Delhi District Court
Fir No. 887/06; State vs . Surender @ Kaira Etc. Page 1 Of 130 on 28 May, 2013
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 38/11
FIR No. 887/06
P.S. Punjabi Bagh
U/S: 302/307/120B/34 IPC
& 25/27/54/59 Arms Act
STATE
Versus
(1) Surender @ Kaira
s/o Pale Ram
r/o Vill. & PO Daryapur Kalan,
PS Bawana, Delhi
(2) Deepak
s/o Sunder Lal
R/o Vill & PO Prahladpur, Delhi.
(3) Naresh Khapra
s/o Prem Singh
r/o H. No. 61, Gali No. 3,
Madan Park, Punjabi Bagh, Delhi
(4) Dinesh Kumar @ Kalu
s/o Angrej Singh
R/o Vill & PO Daryapur Kalan,
PS Bawana, Delhi
FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 1 of 130
(5) Anil
s/o Rajender Singh
r/o Vill & PO Daryapur Kalan,
Delhi
(6) Sandeep @ Samman
s/o Azad Singh
r/o VPO Gola District,
Jhajjar, Haryana.
(7) Naveen
s/o Gopi Chand
r/o Pana Paposiyan,
Village Narela, Delhi.
(8) Dinesh @ Deshi
s/o Sunder Lal
r/o VPO Prahladpur,
Delhi
Date of Institution: 24012007
Date of arguments: 27042013
Date of judgement: 30042013
JUDGMENT
1. The case of the Prosecution, in brief, is that on 9102006, DD No. 16A was recorded in PS Punjabi Bagh on the information of ASI Layak Ram, I/C Power 85 that one Accent Car bearing no. DL4CS7509 and one white colour Santro car no. 0105 FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 2 of 130 had run towards Raja Garden after doing firing near Cremation Ground. DD no. 18A was recorded regarding admission of three injured persons namely Raj, Bhupender, and Brahm Singh in ESI hospital after sustaining bullet injuries. On this information, ASI Mahender Singh along with Ct. Sanej reached at the spot at Ring Road, near Cremation ghat where they found one Indica car bearing no. DL4SU1942 standing and its driver side windowpane was broken and there was bullet mark on the conductor side door of the car. Blood was scattered inside and outside the car. Four empty cartridges were found inside the car and four empty cartridges along with three live cartridges were found outside the car. The injured persons were already removed to ESI Hospital. After leaving Ct. Sanej at the spot, ASI Mahender Singh reached ESI Hospital and obtained MLCs of Raj, Bhupender, and Brahm Singh. Injured Brahm Singh and Raj were unfit for statement while injured Bhupender was declared fit by the doctor for statement. Doctor handed over one sealed parcel containing bullet to ASI Mahender Singh. Injured Bhupender gave statement to the police that he is resident of village Daryapur, PS Bawana and residing with his th family. He was studying in 12 class through Open School. He also used to do work of cable and finance. He was in love with one girl FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 3 of 130 namely Raj d/o Prem Singh r/o Rampura and they were ready for marriage. The family of Raj was ready for the marriage but the brother of Raj namely Naresh and her cousin brothers namely Sonu, Anil, Deepak and Surender were not agreeing to their marriage.
2. It is further the case of the prosecution that on 08102006, Naresh and his cousin brothers Sonu, Anil, Deepak and Surender came at the house of Bhupender at village Daryapur and threatened him and his family members to deny for the marriage otherwise they will ruin the life of Bhupender and his family. Bhupender told them that he will deny for the marriage and all of them went from there after giving threat. Bhupender further stated that on the morning of 09102006, he received a telephonic call from the mother of Raj asking him to take Raj with him otherwise her brothers Sonu, Anil, Deepak, Surender and Naresh were planning to finish her. On hearing this, Bhupinder along with his friend Brahm and Sunil @ Sonu came to Rampura in blue colour Indica car no. DL4SU1942 belonging to Brahm and saw that brothers of Raj namely Naresh and Surender were beating her in the gali in front of her house. On seeing Bhupinder, Raj came to him and Naresh and Surender followed her. Bhupinder stopped them and on the asking of Raj, he got her sit in their Indica car. Raj was frightened and was FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 4 of 130 asking to save her from her brothers. Bhupinder took Raj in the car driven by Brahm and left Rampura. Naresh, Surender along with their brothers Deepak, Sonu, Anil and their associates Sanjay and Samman, whom he was knowing from earlier, started chasing them in Accent and Santro cars. The car of Bhupinder was stopped after overtaking near Punjabi Bagh Cremation Ground, Ring Road. Sonu, Anil, Deepk, Surender and Naresh were having arms with them and they started firing at the car Raj and Bhupinder. Due to firing, bullets hit Bhupinder, Raj and Brahm. Bhupinder snatched the pistol of Deepak which was lying at the spot. Bhupinder stated that the incident of firing occurred at about 1 pm. On the statement of Bhupinder, FIR u/s 307/34 IPC and u/s 25/27/54/59 Arms Act was registered and investigation was entrusted to SI Ishwar Singh.
