State vs . 1. Ravinder @ Anda on 28 November, 2020

[Cites 22, Cited by 0]

Delhi District Court

State vs . 1. Ravinder @ Anda on 28 November, 2020

IN THE COURT OF SH. SHIVAJI ANAND, ADDITIONAL SESSIONS JUDGE04 (NORTH),
                          ROHINI COURTS, DELHI

Session Case No. 58303/16
CNR No. DLNT010009362015

State            Vs.                   1.        Ravinder @ Anda
                                                 S/o Sh. Avadh Kumar
                                                 R/o F112, Jhuggi S.B Dairy, Delhi.
                                       2.        Sanjeet @ Kaliya
                                                 S/o Kameshwar Prasad
                                                 R/o E6/12, Shahbad Dairy, Delhi.
                                       3.        Pankaj @ Sura
                                                 S/o Sh. Ashok Kumar
                                                 R/o E5/10, Shahbad Dairy, Delhi.
                                       4.        Neeraj @ Ganja
                                                 S/o Sh. Ashok @ Pappu
                                                 R/o 36/380, Trilok Puri, Delhi.
                                       5.        Arman
                                                 S/o Sh. Abdul Rehman @ Kallu
                                                 R/o B119, Shahbad Dairy, Delhi.
                                       6.        Suresh @ Sheru
                                                 S/o Sh. Ram Sanjeevan
                                                 R/o B12/14, Shahbad Dairy, Delhi.
FIR No.                         : 446/15
Police Station                  : Shahbad Dairy
Under Sections                  : 302/323/34 IPC & 25/27 Arms Act

Date of committal to Sessions Court : 09/07/2015
Date of institution                 : 16/07/2015
Date of Argument                    : 19/11/2020
Date of reservation of order        : 27/11/2020
Date on which Judgment pronounced:28/11/2020

                                                 JUDGMENT

1. In brief, the case of the prosecution is that on 05.04.2015, PCR call was received in the control room regarding fire shot to a boy at H.No 6/30, EBlock, near Maharana Pratap Chowk Shahbad Dairy at about 6.51 a.m, which was recorded vide DD No. Digitally signed SHIVAJI by SHIVAJI ANAND ANAND Date: 2020.11.28 15:08:52 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 1 of total 40 pages 5A and was marked to SI Satish Kumar. SI Satish Kumar alongwith Ct. Yogender went to the place of occurrence near jhuggi No. 702, EBlock, Shahbad Dairy and on inquiry they came to know that gun shot during quarrel and injured has been shifted to BSA hospital but no eye witness met at the spot. Blood was found lying in the gali and crime team was called by the IO, crime team inspected the spot and took photographs of spot. IO lifted the blood stained earth control and earth control and kept the same in separate plastic containers and sealed the same with seal of M.K. Thereafter both SI and Ct. Yogender reached at BSA hospital and collected MLC No. 3525/15 of injured Vicky who has received gun shot injury and was unfit for statement. They also collected MLC No. 3613/15 of injured Manoj who has received simple injuries. Neither injured Manoj nor any eyewitness was found in the hospital. Thereafter IO and Ct. Yogender reached at H.No. F1139, Jhuggi Shahbad Dairy but there also neither injured Manoj nor any eyewitness was found. Accordingly IO on the basis of MLC and DD entry made Tehrir u/s 307/323 IPC and 27 Arms Act. He also recorded statement of injured Manoj, who stated that his friend Sanjeet @ Kalia called him from his house and took him to jhuggies of Eblock on the pretext that Sura, Neeraj @ Ganga and Anda were calling him for the purpose of talking and when he reached there he found Pankaj @ Sura and Neeraj @ Ganja standing in the gali and Pankaj said to him "tu hamari mukhbari karta hai hum tumhe sabak sikhaenge". Pankaj and Neeraj gave him fist and legs blows and Sanjeet caught and pulled his hair. After some time Ravinder and Vicky also reached there and then Arman and Ravinder gave beatings to Vicky and Pankaj said "yaar Neeraj ye hamari mukhbari karte hai inhe goli maar de, tab Neeraj ne desi kate se Vicky ke sar mai goli maar di". Thereafter SI prepared site plan at the instance of injured Manoj.

2. During investigation on 05.03.2015, IO arrested accused Ravinder @ Anda and recorded his disclosure statement wherein accused has disclosed that he has friendship with Sheru, Pankaj @ Sura, Arman and Sanjeet and Nepali who are residents of his society. He has also disclosed that on two days prior accused Pankaj @ Sura and Arman had kept Digitally signed SHIVAJI by SHIVAJI ANAND ANAND Date: 2020.11.28 15:08:59 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 2 of total 40 pages the stolen articles in his Jhuggi at FBlock and on 04.04.15 in the evening Sheru, Pankaj @ Sura, Arman, Sanjeet and Nepali informed him that Manoj and Vicky had taken the stolen articles from his jhuggi. Accordingly on 05.04.2015 at about 6 a.m he went to the house of Vicky and called Vicky with him at EBlock jhuggies. He has also disclosed that they had also called Manoj for asking them about the stolen articles and when Vicky and Manoj did not disclose anything to them they gave beatings to Manoj and Vicky. Thereafter SI recovered danda at the instance of accused Ravinder @ Anda, made pointed out memo and took PC remand of the accused.

3. During investigation IO arrested accused Sanjeet @ Kalia and Pankaj @ Sura and on personal search of accused Pankaj @ Sura desi katta and live cartridge was recovered from pocket of his wearing paint. Live cartridge was also recovered from the desi katta. IO prepared sketch of desi katta and live cartridges. Thereafter desi katta was put in a cloth pullinda was both the live cartridges were kept in a transparent plastic container. IO also seized Tavera vehicle bearing No. DL 3CAE 2069, small iron Tijori, gas cutter and cylinder and deposited the same in the Malkhana. IO recorded discloser statements of accused Pankaj @ Sura and Sanjeet @ Kala.

4. On 07.04.2015 vide DD No. 89B it came to the notice that injured Vicky expired at BSA hospital during his treatment and section 302 IPC was imposed against the accused persons in place of Section 307 IPC and further investigation was handed over to Inspector.

5. During investigation dead body of the deceased was got identified from his relatives, postmortem was got conducted & dead body was handed over to the relatives of the deceased and exhibits handed over by the concerned doctors were deposited in the Malkhana. Accused Neeraj @ Ganja was arrested on 09.05.2015. IO recorded his Digitally signed SHIVAJI by SHIVAJI ANAND ANAND Date: 2020.11.28 15:09:05 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 3 of total 40 pages disclosure statement and took his PC remand and during PC remand accused led the police officials to the jhuggies of Shahbad Dairy from where he got recovered the desi Katta used in the commission of offence and accused told that with the said desi Katta he fired upon Vicky one month before. Sketch of the desi katta was prepared and pullinda was prepared after putting the same in a transparent plastic container and the pullinda was sealed with the seal of MK. During investigation inquiries were made to search accused Arman and Suresh @ Sheru but in vain and thereafter NBWs were got issued against the said accused persons. Postmortem report of deceased Vicky was obtained wherein in the column of opinion doctor has opined "Death is due to craniocerebral damage caused by firearm weapon via injury no. 1 which is sufficient to cause death in the ordinary course of nature. Injury no. 2 to 5 are caused by blunt force. All injuries are antemortem and recent in nature". During investigation IO prepared scaled site plan and accused Arman was arrested on 05.06.2015. Pointing out memo was got prepared at the instance of accused Arman and his disclosure statement was recorded by the IO. During investigation exhibits were deposited in FSL, Rohini and after obtaining result section u/s 39 Arms Act was to be obtained and same was to be filed before the Court by way of supplementary chargesheet. Supplementary chargesheet qua accused Suresh @ Sheru was also to be filed since he was not arrested till the time of filing of the chargesheet in the Court. During investigation IO recorded statement of witnesses and filed the chargesheet u/s 302/323/34 IPC and 25/27 Arms Act in the Court of ld concerned M.M on 01.07.2015, which was committed to the Court of Sessions vide order dated 16.07.2015.

6. During investigation accused Suresh @ Sheru was arrested on 13.08.2015 and supplementary chargesheet was filed in the Court of concerned ld M.M on 18.09.2015, which was committed to the Court of Sessions vide order dated 26.09.2015.

7. Supplementary chargesheet qua sanction u/s 39 Arms Act against accused Pankaj @ Sura and Neeraj @ Ganja was filed in the Court of concerned ld M.M on Digitally signed by SHIVAJI SHIVAJI ANAND ANAND Date: 2020.11.28 15:09:12 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 4 of total 40 pages 02.04.2016, which was committed to the Court of Sessions vide order dated 07.04.2016.

8. Vide order dated 30.04.2016, charge u/s 302/323/34 IPC was framed against all the accused persons I.e Ravinder @ Anda(A1), Sanjeet @ Kaliya(A2), Pankaj @ Sura(A3), Neeraj @ Ganja (A4), Arman(A5) and Suresh @ Sheru(A6) and separate charges u/s 25 Arms Act and 27 Arms Act against accused Neeeraj @ Ganja(A4) and u/s 25 Arms Act were framed against accused Pankaj @ Sura(A3), to which the accused persons pleaded not guilty and claimed trial.

9. The prosecution had examined 24 witnesses in support of its case. The details of said witnesses are as under: S.No. Name of prosecution witness Purpose of examination 1 PW1 Ct. Samay Singh PW1 was DD writer at the relevant time who recorded DD No. 89B dated 07.04.2015 and proved the copy of said DD as Ex. PW1/A(OSR) 2 PW1(be read as PW1A) HC Madan Lal This witness was Duty officer at the relevant time, who recorded DD entry No. 5A dated 05.04.2015 and proved the attested copy of said DD entry as Ex. PW1/A(be read as Ex. PW1A/A. 3 PW2 Dr. Jatin Bodwal This witness conducted postmortem on the dead body of deceased Vicky and proved his report as Ex. PW2/A. This witness also identified the bullet taken out from the head of the deceased during postmortem as Ex. P1.

