Delhi District Court
S.C. No. 04/08 vs Purshottam Kumar(P.O.) on 16 January, 2010
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDITIONAL SESSIONS JUDGE (NORTH) : DELHI
S.C. No. 04/08
State
Vs.
1. Purshottam Kumar(P.O.)
2 Ashok
S/o Sh. Jai Narain Singh
3 Rajesh Rana
S/o Sh. Randhir Singh
4 Satish (P.O)
5 Jasbir (P.O)
FIR No. 101/99
P.S. Roop Nagar
U/S 302/397/120B/34 IPC and 25 & 27 Arms Act
Arguments heard: 02.01.10
Judgment announced: 16.01.10
JUDGMENT
In the present case, charge-sheet was filed by the police against accused Purshottam Kumar @ Kaku, Rajesh Rana @ Bunty and Ashok Kumar @ Shoki in respect of offence U/S 302,397,120B read with Section 34 IPC and U/S 25 and 27 Arms Act. Accused Satish and Jasbir @ Jassu were put in column No. 2 in the charge-sheet as they could not be arrested during the investigation.
2 A charge was framed against accused Purshottam @ Kaku, Rajesh Rana @ Bunty and Ashok @ Shoki by ld. Predecessor on 30.11.99 U/S 302 and 120B IPC with the allegation that on 06.04.99 at 7:05 PM in front of house 2 No. 14/31, Dhariwal Chowk, Shakti Nagar, Delhi, they conspired to do an illegal act and in pursuance of said conspiracy they committed murder of Om Prakash and Bhagirath. A separate charge was also framed by ld. Predecessor on the same day in respect of accused Purshottam @ Kaku in respect of offence U/S 25 Arms Act with the allegation that on 13.04.99 at 7:05 PM in front of house No. WZ-2100, Rani Bagh, Delhi, he was found in possession of a pistol .32 bore without licence or permit and in contravention of notification issued by Delhi Administration. Accused pleaded not guilty to the said charges and claimed trial.
3 During the pendency of case, the co-accused Satish, who was put in column no. 2 in the charge-sheet, was arrested in other case. Accordingly, production warrant was ordered to be issued against him in the present case on 03.08.04 by the ld. Predecessor. After appearance in court, he was released on bail on 05.05.06. Later on, accused Satish absented himself on 31.08.06 and NBWs were ordered to be issued against him. Process U/S 82 CrPC and U/S 83 CrPC was also issued against accused Satish. Later on, he was declared P.O on 01.09.07. by the ld. Predecessor. Accused Purshottam @ Kaku was also declared P.O by ld. Predecessor on 25.08.01. Hence, present judgment will decide the case against accused Ashok and Rajesh Rana.
4 To prove its case, the prosecution has examined 45 witnesses. They are Yogesh Kumar (PW-1), Brijesh Pal Sharma (PW-2), Manoj (PW-3), Vishnu Sharma(PW-4), Om Prakash(PW-5), HC Ram Niwas(PW-6),Constable Suraj Bhan(PW-7), Dr. Sanjay Rohtagi (PW-8) Ravinder Kumar(PW-9), Inspector Jagbir Singh(PW-10), SI Mehak Singh(PW-11), Dr. Komal Singh 3 (PW-12), Dr. L.C. Gupta(PW-13), Kashi Pandit (PW-14), Constable Yoginder Kumar (PW-15), Constable Atul (PW-16), Bhuneshwar(PW-17), Inspector Randhir Singh (PW-18), HC Satya Dev(PW-19), Constable Mahesh Kumar (PW-20), SI Rakesh Khandari (PW-21), Constable Leelu Singh(PW-22), ASI Rakesh Kumar (PW-23), ASI Subhash Chand(PW-24), N.B. Bardhan(PW-25) Dr. G.D. Gupta(PW-26), Dr. O.S. Srivastav (PW-27), ASI Bal Kishan(PW-28) HC Vikram Singh(PW-29), SI Om Prakash (PW-30), Captain Rakesh Bakshi (PW-31), Pradeep Srivastava (PW-32), Alok Daga(PW-33), HC Narender Singh(PW-34), Inspector Devender Singh(PW-35), Dr. Deepa Verma(PW-36), HC Santara(PW-37), Sh. M.C Gupta(PW-38), Chandra Rani(PW-39), HC Rishi Kumar (PW-40), Inspector Prithvi Singh(PW-41), Inspector Rajender Prasad (PW-42), Dr. Vinod Thukral(PW-43), Jyotish Moharna(PW-44) and HC Satpa Singh(PW-45).
