Delhi District Court
State vs . : Vishnu Sharma on 23 April, 2018
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT, ROHINI
COURTS: DELHI
Sessions Case No: 618/17
FIR No. : 193/17
U/s : 302 IPC & 27 Arms Act
P.S. : Mahendra Park
State Vs. : Vishnu Sharma
S/o Late Sh. Satya Narayan
Sharma
R/o G-596, Jahangir Puri, Delhi.
Offence complained of : 302 IPC & 27 Arms Act
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of committal : 12.10.2017
Date of Judgment : 23.04.2018
JUDGMENT
1. On 05.07.2017 at about 8.55 PM one lady made a call at 100 number and told that she is calling from F-9Z, Jahangir Puri, PS Mahendra Park, "uski mummy ko Vishnu naam ke aadmi ne goli maar di hai". This call was made from mobile phone number 9810689504. SI Hari Ram was directed to carry out the necessary proceedings. SI Hari Ram along with HC Tale Ram reached the spot i.e. the flat No.F- 10Y, F-11Y, First floor DDA flats Mahendra Park. The blood was lying in the stair case. One empty shell was also lying S.C. No:618/17 State Vs. Vishnu Sharma : 1 :
nearby. They came to know that injured had been removed to BJRM hospital. SI Hari Ram left for the PS leaving HC Tale Ram on the spot to protect the scene of crime. SI Hari Ram also instructed duty officer to call the crime team on the scene of crime. He reached hospital where Shashi Sharma was found admitted. Doctor declared her unfit for statement. Isha Sharma, daughter of Shashi Sharma was found in the hospital but she did not give any statement. No eye witness met him in the hospital. SI Hari Ram came back on the spot. Crime team reached the spot and inspected the scene of crime. Photographs were taken. The exhibits were lifted. Efforts were made to record the statement of Isha Sharma but she did not give any statement. Shashi Sharma was declared unfit for statement. On 06.08.17 Shashi Sharma died and her dead body was brought to BJRM hospital. On 08.08.17 post mortem was got conducted and doctor opined that cause of death in this case was septicemia and spinal shock in a case of gun shot injury to the chest. Efforts were again made to record the statement of Isha Sharma but she did not give any statement. After completion of investigation, the charge sheet against the accused was filed. Ld.MM after complying with the provisions of Sec.208 Cr.PC committed the case to Sessions Court as the offence punishable under Sec.302 IPC is exclusively triable by the Sessions Court. S.C. No:618/17 State Vs. Vishnu Sharma : 2 :
2. Accused was charged for the offence punishable under Sec.302 IPC. Accused pleaded not guilty and claimed trial. Thereafter the case was fixed for prosecution evidence.
3. Prosecution in order to prove its case examined 33 witnesses.
4. Rinku Sharma was examined as PW-1. He deposed after refreshing his memory that on 05.07.17 when he was present at the house of his friend at 8.30/9 PM, his sister Isha Sharma told him on telephone that accused Vishnu Sharma had fired a shot on his mother Shashi Sharma in her (Isha Sharma) presence. He immediately reached the house of his mother where he came to know that his sister had removed his mother to BJRM hospital. He reached hospital where he saw his mother lying in injured condition. His mother was whispering and saying, "Vishnu ne mujhe goli maar di hai. Same day his mother was referred to LNJP hospital and he reached there on his bike. He returned home but his sister stayed in hospital along with the mother. His mother died on 06.08.17. He identified the dead body of mother in the mortuary of BJRM hospital vide statement Ex.PW-1/A. He also received the dead body after post mortem vide memo Ex.PW-1/B. He also deposed that about 4 months prior to the death of his mother, accused threatened his mother to shoot her which he did. S.C. No:618/17 State Vs. Vishnu Sharma : 3 :
5. During cross examination by defence counsel he stated that police met him in the BJRM hospital but he did not give statement to the police. Police also met him in LNJP hospital but he did not give any statement to the police in LNJP hospital. He had not given any thing in writing to the police as he is not an eye witness. He told the police that Vishnu Sharma had done this and Vishnu Sharma was also called in the PS. He also admitted that his sister did not give statement to the police in BJRM hospital as she was threatened. He does not know if his sister refused to give statement to the police. He did not tell the police that on 05.07.17 at about 8.30/9 PM, his sister called him and told that Vishnu Sharma had shot his mother in her presence. He also did not told the police that his mother tol him that Vishnu Sharma fired on her. He stated that he told this fact to the ACP. He was confronted with his statement Ex.PW-1/DA where it was not found mentioned that about 4 months prior to the death of his mother accused threatened to shoot his mother.
6. He admitted that on 27.08.17 he gave a complaint at PS Mahendra Park. The photocopy of the same is admitted by the witness as Ex.PW-1/D. He admitted that in the complaint he has mentioned that he suspect his sister Isha Sharma in the case of murder of his mother. The witness S.C. No:618/17 State Vs. Vishnu Sharma : 4 :
stated that he was mislead by his relations/neighbors but he does not know their names. He also admitted that in the complaint he has mentioned that Isha Sharma also attacked the police with intention that no post mortem be conducted on the dead body. He also mentioned in the complaint that Isha Sharma had taken her mother at some unknown place. He deposed that Isha Sharma took his mother to Laxmi Nagar which he was not knowing. His mother told Isha Sharma that she does not want to go Jahangir Puri as she was having fear of police of PS Mahendra Park. He denied the suggestion that he has mentioned the true facts in the complaint Ex.PW-1/BD.
7. Dr. Deepak Kumar, Medical officer BJRM hospital was examined as PW-2. He deposed that on 05.07.17 at 9.03 PM Shashi Sharma wife of Sh. S.N. Sharma, 62 years female was brought to the hospital by her daughter Munna with alleged history of gun shot at chest as told by Munna. There was 0.5 x 0.5 round wound over right side chest below clavicle. The patient was referred to SR Surgery. The patient was unfit to give statement. He proved the MLC as Ex.PW- 2/A. He also deposed that inadvertently he mentioned the time as 9.03 AM instead of 9.03 PM in the MLC. The testimony of the witness has gone unchallenged and uncontroverted.
S.C. No:618/17 State Vs. Vishnu Sharma : 5 :
8. Dr. Atul Jain, Sr. Surgeon, BJRM hospital was examined as PW-3. He deposed that on 05.07.17 Shashi Sharma was brought to the hospital by relative with alleged history of gun shot injury to the chest. He examined the patient and referred higher centre for further management. His endorsement to this effect is at point X encircled with red ink on MLC Ex.PW-2/A. The testimony of this witness has gone unchallenged and uncontroverted.
9. Inspector Manohar Lal was examined as PW-4. He prepared the scaled site plan at the instance of SI Hari Ram and proved the same as Ex.PW-4/A. The testimony of this witness has gone unchallenged and uncontroverted.
10. ASI Bhagwan Singh was examined as PW-5. On 06.07.17 he was working as duty officer. On that date at about 3.30 PM SI Hari Ram presented the rukka on the basis of which he registered FIR no.193/17. He proved the copy of FIR as Ex.PW-5/A. The endorsement on the rukka as Ex.PW-5/B. Certificate under sec.65 B of Evidence Act as Ex.PW-5/C. After registration of FIR he handed over the original rukka and copy of FIR to Ct. Prabhjot for presenting the same to SI Hari Ram for the spot. The testimony of this witness has gone unchallenged and uncontroverted.
11. ASI Rajbir was examined as PW-6. He deposed that on 05.07.17 on receipt of call he along with Ct. Ram Avtar, S.C. No:618/17 State Vs. Vishnu Sharma : 6 :
ASI Prashant Kumar and other staff reached F Block, DDA flats No.F-11Y and F-10Y first floor stair case. SI Hari Ram with staff met them there. He inspected the scene of crime and gave his report as Ex.PW-6/A. The photographer took the photographs of the scene of crime. The testimony of this witness has also gone unchallenged and uncontroverted.