3. It is also the case of the prosecution that during investigation, crime team was called and spot was got photographed and ocean blue colour Indica car no. DL4SU1942 was seized. Three empty shells and one damaged bullet piece were recovered from inside the Indica car and three live cartridges 9 mm along with three empty cartridges of 9mm and one damaged bullet piece were recovered from outside the Indica car which were seized by the police. The back seat cover and driver seat cover which were FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 5 of 130 stained with blood were taken into possession. Indica car of ocean blue colour bearing no. DL4SU1942 was also taken into possession. ASI Layak Ram handed over pistol and two live cartridges to SI Ishwar Singh which were left by the assailants at the spot. The doctor handed over sealed pullandas containing blood stained clothes and bullet extracted from the body of injured Brahm Singh to SI Ishwar Singh. Sunil Kumar @ Sonu also sustained bullet injury in his left knee and he was medically examined from SGM Hospital. The pullanda containing clothes of injured Sunil were also handed over to the police by the doctor. All three injured were also medically examined from Sanjay Gandhi Memorial Hospital, Mangolpuri.
4. It is further the case of the prosecution that the parents of Raj Rani gave statement that they were ready for the marriage of Raj Rani with Bhupinder but their son Naresh and relatives including three Buas and their sons were against the marriage and due to this reason they took this dangerous step. Sunil also gave statement that due to objection of marriage of Raj with Bhupinder, Anil and his associates did fatal attack on them. On 10102006, Bhupinder @ Monu gave his statement in which he disclosed that due to his marriage proposal with Raj Rani, her brother Naresh and sons of her FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 6 of 130 Buas namely Anil, Sonu, Deepak, Dinesh, Surender were annoyed and due to this reason they along with their associates Sanjay, Vijay @ Lamba, Naveen and Sandeep Saman chased them and tried to kill him and Raj Rani by firing bullets. On 15102006, Raj Rani gave her statement to the police u/s 161 Cr. P. C. On 13102006, injured Brahm Singh was referred from ESI Hospital to St. Stephens Hospital where he expired on 17102006 and DD no. 50B was recorded in this regard.
5. It is also the case of the prosecution that further investigation was carried out by Inspector Gurmeet Singh. The postmortem on the body of deceased Brahm Singh was conducted in Sanjay Gandhi Memorial Hospital on 18102006 and one more bullet was extracted from the body of deceased which was handed over to police. Two more bullets were extracted after surgery from the body of Bhupender Singh which was seized by the police. Doctors gave the opinion on the MLC of Raj Rani as Grievous and on the MLC of Bhupender it was given as simple. On 27102006, statement of Raj Rani was also recorded u/s 164 Cr.P.C. wherein she disclosed about the presence of her three Buas namely Santosh, Krishna and Ishwanti in the cars at the spot. Raj Rani also named Sonu, Deepak, Dinesh, Anil, Surender, Samman in her FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 7 of 130 statement who came there in Santro and Accent cars and also named Dinesh @ Kalu in her statement. Raj Rani also stated that on the exhortation of Dinesh @ Kalu to finish to job, Anil, Sonu and their associates attacked them to kill. In the supplementary statement, Bhupinder also named Vijay Sehrawat @ Lamba, Naveen as involved in the shooting incident. Thereafter, accused Naresh Khapra, Surender @ Kaira, Deepak, Dinesh @ Kalu were arrested in this case. Exhibits were sent to CFSL Kolkatta. After completion of investigation, chargesheet was filed against accused Naresh Khapra, Surender @ Kaira, Deepak, Dinesh Kumar @ Kalu u/s 307/302/120B/34 IPC and 25/27/54/59 Arms Act. During investigation, accused Anil, Sandeep @ Saman, Naveen and Dinesh were also arrested. Accused Vijay Sehrawat @ Lamba and Sanjay could not be arrested and they were declared PO. Accused Satyawan @ Sonu was arrested later on but during the trial, he absconded himself and he was also declared PO vide order dated 18072009.
6. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 120B IPC and 302/307 read with Section 120B IPC was framed against all the accused and charge Section 27 Arms Act was framed against FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 8 of 130 accused Anil, Naresh Khapra, Surender @ Kaira and Deepak to which they pleaded not guilty and claimed trial.
7. In order to prove its case, Prosecution examined 33 witnesses. Statements of the accused were recorded u/s 313 Cr.P.C. wherein they denied all the allegations made against them. All accused except accused Deepak opted to lead defence evidence and examined three DWs.
8. I have heard the Ld. counsel for the accused persons and the Ld. APP for the State and have perused the final arguments filed by the Ld. counsel for the accused Dinesh @ Kalu, Naveen, Naresh Khapra, Surender @ Kaira, Anil and the entire records.
9. Sh. R. N. Sharma, Ld. counsel for the accused persons Dinesh @ Kalu, Naveen, Naresh Khapra, Surender @ Kaira and Anil argued that incident occurred on 09102006. PCR van was also stated to be stationed there. According to DD no. 16A dated 09102006 Ex. PW18/D two vehicles i.e. Accent car and Santro car were involved in the incident. The report of Area Magistrate is missing in this case. Neither statement of Special Messenger was recorded nor he was examined. Statement Ex. PW1/A also referred, rukka was sent and FIR was registered. FIR is a vital piece of evidence. There is a delay in registration which is the result FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 9 of 130 of consultation, therefore, the FIR is antedated. In FIR, names of seven persons i.e. Sonu, Deepak, Anil, Surender @ Kaira, Naresh Khapra, Sanjay and Samman have been mentioned. The involvement of the aforesaid two cars and seven accused persons have been stated but it is not mentioned in which car the accused persons were sitting. Even, there is no mention of Honda City car. It is not known upon whose instance, location of Honda City car had been shown in Ex. PW5/A. Therefore, recovery of Honda City car is of no consequence. Even if the motorcycle was there, where is the location of motorcycle. Whether recovery of Honda City car or motorcycle can be said to be incriminating evidence against the accused persons. The Accent car does not belong to the accused Surender @ Kaira. There is no independent witness to the car. Therefore, it was mere recovery which creates suspicion. The place of occurrence was already known to the police. Therefore, the pointing out by the accused persons Anil, Naveen and Sandeep @ Samman has no relevance in view of Section 27 of the Evidence Act to the effect that once discovery of fact is already there, then rediscovery has no meaning.
