Delhi District Court
State vs . 1) Sanjay on 23 December, 2019
IN THE COURT OF SH. ASHUTOSH KUMAR, ADDITIONAL SESSIONS
JUDGE04 (NORTH), ROHINI COURTS, DELHI
Session Case No. 58307/2016
CNR No. DLNT010000942009
State Vs. 1) Sanjay
S/o Sh. Mange Ram
R/o H.No. 247, VillageGhogha,
Delhi39
2) Deepak
S/o Sh. Jawaher Singh
R/o H.No. 96/4, Gali no. 30B,
Swantanter Nagar, Narela,
Delhi.
3) Tilak Raj @ Sonu @ Ombir
S/o Sh. Raj Kumar
R/o H.No. 347, VillageGhogha,
Delhi.
4) Manoj @ Bablu Mental
S/o Sh. Udhal Singh
R/o VillageGohar Pur
(near Shamli), Distt. Muzzafer
Nagar, U.P.
5) Banti @ Mahaveer
S/o Sh. Sheo Parshad
R/o H.No. 576, Bagri Mohalla,
Pana Udyan, Narela, Delhi.
6) Raju
S/o Sh. Gaffumal
SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 1 of 45
R/o H.No. 576,
Bagri Mohalla,
Pana Udyan, Narela, Delhi.
7) Bijender @ Mardwa
S/o Sh. Singheswar Sahini
R/o H.No. 29, Gali no. 1,
Prem Colony, Narela, Delhi.
FIR No. : 67/2009
Police Station: Narela
Under Sections: 302/307/467/471/411/212/120B/34 IPC
& u/s 25/27/54/59 Arms Act
Date of committal to Sessions Court : 12/08/2009
Date of institution : 26/08/2009
Date of Argument : 28/11/2019
Date of reservation of order : 28/11/2019
Date on which Judgment pronounced: 23/12/2019
JUDGMENT
1. Briefly stated, case of the prosecution is that on 06/03/2009, at 6.30 a.m., DD no. 14B was recorded at PS Narela regarding a quarrel at Village Ghogha towards Ghogha mod. The contents of the said DD were conveyed to ASI Karan Singh telephonically for taking necessary action. Accordingly ASI Karan Singh alongwith Ct Gunwant reached at the place of occurrence i.e. Ghogha village road, Ghogha dairy, where dead body of a male person aged about 2021 years was found lying in the bushes besides the road. One motorcycle No. DL4SBG5069 in damaged condition and SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 2 of 45 two country made 'kattas' were also found lying at the spot. There was a fresh gunshot wound in the right side portion of the back of the deceased. In the meantime, Ct Vinod Kumar also reached at the spot. ASI Karan Singh inspected the spot. At the spot, one Kailash Kumar, son of late Sh. Jeet Ram, R/o H.No. 181, Village Ghogha, met ASI Karan Singh, who got recorded his statement. In his said statement, Kailash stated that he is working as driver/constable in Delhi Police and presently he is posted in Anti corruption branch, Old secretariat. He further stated that today i.e. on 06/03/2009, after getting ready for his duty, while he started from his house towards Bawana Road (Ghogha mod) on foot and at about 6.20 a.m. when he reached near Chowk at Ghoga Village NDPL Transformer, at that time, two boys, aged about 1920 years, came from Daryavpur side on a black colour pulsar motorcycle bearing no. DL4SBG5069 and the motorcycle driver stopped the said motorcycle by his side and the pillion rider boy took out one desi katta from his clothes and aimed towards him and then the motorcycle driver drove forward the motorcycle and after going ahead for 45 steps, the pillion rider boy made a fire from behind upon the motorcycle driver from the said desi katta as a result of which the motorcycle driver sustained gunshot injury on the right side of his back. Said Kailash further stated that due to same, the motorcycle became imbalanced and it struck against a small pole after crossing the 'sadak wala nala' and both the motorcycle riders fell down and the motorcycle tumbled 1520 steps ahead. The pillion rider boy ran away from the spot and the motorcycle driver died at the spot due to gunshot injury. He further stated that two country made SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 3 of 45 kattas were also lying at the spot and he informed about the incident at 100 number and he can identify the boy who had run away from the spot. He further stated that action may be taken against the said pillion rider boy who had aimed the country made pistol towards him and then made gunshot injury to the motorcycle driver with the same weapon.
2. On the basis of aforesaid statement of Kailash, ASI Karan Singh prepared rukka and sent the same to duty officer of PS Narela through Ct Gunwant for getting the FIR registered u/s 307/302 IPC & u/s 25/27/54/59 Arms Act. He also sent requisition for the visit of senior officers and crime team with the photographer at the spot. After registration of FIR, further investigation of the case was marked to ASI Karan Singh.
3. During further investigation, ASI Karan Singh collected various exhibits like motorcycle, one country made katta loaded with one live cartridge, another country made katta containing empty cartridge, blood stained earth and earth sample from the scene of crime and seized the same by preparing seizure memos. He also prepared sketches of both the aforesaid kattas along with live and empty cartridges. He also prepared personal search memo of the deceased. He also conducted inquest proceedings u/s 174 Cr.P.C. and filled in the Form no. 25.35 (B). Later on further investigation was handed over to Inspector Raj Singh.
4. During course of investigation, Inspector Raj Singh reached the SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 4 of 45 spot and inspected the scene of crime and prepared site plan of the scene of crime. The deceased was identified as Ravi Shankar @ Tinku, son of Shiv Kumar, R/o Mayur Vihar, Delhi.
5. During further investigation, inquest proceedings were completed and dead body was produced before the autopsy surgeon who conducted the postmortem and recovered one bullet lead from the body and also preserved blood sample of the deceased. After postmortem, ASI Karan Singh also produced one sealed pullanda containing clothes and slipper of deceased, one sealed envelope containing blood sample of deceased, one sealed glass bottle containing the bullet lead recovered from the body of the deceased, which were sealed with the seal of "KG BJRM Hospital Mortuary"
before Inspector Raj Singh, who seized the same. Statements of witnesses were recorded.
6. During the course of his further examination, complainant expressed his suspicion on one Sanjay S/o Mange Ram, R/o Village Ghogha, Delhi, his immediate neighbour, who was having enmity with him and was absconding from his house soon after the incident. Hence Sanjay (A1) was apprehended and after thorough interrogation was arrested in the present case. He also made disclosure statement, wherein he disclosed about hatching of a conspiracy to kill the complainant and how the said conspiracy was executed with the help of coaccused persons. In his disclosure statement, accused Sanjay (A1) disclosed that since he wanted SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 5 of 45 to marry Asha (wife of complainant Kailash), in order to remove Kailash from his way, he apprised about the same to accused Sonu (A3) and Deepak (A
2). He further disclosed that first they thought of doing an accident of Kailash and that he also consented for the same and initially paid Rs. 10,000/ & Rs. 20,000/ to Sonu (A3) and Deepak (A2) and they both took 1.75 lakhs from him within 2½ years for this purpose, but they failed to execute the said plan. He further disclosed that then he asked Sonu (A3) and Deepak (A2) to execute some other plan to kill Kailash, on which Deepak (A2) told that he would bring a 'katta' from his brotherlaw Manoj from Shamli and that they would kill Kailash with the same. Sanjay (A1) further disclosed that he also consented for the same and that on 05/03/2009, he and Deepak had a telephonic talk and Deepak called him at Bharat Mata Mandir, Swatantra Nagar. He further disclosed that at about 7.00 p.m., he reached at the said temple to meet accused Deepak, where Deepak and his associates Bunty, Tinku, Raju Bengali and Vijender @ Mardwa met him. He further disclosed that Deepak told him that one 'desi katta' obtained from his brotherinlaw Manoj was with Tinku and that one 'desi katta' was also given by him to Bunty and that when Kailash will leave for his duty, then they would kill him on the road outside the village. Sanjay further disclosed that Bunty and Tinku showed one katta each to him after taking out from their clothes which were loaded with cartridges and that he agreed with the plan of Deepak and left for his house stating that when Kailash will leave his house, he would tell about the same to Deepak. He further disclosed that Deepak and his associates also left for their respective SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 6 of 45 houses. Sanjay further disclosed that in the morning at about 5.30 a.m., he made a call to Deepak that Kailash was about to leave his house and told Deepak to come towards Ghoga along with his associates. He further disclosed that at about 7.00 a.m. he came to know that Kailash was shot but he escaped and that bullet had hit Tinku who died at the spot and that he apprised about the same to Deepak also. He further disclosed that he was having three mobile phones no. 9313735377, 9313244276 and 9313456248 and from these numbers, he used to call Deepak on his phone nos. 9312303279 & 9313106639 and that his mobile phone no. 9313735377 was still operational.
