Delhi District Court
Fir No. 212/12 State vs . Ankit Gupta & Anr Ps Mundka Page No. 1 Of ... on 3 May, 2023
IN THE COURT OF SH. MANISH KHURANA:
ADDITIONAL SESSIONS JUDGE: 04, WEST DISTRICT:
TIS HAZARI COURTS : DELHI
CNR No.DLWT01-001818-2015
SC No. 56113/2016
FIR No. 212/2012
PS : Mundka
U/s : 304/201 IPC & 25/27/30 Arms Act
State
Vs.
1. Ankit Gupta
S/o Sh. Sanjay Gupta
R/o Gali No.2, Bhupinder Puri,
Modi Nagar, Ghaziabad, U.P.
2. Jag Bhusan Garg
S/o Late Raghbar Dayal
R/o H.No. 93, Ayodhya Ganj,
Dadri, Distt. Gautam Budh Nagar, U.P.
Date of Institution of case : 05.08.2015
Date of decision : 03.05.2023
Final order : Acquitted
FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 1 of 39
JUDGMENT
1. Brief facts of the case are that on 25.11.2012 DD No. 37A was marked to ASI Abhinandan and accordingly, he alongwith Ct. Satish and SHO reached at IP motel in Govt. vehicle, where they met one person namely Sushil Kumar who informed them that one person namely Shanker @ Ankit Gupta had fired bullet in marriage procession and his cousin namely Shivi Gupta aged about 12-13 years had sustained injury and that the injured was taken by her family members to Modi Nagar, U.P. At that time the exact place of incident could not be ascertained. ASI Abhinandan made efforts to examine the persons present in the marriage but no eye witness was found. ASI Abhinandan procured address of injured and vide DD No. 6B dated 26.11.2012, he alongwith Ct. Satish went to Gali No.2, Bhupender Puri Modi Nagar, U.P where they found dead body of Shivi Gupta. Upon inspection of dead body, it was found that there was a sign of bullet injury on the right side of her chest. ASI Abhinandan made inquiries from family members of deceased but no eye witness was found. Thereafter, the dead body was brought to SGM hospital, Mangolpuri in the custody of Ct. Satish and medical examination of body was conducted by doctor and he declared the body as brought dead and thereafter the dead body was shifted to mortuary. On inquiry, they came to know that the firearm which was used during the incident belonged to Jagbhushan Garg and the same was licensed revolver which was given by Jagbhushan Garg to his FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 2 of 39 relative Shanker. Thereafter, ASI Abhinandan went to police station, prepared Tehrir and handed over the same to Duty officer for registration of case and further investigation of present case was assigned to SI Dinesh. During investigation, SI Dinesh went to the place of occurrence and prepared site plan and also got conducted postmortem on the body of deceased vide application. SI Dinesh had also lifted the piece of mat having blood stains from the place of occurrence and after sealing seized the same vide seizure memo. During investigation, Smt. Mohini Garg i.e. wife of accused Jagbhushan Garg came to PS and handed over the weapon of offence i.e. revolver and armed license in favour of accused Jag Bhushan Garg to SI Dinesh. SI Dinesh prepared sketch of said revolver and after sealing, seized the said revolver through seizure memo. During investigation, Inspector Ramesh Chander on 18.12.2012 effected the arrest of accused Ankit Gupta vide arrest memo and conducted his personal search and also recorded his disclosure statement and thereafter, accused Ankit Gupta was remanded to JC. During investigation, on 27.12.2012 Inspector Ramesh Chander had also formally arrested accused Jagbhushan Garg. During investigation, on 28.12.2012, on the instructions of Inspector Ramesh Chander, Ct. Surender collected three parcels from MHC(M) and deposited the same at FSL Rohini vide RC No. 202/21/12. On 12.12.2012 Inspector Ramesh Chander had moved a request letter to the licencing branch with a request to cancel the Arm license of accused Jagbhushan Garg. During investigation, on 23.01.2013 vide RC No. 7/21/13, Inspector Ramesh FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 3 of 39 Chander had sent the pullandas containing the weapon of offence i.e. revolver and fired lid to FSL Rohini through Ct. Rakesh.
2. After completion of investigation, chargesheet for offence punishable u/s 304/201 IPC & 25/27/30/54/59 Arms Act against accused Ankit Gupta and Jagbhusan Garg was filed before concerned Ld. M.M. on 30.03.2015. Vide order dated 30.07.2015, passed by Ld. MM the present case was committed to the court of Sessions in accordance with Section 323 Cr.P.C for 05.08.2015 and on 05.08.2015 the present case was assigned to the Sessions Court for trial.
3. On 26.10.2016, order on charge was passed by Ld. Predecessor and charge for offence punishable under Section 304/201 IPC and u/s 25/27 Arms Act was framed against accused Ankit Gupta. Separate charge for offence punishable under Section 30 Arms Act was framed against accused Jag Bhusan Garg. The charges were read over and explained to both the accused persons in vernacular and they were asked as to whether they want to plead guilty or claim trial. After understanding the charges, both the accused persons pleaded not guilty and claimed trial.
4. Thereafter, the prosecution has examined 25 witnesses i.e. PW1 Sh. Sushil Aggarwal, PW2 Sh. Deepak Gupta, PW3 Sh. Subhash Sharma, PW4 Sh. Sadanand Mishra, PW5 Sh. Anurag Gupta, PW6 ASI Abhinandan, PW7 Sh. Mohit Gupta, PW8 Sh. Surender, PW9 Ms. Manisha Upadhyay, PW10 Ct. Surinder, PW11 Ct. Satish, PW12 ASI Rajesh Kumar, PW13 ASI Hari Singh, PW14 Dr. Rajesh, PW15 Ct. Rakesh, PW16 Sh. Manoj Gupta, PW17 Sh. Rajnish Gupta, FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 4 of 39 PW18 Vinay Gupta, PW19 Shekhar Singhal, PW20 Laxmi Singhal, PW21 Inspector Dinesh Kumar, PW22 ACP Ram Avtar, PW23 Dr. Munish Wadhawan, PW24 Retired ACP Ramesh Chander and PW25 ACP Raj Kumar.