10. Sh. R. N. Sharma, Ld. counsel for the accused persons further argued that four persons namely Sonu, Anil, Deepak and FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 10 of 130 Naresh were shown to have weapons and used them but no exhortation has been attributed to any one in the FIR. There is no mention in the FIR that on 07/08102006, any incident took place and it has to be corroborated with the statement of Raj Rani u/s 164 Cr.P.C. recorded on 27102006 whether any incident took place on that day. Even Raj Rani had not stated anything in her statement as to why there was an apprehension to her. The statements of PW1 and PW2 u/s 161 Cr.P.C. are the brain child of the IO concerned. The accused Surender @ Kaira is neither to be attributed to have arms nor he used it. The Prosecution is not sure till date who fired the shot. Further, supplementary statement of Bhupender u/s 161 Cr.P.C. is contrary to the facts of the case. No reason has come forthwith as to why supplementary statement was required. In the initial statement and supplementary statement, name of Dinesh @ Kalu is not mentioned. PW1 in his statement, stated about 10 persons. In the Log Diary, two persons were mentioned but it is a surprising fact that from where such a number of persons had come. Which statements have to be believed. Even the prosecution was not aware as to who were involved in this offence. However, PW1 improved his version in his statement later on by adding the name of Dinesh @ Kalu. Neither in the FIR nor in the supplementary FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 11 of 130 statement, the name of accused Dinesh @ Kalu has been mentioned. The story was improved from step to step. No role attributed to accused Naveen in the FIR as well as the statement u/s 161 Cr.P.C. to the effect that he participated in the offence. Even no police remand was sought for accused Naveen for this purpose. So far as disclosure statement of accused Naresh is concerned, it is nowhere mentioned that he can get arms recovered even in Ex. PW28/D2, there is no request that arms is to be recovered.
11. Sh. R. N. Sharma, Ld. counsel for the accused persons also argued that the evidence has to be scaled in golden colour as to what the prosecution wants. The versions given by PWs are self contradictory and by no stretch of imagination, it can be said that the accused persons were involved in this offence as charged. Further, common intention has also to be seen from the act. The site plan Ex. PW29/A was not prepared at the instance of any witness. It is the case of the prosecution that the site plan was prepared at the instance of Sunil Nandal/ PW7 but he did not state that site plan was prepared at his instance. It is not the case of the prosecution that due to ill health, the names of the other accused persons could not be mentioned earlier. The Ld. counsel for the accused persons further argued that was it not the duty cast upon the prosecution to FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 12 of 130 get TIP of the accused persons but it was not done and even no steps were taken in this regard by the prosecution. IO never inquired nor arrested the Buas namely Santosh, Krishna and Ishwanti present with the assailants. Even the application u/s 319 Cr.P.C. filed by prosecution was also dismissed by the court. If the Buas have not been fastened with the liability of section 120B IPC, then how the accused persons can be liable for the act as alleged. It has been found from the statements of PW3 and PW4 coupled with the statements of PW1 and PW2 that the ingredients of section 120B IPC are missing. No criminal conspiracy has been proved by the prosecution against the accused persons. Motive is stated to be something different which has not come in the entire file of the police. Raj Rani did not state anything about beatings in her statement u/s 164 Cr.P.C.
12. Sh. R. N. Sharma, Ld. counsel for the accused persons further argued that neither in the rukka nor in the statement of the doctor or the MLC, it was mentioned that the condition of PW1 was deteriorated. It is not the case of the prosecution that PW1 and PW2 became unconscious and if they knew then, they should have told the names of assailants at the time of narrating the history of incident. The Ld. defence counsel further argued that there are FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 13 of 130 judgements that the injured should give the names of the assailants at the earliest opportunity, otherwise, it would cast serious doubt about the version of the injured. PW2 was fit but police did not record her statement deliberately till 14102006. The statements given by PW2 are contradictory and she has improved her previous statements, therefore, she is not a reliable and trustworthy witness. PW3 is the mother of PW2 and she had clearly stated that no such incident had taken place. PW3 was declared hostile. PW4 denied the entire statement. Statement of PW5 cannot be believed. PW6 is the formal witness since he identified the body of the deceased. PW7 is the star witness. PW7 specifically stated about the involvement of two persons and two cars. PW7 was declared hostile and nothing could come out against the accused persons from the statement of PW7. PW9 is the doctor and he never opened the stitches and he does not know what were the injuries and what kind of postmortem was conducted by him and even he does not know with what kind of weapon, the injuries were caused. PW26 is the star witness since he removed the injured persons. The Ld. counsel for the accused further referred Ex. PW26/B which was filed by ASI Layak Ram wherein two names i.e. Anil and Sonu and two cars have been mentioned. There is no suggestion to FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 14 of 130 PW26 by the Ld. APP for the State for Honda City car and motorcycle. The IO did not take any effort to join independent witnesses during investigation. No recovery was made from the accused persons. There is no whisper in the entire chargesheet about the recovery of pistol and there was no request of PC of the accused on this ground. PW27 did not reflect the position of the assailants. Why PW28 did not record statement of Bhupender and his family members. Nothing prevented the investigating agency to collect call details but the same could not be collected because no such talks were there. There is a total neglect by investigating agency which was not fairly conducted. No inquiries were made by PW29. No permission was sought for investigation regarding arms and ammunition and no sanction u/s 39 Arms Act was sought. No role of accused Dinesh @ Kalu and Naresh shown that they participated in firing.
