; vii. State of Orissa Vs. Brahmananda Nanda AIR 1976 SC 2488; viii. Purushottam Kumar Vs. State of Haryana & Babu Ram Vs. State of Haryana 1992(1) C.C. Cases 435 (High Court) (P & H); ix. Manpreet Singh & another Vs. State 2004 (1) C.C. Cases (High Court) 74 DHC; x. Vanravan Anandji Vs. Koli Vashram Punja & Another JT 2001(3) SC 31; xi. Govinda Raju @ Govinda Vs. State of Karnantaka 2012 (3) JCC 1714; xii. Nawal Kishore Vs. State of Delhi 2012 (2) JCC 881; xiii. Ajay @ Chotu Vs. The State of Delhi, Vicky Vs. State of Delhi and Anil @ Monu Vs State 2012(2) JCC 1261 DHC; xiv. Ganga Prasad Vs. State of Delhi and Shiv Kumar Vs. State of Delhi 2012(2) JCC 1361 DHC; xv. Venkateshwarlu Vs. State of Andhra Pradesh 2012 (4) JCC 2758 SC; xvi. Tinku and others Vs. State of Delhi 2012 (1) JCC 730 DHC; xvii. Manoj Kumar and another Vs. State of Delhi 2012 (1) JCC 1 DHC; xviii. Sherimon Vs. State of Kerala 2012 (1) JCC 241 SC. SC No.94/2012 State vs. Sunil Kumar Raghav and others 53/70
166.Ld. counsel for accused persons further submitted that the he entire investigation conducted by the police officials was fully tainted and the accused persons have been falsely implicated in case on the collective mischief of the family of the deceased and the police officials of P.S. Gokalpuri at the direction of SHO P.S. Gokalpuri at that time. It is relevant to point out here that the statement of the prosecution witnesses are full of contradiction and inconsistency which lead to one and only conclusion that the case of the prosecution is the result of fabrication and concoction. The accused Shahzad Ali was acquitted by the Ld. Trial District court of U.P. in the case bearing FIR NO. 702/2003 U/s 307 IPC and FIR No. 703/2003 U/s 25/54/59 Arms Act of P.S. Loni and in relation of the acquittal, the judgment of the LD. District court is already on record.
167.Ld. counsel further submitted that the accused person Vinod Kumar Raghav was also acquitted by the Ld. Trial court of Karkardooma court, Delhi in case FIR No. 40/2004 U/s 25/54/59 of P.S. Gokalpuri. Photocopy of the Judgment of the LD.
Trial court is already on record and DW1 Shri Sunil Chaudhary LDC, record room, karkardooma court has proved the order of the acquittal of the accused Sunil Kumar Raghav by the Ld. Trial court.
168.Ld. counsel further submitted that the accused Sunil Kumar Raghav filed a criminal writ petition No. 218/2002 titled as Sunil Kumar Raghav versus State against the SHO, P.S. Gokalpuri, S.I. Kailash Yadav (PW25) and Ct. Ramesh PW 19 and there was a vigilance enquiry conducted in this regard and a report was submitted by the vigilance authority before the Ld. High court. the DW2 Sandeep Kumar proved the same.
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169.On these grounds, ld. counsel for accused persons has prayed for acquittal of accused persons from the charges.
PERUSAL OF RECORD AND OPINION
170.Arguments heard. Record perused. On perusal of record it is revealed that on 13.09.2002, S.I. Kailash Chand Yadav was assigned a call vide DD No.73B, Ex.PW2/A at about 10:45pm. SI Kailash Chand along with Ct. Sher Singh had reached in Gali No.03, Rama Garden, Karawal Nagar, near Tripal Factory and found blood on ground and had come to know that one Akhilesh had received gun shot injuries and that he had been taken to GTB Hospital.
171.It is further revealed that in the meanwhile motorcycle BM19 on which Ct. Babu Lal and Ct. Shahan were riding during patrolling reached there. SI Kailash Chand had instructed the aforesaid two constables to remain at the spot to preserve it and he along with Ct. Sher Singh reached GTB Hospital and collected the MLC of injured Akhilesh Ex.PW15/A. SI Kailash Chand had recorded the statement of injures Akhilesh Kumar Raghav Ex.PW25/A and put his endorsement Ex.PW25/B on this statement and got the present case registered vide FIR Ex.PW1/A.