4 PW3 Sh. Manoj This witness is injured/eyewitness of the incident in question.

5 PW4 WHC Sunita This witness was duty officer at the relevant time who got registered the present FIR No. 446/15 and proved the computerized copy of FIR as Ex.

PW4/A(OSR), endorsement on the rukka as Ex.

PW4/B and certificate u/s 65 B of Indian Evidence Act as Ex. PW4/C. 6 PW5 Dr. Kumar Akhilesh This witness was working as CMO in BSA hospital on 05.04.2015 and on the said day injured Vicky was examined by Dr. Irfan and SHIVAJI Digitally signed by SHIVAJI ANAND SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. ANAND Date: 2020.11.28 Page 5 of total 40 pages +0530 15:09:19 injured Manoj was examined by Dr. Manveer Singh under his supervision. He proved MLC of Vicky as Ex. PW5/A and MLC of Manoj as Ex.

PW5/B. 7 PW6 Ms. Suman This witness is sister of deceased Vicky and is witness of last seen evidence. She has supported the case of the prosecution and proved her statement u/s 161 Cr.P.C as Ex.

PW6/DA.

8 PW7 SI Satish Chander This witness is first IO of the case and proved seizure memo of blood stained earth control and earth sample as Ex. PW7/A, sealed cardboard box containing clothes of deceased as Ex.

PW7/B, rukka Ex. PW7/C, rough site plan as Ex.

PW 7/D, arrest memo of accused Ravinder @ Anda as Ex. PW7/D1, his personal search memo and disclosure memo as Ex. PW 7/D2 and Ex. PW7/D3, seizure memo of danda as Ex.

PW7/D4, sketch of Katta as Ex. PW 7/1, seizure memo katta and cartridges recovered from the pocket of accused Pankaj @ Sura as Ex. PW7/2, seizure memo of Tavera car as Ex. PW7/3, arrest memo of accused Sanjeet @ Kalia as Ex.

PW7/4, his personal search memo as Ex. PW7/5 and his disclosure memo as Ex. PW7/6, arrest memo of accused Pankaj @ Sura as Ex.PW7/7, his personal search memo as Ex. PW7/8, his disclosure statement as Ex. PW7/9, seizure memo of gas cutter and small cylinder recovered from the house of Pankaj @ Sura as Ex. PW 7/10, seizure memo of Tijori recovered at the instance of Sanjeet @ Kalia as Ex. PW7/11, pointed out memo of place of occurrence as Ex.

PW7/12, application for conducting postmortem of deceased as Ex. PW 7/E, form No. 25.35(1)(b) as Ex. PW7/F, statement of Rajender and Dalip qua identification of dead body as Ex. PW7/G and Ex. PW7/H, receipt of dead body hand over as Ex. PW7/J, seizure memo of gauze piece of deceased as Ex. PW7/K, country made katta as Ex. P2, fired bullet as Ex. P3, cylinder and gas cutter as Ex. P4 and Ex. P5, safe(tijori) as Ex.

P6.

9 PW8 Inspector Mahesh Kumar This witness was working as draftsman at the
relevant time and has proved the scaled site plan

SHIVAJI Digitally signed by
SHIVAJI ANAND
SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 6 of total 40Date:
pages2020.11.28
ANAND 15:09:26 +0530
as Ex. PW8/A.
10 PW9 Sh. Rajinder This witness is relating to identification of dead
body of deceased Vicky.
11 PW10 HC Umesh This witness was working as MHC(M) at the
relevant time and has proved the photocopy of
relevant pages of register No. 19 containing
entry regarding deposition of case property in the
Malkhana as Ex. PW10/A to Ex. PW10/C,
photocopy of RC No. 89/21/15 as Ex. PW10/D,
photocopy of RC No. 118/21/15 as Ex. PW10/E
and acknowledgement issued by FSL as ex.
PW10/F, photocopy of RC No. 119/21/15 as Ex.
PW10/G and acknowledgement issued by FSL
as Ex. PW10/H.
12 PW11 Ct. Chetan This witness had joined the investigation
alongwith SI Satish Chander on 08.04.2015 to
the mortuary of BSA hospital.
13 PW12 HC Shivom This witness was posted as photographer on
05.04.2015 and has proved the negatives of the
photograph as ex. PW12/B1 to B8 and
photographs of the place of occurrence as Ex.
PW12/B2(colly)
14 PW13 HC Raj Kumar This witness has joined the investigation
alongwith SI Satish(Ist IO) on 05.04.2015 and is
witness regarding arrest of accused Ravinder @
Anda.
15 PW14 SI Surender This witness has joined investigation alongwith
second IO Inspector Mukesh Kumar on
11.05.2015 and has proved sketch of the katta
recovered from accused Neeraj @ Ganja as Ex.
PW14/A, seizure memo of said katta as Ex.
PW14/B and the said country made katta as Ex.
P14/1.
16 PW15 HC Ashok Kumar This witness is a witness regarding deposit of
sealed exhibits pertaining to the present case to
FSL, Rohini, Delhi for the purpose of expert
opinion.
17 PW16 ASI Tej Singh(Retd.) This witness was posted as Duty Incharge in the
PCR Van on 04.04.2015 and reached at the
place of occurrence first and took the injured
persons to BSA hospital.
18 PW17 HC Yogender Yadav This witness has joined the investigation of the
SHIVAJI Digitally ANAND
signed by SHIVAJI

SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. ANAND Date: 2020.11.28 15:09:33 +0530 Page 7 of total 40 pages present case alongwith first IO SI Satish Chander and participated in investigation with him on 05.04.2015 and 06.04.2015.

19 PW18 ASI Anil Kumar This witness has joined investigation of the present case with second IO Inspector Mukesh Kumar and has proved the arrest memo of accused Neeraj @ Ganja as Ex. PW18/A, his personal search memo as Ex. PW18/B & his disclosure statement as Ex. PW18/C, pointing out memo of the said accused as Ex. PW18/D. 20 PW19 Ct. Virender Singh This witness had joined the investigation alongwith 2nd IO Inspector Mukesh Kumar and proved arrest memo of accused Arman as Ex.

PW19/A, his personal search memo as Ex.

PW19/B, his disclosure statement as Ex.

PW19/C and his pointing out memo as Ex.

PW19/D. 21 PW20 Inspector Mukesh Kumar This witness is the 2nd IO of the present case and has proved arrest memo of accused Suresh @ Shreu as Ex. PW20/A, his personal search memo as Ex. PW20/B, his disclosure statement as Ex. PW20/C and his pointing out memo as Ex. PW20/D. 22 PW21 ASI Satyaprakash This witness has joined the investigation on 06.04.2015 of this case alongwith SI Satish Chand, Ct. Yoginder and Ct. Har Bhagwan Singh.

23 PW22 Sh. Puneet Puri, Assistant This witness has proved his report Ex. PW22/A Director(Ballistics), FSL, Rohini. regarding examination of two country made pistols, two live cartridges and one bullet.

24 PW23 Sh. Pankaj Kumar Singh, This witness was posted as Additional DCPI, Superintendent of Police, Crime. Goa. Outer District, Delhi on 23.03.2016 and proved the sanctions u/s 39 Arms Act as Ex. PW23/A and Ex. PW23/B.

10. After completion of prosecution evidence, statements of all the accused persons were recorded u/s 313 Cr.P.C., wherein they denied the case of prosecution and claimed that they are falsely implicated in the present case.

Digitally signed by

                                                                          SHIVAJI                    SHIVAJI ANAND

                                                                          ANAND                      Date: 2020.11.28
                                                                                                     15:09:39 +0530
SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc.        Page 8 of total 40 pages

11. Accused Ravinder @ Anda has examined two witnesses namely Sh. Chandan as DW1 and Sh. Suraj Kumar as DW2 and accused Arman has examined Sh. Pradeep as DW3 in their defence, but remaining accused persons had chosen not to lead any DE and hence DE was closed on 06.11.2020.

12. I have heard Sh. Sanjay Jindal, ld. Substitute Addl. PP for the State and ld respective counsels namely Sh. Gajraj Singh for A1, Sh. Jai Shubahsh Thakur for A2 & A 3, Sh. Dinesh for A5 & Sh. R.K Singh for A6 and Sh. Dinesh Madesiya, ld amicus curiae for A4.

13. Ld. Substitute Addl. PP for the State has stated that prosecution has proved its case against all the accused persons beyond reasonable doubts and they may be convicted in the present case.

14. Ld counsel for accused Ravinder @ Anda has also filed written statement, wherein he has averred that PW3 Sh. Manoj/injured, who is eyewitness of the incident in question has failed to identify the accused persons and has deposed that some other persons caused injuries to him. It is further averred that presenece of PW6 Ms. Suman at the spot is doubtful since PW17 HC Yogender Yadav has admitted in his cross examination that during investigation, no family member of injured Vicky met them at the spot and in the hospital on 05.04.2015. PW17 has also admitted that the statement of family members of injured Vicky were not recorded on 05.04.2015. It is further averred that PW6 has deposed that she saw her brother lying inside the street having the bullet injury over his head and all the accused persons were standing near her brother. She has further deposed that someone called at 100 number, but before the arrival of police, she with the help of her uncle namely Kameshwar took her brother Vicky to BSA hospital and in the hospital police met her. However PW16 Retired ASI Tej Singh has deposed that on posted at PCR Van and on Digitally signed SHIVAJI by SHIVAJI ANAND ANAND Date: 2020.11.28 15:09:45 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 9 of total 40 pages 05.04.2015 he took injured persons to BSA hospital. It is further averred that no blood stained clothes of PW6 were taken by the IO and Kameshwar is also not made witness in the present case, who can prove presence of PW6 at the spot. It is further averred that as per PW6 her statement has been recorded by the police on 05.04.2015 itself, but PW17 has admitted in his cross examination that statement of family members of injured Vicky was not recorded on 05.04.2015, which means that PW6 is a witness who has been tutored by the investigating agency to depose against the accused persons. It is further averred that as per the version of PW5 Dr. Kumar Akhilesh that on 05.04.2015, injured Vicky was brought to casualty by PCR with alleged history of gun shot. Further no where in the MLC presence of PW6 Ms. Suman is shown, which makes her presence doubtful.