13. Sh. R. N. Sharma, Ld. counsel for the accused persons, in support of his arguments, relied upon the judgements reported in the case of Jamuna Chaudhary and ors. vs. State of Bihar, AIR 1974 Supreme Court 1822; K. Chandrasekhar Vs. The State of Kerala & Ors. 1998 [2] JCC [SC] 5; Rang Bahadur Singh & others Vs. State of UP (2000) 3 SCC 454; State (Delhi Admn.) Vs. V. C. FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 15 of 130 Shukla and anr. AIR 1980 Supreme Court 1382; Gulab Singh Vs. The State 1995 JCC 470; Pandit Ram Prakash Sharma Vs. Kharaiti Lal 1998 CRI. L. J. 1410; Mohd. Arafin Vs. The State (Delhi Admn.) 2010 [1] JCC 780; Rehman Vs. State 2010 (4) CC Cases (HC) 281; State (Delhi Admn) Vs. Pawan Kumar & Anr. 2004 [3] JCC 1652; Dhanna etc. Vs. State of Madhya Pradesh, 1996 CRI.L.J. 3516; State (Delhi Admn.) Vs. Balbir Chand & Ors. 1991 JCC 56; Prem Singh & Ors. Vs. The State of Punjab 2000 (3) CC Cases HC 375; Gurja Bedia & Ors. Vs. State of Bihar JT 1990 (3) SC 317; Ram Kumar Pande Vs. The State of Madhya Pradesh, AIR 1975 Supreme Court 1026; Jagdip Singh and Anr. Vs. State of Haryana, AIR 1974 Supreme Court 1978; Mallanna & others Vs. State of Karnataka (2007) 8 Supreme Court Cases 523; Juwar Singh and ors. Vs. The State of Madhya Pradesh, AIR 1981 SC 373; Mahesh Chander Vs. The State of Delhi, AIR 1991 Supreme Court 1108; Randhir Singh Vs. The State, 1980 CRI.L.J. 1397; Rakesh Kumar Gupta Vs. State (Govt. of NCT of Delhi) 2010 [1] JCC 433; Sonu Arora Vs. State, 2010 (3) CC Cases (HC) 671; Smt. Kaushalya @ Tilla Vs. The State, 2010 [1] JCC 258; Mohd. Hanif & Anr. Vs. State 2011 [4] JCC 3072; Alizan Vs. State, 2010 [2] JCC 1366; Ravikant Sharma & Ors Vs. State, 2001 [4] JCC 2989; Kali Ram Vs. State, FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 16 of 130 2010 [2] JCC 1578; Naushad Ali & Anr. Vs. State, 2011 [4] JCC 2843; Raj Kumar & Anr. Vs. State 2011 [2] JCC 796; Nirmal Singh & Ors. Vs. State, 2011 [2] JCC 835; Tinku & Ors. Vs. State 2012 [1] JCC 730; Aslam @ Pappu Vs. State, 2011 [3] JCC 1521; Devender Vs. State of Haryana, 1996 (3) Crimes 282 (SC); Murari Vs. State 2011 [2] JCC 1233; Ajay Goswami Vs. State, 2011 [2] JCC 1279; Gurbachan Singh & Ors. Vs. State of Punjab 2001 (2) CC Cases HC 257; Anil Kumar Sharma @ Bobby Vs. Delhi State/ NCT of Delhi, 2011 [2] JCC 1480.
14. Sh. R. S. Malik, Ld. counsel for the accused Dinesh and Deepak argued that neither any conspiracy nor any evidence has been proved on record by the prosecution to eliminate Brahm Singh by the accused persons since they never knew Brahm Singh. The Prosecution is even not aware as to who caused death of Brahm Singh. Brahm Singh deceased and Raj Rani did not state who fired. Brahm Singh died of septic. Prosecution has failed to prove discharge summary. PW7 is the independent witness who is also the friend of PW1 and stated that he can identify those persons and further stated that out of those two, none was present in the court on that day. The said statement was not challenged by the Prosecution, therefore, the said statement has to be treated as FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 17 of 130 gospel truth. The Ld. counsel for the accused Dinesh and Deepak further argued that all the injured persons were found fit and conscious. Raj Rani stated that Brahm Singh suffered multiple injuries but MLC reveals "simple" injury. Every injured persons was conscious and oriented. PW1 and PW2 are the husband and wife and they are not the reliable witnesses and their statements are also full of contradictions.
15. Sh. R. S. Malik, Ld. counsel for the accused Dinesh and Deepak also argued that statement of PW1 was recorded u/s 164 Cr.P.C deliberately because the prosecution knew that she will not support its case. Further, name of accused Dinesh is not mentioned in the FIR and even no specific role has been assigned to him and his presence has not been shown at the place of occurrence. The Statement Ex. PW1/A of PW1 was recorded after 2½ hours of the incident which means that the statement of PW1 was recorded after detailed discussion and deliberation. The injured persons were oriented and conscious. PW9 is the autopsy surgeon but he did not say that death occurred due to gun shot and he did not state that injury was sufficient to cause death. Even PW9/ Dr. did not state as to which type of weapon was used whether it was blunt/ sharp or firearm. Further, PW9/ Dr. did not state which of the injury resulted FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 18 of 130 into death of Brahm Singh. Brahm Singh died because of negligence of doctors and not by the act of the accused persons. No weapon was recovered from the accused Dinesh. Even, no charge was framed against the accused Dinesh u/s 27 of the Arms Act. Accused Dinesh has not been shown in the site plan. Mere absconding cannot be treated as incriminating evidence against the accused Deepak.