5 Statements of both accused have been recorded wherein accused Ashok has denied the allegation of prosecution. He has submitted that he was called by Crime Branch office, where some hot words were exchanged with SI Mehak Singh and SI Prithvi Singh. He was badly tortured by the said officers. On 22.04.09 Inspector Prithvi Singh and SI Mehak Singh produced him before ld. ACMM, Tis Hazari Courts and requested for police custody remand but the same was declined by ld. ACMM as ld. counsel for accused disclosed the fact of torture by the police officers. He was sent for medical examination in government hospital. Since he was having visible injury on his person, he was not sent to jail after medical examination. Since the officers of crime branch were having apprehension of criminal complaint against them he was falsely implicated in this case. He was forced to sign some papers, which were 4 converted into documents. Original call details of the phone number 9811146725 were not produced by the prosecution. Most of the witnesses examined by the prosecution are police officials. They are interested witnesses. No public witness has deposed against him. 6 Accused Rajesh has also denied the allegation of prosecution. He has submitted that at about 10:30 AM police officials came to the pathological lab, where he was working and forcibly took him. To that effect, a PCR call was also made by the staff members of pathological lab. When the crime branch officials came to know about the PCR call, they had shown his arrest in the present case from Lokesh Cinema, Nangloi. Neither his personal search was conducted nor his disclosure statement was recorded by the police. His signatures were obtained by the police on various blank papers, which were later on converted into documents. No recovery was effected from his house at his instance. Rs. 40,000/- were planted upon him as police officials were unable to tell even the location of his house. The I.O also did not make any public witness to the alleged recovery of Rs. 40,000/-. The recovery memo was prepared on blank papers, which were got signed by him when he was in police custody. He never pointed out any STD booth. The owner of the STD booth did not identify him in the court. He never visited the house at Sector- 11, Rohini either prior to or after the commission of offence. None of the witnesses examined by the prosecution has named him in the alleged conspiracy. The telephone No.s 9810024109, 9810185965 and 9811146725 did not pertain to him. He is innocent and has been falsely implicated in this case as he was an acquaintance of accused Ashok.
57 Both accused did not prefer to lead any evidence in their defence. 8 I have heard arguments from the ld. counsel for accused and ld. Addl. PP for State. I have also perused the case file.
9 First of all, I am taking Section 120B in respect of which both accused have been charged.
10 Section 120B IPC is reproduced here for ready reference:
Whoever, is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
The term "criminal conspiracy" is defined U/S 120A, which is reproduced here for ready reference:
When two or more persons agree to do, or cause to be done-- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
In State (Delhi Admn.) V. V.C. Shukla AIR 1980 SC 1382 it was held by Hon'ble Supreme Court that in order to prove a criminal conspiracy which is punishable under Section 120-B there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. This clearly envisages that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of an 6 offence. It is true that in most cases it will be difficult to get direct evidence of an agreement to conspire but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence.
In State of Madhya Pradesh V. Sheetla Sahay & Ors. III 2009 DLT (Crl.) 960 SC it was held by Hon'ble Supreme Court that a criminal conspiracy must be put to action in as much as so long a crime is generated in the mind of an accused, it does not become punishable. What is necessary is not thoughts, which may even be criminal in character, often involuntary, but offence would be said to have been committed thereunder only when that takes concrete shape of an agreement to do or cause to be done an illegal act or an act which although not illegal by illegal means and then if nothing further is done the agreement would give rise to a criminal conspiracy.
Its ingredients are--
(i) an agreement between two or more persons;
(ii) an agreement must relate to doing or causing to be done either (a) an illegal act; (b) an act which is not illegal in itself but is done by illegal means.