7. It was further revealed during investigation that deceased Ravi Shanakar @ Tinku arranged a country made firearm and with the help of Bunty stole one motorcycle no. DL4SAW3606 from the area of PS New Ashok Nagar and changed its number plate as DL4SBG5069 with an intention to use the same in the crime. It was further revealed that on 06/03/2009, Deepak and his associates Bunty, Tinku, Raju and Bijender again assembled near 'Bharat Mata Mandir' & railway crossing on Bawana Road, riding on three different motorcycles and proceeded towards Village Ghogha to kill the complainant. Accused Deepak was riding on motorcycle no. DL9SJ7591, Bunty and Bijender were riding on motorcycle no. DL 8SAG9918, whereas deceased Ravi Shankar was on motorcycle no.DL 4SAW3606. Accused Ravi Shankar @ Tinku was driving the motorcycle and accused Raju was riding the pillion of the motorcycle behind him.
SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 7 of 45Accused Raju as per plan fired a shot at the complainant while he was proceeding towards Ghogha turn on Bawana Road to take a bus but the gun did not go off at the complainant and the bullet so fired by accused Raju hit Ravi Shankar @ Tinku in his back. It was further revealed that motorcycle went out of control and along with both the riders fell in the bushes situated in the open land of Ghogha dairy. Ravi Shankar @ Tinku died at the spot and accused Raju who sustained minor injuries, escaped from the scene. It was further revealed that after the incident, accused Deepak along with Bunti first went to Village Goharpur in District Muzaffar Nagar (U.P.) and took shelter in the house of coaccused Manoj @ Bablu Mental who is brotherinlaw of accused Deepak.
8. As per chargesheet, during further investigation, all the seven accused persons were arrested in the present case. Motorcycle no. DL 4SAW3606 stolen from the area of Ashok Nagar and used in the commission of offence having fake number plate DL4SBG5069, mobile phone, one chip and one live cartridge were recovered at the instance of accused persons. Accused Banti (A5) and Raju (A6) who surrendered before the Court, refused their TIP before the concerned Magisterial Court. Some of the exhibits were deposited in FSL, Rohini. It is mentioned in the chargesheet that mobile phones and a chip recovered in the case are also to be deposited in the GEQD, Hyderabad for retrieving the data from the memory cards of the mobile phones. From the call detail records of the mobile phones of accused persons received from various mobile operators, SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 8 of 45 it has been established during investigation that accused persons Sanjay, Deepak, Banti @ Mahavir and Bijender were in touch with each other and were at the scene of crime at the time of incident, as is evident from cell ID charts. Sections 411/212 and 120B IPC were added in the case during the investigation.
9. On completion of investigation, chargesheet u/s 307/302/467/471/411/212/120B/34 IPC was filed against the accused persons namely Sanjay, Deepak, Tilak Raj @ Sonu @ Ombir, Manoj @ Bablu Mental, Banti @ Mahaveer, Raju and Bijender @ Mardwa before the concerned Magisterial Court on 08/06/2009. It is pertinent to mention here that accused Bunty had moved an application before the concerned Magisterial Court claiming that he was a juvenile, therefore he was sent to Observation Home. The case was committed to the Court of Sessions qua remaining accused persons on 12/08/2009 and was received on assignment by this Court on 26/08/2009.
10. On 07/04/2010, supplementary chargesheet against accused Bunty @ Mahaveer (who earlier claimed himself to be juvenile) was filed since he was not found to be a juvenile.
11. On 24/11/2010, FSL result was filed in the Court. On 07/03/2011, sanction u/s 39 of Arms Act was placed on record along with original ballistic report.
SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 9 of 4512. Vide order dated 28/07/2011, charge u/s 120B IPC was framed against all the accused persons, whereas separate charge u/s 212 IPC against accused Manoj @ Bablu, u/s 302 IPC, u/s 471 IPC, u/s 411 IPC and also u/s 25 & 27 of the Arms Act against accused Raju were framed, to which the accused persons pleaded not guilty and claimed trial.
13. It is pertinent to mention herein that on 13/03/2012, motorcycles no. DL4SBG5069 and DL9SJ7591 (involved in the present case) were produced by the MHC(M) pursuant to order dated 21/02/2012 Ex. M1 and Ex. P1 along with three photographs of each motorcycle respectively Ex. S1 to Ex. S3 and the other as Ex. M2, Ex. M3 and Ex. M4.
14. It is further pertinent to mention that during trial, accused persons have made joint statement that they have no objection in case the sanction is exhibited during trial without summoning the concerned witness in order to formally prove the same and that they do not want to cross examine the said witness.
15. In order to prove its case, prosecution has examined 41 witnesses in all. The details of said witnesses are as under: S.No Name of prosecution witness Purpose of examination .
(1) PW1 Naresh Kumar Who proved the factum of purchasing of motorcycle no. DL9SJ7591 make Hero Honda Ambition from one Ashok Kumar for a sum of Rs. 17,000/ and that on SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 10 of 45 19/03/2009, he handed over form 29 & 30 signed by Ashok Kumar to the police Ex.
PW1/A to Ex. PW1/D seized vide memo Ex.
PW1/E. (2) PW2 SI Suresh Chand, police Who proved the investigation conducted in witness his presence and has proved arrest memo of accused Sanjay vide memo Ex. PW2/A, personal search memo Ex. PW2/B, his disclosure statement Ex. PW2/C, recovery of two mobile phones i.e. one of Indicom having Reliance Chip bearing ESN no.
107F4A7F & another of make Indicom bearing ESN No. 10E2738F Ex. PW2/P1 and Ex. PW2/P2 respectively at his instance which were seized vide memo Ex. PW2/D.
ii) arrest memo of accused Deepak Ex.
PW2/E, his personal search memo Ex.
PW2/F, his disclosure statement Ex.
PW2/G, recovery of Hero Honda motorcycle no. DL9SJ7591 Ex. PW2/P4 at the instance of said accused which was seized vide memo 2/H
iii) arrest memo of accused Sonu @ Tilak Raj Ex. PW2/J, his personal search memo Ex. PW2/K, his disclosure statement Ex.
PW2/L &
iv) arrest of accused Manoj (brotherinlaw of accused Bunty) from whose possession mobile phone of Indicom having ESN No. 0FC173C1 Ex. PW2/P3, which was seized vide memo Ex. PW2/M (3) PW3 Parveen Kumar , public Who proved the factum of purchasing witness motorcycle No. DL9SJ7591 Ex.
PW2/P4/Ex. P1 from one Naresh Kumar for Rs. 16,000/, whose original owner as per RC was Ashok Kumar & deposed about giving of said motorcycle for repair to accused Bunty & Deepak and that police informed him that both the said accused misused the motorcycle and committed the SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 11 of 45 offence. He has proved the original RC of the said motorcycle Ex. PW3/A. (4) PW4 Kailash, complainant Qua the incident in question.
(5) PW5 HC Snehlata, duty officer Who proved printout copy of FIR Ex.
PW5/A, her endorsement on rukka Ex.
PW4/A, copies of DD no.12A & 13/A Ex.
PW5/B & Ex.PW5/C respectively whereby the FIR was started to be written and finished and copy of DD no. 3A Ex. PW5/D recorded by HC Ishwar Dutt.
(6) PW6 SI Karan Singh, First IO Who proved the initial investigation conducted by him.
(7) PW7 Ct Gunwant, police witness Who accompanied PW6 ASI Karan Singh (now SI) to the spot and deposed about the part investigation conducted by PW6 in his presence and the fact that he got registered the FIR of the present case.
(8) PW8 Ct Jitender Kumar, DD Writer Who proved attested copy of DD no. 14B Ex. PW6/A recorded by him regarding quarrel which took place at Ghogha Mod at village Ghoga.
(9) PW9 Ct. Parminder Singh, the then Who proved the factum of receiving of reader posted at PS Narela complaint Ex. PW4/C of Kailash Kumar in office on 18/06/2008, which was entered by him in complaint register at Sl. NO. 832, which was seized by the IO vide memo Ex.