12. Ct. Ram Avtar was examined as PW-7. He was the photographer in the mobile crime team which visited the scene of crime on 05.07.17. He took 16 photographs of the scene of crime from the different angles and proved the same as Ex.PW-7/A-1 to PW-7/A-16. Photographs were taken with digital camera. He proved the certificate under Sec.65 B of Evidence Act as Ex.PW-7/B. The testimony of this witness has also gone unchallenged and uncontroverted.
13. ASI Satish was examined as PW-8. On 05.07.17 he was working as duty officer from 4 PM to 12 mid night. At about 8.15 PM he received information from intercom that at F-10Y, Mahendra Park, DDA Park, one person has been shot. He recorded the DD no.31A. He handed over copy of DD to SI Hari Ram, who left the spot with Ct. Tula Ram. He proved the copy of DD as Ex.PW-8/A.
14. On the same day at about 8.55 PM he received information from wireless operator through intercom that "F- 9Z, Jahangir Puri, PS Mahendra Park, Delhi caller lady bol S.C. No:618/17 State Vs. Vishnu Sharma : 7 :
rahi hai ki uski mummy ko Vishnu Sharma naam ke aadmi ne goli maar di hai mobile no.9810689504. He recorded DD no.33A on this information. He passed this information to SI Hari Ram on telephone to take necessary action. He proved the copy of DD no.30A as Ex.PW-8/B.
15. ASI Jaswinder Singh was examined as PW-9. He brought complaint the record that Smt. Shashi Sharma filed complaint no.18153/TC/NWD dt.14.10.16 against Vishnu Sharma made by Shashi Sharma and complaint no.18624/TC/NWD dt.17.10.16 made by Vishnu Sharma against Shashi Sharma. He proved the photographs of the complete record of these complaints as Ex.PW-9/A. The testimony of this witness has gone unchallenged and uncontroverted.
16. HC Anil Kumar was examined as PW-10. He deposed that on the intervening night of 05/06.07.2017 after receiving information he reached at F-10-Y, F-11-Y DDA Flats, 1 st Floor, Mahendra Park, Delhi. SI Hari Ram reached at the spot from BJRM hospital. Crime team reached the spot and inspected scene of crime. The photographer took photographs. On the spot one black colour Hawai chappal and one empty cartridge were found lying in the stair case. Blood was also found on the spot. Crime team officials lifted the blood from the spot in gauze piece and handed over to S.C. No:618/17 State Vs. Vishnu Sharma : 8 :
IO. IO put the same in plastic container, sealed it with the seal of HR and seized. Blood stained stones were broken from the stair case put in plastic container, sealed with the seal of HR and seized. The empty cartridge was also lifted from the spot put in a plastic container, sealed with the seal of HR and seized. The black colour Hawai chappal found in the stair case was put in a plastic container sealed with the seal of HR and seized. IO came to know that patient Shashi Sharma has been shifted to LNJP hospital. IO and he went to LNJP hospital where Shashi Sharma was found admitted. IO moved application for recording the statement of patient Shashi Sharma. The doctor declared patient unfit for statement at 2:20 am on 06.07.2017. Isha Sharma daughter of patient did not give any statement. No eye witness was found in the hospital. Thereafter, they returned to the police station.
17. During cross examination by the defence he deposed that no eye witness was found on the spot. He admitted that IO asked Isha Sharma to make the statement but she did not make any statement.
18. Dr. Mukesh Kumar, SR Forensic Medicines, BJRM hospital was examined as PW-11. He deposed that he conducted post mortem on the dead body of deceased Shashi Sharma w/o Sh. S.L. Sharma aged 62 years. After S.C. No:618/17 State Vs. Vishnu Sharma : 9 :
post mortem he opined that the cause of death in this case is septicemia and spinal shock in a case of gun shot injury to the chest. After post mortem blood on gauze and viscera were preserved and sealed, these were handed over to the IO along with sample seal. He proved the post mortem report as Ex.PW11/A. The testimony of the witness has gone unchallenged and uncontroverted.
19. Dr. N.S. Hadke from Maulana Azad Medical College was examined as PW-12. He deposed that on 05.07.2017 at 11:25 pm the patient Shashi Sharma aged 62 years female was brought by Dr. Sarfaraz Ahmad of BJRM Hospital with alleged history of gun shot injury to the right side of chest. She was referred to the surgery emergency at 12:45 am. As per the history given by the patient there was alleged fire arm injury to the chest on 05.07.2017 at about 9:00 pm. She was taken to BJRM hospital where primary treatment was given and referred to LNJP Hospital.
20. Patient was having one entry on the right side of the chest infraclavicular region in mid clavical line with oozing of blood. Exit wound was in left scapular region 1 cm below the scapular blade. The patient was treated and discharged on 28.07.2017. At the time of discharge patient was fully conscious and haemodynamically stable. She was advised absolute bed rest with dorsolumbar brace along with S.C. No:618/17 State Vs. Vishnu Sharma : 10 :
spinecare, catheter and paraplegia care at home with passive physiotherapy of lower limbs. CE CT Chest report dt.06.07.2017 is proved as Ex.PW12/A. The discharge summary is proved as Ex.PW12/B. The testimony of this witness has gone unchallenged and uncontroverted.
21. HC Mahesh Kumar was examined as PW-13. He deposed that on 08.08.2017 he was posted at DIU North West District, Delhi. On that day he along with Inspector Samar Singh went to mortuary of BJRM Hospital. IO got conducted the post mortem on the dead body of Shashi Sharma. After post mortem the dead body was handed over to the Rinku and Deepa Sharma vide memo Ex.PW1/B. IO seized the viscera, blood sample along with sample seal vide seizure memo Ex.PW39/A. Thereafter, they returned to the PS and deposited case property in malkhana of PS:
Mahendra Park. The testimony of witness has gone unchallenged and uncontroverted.
22. W/Ct. Niramala was examined as PW-14. She deposed that on 14.09.2017 she was posted at DIU North West. On that day she along with Inspector Samar Singh reached PS: Mahendra Park and from there they went to Flat No.10Y and F11Y, First Floor DDA Flat, Jahangir Puri. SI Hari Ram along with Inspector Manohar Lal came there.
Inspector Manohar Lal inspected the spot and prepared S.C. No:618/17 State Vs. Vishnu Sharma : 11 :
rough notes at the instance of SI Hari Ram. Thereafter, she along with Inspector Samar Singh came back to PS:
Mahendra Park. Her statement was also recorded.
23. During cross examination she stated that she never visited the scene of crime before 14.09.2017.
24. ASI Yashpal Singh was examined as PW-15. On 15.09.2017 he was posted at DIU North West. On that day he joined the investigation with Inspector Samar Singh. On that day he had taken two duly sealed parcels from MHC(M) for depositing the same in FSL. He went to FSL but the parcels could not be deposited in the FSL. Thereafter, he went to the mortuary of BJRM hospital where Inspector Samar Singh moved an application with relevant papers, sealed parcels having clothes of the deceased along with sample seal of BJRM hospital. He came back to the police station and deposited back the parcels in the malkhana of PS: Mahendra Park. The testimony of the witness has gone unchallenged and uncontroverted.
25. Smt Sudesh Rani was examined as PW-16. She deposed that in July 2015 she along with her husband was present at her house i.e. F-11Y, First Floor DDA flat, Jahangir Puri. At about 8:30 or 8:35 pm she was preparing dinner in the kitchen. She heard a noise and came out of her house.
She heard the public persons saying "goli chali". The person S.C. No:618/17 State Vs. Vishnu Sharma : 12 :
who had sustained bullet injury had already been taken to the hospital. She does not know the name of the person as she is new in that area. She has not seen anything. She does not know who had fired. She was cross examined by Ld. APP for the State but she did not support the prosecution case. She was confronted with Ex.PW16/A her previous statement given to the police. She denied the suggestion that Vishnu Sharma fired upon Shashi Sharma. She stated that she cannot identify Vishnu Sharma. Vishnu Sharma was also pointed out to her despite that she failed to identify him. No question was put to the witness by the defence.
26. Smt. Ram Kali was examined as PW-17. She stated that she does not know anything about the present case. She had not heard or seen anything about the present incident.