5. The brief of the testimonies of the prosecution witnesses examined during trial are as under:-
6. PW1 Sh. Sushil Aggarwal deposed that he did not remember the date but the incident happened in November 2012. He further deposed that he had taken I.P. Motel and Resort at Rohtak Road, on lease from Sh. Mohit Gupta. On the date of incident, his friend Rajnish had booked said resort for the marriage of his nephew namely Shitij. He further deposed that on the date of incident at about 9.00 PM-9.30 PM when he was present in his office (which is inside the said resort), someone informed him about the incident of firing near Assembly point. He rushed to the spot which was on the service lane outside the said resort and came to know that one girl had sustained injury due to firing of gunshot and was taken away by her family members. He further deposed that the blood was scattered at the spot. He further deposed that he telephonically informed SHO of PS Mundka about the same. He provided booking slip Ex.PW1/B of said resort to IO which was seized by IO vide memo Ex.PW1/A. He further deposed that IO had also taken into possession pieces of mat bearing blood stains of deceased vide memo Ex.PW1/C. He further deposed that he had also handed over photocopy of license of I.P. Motel Ex.PW1/E (colly) to IO which was seized by IO vide seizure memo Ex.PW1/D. He had also handed over FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 5 of 39 photocopy of lease affidavit Ex.PW1/G (colly) pertaining to said resort and same was taken into possession by IO vide seizure memo Ex.PW1/F.
7. Ld. Addl. PP for the state sought permission to cross examine this witness/PW1 as the witness was allegedly resiling from his previous statements made before IO. After seeking permission, Ld. Addl. PP for state cross examined PW1 at length.
8. During cross-examination by Ld. Addl. PP for the state, PW1 denied all the suggestions put to him. He only admitted that the incident took place on 25.11.2012.
9. This witness was not cross examined on behalf of both the accused persons despite opportunity given.
10. PW-2 Sh. Deepak Gupta has deposed that on 26.11.2012 he identified the dead body of his daughter Shivi at mortuary of SGM hospital vide identification memo Ex.PW2/A. He further deposed that after postmortem, he received the dead body of his daughter vide dead body handing over memo Ex.PW2/B, for performing the last rites.
11. This witness was also not cross examined on behalf of both the accused persons despite opportunity given.
12. PW-3 Sh. Subhash Sharma deposed that on 25.11.2012, he was invited by Sh. Rajnish in the marriage of his nephew and he went to attend the said marriage. He further deposed that when he was present inside IP Motel i.e. the venue of marriage, he heard some noise coming from outside the premises of IP Motel. When they rushed outside the said motel by that time injured girl was already taken from there.
FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 6 of 39 He identified his signatures on site plan Ex.PW3/A. He could not identify accused Ankit Gupta.
13. PW3 was cross examined by Ld. Addl. PP for the state as he was allegedly resiling from his earlier statement made before the police. During cross-examination by Ld. Addl. PP for the state, PW3 denied all the suggestions put to him.
14. This witness was also not cross examined on behalf of both the accused persons despite opportunity given.
15. PW-4 Sh. Sadanand Mishra deposed that he is working as gardener at IP Motel for the last 18 years and used to set up chairs etc. at the time of functions. He further deposed that on 25.11.2012, when he was laying down the mattresses in the lawn of IP Motel, he heard some noise coming from outside the premises. He further stated that when he rushed outside the said motel, by that time, injured girl was already taken from there and that he did not know anything else about this case.
16. PW4 was cross examined by Ld. Addl. PP for the State as he was allegedly resiling from his previous statement made before police. During cross-examination by Ld. Addl. PP for the State, PW4 denied the suggestions put to him by Ld Addl. PP for the State. He admitted that on 27.11.2012, he gave his statement to IO and also handed over the green colour mat to police having blood stains of deceased and the blood stained portion of said mat was seized by IO vide memo Ex.PW1/C. He also admitted that he and Subhash Sharma had shown the place of occurrence to IO who prepared site plan Ex.PW3/A at their instance. He stated that on 04.01.2015 he was called by the IO.
FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 7 of 39
17. This witness was also not cross examined on behalf of accused persons despite opportunity given.
18. PW5 Sh. Anurag Gupta deposed that on 26.11.2012, he went to the mortuary of SGM hospital where he identified the dead body of daughter (Shivi) of his brother-in-law namely Deepak and IO recorded his statement Ex.PW5/A in this regard.
19. This witness was also not cross examined on behalf of accused persons despite opportunity given.
20. PW-6 ASI (Retd.) Abhinandan has deposed that on 25.11.2012 he was posted at PS Mundka as ASI. On that day, he alongwith Ct. Satish reached at the police station at around 10 PM-11 PM. Thereafter, he alongwith SHO and Ct. Satish reached at IP motel in Govt. vehicle, where they met one person namely Sushil Kumar who informed them that one person namely Shanker had fired bullet in marriage procession and his cousin namely Shivi Gupta aged about 12-13 years had sustained injury and that the injured was taken by her family members to Modi Nagar, U.P. He further deposed that at that time the exact place of incident could not be ascertained. He further deposed that he made efforts to examine the persons present in the marriage but no eye witness was found. He further deposed that he procured address of injured and vide DD No. 6B dated 26.11.2012, he alongwith Ct. Satish went to Gali No.2, Bhupender Puri Modi Nagar, U.P where they found dead body of Shivi Gupta. He further deposed that on inspection of dead body, it was found that there was a sign of bullet injury on the right side of her chest. He further deposed that they made FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 8 of 39 enquiries from family members of deceased but no eye witness was found. Thereafter, the dead body was brought to SGM hospital, Mangolpuri in the custody of Ct. Satish and medical examination of body was conducted by doctor and he declared the body as brought dead. He further deposed that thereafter the dead body was shifted to mortuary. On enquiry, they came to know that the firearm which was used during the incident belonged to Jagbhushan Garg and the same was licensed revolver which was given by Jagbhushan Garg to his relative Shanker. He further deposed that thereafter, he went to police station, prepared Tehrir Ex.PW6/A and handed over the same to Duty officer for registration of case. He also deposed that further investigation of present case was assigned to SI Dinesh.
21. During cross-examination on behalf of accused persons, PW6 stated that when he reached at the spot for the first time, he made enquiry from many public persons present there and at that time, SHO/Inspector Ramesh Kumar and Ct. Satish were present with him. He also stated that from the spot, he went to PS Mundka and reached there at about 12.15 am. He also stated that no writing work was done at the spot as no eye witness was present at the spot. He further stated that the persons gathered at the spot had given information that injured Shivi Gupta was taken to Modi Nagar by her family members. He further stated that the dead body of deceased Shivi Gupta was brought in a private vehicle from Modi Nagar to Sanjay Gandhi Memorial hospital, Mangol Puri. He further stated that apart from him and Ct. Satish, no other person was there in the said vehicle FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 9 of 39 carrying the dead body from Modi Nagar to SGM hospital. He further stated that after preparing the Tehrir, neither he joined the investigation in this case nor visited the spot.
22. PW-7 Sh. Mohit Gupta deposed that IP Motel resort, Ghevra Mod, Main Rohtak Road is his property. On 01.04.2011 he had given the said property on lease to Sh. Sushil Aggarwal till 31.01.2014 for 34 months. He also deposed that the documents pertaining to said lease deed were prepared vide Ex.PW1/G and he identified his signatures on the same.