PW9/A. (10) PW10 Ct Vinod Kumar, police Who proved the factum of joining the witness investigation with PW6 ASI Karan Singh (now SI) & the part investigation conducted in his presence.
(11) PW11 Mohd. Salim @ Rajender He proved the factum of running a PCO Singh Negi, public witness booth in a temporary Khokha (kiosk) in front of C Block, J.J. Colony, Bawana, Delhi, near CRP camp, from the year 2007 to 2010, having three connections of service SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 12 of 45 providers Idea and Vodafone,which were in the name of his wife Begum Alia and that Idea phone number was 9718311338. He further proved the fact that on 05/06.03.2009, accused Raju made a call from his PCO booth at 11/11.30 a.m. He has proved memo Ex. PW11/A vide which photocopies of three papers connected with user manual Mark B1, Mark B2 and Mark B3 installed in the PCO booth, photocopy of election I/card of his wife Mark B4 and photocopy of his election I/card and press identity "Hindi Hain Hum" Ex. PW11/B were taken into possession by the police.
(12) PW12 Ashok Kumar, public witness Who proved the factum of selling of motorcycle no. DL9SJ7591 to PW1 Naresh Kumar and has proved the form no.
29 & 30 Ex. PW1/A, B, C & D and that police informed him that the said motorcycle was misused and confiscated by Narela police officials.
(13) PW13 Pankaj Kumar, public witness Who proved the factum of giving SIM card bearing mobile no. 9268331092 to accused Bunty @ Mahavir , who did not return the same to him and later on it was informed to him by the police that said SIM was used in some criminal activity. He has proved the photocopy of his driving license Ex. P13/A which was given by him as identity proof at the time of purchasing the aforesaid SIM.
(14) PW13 Chander Shekhar, Nodal Who has proved the copy of email Ex.
Officer, Bharti Airtel Ltd. PW39/A vide which the investigating (nomenclature of this witness was agency had requested for providing the wrongly given as PW13, whereas it ownership of landline phone no. should have been PW14) 1804006136, copy of reply to investigating agency Ex. PW39/B vide which it was informed that one Narender Kumar Nagpal, having installation address shop no. 16, Hyderabadi Hospital, Sanoli Road, STD PCO, Panipat, Ambala, Haryana was the SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 13 of 45 customer to whom the aforesaid landline number was issued by their company.
(15) PW14 Sant Ram Who has identified the dead body of his nephew Ravi Shankar @ Tinku ( since deceased) vide statement Ex PW14/A. (16) PW15 Devender, cousin of accused He has proved the factum that he was using Manoj mobile no. 9759856501 and that accused Manoj had given his phone number to his relatives and he used to attend the phone calls received on his phone.
(17) PW16 Ct P.Trupati, police witness Who proved the factum of taking the sealed exhibits I.e mobile phone and SIM to CFSL Hyderabad vide RC no. 75/21/09.
(18) PW17 Rajeev Ranjan, Nodal Officer, He proved the call detail record of mobile TATA Tele services ltd. no. 9268331092 for the period from 01/01/2009 to 12/03/2009 Ex. PW17/C (colly), which was issued in the name of Pankaj Kumar. He has proved the CAF Ex.
PW17/A, copy of driving license Ex.
PW17/B, certificate u/s 65B of Indian Evidence Act Ex. PW17/D and cell ID location chart Ex. PW17/E (colly).
(19) PW18 Rajeev Sharda, Nodal Officer, He has proved the following record: Reliance Communication Limited. I) CDR of mobile no. 9312303279 for the period from 01/03/2009 to 06/03/2009 Ex.
PW18/C, which was issued in the name of Bhuwni Prasad, its CAF Ex. PW18/A, copy of ration card Ex. PW18/B & certificate u/s 65B of Indian Evidence Act Ex. PW18/D.
ii)CDR of mobile no. 1132652629 for the period from 01/03/2009 to 25/03/2009 Ex.
PW18/G, which was issued in the name of Geeta Devi W/o Shiv Prasad, its CAF Ex.
PW18/E, copy of voter I/card Ex. PW18/F and certificate u/s 65B of Indian Evidence Act Ex. PW18/H. Iii) CDR of mobile no. 9313456248 for the period from 05/03/2009 to 06/03/2009 Ex.
PW18/L, which was issued in the name of SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 14 of 45 Om Prakash, its CAF Ex. PW18/J, attested photocopy of ration card EX. PW18/K and certificate u/s 65B of Indian Evidence Act Ex. PW18/M. (20) PW19 Asha Devi, wife of the Qua proving the fact that accused Sanjay complainant. (A1) was their neighbour, their families were on visiting terms with each other, proposing to marry her (PW19) by accused Sanjay, seeing of accused Sanjay while talking with her by her nephew Bijender, scolding of accused Sanjay by Bijender, not to visit their house in future and gunshot fire at her husband on 06/03/2009, which was made at the behest of accused Sanjay.
(21) PW20 Bijender, nephew of Qua proving the factum that accused complainant Kailash. Sanjay was on visiting terms with their family, seeing the accused Sanjay (A1) while talking with PW19 Asha Devi (his aunt), also seeing accused Sanjay going towards the room of his aunt Asha Devi at about 12 night, slapping of accused Sanjay in this regard, threat given by accused Sanjay, narrating of both the aforesaid incidents to complainant Kailash who warned accused Sanjay in this regard.
(22) PW21 Sandeep, public witness Who proved that on 09/03/2009, one Ram Kumar S/o Ashok Kumar purchased a SIM of Tata Indicom bearing no. 9258440773 from him under Go Easy Scheme Plan vide receipt no. 5715 dated 09/03/2009 for a sum of Rs. 150/ in the name of one Sanjay S/o Rajender, R/o VillageOon and said Ram Kumar handed over the photocopy of his own voter identity card & photograph in proof of identity, which were sent to the company, visiting of Ram Kumar to his shop after about a week, who told that he handed over the said SIM to his maternal uncle Manoj S/o Udal Singh along with the SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 15 of 45 original bill and handed over one affidavit in this regard to PW21, handing over of bill book no. 115 from Srl. no. 5701 to 5750 Ex. PW21/D, aforesaid affidavit Ex.
PW21/B, photocopy of voter I/card of Ram Kumar Ex. PW21/C which were seized by the IO vide memo Ex. PW21/A. (23) PW22 HC Naresh Who proved that on 07/03/2009, one Anil Chauhan got registered FIR no. 72/09 at PS New Ashok Nagar u/s 379 IPC regarding theft of motorcycle make pulsar bearing registration no. DL4SAW3606, investigation of which was marked to him and he proved the computerized copy of said FIR as Ex. PW22/A. (24) PW23 Dr. K. Goyal, CMO Aruna Who proved his postmortem report Ex.
Asaf Ali Hospital, Delhi. PW23/A. (25) PW24 HC Virender Kumar, the then For proving the relevant entries qua MHC(M). depositing of the case property vide Ex.
PW24/A, Ex. PW24/B, Ex. PW24/C, Ex.
PW24/D, Ex. PW24/E, Ex. PW24/F, Ex.
PW24/G, Ex. PW24/H, Ex. PW24/J & sending of case property to FSL Rohini through Ct Angrej for opinion vide RC no.
69/21/09 Ex. PW24/K and acknowledgment of FSL Ex. PW24/L. (26) PW25 Vinod Kumar, Nodal Officer, Who proved the attested copy of customer MTNL, CGO Complex, Lodhi Road, application form (CAF) of applicant Jitender New Delhi. in respect of SIM connection no.
9968370156 Ex. PW25/A, attested copy of his voter I/card Ex. PW25/B and its CDR from 01/03/2009 till 15/03/2009 mark PW25/C. (27) PW26 HC Ashok Singh Who proved the factum that on 06/04/2009, one Anil Chauhan S/o Kali Charan Chauhan visited PS Narela and produced photocopy of RC of motorcycle no. DL4SAW3606 and of FIR no. 72/09 of PS New Ashok Nagar before him, which he seized vide SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 16 of 45 memo Ex PW26/A and thereafter handed over the same to IO Inspector Raj Singh.
(28) PW27 Ct Tirender, police witness Who proved the factum of joining the investigation of the present case with IO Inspector Raj Singh, Ct Angrej and HC Shiv Kumar and pointing out of place of commission by accused Raju and Bunty @ Mahavir vide pointing out memos Ex.
