Delhi District Court
State vs . : 1) Rinku @ Bhainga on 6 December, 2018
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT, ROHINI
COURTS: DELHI
Sessions Case No:702/18
FIR No. : 300/16
U/s : 302/120B/174A/34 IPC
P.S. : Bawana
State Vs. : 1) Rinku @ Bhainga
S/o Sh. Rajender Singh
R/o House near Transformer,
Pooth Khurd, Bawana, Delhi.
2) Gaurav @ Monty
S/o Sh. Trilok Chand
R/o H.No.971, Village Pooth
Khurd, Delhi.
Offence complained of : 302/120/174A/34 IPC
Plea of accused : Pleaded not guilty
Final Order : Convicted U/s 174A IPC
Acquitted U/s 302/34 IPC
Date of committal : 10.10.2018
Date of Judgment : 06.12.2018.
JUDGMENT
1. On 18.07.2016 at about 7:00a.m. Rakesh was sitting on cot inside his H.No. 906, Bread wali Gali, Pooth Khurd, Delhi. He heard the sound of crackers. He went towards the main door of his house. In the meanwhile his elder brother Rohit came inside smeared with blood. Rinku @ Bhainga S/o Rajender, resident of their village, also came there and State Vs. Rinku @ Bhainga SC No. 702/18 :: 1 ::
fired on the chest of Rohit. Thereafter Rinku @ Bhainga fled away. Rohit went to the kitchen where mother was sitting and said "mai jaa raha hoon". Thereafter Rohit became unconscious. Rohit was removed to the hospital. Doctors examined him and declared him brought dead.
2. The FIR was registered. Initially only Chetan Kaushik was apprehended. The accused Monty @ Gaurav and Rinku @ Bhainga absconded. Later on both accused Monty @ Gaurav and Rinku @ Bhainga were arrested. According to the statement of Shyam Lal, Rinku @ Bhainga fired on Rohit at the instance of Monty @ Gaurav. After firing on Rohit, Rinku @ Bhainga fled away on the motorcycle of Chetan Kaushik.
3. After completion of investigation the charge sheet against accused Rinku @ Bhainga and Gaurav @ Monty was filed. They both were charged for the offence punishable U/s 302 IPC R/w Section 34 of IPC. They were also charged for the offence punishable U/s 174A IPC. Both accused persons pleaded not guilty and claimed trial. Thereafter the case was fixed for prosecution evidence.
4. Sh. Deepak was examined as PW-1. He deposed that he had not obtained any mobile number using his ID. He had never applied for issuance of any mobile phone number to Reliance company. The customer application form Ex.PW4/A State Vs. Rinku @ Bhainga SC No. 702/18 :: 2 ::
does not bear his photograph at point X and his signature at point Y. He does not know who used his photograph and ID for obtaining this number. The voter ID card is in his name but the photograph is not his. The photocopy of the voter ID card is Ex.PW1/X.
5. During cross-examination by Ld. Counsel for accused persons he denied the suggestion that he filled the customer application form Ex.PW4/A and obtained this mobile phone number which he handed over to some known person.
6. Parveen Rathore was examined as PW-2. He deposed that about 3-4 years ago he and his cousin Mukesh quarreled with Gaurav @ Monty. He correctly identified Gaurav @ Monty. He and Mukesh were arrested and were released on bail. That case is still pending. After one year of that quarrel his cousin Rohit was murdered. During that one year he had not seen Gaurav. He had also not talked with Gaurav during that period. He was cross examined by Ld. APP as he resiled from his earlier statement wherein he admitted that about 15 days prior to murder of his cousin Rohit, he had seen Gaurav @ Monty, Rinku @ Bhainga and Chetan Kaushik roaming near the house of his cousin Mukesh on motorcycle of Chetan Kaushik having registration No.DL 11SG 2832. He had also admitted that he and Mukesh were threatened by Gaurav that he will take revenge State Vs. Rinku @ Bhainga SC No. 702/18 :: 3 ::
of the beatings given to Gaurav and Rinku Bhainga. Witness also correctly identified Rinku @ Bhainga.
7. During cross-examination by the Ld. Counsel for the accused persons he admitted that both Gaurav and Rinku are the resident of village Pooth Khurd. He and his family members know him very well. He never made any complaint to the police about the threat extended by the accused persons. He does not know if Rinku @ Bhainga is running a dairy and supply milk in the village.
Q. Is it correct that the street in which house of Mukesh is situated coming from the side of MCD Park leads to the other street of the village?
Ans. That street leads to the industrial area.
8. His statement was recorded in the police station when he visited the police station along with his Tauji Shyam Lal. He visited the police station only once in connection with this case. He does not know if police obtained signatures of his Tauji Sh. Shyam Lal. Personal search of accused Chetan Kaushik does not bear his signature.
9. It takes five minutes on foot to reach the house of his Tau ji Sh. Shyam Lal from his house. He admitted that there are many streets bifurcating the street leading to the house of Shyam Lal from his house.
10. Mukesh was examined as PW-3. He deposed that on State Vs. Rinku @ Bhainga SC No. 702/18 :: 4 ::
18.07.2016 at about 6:15 am he was walking in park situated in front of house of his Tau ji Sh. Satpal. Rinku @ Bhainga and Chetan Kaushik were riding on a bike and they took two rounds in the street in which his house is situated. Later on he came to know that Rinku @ Bhainga had fired on his brother Rohit. He reached Maharshi Valmiki hospital where he came to know that his brother Rohit had died.
11. About one year prior to the murder of Rohit he and Parveen quarreled with Monty and Rinku @ Bhainga. Case was registered with respect to that quarrel. He and Parveen were granted bail from the police station. Monty and Rinku @ Bhainga used to say that they will take revenge. He identified both the accused persons produced through video conferencing. On 18.07.2016 he along with his family members went to BSA hospital where he identified dead body of Rohit vide memo Ex.PW21/A.
12. During cross-examination by the Ld. Counsel for the accused persons he stated that the MCD Park is abut to the Bawana main road. Some time co-villagers also came for morning walk to that park. He denied the suggestion that boundary wall of the park is about 5 to 6 ft high. He stated that boundary wall is only 3 or 3 ½ ft and above that there is an iron grill with the total height of 6 or 6½ ft. Sometime people park their tempo and truck by the side of the road State Vs. Rinku @ Bhainga SC No. 702/18 :: 5 ::
near the wall of the park but in the morning no such trucks or tempos are parked. The distance between the MCD park and his house is about 500 meters. He admitted that the street leading to their house is not visible from the park. Only the street going to the village from where the people take right turn is visible. He admitted that there are many streets bifurcating the street which opens on the main Bawana road. He does not know if many CCTV Cameras are installed outside the houses in the street leading to their house. There is no house on the left side of their residence, there is only Chaupal. There is no CCTV camera installed at the Chaupal. He does not remember how many times he visited police station in connection with this case. His statement was recorded on 18.07.2016 at about 7:30 or 8:00 a.m. He never made any complaint about the threats extended by accused persons. His uncle Ram Kumar @ Pappey is agriculturist. He denied the suggestion that Rohit used to work with Ram Kumar in property dealing or that Ram Kumar and Rohit had taken illegal possession of some properties in the village.