She cannot identify any persons involved in the present case. She was cross examined by Ld. Addl. PP for the State but she did not support the prosecution case. She denied the suggestion that she had seen Vishnu firing on Shashi Sharma. She was confronted with her statement Ex.PW17/A. Vishnu Sharma was pointed out to her, despite that she failed to identify him. No question was put to the witness by the defence.
27. SI Harish Chander Pathak was examined as PW-18. He deposed that on 03.10.2017 he was posted at CPCR S.C. No:618/17 State Vs. Vishnu Sharma : 13 :
PHQ, New Delhi. On that day he took the print outs of three PCR forms all dated 05.07.2017. The print outs of PCR forms are Ex.PW18/A, Ex.PW18/B and Ex.PW18/C respectively. He also issued the certificate u/s 65B Indian Evidence Act which is Ex.PW18/D. The testimony of the witness has gone unchallenged and uncontroverted.
28. Dr. Abhishek Arora Sr. Resident LNJP Hospital was examined as PW-19. He deposed that on 11.07.2017 he had examined MR Dorsolumber spine with whole spine screening of patient Shashi Sharma. After examining the MR he found that there was a burst fracture of D-2 with vertebral body with retropulsion of fracture fragments with spinal cord edema at the same level with discodegenerative changes in multiple cervical and lumber levels. He proved his report as Ex.PW19/A. The testimony of the witness has gone unchallenged and uncontroverted.
29. SI Hari Ram was examined as PW-20. He deposed that on 05.07.2017 he was on emergency duty in PS:
Mahendra Park along with HC Tale Ram. On that day DD No.33A was marked to him and he along with HC Tale Ram reached the place i.e. at flat No.F-10Y, F-11Y First Floor, DDA flats, Mahendra Park. He found blood lying on stair case and one empty shell was also lying there. On the spot he came to know that injured had been taken to the BJRM S.C. No:618/17 State Vs. Vishnu Sharma : 14 :
Hospital by the family members. He left HC Tale Ram on the spot. He went to BJRM hospital. He also made call to duty officer for sending crime team on the spot. From the BJRM hospital he collected the MLC of Shashi Sharma. SHO and the ACP also visited BJRM Hospital. Patient was unfit for statement and was referred to LNJP Hospital. In the hospital doctor had also handed over to him one sealed parcel containing the clothes of injured Shashi as well as one sample seal of FMT BJRM Hospital. He seized the same vide memo Ex.PW20/A. He also met Isha Sharma daughter of injured Shashi. He requested Isha Sharma to make statement but she could not make any statement. No eye witness met him in the hospital. Thereafter, he returned to the spot. Crime team was there. ASI Rajbir Incharge crime team inspected the scene of crime. Ct. Ram Avtar photographer of the crime team took the photographs of scene of occurrence. He also corroborated the testimony of PW-20 regarding lifting of the exhibits from the spot. He proved the seizure memo of the blood taken in the gauze from the spot as Ex.PW20/B. The seizure memo of empty cartridge as Ex.PW20/C. The blood stained concrete from the spot was seized vide memo Ex.PW20/D. One chappal of black colour was lifted from the seized vide memo Ex.PW20/E. While he was on the spot he got the information S.C. No:618/17 State Vs. Vishnu Sharma : 15 :
that injured had reached LNJP hospital. He went to the LNJP hospital and moved application before the doctor seeking permission to record the statement. The doctor gave in writing at 2:20 am that the patient is not able to give statement. He also met Isha Sharma in the hospital and requested her to make statement but she refused to make statement. From the hospital he returned to the police station, prepared rukka Ex.PW20/F on the basis of MLC and the contents of DD No.33A. He handed over the rukka to the duty officer. Duty officer registered the FIR and the investigation was marked to him. While he was at LNJP Hospital police officials apprehended accused Vishnu from G.S. Restaurant Ashok Vihar where he was working and brought him to PS: Mahendra Park. FSL Team was called by SHO. The FSL officials took the handwash of Vishnu. SHO produced five pullandas before him. He sealed the said pullandas with the seal of HR and seized vide memo Ex.PW20/G. He interrogated Vishnu Sharma and arrested him vide arrest memo Ex.PW20/H. His personal search was conducted vide memo Ex.PW20/I. Accused Vishnu also made the disclosure statement Ex.PW20/J. He recorded the statement of witnesses. On 08.07.2017 accused was produced before the court and he obtained one day police custody remand.
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30. During police custody remand on 09.07.2017 the search of the house of accused was conducted vide memo Ex.PW20/K and of his shop vide memo Ex.PW20/L in search of weapon but weapon could not be recovered. After the PC remand was over accused was sent to judicial custody.
31. He visited LNJP hospital continuously upto 11.07.2017 for recording statement of injured but injured was not fit for statement. After 11.07.2017 the further investigation was transferred to DIU North West District.
32. During cross examination by the defence counsel he stated that he had no knowledge if the hand wash of accused taken by FSL Officials had been sent to FSL for analysis. He denied the suggestion that after apprehension of accused he was let out and again falsely apprehended and implicated in this case on 07.07.2017. He admitted that arrest of accused was effected on 07.07.2017 at 10:25 pm. Prior to the apprehension of accused Vishnu the statement of public witnesses was not recorded. He cannot tell how many persons by the name of Vishnu were residing in Mahendra Park, Ashok Vihar at that time. The identity of the accused was established during investigation and only after establishing his identity he was apprehended. He denied the suggestion that Ram Kali and Sudesh Rani had not made any such statement or that he fabricated their statements. He S.C. No:618/17 State Vs. Vishnu Sharma : 17 :
denied the suggestion that he obtained the statements of the restaurant owner and the manager but as the same were contrary to the case he torn off the same. He denied the suggestion that accused has been falsely implicated.
33. W/SI Sangeeta was examined as PW-21. On 28.07.2017 she was posted at DIU North West. On that day the case file was assigned to her for further investigation. She along with Ct. Virender, Ct. Brijesh and SI Vikas visited the house of deceased Shashi Sharma i.e. 9Z DDA Flats Jahangir Puri as well as LNJP Hospital for recording statement of Shashi Sharma and Isha Sharma but they did not meet her.
34. On 06.08.2017 she received information that injured lady Shashi Sharma had expired and her dead body was taken to her house at Jahangir Puri. Thereafter, she along with Ct. Kuldeep and other staff of PS: Mahendra park reached the said house. She shifted the body to the mortuary of BJRM Hospital and got it preserved through Ct. Kuldeep. Section 302 IPC was added after discussion with the senior officials. She examined Rinku Sharma regarding where abouts of her mother Shashi Sharma and sister Isha Sharma but he was not knowing anything. Thereafter, further investigation of the present case was marked to another IO.
35. During cross examination she denied the suggestion S.C. No:618/17 State Vs. Vishnu Sharma : 18 :
that Rinku told her that his sister had taken his mother to some unknown place. She does not know who brought the dead body of Shashi to home but Isha was present there when she reached. She admitted that till the investigation remained with her Isha Sharma did not make any statement before her. She also admitted that on the day dead body was brought home Isha Sharma said the she will not allow the post mortem on the body to be done. She passed on this information to Senior police officials i.e. DCP and SHO. SHO also came on the spot.
36. SI Manjeet Singh was examined as PW-22. He deposed that on 11.07.2017 the investigation of this case was assigned to him. He tried to record the statement of injured Shashi Sharma but she did not make her statement saying that she will make the statement before Magistrate. He also tried to convince her daughter but she also said that the statement will be recorded before the Magistrate. Thereafter, the investigation was assigned to DIU and he handed over the file to MHC(R).
37. During cross examination by the defence he admitted that neither injured nor Isha Sharma co-operated with him.
38. Ms. Deepa was examined as PW-23. She deposed that on 05.07.2017 her sister Munna made a telephone call to her but she could not attend the same. There were many S.C. No:618/17 State Vs. Vishnu Sharma : 19 :
missed calls between 8:33 to 10:45 pm. At 11:00 pm she again received the call from her sister Munna @ Isha Sharma. Isha Sharma told her on telephone "Mummy ko Vishnu ne goli maar di". She reached LNJP hospital and met her mother and sister. In the hospital her mother told her "Vishnu ne goli maar di". Her sister Isha sharma was in bad shape and bitterly saying "Vishnu ne goli maar di, Vishnu ne goli maar di". She was not present at the scene of crime.