15. It is further averred that blood stained clothes of PW6 Ms. Suman were not obtained to show her presence at the spot. Further other relatives of the deceased were also present in the house but none was made witness to show the presence of Suman at the spot. It is further averred that the case property I.e pullanda of country made pistol and live cartridge were not produced before the sanctioning authority at the time of obtaining sanction u/s 39 Arms Act. It is further averred that PW23 Sh. Pankaj Kumar Singh deposed in his cross examination that he did not see the weapon physically. It is further averred that statement recorded u/s 161 Cr.P.C of PW6 is totally contrary to the evidence of PW6 Suman recorded before this Court.

16. It is further averred that DW1 Sh. Chandan is the witness of alibi of accused Neeraj @ Ganja he deposed that on 05.04.2015 he went to Anarkali Park for playing cricket and left his house at about 5.30 a.m. He has further deposed that he reached in the said park with accused Ravinder @ Anda and his other friends and returned to his house alongwith Ravinder at about 10.30 a.m. It is further averred that during cross examination of DW1 nothing has been came out and the witness is trustworthy.

Digitally signed

                                                                                 SHIVAJI              by SHIVAJI
                                                                                                      ANAND
                                                                                 ANAND                Date: 2020.11.28
                                                                                                      15:09:54 +0530

SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 10 of total 40 pages

17. Ld counsel for Ravinder @ Anda has relied upon following case laws in support of his submissions:

1) Amar Singh Vs The State(NCT of Delhi) with Inderjeet Singh Vs. The State(NCT of Delhi) criminal appeal No. 335 of 2015 and 336 of 2015 by Hon'ble Supreme Court.

2) Inderpal @ Mandhu Vs. State, Hon'ble High Court of Delhi, Crl. A. 1526/14.

3) Abdulwahab Abdulmajid Baloch Vs. State of Gujrat, criminal appeal No. 1507 of 2007, passed by Hon'ble Apex Court.

4) Sameer @ Mustakim Vs. State, CRL. A No. 17/2018, passed by Hon'ble High Court of Delhi.

5) Govind Raj Vs. The State(NCT of Delhi), CRL A. 710/2003, passed by Hon'ble High Court of Delhi.

6) Kuldip Yadav & Others Vs. State of Bihar, Criminal Appeal No. 531 or 2005, by Hon'ble Apex Court.

7) Jumni and others Vs. State of Haryana, Criminal Appeal No. 1159 or 205 and Prem Nath and another Vs. State of Haryana, criminal appeal No. 603 or 205 by Hon'ble Apex Court.

8) Mohinder Singh Vs. The State, 1953 AIR 415, 1950 SCR 821 by Hon'ble Apex Court.

18. On the other hand, ld counsels for the other accused persons have stated that there are material contradictions in the testimony of prosecution witnesses and benefit of doubts should be given to the accused persons.

19. For the sake of convenience, evidence of material Pws in short is mentioned as under: PW2 Dr. Jatin Bodwal, Specialist, Department of Forensic Medicine, DDU Hospital, Delhi has deposed that on 08.04.2015, he was posted at BSA Hospital. He has further deposed that on that day he alongwith Dr. Mukesh Kumar conducted examination Digitally signed by SHIVAJI SHIVAJI ANAND SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. ANAND Date:

Page 11 of total 40 pages 2020.11.28 15:10:02 +0530 on the body of deceased Vicky S/o Sh. Ajay Singh with the alleged history of gun shot injury on 05.04.2015. He has further deposed that after carrying out postmortem, they prepared postmortem report no. 185/15 Ex.PW2/A. He has further deposed that after carrying out postmortem examination, they came to the conclusion that the death of Vicky was due to cranio cerebral damage caused by fire arm weapon via injury no.1 as detailed in postmortem report, which was sufficient to cause death in ordinary course of nature. He has further deposed that they also come to the conclusion that injury no. 2 to 5 as mentioned in postmortem report, were caused by blunt force and all the injuries were antemortem and were recent in nature.

20. It is further deposed by PW2 that during postmortem, one bullet was taken out from the head of the deceased as detailed in column no. X(a) of postmortem report Ex.PW2/A. After sealing the said bullet, sealed blood on gauze of deceased alongwith sample seal of Department as well as 20 inquest papers were handed over to the investigating agency. PW2 has identified the lead which was taken out from the head of deceased during postmortem and proved the said lead (bullet) as Ex.P1.

21. PW3 Manoj is the eyewitness of the incident in question and has also received injuries in the incident, but this witness has not supported the case of the prosecution and has also denied his statement given to the police. He has deposed in the Court that he did not remember the exact date or month but on one day in the year 2015, in the early morning hours he went to attend natural call at near the boundary wall. While he was coming back to his house after attending natural call, 34 unknown assailants gave beatings to him and managed to run away. He further deposed that someone made a call at number 100 and police officials took him to BJRM Hospital where he was medically examined.

Digitally signed by SHIVAJI

                                                                                 SHIVAJI               ANAND

                                                                                 ANAND                 Date:
                                                                                                       2020.11.28
                                                                                                       15:10:11 +0530


SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc.      Page 12 of total 40 pages

22. PW5 Dr. Kumar Akhilesh, CMO, Dr. BSA Hospital, Rohini, has deposed that on 05.04.2015, he was on duty as CMO in the aforesaid hospital. He has further deposed that on that day, at about 7.12 am, injured Vicky S/o Sh. Ajay Singh brought to casualty by PCR with alleged history of gun shot injury about half an hour back as told by accompanying persons and by SI Tej Singh. The said patient was medically examined under my supervision by Dr. Irfan the then J.R. Casualty. He has further deposed that the MLC No. 3525 of injured Vicky was in the handwriting of Dr. Irfan and proved the same as Ex. PW5/A. He has further deposed that the aforesaid patient was in unconscious state. It is further deposed by him that upon local examination, the brain matter with active oozing of blood and bony fragment seen over right temporo parietal region alongwith other injuries as detailed in MLC Ex. PW5/A and after initial medical treatment, the said patient was referred to ICU Surgery/Neuro Surgery for further management and treatment. He has further deposed that the clothes of injured were taken out and were sealed with the seal of the hospital and blood in plain vial of injured Vicky was also taken which after sealing handed over to the police. He has further deposed that on the same day at about 7.24 am injured Manoj S/o Sh Ram Milan was brought by PCR with alleged history of physical assault at around 6.30 am as told by patient himself. It is further deposed that the said patient was medically examined under his supervision by Dr. Manveer Singh the then J.R. Casualty. He has proved the MLC No. 3613 of injured Manoj, which was in the handwriting of Dr. Manveer Singh as Ex. PW5/B. It is further deposed that upon local examination, there was abrasion over the right knee of the aforesaid patient. The nature of injury was opined as simple on the MLC of Manoj. He has further deposed that he can identifying the signature of Dr. Manveer Singh and Dr. Irfan on aforesaid MLCs as he has seen them signing and writing during official work. He has further deposed that both the aforesaid doctors have now left the services of the hospital.

23. PW6 Ms. Suman is the sister of deceased Vicky, who has deposed that she has been residing at the aforesaid address alongwith her family. She has further deposed Digitally signed SHIVAJI by SHIVAJI ANAND ANAND Date: 2020.11.28 15:10:19 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 13 of total 40 pages that in the said house apart from her, her parents, her brothers namely Raj Kumar, Prakash and Babloo were residing. She has further deposed that her another brother namely Vicky (since deceased) also used to reside in the aforesaid house with them. She has further deposed that on 05.04.2015 on or about 6 am, accused Ravinder @ Anda, came to their house as he was known to her brother and used to visit their house on earlier occasions also. She has further deposed that on reaching at our house on 05.04.2015, accused Ravinder @ Anbda stated to her brother Vicky that Pankaj had been calling him and on asking of her brother as to why Pankaj had been calling him, accused Ravinder @ Anda had replied to her brother Vicky that Pankaj wanted to talk with him. There her brother Vicky had accompanied accused Ravinder @ Anda. She has further deposed that after about few minutes or so, she had also left her house alongwith her minor daughter and when she reached at nearby jhuggi, she had seen that accused Ravinder @ Anda, accused Sanjeet @ Kalia, Pankaj @ Sura, Neeraj and Arman, were present there. PW6 has further deposed that she had also seen that her brother Vicky was lying inside the gali having bullet injury over his head and all the aforesaid accused persons were standing near the body of her brother Vicky. She has also deposed that she had seen that accused Neeraj was carrying one country made katta. She has also deposed that when she reached near her brother, all the accused persons were talking in low pitch with each other "apas me fusfusa rahe the". She has further deposed that when she enquired from the aforesaid accused persons, all the aforesaid accused persons ran away from there. PW6 has further deposed that someone had made a call at 100 number, but before the arrival of police, she with the help of her uncle namely Kameshwar, took her brother Vicky to BSA Hospital. She has further deposed that police met her in the hospital and police official had recorded her statement on the same day at her house.

24. During cross examination this witness has deposed that her husband has been residing at Surat. She has denied that she was not present in Delhi at the time of Digitally signed SHIVAJI by SHIVAJI ANAND ANAND Date: 2020.11.28 15:10:29 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 14 of total 40 pages occurrence and has deposed that she has been residing at her parental house since last three years of occurrence. She has further deposed that she has also filed a complaint before CAW Cell at that time. She has denied that she is deposing falsely or that she had not seen any such incident or that they had not taken her brother Vicky to Hospital. She has further denied that she had not seen accused persons present at the spot or that she had also not seen accused Neeraj carrying any pistol. PW6 has also denied that upon her query, the accused persons run away from the spot. She has also denied that she came to know about the death of her brother Vicky lateron and she has been planted as a witness in this case.