What is, therefore, necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means.
Often conspiracy is hatched in secrecy and for proving the said offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence.
In Kehar Singh & Ors. V. State (Delhi Admn.) AIR 1988 JC 1883 it was held by Hon'ble Supreme Court that the gist of the offence of conspiracy lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting 7 others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough.
It was further held that it will be, thus, seen that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable. Reference to Ss. 120-A and 120-B IPC would make these aspects clear beyond doubt. Entering into an agreement by two or more persons to do an illegal act or illegal means is the very quintessence of the offence of conspiracy.
It was further held that generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy required some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. 11 In the present case, to prove the fact that accused Rajesh Rana and Ashok Kumar were involved in conspiracy with co-accused Purshottam, Jasbir and Satish, prosecution has examined Sh. Yogesh Kumar as PW-1. He has deposed that he is running a STD/PCO under the name and style of 'Neha 8 Telecom Centre' at Wazirpur Industrial Area. The number of telephone installed in his booth is 7412411(the same has been changed now). Since his PCO booth is in market, so many people use his PCO and he cannot pinpoint any person who might have used his PCO. One day, the date he does not remember, but it was 16th when police accompanied with one man had come to him and obtained his signature on a document. He cannot identify the person, who had accompanied the police at that time. The document Ex. PW1/A bears his signature. In cross-examination by ld. Addl. PP, PW-1 has deposed that he cannot say if accused Rajesh Rana present in the court is the same person, who had accompanied on the said day with police. A perusal of Ex. PW1/A shows that it is the pointing out memo of STD booth from where accused Rajesh Rana is alleged to have telephoned his colleague on telephone number 9810185965.
12 Another witness is Sh. Manoj, who has been examined as PW-3. He has deposed that in the year 1999, he was having a cell phone, number of which he does not remember. He does not know any Jasbir and Purshottam. However, they (Jasbir and Purshottam) had come to his partner Vishnu Sharma on one occasion and Vishnu Sharma told him (PW-3) their names as Jasbir and Purshottam. On the request of Vishnu he had given SIM card of his phone to Vishnu, who had handed over the same to one of those persons (Jasbir and Purshottam) and thereafter, the boys had left. After 15/20 days, those boys had come again and used the mobile phone for two minutes, but he does not know to whom they had talked. He did not hear their conversation on telephone. At that time, he had different mobile phone number, the number of which he does not remember. In cross-examination by ld. Addl. PP, PW-3 9 has deposed that the telephone number, of which the SIM card was given to Jasbir and Purshottam, is 9810185965 and the second mobile phone number, through which accused Jasbir and Purshottam had talked to some person was 9811015724. He denied that on that occasion Jasbir and Purshottam talked to Shoki.
13 Another witness to prove involvement of accused Rajesh and Ashok in the alleged conspiracy, is Vishnu Sharma, who is examined as PW-4. He has deposed that in the year 1999 he was working as property dealer in partnership with Manoj under the name and style of 'Prince Property Dealer' in Rama Vihar. He knows Purshottam. He was his classmate. In the summer season of year 1999, Purshottam accompanied with one boy had come to his office and after meeting him, Purshottam had left. On that occasion, Purshottam had demanded SIM card of mobile. He purchased SIM Card from Rohini for Purshottam. He cannot tell the number of that card. Purshottam came to him next day with the same boy, but he did do anything on that day. After sometime, Purshottam left with his friend.
14 Another witness examined by the prosecution, is Ravinder Kumar, who has been examined as PW-9. He has deposed that in the month of June, 1999, police had come to him. He handed over one 'Speed Recharge Slip' of mobile phone number 9811146725, which was issued in the name of Ashok. He also handed over one 'Receipt (cum) Invoice' to the police. They are ex. PW9/A and Ex. PW9/B respectively. In cross-examination by ld. counsel for accused Ashok, PW-9 has deposed that he did not bring the original record. 15 Another witness examined by the prosecution is Captain Rakesh Bakshi, who has been examined as PW-31. He has deposed that he has 10 been working as Nodal Officer in Bharti Aitrtel Ltd. since February 1999. The record of telephone number 9810024109 and 9810185965 has been destroyed. The copies of record of these mobile numbers were handed over to him by police during investigation. They were correct copies of the record as they were computer generated prints. The copies are collectively Ex. PW31/A (Objection was raised by ld. counsel for accused on the exhibition of the record, being photocopy).