13. He does not know at what time he reached the hospital from the park. He straight away went to the hospital. His cousin Neeraj met him in the hospital.
14. HC Sushil was examined as PW-4. He deposed that on 18.10.2016 on the direction of SHO and IO he took 10 State Vs. Rinku @ Bhainga SC No. 702/18 :: 6 ::
exhibits from MHC(M) duly sealed along with sample seal vide RC No.178/21/16 for depositing in FSL. He deposited the exhibits and the sample seal in FSL and obtained the acknowledgement along with copy of RC. He returned to the police station and handed over the acknowledgement and copy of RC to the MHC(M). During the period exhibits remained in his possession no one tempered the same in any manner. Nothing material came on record to discredit the witnesses during cross examination by the Ld. Counsel for the accused persons.
15. Shyam Lal was examined as PW-5. He deposed that about three and a quarter years back his son Mukesh and son of Anant Ram quarrelled with 5-6 boys in front of his house. Gaurav @ Monty was among those 5-6 persons. He does not know the names of other boys. The matter was reported to the police and FIR was registered. Matter was settled in the police station itself. After one year of that quarrel on 18.07.2016 he along with Rohit had gone to the plot in the morning. Rohit returned home prior to him. While he was still at plot his wife informed him on telephone that Rohit had sustained injuries. She was weeping at that time. His wife also informed him that Rohit is being taken to the hospital. From the plot he reached Maharshi Valmiki hospital. Neighbours were there in the hospital. He was told that Rohit State Vs. Rinku @ Bhainga SC No. 702/18 :: 7 ::
had sustained bullet injury and is dead. He was told by the public persons present there that Bhainga @ Rinku, Gaurav @ Monty and Chetan Kaushik fired on his son Rohit. Dead body was shifted to the mortuary of BSA hospital. After the post mortem the dead body was handed over to them. He was cross-examined by Ld. APP as he resiled from his earlier statement.
16. During cross-examination he stated that he cannot recognize Gaurav @ Monty, Rinku @ Bhainga and Chetan Kaushik. He had not seen Gaurav @ Monty, Rinku @ Bhainga and Chetan @ Kaushik on 18.07.2016 roaming in their street at about 6:30 am or that Gaurav @ Monty was in his white colour swift car or that Rinku @ Bhainga and Chetan were on motorcycle or that they were discussing with each other. He had not seen that at about 7:00 am Guarav @ Monty parked his car at the corner of the street and gave some instruction to Rinku @ Bhainga and Chetan or that in the meanwhile his son came out of the house. He had not seen that on the pointing out of Gaurav @ Monty, Rinku @ Bhainga fired on his son and thereafter Gaurav @ Monty fled away in his swift car and Rinku and Chetan fled away on their motorcycle. He was confronted with his statement Ex.PW5/DX where all these facts were found mentioned. He identified his signature on Ex.PW5/AX1.
State Vs. Rinku @ Bhainga SC No. 702/18 :: 8 ::
17. During cross-examination by the Ld. Counsel for the accused persons he stated that he does not remember where the police obtained his signatures on Ex.PW5/AX1.
18. Rakesh Rathore was examined as PW-6. He deposed that on 18.07.2016 at about 7:15 am he was sitting on a cot inside his house. He heard sound of bursting of 3-4 crackers. He went towards the main gate of his house but before he could open the door Rohit came inside. Rohit was smeared with blood. Rohit went towards the kitchen and fell down. His mother was sitting there Rohit said, "main jaa reha hoon". He came outside his house and saw one boy running. He could see only the back of that boy. He may be Rinku or Monty. Neighbours gathered there. He with the help of Neeraj and SI Devender removed Rohit to Maharshi Valmiki hospital in the car of SI Devender. Doctor examined his brother and declared him dead. He made a call at 100 number from his mobile No.9971133952. He returned to his house to see his mother. After some time police reached there. Police prepared the site plan and recorded his statement Ex.PW8/B. He along with police and relatives went to BSA hospital where he identified the dead body of his brother vide memo Ex.PW20/B. After post mortem the dead body was received by them.
19. About one year prior to 18 July 2016 Rinku @ State Vs. Rinku @ Bhainga SC No. 702/18 :: 9 ::
Bhainga and Monty @ Gaurav and their associates were passing through their street repeatedly. His Tauji Anant Ram asked them as to why they are roaming in the street. They said that they will continue to roam in the street like that only and went away. They again came back and started quarreling with his Tauji Anant Ram. He was not present there at that time. He correctly identified both the accused persons. The witness was cross-examined by Ld. APP as he was not deposing as per his statement recorded by the police.
20. During cross-examination by Ld. APP he admitted that when his brother Rohit entered his house smeared with blood Rinku @W Bhainga followed his brother, stood on the gate of their house and fired on the chest of his brother Rohit. He admitted that a case was registered at PS: Bawana against Mukesh and Praveen with respect to the quarrel with the accused persons about one year prior to 18.07.2016.
21. He admitted that in order to take revenge the above named accused persons had also threatened to kill.
22. During cross-examination by the Ld. Counsel for accused persons he stated that usually the main door of their house remain closed and is opened whenever some body enters or goes out. He denied the suggestion that the main door of their house always remain bolted from inside or that State Vs. Rinku @ Bhainga SC No. 702/18 :: 10 ::
they used to open the door whenever, some one has to go out out or come-in. He admitted that there is MCD school in their street. He had never seen any watchman at the gate of MCD School. He does not know at what time MCD school opens. He cannot confirm or deny the suggestion that MCD school opens at 7 am and closes at 12:30 pm. He denied the suggestion that there are CCTV cameras installed outside the school and outside some houses in their street. He denied the suggestion that some persons teether their buffaloes in the street.
23. MCD park is about 150-200 meters away from their house. It is a small park. His brother Rohit had passed ITI and was looking for job. He admitted that Pappey is his uncle. He denied the suggestion that Pappey is a property dealer. He said that Pappey is an agriculturist. He denied the suggestion that Pappey and his brother Rohit were in the business of property dealing or that they used to encroach upon the properties or due to that reason they had dispute with number of persons. He cannot tell from which direction Rohit came to the house. His clothes were not stained with blood while shifting Rohit to the hospital. Clothes of Neeraj and SI Devender were also not stained with blood. His hands were stained with blood. He admitted that he did not name any body while making call at 100 number. No police official State Vs. Rinku @ Bhainga SC No. 702/18 :: 11 ::
met him in the Mahrshi Valmiki hospital. He does not remember for how much time he remained in the hospital, but when the doctors declared his brother dead he returned home. He denied the suggestion that he was telephonically informed about the incident and thereafter he reached hospital. He did not tell the doctor as to who fired on his brother. He did not meet any doctor at M.V. Hospital on that day. He does not know if his family members had filed any complaint about the threats extended by the accused persons. He denied the suggestion that his uncle Pappey and Rohit were residing together or that they have unauthoriszedly taken possession of plots of co-villagers or that he had not witnessed the incident.