25. PW7 SI Satish Chander is the first IO of the case and has deposed that in the early morning hours of 05.04.2015, DD No. 5A was marked to him and accordingly, he alongwith Ct. Yogender went to the place of occurrence i.e. near Jhuggi No. 702, EBlock, Shahbad Dairy, where they came to know about firing of a bullet during quarrel and that the injured who had received gun shot injury has been taken to BSA Hospital. He has further deposed that no eye witness met them at the spot and blood stains were found lying in the said gali. Hence he called the Crime Team at the spot and crime team Incharge inspected the place of occurrence and photographs of the place of occurrence were taken. He has further deposed that from the spot, he lifted the blood stained earth control as well as the earth sample and kept the same in separate containers and both the containers were given serial no. 1 & 2. He has further deposed that both the said containers were sealed with the seal of MK and were seized vide seizure memo Ex.PW7/A. PW7 has further deposed that thereafter, he alongwith Ct. Yogender went to BSA Hospital, from where he collected MLC of Vicky with alleged history of gun shot injury about half hour back. The patient was opined unconscious and unfit for statement. Thereafter, he collected the MLC of Manoj S/o Ram Milan, but the said Manoj was not found in the said hospital. He has further deposed that thereafter, they returned back to the spot and also went to the residence of Manoj i.e. F1139, Gali No. 5, Digitally signed SHIVAJI by SHIVAJI ANAND ANAND Date: 2020.11.28 15:10:47 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 15 of total 40 pages Shahbad Dairy, but said Manoj could not meet us at both the said places. Thereafter on the basis of the contents of DD No.5A and MLCs, he had prepared rukka Ex.PW7/C and handed over the rukka to Ct. Yogender who accordingly, went to PS, got the FIR registered, came back to the spot and handed over him copy of FIR and original rukka. This witness has further deposed that at the spot, he prepared rough site plan Ex.PW7/D and during investigation, he recorded statement of witnesses i.e. Manoj, Ms. Suman and other witnesses.

26. He has further deposed that during investigation on 05.04.2015, accused Ravinder @ Anda was apprehended from FBlock jhuggi, Shahbad Dairy. He interrogated the said accused and after interrogation, effected his arrest vide arrest memo Ex.PW7/D1, conducted his personal search vide memo Ex.PW7/D2 and recorded his disclosure statement Ex.PW7/D3. He has further deposed that during investigation, accused Ravinder @ Anda got recovered one danda from his residence, which was kept by him(IO) in a cloth pullanda and sealed with the seal of MK and he seized the same vide seizure memo Ex.PW7/D4. He has further deposed that during investigation on 06.04.2015, while he alongwith Ct. Yogender and Ct. Satya Prakash was present at Prahladpur Chowk, at about 6 pm, one informer gave an information to him that two of the offenders could meet them at Sector25, Rohini in stolen Tavera vehicle. He has further deposed that he disclosed the contents of said information to aforesaid officials and requested 45 passersby to join the raiding party, but none of the said public persons agreed for the same and thereafter they went to the place of information. He has further deposed that at about 6.15 pm at the pointing out of informer, one Tavera Car bearing registration no. DL3CAE2059 coming from the side of Sector25, Rohini was stopped by them. He has further deposed that accused Pankaj @ Sura was sitting on the driver seat and accused Sanjeet Kumar @ Kalia was sitting besides accused Pankaj @ Sura and they apprehended both of them. It is further deposed by them that upon interrogation both the accused persons had disclosed that the aforesaid vehicle Digitally signed SHIVAJI by SHIVAJI ANAND ANAND Date: 2020.11.28 15:10:54 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 16 of total 40 pages was stolen by them from PS Shakarpur area. It is further deposed by PW7 that he took the formal search of accused Pankaj @ Sura and one country made katta was recovered from the right side of pant of said accused. He has further deposed that one live cartridge was also recovered from the pocket of wearing pant of accused Pankaj @ Sura. Upon checking the said katta was found loaded with one live cartridge. Accordingly he prepared the sketch Ex.PW7/1 of said katta and cartridge. It is further deposed by PW7 that he kept the said katta and cartridges in a plastic container and sealed the said plastic container with the seal of MK and seized the same vide seizure memo Ex.PW7/2. That he also seized the aforesaid Tavera Car vide seizure memo Ex.PW7/3.

27. It is further deposed by PW7 that he interrogated both the accused persons and after interrogation, effected the arrest of accused Sanjeet @ Kalia vide arrest memo Ex.PW7/4, conducted his personal search vide memo Ex.PW7/5 and recorded his disclosure statement Ex.PW7/6. He has further deposed that he also effected the arrest of accused Pankaj @ Sura vide arrest memo Ex.PW7/7, conducted his personal search vide memo Ex.PW7/8 and recorded his disclosure statement Ex.PW7/9. It is further deposed that during investigation, accused Pankaj @ Sura had got recovered a gas cutter and one small cylinder from his residence, which was seized by him vide seizure memo Ex.PW7/10. He has further deposed that accused Sanjeet @ Kalia got recovered a safe (tijori), which which seized by him vide seizure memo Ex.PW7/11. He has further deposed that thereafter both the aforesaid accused persons pointed out the place of commission of offence of the present case, vide pointing out memo Ex.PW7/12.

28. It is further deposed by PW7 that on 07.04.2015, DD No. 89B was marked to him to the effect that injured Vicky S/o Sh. Ajay Singh had expired in BSA Hospital during treatment. Accordingly, he went to the said hospital and the body of Vicky was shifted to the Mortuary of said hospital. He has further deposed that on 08.04.2015, he went to the Digitally signed by SHIVAJI SHIVAJI ANAND ANAND Date: 2020.11.28 15:11:01 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 17 of total 40 pages Mortuary of BSA Hospital and moved an application Ex.PW7/E for postmortem on the body of deceased and also filled form no. 25.35(1)(b) Ex.PW7/F. It is futher deposed that he also recorded statements of Sh. Rajender Prasad and Dalip Kumar Ex.PW7/G & Ex.PW7/H qua identification of dead body of Vicky. He has further deposed that after postmortem, dead body of deceased was handed over to his relatives vide receipt Ex.PW7/J. It is further deposed that the concerned doctor also handed over him one sealed plastic container stated to be containing one bullet and one sealed envelope stated to be containing the blood on gauze piece of deceased. He has further deposed that both aforesaid exhibits were sealed with the seal of Department of FM, Govt. of Delhi Dr. BSAH and was seized vide seizure memo Ex.PW7/K. It is further submitted by PW7 that he recorded the statement of witnesses and since the offence U/s 302 IPC was added in the investigation, further investigation of the present case was taken over by SHO Inspector Mukesh Kumar. PW7 identified the danda Ex.P1, which accused Ravinder @ Anda had got recovered from his residence. He also identified the country made katta .315 bore Ex.P2, which was recovered from the possession of accused Pankaj @ Sura and one fired bullet Ex.P3, which was recovered from inside the country made katta recovered from the possession of accused Pankaj @ Sura. PW7 has further identified one cylinder and one gas cutter Ex.P4 & P5 respectively recovered at the instance of accused Pankaj @ Sura. He has further identified one safe (tijori) Ex.P6 recovered at the instance of accused Sanjeet @ Kaliya.

29. During cross examination, PW7 has denied that he manipulated the statement of Manoj of his own or that Manoj had not made any such statement to him. He has also denied that accused Ravinder @ Anda was not apprehended/arrested from FBlock jhuggi. PW7 has also denied that no such country made katta was recovered from the possession of accused Pankaj @ Sura or that the said katta and cartridge were planted upon the said accused to falsely implicate him in the present case.

Digitally signed by SHIVAJI

                                                                                SHIVAJI         ANAND

                                                                                ANAND           Date:
                                                                                                2020.11.28
                                                                                                15:11:09 +0530

SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc.      Page 18 of total 40 pages

30. PW10 HC Umesh has deposed that on 05.04.2015 he was posted at P.S. Shahbad Dairy and working as MHC(M). He has deposed that on that day, SI Satish Chander deposited one pullanda sealed with the seal of Casualty Govt. of Delhi Dr. BSAH alongwith sample seal and three pullandas sealed with the seal of MK, gas cutter alongwith pipe and gas cylinder, one tijori and one Tavera vehicle no. DL3CAF2069 and two pullandas sealed with the seal of MK stated to be containing country made katta and two live cartridges respectively. He has further deposed that he made entry at serial no. 2161/15 in register no. 19 in this regard. He has proved the relevant pages containing the aforesaid entry as Ex.PW10/A (OSR). It is further deposed that on 08.04.2015, SI Satish Chander deposited one plastic container seal with the seal of Department of FM Govt. Dr. BSAH, one sealed envelope and sample seal of aforesaid specimen in the Malkhana and he made entry at serial no. 2167/15 in register no. 19 in this regard. He has proved the relevant pages containing the aforesaid entry as Ex.PW10/B (OSR). It is further deposed by PW10 that on 11.05.2015, Inspector Mukesh deposited in the Malkhana one pullanda sealed with the seal of MK stated to be containing one country made katta and Form FSL. He made entry at serial no. 2229/15 in register no. 19 in this regard and proved the photocopy of the relevant pages containing the aforesaid entry as Ex.PW10/C (OSR).

31. PW10 has further deposed that on 09.04.2015, one Tavera car bearing no. DL3CAE2069 was sent to PS Shakarpur through SI Rahul vide R.C. No. 89/21/15 and he proved the photocopy of relevant RC as Ex.PW10/D. He has further deposed that on 21.05.2015, five sealed pullandas were handed over to Ct. Ashok vide RC No. 118/21/15 for depositing the same at FSL, Rohini. It is further deposed that Ct. Ashok handed over him the acknowledgement and proved the photocopy of relevant RC as Ex.PW10/E and acknowledgement issued by FSL as Ex.PW10/F.