172.It is further revealed that injured Akhilesh Kumar Raghav had died on 18.09.2002 at about 09:00pm as per the death certificate Ex.PW26/A, proved by PW26 Dr. Naveen Sharma.
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173.It is further revealed that SI Kailash Chand had prepared site plan Ex.PW25/C. SI Kailash Chand Yadav had lifted blood, blood stained earth and earth control from the spot and seized vide memo Ex.PW2/A, Ex.PW2/B and Ex.PW2/C respectively. SI Kailash Chand had also recorded the statement of Ashok, brother inlaw of the deceased wherein he had stated that deceased Akhilesh had told him on the way to GTB Hospital that the bullet injury was caused to him by accused Sehzad who is the associate of accused Sunil Kumar Raghav and that he was a criminal of Karawal Nagar area and he further told Ashok Kumar that because of fear he did not tell the name of accused Sehzad before the police.
174.It is further revealed that on 18.09.2002 at about 11:20pm SI Kailash Chand had received DD No.75B, Ex.PW8/A regarding the death of Akhilesh Kumar in the hospital and thereupon, on 19.09.2002 he went to GTB Hospital mortuary and conducted inquest proceedings vide Ex.PW25/D and also recorded the statement of Subhash Chander and Praveen Kumar regarding the identification of the dead body and got the postmortem conducted vide his application Ex.PW25/E and handed over the dead body to the relatives of the deceased vide memo Ex.PW2/D.
175.It is further revealed that the exhibits collected during the medical examination of the deceased were seized vide memo Ex.PW2/E.
176.It is further revealed that SI Kailash Chand Yadav had come to know during the investigation that Sunil Kumar Raghav was in judicial custody since 12.09.2002 in case FIR No.144/2002, P.S. Gokalpuri, u/s 420 IPC.
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177.It is further revealed that on 19.10.2002, accused Sunil Kumar Raghav was apprehended and arrested in this case from in front of Sardar Patel School, Kamal Vihar Pulia, Delhi vide arrest memo Ex.PW4/C and his personal search was conducted vide memo Ex.PW4/B and on interrogation he had made a disclosure statement Ex.PW4/A and in pursuance of his disclosure statement, accused Sunil Kumar Raghav had led SI Kailash Chand to G.G. Telecom, A14/A, Rama Garden, main road Karawal Nagar, Delhi at the shop of PW12 Pramod Kumar Vasishth from where he had purchased two mobile phone SIM cards having connection number 9811029676 and 9810675812 and SI Kailash Chand Yadav had seized the documents Ex.PW12/A and Ex.PW12/B in respect of purchasing of aforesaid phone numbers.
178.It is further revealed that on 21.10.2002, accused Sunil Kumar Raghav had led SI Kailash Chand Yadav and his team and PW Ashok Kumar to his house at A207, Rama Garden, Karawal Nagar, Delhi and got recovered two prepaid paid connection booklets of Airtel and Hutch of the abovesaid two mobile phone numbers and the same were seized vide memo Ex.PW4/D and thereafter, SI Kailash Chand and his team had again visited the shop of PW12 Pramod Kumar Vasishth and seized register regarding the sale of some coupons vide memo Ex.PW4/E and the booklets of the Airtel and Hutch mobile companies in respect of abovesaid numbers had been exhibited as P2 and P1 during trial.
179.It is further revealed that SI Kailash Chand had seized the photocopy Ex.PW4/G, Ex.PW4/G1, Ex.PW4/G2 on being produced by PW12 Pramod Kumar Vasishth in respect of abvesaid mobile phone numbers and the mobile phone number SC No.94/2012 State vs. Sunil Kumar Raghav and others 57/70 9811029676 was purchased in the name of Vinod Kumar Raghav by using his driving license as identity proof.
180.It is further revealed that on the analysis of the mobile phone numbers 9810675812 and 9811029676, SI Kailash Chand Yadav found that there were calls between these numbers and also with the landline phone number 22173002 before the date of the incident and also in the intervening night of incident and SI Kailash Chand Yadav had also found that IMEI number 490549300888810 of accused Sunil Kumar Raghav's mobile, mobile number i.e. 9810675812, was used on SIM/mobile number 9811029676 on 07.09.2002 at about 08:32:01 hours. SI Kailash Chand Yadav had also seized the landline telephone bill of MTNL in respect of phone number 22173002, Ex.PW25/Article.1 to prove the ownership of this telephone number and SI Kailash Chand Yadav had also seized the ration card Mark 25/A7, which was used for subscribing aforesaid landlilne phone number.