23. During cross-examination, he admitted that the documents Ex.PW1/G (colly) are not the registered documents.
24. PW-8 Sh. Surender deposed that on 25.11.2012, marriage of his son Kshitiz Mittal was solemnized at IP Motel near Ghevra Mod, Rohtak Road and the assembly point of both the parties was outside the said motel and that the said motel was booked by his brother Rajnish Gupta. He further stated that in the said marriage, he had invited his brother-in-law (Sadu) namely Vinay Gupta who alongwith his wife Pinki, his brother Sunil Gupta and their kids namely Shivi Gupta (niece of Vinay Gupta) and Ankit (Nephew of Sunil Gupta) had arrived. He further deposed that at about 8.30 pm, he had reached at the said motel and was looking after the arrangements inside the said motel and was attending the guests. He further deposed that he heard the noise of commotion and went out as to what had happened. By the time he reached outside, he was informed that someone has fired a girl namely Shivi Gupta and she was taken to hospital by her family members. He further deposed that IO FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 10 of 39 came to his residence and examined him about the incident and he had stated the abovesaid facts to IO. He also deposed that after the incident, no photography and videography was got done. He identified both the accused persons in the court being his relatives.
25. PW8 was cross examined by Ld. Addl. PP for the state as he was allegedly resiling from his earlier statement given to police. During cross-examination by Ld. Addl. PP for the state, he admitted that he had stated to the IO that one girl had sustained gunshot injury. He also admitted that he came to know that Shivi Gupta had expired and she was taken to her house at Modi Nagar, Ghaziabad. He also admitted that they completed the formalities of marriage and went home. He further admitted that they came to know about the death of Shivi Gupta after some time of her death and he informed his relatives about the same.
26. PW8 was not cross examined on behalf of accused persons despite opportunity given.
27. PW-9 Ms. Manisha Uptadhyaya, Assistant Director (Biology), FSL deposed that on 28.12.2012, three parcels in connection with present case were marked and assigned to her for examination which were duly sealed as per forwarding letter. She further deposed that Parcel 1 was a cloth parcel duly sealed with the seal of DK which was found containing Ex.1 i.e. piece of mat having dirty brownish blackish stains, parcel 2 was duly sealed with the seal of SGMH MORTUARY MANGOL PURI DELHI-83 which was found containing Ex.2 i.e. light brown gauze cloth piece, described as blood gauze. She further deposed FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 11 of 39 that the third parcel was a sealed polythene sealed with the seal of SGMH MORTUARY MANGOL PURI DELHI-83 which was found containing Ex.3a, 3b, 3c and 3d which were one lady shirt having dirty brown stains, one sameez having dirty brownish blackish stains, one pyajami having few dirty stains and one underwear having dirty stains respectively. She further deposed that all the exhibits were biologically examined, out of which blood was detected on Exhibits 1, 2, 3a, 3b and 3c and blood could not be detected on Ex.3d. She further deposed that on serological examination, human blood was found on all the exhibits except Ex.3d and no blood group was found on aforesaid exhibits. She further deposed that after examination, remnants of the exhibits were sealed with the seal of FSL MU DELHI and she identified her signatures on examination report Ex.PW9/A including forwarding letter. She also identified the case property i.e. piece of mat Ex.P1, piece of blood gauze Ex.P-2 and clothes Ex.P-3 (colly).
28. PW9 was also not cross examined on behalf of accused persons despite opportunity given.
29. PW-10 Ct. Surinder deposed that on 28.12.2012, as per directions of IO, he collected sealed exhibits from MHC(M) vide RC No. 202/21/12 and 203/21/12 alongwith FSL form for depositing the said exhibits to FSL, Rohini. He further deposed that he had deposited three sealed pullandas vide RC No. 202/21/12 at Biology department, FSL whereas he had taken one sealed pullanda vide RC No. 203/21/12 for depositing the same at Ballistic department, but the same was returned by Ballistic department with request of FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 12 of 39 providing cartridges for test firing. He returned to Malkhana and handed over the sealed pullanda and copy of RC to MHC(M). He further deposed that he had also handed over the acknowledgment receipt given by biology department of FSL Rohini.
30. PW10 was also not cross examined on behalf of accused persons despite opportunity given.
31. PW-11 Ct. Satish deposed that on 25.11.2012 he was on emergency duty with ASI Abhinandan from 8 PM to 8 AM and on that day at about 11 PM, he alongwith ASI Abhinandan reached at IP Motel Resort where they came to know that one girl had sustained bullet injuries and was taken by her parents to Modi Nagar, U.P. He further deposed that they returned to PS and ASI Abhinandan made departure entry vide DD No. 6B dated 26.11.2012 and they left for Modi Nagar, U.P. and reached at Gali No.2, Bhupender Nagar, U.P. where house of deceased Shivi Gupta was situated. He further deposed that IO checked the dead body and noticed mark of bullet injury on her chest. He further deposed that they brought the dead body to SGM hospital and body was medically examined vide MLC and was declared brought dead by the concerned doctor. Thereafter, the body was shifted to mortuary of SGM hospital. He further deposed that they went to PS and ASI Abhinandan got the case registered. Thereafter, further investigation was handed over to SI Dinesh and he alongwith SI Dinesh went to SGM hospital mortuary and got the postmortem conducted on the body of deceased. He further deposed that after postmortem, concerned doctor FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 13 of 39 handed over one black coloured sealed polythene containing clothes of deceased, one sealed transparent plastic container containing bullet and one sealed white envelope containing blood gauze of deceased alongwith sample seal, which were seized by IO vide seizure memo Ex.PW11/A.
32. This witness was not cross examined on behalf of accused persons despite opportunity given.
33. PW-12 ASI Rajesh Kumar has deposed that on 26.11.2012, he was posted at PS Mundka and was working as Duty officer from 8 AM to 4 PM. At about 11.15 AM, he received rukka from ASI Abhinandan for registration of FIR. He made endorsement on rukka Ex.PW12/A. He further deposed that on the basis of same, FIR Ex.PW12/B was got registered through CIPA operator. He also issued certificate u/s 65B of Indian Evidence Act Ex.PW12/C. He further deposed that after registration of FIR, copy of same and original rukka was handed over to SI Dinesh for further investigation.