24. SI Aakash Deep was examined as PW-7. He deposed that on 18.07.2016 after receiving call from control room he along with ASI Karamvir photographer and other staff reached H.No.906 Pooth Kurd Delhi. It was house of Shyam Lal. Local police officials of PS: Bawana including SI Ajay Kumar met him there. He inspected the spot and found one lead of the bullet and blood in the kitchen of the said house. AI Karamvir took the photographs of the scene of crime from different angles. He inspected the spot and gave his report Ex.PW2/A. They remained on the spot form 8:40 am to 10:15 am. Thereafter, they along with Inspector Anil Kumar went to State Vs. Rinku @ Bhainga SC No. 702/18 :: 12 ::
Maharshi Valkmiki Hospital where the photographs of the deceased were taken.
25. During cross-examination by the Ld. Counsel for accused persons he stated that he examined the door at the scene of crime. They could not lift any chance prints from the iron door because it was not a glossy surface. He denied the suggestion that finger print proficient did not try to develop chance prints from the scene of crime. He has no knowledge about the gun shot residue. He does not know how many photographs were clicked by the photographer of the scene of crime. They left their office vide DD No.3. He denied the suggestion that no bullet lead or blood was found at the scene of crime.
26. ASI Karamvir was examined as PW-8. He was the photographer of the crime team which visited the scene of crime on 18.07.2016. He took photographs of the scene of crime from different angles. He proved the photographs as Ex.PW5/A1 to A15 and the negatives as Ex.PW5/B collectively.
27. During cross-examination by the Ld. Counsel for accused persons he stated that Incharge crime team inspected the scene of crime. The blood was found in the kitchen and the bullet lead was found in the street near H.No.18 i.e. house of Dharam Singh. In his presence no State Vs. Rinku @ Bhainga SC No. 702/18 :: 13 ::
exhibits were lifted by the I.O from the scene of crime. He denied the suggestion that the photographs are ante dated or ante timed or false and fabricated.
28. HC Anil was examined as PW-9. He deposed that on 18.07.2016 duty officer handed over the envelopes containing copies of FIR to him which he delivered to the senior police officials and area MM on motorcycle No. DL 11S 2634. Nothing material came during cross-examination of the witness to discredit him.
29. Ct. Amit was examined as PW-10. He deposed that on 18.07.2016 he was patrolling in the area of his beat. On receipt of information that a person has been shot in a house at Village Pooth Khurd he reached at H.No.906 Bread Factory wali gali, Harijan Mohalla village Pooth Kurd Delhi. SI Ajay Kumar, HC Suresh and other police officials met him there. He found blood inside the house near the door and in the kitchen. One bullet lead piece was found in the street. SI Ajay recorded the statement of Rakesh and called the crime team. IO prepared the rukka and handed over the same to him at 10:50 am for registration of FIR. He went to police station and presented the rukka to duty officer who got registered the FIR. Duty officer handed over the original rukka and copy of FIR to him to hand over the same to Inspector Anil Kumar. He came back on the spot and handed State Vs. Rinku @ Bhainga SC No. 702/18 :: 14 ::
over the original rukka and copy of FIR to Inspector Anil Kumar. Thereafter, he was discharged.
30. On 02.08.2016 he along with Ct. Sombir joined the investigation with Inspector Anil Kumar. They reached the court of Sh. Jitender Partap Ld. MM. With the permission of the court IO interrogated accused Chetan Kaushik and arrested him. Accused Chetan Kaushik made disclosure statement Ex.PW7/B. In pursuance to the disclosure statement accused Chetan Kaushik led them to his house NO.74 Village Pooth Khurd Delhi and got recovered one motorcycle DL 11SG 2832 parked outside his house. The motorcycle was seized vide memo PW7/D. The identity of motorcycle is not disputed by the defence and the same is Ex.PW7/Article-1.
31. During cross-examination by the Ld. Counsel for accused persons he stated that he reached the spot at about 8:15 am. He does not remember if there is any CCTV camera installed outside MCD school. He does not know if the watchman, teacher and school staff stand at the gate of MCD school at 7 am so that children can enter the school.
He cannot tell if many persons move in that street in order to drop their children in the school in morning hours.
32. He does not remember if IO asked the crime team to also look for the GSR. He left the spot at about 12:30/1:00 State Vs. Rinku @ Bhainga SC No. 702/18 :: 15 ::
pm. He denied the suggestion that he has not taken the rukka to the police station for registration of FIR.
33. Ct. Sukender was examined as PW-11. He deposed that on 14.10.16 on the direction of IO and SHO he received 3 exhibits, sample seal and forwarding letter from MHC(M) for depositing the same in FSL vide RC No.156/21/16. He deposited 3 exhibits, the sample seal and forwarding letter in the FSL and obtained the acknowledgement of FSL and copy of RC. On return to the police station he handed over the acknowledgement and copy of RC to the MHC(M). During the period exhibits remained in his possession no one tampered with the same in any manner. Nothing material came on record to discredit the witness during the cross- examination by Ld. Defence Counsel.
34. In this case the defence has admitted the PCR form which is now Ex.PW14/A and the certificate u/s 65B Evidence Act regarding taking print out of the computer generated copy of PCR form as Ex.PW14/B. The statement to this effect was recorded on 14.11.2018.
35. Ct. Rishi Raj was examined as PW-12. He deposed that on 19.07.2016 on the direction of IO he went to BSA hospital and received 3 parcels and three envelopes duly sealed with the seal of DEPT. OF FM Dr.BSAH Govt. of Delhi which he handed over to the IO, who seized the same vide State Vs. Rinku @ Bhainga SC No. 702/18 :: 16 ::
memo Ex.PW26/A. Nothing material came on record to discredit the witness during cross-examination by the Ld. Defence counsel.
36. Dr. V. Raju from M.V Hospital was examined as PW13. He deposed that on 18.07.2016 at 7:23 am patient Rohit aged 21 years was brought to casualty by Neeraj with alleged history of gun shot injury as told by Neeraj. The patient was unconscious, no pulse present. After examination the patient was declared brought dead. The shirt found on the body was preserved, sealed and handed over to the IO along with the body. He proved the MLC as Ex.PW19/A.
37. During cross-examination by the Ld. Counsel for accused persons he stated that he does not remember if any other family member besides Neeraj was present along with the patient.
38. Dr. V.R. Anand, Asstt. Director Ballistics, FSL Delhi was examined as PW-14. He examined the exhibits in the FSL and proved his report as Ex.PW23/A. Nothing material came on record to discredit the witness during cross- examination by the Ld. Defence counsel.
39. Ct. Naveen was examined as PW-15. On 20.08.2016 he along with the ATO of PS: Bawana visited the place of occurrence. He took measurements and rough notes at the instance of Inspector Anil thereafter, they returned to the State Vs. Rinku @ Bhainga SC No. 702/18 :: 17 ::
police station. He came back to his office. On 23.08.2016 he prepared the scaled site plan Ex.PW12/A.