181.It is further revealed that SI Kailash Chand had also collected DD No.21A Ex.PW9/A and the Kalandara Ex.PW9/B regarding a quarrel between accused Sunil Kumar Raghav and deceased Akhilesh Kumar Yadav dated 15.02.2001 and accused Sunil Kumar Raghav was again interrogated by SI Kailash Chand Yadav and his disclosure statement Ex.PW4/F was recorded.
182.It is further revealed that on 20.10.2003, PW29 Insp. Pawan Kumar had interrogated accused Sehzad when he was produced in the court in pursuance of production warrant after his arrest in case FIR No.702/2003 and 703/2003 and arrested in this case vide memo Ex.PW24/D and accused Sehzad had also made a SC No.94/2012 State vs. Sunil Kumar Raghav and others 58/70 disclosure statement vide Ex.PW24/A during interrogation by Insp. Pawan Kumar and in pursuance of his disclosure statement, accused Sehzad had led Insp. Pawan Kumar and his staff to Gali No.03, Rama Garden, near Tripal factory and pointed out the place of occurrence and pointing out memo Ex.PW24/B was prepared in this regard and in pursuance of his disclosure statement, accused Sehzad had disclosed that the countrymade pistol used in the present case had also been recovered by the police officials of P.S. Loni, Ghaziabad, U.P. in case FIR No.702/2003 and 703/2003.
183.It is further revealed that Insp. Pawan Kumar had produced the certified copy of the order u/s 39 Arms Act Ex.PW29/B for the prosecution of accused Sehzad and Insp. Pawan Kumar had also produced the copy of the chargesheet of case FIR No.702/2003 Ex.PW29/C in respect of accused Sehzad.
184.It is further revealed that accused Vinod Kumar Raghav was arrested by Inspector Pawan Kumar vide memo Ex.PW22/B and recorded his disclosure statement was recorded vide Ex.PW22/A and in pursuance to his disclosure statement, on 31.01.2004, accused Vinod Kumar Raghav had led Insp. Pawan Kumar and his team to the house of his fatherinlaw situated in Gali No.05, Govind Vihar, Delhi and got recovered one mobile phone handset, make Nokia5110 bearing IMEI No.490549300888818 and that same had been seized vide memo Ex.PW24/C.
185.It is further revealed that on 19.09.2002, PW3 Dr. Gaurav Vinod Jain had conducted the postmortem on the dead body of deceased Akhilesh Kumar vide postmortem report Ex.PW3/A and found gun shot entry and exit wounds and also SC No.94/2012 State vs. Sunil Kumar Raghav and others 59/70 opined the cause of death as 'septicemia due to infected wound' and also opined that the external injuries caused by a fire arm projectile was sufficient to cause death in the ordinary course of nature.
186.It is further revealed that on 13.09.2002 at about 22:24:11 hours, accused Sehzad had made a telephone call from his mobile phone number 9811029676 on mobile phone number i.e. 9810675812, and this phone number was picked up by accused Vinod Kumar as accused Sunil Kumar Raghav was in judicial custody at that time.
187.It is further revealed that the calls made by accused Sehzad is reflected in the call detail record of his mobile phone number 9811029676, Mark 25/A and Mark 25/B and the call detail record of mobile phone number 9870675812, Ex.PW17/A to Ex.PW17/A1 of accused Shehzad shows that accused Sehzad was in contact with the holder of accused Sunil Kumar mobile phone number in the intervening night of 13 & 14.09.2002.
188.Before reaching at any conclusion let the relevant sections i.e. 302/120B IPC be reproduced which are as under : Section - 302 IPC:
"302 Punishment for murder - Whoever commits murder shall be punished with death, or (Imprisonment for life), and shall also be liable to fine."
Section - 120B IPC:
Punishment of criminal conspiracy : (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same SC No.94/2012 State vs. Sunil Kumar Raghav and others 60/70 manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
189.From the perusal of record it is evident that an information by DD No.73B Ex.PW2/A was received at police station Gokalpuri at about 10:45 p.m. on 13.09.2002 to the effect that one person had shot at another person and that injured is being taken to hospital. This DD was assigned to S.I. Kailash Chand and he along with Ct. Sher Singh reached at the spot i.e. Gali No.3, Rama Garden, Karawal Nagar, near Tripal factory and had come to know that a Akhilesh had been shifted to GTB Hospital and accordingly he had reached in GTB Hospital and collected the MLC of the injured and thereafter, examined and recorded his statement Ex.PW25/A. In this statement, injured Akhilesh had not named anyone as assailant who had shot at him. However, he had given description of the assailant. The injured had been operated upon in the hospital and was also kept in intensive care. The present case has been registered on the statement of the injured on 14.09.2002 at about 12:40 a.m. (midnight) and thereafter, the investigation formally begun.