16. The Ld. counsel for accused persons Dinesh and Deepak, in support of his arguments, relied upon the judgements reported in the case of Bhupendra Singh and Ors. Vs. State of Uttar Pradesh, 1991 SCC (Cri.) 70; Jagpal Singh & Ors. Vs. The State of Punjab 1991 (1) SCC (Crl) 177; Rewa Ram Vs. Teja & Ors. II (1998) CCR 41 (SC); Vinod Vs. State, 2010 [1] JCC 754; Jabar Singh Vs. State of MP, 2011 I AD (CRI.) (SC) 89; Gulab Singh Vs. The State, 1995 JCC 470; Rehmat Vs. The State of Haryana, 1996 1 SVLR (CR.) [SC]; Jagir Singh Vs. The State (Delhi Administration), AIR 1975 SC 1400; Vijay Singh Vs. State of MP, 2005 CRI. L. J. 299; Anil Kumar Vs. State of Punjab III (2000) CCR 54 (SC) and Kishore Chand Vs. State of Himachal Pradesh, AIR 1990 SC 2140.
17. Ld. APP for State argued that the incident occurred on 09102006 at 1 pm and on the same day after two hours of the FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 19 of 130 incident, the FIR was registered. Therefore, prompt action was taken for registration of FIR. Further, it is a settled proposition of law that FIR is not the encyclopaedia. During arguments, the ld. APP also referred seizure memos Ex. PW12/C and Ex. PW27/A which go to suggest that the firearm was used and firing had taken place at the time of incident. There are minor contradictions in the testimonies of PWs which do not go to the root of the case. Ld. APP further argued that photographic memory of the crime cannot be expected from the witness who is the victim of the crime. In this case, PW1 and PW2 are the injured persons and victims of this crime. Brahm Singh who was along with PW1 and PW2 in the Indica car sustained bullet injury and died due to firing by the accused persons. PW2 also sustained bullet injury. Therefore, presence of PW1 and PW2 cannot be doubted and it cannot be presumed that they will spare the real culprits and falsely implicate the accused persons including real brother and cousin brothers of PW2. Initially, the case was registered u/s 307 IPC, therefore, the special messenger was not supposed to send the report to the Magistrate empowered to take cognizance of such offence. PW18 is the Duty Officer and nowhere it has been suggested to PW18 that the FIR is antedated. Even if the argument of the Ld. Counsel for FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 20 of 130 the accused persons is taken as a gospel truth, even otherwise, delay in FIR cannot be the ground for acquittal of the accused persons.
18. The Ld. APP for the State further argued that so far as motive for firing and murder is concerned, the enmity remains in the mind which cannot be seen but it can only be inferred. Marriage of PW2 with PW1 was strongly disliked by the real brother and cousin brothers of PW2. There were threats to PW1 and PW2 on 07102006 and 08102006 and on the very next day i.e. 09102006, the incident of firing had taken place. This ample evidence shows the motive. Evidence of motive is not required in direct evidence. PW1 and PW2 have supported the case of the Prosecution. If any witness has become hostile, whole testimony of such witness cannot be discarded totally. There was an agreement between the accused persons to kill PW1 and PW2 and the provisions of section 120B IPC are attracted to the facts of this case. The Ld. APP for the State further argued that the accused persons may even be convicted on the sole testimony of complainant if his testimony is found trustworthy and reliable. The Ld. APP also argued that accused persons cannot get benefit of defective investigation. Ld. APP for the State, in support of his FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 21 of 130 arguments, relied upon the judgements reported in the case of Kalam @ Abdul Kalam (Md.) Vs. State of Rajasthan, 2008 IV AD (SC) 453; Paramjeet Singh @ Pamma Vs. State of Uttarakhana, AIR 2011 SC 200; State of UP Vs. Krishna Master & ors, 2010 CRI. L. J. 3889; Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920; and Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1).