39. During cross examination by Ld. APP she admitted that on 08.08.2017 she went to the mortuary of BJRM hospital where she identified dead body of her mother vide statement Ex.PW23/A. She received dead body of her mother vide document Ex.PW1/B.
40. During cross examination by the defence she stated that she had not given any statement to the police team till date. She never told the police that she received call from Munna who told her that "Vishnu ne Mummy ko goli maar di". She reached the hospital at about 11:30 or 11:45 pm. She remained in the hospital through out the night and returned to home only on the next day in the evening. She does not know if police visited the hospital. Her mother was in ICU at that time. She did not visit the police station in the evening after return from the hospital to tell this fact. Lateron also she had not gone to the police station to tell the facts told to her S.C. No:618/17 State Vs. Vishnu Sharma : 20 :
by Munna. She told the police lateron in the hospital when she visited the hospital that her mother told her that "Vishnu ne goli maar di". There is no such statement on record where she told the police that her mother told her that "Vishnu ne goli maar di" and in her statement dt. 08.08.2017 there is no such mention. She admitted that her mother was discharged from the hospital after treatment. Isha Sharma took her mother to Laxmi Nagar, Pandav Nagar side and took some accommodation on rent as her mother was frightened to return home. She also visited that place where Isha Sharma was living with her mother after discharge from the hospital. She had never taken police to that place where her mother was kept by Isha Sharma to get the statement of her mother recorded. She never disclosed to the police the address where her mother was kept by Isha Sharma after discharge from the hospital. She does not know if her brother had lodged a complaint against Isha Sharma. She denied the suggestion that she and Isha Sharma deliberately did not produce Shashi Sharma before the police.
41. When it was asked from her that she and her sister did not produce her mother before the police so that truth may not come out. She stated that, "mujhe to kuchh nahi pata, meri behan to baar baar Vishnu ka naam le rahi thi aur meri maa bhi Vishnu ka naam le rahi thi, main to kisi Vishnu ko S.C. No:618/17 State Vs. Vishnu Sharma : 21 :
nahi jaanti aur pehchanti".
42. She denied the suggestion that her mother did not say anything to her when she visited the hospital on 05.07.2017. She also denied the suggestion that her mother wanted to go to the police to tell the truth but her sister did not allow her mother to meet the police. She stated that "police wale aatey to meri maa se miltey aur police ne meri maa ka bayan bhi likha tha jo mujhe baad mein pata chala". In the same breath she also stated that she does not know whether the person who recorded statement of her mother was police official or was from any other department.
43. Ct. Suresh was examined as PW-24. He deposed that on 29.09.2017 he joined the investigation with Inspector Samar Singh. They reached the area of PS: Mahendra Park for serving notice on Isha Sharma. One W/ASI was also joined from PS: Mahendra Park. Thereafter, they reached DDA flats F-block second floor. The flat was found bolted from inside. They knocked on the door but occupant did not open the door. Therefore, the notice could not be served. Thereafter, they returned to PS: Mahendera park. He collected the exhibits from the MHC(M) of Mahendra Park for depositing in the biology division and ballistic division vide two different RC's. He went to FSL and deposited the exhibits of Biology in FSL and obtained the S.C. No:618/17 State Vs. Vishnu Sharma : 22 :
acknowledgement. The exhibit of ballistic division could not be deposited. He went back to PS: Mahendra park and deposited back the remaining case property in the malkhana. He also handed over the acknowledgement of FSL to MHC(M) of PS: Mahendra Park. No body tampered with the case property till the same remained in his possession.
44. During cross examination he stated that they had gone to the flat of Isha Sharma for service of notice of court. The notice was issued as she was not appearing before the court.
45. Ravi Rathod was examined as PW-25. He deposed that he is working as manager in SGF Restaurant near Satyawati college, Ashok Vihar. Accused used to pack the food in the restaurant for delivery to the customers and work from 6 pm to 12 midnight.
46. On 05.07.2017 he was working as Manager. Accused joined his duty at 6:00 pm and at about 9:30 pm police officials of PS: Mahindra Park came to the restaurant and asked about Vishnu Sharma. He informed the police that accused is working in the said restaurant from 6:00 pm. The accused was caught by the police officials and was taken away by the police. Thereafter, he started packing the food material which accused was packing.
47. He was cross examined by APP for the State but he S.C. No:618/17 State Vs. Vishnu Sharma : 23 :
did not support the prosecution case. He was also confronted with his statement Ex.PW25/A. He denied the suggestion that on 05.07.2017 the accused complained of stomach disorder and left at about 9:15 pm or that he does not know where he had gone during the said period. He denied the suggestion that accused was not taken by the police from the restaurant on 05.07.2017 at about 9:30 pm. No question was put to the witness by the defence.
48. Ct. Prabhjyot Singh was examined as PW-26. He deposed that on 06.07.2017 duty officer ASI Bhagwan Singh handed over to him the copy of FIR and original rukka for delivering the same to SI Hari Ram. He reached at F-10-Y and F-11-Y First Floor, DDA Flat Mahendra Park and handed over the original rukka and copy of FIR to SI Hari Ram. He along with SI Hari Ram and HC Tale Ram went in search of accused in the area of A-Block, B-Block and C-Block of Jahangir Puri but no clue was found. The testimony of this witness has gone unchallenged and uncontroverted.
49. Ct. Amit was examined as PW-27. He deposed that on 08.07.2017 he along with SI Hari Ram and accused Vishnu Sharma left for Rohini Court Complex. IO obtained the police custody remand of the accused. Accused led them to the scene of crime i.e. F-10Y, F-11Y DDA Flats, Mahendra Park. The scene of crime was thoroughly inspected but nothing S.C. No:618/17 State Vs. Vishnu Sharma : 24 :
was found. Thereafter, accused led them to SGF Restaurant, Ashok Vihar market near Saraswati college where Deepak Rathore and other persons met them. IO made inquiries from Deepak Rathore and others. Accused was interrogated but he did not reveal anything regarding the weapon. Accused was taken to BJRM hospital where he was medically examined. Accused was sent to the lockup after serving good. He identified the accused.
50. During cross examination he denied the suggestion that Deepak Rathore informed SI Hari Ram that accused came in the restaurant at about 6 pm and remained in the restaurant till 9:30 pm or that police officials of PS: Mahendra Park reached the restaurant at 9:30 pm and took the accused with them. He denied the suggestion that accused did not make any disclosure statement or that accused is not involved in the present offence as he was working in the above name restaurant from 6:00 pm onwards. He denied the suggestion that accused has been falsely implicated.
51. HC Tale Ram was examined as PW-28. He deposed that on 05.07.2017 after receiving DD No.33A he along with SI Hari Ram reached the spot. Blood was found lying in the stair case and empty cartridge was also lying there. They came to know that injured had been removed to BJRM hospital. SI Hari Ram went to BJRM Hospital leaving him on S.C. No:618/17 State Vs. Vishnu Sharma : 25 :
the spot. The crime team was called. After some time IO also came back on the spot. Crime team inspected the scene of crime and took the photographs. He corroborated the testimony of PW10 and PW-20 regarding lifting of exhibits from the spot and seizure of the same. He also corroborated the testimony of PW-20 regarding the handing over of pullandas by SHO and seizure of the same, the arrest of the accused and pointing out.
52. During cross examination by the defence he stated that no eye witness was found present on the spot or met the IO and SHO in his presence till he remained on the scene of crime. He denied the suggestion that he did not visit the scene of crime or that accused has been falsely implicated.
He denied the suggestion that accused had not made any disclosure statement.