34. This witness was not cross examined on behalf of accused persons despite opportunity given.
35. PW-13 ASI Hari Singh has deposed that on 26.11.2012 he was working as MHC(M). On that day, SI Dinesh had deposited three sealed pullandas alongwith sample seal of SGMH Mortuary Mangolpuri Delhi and he made entry in this regard at serial no. 401 of register no. 19 vide Ex.PW13/A. He further deposed that on 27.11.2012 SI Dinesh Kumar again deposited one sealed pullanda sealed with the seal of DK containing blood stained mat and he made entry at serial no. 402 in register no. 19 vide FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 14 of 39 Ex.PW13/B. He further deposed that on 01.12.2012, SI Dinesh Kumar again deposited one sealed pullanda sealed with the seal of DK containing revolver and he made entry at serial no. 409 in register no. 19 vide Ex.PW13/C. He further deposed that as per direction of IO, on 28.12.2013, he handed over three sealed pullandas to Ct. Surender for depositing the same at FSL vide RC No. 202/21/12 Ex.PW13/D. He further deposed that on 28.12.2012, Ct. Surender had taken three sealed pullandas vide RC No. 202/21/12 and after depositing the same, he handed over copy of RC and acknowledgment receipt of FSL to him which is Ex.PW13/E. He further deposed that on 23.01.2013, Ct. Rakesh Kumar collected two sealed pullandas from him vide RC No. 7/21/13 and after depositing one pullanda at FSL, he returned to PS Malkhana and handed over sealed plastic container containing four cartridges, copy of RC and acknowledgment receipt vide Ex.PW13/F and Ex.PW13/G.
36. This witness was not cross examined on behalf of accused persons despite opportunity given.
37. PW-14 Dr. Rajesh CMO, BSA Hospital deposed that on 26.11.2012, one patient namely Shivi Gupta was brought by Ct. Sher Singh at about 10.40 am. He examined the patient vide MLC No. 2053 dated 26.11.2012 Ex.PW14/A and on examination, the patient was declared brought dead and body was shifted to mortuary of SGM hospital for postmortem.
38. This witness was not cross examined on behalf of accused persons despite opportunity given.
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39. PW-15 Ct. Rakesh deposed that on 23.01.2013, he collected from MHC(M) two sealed pullandas and one small plastic container containing four live cartridges of 32" bore vide RC No. 7/21/13 and deposited the same at Ballestic division, FSL but they had returned the small plastic container containing aforesaid cartridge on the pretext that long cartridges were required. He handed over the same to MHC(M) alongwith copy of RC and FSL receipt.
40. During cross-examination, he stated that he did not know if the small plastic container was transparent or not.
41. PW-16 Sh. Manoj Gupta deposed that on 25.11.2012, he alongwith his family members went to attend the marriage of son of Sh. Surender Kumar namely Shitiz Gupta, which was organized at IP Motel near Ghevra More, Rohtak Road. He further deposed that one tent was installed near the said IP Motel to welcome the guests. While he was parking his car, he came to know that one girl had received gunshot injury. Upon receiving the said information, he rushed towards the Barat procession but by the time he reached at the said procession, the injured girl was already taken to hospital.
42. PW16 was cross examined by Ld. Addl. PP for the state as he was allegedly resiling from his earlier statement made before the police. During cross-examination by Ld. Addl. PP for the state, he admitted that in the said Barat procession, the guests were dancing. He also admitted that both the accused persons i.e. Ankit Gupta and Jag Bhushan Garg are the distant relatives of Sh. Surender Kumar. He further admitted that later he came to know that the said girl had FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 16 of 39 expired in the hospital during treatment due to bullet injury.
43. This witness was not cross examined on behalf of accused persons despite opportunity given.
44. PW-17 Sh. Rajneesh Gupta deposed that Sh. Surender Kumar is his elder brother and that on 25.11.2012, he alongwith his family members went to attend the marriage of son of his brother Sh. Surender Kumar namely Shitiz Gupta. The said marriage function was organized at IP Motel near Ghevra More, Rohtak Road which was booked by him as the said Motel belong to his friend Sushil Aggarwal. He further deposed that he had booked Asha Band from Titarpur for the said marriage procession. He further deposed that both the accused persons i.e. Ankit Gupta (who is the nephew of brother-in-law of his brother) and Jag Bhushan Garg (who is relative from the in-laws side of his brother) were also present in the said marriage procession. He further deposed that one tent was installed near the said IP Motel to welcome the guests. While he was present at near the Halwai, he came to know that one girl had received gunshot injury and the said girl was the daughter of the brother of brother-in-law of his brother (Mere bhai ke sadhu ke bhai ki ladki). He further deposed that upon receiving the said information, he rushed towards the Barat procession, by the time, he reached at the said procession, the injured girl was already taken to hospital.
45. PW17 was cross examined by Ld. Addl. PP for the state as he was allegedly resiling from his earlier statement made before the police. During cross-examination by Ld. Addl. PP for the state, He admitted that in the said barat procession, FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 17 of 39 the guests were dancing. He also admitted that both the accused persons are the distant relatives of Sh. Surender Kumar and were also present in the said barat procession. He further admitted that later he came to know that the said girl had expired in the hospital during treatment due to bullet injury.
46. This witness was not cross examined on behalf of accused persons despite opportunity given.
47. PW-18 Sh. Vinay Gupta deposed that Sh. Surender Kumar is his brother-in-law (Sadhu) and on 25.11.2012, he alongwith his family members went to attend the marriage of son of his brother-in-law (Sh. Surender Kumar) namely Shitiz Gupta, which was organized at IP Motel near Ghevra More, Rohtak Road. He further deposed that the said marriage place i.e. IP Motel was booked by Sh. Rajneesh Gupta i.e. brother of Sh. Surender Kumar as the said Motel belonged to his friend Sushil Aggarwal. He further deposed that they booked Asha Band from Titarpur for the said marriage procession and both the accused persons i.e. Ankit Gupta who is his nephew and Jag Bhushan Garg who is his relative were also present in the said marriage procession. He further deposed that one tent was installed near the said IP Motel to welcome the guests. While he was on the way to the Barat procession, he came to know that Shivi Singhal had received gunshot injury. He further deposed that upon receiving the said information, he rushed towards the Barat procession, by the time he reached at the said procession, the injured girl was already taken to hospital.
48. PW18 was cross examined by Ld. Addl. PP for the state as FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 18 of 39 he was allegedly resiling from his earlier statement made before the police. During cross-examination by Ld. Addl. PP for the state, PW18 stated that it is not within his knowledge if in the said Barat his relative Jag Bhushan Garg was also invited or was present in the Barat procession. He also stated that it is not within his knowledge if accused Jag Bhushan Garg was having licensed revolver or that he had brought the said revolver in the said marriage function. He admitted that he came to know that Shivi had received gunshot injury and expired due to said injury.
49. This witness was not cross examined on behalf of accused persons despite opportunity given.
50. PW-19 Sh. Shekhar Singhal deposed that Sh. Surender Kumar is his Samdhi. On 25.11.2012, he alongwith his family members went to attend the marriage of son of his Samdhi Sh. Surender Kumar namely Shitiz Gupta, which was organized at IP Motel near Ghevra More, Rohtak Road. He further deposed that the said marriage place i.e. IP Motel was booked by Sh. Rajneesh Gupta i.e. brother of Sh. Surender Kumar and they booked Asha Band from Titarpur for the said marriage procession. He further deposed that both the accused persons i.e. Ankit Gupta and Jag Bhushan Garg who are his relatives were also present in the said marriage procession. He further deposed that one tent was installed near the said IP Motel to welcome the guests. While he was present inside the Mandap, he came to know that one girl had received gunshot injury and the injured girl was already taken to hospital. He also came to know that the bullet was fired in the Barat procession by the relatives from FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 19 of 39 the side of groom.