40. During cross-examination by Ld. Counsel for accused persons nothing material came on record to discredit the witness.
41. HC Daya Ram was examined as PW-16. He deposed that on 18.07.2016 he was working as duty officer. At 11:15 am Ct. Amit brought a rukka sent by SI Ajay Kumar. He got entered the contents of the rukka in the computer. He proved the computer generated copy of FIR as Ex.PW17/A. He proved his endorsement made on the rukka as Ex.PW17/B. The certificate u/s 65B Evidence Act is proved as Ex.PW17/C. He handed over the copy of FIR and original rukka to Ct. Amit for handing over the same to Inspector Anil Kumar for further investigation. He handed over the envelopes containing FIR to Ct. Anil for delivering the same to the senior police officials and the area MM. Ct. Anil left the police station on motorcycle No. DL 11S 2634.
42. During cross-examination by the Ld. Counsel for accused persons he denied the suggestion that FIR is ante dated and ante timed or that computer system was not working properly. He denied the suggestion that certificate Ex.PW17/C was not issued by him or that he had not handed over the copy of FIR to Ct. Amit.
State Vs. Rinku @ Bhainga SC No. 702/18 :: 18 ::
43. Ct. Imran Khan was examined as PW-17. He deposed that in the intervening night of 17/18th July 2016 he was working as DD writer in PS: Bawana. On that day at 7:40 am he received information that, "Pooth Khurd Gaon mein Goli maar kar chale gaye hain, jisko goli maari hai vo hospital mein hain". He passed on this information to SI Ajay Kumar who left for the spot along with HC Suresh. He also informed SHO and ATO about the information and they also left for the spot. He recorded DD No.10B and proved the copy of the same as Ex.PW8/A.
44. During cross-examination by the Ld. Counsel for accused persons he stated that he immediately after receiving information telephonically informed SI Ajay, SHO and ATO to reach the spot. He denied the suggestion that DD entry is ante dated and ante timed.
45. Dr. Vijay Dhankar was examined as PW-18. On 18.07.2016 he conducted the post mortem on the dead body. He proved the post mortem report as Ex.PW34/A. He opined that the death of Rohit was due to hemorrhagic shock consequent to multiple penetrating injuries to the chest. All the injuries as observed during post mortem were ante mortem, fresh before death and were caused by projectiles discharged from some fire arm. He also opined that the external injuries along with the corresponding internal injuries State Vs. Rinku @ Bhainga SC No. 702/18 :: 19 ::
were sufficient to cause death in ordinary course of nature. During post mortem one bullet was recovered from the left lateral side of chest valve and one deformed bullet was taken out from the left lateral side of the chest valve of the deceased. After the post mortem the recovered bullets after sealing, sealed blood sample on gauze along with sample seal of department were handed over to the police. The testimony of the witness has gone unchallenged and uncontroverted.
46. SI Ajay Kumar was examined as PW-19. He deposed that on 18.07.2016 on receipt of DD No.10B Ex.PW8/A regarding firing of a shot on a person in a house in village Pooth Khurd and that injured is in hospital he along with HC Suresh reached Maharshi Valmiki Hospital Pooth Khurd.
Rohit Rathore was found admitted in the hospital with alleged history of gun shot injury. The doctor had declared him brought dead. He collected the MLC of deceased and the sealed parcel containing the shirt of deceased along with the sample seal. He seized the parcel vide memo Ex.PW8/1. Inspector Anil Kumar also reached the hospital. No eye witness was found in the hospital. The dead body was given in the custody of HC Suresh. He along with the Inspector Anil and other staff reached house No.906 Bread factory wali gali Harijan Mohalla Pooth Khurd where beat Ct. Amit also State Vs. Rinku @ Bhainga SC No. 702/18 :: 20 ::
reached. They found blood on the door of the said house and inside the kitchen. One lead was found in the street outside the said house. Rakesh Kumar brother of deceased met them and informed that he had witnessed the incident. He recorded the statement of Rakesh Ex.PW8/B. He made his endorsement Ex.PW8/C. He sent the rukka. Crime team inspected the scene of crime and also took the photographs. Ct. Amit came back on the spot and handed over the original rukka and copy of FIR to Inspector Anil Kumar. Inspector Anil Kumar along with the crime team went to Maharshi Valmiki hospital.
47. After some time IO came back on the spot. One lead piece was lifted from the scene of crime. Its sketch Ex.PW8/D was prepared. Lead piece was put in a container sealed with the seal of AK and seized vide memo Ex.PW8/E. The blood was found at two places near the main door of the said house. Blood was lifted from both the places. Blood stained floor was taken put in different plastic container, sealed with the seal of AK and seized vide memos Ex.PW8/F and Ex.PW8/G. The Blood was also found inside the kitchen.
Blood was lifted and also the blood stained floor, floor, put in different container, sealed with the seal of AK and seized vide memos Ex.PW8/H and ExPW8/G. The earth control was lifted from near the door and from the kitchen, put in different State Vs. Rinku @ Bhainga SC No. 702/18 :: 21 ::
containers and sealed with the seal of AK and seized vide memos Ex.PW8/K and Ex.PW8/L. IO prepared site plan at the instance of Rakesh. He along with other staff and IO went to BSA hospital where the dead body was identified by the relatives. After post mortem the dead body was handed over to the relatives. Thereafter, they returned to the police station. The case property was deposited with the MHC(M). He identified the bullet lead as Ex.MO1.
48. During cross-examination by the Ld. Counsel for both the accused persons he stated that he reached Maharshi Valmiki hospital at about 8:05 am. Ct. Deepak met him in the hospital. He did not make inquiry from Ct. Deepak as to when injured reached in Maharshi Valmiki Hospital. He remained in the hospital for about 10 minutes. He had seen the dead body before shifting the dead body to the mortuary.
He did not prepare any body inspection memo of the dead body. He cannot tell how many injury marks were there on the dead body. He did not try to find out if there was blackening, tattooing or singeing around the entry wound. At about 8:30 am he returned to the spot from the hospital. He had no knowledge if there is MCD School at a distance of 30 to 40 steps from the place of murder. He had no knowledge if there is Chopal at a distance of 10-15 steps from the place of murder. He admitted that there is MCD school in his division. State Vs. Rinku @ Bhainga SC No. 702/18 :: 22 ::
Many ladies and the other persons were present near the spot when he reached there but he cannot say how they were related to the deceased. He is not clear if there are CCTV cameras installed outside the houses in the street where the house of deceased is situated. He made inquiries from the neighbours but did not record their statements.
49. Ct. Amit came back on the spot along with original rukka and FIR at about 11:45 am. He asked the crime team to lift the footprints and the finger prints from the scene of crime. The crime team made efforts to lift the chance prints from the scene of crime including the door. No gun shot residue was found. Only one empty shell was found. He did not preserve any gauze piece used for lifting the gun shot residue from the scene of crime. No foot prints or hand prints were found inside the house of deceased.