190.Since no one had been named in the statement of injured and the injured was in the intensive care of the hospital. Therefore, the I.O. S.I. Kailash Chand had enquired from the person who had brought the injured to hospital. There were three persons who had said to have brought the injured to hospital and they were Sanjay, Smt. Madhu and Ashok Kumar. I.O. had recorded the statement of Sanjay SC No.94/2012 State vs. Sunil Kumar Raghav and others 61/70 in the intervening night of 14 and 15th September'2002 and in this statement he had disclosed the name of the person who had shot at deceased as Sehzad and that he is a criminal and therefore, the name has not been disclosed to the police by the deceased Akhilesh.
191.S.I. Kailash Chand has also recorded the statement of the wife of deceased namely Smt. Madhu and brother in law of deceased namely Ashok Kumar. Both Smt. Madhu and Akhilesh Kumar in their respective statement before the I.O. had stated that injured Akhilesh had stated to them on the way to hospital that a person named Sehzad had shot at him and that he had been shot at the instance of accused Sunil Kumar Raghav and further that since Sehzad is a criminal and therefore, his name is to be disclosed either to police or to anyone. As per Smt. Madhu and Ashok Kumar the injured was having an apprehension that in case the name of Sehzad disclosed to the police, he may cause harm to him. The prosecution has not examined PW Sanjay and dropped him from the list of witnesses. However, Smt. Madhu and Ashok Kumar had been examined as PW5 and PW10 respectively.
192.The prosecution had claimed and submitted that the statement of injured/deceased Akhilesh Kumar Raghav allegedly made to his wife Smt. Madhu and his brother in law, Ashok Kumar be treated as dying declaration. Both witnesses have explained in their respective statement before the I.O. that the deceased was having apprehension from the hands of accused Sehzad and for this reason he had not disclosed the name of Sehzad and Sunil Kumar Raghav in his statement Ex.PW25/A. It is also the claim of the prosecution that the statement Ex.PW25/A is also a dying declaration and this statement and the statement of PW5 Smt. SC No.94/2012 State vs. Sunil Kumar Raghav and others 62/70 Madhu and PW10 Ashok Kumar should also be treated as dying declaration so far as it refers to the statement made to them by injured/deceased.
193.Before this court can consider the above said statement as dying declaration it has to see that whether at all deceased was capable of making any statement in the hospital. On perusal of MLC Ex.PW15/A of the injured it is evident that the pulse was not pulpable and blood pressure was not recordable. The injured was having a gun shot injury and he had been referred to Surgery department. I.O. had not obtained any certificate of the doctor either in the MLC itself or separately showing that the injured was fit to make statement.
194.Further, there may be a possibility that the injured might have been able to make statement immediately after the incident and before reaching the hospital and it has been claimed by the prosecution that the injured had made statement to his wife, brother in laws and behnoi immediately after the incident on the way to hospital and therefore, claimed that such statement be treated as dying declaration and since the name of two accused namely Sehzad and Sunil Kumar Raghav figures there, therefore, this statement be also read with the other evidence on record against these two accused persons.
195.On this count, this court has carefully perused the statement of injured/deceased Akhilesh Ex.PW25/A recorded by the I.O. in the hospital and in this statement one strange thing had come up and that is that injured was not able to tell to the I.O. as to who had brought him to hospital. The relevant portion of the statement is reproduced as :
SC No.94/2012
State vs. Sunil Kumar Raghav and others 63/70
"Mai Wahi Gir Pada Or behosh Ho Gaya Jo 'Koi'
Mujhe Haspatal Le Aaya".
196.This part of the statement of the injured/deceased not only shows that he had become unconscious but also that he was not aware as to who had brought him to hospital. This fact belies the claim of the prosecution that the injured/deceased has made statement to his wife, brother in law and behnoi on way to hospital, Especially when the prosecution had not come up with any certificate of any doctor showing that the injured was fit for making statement. Had injured/deceased Akhilesh been conscious and able to speak he must have named his wife (PW5 Smt. Madhu), his brother in law (PW10 Ashok) and his behnoi (PW Sanjay) as being the ones who had brought him to hospital instead of saying "Koi" Mujhe Hasptal Le Aya."