51. This witness was not cross examined on behalf of accused persons despite opportunity given.
52. PW-20 Ms. Laxmi Singhal has deposed that Sh. Surender Kumar is her Samdhi. On 25.11.2012, she alongwith her family members went to attend the marriage of son of her Samdhi Sh. Surender Kumar namely Shitiz Gupta, which was organized at IP Motel near Ghevra More, Rohtak Road. She further deposed that the said marriage place i.e. IP Motel was booked by Sh. Rajneesh Gupta i.e. brother of Sh. Surender Kumar and they had booked Asha Band from Titarpur for the said marriage procession. She further deposed that both the accused persons i.e. Ankit Gupta and Jag Bhushan Garg who are her relatives were also present in the said marriage procession. She further deposed that while she was present inside the Mandap, she came to know that one girl had received gunshot injury and the injured girl was already taken to hospital. She also came to know that the bullet was fired in the Barat procession by the relatives from the side of groom.
53. This witness was not cross examined on behalf of accused persons despite opportunity given.
54. PW-21 Inspector Dinesh Kumar deposed that on 26.11.2012, after the registration of FIR, the investigation was marked to him. Accordingly, he had collected copy of FIR and original rukka from DO and thereafter, he alongwith Ct. Satish went to the place of occurrence i.e. I.P Motel, Tikri Kalan, Delhi. He further deposed that during investigation, he had prepared rough site plan Ex.PW21/A FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 20 of 39 of the place of occurrence. On the same day, he got conducted postmortem on the body of deceased vide application Ex.PW21/B and also prepared brief facts Ex.PW21/C. He had also filled form no. 25.35 Ex.PW21/D and recorded the statements of witnesses i.e. of Deepak Gupta Ex.PW2/A and Anurag Gupta Ex.PW5/A regarding the identification of body of Shivi. He further deposed that after postmortem, the body of deceased Shivi was handed over to her relatives vide receipt Ex.PW2/B and the concerned doctor handed over him the exhibits which he had seized vide seizure memo Ex.PW11/A. He further deposed that he had recorded the statements of witnesses and also collected the postmortem report. He further deposed that on 27.11.2012, he went to the place of occurrence and prepared rough site plan Ex.PW3/A and interrogated the staff members of said motel and also lifted the piece of mat having blood stains and after sealing the same seized the same vide memo Ex.PW1/C. He had also seized the booking slip of the marriage function vide memo Ex.PW1/A. He further deposed that on 01.12.2012, Smt. Mohini Garg i.e. wife of accused Jagbhushan Garg came to PS, met him and handed over the weapon of offence i.e. revolver and Arm license in favour of accused Jagbhushan Garg. PW21 prepared the sketch of said revolver Ex.PW21/E and sealed the said revolver with the seal of 'DK' and thereafter, the sealed pullanda and license were seized vide seizure memo Ex.PW21/F. He further deposed that on 05.12.2012, further investigation of the present case was marked to Inspector Ramesh Chander and he had FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 21 of 39 handed over the case file to MHCR.
55. During cross-examination on behalf of accused persons, PW21 denied the suggestion that he had not carried out fair investigation or that he had recorded the statement of witnesses of his own subject to his convenience in order to falsely implicate the accused persons in the present case. He stated that till the time the investigation remained with him, he had not seized any videography or photographs capturing the occurrence in question.
56. PW-22 ACP Ram Avtar deposed that on 30.11.2014, further investigation of the case was taken up by him and during investigation, he had recorded the statement of witnesses u/s 161 Cr.P.C. He further deposed that during investigation, on 30.12.2014 he wrote a letter to DM, Gautam Budh Nagar for conducting verification in respect of genuineness/clarification of number of license of Arm used in the present case and had collected the said report. He further deposed that during investigation, he had also seized the marriage card being produced by one Sh. Surender and upon completion of investigation, he prepared the charge-sheet.
57. During cross-examination on behalf of accused persons, PW21 denied the suggestion that he had not carried out fair investigation or that he had recorded the statement of witnesses of his own subject to his convenience in order to falsely implicate the accused persons in the present case. He stated that till the time the investigation remained with him, he had not seized any videography or photographs capturing the occurrence in question.
FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 22 of 39
58. PW-23 Dr. Munish Wadhawan deposed that on 26.11.2012, he was posted as Junior Specialist, Forensic Medicine with SGM hospital, Delhi. On that day, he alongwith Dr. Manoj Dhingra (since expired) conducted postmortem on the body of Shivi D/o Sh. Deepak Gupta and prepared PM report no. 1023/2012 Ex.PW23/A. He further deposed that after conducting postmortem, they opined the reason of death of Shivi to be due to hemorrhage and shock associated with injury no.1 as mentioned in PM report. He further deposed that the said injury could be possible by a projectile discharge from a fire arm weapon capable of discharging such a projectile. He also deposed that all the injuries were ante-mortem in nature and after conducting postmortem, they handed over the inquest papers, sample seal of department, sealed clothes and other articles i.e. bullet and blood stained gauze in sealed pullandas.
59. This witness was not cross examined on behalf of accused despite opportunity given.
60. PW-24 Retired ACP Sh. Ramesh Chander deposed that on 05.12.2012, further investigation of the present case was taken over by him and he perused the case file and on the same day, accused Jagbhushan Garg was granted anticipatory bail. He further deposed that during investigation, on 18.12.2012 he had effected the arrest of accused Ankit Gupta vide arrest memo Ex.PW24/A and conducted his personal search vide memo Ex.PW24/B and also recorded his disclosure statement Ex.PW24/C and thereafter, accused Ankit Gupta was remanded to JC. He further deposed that on 27.12.2012 he had formally arrested FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 23 of 39 accused Jagbhushan Garg vide arrest memo Ex.PW24/D. He further deposed that during investigation, on 28.12.2012, on his instructions, Ct. Surender collected three parcels from MHC(M) and deposited the same at FSL Rohini vide RC No. 202/21/12. On 12.12.2012 he had moved a request letter to the licencing branch with a request to cancel the armed license of accused Jagbhushan Garg. He further deposed that on 23.01.2013 vide RC No. 7/21/13, he had sent the pullandas containing the weapon of offence i.e. revolver and fired lid to FSL Rohini through Ct. Rakesh. Thereafter, on 10.02.2013 since he was transferred, file was handed over to MHC(R).