PW27/A and Ex. PW27/B, recovery of one live cartridge at instance of accused Raju, preparing of its sketch Ex. PW27/C, seizing of the same vide memo Ex. PW27/D, pointing out of PCO booth of Mohd. Salim by accused Raju vide memo Ex. PW27/E, recovery of motorcycle no. DL8SAG9918 at the instance of accused Bunty @ Mahavir and its seizure vide memo Ex. PW27/F. (29) PW28 Sh. V. Shankarnarayanan, For proving report Ex. PW28/A. SSO (Biology), FSL Rohini, Delhi.
(30) PW29 ASI Mahesh Kumar, PCR Who proved PCR form Ex. PW29/A. official (31) PW30 ASI Jai Bhagwan Who proved his report Ex. PW30/A. (32) PW31 Sh. R. Suresh, Assistant For proving report Ex. PW31/A. Director (Ballistics), CFSL, Kolkatta.
(33) PW32 Inspector Manohar Lal, For proving scaled site plan Ex. PW32/A. Draftsman (34) PW33 Inspector Narender Singh Who proved that accused Bijender was formally arrested by him vide Ex. PW33/A & making of disclosure statement Ex. PW33/B by accused Bijender.
(35) PW34 Sindheshwar Sahni For proving the ownership of motorcycle bearing registration no. DL8SAG9918 Ex.
P34/1, which was released on superdari vide superdarinam Ex. PW34/A. (36) PW35 W/Ct Asha For proving attested copy of PCR form Ex.
PW35/A and certificate u/s 65B of Indian Evidence Act Ex. PW35/B. SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 17 of 45 (37) PW36 Sh. M. Krishna, Assistant For proving report Ex. PW36/A containing Director, CFSL, Hyderabad. annexureA Ex. PW36/B and CD containing data taken out from the memory card Ex.
PW36/C. (38) PW37 HC Ratan Singh Who verified the addresses of phone numbers 1398253902 & 1398270177 and has proved telephone bill of telephone no.
1398253902 Ex. PW37/A and that of telephone no. 1398270177 along with receipt of STD booth Ex. PW37/B and Ex.
PW37/C respectively.
(39) PW38 HC Bijender For proving copy of duty roster register
dated 06/03/2009 in respect of
complaint/victim Ct Kailash Ex. PW38/A.
(40) PW39 HC Angrej Singh Who proved the investigation part
conducted in his presence.
(41) PW40 Sh. Yogesh Tripathi, Alternate Who proved the call detailed record of
Nodal Officer, Reliance mobile no. 9313106639 for the period from
Communication Ltd. 08.03.2009 to 09.03.2009 along with cell ID
chart Ex. PW40/C, which was issued in the
name of Munna Lal S/o Ram Dev,
photocopy of CAF Ex. PW40/A, photocopy
of election I/card Ex. PW40/B and certificate
u.s 65B of Indian Evidence Act Ex.
PW40/D.
(42) PW41 Inspector Raj Singh For proving the investigation conducted by
him.
16. After completion of prosecution evidence, statements of all the accused persons were recorded u/s 313 Cr.P.C., wherein they denied the case of prosecution and claimed that they have been falsely implicated in this case. However they chose not to lead any evidence in defence.
17. I have heard ld. Addl. PP for the State, ld. Defence counsel Sh.
SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 18 of 45Shubham Asri for accused Sanjay (A1) and Ms. Neelam Singh, ld. Amicus Curiae for remaining accused persons and have carefully perused the record including written submissions filed on behalf of accused persons.
ARGUMENTS OF LD. OFFICIATING CHIEF PP FOR THE STATE
18. Ld. Officiating Chief PP for the State has submitted that the present case was registered on the complaint of Kailash Kumar who has specifically stated the role of accused Raju who was the pillion rider on the motorcycle which was being driven by his associate (since deceased) and subsequently accused Raju fired upon him (driver). She has further submitted that Kailash also specifically stated in his statement Ex. PW4/A that he can identify the accused who had fired upon deceased. During the investigation, it revealed that number of other named accused persons were involved in the conspiracy and actually they wanted to kill the complainant Kailash Kumar. Their conspiracy in this regard reflects from the mobile phones used by the accused persons at the time of incident. The mobile call detail records of accused Sanjay, Bijender @ Mardwa, Bunty @ Mahavir and Deepak clearly show that they were in touch with each other prior to the incident, at the time of incident, after the incident and the same matched with their disclosure statements recorded by the IO during the investigation. PW20 Bijender (nephew of the complainant) also corroborated the statement of complainant to prove the motive of the accused persons for the commission of the offences qua complainant. Accused Raju to whom complainant claimed that he can identify, if shown to him, had refused to join SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 19 of 45 the judicial TIP. At the instance of accused Raju, one live cartridge was recovered on 24/03/2009. The said live cartridge was also of the same bore .315, the country made pistol of which was recovered from the spot. It has not come on record that there was any motive of the complainant to falsely implicate the accused persons in the present case. Ld. Officiating Chief PP for the State has submitted that PW4 has deposed that on 06/03/2009, at about 6.20 a.m., when he reached near NDPL Transformer Chowk, while going for his duties, a pulsar motorcycle no. DL4SBG5069 came from Daryapur side and that two boys of the age group of 19 to 20 years, were riding the same and the driver was wearing the helmet and pillion rider was wearing the monkey cap and the motorcycle stopped towards his side and the pillion rider pointed out country made pistol towards him and thereafter said motorcycle went ahead for about 24 paces and the pillion rider fired on the driver of the motorcycle due to which the motorcycle became imbalanced and overturned and struck against a pole about 300 400 yards and fell down near 'nala' and that the motorcycle skidded for about 15 to 20 paces and the driver of the motorcycle fell on the ground and the pillion rider fled away from there and the driver died at the spot. She has further submitted that PW4 informed the police at 100 number, whereupon police reached and one driving license and some visiting cards were recovered from the search of the dead body and the identity of the deceased was revealed as Ravi Shankar @ Tinku, son of Shiv Kumar, R/o Mayur Vihar and mobile number 9899269148 was found written on the visiting card and accordingly Maya (mother of deceased) was contacted who later on SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 20 of 45 came to the PS with her husband Shiv Kumar and identified the body to be of their son and stated that their son had gone to Narela to meet his maternal uncle Sheo Prasad 23 days back as he was friend of accused Bunti @ Mahaveer S/o Sheo Prasad. Ld. Officiating chief PP for the State has further submitted that on 22/03/2009, PW4 Kailash identified accused Raju @ Bangali as the person who was the pillion rider of the motorcycle and who fired on him but by mistake, it hit the driver Ravi Shankar @ Tinku (since deceased). She has further submitted that PW4 has further stated that accused Sanjay was his next door neighbour and used to run ration shop and that he was having an eye on his wife Smt. Asha Devi (PW19) and that his family and the family of accused Sanjay were on visiting terms with each other and that accused Sanjay wanted to marry PW19 Asha Devi and that accused Sanjay was scolded by PW20 Vijender when he saw accused Sanjay going towards the room of PW19 Asha Devi at about 12 midnight and he slapped him and thereafter about one month prior to the abovesaid incident, accused Sanjay extended threat to PW20 Vijender that he would have to face dire consequences for slapping incident and on the same day, PW20 Bijender told about the incident to PW4. She has further submitted that PW4 Kailash further deposed that accused Sanjay who was running a 'ration' shop, was very friendly to accused Sonu @ Tilak Raj who was running a barber shop at bus stop of village Ghogha and he had seen accused Deepak with accused Sanjay and Sonu at the shop of Sonu and they used to talk with each other and used to stop talking on seeing him and when he used to ask them about their such behaviour, accused Sanjay and SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 21 of 45 Deepak used to leave the shop of accused Sonu while saying that he will come to know very soon. She has further submitted that PW4 Kailash further stated that on 06/03/2009, when he left his home, he saw accused Sanjay standing in front of his house and was talking with someone on his mobile phone and was staring at him and when he reached at the bus stop, he saw accused Deepak and Sonu with the motorcycle without headlights [later on the said motorcycle make Hero Honda having registration no. DL 9SJ7591, without headlight was recovered from the bushes of Shahbad Dairy at the instance of accused Deepak (A2)] and at that time, accused Deepak was talking with someone on his mobile phone and that when he was walking from bus stop to Bawana Road, accused Deepak pointed out towards him by his hand as he was following him on his motorcycle and another motorcycle (DL4SBG5069) was also there on which two boys were sitting. Ld. Officiating Chief PP for the State has further