53. W/HC Anita was examined as PW-29. She deposed that on 26.09.2017 she joined the investigation. On that day she along with Inspector Samar Singh went to obtain the statement of Isha Sharma and reached DDA flats Jahangir Puri but the statement could not be obtained. From there they reached at the mortuary of BJRM Hospital. Inspector Samar Singh collected the subsequent opinion from the doctor and also the sealed parcel with sample seal which is Ex.PW29/A. Thereafter, they returned to the police station. S.C. No:618/17 State Vs. Vishnu Sharma : 26 :
Case property was deposited in the malkhana. On the same day she again joined the investigation along with the Inspector Samar Singh and went to DDA flats to serve notice on Isha Sharma. The notice could not be served as flat was found locked. Thereafter, they returned to the police station. From the police station she collected one sealed wooden box having viscera and some other exhibits for depositing the same in FSL, but the exhibits could not be deposited except the box containing viscera. She obtained the acknowledgement from the FSL. She deposited back the other exhibits in the malkhana and handed over acknowledgement to MHC(M). No body tampered with the case property till the same remained in her possession. No question was put to the witness during cross examination.
54. ASI Brij Mohan was examined as PW-30. He was working as MHC(M). He proved the entries in register No.19 as Ex.PW30/A, Ex.PW30/B. He also proved the RC's as Ex.PW30/C and the acknowledgement of the FSL as Ex.PW30/D. He also made entry at point X against entry No Ex.PW30/E. He proved RC No.139/21/17 as Ex.PW30/E and the acknowledgement of FSL as Ex.PW30/F. He also made corresponding entry against entry No.30/A at point X. He proved the RC No.140/21/17 as Ex.PW30/G. The acknowledgement of FSL is proved as Ex.PW30/H. The S.C. No:618/17 State Vs. Vishnu Sharma : 27 :
corresponding entry made in register No.19 against entry Ex.PW30/A at point X3.
55. On 09.11.2017 FSL result and the wooden box and seal were received from Inspector Samar Singh and he made entry in this regard in register No.19. During the period the exhibits remained in his possession no body tampered with the same. The testimony of the witness has gone unchallenged and uncontroverted.
56. Inspector Samar Singh was examined as PW-31. He deposed that on 06.08.2017 he was posted at DIU North West. This case file was assigned to him for further investigation. He was informed by WSI Sangeeta that dead body of Smt. Shashi Sharma was got preserved in the mortuary of BJRM Hospital. He perused the file and found that no weapon of offence has been recovered. He also came to know that accused Vishnu Sharma is in J/C. There was no statement of Smt. Shashi Sharma on the file. He informed the family member of deceased including her daughter Isha Sharma that the post mortem would be conducted on 07.08.2017. On 07.08.2017 he reached BJRM Hospital. There the relatives of the deceased met him. The post mortem was not conducted on that date as the complete documents of treatment of Shashi Sharma at LNJP Hospital were not available. ASI Devender went to LNJP Hospital with S.C. No:618/17 State Vs. Vishnu Sharma : 28 :
application Ex.PW31/A and collected the treatment documents of Smt. Shashi Sharma which he placed on record.
57. On 08.08.2017 he went to BJRM Hospital along with HC Mahesh and met the family members of deceased. He prepared the inquest paper Ex.PW31/B and Ex.PW31/C. Deepa Sharma identified the dead body vide memo Ex.PW23/A and Rinku Sharma identified the body vide memo Ex.PW1/A. He moved application Ex.PW31/D for the post mortem. Post mortem was conducted on the body and the report is Ex.PW1/A. After post mortem the dead body was handed over to the relatives vide memo Ex.PW1/B. After the post mortem doctor handed over to him wooden box, envelope duly sealed and two sample seals which he seized vide memo Ex.PW13/A. He recorded the statements of witnesses and deposited the case property in the malkhana of PS: Mahendra Park. No relatives of the deceased gave the statement about the incident dt.05.07.2017. The post mortem report was collected on 13.09.2017. On 14.09.2017 Inspector Manohar Lal accompanied him along with W/Ct. Nirmala and SI Hari Ram. Inspector Mahohar Lal took the measurement and prepared rough notes on the spot. He recorded the statements of witnesses. He requested Isha Sharma to join the proceedings but she refused. S.C. No:618/17 State Vs. Vishnu Sharma : 29 :
58. On 15.09.2017 he along with ASI Yashpal went to PS:
Mahendra Park from where the exhibits were collected. He moved application for subsequent opinion of the Autopsy surgeon. He placed the exhibits and the application before the Autopsy surgeon who gave the subsequent opinion and placed the same on record.
59. On 16.09.2017 he collected the crime scene report from ASI Rajbir and also the photographs He recorded their statements.
60. On 19.09.2017 he collected the previous involvment of accused from PS: Jahangir Puri and placed on record.
61. On 25.09.2017 he collected the scaled site plan and placed the same on record.
62. On 26.09.2017 he along with HC Anita went to mortuary of BJRM Hospital and collected the exhibits and deposited the same in malkhana.
63. On 27.09.2017 he moved application for recording the statement of Isha Sharma u/s 164 Cr.PC which was listed for 29.09.2017.
64. On 28.09.2017 he along with HC Anita went to the house of Isha Sharma for serving notice but she could not be served as the door of the house was not opened from inside.
65. He sent the exhibits to FSL. On 29.09.2017 he along with Ct. Suresh and W/ASI Shashi from PS: Mahendra Park S.C. No:618/17 State Vs. Vishnu Sharma : 30 :
again went to the house of Isha Sharma for serving notice but the door was found bolted from inside and no one responded.
66. He collected the PCR form and recorded the statements of witnesses. Isha Sharma did not give any statement u/s 161 Cr.PC or u/s 164 Cr.PC. After completion of investigation he prepared the charge sheet and filed the same in the court.
67. On 21.12.2017 he recorded the statement of Ms. Isha Sharma and filed the supplementary charge sheet before the Ld. ACMM. He collected the FSL result and placed the same on record.
68. During cross examination he stated that on 08.08.2017 witnesses Deepa Sharma and Rinku Sharma did not make any statement except the identification of dead body. No criminal record of Vishnu was found at PS:
Mahendra Park. Shashi Sharma was found involved in two cases. The witness stated that there is one more case against Vishnu Sharma. He did not try to find out in whose name mobile phone No.9810689504 is registered. This mobile phone was used by Isha Sharma. He knew that this number was used by Isha Sharma as he used to talk with Isha Sharma on this number. He made 5-6 attempts to record statement of Isha Sharma. He visited the house of S.C. No:618/17 State Vs. Vishnu Sharma : 31 :
Isha Sharma for this purpose but the door was never opened. He did not verify the antecedents of Isha Sharma. He denied the suggestion that Ravi Rathore told in his statement that Vishnu Sharma was with him from 6 pm to 9;30 pm. He denied the suggestion that he recorded false statement of Isha Sharma after PW-16 and PW-17 did not support the prosecution case in order to fill up the lacuna.
69. Sh. M.L. Meena Sr. Scinetific officer Chemistry was examined as PW-32. He deposed that on 28.09.2017 he conducted the chemical analysis of viscera and proved his report as Ex.PW32/A. The testimony of the witness has gone unchallenged and uncontroverted.
70. Isha Sharma was examined as PW-33. She deposed that her mother Shashi Sharma was running a patri near PS:
Mahendra Park. She used to sell cosmetics Items and garments. On 05.07.2017 she took one bag containing items of shop of her mother to her house as her mother was closing the shop. She reached home at about 8:25 pm. She saw her mother from the stair case of their house. Her mother was coming upstairs. Her mother had reached in between the flat No.F-10Y and F-11Y. She (Isha Sharma) was coming down to help her mother and was in between F- 9-Y and F-12-Y. Her mother said, "ruk koi jeene se uppar aa reha hai main doosra thaila usey pakdati hoon vo uppar S.C. No:618/17 State Vs. Vishnu Sharma : 32 :
chhod ayega". At the same time Vishnu came in the stair case and fired a shot on her mother. Her mother fell down immediately. By the time she could realize as to what had happened Vishnu pointed the pistol towards her, being afraid she ducked. Vishnu again pointed pistol towards her mother and said, "tu kahan tak jayegi, dekhta hoon kahan tak complaint karegi, jo complaint karni hai karle". She raised noise, "Vishnu ne meri mummy ko goli maar di". One lady from flat No. F-11-Y came out. That lady inquired from her (Isha Sharma) as to what had happened. Isha Sharma told that lady "Vishnu ne meri mummy ko goli maar di". She requested that lady to stay near her mother. She picked up the thaila which her mother was carrying and went to her house. She made a call at 100 number from her mobile No.9810689504 and said "meri mummy ko Vishnu goli maar gaya". She came down stairs and rushed towards PS: Mahendra Park. She requested the police officials on duty to take her mother to the hospital and also said that "Vishnu Meri mummy ko goli maar gaya hai". On the way to police station also she was shouting "Vishnu Meri mummy ko goli maar gaya hai". Then she came back to the spot from the police station. Her mother was brought down from the stair case. She removed her mother to BJRM Hospital in E- rickshaw. She stayed in the BJRM Hospital for about 2½ or 3 S.C. No:618/17 State Vs. Vishnu Sharma : 33 :
hours. Thereafter her mother was shifted to LNJP Hospital.