61. PW-25 ACP Sh. Raj Kumar deposed that on 13.02.2013 further investigation of the present case was taken over by him and during investigation, on 20.03.2013 he had collected result from Biology division of FSL. He further deposed that during investigation, on 08.05.2013 he had also collected result from Ballistic division of FSL. Thereafter, since he was transferred, the file was handed over to MHC(M).
62. This witness was not cross examined on behalf of accused persons despite opportunity given.
63. On 08.02.2023 prosecution evidence was closed. On 28.02.2023, statements of accused persons namely Ankit Gupta and Jag Bhushan Garg were recorded u/s 313 Cr.P.C. In their statements u/s 313 Cr.P.C, accused have submitted that they are innocent and have been falsely implicated and that they have no connection with commission of offence of the present case. They submitted that in fact they were not FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 24 of 39 even present in the said marriage. Accused Jag Bhushan Garg submitted that during the investigation, police came to his house and made inquiries about his licensed revolver and his wife handed over the said licensed revolver alongwith its license. Both the accused opted not to lead any evidence in their defence.
FINDINGS & OBSERVATIONS:
64. I have heard the arguments advanced before me by the Ld. Addl. PP for the Sate and the Ld. Defence Counsel. My findings are as under:
Ocular Evidence:
65. Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness.
66. The case of the prosecution is mainly based upon the testimonies of PW1 Sh. Sushil Aggarwal, PW3 Sh. Subhash Sharma, PW4 Sh. Sadanand Mishra, PW8 Sh. Surender, PW16 Sh. Manoj Gupta, PW17 Sh. Rajnish Gupta and PW18 Sh. Vinay Gupta.
67. Since the prosecution is placing its heavy reliance on the testimonies of PW1 Sh. Sushil Aggarwal, PW3 Sh. Subhash Sharma, PW4 Sh. Sadanand Mishra, PW8 Sh. Surender, PW16 Sh. Manoj Gupta, PW17 Sh. Rajnish Gupta and PW18 Sh. Vinay Gupta, it is therefore necessary for this Court to first determine whether their testimonies are reliable and truthful and whether the said witnesses have supported the case of the prosecution or otherwise.
68. It is settled law that in a case where the testimony of a FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 25 of 39 witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
69. Applying the settled principles of law to the facts of the present case, coming first to the testimony of PW1 Sh.
FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 26 of 39 Sushil Aggarwal, it is hereby observed that this witness has not supported the case of prosecution in any manner. He simply deposed that on the date of incident at about 9-9.30 PM, he was present in his office, someone informed him about the incident of firing near assembly point and he rushed to the spot and came to know that one girl had sustained injury due to firing of gunshot. This witness was cross examined by Ld. Addl. PP for the state after seeking permission from the court. Despite the fact that this witness has been cross examined at length by Ld. Addl. PP for the state, this witness has not supported the case of prosecution in any manner. He denied to have made statement Mark PW1/A before the police. He denied that he came to know that one girl namely Shivi Gupta had sustained gunshot injury or the firing was done by her cousin or that the license of the said weapon of offence was in the name of accused Jagbhushan Garg. He also denied that the said gunshot was fired by accused Ankit Gupta @ Shankar. The overall impact of testimony of PW1 Sh. Sushil Aggarwal is that the testimony of this witness is not helpful to the prosecution in any manner. During cross-examination, Ld. Addl. PP has also read over the statement Mark PW1/A which this witness has allegedly made before the police but this witness has denied to have made any such statement to the police.
70. Now coming to the testimony of PW3 Sh. Subhash Sharma i.e. another material witness of the prosecution, it is hereby observed that this witness has also not supported the case of prosecution in any manner. He simply deposed that on FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 27 of 39 25.11.2012, he was present in the IP Motel i.e. venue of the marriage and heard some noise and he rushed outside the said motel and by that time, the injured girl was already taken from there. This witness was also cross examined by Ld. Addl. PP for the state after seeking permission from the court. Despite the fact that this witness has been cross examined at length by Ld. Addl. PP for the state, this witness has not supported the case of prosecution in any manner. He denied that on 25.11.2012 at about 10 PM-10.30 PM, he was sitting at the Barat Assembly point or that when the groom boarded the Baggi, all the baratis were dancing in front of him or that one boy aged about 22-25 years and one girl aged about 13-14 years were jointly firing gunshot. He further denied that they had fired two bullets in the air or that thereafter there was some obstruction in their revolver or that the said boy was trying the clear the said obstruction by pointing out revolver towards the ground or that at the same time, one bullet was fired from the said revolver and the said girl fell on the ground having sustained bullet injury. He denied to have made statement Mark PW3/1 before the police. He also failed to identify accused Ankit Gupta despite being pointed out.
71. The overall impact of testimony of PW3 Sh. Subhash Sharma is that the testimony of this witness is not helpful to the prosecution in any manner. During cross-examination, Ld. Addl. PP has also read over the statement Mark PW3/1 which this witness has allegedly made before the police but this witness has denied to have made any such statement to the police and also failed to identify accused Ankit Gupta FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 28 of 39 being the person who fired gunshot and caused injury to the said girl.
72. Now coming to the testimony of PW4 Sh. Sadanand Mishra, who is also one of the material witness of the prosecution, however, it is hereby observed that this witness has also not supported the case of prosecution in any manner. He simply deposed that on 25.11.2012, he was present inside the IP motel and was laying down the mattresses in the lawn and he heard some noise and he rushed outside the said motel and by the time he reached outside the motel, the injured girl was already taken from there. This witness was also cross examined by Ld. Addl. PP for the state after seeking permission from the court. Despite the fact that this witness has been cross examined at length by Ld. Addl. PP for the state, this witness has not supported the case of prosecution in any manner. He denied that on 25.11.2012 at about 10-10.30 PM, he was present near the assembly point of barat or that when the groom boarded the Baggi, all the baratis were dancing in front of him or that one boy aged about 22-25 years and one girl aged about 13- 14 years were jointly firing gunshot. He further denied that they had fired two bullets in the air or that thereafter there was some obstruction in their revolver or that the said boy was trying the clear the said obstruction by pointing out revolver towards the ground or that at the same time, one bullet was fired from the said revolver and the said girl fell on the ground having sustained bullet injury. He denied to have made statement Mark PW4/1 before the police. He also failed to identify accused Ankit Gupta despite being FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 29 of 39 pointed out.
73. The overall impact of testimony of PW4 Sh. Sadanand Mishra is that the testimony of this witness is not helpful to the prosecution in any manner. During cross-examination, Ld. Addl. PP has also read over the statement Mark PW4/1 which this witness has allegedly made before the police but this witness has denied to have made any such statement to the police and also failed to identify accused Ankit Gupta being the person who fired gunshot and caused injury to the said girl.