stated that PW4 also told the IO that on 17/06/2008, he had received a threatening call from Shamli about his killing and for which he lodged a complaint on 18/06/2008, which is Ex. PW4/C. Ld. Officiating Chief PP for the State has further stated that it has further come in evidence that accused Raju used to live at the stall of accused Mahavir @ Bunty and made a telephone call to accused Mahavir @ Bunty from the PCO of Mohd. Saleem (PW11) who has three connections at his PCO i.e. 9718311338, 9718645161 and 9899088153 and he also identified accused Raju as the one who made call from his PCO. She has further submitted that PW41 Inspector Raj Singh, IO of the case, has stated that Sheo Prasad told him that accused Mahavir @ Bunty and SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 22 of 45 deceased Ravi Shankar @ Tinku left his house on motorcycle at about 6.00 a.m. on 06/03/2009 and had not returned to the house and when the search was made for the accused persons at their respective houses, they were not found present. PW41 also stated that the motorcycle no. DL4SBG5069 was found to be stolen from PS New Ashok Nagar vide FIR no. 72/09 and the original registration number of the same was DL4SAW3606. PW41 further stated that accused Sanjay was using mobile nos. 9313735377, 9313244276 and 9313456248, accused Deepak was using mobile no. 9312303279 and 9311106639, accused Mahavir @ Bunty was using mobile no. 9268331092 and 32652629 (landline number), accused Bijender @ Mardhwa was using mobile no. 9968436633 and 9960370156 and accused Raju and Tilak @ Sonu were not using any mobile phones. Ld. Officiating Chief PP for the State has further submitted that PW41 has further stated that he analyzed the CDRs of all the aforesaid mobile numbers and the location of all the mobile phones was at village Ghogha and Narela on 05/03/2009 and 06/03/2009. Ld. Officiating Chief PP for the State has further submitted that accused Manoj @ Mental is relative of accused Deepak and he gave shelter to accused Mahavir @ Bunty and Deepak in his house and arranged a mobile phone for the accused persons having number 9258440773 at the time of incident and 9319401574 about one and a half year ago. She has further submitted that accused Bijender @ Mardna (A7) used his motorcycle on the day of the incident and is common friend of other accused persons. She has further submitted that deceased Ravi Shankar was cousin of accused Mahavir @ Bunty and accused Raju is the employee SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 23 of 45 of accused Mahavir @ Bunty and it shows their complicity in the commission of offence and in hatching the conspiracy with other coaccused namely Sanjay, Deepak, Tilak Raj @ Sonu, Raju, Manoj @ Mental and Bijender. She has further submitted that after the arrest of accused Sanjay, two mobile phone Ex. PW2/P1 and Ex. PW2/P2 were recovered from his house and on the basis of his disclosure statement, accused Deepak was arrested and one telephone diary Ex. PW41/P20 was recovered from the purse kept in the back pocket of pant which he was wearing and at the instance of accused Sanjay, accused Tilak Raj @ Sonu was arrested and accused Manoj @ Mental was arrested from the house of accused Mahavir @ Bunty. From the formal search of accused Manoj @ Mental, one receipt of Shamli telecom Ex. PW41/P11 was recovered from the purse kept in the back pocket of the pant which he was wearing and mobile phone of Indicom Ex. P2/Ex. P3 was also recovered. At the instance of accused Mahavir @ Butny, motorcycle no. DL8SAG9918 was recovered from the front of his house and at the instance of accused Bijender, one mobile phone Ex. PW41/P3 was recovered from his house and his father produced the RC of motorcycle no. DL8SAG9918. PW21 Sandeep is owner of Shamli telecom at Dimanpura and he sold TATA indicom SIM no. 9258440773 to Ram Kumar s/o Ashok Kumar in the name of Sanjay on 09.03.2009 on the promise of providing I/D proof of Sanjay on next date but on the next day he handed over his own voter ID as well as photograph and after about one week Ram Kumar told him that SIM was handed over to accused Manoj and Ram Kumar gave an affidavit in this regard. She has further submitted that PW13 Pankaj Kumar SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 24 of 45 gave SIM card bearing mobile no. 9268331092 to accused Mahavir @ Bunty for 23 days, which was not returned by him. He has identified accused Bunty in the Court. PW1 Naresh Kumar has stated that he purchased motorcycle no. DL9SJ7591 from Ashok Kumar and sold to Praveen Kumar. PW15 Devender deposed that his cousin accused Manoj @ used his mobile for receiving the calls and that accused Deepak called on his mobile phone on 08/09/10.03.2009 for talking with accused Manoj @ Mental. Ld. Chief PP for the State has further submitted that bullet recovered from the body of the deceased matched with the weapon recovered from the spot and eye witness PW4 Kailash has duly identified the accused in the Court. She has further submitted that ld. Counsels for the accused persons have argued that PW4 has deposed that the pillion rider was in monkey cap and the said fact was an improvement qua which he was confronted during his cross examination. She has further submitted that once the said fact cannot be read against the accused, the same cannot be read against the prosecution. The previous and subsequent conduct of the accused persons has been duly established on record. She has further submitted that PW4 Kailash has specifically assigned the role of each accused persons, regarding their presence and also regarding the motive of the incident. The statements of other witnesses also corroborate the statement of complainant regarding the motive of the accused persons.
ARGUMENTS OF LD. COUNSEL & LD. AMICUS CURIAE FOR THE ACCUISED PERSONS
19. It is argued on behalf of the accused persons that neither the SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 25 of 45 motive, nor the presence of the accused persons at the spot or the identity of accused Raju (A6) as the one who caused gunshot injury or any conspiracy on the basis of CDRs have been proved on record as admittedly none of the mobile phones belonged to any accused. It is further argued that the most material witness of the case of prosecution is eyewitness PW4 Kailash qua the factum of incident and causing of alleged gunshot injury by accused Raju but have claimed that examinationinchief of the witness was recorded on five different dates and he has improved his testimony on each occasion and that his incriminating supplementary statements and subsequent testimony qua the same are afterthought and liable to be rejected. Ld. Counsel & Ld. Amicus Curiae for accused persons have drawn my attention to the first part of examinationinchief of PW4 recorded on 22/10/2011 wherein on material facts he deposed that he was working as driver/constable in Delhi police and on 06/03/2009, at 6.20 a.m., he left his house for going to his duty on foot and was going towards Ghogha Mod, when he reached near NDPL Transformer Chowk, a pulsar motorcycle no. DL4SBG5069 came from Daryapur side on which two boys between the age group of 1920 years were riding, the driver of the motorcycle was wearing helmet and the pillion rider was wearing monkey cap, the motorcycle stopped towards his side and the pillion rider pointed out katta (country made pistol) towards him and thereafter the said motorcycle went ahead for about 24 paces and the said pillion rider fired on the driver of the motorcycle due to which the motorcycle became imbalanced, overturned, struck against a pole after about 300/400 yards and fell down near 'nala', the motorcycle skidded for about 15 or 20 SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 26 of 45 paces, the driver of the said motorcycle fell down on the ground and pillion rider fled away from there, said driver sustained injury on the right side of his back, he (PW4) called the police at 100 number, police reached at the spot, recorded his (PW4's) statement Ex. PW4/A and the person who sustained bullet injury died at the spot. They have further submitted that the said deposition was broadly as per the initial statement of complainant made to police immediately after the incident (whereupon FIR was registered), except for his deposition that pillion rider was wearing monkey cap, but the witness has improved his version in subsequent examinationsinchief. They have further submitted that PW4 Kailash in his 2nd part of examinationinchief recorded on 24/04/2012 has claimed that on 07/03/2009 (i.e. a day after the incident), his nephew Vijender told him that Sanjay S/o Mange Ram (accused no.1 herein) was beaten by him as he was going towards the room of his wife (PW4's wife) Asha Devi and on this, he (PW4) also scolded Sanjay, who was his neighbour and the accused in this case, and warned him not to visit his house again, on which Sanjay threatened him that he will face the music very soon. He further deposed that he did not pay any heed on the said threat of Sanjay and took it very lightly. He further deposed that accused Sanjay is running