32. It is further deposed by PW10 that on 21.05.2015, six sealed pullandas were Digitally signed by SHIVAJI SHIVAJI ANAND ANAND Date: 2020.11.28 15:11:16 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 19 of total 40 pages handed over to Ct. Ashok vide RC No. 119/21/15 for depositing the same at FSL, Rohini and after deposit, Ct. Ashopk handed over him the acknowledgement. He proved the photocopy of relevant RC as Ex.PW10/G and acknowledgement issued by FSL as Ex.PW10/H.

33. PW20 Inspector Mukesh Kumar deposed that on 08.04.2015, he was posted at P.S Shahbad Dairy as SHO and on that day, the case file of present case was handed over to him by SI Harish Chander. He has further deposed that on 06.05.2015, he collected the Crime Team report Ex.PW12/A and the photographs Ex.PW12/B (colly.) and placed the same on file. He has further deposed that he recorded the statement of Incharge Crime Team ASI Ajit Singh and Photographer HC Shiv Om.

34. PW20 has further deposed that on 09.06.2015, a secret informer came to the PS and informed him that accused Neeraj @ Ganja wanted in the present case, came to his house at Trilokpuri and could be arrested from there. It is further deposed by him that he alongwith HC Anil, Ct. Hari Bhagwan and secret informer went to Shahbad Dairy Bus Stand and from there, PW Manoj joined them and they went to H. No. 36/380, Trilokpuri, where on the pointing out of secret informer, accused Neeraj @ Ganja was apprehended from the gali. He has further deposed that accused Neeraj @ Ganja was interrogated by him and arrested vide arrest memo Ex.PW18/A. He has also deposed that personal search of accused Neeraj @ Ganja was conduced vide memo Ex.PW18/B and his disclosure statement Ex.PW18/C was recorded. He has further deposed that accused Neeraj @ Ganja also pointed out the place of occurrence vide pointing out memo already Ex.PW18/D.

35. It is further deposed by PW20 that on 11.05.2015, he alongwith HC Anil Kumar, SI Surender and Ct. Hari Bhagwan came to Rohini Court Complex and sought one day police custody remand of accused Neeraj @ Ganja before the Ld. MM and then they came to the PS with the said accused. PW20 has further deposed that accused Neeraj @ SHIVAJI Digitally signed by SHIVAJI ANAND ANAND Date: 2020.11.28 15:11:27 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 20 of total 40 pages Ganja was interrogated at the PS and he disclosed that he had hided the country made pistol used by him, in the bushes behind FBlock jhuggi, Shahbad Dairy. It is further deposed that accused Neeraj @ Ganja led the police party at the bushes and took out one country made katta and produced the same before him and he prepared the sketch Ex.PW14/A of the said katta and also measured the said katta. It is further deposed that thereafter, he kept the said katta in a plastic container, sealed the same with the seal of MK and seized vide seizure memo Ex.PW14/B. Thereafter, they returned to the PS and he deposited the case property in the Malkhana and accused Neeraj @ Ganja was put in the Lockup. He has further deposed that he recorded the statement of witnesses.

36. PW20 has further deposed that on 12.05.2015, accused Neeraj@ Ganja was produced before the concerned court and he was remanded to judicial custody. It is further deposed that on 21.05.2015, on his instructions, Ct. Ashok collected the case property from the Malkhana and deposited the same at FSL, Rohini, vide RC No. 118/21/15 & 119/21/15 and he recorded the statement of Ct. Ashok and MHC(M) in this regard. It is further deposed that on 22.05.2015, he alongwith Draftsman Inspector Mahesh Kumar visited the place of incident i.e. near Jhuggi No. E702, Shahbad Dairy, Delhi, where on his pointing out, Inspector Mahesh Kumar took the measurements and prepared rough notes and handed over the scaled site plan Ex.PW8/A to him on 05.06.2015. It is further deposed that on 30.05.2015, he obtained NBWs against accused Arman and Suresh @ Sheru and subsequently, process U/s 82 Cr.P.C. was obtained against the said accused persons.

37. PW20 has further deposed that on 04.06.2015, a secret informer came to the PS and informed him that accused Arman was seen at his house no. B119, Shahbad Dairy and could be apprehended from there. It is further deposed that accordingly he alongwith Ct. Virender, Ct. Awaran and secret informer went to the aforesaid house of accused Arman and on the pointing out of secret informer, accused Arman was apprehended from in front of Digitally signed SHIVAJI by SHIVAJI ANAND ANAND Date: 2020.11.28 15:11:35 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 21 of total 40 pages House No. B119, Shahbad Dairy. He has further deposed that accused Arman was interrogated and arrested vide arrest memo Ex.PW19/A, his personal search was conducted vide memo Ex.PW19/B and his disclosure statement Ex. PW19/C was recorded.

38. PW20 further deposed that on 05.06.2015, accused Arman pointed out the place of occurrence vide pointing out memo Ex.PW19/D. He recorded the statement of witnesses and accused Arman was produced before the concerned court and was remanded to JC.

39. It is further deposed by PW20 that on 06.06.2015, he recorded statement of ASI Tej Singh of PCR and thereafter he prepared the chargesheet against accused Ravinder @ Anda, Sanjeet @ Kalia, Neeraj @ Ganja, Pankaj @ Sura and Arman and filed the same in the Court.

40. PW20 has further deposed that on 13.08.2015, he received a secret information that accused Suresh @ Sheru was seen at his house and could be apprehended from there. Accordingly, he alongwith Ct. Virender and HC Anil prepared a raiding party and went to H. No. B12/14, Shahbad Dairy. He has further deposed that accused Suresh @ Sheru was apprehended from front side of his house and was arrested vide arrest memo Ex.PW20/A. He has further deposed that personal search of accused Suresh @ Sheru was conduced vide memo Ex.PW20/B and his disclosure statement Ex.PW20/C was recorded. It is further deposed that accused Suresh @ Sheru also pointed out the place of occurrence vide pointing out memo Ex.PW20/D and said accused was got medically examined at M.V. Hospital. Thereafter, they returned to the PS and he recorded the statement of witnesses in this regard. It is further deposed by PW20 that thereafter he collected the FSL result Ex. PX and obtained the sanctions U/s 39 Arms Act. Thereafter he Digitally signed SHIVAJI by SHIVAJI ANAND ANAND Date: 2020.11.28 15:11:43 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 22 of total 40 pages prepared the supplementary chargesheet against accused Suresh @ Sheru and filed the same in the court. PW20 identified one country made katta Ex.P14/1, which was recovered at the instance of accused Neeraj @ Ganja and was seized by him during investigation.

41. During cross examination this witness has denied that he obtained the signatures of the accused Neeraj @ Ganja on certain blank papers forcibly or that the same were converted into various incriminating memos against the said accused to falsely implicate him in this case. He has further deposed that after the arrest of accused Neeraj @ Ganja, they directly reached at the spot at about 1 pm and asked the family members of deceased to join the proceedings at the time of pointing out of the spot by accused Neeraj @ Ganja, they refused to join the same due to fear. He has further deposed that no chance print/finger prints were lifted from the place of recovery of country made katta as crime Team was not called at the time of said recovery proceedings. PW20 has admitted that no site plan was prepared at the time of recovery but has denied that no site plan was prepared at the time of recovery of country made katta as no such katta was recovered at the instance of accused Neeraj @ Ganja. He has also denied that said Katta was planted upon the accused Neeraj @ Ganja to falsely implicate him in this case. PW20 has also denied that the country made katta/pistol was already available in the police station or that lateron he fired bullet shot from the said pistol in order to create false evidence against the accused persons. PW20 has deposed that the lead which matched with the present country made katta, was recovered from the body of the deceased by the Autopsy Surgeon and sealed. PW20 has denied that no such lead was recovered from the body of the deceased or that the same is planted upon the accused persons in order to falsely implicate them in this case.

42. PW20 also denied that the doctor has given false postmortem report at his instance lateron. It is further deposed by PW20 that they requested the public persons to join the proceedings at the time of recovery of country made katta, however, nobody came Digitally signed SHIVAJI by SHIVAJI ANAND ANAND Date: 2020.11.28 15:11:50 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 23 of total 40 pages forward to join the proceedings. He has denied that no public person was asked to join the said proceedings as no recovery of country made katta was effected at the instance of accused Neeraj @ Ganja. PW20 has denied that the entries in register no. 19 and 21 were antetimed or antedated or that the same were manipulated by the MHC(M) in order to create false evidence against the accused persons. He has also denied that draftsman Inspector Mahesh Kumar had not visited the place of occurrence or that he did not take any rough notes or that the same were prepared by him while sitting at the PS at the instance of PW20. PW20 has further denied that accused Arman and Suresh @ Sheru were available at their residence or that he intentionally or deliberately got issued NBWs and process U/s 82 Cr.P.C. against them in order to show them absconding. He has further denied that accused Arman and Suresh @ Sheru did not point out place of occurrence or that their signatures were obtained on certain blank papers, which were lateron converted into their disclosure statements and other incriminating documents against them to create false evidence against the accused persons. He has further denied that accused Neeraj @ Ganja, Arman and Suresh @ Sheru were not apprehended/arrested in the manner as deposed by him. PW20 has also denied that accused persons had not made any such disclosure statements as claimed by him during his examination in chief. He has further denied that he filed a false chargesheet against the accused persons in order to solve the murder case. He has further denied that there was pressure of higher police officers to solve the present case or that that is why he falsely implicated the accused persons in the present case He has also denied that he had not conducted fair investigation.

43. PW 22 Sh. Puneet Puri, Assistant Director(Ballistics), FSL Rohini, Delhi has deposed that on 21.05.2015, four sealed parcels, parcel No. 1 to Parcel No. 3 sealed with the seal of MK and parcel No. 4 sealed with the seal of DR.BSAHDEPTT OF F.M.GOVT OF NCT OF DELHI were received in FSL through Ct. Ashok Kumar and same were marked to him for examination. He has further that the seals on the parcels were intact and as per the specimen seals provided with the FSL form. Digitally signed SHIVAJI by SHIVAJI ANAND ANAND Date: 2020.11.28 15:11:57 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 24 of total 40 pages

44. PW22 has further deposed that on opening the first parcel, one country made pistol of .315 inch bore was taken out and marked as Ex. F1. On opening the second parcel, one country made pistol of .315 inch bore was taken out and marked as Ex. F2. On opening the third parcel, two 8 mm/.315 inch cartridges were taken out and marked as Ex. A1 and A2 respectively. On opening the fourth parcel, one bullet was taken out and marked as Ex. EB1 and four 8 mm/.315 inch cartridges were also received for test firing.