16 Another witness is HC Narender Singh, who has been examined as PW-34. He has deposed that the house No. C-1/30, Sector-11, Rohini, belongs to his father Hoshiar Singh. He knows accused Ashok, who is present in the court. There used to be two keys of the lock of house No. C- 1/30, Sector-11, Rohini. One key used to remain with him (PW-34) and other key used to remain in the possession of accused Ashok. He (PW-34) used to go to house No. C-1/30, Sector-11, Rohini for taking rest after duty as his village was at some distance. Accused Ashok also used to stay there for sometime. On 04.04.99 at about 4:00 PM, two boys came to him. They disclosed their names as Jasbir and Purshotam. He had not met them earlier and seen them on that day for the first time. They (Jasbir and Purshottam) enquired from him about the whereabouts of accused Ashok. He (PW-34) told them to wait at house No. C-1/30, Sector-11 Rohini and told them that he (PW-34) would intimate Ashok on phone about their arrival. He (PW-34) then contacted Ashok through mobile phone. Ashok had come after sometime. Purshottam, Jasbir and Ashok thereafter left house No. C-1/30, Sector-11, Rohini at about 4:30 PM. After 6:00 PM he (PW-34) went to attend his duties as he was working as Constable in Special Staff, Maurice Nagar, North 11 district. In cross-examination by ld. Addl. PP, PW-34 has admitted that in his statement to police he has stated mobile number of Ashok as 9811146725. 17 In cross-examination by ld. counsel for accused Ashok, PW-34 has deposed that he did not make any arrival entry in the record of Special Staff on 03.04.99 and same was his reply with regard to 04.04.99. He (PW-34) admitted that as per rules a police official is required to make entries of his arrival and departure as and when he arrives and leaves the office. He has further admitted that before deposing in court he has gone through the statement. I.O did not examine his father nor did he (I.O) cite him as a witness. The official of Crime Branch did not visit house No. C-1/30, Sector- 11, Rohini in his presence. He did not handover the key to the police, which was in his possession. In his presence, neither accused Ashok was called by the officials of Crime Branch nor the key which was in his possession was seized by the police. The I.O had not taken any proof of ownership of his mobile phone No. 9811161067. No site plan of house No. C-1/30, Sector-11 Rohini was prepared by the I.O in his presence. He denied that mobile phone No. 9811146725 was never in possession of accused Ashok or that it was never used by him. He further denied that on 04.04.99 he did not telephone from his mobile phone No. 9811161067 to Ashok on his mobile phone No. 9811146725.
18 In the present case, after going through the testimonies of PW-1, PW-3, PW-4, PW-9, PW-31 and PW-34, I am of the considered view that there is nothing on record to prove that accused Ashok and Rajesh Rana ever agreed to do an illegal act i.e. murder of Om Prakash and Bhagirath, with co- accused Jasbir, Purshottam and Satish. The only evidence against them is 12 that they used some mobile phones on certain dates. None of the PWs, testimonies of whom are discussed above, had overheard the conversation/ communication on telephones. None of the PWs has deposed that there was transmission of thoughts sharing the unlawful murder of Om Prakash and Bhagirath. PW-34 has simply stated that co-accused Jasbir and Purshottam came to him and enquired about the whereabouts of accused Ashok. He contacted Ashok on his mobile phone No. 9811146725 upon which Ashok came and thereafter, he (Ashok) alongwith Jasbir and Purshottam left the house No. C-1/30, Sector-11, Rohini. He has not stated even a single word about the nature of conversation between them after their meeting at house No. C-1/30, Sector-11, Rohini.