50. The vehicle in which injured was taken to the hospital was not inspected by him. He did not inquire as to whose vehicle was used. IO also did not inquire as to whose vehicle was used. He finally left the spot at about 12:30 pm. No public person was joined at the time of lifting the exhibits from the scene of crime. He did not make any inquiry from the PCR official. IO also did not make any inquiry from PCR officials with respect to this case. He denied the suggestion that he did not record the statement of Rakesh. State Vs. Rinku @ Bhainga SC No. 702/18 :: 23 ::
51. Sh. Neeraj was examined as PW-20. He deposed that on 18.07.2016 at about 7:00 am he was present in the toilet situated on the first floor of his house. He heard the sound of 2-3 crackers. After hearing the sound he came out of the toilet and reached the ground floor of his house. He saw one person running towards the MCD Park. He could only see the back of that person. The height of that person was 6 ft.
Some person was standing on the bike at the turn of the street. The person who was running sat on that motorcycle and they both fled away. He reached the house of Rakesh where he found that Rohit had sustained bullet injury. He with the help of Devender removed Rohit to Maharshi Valmiki Hospital in the swift car of Devender. Doctor examined Rohit and declared him dead.
52. The witness was cross-examined by APP as he was resiling from his earlier statement wherein he admitted that the person whom he had seen running towards MCD Park was carrying a pistol in his hand. He cannot say if the person whom he had seen running was Rinku @ Bhainga. He does not know if the person who was sitting on the motorcycle on the corner of the street was Chetan Kaushik. He identified Gaurav and Bhainga produced in the court through video conferencing. He denied the suggestion that he had seen Rinku @ Bhainga running with pistol in his hand sitting on State Vs. Rinku @ Bhainga SC No. 702/18 :: 24 ::
the motorcycle parked at the corner of the street with Chetan Kaushik. He was confronted with his statement Ex.PW22/A.
53. During cross-examination by the Ld. Defence counsel he stated that his statement was recorded by the police on 09.01.2017. He did not visit police station even once in connection with this case.
54. In reply to court question he stated that when he reached the house of Rakesh, Rakesh, Rohit and their mother were present.
55. Sh. Devender was examined as PW-21. He deposed that on 18.07.2016 at about 7:00 am he was present at his house. After hearing the noise he came out of his house and saw his neighbour Rohit S/o Sh. Shyam Lal lying injured in the street. He with the help of other persons removed Rohit in his private car to Maharshi Valmiki Hospital Pooth Khurd. Neeraj cousin of Rohit also accompanied him to the hospital in his car No. DL 8C AH 1272.
56. During cross-examination by the Ld. Counsel for both the accused persons he deposed that he did not tell the make and registration number of his car to the IO in his statement. IO did not inspect his car. Injured was bleeding. His car got blood stains while removing the injured to the hospital. His clothes and the clothes of Neeraj were stained with blood. His statement was recorded on 05 th January 2017 State Vs. Rinku @ Bhainga SC No. 702/18 :: 25 ::
in the police station Bawana.
57. Sh. Israr Babu Alternate Nodal Officer Vodafone was examined as PW22. He proved the record of mobile phone No.7409437988. As per the customer application form Ex.PW1/A and the election I-card attached with customer application form Ex.PW1/B this number was issued in the name of Sarvender Kumar. The call detail record of this number for the period 01.12.15 to 19.12.2016 is proved as Ex.PW1/C. The certificate u/s 65B Indian Evidence Act is proved as Ex.PW1/D.
58. He has also deposed that earlier this number was issued in the name of Mohd. Raza S/o Sh. Puttan. The photocopies of the customer application form and of the Election I-card annexed with customer application form are proved as Ex.PW1/E and Ex.PW1/F. This number was also issued in the name of Gayatri W/o Sh. Hari Om. photocopies of the customer application form and of the Election I-card annexed with customer application form are proved as Ex.PW1/G and Ex.PW1/H. Nothing material came on record to discredit the witness during cross examination by the Ld. Defence counsel.
59. Amit Kumar was examined as PW-23. He deposed that he is running a shop in the name of Amit Telecom in village Sarsai Nawar, Distt. Etahwa, UP. He sold mobile State Vs. Rinku @ Bhainga SC No. 702/18 :: 26 ::
phone No.7409437988 of Vodafone company to Sarvender Kumar S/o Sh. Banke Lal on 08.05.2016 vide customer application form Ex.PW1/A having the stamp of his company and signature at point B. The customer also furnished the copy of his election I-card which is Ex.PW1/B. The customer also signed the customer application form at point C on Ex.PW1/A and also on ExPW1/B. The testimony of the witness has gone unchallenged and uncontroverted.
60. Sh. Baboo was examined as PW-24. He deposed that he is running a shop under the name of S.B. Telecom in Pooth Khurd. On 30.04.2016 he sold the SIM having number 8287080730 to Deepak S/o Sh. Rajpal who also furnished his Voter ID card. He identified the customer application form as Ex.PW4/A. The testimony of the witness has gone unchallenged and uncontroverted.
61. ASI Rakesh Kumar was examined as PW-25. He deposed that on 05.08.2015 he was posted at PS: Bawana and was working as duty officer. On that day he registered FIR No.527/15 u/s 323/341/506/34 IPC. He proved the copy of the same as Ex.PW24/A. The testimony of the witness has gone unchallenged and uncontroverted.
62. ASI VInod Kumar was examined as PW26. He deposed that he received the process U/s 82 Cr.P.C. against the accused Gaurav @ Monty S/o Sh. Trilok Chand and State Vs. Rinku @ Bhainga SC No. 702/18 :: 27 ::
Rinku @ Bhainga S/o Sh. Rajinder Singh both resident of Village Pooth Khurd for execution. On 30.9.16 he went to the address of both the accused persons. They were not at their houses. He pasted one copy of the process U/s 82 Cr.P.C at the Chaupal of the village and one copy at the notice board outside the court. He proved his reports as Ex. PW26/A, PW26/B.
63. On 10.05.18 he alongwith Inspector Subhash Chandra, ASI Subhash and HC Manjit went to Munak Canal, Harewali near Gaushala. They noticed Rinku @ Bhainga coming from the side of Haryana. He was apprehended and interrogated. He was arrested vide arrest memo Ex. PW26/C. His personal search was conducted vide memo Ex. PW26/D. Accused made disclosure statement Ex. PW26/E. Accused pointed out place of occurrence vide pointing out memo Ex. PW26/F. IO prepared site plan as Ex. PW26/G of the place pointed out by the accused. He correctly identified the accused. On 11.05.18 the accused was taken out from the lockup and produced in the court. His police custody remand was taken.
64. During cross examination by the Ld. counsel for the accused persons he deposed that he made inquiries from Kuldeep S/o Sh. Daya Nand and Deepak S/o Sh. Hari Ram the villagers near the residence of the accused persons. He State Vs. Rinku @ Bhainga SC No. 702/18 :: 28 ::
did not record their statements. He did not take photographs or did videography while affixing process U/s 82 Cr.P.C. He did not make inquiries from the persons sitting on the Chaupal. He does not remember the DD no. vide which he left the PS for executing the process U/s 82 Cr.P.C and the DD no. vide which he returned to the PS after executing the process.