45. PW22 has further deposed that on examination, the country made pistol marked Ex. F1 was in working order. Test fire was conducted successfully by using the cartridges marked Exs.A1, Ex. A2 and one 8 mm/.315 inch cartridge out of four 8mm/.315 inch cartridges received for test firing, the test fired cartridge cases were marked as TC1 to TC3 and the three recovered test fired bullets were marked as TB1 to TB3. He has further deposed that on examination, the country made pistol marked Ex. F2 was found in working order. Test fire was conducted successfully by using two 8 mm/.315 inch cartridges out of four 8 mm/.315 inch cartridges received for test firing, the test fired cartridge cases were marked as TC4, TC5 and the two recovered test fired bullets were marked as TB4 and TB5.

46. It is further deposed by PW22 that the bullet marked Ex. EB1 was corresponding to the bullet of 8 mm/.315 inch cartridge and had been discharged through the country made pistol marked Ex. F1 as the individual characteristics of striations present on evidence bullet marked Ex. EB1 and on test fired bullets marked TB1 to TB3 were found identical when examined under the comparison microscope. The country made pistols marked Ex. F1 and F2 are firearms, the cartridges marked Ex. A1, A2 and the bullet marked Ex. EB1 were ammunition as defined in Arms Act 1959. It is further deposed that the exhibits were then resealed with the seal of PPFSLDELHI and he has proved his SHIVAJI Digitally signed by SHIVAJI ANAND ANAND Date: 2020.11.28 15:12:05 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 25 of total 40 pages detailed report in this regard as Ex. PW22/A. During cross examination, PW22 has denied that I had not conducted any test firing or that he prepared his report in mechanical manner at the instance of IO. He has also denied that he received the parcels in unsealed condition.

47. PW23 Sh. Pankaj Kumar Singh, IPS, Superintendent of Police, Crime, Goa has deposed that on 23.03.2016 he was posted as Additional DCPI, Outer District, Delhi. On that day, after perusing copy of the case file of the present case alongwith the case diary, report under Section 173 Cr. P. C., statement of the prosecution witnesses recorded by the police under Section 161 Cr. P. C. and the documents relied upon by the police including the seizure memos and the ballistic examination report of this case and after applying his mind, he accorded sanction for prosecution of accused Pankaj @ Shura (qua recovery of one country made pistol .315" bore and two 8 mm/.315" cartridges from him) and Neeraj @ Ganja (qua recovery of one country made pistol .315" bore from him and recovery of one bullet fired by him from the body of deceased Vicky) under Section 39 of the Arms Act 1959 vide sanctions Ex.PW23/A and Ex.PW23/B respectively. During cross examination, PW23 has denied that he did not personally examine the documents or that he accorded the sanction Ex.PW23/A against accused Pankaj @ Shura in a mechanical manner without applying his independent mind. He has further denied that he did not personally examine the documents or that he accorded the sanction Ex.PW23/B against accused Neeraj @ Ganja in a mechanical manner without applying his independent mind.

48. Accused Ravinder @ Anda has examined two witnesses in his support of his defence. He has examined DW1 Sh. Chandan, who deposed that on 05.04.2015, he went to Anarkali Park for playing cricket. He has further deposed that he left his house at about 5.30 a.m. He has further deposed that he alongwith accused Ravinder, Jintender and Ravi reached at Anarkali Park for playing cricket. That every Sunday they used to visit the said park for playing cricket. He has further deposed that they played till 10.30 a.m in the park Digitally signed by SHIVAJI SHIVAJI ANAND ANAND Date: 2020.11.28 15:12:13 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 26 of total 40 pages and thereafter he alongwith Ravinder reached at his house and took tea and snaks. It is further deposed that accused Ravinder stayed in his house for about 20 minutes and thereafter he(Ravinder @ Anda) left his house. He has further deposed that in the evening hours on the same day, he came to know from his mother that accused Ravinder was apprehended by police.

49. During cross examination this witness has deposed that accused Ravinder @ Anda was released on bail in the present case on 9 th day of either July or of August 2020. He has further deposed that he did not file any complaint to any authority including concerned S.H.O, D.C.P or concerned Court regarding the fact which he has stated today in the Court. He has further deposed that he did not know the house number of accused Ravinder. DW1 has denied that he was not with accused Ravinder on the day as stated by him in his examinationinchief. He has further denied that he has given a false statement in my examinationinchief at the instance of accused Ravinder @ Anda only to save him in the present case.

50. Accused Ravinder @ Anda has also examined DW2 Sh. Suraj Kumar in support of his defence. DW2 has deposed that deceased namely Vicky was living nearby his house. He has further deposed that on 05.04.2015, at about 6 a.m there was some commotion in the locality regarding gun shots being caused to deceased Vicky. Thereafter he reached at the spot where he met with mother, father and brother namely Bablu of the deceased. He has further deposed that mother of the deceased had taken her son Vicky on her lap and blood was oozing from the head of the deceased. Police came there and took Vicky in the hospital. He has further deposed that thereafter he left for his house and at about 34 p.m, sister of Vicky namely Suman came from her matrimonial house.

51. During cross examination this witness has deposed that he knew the facts of Digitally signed by SHIVAJI SHIVAJI ANAND ANAND Date: 2020.11.28 15:12:23 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 27 of total 40 pages the case as he resides near to the house of deceased. He has further deposed that there are 34 galies between his house and the house of deceased. It is further deposed that the house of the deceased is not visible from his house. He has also deposed that he is not acquainted with the mother and father of the deceased and volunteered that his parents know them. He has further deposed that he can not tell the age of parents of the deceased Vicky. It is also deposed that he also can not tell the confirmed age of sister of deceased Vicky namely Suman and has volunteered that she might be of 2728 years at present. He has further deposed that he does not know where is the matrimonial home of Suman. He has further deposed that he does not know the house number of deceased Vicky. DW2 has denied that accused Ravinder @ Anada and his associates are involved in this case. He has further denied that only to save the accused persons in the present case, he has deposed a false and concocted facts today in the Court in his examinationinchief. He has denied that he never gone to the spot at any point of time and for the said reason he can not tell anything about the spot. He has further deposed that his mobile number is 8851003294 but has denied that he used to talk with Ravinder @ Anda from his above said mobile phone. He has further deposed that at the instance of accused Ravinder @ Anda to save him in the present case he has deposed falsely in the Court.

52. Accused Arman has examined DW3 Sh. Pradeep in his defence, who has deposed that he know accused Arman being his neighbourer. He has deposed that on the day of incident, he left his house for taking milk from nearby Kirana shop at about 6 a.m. He has further deposed that after coming back, he prepared tea and also given cup of tea to accused Arman, who was sitting outside his jhuggi. He has further deposed that after that he left his jhuggi with his wife for dropping her to Sector24, Rohini and subsequently he left for his job work at about 7 a.m. During cross examination DW3 has deposed that he can not tell the exact jhuggi No. of accused Arman. He has also deposed that he can not tell as Digitally signed SHIVAJI by SHIVAJI ANAND ANAND Date: 2020.11.28 15:12:35 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 28 of total 40 pages to in how many cases in which some incident had taken and accused Arman have been involved.

APPRECIATION OF EVIDENCE

53. The present case is mainly based on the versions of two eyewitnesses I.e PW3 and PW6. PW3/Sh. Manoj, in his statement u/s 161 Cr.P.C has deposed that on 05.04.2015 his friend Sanjeet @ Kalia called him from his house on the pretext that in F block juggies accused Sura, Ganga and Anda were calling him for talks. He has further averred that when he alongwith with Sanjeet @ Kalia reached near jhuggi No. E702, he found Pankaj @ Sura, Neeraj @ Ganja in the street gali and Pankaj told him "sale tu hamari mukhbari karta hai, hum tuje sabak sikha denge" and Pankaj and Neeraj gave him fists and legs blows. He has also averred that accused Sanjeet pulled his hair and after some time Ravinder @ Anda and Vicky also reached there and Pankaj and Neeraj also gave beatings to Vicky. After some time Sheru, Arman and Ravinder also gave beatings to him. He has further averred that thereafter accused Pankaj @ Sura told "yaar Neeraj in salu ko goli maar de fir dekhate hai ki ye hamari mukhbari kaise karenge" and then accused Neeraj @ Ganja taken out the desi katta and fired on the head of Vicky. He has also averred that he knows Pankaj @ Sura, Neeraj @ Ganja, Ravinder @ Anda, Sanjeet @ Kalia, Suresh @ Sheru and Arman prior to the incident. He has further averred that thereafter PCR van came and took him and Vicky to BSA hospital. However when this witness appeared in the Court he completely resiled from his statement given to the police u/s 161 Cr.P.C. He has deposed in the Court that in the year 2015 in the early morning hours, he went to attend natural call, 3 4 unknown assailants gave beatings to him and managed to run away. He has further deposed some one made a call at 100 number and police officials took him to BJRM hospital, where he was medically examined. He even did not recognize the accused persons as assailants and submitted that said assailants are not present in the Court today. The version given by PW3 in the Court is totally different from the version given to the police and even during the cross examination this witness remained firm and nothing incriminating could Digitally signed SHIVAJI by SHIVAJI ANAND ANAND Date: 2020.11.28 15:12:42 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 29 of total 40 pages come out against the accused persons during the lengthy cross examination carried out by Ld Additional P.P for State. When the statement u/s 161 Cr.P.C was read over by Ld Substitute Additional P.P to the witness he has categorically denied having made any such statement to the police. He even deposed that accused persons present in the Court today are not the assailants. Since this witness has not supported the case of the prosecution, the testimony of this witness goes in favour of the accused persons.