71. On 06.08.2017 in the morning hour her mother died.
72. On 28.07.2017 her mother was discharged from LNJP Hospital. She took her mother to Laxmi Nagar as she was not interested to go home at Mahendra Park. Her mother was under fear and she said "Tujhey koi goli maar jayega".
She could not take her mother to the third floor of house of Mahendra Park. Therefore, she took her to Laxmi Nagar, Delhi and also for the reason that LNJP Hospital was near to Laxmi Nagar instead of Mahendra Park. Her sister Sheetal @ Deepa was also knowing that she along with her mother was residing in Laxmi Nagar after discharge from LNJP Hospital. She identified the accused correctly.
73. She also stated that earlier in the year 2016 her mother filed a case against Vishnu Sharma. Photocopy of the signed statement of her mother is Ex.PW33/A. Having signature of her mother at point A. The photocopy of the complaint given by her mother dt. 28.09.2016 is Ex.PW33/B. Another photocopy of the complaint is Ex.PW33/C. Her mother also gave a complaint before International Commission for Women copy of which is Ex.PW33/D. Her mother gave statement in LNJP Hospital and she recorded the same in video graph. The two CDs are Ex.PW33/E and Ex.PW33/F respectively. Police officials visited LNJP hospital S.C. No:618/17 State Vs. Vishnu Sharma : 34 :
on 12.07.2017. Her mother requested them for recording her statement before Magistrate. She took the photograph of said police official during said time in her mobile and the photograph is Ex.PW33/G and PW33/H.
74. During cross examination she stated that it takes only 5 second to reach PS: Mahendra Park from her house. She met one beat official of PS: Mahendra Park but does not remember his name. She informed beat officer about the incident. No police official present in the PS accompanied her. Public persons present in the police station accompanied her. She does not know at what time they reached BJRM hospital. No neighbour or public person accompanied her to BJRM Hospital. Police reached BJRM hospital after about 1 or 1½ hour. Doctor did not inquire from her as to how her mother sustained injury. They only asked her name and name of injured. She told the doctor that Vishnu caused fire arm injury to her mother. She does not know the name of the police official who came to BJRM Hospital. ACP also came to the hospital. She told the ACP that Vishnu Sharma caused fire arm injury to her mother and not to any other police official. Police also visited the hospital at about 4 or 5 am on 06.07.2017. Those police officials did not meet her and therefore she could not tell them that Vishnu fired at her mother. Those police officials only met her S.C. No:618/17 State Vs. Vishnu Sharma : 35 :
mother. She does not know if the police officials met the doctor. During her stay in the BJRM Hospital only one police official visited her and her mother. She did not tell the police official that she is an eye witness to the incident. She only told the ACP. ACP asked some police officials accompanying him to record her statement. That police official also did not record what ever was told by her.
75. Her brother also reached the BJRM Hospital. She did not give her statement in writing to her brother to give it to the police or asked him to meet the senior police officials that police is not listening her. Her mother was shifted to LNJP Hospital in Ambulance. She could meet the doctor at LNJP hospital only after 2 days and during that period her mother was in ICU. She told the doctor at LNJP when she met him that Vishnu Sharma had fired on her mother. That doctor did not call the police even after coming to know this fact. Police of PS: Mahendra Park did not meet her while her mother was in ICU for 2 days. She did not inquire from her brother if he made any complaint to the police regarding incident. Police only came once to meet her mother on 12.07.2017 at LNJP hospital. Specific question was put as follows:
Q. Have you given your written statement either to DCP, Commissioner of Police or any other authority when the police was not taking any action from 08.07.2017 till the S.C. No:618/17 State Vs. Vishnu Sharma : 36 :
discharge of your mother?
Ans. I met Kejariwal and told him the facts and thereafter he directed Mahila Ayog to take action. I had not given my written statement to any police official or to any authority from 08.07.2017 till the discharge of my mother.
76. She stated that she is having copy of statement given before Mahila Ayog but she could not produce the same. She does not know if police came to the hospital after her statement was recorded by the officials of Mahila Ayog. She does not remember the date on which official of Mahila Ayog visited the hospital. Her mother was conscious when official from Mahila Ayog came to the hospital. Media persons also came to BJRM Hospital. She does not know if the police also visited the hospital after the visit of Media. A question was put to the witness as under:
Q. Did you call police from PS: Mahendra Park to record statement of your mother?
Ans. Meri mata ji darti thi main unko akele chhod kar kahan jaati.
77. After the death of her mother she did not visit PS:
Mahendra Park to get her statement recorded. After the death of her mother she continued to reside at Laxmi Nagar. She started residing at Jahangir Puri after the teharvi ceremony of her mother as the death occurred at Laxmi S.C. No:618/17 State Vs. Vishnu Sharma : 37 :
Nagar. Even after she started residing at Mahendra Park, she did not visit PS: Mahendra park to get her statement recorded. She denied the suggestion that once police visited her residence but she did not open the door. She denied the suggestion that she deliberately did not allow her mother to meet police officials after she regained consciousness till her death because if police had met her she would have told the truth to the police.
78. She does not know if her brother had made any complaint against her, leveling allegation that she got murdered his mother or that i.e. why she did not allow him to meet the mother at Laxmi Nagar or that if her brother had come to know that they are residing at Laxmi Nagar he would have taken the police to Laxmi Nagar and her mother would have told the true facts.
79. On 21.12.2017 she herself had gone to police station to get her statement recorded. She did not hand over the earlier complaints, CD's, photocopies of which she had given today in the court to the police officials when her statement was recorded on 21.12.2017. She stated that she had given the copies to DCP and ACP. She does not know if DCP conducted any inquiry on the basis of those complaints.
80. She does not remember if in the year 2005 she made a complaint against Bunty @ Cheeka, his mother and sister S.C. No:618/17 State Vs. Vishnu Sharma : 38 :
Smt. Priya and one Sh. Sushil on which FIR No:779/05 u/s 328/366/376/120B IPC was registered at PS: Jahangir Puri. She does not remember if she visited court in relation to FIR No.779/05.
81. She does not know if she got registered FIR No:65/10 u/s 376 IPC at PS: Mahendra Park against one Pankaj. She does not know if any criminal case is registered against her.
She does not know if FIR No.292/11 PS: Amar colony u/s 120B /384/406/420/494/506 was registered against her. She was arrested once but she does not remember in which case she was arrested. She also remained in judicial custody for one day. She does not remember if she remained in Jail in Delhi or in any other state. She does not know if one case was registered against her in Punjab also. Court questions were put to her:
Q Did you make any call at 100 number after the discharge of her mother from the hospital? Ans. She said No. Another question was put whether she herself or through her brother or sister or through any other known persons moved any application before any court to get recorded her statement or statement of her mother u/s 164 Cr.PC And she said No. S.C. No:618/17 State Vs. Vishnu Sharma : 39 :
Another question was put to her whether she made any complaint to Mahila Ayog to get recorded her statement and statement of her mother u/s 164 Cr.PC.
On which she answered in Yes and produced the copy of application as Ex.PW33/C1 but that is not the application given to Mahila Ayog.
82. During further cross examination by the defence she denied the suggestion that she gave a false statement to the police after filing the charge sheet in order to fill up the lacuna. She never came to the court along with the police to get her statement recorded in this case. She once visited Rohini Court Complex, Room No.117 and on that date case of her mother was listed. She also moved an application before the court that IO is not recording her statement in this case.