65. On 10.05.18 they left the PS at about 6.30p.m. They reached the place of arrest at 6.45 / 7.00p.m. There was very few vehicular traffic on that road. He was not knowing the accused before his apprehension. Accused was interrogated at the place of apprehension. The interrogation of the accused continued till he was put in the lock up. They remained at the place of apprehension upto 8.30 or 9:00p.m. From there they reached the place of occurrence at about 10:00p.m. Perhaps Shyam Lal was joined at the time of pointing out. He admitted that there might be CCTV cameras installed at the place of incident. MCD school is situated at distance of about 50 mtr. from the scene of crime. He does not remember if IO called watchman of MCD school at the time of pointing out. He admitted that family members of accused had made complaint against him.
66. HC Nitesh was examined as PW27. He proved the DD No. 59B as Ex. PW27/A. Vide this DD Inspector Subhash State Vs. Rinku @ Bhainga SC No. 702/18 :: 29 ::
Chandra alongwith ASI Subhash, ASI Vinod, HC Devender, HC Manjeet, HC Praveen, Ct. Suresh, Ct. Sudhir with secret informer left for investigation in the present case. He also proved record of previous involvment of Rinku as Ex. PW27/B and that of Monty @ Gaurav as Ex. PW27/C. During the cross examination by the Ld. counsel he admitted that DD no. 59B is not in his hand writing.
67. HC Manjeet was examined as PW28. He fully corroborated the testimony of PW26 with respect to the arrest of accused Rinku @ Bhainga, the disclosure statement given by Rinku @ Bhainga and the pointing out place of occurrence by accused Rinku @ Bhainga. He further deposed that on 12.05.18 he again joined the investigation alongwith IO/ASI Subhash Chandra. Accused Rinku @ Bhainga was interrogated who made disclosure statement Ex. PW28/B.
68. On 15.05.18, he alongwith ASI Subhash reached Rohini Court Complex where accused Gaurav @ Monty was produced by Haryana Police from Bhondsi Jail. IO interrogated the accused with permission of Ld. MM. Accused was arrested vide arrest memo Ex. PW28/C. His personal search was conducted vide memo Ex. PW28/D. Accused made disclosure statement Ex. PW28/E.
69. On 17.05.2018 he alongwith IO and ASI Subhash State Vs. Rinku @ Bhainga SC No. 702/18 :: 30 ::
reached at Rohini Court Complex where accused Gaurav @ Monty was produced. His police remand was taken. On 18.05.2018 he again joined the investigation. Accused Gaurav @ Monty was interrogated who made supplementary disclosure statement Ex. PW28/F. Accused pointed out the scene of crime vide pointing out memo Ex. PW28/G. IO prepared the site plan Ex. PW5/AX-1 of the spot pointed out by the accused Gaurav @ Monty. He identified both the accused persons.
70. During the cross examination by the Ld. counsel for both the accused persons he deposed that place from where accused Rinku @ Bhainga was apprehended is a public way. He admitted that many persons work in Gaushala. IO did not call anybody from the Gaushala to join the investigation. Gaushala is situated on other side of the canal. He denied the suggestion that many public persons gathered there and many vehicles stopped when accused was apprehended. They remained at the place of apprehension for about 1 - 1 1/2 hour. They reached place of apprehension at about 7/7.30 p.m. The site plan of place of occurrence was prepared but there is no site plan on the judicial file. The witness pointed out the site plan as Ex. PW26/G i.e. site plan of the place pointed out by accused Rinku @ Bhainga. They reached the PS at about 10.30/11p.m.
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71. He denied the suggestion that Gaurav @ Monty has not made any disclosure statement. On 18.05.18 they left the PS after making DD entry, number of which he does not remember. Arrival entry was made but he does not remember the number.
72. Inspector Anil Kumar was examined as PW-29. On 18.07.2016 after receiving DD No.10B he along with SHO and other staff reached Maharshi Balmiki Hospital. SI Ajay Kumar and HC Suresh met them there. No eye witness was found in the hospital. Rohit Rathore was found admitted in the hospital with alleged history of gun shot injury. The doctor had declared him brought dead. SI Ajay collected the MLC of deceased and sealed parcel containing shirt of deceassed along with sample seal. HC Suresh was deputed to guard the dead body.
73. He along with SI Ajay Kumar and other staff reached the spot i.e. H.No.906 bread factory wali gali, Harijan Mohalla, Village Pooth Khurd Delhi. Ct. Amit also reached there. They found blood on the door and the kitchen of the said house. One bullet lead was found outside said house. He corroborated the testimony of PW-19 regarding the recording of statement of Rakesh and sending the rukka through Ct. Amit. Crime team headed by SI Akashdeep visited the scene of crime. Crime team inspected the scene State Vs. Rinku @ Bhainga SC No. 702/18 :: 32 ::
of crime. The photographer of crime team took the photographs.
74. Ct. Amit came back on the spot and handed over the original rukka and copy of FIR to him. He prepared site plan Ex.PW20/A at the instance of complainant Rakesh. He corroborated the statement of PW-19 regarding lifting of exhibits from the spot and seizure of the same.
75. He along with the staff went to the BSA hospital. The dead body was identified by the relatives vide statement Ex.PW20/A and Ex.PW21/A. He moved application Ex.PW32/A for conducting post mortem and filled up form 25.35(1)(b) Ex.PW32/B. After the post mortem the dead body was handed over to the relatives.
76. On 19.07.2016 he sent Ct. Rishi Raj to BSA hospital. Ct. Rishi Raj on return to the police station handed over him three sealed parcels and three sealed envelopes which he seized vide Ex.PW26/A.
77. On 20.08.2016 he along with Ct. Naveen visited the scene of crime. Ct. Naveen prepared rough notes and took measurements at his instance. On 23.08.2016 Ct. Naveen prepared the scaled site plan Ex.PW12/A. He collected the PCR form. He got collected the case property from crime branch Chanakya Puri. He collected the customer application form of mobile phone No.8287080730 and also the call detail State Vs. Rinku @ Bhainga SC No. 702/18 :: 33 ::
record. He also collected the customer application form and call detail record of mobile phone number 7409437988. He collected the FSL result Ex.PX and PX-1. He arrested accused Chetan Kaushik (Chetan Kaushik had already been acquitted vide Judgment dated:05.05.2017) and filed charge sheet against him.