54. PW6/Ms. Suman, who is sister of the deceased and is another eyewitness of this case has averred in her statement u/s 161 Cr.P.C that she resides with her parents and used to do domestic work. She has further averred that in her family besides her parents she has six brothers out of whom her two elder brothers namely Pintu & Raju used to reside separately and Vicky, Rajkumar, Prakash and Bablu used to reside with them. She has further averred that on 05.04.2015 at about 6 a.m, Ravinder @ Anda whom she knew since he used to visit their house to meet her brother Vicky, came and told Vicky to have some talks since all the friends have gathered, then her brother Vicky went alongwith Ravinder @ Anda at that time. She has further averred that after half an hour she heard hard noise and on hearing the noise she reached near jhuggi No. E702, Shahbad Dairy and show that her brother Vicky was lying in the street having gun shot injury on his head. She has further averred that Ravinder @ Anda, Sanjeet, Pankaj @ Sura, Neeraj, Arman and Sheru were standing there and were whispering. She has further averred that when she asked Ravinder @ Anda in this regard, he alongwith his above said friends who reside at Shahbad Dairy went away from there. She has further averred that after some time PCR Van came and took her brother to BSA hospital. She has further averred that she has full belief that Ravinder @ Anda, Sanjeet, Pankaj @ Sura, Neeraj, Arman and Sheru have fired gun shot injury to her brother for the purpose of taking his life.

55. This witness although has supported the case of the prosecution in her Digitally signed by SHIVAJI SHIVAJI ANAND ANAND Date: 2020.11.28 15:12:52 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 30 of total 40 pages examination in chief, however when this witness was cross examined by respective ld defence counsels, many improvements/contradictions emerged, which are reproduced herein below.

"I had stated to IO in my statement U/s 161 Cr.P.C. that upon reaching at my house, accused Ravinder @ Anda had stated that accused Pankaj had been calling my brother Vicky. Confronted with statement Ex.PW6/DA, where the words "Pankaj had been calling my brother Vicky", has not been found so recorded.

I had also stated to IO in my statement U/s 161 Cr.P.C. that "my brother Vicky had enquired from accused Ravinder @ Anda as to why Pankaj had been calling him".

Confronted with statement Ex.PW6/DA, where the aforesaid words have not been found so recorded.

I had also stated to the IO in my statement U/s 161 Cr.P.C. that "accused Ravinder @ Anda had replied to my brother Vicky that Pankaj wanted to talk with him". Confronted with statement Ex.PW6/DA, where the aforesaid words have not been found so recorded."

56. The above mentioned cross examination of PW6 reveals that she has improved her version during her testimony in the Court. Besides the above said improvements there are other improvement in her testimony for example in the Court she has deposed that she had seen that accused Neeraj was carrying one country made pistol, but in her statement u/s 161 Cr.P.C this fact is not mentioned. Although she has stated that she had stated this fact to the police, but police had not recorded this fact in her statement, but it can not be believed that police would left such an important fact. Further in her examinationinchief she has deposed that someone had made a call at 100 number, but before the arrival of police, she with the help of her uncle namely Kameshwar took her brother Vicky to BSA hospital and in the hospital police met her. Now the very important question which arises is whether it can be safely assumed that PW6 was present at the Digitally signed by SHIVAJI SHIVAJI ANAND ANAND Date: 2020.11.28 15:13:01 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 31 of total 40 pages spot, immediately after the incident occurred. In this regard, it is important that during cross examination PW6 has deposed that she started yelling that her brother had been killed by the aforesaid accused persons and many public persons had gathered there. She has further deposed that in the meantime, her mother and other brothers had also reached at the spot. However PW7/Ist IO has deposed in his testimony that in the early hours of 05.04.2015, DD No. 5A was marked to him and when he alongwith Ct. Yogender(PW17) reached at the spot, they came to know that injured who had received gun shot injury has been shifted to BSA hospital and no eye witness met them at the spot. PW7 has further deposed that after collecting MLCs of the injured persons from the hospital, they returned back to the spot and also went to the residence of Manoj i.e. F1139, Gali No. 5, Shahbad Dairy, but said Manoj could not meet us at both the said places. Thereafter on the basis of the contents of DD No.5A and MLCs, he prepared rukka Ex.PW7/C and handed over the same to Ct. Yogender for registration of FIR. It is surprising that no complaint has been made by PW6 regarding death of her brother although as per her version she was present at the spot immediately after the incident and has also accompanied her brother to the hospital. Another fact which also raises doubts regarding presence of the PW6 at the spot is that the PCR call was made by some unknown number and not by PW6 or any other family members of the deceased. PW17 HC Yogender has deposed that no eyewitness met them in the hospital, which also raises doubts regarding presence of PW6 in the hospital after the incident in question. In DD entry No. 5A Ex. PW1/A, also there is no mention as who has caused the gunshot injury. From the testimony of PW6 given in the court it is revealed that she has made many improvements in her testimony and her testimony do not corroborate with the actual situation. Even otherwise there is no reason as to why PW7/IO and PW17 HC Yogender would depose falsely that no eyewitness met them either at the spot or in the hospital as well.

57. It is also surprising that case was registered on the basis of contents of DD Digitally signed SHIVAJI by SHIVAJI ANAND ANAND Date: 2020.11.28 15:13:09 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 32 of total 40 pages No. 5A and MLCs of the injured persons and statement of PW3/Manoj was recorded lateron, while as per version of PW6 she has reached at the spot immediately after the incident and police had also recorded her statement on the very same day I.e day of incident/ 05.04.2015 itself. The testimony of PW6 is also doubtful since in her statement u/s 161 Cr.P.C she has averred that PCR van came and took her brother to BSA hospital, while in her examination in chief she has deposed that someone had made a call at 100 number, but before the arrival of police, she with the help of her uncle namely Kameshwar, took her brother Vicky to BSA Hospital. She has further deposed that in the hospital, police met her, whereas PW17 has deposed that no eyewitness met them in the hospital. This also raises doubts on the presence of PW6 either at the spot or at the hospital. The fact of taking the injured persons to hospital by PCR van also corroborates from the MLC Ex. PW 5/A, wherein it is mentioned that injured has been brought by PCR Van and it is not mentioned therein that injured has been brought by relatives or family members.

WITNESSES OF REVOERY

58. PW7/SI Satish Chander, PW14/SI Surender, PW18 ASI Anil Kumar and PW 20/2nd IO Inspector Mukesh Kumar are the witnesses of arrest and recoveries of accused persons.

59. PW7/Ist IO has deposed that during investigation on 05.04.2015, accused Ravinder @ Anda was apprehended from FBlock jhuggi, Shahbad Dairy and after interrogation the said accused was arrested vide arrest memo Ex. PW7/D1. PW7 further deposed that he conducted personal search of the accused vide memo Ex.PW7/D2 and recorded his disclosure statement Ex.PW7/D3. He has further deposed that accused Ravinder @ Anda got recovered one danda from his residence used in commission of offence, which was seized by him vide seizure memo Ex.PW7/D4. PW7 has identified the said danda as Ex. P1. However recovery of danda is not material in the present case since although as per the disclosure statement of the accused the said danda was used by him for Digitally signed SHIVAJI by SHIVAJI ANAND ANAND Date: 2020.11.28 15:13:16 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 33 of total 40 pages giving beatings to Manoj and Vicky(since deceased), however same is not admissible even otherwise as per the statement of Manoj(PW3) u/s 161 Cr.P.C they were given beatings by fists and blows by the accused persons. Although PW3 turned hostile when he appeared in the witness box, but had he and deceased being given beatings with danda, he would have definitely told this thing to the police at the time of recording of his statement u/s 161 Cr.P.C. Further PW7 has also admitted in his cross examination that no blood stains were there on the said dana at the time of its seizure. Hence the recovery of danda from the house of accused Ravinder @ Anand is not much material since there is no evidence on the record to substantiate that the said danda was used as weapon of offence at the time of commission of offence in the present case. Further as per the postmortem report of the deceased injury No. 1 was caused by firearm weapon and injury No. 2 to 5 were caused by blunt force.

60. As per prosecution case accused Pankaj @ Sura and accused Sanjeet Kumar @ Kalia were apprehended and arrested on the second day of incident 06.04.2015 on receipt of a secret information from Sector 25, Rohini, Delhi. It has also come on the record that one country made katta and one live cartridge were recovered from the possession of accused Pankaj @ Sura on his formal search and upon checking the said katta was found loaded with one live cartridge. I had prepared the sketch Ex.PW7/1 of said katta and cartridges, which were seized by PW7 vide seizure memo Ex.PW7/2. However recovery of katta Ex. P2 from accused Pankaj @ Sura is not material qua the present case since as per disclosure statement of accused Ravinder @ Anand, accused Neeraj @ Ganja had caused gun shot injury to the deceased and PW6 Ms. Suman has also deposed in her evidence that when she reached near the body of her brother Vicky all the accused persons were standing near the body of her brother and accused Neeraj was carrying one country made katta. Neither PW6 nor accused Ravinder @ Anda had stated that Pankaj was on the spot with Katta and the Katta/weapon was used by Pankaj to cause injury to deceased Vicky. Recovery of katta from accused Pankaj @ Sura is also doubtful since as per version of PW Digitally signed by SHIVAJI SHIVAJI ANAND ANAND Date: 2020.11.28 15:13:23 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 34 of total 40 pages 7/Ist IO in his examination in chief one country made katta and one live cartridge were recovered on formal search of the accused Pankaj @ Sura and on checking the said katta, the same was found loaded with one live cartridge. As per Ex. PW7/1 and Ex. PW7/2, one country made katta and two live cartridges were recovered from accused Pankaj @ Sura, however when the above said recovered articles were produced before the Court for the purpose of identification, parcel No. 4 was found containing one fired bullet and PW7 identified the same as Ex. P3 and stated that the same was recovered from the possession of accused Pankaj @ Sura, now it is surprising that when at the time of seizure one country made katta and two live cartridges were there, which were stated to be recovered on formal search of accused Pankaj @ Sura, then from where the fired bullet came and where the other live cartridge gone since only the katta Ex. P2 and fired bullet Ex. P3 were produced before the Court by the MHC(M) for the purpose of identification of same by witness PW7. Hence, prosecution has failed to prove the recovery of katta and live cartridges from accused Pankaj @ Sura in the present case.