19. In view of the above arguments of the Ld. Defence counsel and the Ld. APP for the State as well as the judgements relied upon by them, let us examine the evidence led in this case as to whether the accused persons had committed the offence as charged or whether they have been falsely implicated in this case. PW1 Bhupender Singh stated in his examination in chief that in the th year 2006, he was studying in 12 standard from Open School and doing the work of Financing and Cable Networking. In May 2005, there was marriage of Sonu @ Satyawan, his covillager and in that marriage, he met Raj, who was cousin of Sonu @ Satyawan (daughter of maternal uncle of Sonu @ Satyawan). PW1 and Raj exchanged telephone numbers and started talking to each other also met each other and later on, they decided to marry with each other. Raj talked at her home in this regard and her family members FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 22 of 130 agreed for her marriage with PW1. But her three aunts (Buas) and their sons namely Anil, Sonu @ Satyawan, Deepak, Dinesh, Surender and her real brother Naresh objected to this marriage. On 08.10.2006, Anil, Sonu @ Satyawan, Deepak, Dinesh and Surender came at the house of PW1 at noon time and threatened him by saying "Raj shadi ki jid kar rahi hai, aur ham nahi chahate ki tumare sath Daryapur me shadi ho, isliye man ja, hamari, tumhari parivar ki dusmani ho jayegi, aur hum Raj ko, aur tumhare parivar ko khatam kar denge" After extending this threat, they went away. On the same day, in the evening, Dinesh @ Kalu and Anil came to the residence of PW1 and threatened him. Dinesh @ Kalu, resident of village Daryapur, asked PW1 to accompany them and refused to marry. Dinesh @ Kalu and Anil took PW1 in their Honda City Car no. 0045 to the village of Raj i.e. Madan Park, Rampura and car was stopped in front of house of Raj. Thereafter, Anil got down and went inside the house of Raj. Sonu @ Satyawan came out of the house of Raj and sat in the Honda City Car and pointed a pistol on PW1 and threatened him "Agar tune shadi ke liye mana nahi kiya, to hum Raj ko mar denge." Thereafter, Sonu @ Satyawan and Dinesh @ Kalu took PW1 inside the house of Raj where all the aunts (Buas) of Raj were present. Deepak, Naresh, FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 23 of 130 Dinesh son of Aunt (Bua) of Raj, Summon @ Sandeep son of Aunt (Bua) of Sonu @ Satyawan, Surender and their two three friends were already there along with parents of Raj. In presence of all of them, PW1 refused to marry Raj. From there, Dinesh @ Kalu brought PW1 to Daryapur. In the evening, PW1 received a call from Raj who told him "Apke jate hi, in sabhi ne i.e. Deepak, Naresh, Dinesh, Sandeep, Sonu, Surender and her aunts meri or mere MummyPapa ki pitai ki, kyonki me shadi ki jid kar rahi thi. Mene unse kaha ki tumne jabardasti unse (Bhupender) shadi ke liye mana karwaya hai." Thereafter, PW1 made a call to Anil and asked him why they have done this when he had refused to marry Raj. Anil told PW1 that even after his refusal, she was insisting to marry with PW1 and they did not want that this marriage should take place and they would not allow this marriage under any circumstance and can go to any extent to stop this marriage.
20. PW1 further stated in his examination in chief that on 09.10.2006, at about 7.00 am, Anil and Surender @ Kaira came to the house of PW1 and threatened him "Hamare parivar ke mamle me mat aa, hamara Mama ke sath plot pe kuch jhagra chal raha hai, aur tum is mamle se door rah" and then left. On 09.10.2006, at about 9.30 am, mother of Raj called PW1 on telephone and told that FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 24 of 130 "Raj ko bacha lo, iski bua aur uske ladko ne Raj ko marne ka plan bana rakha hai. Unke sath Dinesh @ Kalu, aur teen ladke aur hai"
Unhone bataya ki isi dar se, Raj ghar se bhag gai hai". PW1 told her that if Raj contact him, he will bring her to her home. At about 11.00 am, Raj telephoned PW1 and told "Uski Bua, unke ladke aur unke sathiyo ne, use marne ka plan banaya tha, me isi dar se, pichhle darwaje se, apni saheli ke ghar aa gai thi. Agar aap mujse payar karte ho, aur shadi karna chahate ho, to akar muje yahan se le jao. Hum iski complaint thane me karenge". PW1 told Raj that he was reaching there. At about 11.45 am, PW1 started from his residence along with his friend Brahm son of Partap Singh in Indica car no. DL4SH1942. One Sunil r/o Rohtak, who had come to meet PW1, was also with them in that Indica Car. They reached Madan Park, in front of Gurudwara at about 1.00 pm. PW1 told Raj on telephone that he had reached there. As soon as Raj reached there, her brother Naresh and Surender came from behind and started beating Raj. PW1 got down from the car and on seeing him, Raj ran towards him. Raj asked PW1 to save her from them otherwise they would kill her. Raj sat on the rear seat of the Indica Car. PW1 told Naresh that he was bringing Raj at her home and asked him to reach home.
FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 25 of 130
21. PW1 also stated in his examination in chief that Brahm Singh started driving the car and Sunil was sitting by his side. Raj was sitting behind the seat of Brahm and PW1 was sitting behind the seat of Sunil. Brahm took the turn towards Ring Road and PW1 and Raj were talking with each other. Brahm did not take the Uturn for going to the Police Station. PW1 asked Brahm that he had already left the turn, on which Brahm said that he will take Uturn from the next turn. As soon as, they reached near Cremation Ground, Ring Road, one black colour Accent car driven by Anil and Surender sitting on the side seat, blocked their way. One Santro car came from behind and Sonu @ Satyawan, Sanjay r/o Mundka, friend of Satyawan, Deepak, Dinesh, Summon @ Sandeep got down. They all were armed with weapon. Anil came running and forcibly sat by the side of Raj in Indica Car. In the meanwhile, Honda City car driven by Dinesh @ Kalu son of Angrez Singh stopped by their side and Vijay @ Lamba son of Rajbir Singh and Naveen got down from that Honda City car. Both were having pistol in their hands and they all surrounded them from all sides. On their left hand side, Naresh came on pulsar motorcycle. Dinesh @ Kalu exhorted "Bat mat karo, jaldi se inhe khatam karo aur niklo"
Immediately thereafter, Anil fired on the right side of neck of PW1 FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 26 of 130 and Sonu @ Satyawan fired on his front side. Vijay, Sanjay, Naveen also fired on PW1 and they all were armed with pistols. Surender was standing outside Indica car where Anil was sitting and Summon @ Sandeep was standing behind that Indica Car. Dinesh and Deepak were standing by the side of PW1. They all started firing on them. The bullets hit PW1, his wife Raj and his friend Brahm. After firing on them, they started leaving. Upon which, Anil said "kacha kam nahi rahna chahiye" On this, Deepak came and he opened the window of Indica car and inserted the barrel of his pistol in the mouth of PW1. PW1 pushed his hand and his pistol fell down in Indica car. Thereafter, they all left thinking that they all were dead. All accused with common intention attacked on them with intention to kill. PW1 was taken to ESI Hospital and his friend Brahm Singh died in this incident. Statement of PW1 was recorded in ESI Hospital vide Ex. PW1/A bearing my signatures at point A. While giving statement, condition of PW1 started deteriorating, on which doctor said that remaining statement be recorded later on. Police obtained signatures of PW1 on the statement as he was able to give signatures at that time.