78. During cross-examination by the Ld. Defence counsel he stated that he received the information in the police station. He reached the hospital at about 8:00 am. He did not meet the doctor who prepared the MLC. He did not inspect the dead body. He remained in the hospital for about 15 to 20 minutes. He reached the spot at about 8:45 am. Many public persons were present near the scene of crime. He did not get any information at that time that there are CCTV cameras installed outside the houses in that street. There is MCD school and also Chaupal in the same street at some distance from H.No.906. He does not know if MCD school opens at 7:30 am or that there is lot of movement of children and parents in that street from 7:00 am onwards. When he reached the spot, there was no such movement. He did not make any inquiry from the support staff of the school. He does not know if on that day Anurag Kaushik was on duty at the gate of the school as watchman. He denied the suggestion that Anurag Kaushik was taken to the police State Vs. Rinku @ Bhainga SC No. 702/18 :: 34 ::
station at about 9:00/ 9:15 am for making inquiries.
79. He did not examine the vehicle in which injured was removed to the hospital. He did not seize the clothes of Neeraj and Devender, who shifted the injured to the hospital.
80. Crime team tried to lift chance prints from the main door of the house but no chance prints were found. Crime team also searched for the gun shot residue but no such evidence was found. Crime team had not given him any gauze piece with which they tried to find gun shot residue. Seal after use was handed over to SI Ajay. He did not collect the call detail record and the location chart with respect to the mobile phone of Rakesh.
81. Inspector Subhash Chander was examined as PW-30. He deposed that on 10.05.2018 he along with ASI Subhash, HC Manjeet, ASI Vinod and other staff went to Munak canal Harveli near Gaushala along with secret informer. He corroborated the testimony of PW-26 with respect to Rinku @ Bhainga, the disclosure statement made by the accused, the pointing out of place of occurrence by the accused and preparation of site plan of the place pointed out by the accused.
82. He also corroborated the testimony of PW-28 regarding the supplementary disclosure statement made by Rinku @ Bhainga the arrest of accused Gaurav @ Monty, State Vs. Rinku @ Bhainga SC No. 702/18 :: 35 ::
the disclosure statement made by accused Gaurav @ Monty, the supplementary disclosure statement made by Garuav @ Monty, pointing out the place of occurrence and the preparation of the site plan of the place pointed out by the accused. He correctly identified both the accused i.e. Rinku @ Bhainga and Gaurav @ Monty.
83. During cross-examination by the Ld. Counsel for accused persons, he deposed that he entered DD No.59B at the time of leaving PS on 10.05.2018. There was very few vehicular traffic on the road. The accused was apprehended from a secluded place. Body Inspection memo was not prepared. He denied the suggestion that accused was already in their custody much prior to that time. He denied the suggestion that both the accused did not make disclosure statements or that signatures of accused persons were obtained on blank papers.
84. Inspector Anupam Bhushan was examined as PW-31. He deposed that on 19.06.2018 he received the file of the present case for further investigation. He found that the file is complete and filed the charge sheet.
85. During cross-examination by the Ld. Defence counsel he deposed that he did not place on record the copy of departure and arrival entry of 18.05.2018 and arrival entry of 10.05.18.
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86. Thereafter, the prosecution evidence was closed.
Statements of accused persons were recorded u/s 313 Cr.PC wherein they denied the entire evidence and stated that they have been falsely implicated. The did not wish to lead evidence in defence. Thereafter, the case was fixed for final arguments.
87. I have heard the Ld. APP for the State, Ld. Defence counsel for accused persons and perused the record.
88. This case is based upon the eye witness account i.e. the testimony of PW-5 and PW-6. Ld. APP submits that in this case on 18.07.2016 at about 7:15 am Rakesh Rathore PW-6 was sitting on a cot inside his house. He heard the sound of bursting of 3-4 crackers. When PW-6 started moving towards the main door of his house in the meantime Rohit entered the house after opening the door. Rinku @ Bhainga also came there and fired on the chest of Rohit. Thereafter, Rinku @ Bhainga fled away. Rohit rushed towards the kitchen where his mother was sitting and collapsed saying, "main jaa reha hoon". Ld. APP submitted that Rinku @ Bhainga was seen running from the spot by PW-20 Neeraj. He also stated that Rinku @ Bhainga was carrying pistol in his hand. Ld. APP submitted that the testimony of PW6 is finding corroboration with testimony of PW-20 who had seen Rinku Bhainga running towards MCD State Vs. Rinku @ Bhainga SC No. 702/18 :: 37 ::
park with a pistol in his hand fully corroborates the story of the prosecution. Ld. APP further submitted that testimony of PW6 and PW20 further finds corroboration from the post mortem report Ex.PW34/A wherein four firearm entry wounds were found. The doctor who conducted the post mortem also opined that death is due to hemorrhagic shock consequent to multiple penetrating injuries to the chest. The testimony of PW6 is further corroborated by the fact that one bullet lead Ex.MO1 was found outside H.No.906 i.e. the place of occurrence in the street. It was seized vide memo Ex.PW8/E. Ld. APP submitted that by examining PW-6 and PW-20 prosecution has proved that it was Rinku @ Bhainga who fired on Rohit with a pistol resulting into death of Rohit. It is prayed that as the onus which was on prosecution has been discharged the accused be held guilty and convicted u/s 302 r/w 34 IPC.
89. Ld. Defence counsel submitted that in this case Rakesh has been introduced later on. He had not witnessed the incident. According to the Rakesh (PW6), his brother Rohit was fired at in his presence. If he would have been present at the time of incident, he would have taken his brother to the hospital. Rohit was removed to the hospital by Neeraj (PW20) and Devender (PW21). They nowhere stated that Rakesh (PW6) was also with them. Ld. Counsel further State Vs. Rinku @ Bhainga SC No. 702/18 :: 38 ::
submitted that after receiving the information police reached the hospital, but Rakesh was not available in the hospital. Rakesh also did not meet any doctor in the hospital. Rakesh also stated that his clothes were not stained with blood and also the clothes of Neeraj and Devender were not stained with blood. But, Neeraj and Devender contradicted Rakesh on this issue and stated that their clothes were stained with blood.
90. Ld. Counsel further submitted that according to Rakesh, Rohit fell down in the kitchen after sustaining injury and was removed to the hospital. But PW22 stated that Rohit was lying in the street from there he was shifted to the hospital. Ld. Counsel submitted that if Rohit would have been fired in the house as deposed by Rakesh, then Rohit would have been found lying inside the house and not in the street as deposed by PW21 Devender, who is an independent witness. Ld. Counsel submitted that all these facts clearly show that Rohit was not there and was introduced later on.
91. Ld. Counsel further submitted that according to SI Ajay the bullet was found in the street outside the house of the deceased. But according to the crime scene report Ex.PW2/A and also the statement of the ASI Karambir Singh (PW8) the bullet lead was found lying in the street in front of House No.18 and not outside the house of the victim, which State Vs. Rinku @ Bhainga SC No. 702/18 :: 39 ::
further falsifies the statement of Rakesh.
92. Ld. Counsel further submitted that so far as Gaurav @ Monti is concerned, there is no evidence to link him with the commission of offence except the disclosure statements of the co-accused persons, which are not admissible in law. The only witness Shyam Lal (PW5) has not supported the prosecution case that he has seen Gaurav @ Monty on the spot or that Rinku @ Bhainga fired on the deceased on the direction of Gaurav @ Monty. Ld. Counsel submitted that onus which was on the prosecution has not been discharged. It is prayed that benefit of same be given to accused persons and they be acquitted.