a ration shop at Metro Vihar and is very friendly to Sonu @ Tilak Raj (A3), who is running a barber shop at bus stop of village Ghogha. PW4 Kailash further deposed that he had seen accused Deepak (A2), resident of Swatantra Nagar, Narela, with accused Sanjay and Sonu. He further deposed that he knew accused Deepak very well who met him twice or thrice for getting booked his vehicle i.e van in the office of SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 27 of 45 NDPL, to which he refused. On 21/09/2012, PW4 Kailash further deposed that accused Sanjay, Sonu @ Tilak Raj and Deepak used to sit together at the barber shop of accused Sonu, used to talk with each other and used to stop talking on seeing him. He further deposed that when he used to ask them about their such behaviour, accused Sanjay and Deepak used to leave the said shop by saying that he will come to know very soon and that he did not take the said conduct of those accused persons very seriously. Ld. Counsels for accused persons have argued that no such version was given to police initially and 2nd supplementary statement in this regard was recorded on 07/03/2009 as an afterthought to falsely show motive of accused Sanjay, which is liable to be discarded. They have also submitted that in his 4th part of examinationinchief recorded on 01/12/2012, he deposed that on 06/03/2008, at about 6.15 a.m., when he left home for his duty with his tiffin, he saw accused Sanjay (A1) standing in front of his house and talking on his mobile phone with someone and was staring at him. He further deposed that when he reached at bus stop, accused Deepak (A2) and Sonu (A3) were present with a motorcycle without headlights and that accused Deepak (A2) was talking with someone on his mobile phone, but he could not hear due to the distance. He further deposed that since he could not get the bus from the bus stop, he started walking towards Bawana Road to get the bus and on the way, when he reached upto 100200 meters, accused Deepak (A2) pointed out towards him by his hand as he (Deepak) was following him on his motorcycle and another motorcycle was also there on which two boys were sitting and the SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 28 of 45 rider was wearing helmet. PW4 Kailash further deposed that pillion rider who was wearing monkey type cap, fired at him but by mistake it hit the rider of the motorcycle from his back. He further deposed that the balance of the motorcycle became unstable and both the boys fell down after some distance towards right side near 'nala' at vacant land of a diary. He further deposed that two boys came on a motorcycle thereafter who were wearing helmet and after seeing the scene of the incident, they went towards Bawana Road in some nervousness. He further deposed that he called the police by dialing number 100 and that he disclosed these facts to the police on 07/03/2009 and also told that accused Sonu and Sanjay were not present in their respective homes and they should be interrogated. PW4 further deposed that he told the police that Sanjay and Sony may be involved in the incident as they wanted to kill him in view of the threats received by him on his mobile phone, about which, he had lodged a complaint with the police. He further deposed that on 12/03/2009, he was called in the PS where accused Sanjay, Sonu and Deepak were present who were identified by him as the persons who were involved in the incident. Ld. Counsel and ld. Amicus Curiae for accused persons have accordingly argued that the testimony of complainant PW4 Kailash qua the presence of accused persons at the spot, identifying the accused Raju as the one who caused gunshot injury, is liable to be discarded being full of inconsistencies and improvements and since PW4 Kailash himself has admitted in his depositions that pillion rider was wearing a monkey cap and hence he was not in a position to identify him as he may not have seen the pillion rider for SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 29 of 45 more than one or two seconds and the pillion rider was admittedly unknown to him.
APPRECIAITON OF EVIDENCE
20. Neither in his initial statement to the police immediately after the incident nor in his first supplementary statement dated 06/03/2009, the complainant named any of the accused or raised suspicion upon any accused specifically or informed about any motive of alleged main conspirator Sanjay. In his first supplementary statement u/s 161 Cr.P.C. dated 06/03/2009, it is mentioned that efforts were made to find out the clue about the accused persons, but no clue could be found and that if any clue is found, he will inform the police. It is further mentioned that on 18/06/2008, he made a written complaint in PS Narela regarding receiving of threat by telephone and that from said complaint, any clue could be found in the present matter.
21. The complainant Kailash also made his 2nd supplementary statement u/s 161 Cr.P.C. on 07/03/2009 before the police (wherein he stated similar facts which he deposed in his testimony before the Court on 24/04/2012 and 01/12/2012) raising suspicion over accused Sanjay (A1), Deepak (A2) and Tilak Raj @ Sonu (A3). In his 2nd supplementary statement u/s 161 Cr.P.C. dated 07/03/2009, he stated that about two years back, his nephew Bijender had told him that he had beaten Sanjay as he was going towards the room of Asha Devi (wife of PW4), whereas in his testimony before the Court, he deposed that on 07/03/2009 ( a day after the SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 30 of 45 killing of deceased), his nephew Vijender apprised him about the said fact on which he scolded accused Sanjay, who threatened him that he will face the music very soon. In his supplementary statement u/s 161 Cr.P.C. dated 07/03/2009, he further disclosed that on 17/06/2008, he received a call from mobile no. 9319401574 on his mobile no. 9818080726 from one unknown person who told him that he had to talk to him urgently and further told that since he was not having balance in his mobile, Kailash should call him and when he (Kailash) made phone call to that person, he told that he was talking from Shamli and that he had received a handsome amount for killing him and further that he was ready to disclose the name. PW Kailash further stated in his said statement that on 18/06/2008, he made a written complaint in PS Narela in this regard. For the first time, in his said statement ( after recording of his aforesaid two statements) to the police, he stated about accused Sanjay who was allegedly standing outside his house when he left for his duty and that he (Sanjay) was having a mobile and was staring at him. He further stated that when he reached at bus stop, he saw accused Deepak (A2) sitting on a motorcycle, headlights of which were broken and accused Sonu was standing besides him and they both were also staring at him and accused Deepak talked with someone on phone which he could not hear due to distance. He further stated that since no bus was standing at the bus stop, so he started going on foot towards Bawana road and when he reached at Dhyan Kendra, accused Deepak passed by his side and made a signal towards him with his left hand and two boys riding on a motorcycle came behind Deepak and one of them fired a gunshot aiming towards him, SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 31 of 45 which did not hit him, but hit the motorcycle rider after going some steps ahead and both the motorcyclist fell on the ground. He further stated that behind the aforesaid motorcycle, two other boys came on another motorcycle who had covered their faces with helmet who stopped their motorcycle and saw towards the person who had sustained gunshot injury and the motorcycle and ran away towards Bawana Road. He further stated that on that day, he did not suspect anything wrong, but today (on 07/03/2009), he is having suspicion that Deepak and those two boys were involved in the conspiracy to kill him and that accused Sanjay and Sonu were not at their respective house since the deadly attack on him on 06/03/2009. He further stated therein that he was sure that Sanjay, Sonu and Deepak had attacked him on 06/03/2009 along with their associates and that they were also having hand in the threatening call received by him on 17/06/2008.
22. From testimony of PW4 Kailash, it is clear that on the day of the incident i.e. 06/03/2009, out of the two boys, who came on the motorcycle, driver was wearing helmet, whereas pillion rider was wearing monkey cap. The way PW4 has described the incident, it is clear that he only had a chance to see the pillion rider for one or two seconds when he aimed katta at him (PW4) and immediately thereafter motorcycle was driven away and few paces thereafter the gunshot injury to motorcycle driver was caused by the pillion rider. Admittedly pillion rider was not known to him prior to the incident. Thus it is highly unlikely that PW4 may have seen the face of SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 32 of 45 pillion rider in those one or two seconds specially when pillion rider was wearing a monkey cap.