74. Now coming to the testimony of PW8 Sh. Surender, who is also one of the material witness of the prosecution, however, it is observed that this witness has also not supported the case of prosecution in any manner. This witness was also cross examined by Ld. Addl. PP for the state after seeking permission from the court. Despite the fact that this witness has been cross examined at length by Ld. Addl. PP for the state, this witness has not supported the case of prosecution in any manner. He denied that accused Jag Bhushan Garg was present in the marriage function or that when Barat reached outside IP Motel or when groom was sitting at the horse cart, at that time, accused Ankit Gupta, Shivi Gupta, accused Jag Bhushan Garg and Sh. Vinay Gupta were present in the Barat or that his relative i.e. accused Jag Bhushan Garg was having licensed revolver or that Jag Bhushan Garg and Ankit Gupta were firing from the said revolver or that Shivi Gupta was standing near the said person or that he had stated to IO that when he rushed to the spot, he saw that Shivi Gupta had sustained gunshot injury FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 30 of 39 or that accused Ankit Gupta was holding revolver in his hand and accused Jag Bhushan Garg was looking towards the girl or that he stopped the band and fire work or that in his presence, Vinay Gupta and other relative took Shivi Gupta to the hospital or that both the accused persons also accompanied them. He denied to have made statement Ex. PW8/A before the police.
75. The overall impact of testimony of PW8 Sh. Surender is that the testimony of this witness is not helpful to the prosecution in any manner. During cross-examination, Ld. Addl. PP has also read over the statement Ex.PW8/A which this witness has allegedly made before the police but this witness has denied to have made any such statement to the police.
76. Now coming to the testimony of PW16 Sh. Manoj Gupta, who is also one of the material witness of the prosecution, however, it is hereby observed that this witness has also not supported the case of prosecution in any manner. This witness was also cross examined by Ld. Addl. PP for the state after seeking permission from the court. Despite the fact that this witness has been cross examined at length by Ld. Addl. PP for the state, this witness has not supported the case of prosecution in any manner. He denied that he had seen accused Ankit Gupta firing in the said barat procession or that he had seen accused Jag Bhushan Garg and Ankit Gupta present in the said barat procession or that he had seen them firing. He denied to have made statement Mark PW16/A before the police.
77. The overall impact of testimony of PW16 Sh. Manoj FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 31 of 39 Gupta is that the testimony of this witness is not helpful to the prosecution in any manner. During cross-examination, Ld. Addl. PP has also read over the statement Mark PW16/A which this witness has allegedly made before the police but this witness has denied to have made any such statement to the police.
78. Now coming to the testimony of PW17 Sh. Rajneesh Gupta, who is also one of the material witness of the prosecution, however, it is hereby observed that this witness has also not supported the case of prosecution in any manner. This witness was also cross examined by Ld. Addl. PP for the state after seeking permission from the court. Despite the fact that this witness has been cross examined at length by Ld. Addl. PP for the state, this witness has not supported the case of prosecution in any manner. He denied that he had seen accused Ankit Gupta firing in the said barat procession or that he had seen accused Jag Bhushan Garg and Ankit Gupta present in the said barat procession or that he had seen them firing from their licensed revolver in the barat procession or that while accused persons were firing from their licensed revolver, one of the bullet struck upon the said girl. He denied to have made statement Mark PW17/A before the police.
79. The overall impact of testimony of PW17 Sh. Rajneesh Gupta is that the testimony of this witness is not helpful to the prosecution in any manner. During cross-examination, Ld. Addl. PP has also read over the statement Mark PW17/A which this witness has allegedly made before the police but this witness has denied to have made any such statement to FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 32 of 39 the police.
80. Now coming to the testimony of PW18 Sh. Vinay Gupta, who is also one of the material witness of the prosecution, however, it is hereby observed that this witness has also not supported the case of prosecution in any manner. This witness was also cross examined by Ld. Addl. PP for the state after seeking permission from the court. Despite the fact that this witness has been cross examined at length by Ld. Addl. PP for the state, this witness has not supported the case of prosecution in any manner. He denied that it is not within his knowledge if in the said barat, his relative Jag Bhushan Garg was also invited or was present in the barat procession or that accused Jag Bhushan Garg was having licensed revolver or that accused Jag Bhushan Garg had brought the said licensed revolver in the said marriage function or that he came to know that accused Ankit Gupta was firing in the said barat procession. He also denied that he came to know that accused Jag Bhushan Garg and Ankit Gupta fired from their licensed revolver or that while accused persons were firing from their licensed revolver, one of the bullet struck upon Shivi. He also denied that when he rushed to the place of occurrence, he came to know that bullet was fired by accused Ankit Gupta from the revolver of accused Jag Bhushan Garg and due to the said firing, Shivi received gunshot injury. He denied to have made statement Mark PW18/A before the police.
81. The overall impact of testimony of PW18 Sh. Vinay Gupta is that the testimony of this witness is not helpful to the prosecution in any manner. During cross-examination, Ld. FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 33 of 39 Addl. PP has also read over the statement Mark PW18/A which this witness has allegedly made before the police but this witness has denied to have made any such statement to the police.
82. Now, let us see if there is any other evidence in the form of the testimonies of public witnesses to connect the accused persons with commission of offence in question. It is hereby observed that PW2 Sh. Deepak Gupta has only identified the dead body of his daughter vide identification memo Ex.PW2/A. PW5 Sh. Anurag Gupta has also identified the dead body of Shivi Gupta vide identification memo Ex.PW5/A. PW7 Sh. Mohit Gupta has only produced the documents pertaining to the lease deed of IP Motel Resort and exhibited the said documents as Ex.PW1/G. PW19 Sh. Shekhar Singhal has only deposed that he came to know that one girl has received gunshot injury and was taken to hospital and he also came to know that the bullet was fired in the barat procession by the relative from the side of groom. PW20 Ms. Laxmi Singhal has only deposed that she came to know that one girl has received gunshot injury and was taken to hospital and she also came to know that the bullet was fired in the barat procession by the relative from the side of groom. Both PW19 and PW20 have deposed that accused persons i.e. Ankit Gupta and Jag Bhushan Garg were present in the said marriage procession but they have not attributed any role of the accused persons in the commission of offence, even in their statements before the police as well as before the court. The testimony of the aforesaid witnesses also does not connect any of the FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 34 of 39 accused persons with the commission of offence in question.