93. After hearing the arguments and going through the record I found that so far as the offence of murder is concerned as per the story there is only one eye witness i.e. Rakesh Rathore PW-6. According to the statement of PW-6. He heard the sound of 3-4 crackers, when he went towards the door of the house, in the meanwhile his brother Rohit came in. Accused Rinku @ Bhainga also came there and fired on the chest of Rohit. Thereafter, Rinku @ Bhainga fled away. The story of prosecution is that PW-20 Neeraj had seen accused Rinku @ Bhainga leaving the spot with pistol in his hand. Neeraj did not support the prosecution case in this regard and stated that he cannot say if the person whom State Vs. Rinku @ Bhainga SC No. 702/18 :: 40 ::
he had seen running was Rinku @ Bhainga. It is also important to note that according to Rakesh PW-6, Rinku @ Bhainga fired on the chest of Rohit but surprisingly, medical evidence does not support the oral testimony of PW-6. There were four entry wounds noticed during post mortem but all the entry wounds were on the backside as per the post mortem report Ex.PW34/A. There was no entry wound noticed on the front of chest. However, there was exit wound over the upper outer part of left side of front of chest.
94. It is also important to note here that even Rakesh in his examination in chief deposed as follows:
"Rohit went towards kitchen and fell down in the kitchen. My mother was sitting in the kitchen. Rohit said, "mai ja reha hun". I came outside my house and saw one boy was running. I had seen only back of that boy. He may be Rinku or Monty".
95. It was only during the cross-examination by the Ld. APP that he deposed that Rinku Bhainga came at the door of their house and fired on the chest of his brother Rohit. This fact itself creates doubt about the trust worthiness of the witness which is further strengthen by the fact that Rakesh did not accompany Rohit to the hospital. Neeraj PW-20 and Devender PW-21 removed Rohit to the hospital and they nowhere stated that Rakesh also accompanied them. PW-6 stated that his clothes were not stained with blood while State Vs. Rinku @ Bhainga SC No. 702/18 :: 41 ::
removing Rohit to the hospital. He also deposed that clothes of Neeraj and Devender were also not stained with blood but when Devender appeared in the witness box as PW-21, he deposed that his clothes and clothes of Neeraj were stained with blood. When police reached the hospital after getting information Rakesh was not found in the hospital. It is important to note that Rakesh is real brother of Rohit and if Rohit would have sustained injury in his presence he must have removed Rohit to the hospital and not the neighbour and cousin Neeraj.
96. Rakesh also stated that Rohit fell down in the kitchen. This statement shows that if Rohit was to be taken from kitchen for removing him to the hospital but according to Devender Rohit was lying in the street and from there he was taken to the hospital. The testimony of Devender create doubt about the truthfulness of story of Rakesh and also creates doubt about his presence on the spot at the relevant time.
97. It is also important to note that according to the IO the bullet lead was found outside the house of victim but the report of the crime team Ex.PW2/A the bullet lead was found in front of H.No.18. ASI Karambir PW-8 also deposed that bullet lead was found lying in the street in front of H.No.18. The incident has taken place at the door of H.No.906 and not State Vs. Rinku @ Bhainga SC No. 702/18 :: 42 ::
infront of H.No.18.
98. Keeping in view the above contradictions and the fact that presence of Rakesh on the spot itself is doubtful. The testimony of PW-6 does not found corroboration with the medical evidence in my opinion it is not established that it was Rinku @ Bhainga who fired on Rohit.
99. According to the prosecution story Rinku @ Bhainga fired on Rohit at the instance of Gaurav @ Monty. Prosecution examined Sh. Shyam Lal PW-5 to prove this fact but he has not supported the prosecution case. He deposed that he was on his plot when his wife informed him on telephone that Rohit has sustained injury. Shyam Lal was cross-examined by APP but he did not support the prosecution case at all. He denied the suggestion that he saw accused persons present in the street or that on the direction of Gaurav @ Monty, Rinku @ Bhainga fired on Rohit when Rohit came outside the house.
100. Prosecution has also examined witnesses with respect to motive that about one year prior to this incident all the accused were roaming in the street and driving at a fast speed, due to this reason PW-2 Parveen and PW-3 Mukesh had a quarrel with accused persons and other boys. FIR was also registered. Due to that quarrel accused persons extended threats to kill them. In my opinion if that was the State Vs. Rinku @ Bhainga SC No. 702/18 :: 43 ::
situation then the threat to kill was to Mukesh and Parveen. There is nothing on record that Rohit was also involved in that quarrel. Even otherwise if this is taken to be true that only raises suspicion about the involvement of accused persons. It is settled law that a person cannot be held guilty merely on suspicion. Keeping in view the above discussion in my opinion the onus which was on the prosecution has not been discharged. The prosecution has failed to prove and establish that Rinku @ Bhainga fired upon Rohit on the direction of Gaurav @ Monty.
101. In this case the accused persons were also charged for the offence punishable u/s 174A IPC. The record shows that on 30.09.2016 ASI Vinod Kumar executed the processes u/s 82 Cr.PC against accused Gaurav @ Monty and Rinku @ Bhainga. The copy of the processes u/s 82 Cr.PC against both the accused persons were also affixed at the Chaupal of the village and also on the notice board of the court. ASI Vinod Kumar has proved his reports regarding execution of processes u/s 82 Cr.PC as Ex.PW26/A and Ex.PW26/B. The defence has taken the plea that no videography or photography was done at the time of execution of process which creates doubt as to whether the processes were actually executed or not. The record and the cross- examination itself shows that The processes were executed State Vs. Rinku @ Bhainga SC No. 702/18 :: 44 ::
and the police was regularly visiting the house of accused persons to arrest them as they were wanted in this case but they were not found and due to that reason the parents filed complaint against the police. The record shows that the accused persons did not appear before the court despite service of process u/s 82 Cr.PC against them. There is no plausible explanation or sufficient reason brought on record which prevented them to appear before the court even after execution of processes u/s 82 Cr.PC. I do not find any reason to disbelieve the testimony of PW-26. Keeping in view the above discussion in my opinion the onus which was on prosecution has been fully discharged and it is proved that the accused persons failed to put appearance despite service of process u/s 82 Cr.PC.
102. Keeping in view the above discussion both the accused are acquitted of the offence punishable u/s 302 r/w 34 of IPC. However, both the accused are held guilty and convicted for the offence punishable u/s 174A IPC.
103. Now come up arguments on the quantum of sentence on 10.12.2018. VIRENDER Digitally signed by VIRENDER KUMAR KUMAR BANSAL Announced in the open court BANSAL Date: 2018.12.06 16:47:25 +0530 today on 06.12.2018 (VIRENDER KUMAR BANSAL) ASJ/Pilot Court/North District Rohini Courts/New Delhi.
State Vs. Rinku @ Bhainga SC No. 702/18 :: 45 ::