19 More over, as per the testimony of PW-34, mobile phone No. 9811146725 belonged to accused Ashok. But PW-44 Sh. Jyotish Moharna, who has produced the statement of call details qua telephone No. 9811146725 for the period 01.04.99 to 10.04.99, has deposed that mobile phone was subscribed to one Ms. Manju R/o C-2/6, Avantika Sector-1, Rohini, Delhi. The call details are Ex. PW44/A. In cross-examination by ld. counsel for accused Ashok, PW-44 has deposed that the document/call details cannot be fabricated.
20 Besides this, the 'Speed Recharge Slip' Ex. PW9/A and 'Receipt (cum) Invoice' Ex. PW9/B also do not prove the alleged conspiracy between accused Rajesh Rana and Ashok with co-accused Jasbir, Purshottam and Satish. Thus, it is not proved on record beyond reasonable doubt that the mobile phone bearing No. 9811146725 belonged to accused Ashok and he used the same for hatching alleged conspiracy with co-accused persons. 13
In State of Karnataka V. L. Muniswamy & Ors. AIR 1997 SC 1489 it was held by Hon'ble Supreme Court that the worst that can be said against the respondents is that they used to meet one another frequently after the dismissal of accused No. 1 and prior to the commission of the assault on the complainant. Why they met, what they said, and whether they held any deliberations at all, are matters on which no witness has said a word. In the circumstances, it would be a sheer waste of public time and money to permit the proceedings to continue against the respondents. The High Court was, therefore, justified in holding that for meeting the ends of justice the proceedings against the respondents ought to be quashed.
21 More over, testimony of PW-34 cannot be relied upon as he has gone through his statement before deposing in the court.
In Ramvilas & Ors V. State of M.P. 1985 Crl. L. J. 1773 it was held by Hon'ble High Court of Madhya Pradesh that where the statement made by the witness to the police was narrated to him not when he was in the witness-box but shortly before entering the witness-box, the evidence of such witness would be inadmissible in view of S. 162, because the fact remains that it was narrated to him for the purpose of giving evidencce at the trial. That tantamounts to making use of the statement at the trial which is prohibited by S. 162.
22 In view of evidence on record, I am of considered view that prosecution has not be able to prove that accused Rajesh Rana and Ashok have ever entered into criminal conspiracy with co-accused Purshottam, Jasbir and Satish to commit murder of Om Prakash and Bhagirath. Accordingly, both accused are acquitted of offence U/S 120B IPC.
23 The next charge against accused persons is U/S 302 IPC.
The star witness of the case is PW-6 HC Ram Niwas. He has 14 deposed that on 06.04.99 at about 7:00 PM he alongwith Constable Suraj Bhan was on patrolling duty in the area of Shakti Nagar. When they reached near 'Vishal Medicos', he suddenly heard a loud sound of bang near the house 14/31, which is situated in front of Vishal Medicos. In front of that house, one maruti 800 and one maruti Zen were seen parked. Two boys were standing near Maruti Van. One boy was standing near driver's door of Maruti
800. On hearing the bang, he alongwith Constable Suraj Bhan tried to reach near the two cars but the boy, who was standing near the driver's door of Maruti 800, fell down on the drivers seat. One Om Prakash, whom he knew, was seen coming out of Maruti 800. Om Prakash had a bag in his hand. One of the boys, who was standing near Maruti Zen had a pistol in his hand and he fired at Om Prakash. The second boy snatched the bag from hands of Om Prakash and then both boys escaped in Maruti Zen. He (PW-6) tried to chase Maruti Zen but in vain. Due to noise, public gathered. He and Constable Suraj Bhan went to Om Prakash, who had sustained bullet injury on his chest. The boy, who had fallen on driver's seat had also sustained