197.Moreover, I.O. had not recorded the statement of the TSR/Auto driver in which the injured/deceased was shifted to hospital who could have been an independent witness regarding the fact that the injured/deceased had made conversation with his wife, brother in law and behnoi in the way to hospital. Therefore, it is doubtful that injured had ever made any statement to his wife, brother in law and behnoi.
198.Moreover, the defence was not afforded with the opportunity to cross examine PW25 I.O./SI Kailash Chand, since he had expired after his examination in chief. This fact also affects the merits of the case adversely because he could have explained the circumstances in which he had recorded the statement of deceased/injured without getting any medical certificate from doctor concerned. SC No.94/2012
State vs. Sunil Kumar Raghav and others 64/70
199.The case of the prosecution is further based on recovery effected at the instance of Sunil Kumar Raghav in pursuance of his disclosure and same relates to the SIM cards of phone number 9811029676 and 9810675812. In this regard, I have carefully gone through the statement of PW12 Pramod Kumar Vashisht which shows that the SIM card of aforesaid numbers have been purchased from his shop by accused Sunil Kumar Raghav and PW12 had also produced the document showing entries regarding its purchase and their respective dates of purchase. However, prosecution had not produced any evidence to connect accused Sunil Kumar Raghav or for that matter accused Sehzad with the above said SIM cards insofaras it had not procured the respective customer application forms which may go to show that the abovesaid SIM cards were purchased in a particular name.
200.Moreover, no recovery of SIM card or the mobile phone in which it was used had been effected from the accused Sehzad. The only recovery of the mobile phone hand set at the instance of accused Vinod Kumar Raghav had been shown by the prosecution but this recovery is not sufficient in absence of SIM card. Further, it has also come on record that PW11 Sukh Lal who had allegedly sold this hand set to Sunil Kumar Raghav had not supported the case of prosecution and disowned the fact that he had sold mobile phone hand set Nokia5110 to Sunil Kumar Raghav.
201.Further, the call detail record have not been properly proved insofar as mark PW18/A1 to A5 and mark 25/A6 have not been exhibited and sofaras call detail record Ex.PW17/A1 to A4 are concerned, the nodal officer of Bharti Airtel SC No.94/2012 State vs. Sunil Kumar Raghav and others 65/70 PW17 Sh. R.K. Singh had not produced any certificate u/s 65 B Indian Evidence Act in support of the computer generated call detail record and so far as the ownership of the mobile phone number 9810675812 is concerned, no record was brought by this witness in this respect during the course of his examination. Therefore, the fact that the accused Sunil Kumar Raghav and accused Sehzad was in contact with each other through their respective phone numbers 9810675812 and 9811029676 have not proved by the prosecution.
202.Moreover, PW12 Pramod Kumar Vashisht had also not supported the case of prosecution to the effect that accused Sehzad had ever come at his shop regarding activation of the SIM card allegedly used by him and which was given to him by accused Sunil Kumar Raghav. In his cross examination, PW12 had specifically denied to the suggestion of Ld. APP for the State to above fact and even did not identify accused Sehzad as being one who had ever visited his shop in respect of activation of any SIM card. It has come in the testimony of PW12 Pramod Vashisht that the mobile phone nos. 9810675812 and 9811029676 had been sold by him to accused Sunil Kumar Raghav but there is virtually no evidence on record that one of the phone number i.e. 9811029676 was ever handed over by accused Sunil Kumar Raghav to accused Sehzad and that it had been used by him.
203.Now coming on the conspiracy aspect, the prosecution had not brought on record any evidence which may connect accused Sehzad with the conspiracy allegedly hatched by accused Sunil Kumar Raghav as vital piece of evidence connecting accused Sehzad with this offence could not be collected and the same was the SIM card of mobile number 9811029676. Non recovery of SIM card of mobile SC No.94/2012 State vs. Sunil Kumar Raghav and others 66/70 number .9811029676 is vital blow to the case of the prosecution so far as its claim of conspiracy between the accused persons is concerned.
204.Further, although it had come in the disclosure statement of the accused persons that accused Vinod Kumar Raghav and accused Sehzad had gone to meet the accused Sunil Kumar Raghav while he was in JC in connection with the case of cheating but I.O. had not collected any evidence in this regard which could have been a vital piece of evidence regarding the conspiracy between the accused persons.