83. Thereafter prosecution evidence was closed.
Statement of accused was recorded u/s 313 Cr.PC wherein he denied the entire evidence and stated that he has been falsely implicated. He did not wish to lead evidence in defence. Thereafter, the case was fixed for final arguments.
84. I have heard Ld. APP for the State, Ld. Defence Counsel for accused and perused the record.
85. Ld. APP submitted that there are three eye witnesses in this case. Sudesh Rani PW-16, Ram Kali examined as S.C. No:618/17 State Vs. Vishnu Sharma : 40 :
PW-17 and Isha Sharma PW-33. Ld. APP submitted that PW-16 and PW-17 did not support the prosecution case. PW-33 Isha Sharma fully supported the prosecution case. She is the eye witness. She was coming down to help her mother to remove the bag to their flat when she saw that Vishnu Sharma came up stairs and fired on her mother. He also pointed the gun towards her but she ducked. The fact that she had witnessed the incident is also evident from the fact that she immediately made a call at 100 number from her mobile phone. The record of which has been produced and proved on record as Ex.PW-18/C. She also rushed to the police station raising alarm "Vishnu meri maa ko goli maar gaya" and she removed her mother to the hospital. Ld. APP submitted that she is a natural witness as she was there. She has fully corroborated the prosecution case. She being the daughter there is no reason for her to depose falsely and involve some other person and allowing the actual culprit to go scott free. Ld. APP submitted that even other wise her presence in the hospital is also not disputed. She was there in LNJP hospital also and immediately after incident she reported the matter. Ld. APP submitted that keeping in view the testimony of Isha Sharma, identification of the accused clearly show that she is an eye witness. There is also nothing on record that she has any animosity S.C. No:618/17 State Vs. Vishnu Sharma : 41 :
with the accused to falsely implicate him. It is prayed that keeping in view all these facts and the testimony of Isha Sharma, it is clear that the prosecution has proved the guilt of the accused. It is prayed that accused be held guilty.
86. Ld. Defence counsel submitted that there were only two eye witnesses i.e. Sudesh Rani and Ram Kali examined as PW-16 and PW-17. They have not supported the prosecution case at all when they appeared in the witness box on 18.12.2017.
87. They were cross examined by Addl. PP but of no avail. They were confronted with their statements but they did not support the case of prosecution at all. They also did not identify the accused.
88. Ld. Counsel submitted that when the prosecution saw that their case is going to fail and the only eye witnesses Sudesh Rani and Ram Kali had not supported the prosecution case on 21.12.2017 they introduced another witness Isha Sharma. She has been introduced only to strengthen the prosecution case. Ld. Counsel submitted that the incident is of 05.07.2017 and the statement of Isha Sharma was recorded on 21.12.2017 i.e. after more than five and a half month. Ld. Counsel submitted that this itself creates doubt. If she was an eye witness, she should have immediately got her statement recorded. Police met her at S.C. No:618/17 State Vs. Vishnu Sharma : 42 :
BJRM Hospital as deposed by her. Police also met her in LNJP hospital. Her mother was also discharged from the hospital but she herself did not give any statement and she also did not allow her mother to give the statement. Ld. Counsel submitted that she was repeatedly asked whether she made any complaint in writing if the police was not recording her statement detailing the incident which she did not. She stated that her mother was not having any faith in the police of PS: Mahendra Park. After the discharge she and her mother, according to PW-33, were residing at Laxmi Nagar she could have taken her mother to the Magistrate after discharge but she did not. She also did not make any complaint in writing either to the police or to the court. She also did not approach PS: Laxmi Nagar. Ld. Counsel submitted that this delay and the date of recording of her statement i.e. after 3 days of the recording of statement of Sudesh Rani and Ramkali on 18.12.2017. Clearly shows that this is an attempt to fill up the lacuna which had crept in due to PW-16 and PW-17 not supporting the prosecution case.
89. Ld. Counsel submitted that in fact there is a complaint filed by Rinku Sharma brother of Isha Sharma that he suspect that his sister Isha Sharm is behind the murder of her mother. He had also mentioned in that complaint which is Ex.PW1/DA that Isha Sharma had taken her mother to some S.C. No:618/17 State Vs. Vishnu Sharma : 43 :
unknown place after discharge from the hospital.
90. Ld. Counsel submitted that it is also interesting to note that after the discharged from the hospital she did not contact anybody and it was only on 06.08.2017 that she appeared with dead body. Ld. Counsel submitted that infact Isha Sharma protected her mother from the police so that she cannot tell the truth and went to implicate Vishnu Sharma in false and fabricated case by developing one concocted story that it is Vishnu Sharma who fired on her mother. Ld. Counsel submitted that the conduct of Isha Sharma itself is very suspicious. She was avoiding the police as well as the Magistrate. Notice was sent to her for getting her statement recorded but it has come in the statement of witnesses that she did not open the door of the house when the police reached there to serve the notice. Ld. Counsel submitted that keeping in view all these facts no reliance on the testimony of PW-33 can be placed. It is prayed that as the other two eye witnesses have not supported the prosecution case the benefit be given to the accused and he be acquitted.
91. After hearing the arguments and going through the record I found that according to the PCR record. It was Isha Sharma who made a telephone call and informed that Vishnu uski maa ko goli maar gaya. Isha Sharma alleges that she also run to PS: Mahendra Park and informed there that S.C. No:618/17 State Vs. Vishnu Sharma : 44 :
Vishnu had fired on her mother and then she removed her mother to BJRM Hospital. This incident is of 05.07.2017 at about 8:30 pm. But thereafter, Isha Sharma did not give any statement to the police or to the Magistrate or to any authority till her mother breathed her last on 06.08.2017 that is in one month. Police had met her as well as her mother many times during this period. Statement of her mother could not be recorded as she was unfit for statement. But her mother was discharged from the hospital on 28.07.2017 and thereafter, Isha Sharma took her at some unknown place but when she appeared in the witness box she told that she took her to Laxmi Nagar but she did not disclose that address even when she appeared in the witness box. Infact that address was not known to her brother & to the police. Rather on the other hand her brother PW-1 made a complaint Ex.PW1/DA that he suspect that Isha Sharma is involved in the murder of his mother and also that Isha Sharma had taken his mother to some unknown place after discharge from the hospital. It is also very surprising that Isha Sharma who herself made a call at 100 number as she alleges and she also went to PS: Mahendra Park to tell that Vishnu Sharma had fired on her mother did not give any statement to the police from 05.07.2017 till 21.12.2017. She gave the statement on 21.12.2017 after reaching the police station as S.C. No:618/17 State Vs. Vishnu Sharma : 45 :
has come in the cross-examination that she herself went to police station on 21.12.2017 to get her statement recorded. It is important to note here that on 18.12.2017 the other two eye witnesses Sudesh Rani PW-16 and Ram Kali PW-17 were examined. They both according to the prosecution story witnessed the incident that Vishnu Sharma fired on Shashi Sharma. They both turned hostile and did not support the prosecution case and surprisingly immediately thereafter, Isha Sharma appeared in the police station and got her statement recorded. This fact itself creates doubt that Isha Sharma whom police was requesting repeatedly as has come in the statement of police witnesses to give the statement but was not ready to give the statement appeared in the police station herself immediately after 18.12.2017 and got her statement recorded.
92. The conduct of Isha Sharma is also very very suspicious. She alleges that she had given statement to Mahila Ayog but there is no such statement placed on record. She also alleges that she made a complaint to mahila ayog but again there is no such complaint on record. It is also important to note that after 28.07.2017 when her mother was discharged from the hospital she could have very well approached the police at PS: Mahendra Park or at PS: Laxmi Nagar where allegedly she had taken her mother after S.C. No:618/17 State Vs. Vishnu Sharma : 46 :
discharge from the hospital but she did not.
93. She also did not approach the Magistrate to get her statement recorded u/s 164 Cr.PC rather notice was sent from the court to her to get her statement recorded u/s 164 Cr.PC on the application of the IO but she did not turn up to get her statement recorded.