22. PW1 further stated in his examination in chief that on 10.10.2006, statement of PW1 was again recorded in Agarsen FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 27 of 130 Hospital and PW1 gave the entire statement to the police at that time. PW1 stated that at that time, his signatures were not taken by the police and it was also not read over to him. PW1 deposed that accused Sonu @ Satyawan, Vijay @ Lamba and Sanjay r/o Mundka were not present in the court and he can identify them, if produced. PW1 correctly identified accused persons namely Summon @ Sandeep, Naresh, Naveen, Dinesh r/o Pehlad Pur, Surender @ Kaira, Anil r/o Darya Pur, Deepak r/o Pehlad Pur and Dinesh @ Kalu son of Angrez Singh in the court. PW1 further deposed that he was wearing Jeans and shirt at the time of incident. PW1 deposed that would not be able to identify the clothes of his friend Brahm Singh and his wife Raj which they were wearing at the time of incident. PW1 identified one shirt of black colour having white strips as Ex. P1 which he was wearing at the time of incident. Four seat covers, one pant, one shirt, one chunni and two baniyans were also taken out from the same gunny bag. Three white clothes having seals of ESI, MLC, HOSPITAL and one paper having seal of mortuary, SGM Hospital, Mangolpuri were also taken out from the said gunny bag. PW1 also identified the Indica Car no. DL4SH1942 as Ex. P2 in which he was traveling at the time of incident; motorcycle make pulsar Bajaj of silver colour as Ex. P3 on FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 28 of 130 which accused Naresh reached there at the time of incident and stated that he had not noted number of motorcycle; Honda City car of white colour bearing no. 0045 as Ex. P4 in which he was firstly taken to the house of Raj and thereafter it was used when he was attacked; Accent car of black colour as Ex. P5 in which accused Anil and Surender reached the spot. PW1 deposed that at the time of incident, he was not able to see the registration number of that car and on the day of his deposition in the court he did not notice the number of said car. (Accent Car bearing no. DL4CS7509 was shown to PW1)
23. During crossexamination by Ld. Defence counsel, PW1 stated that PCR reached the spot. He volunteered to say that after the accused persons had already fled away. PW1 stated that PCR removed him to the hospital. PW1 further stated that he told only about the vehicles involved and not the names of the assailants to the PCR officials. PW1 did not tell the PCR officials the names of the assailants. PW1 denied the suggestion that he told the names of the assailants to the PCR officials specifically or that he did not name Dinesh @ Kalu, Naveen, Naresh and Surender @ Kaira as assailants since they were not at all connected with he commission of offence. Neither PCR nor the doctor asked PW1 the names of FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 29 of 130 the assailants. PW1 stated that his statement was recorded at about 2/ 2:30 pm. PW1 further stated that his second statement was recorded in Agrasen Hospital on 10102006 by Inspector Ishwar Singh. PW1 told Inspector Ishwar Singh in his second statement that PCR officials were flashing the wrong message. PW1 denied that his statement Ex. PW1/A was a complete statement. He denied that he was fully well while giving his statement Ex. PW1/A. PW1 stated that he could not tell the names of all the assailants to the police in his first statement due to "jaladbazi and tabiat kharab hone ki wajah se". PW1 stated that in the first statement, he had given the names of Anil, Sonu, Dinesh r/o Pehladpur, Deepak, Surender @ Kaira, Sandeep @ Summan, Sanjay r/o Mundka and Naresh. PW1 further stated that accused Naresh arrived on the spot on motorcycle. PW1 stated that he was not able to tell the police in his statement Ex. PW1/A about the arrival of Dinesh @ Kalu on the spot in Honda City car as he was not feeling well. PW2 also stated that he remembers as to who were occupying the Santro car. PW1 further deposed that Surender @ Kaira reached the spot in Accent car. PW1 further denied that he did not mention the name of Dinesh @ Kalu in his statement about his reaching the spot in Honda City car or making any exhortation as he FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 30 of 130 was not there. PW1 denied that he did not name accused Naveen in his statement Ex. PW1/A as he has no role to play in the alleged incident. PW1 also denied that he named Naresh only because he is the real brother of Raj Rani. PW1 denied the suggestion that he did not mention regarding Naresh having reached the spot on motorcycle as Naresh never came there on motorcycle.