61. It is deposed by PW14/SI Surender that on 11.05.2015, he joined the investigation of the present case with IO Inspector Mukesh Kumar and accompanied to the IO to Rohini Court, where IO has moved an application for one day police custody remand of accused Neeraj @ Ganja and during P/C remand, accused Neeraj @ Ganja got recovered one country made katta from bushes of FBlock jhuggies and HC Anil(PW18) and Ct. Harbhagwan were also present at that time besides him and IO Inspector Mukesh Kumar. He has further deposed that IO prepared the sketch Ex.PW14/A of the said katta and said Katta was seized vide seizure memo Ex.PW14/B. The recovery of katta from accused Neeraj @ Ganja is material in the present case since the said katta was identified by PW14 in the Court when the same was produced before the Court by MHC(M) for the purpose of identification and witness has identified the same as Ex. PW14/1, which was recovered at the instance of accused Neeraj @ Ganja. Ex. PW14/A bears signatures of three police Digitally signed SHIVAJI by SHIVAJI ANAND ANAND Date: 2020.11.28 15:13:30 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 35 of total 40 pages officials, who were present at the time of recovery of the Katta and there is no reason why police officials would show false recovery from the said accused. Further testimony of PW2 and PW22 also corroborates the story of the prosecution that the country made katta recovered at the instance of accused Neeraj @ Ganja is the same which was used for commission of offence since PW22 in his testimony has deposed that the bullet marked Ex. EB1 was corresponding to the bullet of 8 mm/.315 inch cartridge and had been discharged through the country made pistol marked Ex. F1 as the individual characteristics of striations present on evidence bullet marked Ex. EB1. The deposition of PW22 being an expert opinion can not be discarded and he is an independent witness and there is no reason with him to give a false report.

62. PW2 Dr. Jatin Bodwal of DDU hospital has identified the said lead(bullet), when same was shown to him in the Court when it was produced by MHC(M) for the purpose of identification and witness has categorically stated that the said lead to be the same lead which was taken out from the head of deceased during conducting postmortem. He has proved the said lead (bullet) is Ex.P1. Even the parcel no. 4 containing one plastic container sealed with the seal of FSL was also found bearing the initials of the seal of Dr. BSAH, Department of FM Govt. of NCT of Delhi and the lid of the said plastic container was wrapped with the doctor's tape was also found bearing signature of Dr. Mukesh Kumar, who alongwith Dr. Jatin Bodwal conduced examination on deceased on 05.04.2015 at the time of his admission with alleged history of gun shot. Hence the testimony of PW2 and PW22 corroborates that the bullet which was recovered from the body of deceased was fired from the katta recovered at the instance of accused Neeraj @ Ganja.

63. Now the question arises whether accused Neeraj @ Ganja can be indicted on the basis of disclosure statements, recoveries and the evidence of PW2 and PW22. It has already been upheld that PW3 became hostile and did not support the case of the SHIVAJI Digitally signed by SHIVAJI ANAND ANAND Date: 2020.11.28 15:13:38 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 36 of total 40 pages prosecution. PW6 although gave testimony in favour of the case of the prosecution, but her presence at the spot is highly doubtful. Even otherwise as per her own version she has reached at the spot after happening of the incident in question. So her testimony is also discarded. Now the only fact which remains against accused Neeraj @ Ganja are recovery of Katta, a bullet and testimony of PW2 and PW22. Though PW22 in his testimony has deposed that the bullet which was found in the body of the deceased had similar striations with its bullet and that the same Katta would have been used to fire the bullet which injured the deceased, yet these are only highly incriminating circumstances against accused Neeraj @ Ganja, but merely on the basis of these highly incriminating circumstances, the Court can not indict the said accused, especially for the reasons that accused Neeraj @ Ganja was apprehended after more than a month of the incident in question. Though the recovery of Katta can be believed, but there is no eye witness of the same and doubts still remain whether accused Neeraj @ Ganja had used the Katta in question or someone else had used the same. In similar facts and circumstances, Hon'ble High Court of Delhi in case passed in CRL.A No. 717/2018 titled as Saddak Hussain Vs. State(NCT of Delhi) decided on 15th of May, 2019, set aside the conviction of accused stating that merely on the basis of recovery, the accused can not be indicted for the offence of muder. In the said case the witnesses were not relied by trial Court, but the accused was held guilty on the basis of recovery. So relying on the aforesaid judgement and also for the reasons stated, though there are highly incriminating circumstances against accused Neeraj @ Ganja, but same are not sufficient to held him guilty for the offence of murder.

64. Whether in the present case the presumption of section u/s 106 of Evidence Act can be applied.

For the sake of convenience Section 106 of The Indian Evidence Act, 1872 is reproduced herein below: "Burden of proving fact especially within knowledgeWhen any fact is Digitally signed SHIVAJI by SHIVAJI ANAND ANAND Date: 2020.11.28 15:13:46 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 37 of total 40 pages especially within the knowledge of any person, the burden of proving that intention is upon him".

65. Presumption of Section 106 of Evidence Act can not be applied in the present case since in this case the incident occurred in an open area and the presence of accused persons can be at the spot since they were the residents of same locality and hence they can be present at the spot on occurrence of gun shot injury to see as to what has happened. The presumption of Section 106 of Indian Evidence Act is generally raised in the circumstances when any incident of murder etc occurs in a closed room and only the victim and accused persons are present there and only the accused persons have the specific knowledge of the incident. Here the incident occurred in an open area and many persons of the locality would have gathered there, it is another thing that no other eye witness of the incident except PW3 who himself got injuries in the incident but later on turned hostile is available in the present case.

66. It is also pertinent to mention here that as per version of PW6 she resides alongwith her parents and four brothers and she has also deposed that after the incident when she was yelling that her brother had been killed by the aforesaid accused persons and many public persons had gathered there. In the meantime, her mother and other brothers had also reached at the spot, but no other family member has been made witness in the present case.

67. Now the question arises whether presumption of Section 106 of The Indian Evidence Act can be raised against accused Neeraj @ Ganja for the reason that recovery of weapon taken place on his disclosure. As has already been stated above that there are highly incriminating circumstances against the said accused, but the same are not sufficient to point out that it was accused Neeraj @ Ganja, who has caused the gun shot injury to the Digitally signed SHIVAJI by SHIVAJI ANAND ANAND Date: 2020.11.28 15:13:58 +0530 SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 38 of total 40 pages deceased. The incident happened in an open place before many people, so burden can not be shifted only on accused Neeraj @ Ganja for recovery of weapon/Katta after his arrest after more than a month of the incident. The duty of the prosecution can not be avoided unless prosecution has proved the circumstances and the only remaining thing is the specific knowledge with the accused and the present circumstances do not warrant such presumption. The other evidences could be gathered by the prosecution to place on record that injuries were caused by accused Neeraj @ Ganja qua which the prosecution has failed to do.

68. Whether accused Pankaj @ Sura can be held guilty for offence u/s 25 of the Arms Act and accused Neeraj @ Ganja can be held guilty for offence u/s 25 and 27 Arms Act. In this regard it is pertinent to mention that though prosecution has made a case that one country made pistol and two live cartridges were recovered from the possession of accused Pankaj @ Sura at the time of his arrest and accordingly charge u/s 25 Arms Act was framed against him. It is also the case of the prosecution the accused Neeraj @ Ganja got recovered one country made pistol and disclosed that same was used by him for causing gun shot injury upon the deceased and accordingly separate charges u/s 25 and 27 Arms Act were framed against him. It has already been held that both recoveries did not have any independent witnesses so merely on the basis of recoveries, it can not be said that accused Pankaj @ Sura and Neeraj @ Ganja were found in possession of country made pistol. Further, it has already been held that there are discrepancies in recovery of country made pistol from accused Pankaj @ Sura. Hence prosecution has failed to prove its case u/s 25 of Arms Act against accused Pankaj @ Sura and Neeraj @ Ganja. As far as the question that whether accused Neeraj @ Ganja can be held guilty for offence u/s 27 Arms Act is concerned, in this regard it has already been heard that though there are highly incriminating circumstances against accused Neeraj @ Ganja, but the same are not sufficient to point out that it was accused Neeraj @ Ganja, who has caused the gun shot injury to the deceased. Hence accused Neeraj @ Ganja also can not be held guilty u/s 25 of the Arms Act.

                                                                         SHIVAJI        Digitally signed by
                                                                                        SHIVAJI ANAND

                                                                         ANAND

SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Date: 2020.11.28 15:14:09 Page 39 of +0530 total 40 pages

69. Accordingly, in view of the above discussion, the Court is of the considered opinion that prosecution has failed to prove its case against the accused persons beyond reasonable doubts. Hence benefit of doubt is given to the accused persons and all the accused persons are acquitted from the charges against them.

70. File be consigned to record room after due compliance.

Digitally signed by SHIVAJI

                                                                        SHIVAJI     ANAND
Announced in the open Court
through Webex
                                                                        ANAND
                                                                      (SHIVAJI
                                                                                    Date:
                                                                                ANAND)
                                                                                    2020.11.28
                                                                                    15:14:15 +0530
today I.e 28.11.2020                                        ADDITIONAL SESSIONS JUDGE04
                                                           NORTH DISTRICT ROHINI COURTS/DELHI.




SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc.       Page 40 of total 40 pages

SC No. 58303/16 FIR no. 446/15 PS Shahbad Dairy State Vs Ravinder @ Anda etc. Page 41 of total 40 pages

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Delhi District Court

State vs . 1. Ravinder @ Anda on 28 November, 2020