23. Moreover in his initial statement, PW4 Kailash had not raised any suspicion on any person for the attack made on his life. Even during his first part examinationinchief, he had not raised accusing finger towards any of the accused including accused Sanjay (whom prosecution has claimed to be the main conspirator for the plot to murder PW4). Admittedly in his first statement Ex. PW4/A to the police, whereupon FIR was registered, PW4 had neither named accused Deepak or Sonu or shown any suspicion nor has claimed that they or two more persons on another motorcycle wearing helmets, were present on the day of incident and thus his 2 nd supplementary statement dated 07/032009 (and not even in first supplementary statement dated 06/03/2009) stating of said facts and his fourth part of examinationin chief recorded on fourth occasion qua the same, gives rise to strong doubt. The same appears to be an afterthought otherwise PW4 would have stated said facts in his first statement Ex. PW4/A or at least in the first supplementary statement dated 06/03/2009. The conduct of PW4 Kailash not stating such important facts in his statement dated 06/03/2009 does not appear to be natural as PW4 was a police official and not an illiterate person and even an illiterate person is not expected to forget the said important facts specially when his statement qua FIR was recorded immediately after the incident and there is no time lag for memory lapse. During cross examination, PW4 was confronted with his initial statement Ex. PW4/A & SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 33 of 45 supplementary statement dated 06/03/2009 Ex. PW4/DA qua the improvements made by him in his deposition before the Court, but he could not give any plausible reason as to why he did not state said facts in his said statement. PW4 made improvements in his testimony time and again before the Court regarding the incident in question, raising accusing finger towards accused Sanjay (A1), Deepak (A2) and Tilark Raj @ Sonu (A3) in his 4 th part of examinationinchief on fourth date, which does not seem to be in consistency with his initial statement made before the police and also his initial deposition before the Court and hence his supplementary statement u/s 161 Cr.P.C. dated 07/03/2009 and subsequent testimony appears to be doubtful, an afterthought and cannot be relied upon since he has changed his version time and again. Moreover he merely claimed that accused Sanjay (A1) and Sonu (A3) might be involved in the incident as they wanted to kill him in view of the threats received by him on his mobile phone and about which he had lodged a complaint with the police. It itself shows that even PW4 Kailash was not sure that both these accused were the assailants involved in the incident in question. Had the accused persons been involved in the incident, he would have certainly told their names in his initial statement to the police and had he been apprehending any threat from accused Sanjay, Deepak and Sonu for his life, he would have made complaint to the police. The testimony of PW4 Kailash does not inspire confidence qua having seen accused Deepak & Sonu on the date of incident in the aforesaid manner deposed by him. Thus it cannot be ruled out that PW4 Kailash deliberately improved his version after the incident to frame the SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 34 of 45 accused Sanjay (A1), Deepak (A2) and Tilak Raj @ Sonu (A3) since he believed that accused Sanjay was having an eye on his wife and that accused Deepak (A2) and Tilak Raj @ Sonu (A3) were close to accused Sanjay.
24. Furthermore had accused Sanjay (A1) extended any such prior threat to PW4 Kailash, he being a police official, would have certainly made a complaint to the police in this regard. Even during his crossexamination, PW4 admitted that he did not make any complaint against accused Sanjay in the PS when the earlier quarrel took place between Sanjay, him and his nephew Vijender. He further admitted that even after two years of said quarrel, he did not make any kind of complaint against accused Sanjay in the PS. PW20 Bijender (nephew of PW4) has deposed that around 2 ½ years ago, when he came back to his house at about 12 night after attending his duty and when he reached at the first floor of their house, he saw accused Sanjay going toward the room of his aunt Smt. Asha Devi (wife of PW4 Kailash) and that when he confronted accused Sanjay he could not give any satisfactory reply and out of anger, he (PW20) gave 23 slaps to accused Sanjay and asked him to go away from there and that at that time, accused Sanjay had not reacted. PW20 further deposed that after about a month later, in the morning hours while he was going toward bus stand as he had to go for his duty, on the way accused Sanjay met him, stopped him and stated about the occurrence that took month earlier that he (PW20) had not done good with him by slapping him and for that they would have to face SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 35 of 45 dire consequences. He further deposed that on this, he warned accused Sanjay not to visit their house in future. PW20 Bijender further deposed that on the same evening when he returned back to his house after attending his duty, he disclosed about both the incidents to his uncle Kailash (PW4), upon which, his uncle Kailash warned accused Sanjay and since that day, accused Sanjay was having a grudge against his uncle Sh. Kailash. PW19 Asha Devi (wife of PW4 Kailash) has deposed that accused Sanjay was residing in the neighbourhood of her inlaws, whose father was a 'pandit' by profession. She further deposed that accused Sanjay and his father as well as his other family members were on visiting terms with her inlaws family and they also used to visit the house of accused Sanjay. She further deposed that accused Sanjay used to visit their house, used to talk to all the members of her family, also used to talk to her and used to call her 'Bhabi'. She further deposed that accused Sanjay visited their house many times and thereafter on one day he stated to her that he wanted to marry her, upon which, she scolded the accused Sanjay and stated to him that she was a married woman having minor children and in no circumstance could marry him. She further deposed that from that day onwards, she stopped talking to accused Sanjay and one day while she was talking to accused Sanjay, her nephew namely Bijender (PW20) had seen them talking to each other, who scolded accused Sanjay and warned him not to visit their house in future. PW19 further deposed that she did not disclose the aforesaid facts to her husband as she was under the fear that her husband might take any wrong step.
SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 36 of 4525. From the depositions of PW20 Bijender (nephew of PW4) and PW19 Asha Devi (wife of PW4), it can be safely inferred that due to the aforesaid incident, they merely raised suspicion over accused Sanjay for attempt of attack on PW4 Kailash after the incident of present case. Admittedly both these PWs had not disclosed about aforesaid both incidents to PW4 Kailash. In her crossexamination, PW19 Asha Devi has admitted that she remained silent for two years and for the first time stated about the said proposal of accused Sanjay to her husband (PW4) in the year 2009 after the incident. She further admitted that she did not lodge any complaint to the police or to the 'panchayat' or in front of 'Biradari' or family meeting. She has also admitted that in her presence, her nephew Bijender had never disclosed to her husband the factum that he had seen her talking to accused Sanjay. Even in his crossexamination, PW20 Bijender failed to give any exact date and month when he had seen accused Sanjay going towards the room of his aunt Asha Devi (PW19). He also admitted that he did not disclose about the said factum to anyone. He further admitted that he did not make any complaint either to father of accused Sanjay or to his uncle Kailash (PW4) or even asked his aunt PW19 Asha Devi in this regard. He further stated in his crossexamination that he had not stated to the police on 06/03/2009 regarding his belief that the accused Sanjay was behind the occurrence dated 06/03/2009 or that accused Sanjay was absconding since the incident. From the same, it can also be assumed that due to said fact coming to notice of PW4 Kailash on 07/03/2009, he was having personal grudge against accused Sanjay and thus by taking advantage of the SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 37 of 45 incident, he had created a false motive against him for the attempt on his life on the day of the incident. Once PW19 & PW20 had not informed PW4 about accused Sanjay going to the room of PW19 and PW4 himself has admitted that he came to know about the same on 07/03/2019 (i.e. after one day of the incident of present case), thus it is clear that deposition of PW4 that he scolded accused Sanjay (A1) earlier on aforesaid aspect, is false. Thus no motive has been proved against accused Sanjay (A1). Furthermore in the absence of any overt act, motive in itself is not sufficient for conviction of an accused.
26. As regards the alleged threatening call received by PW4 Kailash, he deposed that he had lodged a complaint Ex. PW4/C on 17/06/2008. He further deposed that initially it was a missed call and the caller again called him and asked him to call him back as he was not having sufficient balance in his mobile phone and when he called back, the caller told him that he had received huge consideration amount for his killing and the said unknown person was calling from Shamli. This part of testimony of PW4 does not seem to be believable because a person who had received a huge amount for killing a person, would not ask another person to call him back since he was not having sufficient balance in his mobile. It is case of prosecution that on 18/06/2008, a complaint Ex. PW4/C of Kailash Kumar was received. PW9 Ct Parminder Singh has deposed that the same was entered by him in the complaint register at serial no. 832 and the said complaint was seized by the IO vide memo Ex. PW9/A. PW30 ASI Jai SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 38 of 45 Bhagwan had investigated the said complaint of PW4 Kailash, wherein he (Kailash) alleged that he had received calls from mobile no. 9319401574 over his mobile phone no. 9818080726. However as per PW30 ASI Jai Bhagwan, he enquired into the said complaint and made many calls at mobile no. 9319401574 from his mobile as well as from several PCO booth phones, but the aforesaid phone could not be contacted. He further deposed that he narrated the aforesaid facts to complainant Sh. Kailash Kumar, who stated to him that he had not received any call after 17.06.2008 from mobile no. 9319401574 and further that he had no enmity with any person. PW30 further deposed that accordingly on 28.12.2008, he prepared report Ex.PW30/A and filed the complaint Ex.PW4/C. Thus from the testimony of PW30, it is clear that no such number could be contacted and PW4 himself admitted that he was not having any enmity with any person. Furthermore in his testimony before the Court, PW4 merely deposed that he told to the police that the threatening call received by him from Shamli might have been made by Sanjay, Deepak and Sonu. He also admitted in his cross examination that in his complaint Ex. PW4/C, he had not raised any suspicion on any person. Hence his testimony holding accused Sanjay responsible for the said threatening call, does not inspire confidence and seems to be an afterthought. This further negates the alleged motive of accused Sanjay (A1) or the fact that he was having any enmity with the complainant (PW4).