injuries. He informed the PCR as well as P.S. Roop Nagar. SHO Jagbir Singh Yadav with other staff reached the spot. Constable Suraj Bhan with the help of public took both the injured to Parmarth Mission Hospital. He (PW-6) remained at the spot. SHO inspected the site and recorded his statement Ex. PW6/A and prepared site plan at his pointing out Ex. PW6/B. A pistol was found lying at the place where Om Prakash had fallen down. SHO lifted that pistol and prepared its sketch vide Ex. PW6/C. The pistol was unloaded by the SHO and five live cartridges were recovered from that pistol. Four empty cartridges were found lying at the spot. SHO prepared the sketches of live as well as 15 empty cartridges vide Ex. PW6/D. The pistol, live cartridges and empty cartridges were separately sealed in pulandas vide memos Ex. PW6/E and Ex. PW6/F. SHO lifted the blood sample, blood stained earth and control earth from the spot which were separately sealed in pulandas and seized vide memos Ex. PW6/G and Ex. PW6/H. Three pieces of lead of bullet were also found lying at the spot and they were also lifted and sealed in pulandas and seized vide memos Ex. PW6/I. The pieces of damaged indicators of the car were also found lying at the spot and some blood was seen on the seat of the maruti car. The seat cloth was cut by the SHO. The pieces of indicators of car and seat cloth were seized vide memos Ex. PW6/J and Ex. PW6/K. The maruti car with its keys were also seized vide memo Ex. PW6/N. The seal after use was handed over to him (PW-6) and case property was deposited at P.S. Malkhana. PW-6 has further deposed that he cannot identify any of the offenders as 4-5 years have elapsed. PW-6 has identified the pistol as Ex. P-1, five live cartridges recovered from pistol as Ex. P-2, four empty cartridges as Ex. P-3, three mutilated fired bullets as Ex. P-4, broken pieces of indicator of car as Ex. P-5 and seat cover as Ex. P-6. Opportunity was given to ld. counsels for accused Ashok and Rajesh, but they did not avail that opportunity.
24 Another material witness is Constable Suraj Bhan, who has been examined as PW-7. This witness has deposed on the lines of PW-6. He has further deposed that the boy who had fallen on the driver's seat of car was declared dead by the doctor. Om Prakash was taken to big hospital on the advice of doctor. He took tehrir to P.S for registration of case. He has deposed that he can identify the boys who had fired and snatched the bag from 16 deceased Om Prakash. PW-7 has identified accused Rajesh Rana as the boy, who had snatched bag from deceased Om Prakash. In cross-examination by ld. counsel for accused Rajesh, PW-7 has deposed that accused Rajesh was shown to him after his arrest. He denied that accused Rajesh Rana was not present at the spot and was not involved in occurrence. Accused Rajesh was not arrested in his presence. So, he cannot tell from where he was arrested. He never participated in TIP of accused Rajesh Rana.
25 PW-7 was recalled by prosecution subsequent to arrest of accused Satish, wherein he has deposed that he can identify the boy who had snatched the bag from deceased Om Prakash and the boy who had fired at Om Prakash from pistol. He has deposed that accused Satish present in the court had fired at Om Prakash and bag was snatched by accused Jasbir, who is not present in the court today. In cross-examination by ld. counsel for accused Rajesh and Satish, he denied that accused Satish did not fire at all and was not present at the spot. PW-7 has further clarified that there are two boys, one who had fired at Om Prakash and one had snatched the bag.
26 In the present case, from the testimony of PW-7, it becomes clear that accused Ashok and Rajesh did not fire at deceased Om Prakash and Bhagirath and it was co-accused Satish who had fired at Om Prakash and Bhagirath and it was accused Jasbir, who had snatched the bag from deceased Om Prakash.