83. Now, let us see if there is any other evidence in the form of testimonies of police/official witnesses to connect the accused persons with commission of offence in question. It is observed that PW6 ASI Abhinandan and PW11 Ct. Satish are formal witnesses who alongwith SHO went to the place of occurrence and upon reaching at the spot, PW6 made inquiries and also made efforts to examine the persons present in the marriage procession but no eye witness was found. Thereafter, vide DD No. 6B, PW6 and PW11 went to Modi Nagar, U.P and upon reaching at Gali No.2, Bhupender Puri, Modi Nagar, they found dead body of Shivi Gupta and accordingly, they brought the said dead body to SGM hospital, Mangol Puri and thereafter to mortuary. On inquiry, it was revealed that the fire arm which was used in the incident belonged to Jag Bhushan Garg which was a licensed revolver. PW6 also prepared rukka Ex.PW6/A and got the FIR registered. From the testimony of PW6 ASI Abhinandan and PW11 Ct. Satish, no incriminating evidence has come on record against the aforesaid accused persons.
84. It is further observed that PW10 Ct. Surinder is also a formal witness and deposed to have collected sealed exhibits from MHC(M) and deposited the same at FSL. PW12 ASI Rajesh Kumar is a duty officer who registered FIR Ex.PW12/A and handed over the investigation to SI Dinesh. PW13 ASI Hari Singh is MHC(M) and has exhibited the relevant entries in register no. 19 as Ex.PW13/A to Ex.PW13/C and relevant road certificate as FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 35 of 39 Ex.PW13/D. PW15 Ct. Rakesh deposed to have collected two sealed pullandas and one small plastic container from MHC(M) and deposited the same at ballistic division. PW22 ACP Ram Avtar is also a formal witness and conducted part investigation and deposed to have recorded the statement of witnesses and he also got verified the genuineness of the license of arm and upon completion of investigation, prepared charge-sheet. PW24 ACP Sh. Ramesh Chander deposed to have arrested accused Ankit Gupta vide arrest memo Ex.PW24/A and also formally arrested accused Jag Bhushan Garg vide memo Ex.PW24/D and also sent the exhibits to FSL and also moved an application to the licensing branch with a request to cancel the armed license of accused Jag Bhushan Garg. PW25 ACP Sh. Raj Kumar deposed to have collected result from biology division of FSL as well as from ballistic division of FSL. The testimony of aforesaid witness also does not connect any of the accused persons with the commission of offence in question.
85. Now let us see if there is any scientific evidence on record to connect the accused persons with the commission of offence in question. In this regard, it is observed that during the course of trial, PW9 Ms. Manisha Upadhyay deposed to have examined the exhibits biologically and prepared report Ex.PW9/A. She deposed that blood was detected on Ex.1 i.e. piece of mat, Ex.2 blood gauze, Ex.3a, Ex.3b and Ex.3c i.e. one lady shirt, one shameez and one pajami, however, blood could not be detected on Ex.3d i.e. one underwear. She further deposed that on serological examination, human blood was found on all the exhibits except Ex.3d and no FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 36 of 39 blood group was found on the aforesaid exhibits. The said FSL report Ex.PW9/A does not connect any of the accused persons with the commission of offence.
86. During the course of trial, the accused persons made joint statement u/s 294 Cr.P.C wherein they have admitted the ballistic report dated 26.03.2013 prepared by Sh. N.P Waghmare and the prosecution has tendered the said FSL report in evidence as Ex.PX. The said report reflects that 'the individual striation marks present on evidence deformed bullet marked exhibit EB1 are insufficient for comparison and opinion whether it has been discharged through the exhibit standard revolver marked F1 bearing No. B4352 or not'. In view of the aforesaid report, the prosecution has not been able to establish that the bullet marked EB1 was fired through the revolver Marked F1, so as to connect any of the accused persons with the commission of offence.
87. Now, let us see if there is any medical evidence on record to connect the accused persons with commission of offence in question. In this regard, it is observed that during trial, prosecution has examined PW12 Dr. Rajesh who had medically examined Shivi Gupta and prepared MLC Ex.PW14/A. PW23 Dr. Munish Wadhawan had conducted postmortem on the body of deceased Shivi and exhibited the said postmortem report as Ex.PW23/A and opined the cause of death of Shivi to be hemorrhage and shock consequent upon injury no.1 which was possible by a projectile discharge from a fire arm weapon. As per PW23, after postmortem, he handed over the inquest papers, sample seal, FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 37 of 39 sealed clothes as well as bullet and blood gauze in sealed pullandas to IO. In this regard, it is pertinent to mention that when the said bullet was sent to FSL alongwith the revolver, upon examination, the concerned ballistic expert i.e. N.P Waghmare has categorically mentioned 'the individual striation marks present on evidence deformed bullet marked exhibit EB1 are insufficient for comparison and opinion as to whether it has been discharged through the exhibit standard revolver marked F1 bearing No. B4352 or not'. Thus, even the medical evidence on record does not connect any of the accused persons with the commission of offence in question.
88. Now, let us see if the testimony of IO PW21 Inspector Dinesh Kumar connect any of the accused persons with the commission of offence. PW21 has deposed that on 26.11.2012 after registration of FIR, the investigation was marked to him and he accordingly went to the place of occurrence and prepared site plan Ex.PW21/A and got conducted postmortem on the body of deceased vide application Ex.PW21/B. He also deposed that he also lifted the piece of mat having blood stains from the place of occurrence and after sealing seized the same vide seizure memo Ex.PW1/C. He also deposed that during investigation, Smt. Mohini Garg i.e. wife of accused Jagbhushan Garg came to PS and handed over him the weapon of offence i.e. revolver and armed license in favour of accused Jag Bhushan Garg. He prepared sketch of said revolver Ex.PW21/E and after sealing, seized the said revolver vide seizure memo Ex.PW21/F. The aforesaid FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 38 of 39 testimony of this witness also does not connect any of the accused persons with the commission of offence.
89. In view of the abovesaid discussion, I hereby hold that the prosecution has been not been able to prove and establish that the accused Ankit Gupta @ Shankar committed culpable homicide not amounting to murder by causing the death of Shivi Gupta by gunshot or took the dead body of deceased Shivi Gupta to Modi Nagar, U.P with intent to destroy the evidence. Prosecution has also not been able to prove that accused Ankit Gupta @ Shankar was in possession of revolver or used the same in contravention of provision of Arms Act. The prosecution has also not been able to prove that accused Jag Bhushan Garg contravened the condition of armed license. Accordingly accused Ankit Gupta is acquitted for the offences charged against him i.e. for offences u/s 304/201 IPC & 25/27 Arms Act. Further, accused Jag Bhushan Garg is also acquitted for the offence charged against him i.e. for offence punishable u/s 30 Arms Act.
File be consigned to Record Room.
Digitally signed by MANISH MANISH KHURANA
KHURANA Date: 2023.05.03
(Passed & announced 11:18:49 +0530
in open court today) (MANISH KHURANA)
Addl. Sessions Judge-04
West District, Tis Hazari Courts
Delhi/03.05.2022
FIR No. 212/12 State Vs. Ankit Gupta & Anr PS Mundka Page no. 39 of 39