205.One other vital piece of evidence which could have been connected accused Sehzad with the present offence was the weapon of offence i.e. Countrymade pistol used in the commission of the present offence had not been produced before this court. As such there is only the disclosure statement of the accused persons on record in support of the conspiracy aspect.
206.The other set of evidence which the prosecution has in support of its case is the motive. In this regard, PW5 Smt. Madhu, PW10 Ashok Kumar and PW9 S.I. Ajit Malik have testified before this court. The testimony of PW5 remains unchallenged so far as the motive aspect concerned. However, testimony of PW9 shows that there was a quarrel between the deceased Akhilesh and accused Sunil Kumar Raghav on the issue of plastering of wall and in this regard a kalandra Ex.PW9/B was also prepared in respect of the call vide DD No.21 Ex.PW9/A. However, motive itself cannot be basis for convicting the a person. SC No.94/2012
State vs. Sunil Kumar Raghav and others 67/70
207.The case of the prosecution is based on alleged dying declaration made by injured/deceaed to the police as well to his wife (PW5), his brother in law (PW10) and his behnoi (Sanjay), recovery at the instance of accused Sunil Kumar Raghav, circumstantial evidence, scientific evidence (call detailed record of the two phone numbers 9811029676 and 9810675812 and its ownership and also its user), conduct of the accused (surrender in court) and motive.
208.Now the case of prosecution has to be seen on the basis of circumstantial evidence brought by prosecution on record.
209.Standards of proof to convict a person on circumstantial evidence has been couched by the Apex Court in the proposition that the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Those circumstances should be of definite tendency unerringly pointing towards the guilt of the accused, when taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human possibilities the crime was committed by the accused and none else, and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guild of the accused but should be inconsistent with with his innocence. It needs no reminder that legally established circumstances and not merely anguish of the court can form basis of conviction and more serious the crime the greater should be the care taken to scrutinize the evidence, lest suspicion takes place of proof. SC No.94/2012
State vs. Sunil Kumar Raghav and others 68/70
210.Whether the prosecution could establish a complete chain of evidence which is conclusive in nature and consistent with the hypothesis of guilt of the accused and inconsistent with his innocence? For an answer facts of the present case assume importance.
211.The circumstance brought on record by the prosecution against the accused persons are the motive. The accused Sunil Kumar Raghav had surrendered before the court and remained in JC since 12.09.2002, purchasing of two mobile SIM Cards by accused Sunil Kumar Raghav, call detailed record regarding the conversation between the two mobile phones indicating connection between the accused Sunil Kumar Raghav and Sehzad till 11.09.2002 and thereafter, showing connection with accused Vinod Kumar Raghav and accused Sehzad on the above said twomobile phone numbers, and the alleged disclosure statement of the accused persons. The above circumstances are not sufficient to complete the chain on which it can be concluded that it was the accused persons who had committed the offence and therefore, does not fulfill the criteria laid down by the Apex Court in respect of cases based on circumstantial evidence.
212.The suspicion based on certain circumstance cannot replace the standard of proof required in cases based on circumstantial evidence. As prosecution could not prove its case either by ocular evidence or by circumstantial evidence to connect the accused persons. Hence, the case of prosecution does not inspire the confidence of this court.
SC No.94/2012
State vs. Sunil Kumar Raghav and others 69/70
213.Relying on the judgments referred by Ld. counsel as discussed above and after perusal of record and arguments and keeping in view facts and circumstances of the case, this court comes to the conclusion that prosecution has failed to prove its case against the accused persons for which they have charged beyond reasonable doubt. Hence, in the absence of sufficient evidence against the accused persons, at this stage, this court acquit accused persons namely Sunil Kumar Raghav, Vinod Kumar Raghav and Sehzad from the charges u/s 302/120B IPC by giving them benefit of doubt.
214.In terms of Section 437 (A) Cr. P.C. accused persons namely Sunil Kumar Raghav, Vinod Kumar Raghav and Sehzad are directed to execute bail bond in sum of Rs.20,000/ each with one surety in the like amount.
215.File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON THIS 21.12.2013.
(RAMESH KUMARII) ADDL. SESSIONS JUDGE01/NORTH EAST KARKARDOOMA COURTS: DELHI.
SC No.94/2012
State vs. Sunil Kumar Raghav and others 70/70