1727 Another material witness is PW-17 Bhuneshwar. This witness has not supported the prosecution story and turned hostile. In cross-examination by ld. Addl. PP, attention of PW-17 was drawn to statement Mark 17/A, wherein certain material facts, which were not deposed by him in court, were recorded. He has deposed that about six years ago, date he does not remember, he was taking tea in Shakti Nagar in the house of Mr. Somani where he worked as a domestic help. It was 7:00 PM. He heard some sounds coming from outside the house as if crackers were burst. He came running to the gate of the house and feeling scared went inside. When he had come out of the gate, he had seen maruti car of Mr. Somani and another car of blue colour. Bhagirath was the driver in the car of Somani and he had seen him inside the car at that time. He saw Bhagirath soaked in blood and 2-3 persons were running towards the blue car. He had glimpse of those persons from back when they were boarding blue colour. He does not know if any other person was also present inside the car of Mr. Somani because he could only see the driver Bhagirath. Lot of noise started coming from outside and he again came out of the house and at that time he saw Bhagirath lying in the car and one more person aged about 18-19 years lying at the corner of the road. He does not know, who was the cashier of Mr. Somani. Many people had gathered there. Other people took Bhagirath and the other injured to the hospital. The police had also come to the spot and he (PW-17) was taken to P.S. Roop Nagar. He does not know what investigation police had done or what was seized by the police. In P.S he had told police that he might not be able to identify those persons. Police obtained his signature on blank papers. The sketch of the pistol Ex. PW6/C, sketch of cartridges Ex. PW6/D and 18 seizure memo of pistol and cartridges Ex. PW6/F bear his signatures. The other seizure memos Ex. PW6/E, Ex. PW6/L, Ex. PW6/G, Ex. PW6/H, Ex. PW6/J and Ex. PW6/K do not bear his signature. In cross-examination by ld. Addl. PP, PW-17 has deposed that he did not state to police that on 06.04.99 at about 7:15 PM he was present near the gate of the house when he heard sounds of firing. He denied that he heard the noise and shrieks coming from the gali(confronted with portion A to A of the statement Mark PW17/A, where it was so recorded). He has further deposed that Om Prakash was working as cashier of Mr. Somani but he denied that he had seen Om Prakash running towards gali on the day of occurrence and that at that time he had a bag in his hand (he was confronted with portion B to B of statement Mark PW17/A, wherein facts were so recorded). He has denied that from blue car one person got down with pistol in his hand (confronted with the portion C to C of statement Mark PW17/A wherein the fact was so recorded). He has denied that the boy holding pistol shot Om Prakash and the other boy snatched bag of Om Prakash (confronted with portion E to E of statement Mark PW17/A where the facts were so recorded). He further denied that he had seen the two culprits escaping in the same blue maruti car ( confronted with portion F to F of statement Mark PW17/A wherein the facts were so recorded). He further denied that he had given the registration number of that car to police ( confronted with portion G to G of statement Mark PW17/A where the fact was so recorded). He has denied that he had stated to police that he had seen the culprits and can identify them if shown to him (confronted with portion J to J of statement Mark PW17/A where the facts were so recorded). He has denied that police had lifted exhibits from the spot and then memos were prepared. 19 He also denied that his signatures were obtained on prepared documents and not on blank papers.
28 In the present case, PW-8 Dr. Sanjay Rohtagi has prepared the MLC Ex. PW8/A in respect of deceased Om Prakash. As per MLC, two injuries were present on the person of deceased Om Prakash, one was entry wound on the left side of the chest and the other was exit wound on the back and there were corresponding cuts on the shirt worn by the deceased. PW-12 Dr. Komal Singh has conducted the postmortem on the body of deceased Bhagirath on 09.04.99. The postmortem report is Ex. PW12/A. As per the testimony of PW-12, the cause of death was hemorrhagic shock subsequent to the gun shot injuries to lung and heart. Similarly, PW-13 Dr. L.C. Gupta has conducted the postmortem on the body of deceased Om Prakash on 07.04.99. The postmortem report is Ex. PW13/A. As per the testimony of PW-13, the cause of death was shock resulting from projectile fire arm injury, which was sufficient to cause death in ordinary course of nature. 29 From the postmortem reports Ex. PW12/A and Ex. PW13/A, it becomes clear that cause of death of deceased Om Prakash and Bhagirath was shock subsequent to gun shot/fire arm injury. It is worth noting that in the present case, no fire arm or gun has been recovered from accused Ashok and Rajesh. One pistol point.32 bore has been recovered from the possession of accused Purshottam @ Kaku as per the testimony of PW-4 Inspector Prithvi Singh, who is the I.O of the case. The other pistol has been seized by the initial I.O PW-10 Inspector Jagbir Singh, which was found lying on the spot on 06.04.99.