27. As regards used of various phone numbers by accused SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 39 of 45 persons, PW41 Inspector Raj Singh has deposed that during investigation, he made enquiries from the family members of aforesaid accused persons, who stated to him that accused Sanjay (A1) was using mobile no. 9313735377, 9313244276 and 9313456248, accused Deepak (A2) was using mobile no. 9312303279 and 9311106639, accused Tilak Raj @ Sonu (A3) was not using any mobile, accused Mahavir @ Bunty (A5) was using mobile no. 9268331092 and 32652629 (landline number), accused Bijender @ Mardhwa (A7) was using mobile no. 9968436633 and 9960370156 and accused Raju (A6) was not using any mobile phone. Further as per PW41, he obtained the CDRs of these mobile phone numbers and it was revealed that aforesaid accused persons who were having mobile phone connections, were in touch with each other on the day of the incident & after the incident. However, the CDRs obtained on record nowhere show that accused Sanjay (A1), Deepak (A2), Mahavir @ Bunty (A5) and Bijender @ Mardhwa (A7) were the subscribers of these mobile phones. In absence of any other convincing material, the CDRs obtained by the police cannot be connected with the accused persons. It cannot be said that at any point of time, they were the users of said numbers or were in contact with each other in connection with the conspiracy allegedly hatched by them. Merely on the basis of bald testimonies of some of the PWs with respect to aforesaid accused being users of said numbers, it cannot be said that these accused persons had used the said mobile phones at the relevant time. Moreover, even if for argument sake,it is assumed that aforesaid four accused persons were using the said numbers, the same is of no significance as it is admitted SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 40 of 45 case of the prosecution that accused Raju (A6) was not using the mobile phone and since the testimony of PW4 Kailash qua having seen accused Sanjay (A1) and Sonu (A3) doing aforesaid acts on the date of incident has already been disbelieved and his identification of accused Raju in the Court as the pillion rider who caused gunshot injury, is highly doubtful.
28. As regards the recovery of two kattas, one fired cartridge and one live cartridge from the spot, although vide FSL report Ex. PW31/A, it has been proved that these were firearm and ammunition. However since the same have not been connected with the accused persons, proving of same as firearm and ammunition is of no significance.
29. As per PW41 Inspector Raj Singh, accused Raju (A6) got recovered one live cartridge from a 'nali" at Ghoga Road, towards "Osho Dhyan Kendra" in the presence of PW39 Ct (now HC) Angrej and PW27 Ct Tirender, which fact is corroborated by the said PWs in their testimony. However admittedly the said 'nali' was a public place accessible to public at large and cannot be said to be a place which was only in the knowledge of the accused. Moreover no public witness was joined in the said recovery. Furthermore admittedly no firearm through which the said cartridge could have been fired, was recovered. In these facts and circumstances, the recovery of the said cartridge at the instance of accused Raju appears doubtful. Even if it is assumed that the said recovery of cartridge was effected at the instance of accused Raju, still he cannot be fastened with the SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 41 of 45 liability of the possession of the same and at the most it can be attributed to him that he had knowledge about the lying of the cartridge in the said 'nali'.
30. As per PW41 Inspector Raj Singh accused Manoj @ Mental made disclosure statement Ex.PW41/F and disclosed that at the time of commission of offence, he was carrying mobile no. 9258440773 and approximately 1½ year prior to the incident of the present case, he was using mobile no. 9319401574 and that he had made a call to complainant/PW4 Kailash around 1½ year prior to the occurrence. However PW15 Devender (cousin of accused Manoj) in his crossexamination conducted by ld. Addl. PP for the State has denied the suggestion that on 08/09/ 10.03.2009, accused Deepak made a telephonic call on his abovesaid phone and on his asking, he had given his phone to accused Manoj.
31. As per PW41 Inspector Raj Singh, accused Raju (A6) led them to J.J. Colony, Bawana and pointed out the PCO Booth of Mohd. Salim (PW11) from where allegedly he had made a phone call to the house of accused Bunty. PW11 Mohd. Salim @ Rajender Singh Negi, the owner of said PCO has stated that on 05/06.03.2009, a boy came to their PCO booth at about 11/11.30 a.m., had taken aside one PCO phone and talked to someone. He further deposed that he did not know what that boy had talked. He further deposed that after completion of conversation, that boy put the phone in PCO booth, paid the charges and went away from the PCO SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 42 of 45 booth. During his testimony, PW11 identified accused Raju as the same boy who had made call from his PCO booth on 05/06.03.2009. However since the identity of accused Raju has not been proved on record as assailant, therefore his identification by PW11 is of no consequence.
CONCLUSION
32. (i) The motive on the part of accused Sanjay (A1) to kill complainant/PW4 Kailash has not been proved on record as PW19 Asha Devi and PW20 Vijender (wife & nephew respectively of complainant) have admitted having not disclosed the factum of accused Sanjay (A1) talking with Asha Devi to complainant prior to incident and hence there was no occasion or reason for complainant to scold accused Sanjay (A1) and in turn there was no motive on the part of accused Sanjay (A1) to get rid of him.
(ii) The alleged earlier telephonic threat call to complainant from Shamli (U.P.), has not been connected or linked to be at the instance of accused Sanjay.
(iii) The factum of having seen the accused Sanjay and Sonu on a different motorcycle on the date of incident in aforesaid manner as per 2 nd supplementary statement dated 07/03/2009 and subsequent examinationin chief of complainant PW4, has already been held to be doubtful and afterthought and hence liable to be discarded.
(iv) The identifying of accused Raju as the pillion rider who caused gunshot injury, is also doubtful since PW4 has admitted that pillion SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 43 of 45 rider was wearing monkey cap and hence most part of his face must have been covered and the complainant may not have seen him for more than one or two seconds and thus it was not humanly possible to correctly identify the pillion rider.
(v) Once the identity of pillion rider as accused Raju (A6) is doubtful and admittedly accused Raju had not used any mobile phone for communicating with any other accused, therefore no conspiracy can be proved. Furthermore there is no other evidence qua conspiracy except CDRs of mobile numbers and bald statements of some of the PWs qua the said numbers being used by accused Sanjay (A1), Deepak (A2), Tilak Raj @ Sonu (A3), Mahavir @ Bunty (A5) and Bijender @ Mardhwa (A7) as they were not the subscribers.
(vi) Recovery of live cartridge at the instance of accused Raju (A6) is doubtful.
(vii) There is no admissible and clinching evidence of harbouring the offender u/s 212 IPC against accused Manoj @ Bablu Mental (A4).
FINDING
33. In view of the aforesaid discussion, it is clear that prosecution has not been able to prove its case beyond reasonable doubt and could not connect the accused with the commission of offences. Furthermore it is well settled that if two views are possible, then one favouring the accused is to be taken. Thus even if for arguments sake it is assumed that two views are possible from the record, still benefit has to go to the accused persons. Accordingly accused persons are given benefit of doubt. All the accused SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 44 of 45 persons are acquitted for the offences u/s 120B IPC. Accused Raju (A
6) is also acquitted for the offence u/s 302/471/411 IPC & also u/s 25 & 27 of Arms Act. Accused Manoj @ Bablu (A4) is acquitted for the offence u/s 212 IPC.
34. Accused persons are directed to furnish personal bond in the sum of Rs. 35,000/ with one surety each in the like amount u/s 437A Digitally signed by Cr.P.C. ASHUTOSH ASHUTOSH KUMAR Announced in the Open Court KUMAR (Ashutosh Kumar) Date: 2019.12.23 16:40:38 +0530 On 23rd of December 2019 Addl. Sessions Judge: 04 (North) Rohini Courts: Delhi SC No.58307/2016 FIR no. 67/09 PS Narela State Vs Sanjay & Ors.. Page 45 of 45