94. All these circumstances shows that So far as the two eye witnesses, which according to the prosecution witnessed the incident and were reflected as such in the original charge sheet did not support the prosecution case and subsequently Isha Sharma was introduced. The delay in recording her statement of more than 5 months, the conduct of avoiding the police in getting her statement recorded and also statement before the Magistrate smell of suspicion and under the circumstances I am of the opinion that no reliance on her testimony can be placed.
95. There is no explanation coming on record as to why for a long period of five and half month, she eluded the police and did not get her statement recorded. It was not required that she has to go to the police rather police was going to her to record her statement but she refused. In the circumstances I agree with the contention of the Ld. Counsel that her statement was recorded on 21.12.2017 after the other two eye witnesses failed to support the prosecution S.C. No:618/17 State Vs. Vishnu Sharma : 47 :
case only to fill up the lacunae and strengthen the case of prosecution. The witness PW-33 is not believable, reliable and trust worthy and no reliance on the same can be placed. Keeping in view the above discussion in my opinion so far as the eye witnesses are concerned on that account prosecution has failed to prove the guilt of accused beyond doubt.
96. Ld. APP submitted that in this case there are two more witnesses i.e. Rinku Sharma PW-1 and Ms. Deepa PW-23. They both met Shashi Sharma in the hospital when she was under treatment. Both have stated that when they met Shashi Sharma in the hospital Shashi Sharma told them that Vishnu Sharma fired on her. When Isha Sharma appeared in the witness box she also produced CD's Ex.PW33/E & Ex.PW33/F showing the recording of statement of her mother wherein she states that Vishnu Sharma fired on her. Ld. APP submitted that this amounts to dying declaration as Shashi Sharma is referring to circumstance and the fact leading to her death. Ld. APP submitted that keeping in view this dying declaration the accused be held guilty. Ld. APP submitted that there is no such requirement that there must be corroboration to the dying declaration but here there is a corroboration also as medical record also shows that she died due to fire arm injury which is also the fact as told by S.C. No:618/17 State Vs. Vishnu Sharma : 48 :
Shashi Sharma to her son Rinku Sharma PW-1 and to her daughter Ms. Deepa PW-23 and also in her statement recorded in the videography reflected in the CD's Ex.PW33/E and Ex.PW33/F. Ld. APP submitted that keeping in view these facts it is clear that dying declaration stands established and accused be held guilty.
97. Ld. Defence counsel submitted that so far as PW-1 and PW-23 are concerned they were only the witnesses with respect to the identification of the dead body. They have made improvement in their statement that the deceased also told them, when they met her in the hospital, that Vishnu Sharma fired on her. This is the material improvement and therefore cannot be relied. Before appearing in the witness box they never told to the police in their statements recorded u/s 161 Cr.PC that their mother told this fact. Ld. Counsel further submitted that so far as the CD's produced by Isha Sharma are concerned i.e. Ex.PW33/E and Ex.PW33/F there is no such evidence adduced on record that there is no tampering done in those CD's. There is no FSL report and surprisingly, she did not produce these CD's before the police before her statement recorded in the court. Her statement was recorded on 21.12.2017 u/s 161 Cr.PC by the police when she herself went to the police station and at that time also she did not produce these CDs before the police. Ld. S.C. No:618/17 State Vs. Vishnu Sharma : 49 :
Counsel submitted that all these facts clearly show that these CDs were only fabricated and tampered to create false evidence against the accused.
98. Ld. Counsel submitted that so far as Rinku Sharma and Deepa are concerned they are not reliable as they have made improvements in their statements.
99. Ld. Counsel submitted that even otherwise on the basis of that dying declaration the accused cannot be held to be guilty as the prosecution witnesses PW-25 Ravi Rathore makes that dying declaration unbelievable. According to the story of prosecution this incident has taken place at about 8:30 pm as per the charge sheet but according to PW-25 who is the manager of SGF restaurant situated near Satyawati college Ashok Vihar accused was working in that restaurant. Police also says that accused was apprehended from SGF restaurant situated near Satyawati college. Police also conducted search at that place to find out the weapon which corroborates the testimony of Ravi Rathore PW-25. Even otherwise PW-25 is the prosecution witness and he stated that on 05.07.2017 accused reported on duty at 6:00 pm remained on duty upto 9:30 pm when the police came and took him. ld. Counsel submitted that if accused was at SGF restaurant situated near Satyawati college from 6 pm to 9:30 pm then there was no possibility of him firing at Shashi S.C. No:618/17 State Vs. Vishnu Sharma : 50 :
Sharma at 8:30 pm that also at Mahindra Park. Ld. Counsel submitted that PW-1, PW-23 and CDs are not believable and PW-25 Ravi Rathod makes the same impossible as at that time accused was not present near the spot but was at some other place. Ld. Counsel submitted that keeping in view these facts benefit be given to the accused.
100. After hearing the arguments and going through the record I found that so far as PW-1 and PW-23 are concerned according to the prosecution story they were witnesses only with respect to identification of dead body but they both stated that Shashi Sharma also told them, when they met her in the hospital, that Vishnu fired on her. This fact clearly shows that they have made considerable improvement in their statement when appeared in the witness box. They never told the police this fact in their statements recorded under 161 Cr.PC. There are two CDs produced by Isha Sharma PW-33/E and Ex.PW33/F. But as discussed above the conduct of Isha Sharma is not above board and she is not believable. Even otherwise there is no report of FSL on record that these CDs are original and not the secondary copies and also there is no tampering done on these CDs. There is also nothing on record that the voice which is there in those CD's is of Shashi Sharma only and not of any other person. Infact those CD's have not seen the light of the day S.C. No:618/17 State Vs. Vishnu Sharma : 51 :
before PW-33 appeared in the witness box on 12.02.2018. It is important to note that Shashi Sharma died on 08.08.2017 despite that Isha Sharma had not handed over these CD's to the police. Even on 21.12.2017 when she herself went to the police station to get her statement recorded she did not hand over these CD's to the police. Under the circumstances in my opinion these CD's itself become doubtful. Then there is nothing on record that there is no tampering or manipulation done in those CD's and therefore in my opinion no reliance on those can be placed.
101. There is one witness PW-25 Ravi Rathore examined by the prosecution. According to the prosecution story accused was working at SGF restaurant situated near Satyawati College where Ravi Rathore was the manager. Ravi Rathore deposed that on 05.07.2017 accused reported on his duty at SGF restaurant at 6 pm and remained there upto 9:30 pm when the police came and took him. It is also the case of the prosecution that accused was apprehended from SGF restaurant and therefore supports and corroborates the testimony of PW-25. Keeping in view testimony of PW Ravi Rathore it is clear that from 6 pm to 9:30 pm accused did not leave SGF restaurant. If that is the position then Vishnu Sharma, the accused facing trial, cannot be at Flat No.F-10-Y and F-11-Y, DDA flats, first floor, S.C. No:618/17 State Vs. Vishnu Sharma : 52 :
Mahindra Park in the stair case as alleged by the prosecution. Onus was upon the prosecution to prove and establish that it was the accused facing trial who fired on Shashi Sharma which the prosecution failed. Rather the prosecution itself has proved the alibi of accused that he was at SGF restaurant situated near Satyawati college, Ashok Vihar at the relevant time and hence, there is no possibility of him committing the offence.
102. There is no other circumstance to link the accused with the commission of offence. There is no recovery of weapon of offence though the police had conducted the search of his house and also of the work place. There is also no other circumstance that is the finger prints found on the place of occurrence or any belonging of the accused found on the place or any injury mark on his body. Keeping in view all these facts I am of the opinion that the prosecution has failed to prove the guilt of the accused beyond doubt. He is therefore acquitted. He be released on furnishing Personal bond of Rs.20,000/- with one surety of like amount for a period of six months u/s 437A Cr.PC.
Digitally signedby VIRENDER
VIRENDER KUMAR
KUMAR BANSAL
BANSAL Date:
2018.04.23
10:32:41 +0530
Announced in the open court (VIRENDER KUMAR BANSAL)
today on 23.04.2018 ASJ/Pilot Court/North District
Rohini Courts/New Delhi.
S.C. No:618/17 State Vs. Vishnu Sharma : 53 :