2030 Besides this, in the present case, Rs. 29,000/- have been recovered at the instance of accused Purshottam @ Kaku and Rs. 40,000/- have been recovered at the instance of accused Rajesh Rana from his house. The TIP proceedings of looted currency notes has been held by PW-38 Sh. M.C. Gupta, the then, ld. ACMM vide proceedings Ex. PW38/C, wherein Sh. Om Prakash son of Sh. Balu Ram has identified six packets of currency notes, each consisting of 100 currency notes of Rs. 100/- denomination. 31 In the present case, Om Prakash son of Sh. Balu Ram has been examined by the prosecution as PW-5. As per the testimony of PW-5, he used to put his initial on each packet of currency notes at the time of payment to a party. He deposed that on 06.04.99 he had withdrawn Rs. 5 Lakhs from the bank. Out of this, a sum of Rs. 3,93,000/- was paid to deceased Om Prakash. This witness has identified the four packets of currency notes of Rs. 100/- denomination as Ex. P-1 by submitting that they were part of Rs. 3,93,000/-, which were given to deceased Om Prakash. Similarly, he has identified two packets of Rs. 100/- denomination and some loose currency notes of Rs. 100/- denomination, (ninety in number) as Ex. P-2 by submitting that they were given to deceased Om Prakash. But in cross-examination by ld. counsel for accused Rajesh, he (PW-5) has admitted that he cannot say with certainty that Ex. P-1 and Ex. P-2 were given to deceased Om Prakash because he used to put his initials on currency notes while making any payment to anybody. In other words, it is not proved beyond reasonable doubt that Ex. P-1 and Ex. P-2 were given to deceased Om Prakash by PW-5.
2132 In the present case, PW-41 has obtained specimen handwriting material of accused Ashok on six sheets which were Ex. PW11/Q1 to Q6. Specimen handwriting material alongwith Recharge Slip Ex. PW9/A was sent to FSL, Malviya Nagar for comparison. In cross-examination by ld. counsel for accused, PW-41 has deposed that no permission of court was sought for obtaining specimen signature of accused Ashok. No public witness was joined when specimen signature of accused Ashok was taken. Neither Recharge Slip nor Receipt (cum) Invoice were sealed.
33 In this case, PW-36 Dr. Deepa Verma has compared the signature and handwriting of accused Ashok appearing on Ex. PW9/A and Ex. PW9/B (described as Q1 to Q3) with the specimen signature and handwriting of accused Ashok which are Ex. PW11/Q1 to Ex. PW11/Q6 (described as S1 to S6) vide her detailed report Ex. PW36/A. After scientific comparison, PW-36 was of the opinion that the person who had written the specimen S1 to S6 has also written questioned Q1 to Q3.
In Rakesh Kumar V. State 2004(1) JCC 110 it was held by Hon'ble High Court of Delhi that specimen handwriting of the accused for comparison by expert cannot be taken without permission of the Court. It was also held that such signatures or thumb impression taken during investigation by police without permission of Court cannot be used during trial and expert report also based on such signatures or thumb impression could not be made use of during trial. 34 In the present case also, the specimen handwriting of accused described as Ex. PW11/A1 to Ex. PW11/Q6 has been taken by the I.O during the investigation without permission of court. In view of the law laid down by Hon'ble High Court in Rakesh Kumar case, I am of the considered view that 22 the report Ex. PW36/A is of no avail to the prosecution as the same cannot be used against him.
35 In view of the totality of facts and circumstances, I am of considered view that prosecution has miserably failed to prove its case beyond reasonable doubt against accused Rajesh Rana and Ashok U/S 302 IPC. Accordingly, both accused Rajesh Rana and Ashok are acquitted of offence U/S 302 IPC.
36 In the present case, both accused Rajesh Rana and Ashok are on bail. Their personal bonds and surety bonds are cancelled. Their sureties are discharged.
37 File be consigned to Record Room with the observation that accused Purshottam @ Kaku, Jasbir @ Jassu and Satish are P.O. Prosecution will be at liberty to reopen its case as and when these accused are arrested.
Announced in the open court today on 16.01.10.
(Smt. Bimla Kumari) Additional Sessions Judge(North) Tis Hazari Courts, Delhi.