24. In response to question did he name Naveen about his arrival on the spot, he being armed with a pistol or that he fired at them, PW1 stated that he was not able to tell about Naveen in Ex. PW1/A as he was not feeling well. PW1 was not able to tell the police in his statement Ex. PW1/A about the threats extended to him on 08102006. PW1 stated that vehicular traffic was on the road and the passersby were also present on that road at the time of incident and the traffic stopped due to the incident. PW1 stated that when PCR reached the spot, about 5 to 7 passersby were there and PCR personnel did not inquire anything from those 5 to 7 persons. PW1 told the police in his first statement that Sonu @ Satyawan, Deepak, Dinesh r/o Pehladpur, Anil and Surender @ Kaira came to his house at about noon time and threatened him. In response to the question did he specifically name Surender @ Kaira in his statement dated 10102006 that Surender also came to his on FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 31 of 130 08102006 at noon time and extended threats, PW1 stated that he also named Surender in his statement dated 10102006. PW1 further stated that he told the police in his second statement Ex. PW1/DX that Dinesh @ Kalu and Anil took him to the house of Raj in Honda City car no. 0045. PW1 denied the suggestion that his statement Ex. PW1/A was not recorded at the stated time and date or that it was antetime. He further denied that accused Dinesh @ Kalu and Naveen were falsely implicated since they were friends of other accused persons or that accused Naresh never objected to the marriage or that he was falsely implicated by him. PW1 further denied that he falsely named accused Surender @ Kaira or that all the aforesaid four accused persons namely Dinesh @ Kalu, Naresh, Naveen and Surender @ Kaira were falsely implicated for the purpose of extorting money from them. PW1 further stated that the police asked him and recorded his statement simultaneously. He stated that village Daryapur is a big village and there are residential houses adjacent to his house and opposite to his house. PW1 further stated that his parents, his brothers and his bhabhi were residing with him on 08102006 and they were still residing with them. PW1 denied that one landline telephone was installed in his house in October 2006. PW1 was having a mobile telephone FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 32 of 130 connection. PW1 denied the suggestion that accused persons had not come to his house on 08102006 to threaten him. PW1 also stated that he asked Raj when she made a call to him that she and her parents were beaten, to lodge a complaint with the police. PW1 stated that Raj and her parents did not lodge any complaint to the police as they were under fear. When Raj made a telephone call to PW1, he was also under fear. PW1 denied the suggestion that Raj did not tell him about the planning of elimination of Raj by her aunts and her sons. PW1 did not go to the PS before going to Madan Park. PW1 did not notice if anybody from the Gurudwara witnessed the beatings given to Raj.
25. PW1 in his crossexamination further denied that on 09102006 at about 1 pm, no such incident of beating took place with Raj near Gurudwara at Madan Park. He further denied that he deliberately not took the police to point out the place where Raj was allegedly beaten as no such incident took place. PW1 further denied that he was not knowing the assailants and that is why he did not tell their named either to PCR officials or to the doctor. PW1 stated that after his discharge from the hospital, he was taken to the place of incident on his pointing out and he had pointed out the place where Deepak and Dinesh were standing at the time of FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 33 of 130 commission of crime to the police. PW1 denied that he was never taken to the spot of incident by the police or that no site plan was prepared by the police at his instance. He also denied that he did not point out the place where Deepak and Dinesh were standing at the time of incident. He further denied that ASI Layak Ram conducted his search and one pistol was recovered from him. PW1 volunteered that that pistol was of Deepak and he told that the said pistol had fallen from accused Deepak in the car and the same was lying in the car. PW1 denied that he made improvements in his statement to implicate Deepak and Dinesh. He further denied that he, Sunil and Brahm fired from inside the car. He also denied that Deepak and Dinesh were not having any objection to the marriage of Raj with him. PW1 could not recall the time when his first statement was recorded. He denied that he did not give the name of Sandeep @ Samman in his first statement. He also denied that Sandeep is not known as Samman. He volunteered that he knew him by the name of Samman only and he came to know later on that he was also known as Sandeep. He denied that he was not knowing Sandeep. He volunteered that he used to remain most of the time at the house of accused Anil where he used to meet him during his visit. PW1 denied that Sandeep @ Samman never visited FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 34 of 130 the house of Anil. PW1 also stated that family members of Raj came to know about their relations when Raj talked about their marriage with her parents about five days prior to the incident.
26. PW1 further stated in his crossexamination that the parents of Raj were not knowing that they were in love before she told her family members, therefore, question of stopping her to talk on telephone did not arise. PW1 stated that parents of Raj were not having any objection to their marriage. He denied that parents and relatives of Raj were knowing about their relations for the last four years. He further denied that Anil never threatened him or that he never visited his house. PW1 also denied that accused Anil never objected his marriage with Raj. He stated that from October 2005 till the incident, he and Raj used to meet regularly. Neither the family members of Raj nor any family members had seen them meeting with each other. Neither the parents of Raj nor her family members followed her. PW1 denied that Anil and Sonu were not having any objection to the marriage of Raj with him as they were his friends. PW1 stated that in his presence, police did not record statement of any neighbour of Raj Rani. He volunteered that he was in the hospital and only police can tell about this. PW1 did not complain to any police official on his way from Daryapur and Rampura and he FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 35 of 130 was forcibly taken on the gun point and the windowpanes of the car were already closed. PW1 stated that his family members were at home when he was forced to sit in the Honda City car at gun point and his family members were not taken with him in the Honda city car. He volunteered that he told them that they were just talking and he will return and they should not worry about him. PW1 denied that no such incident had taken place or that is why no complaint was made by his family members to the police. He volunteered that he asked his family members not to make a complaint as he was going to refuse for marriage with Raj which was the directions of accused persons. PW1 further denied that accused Anil was not present on the spot. He volunteered that first fire was made by accused Anil on his neck. He further denied that accused Anil did not utter the words 'kacha kam nahi rahna chaiya'. PW1 denied that he falsely implicated accused Anil due to dispute over the plot at the instance of parents of Raj.
27. PW2 Ms. Raj Rani stated in her examination in chief that in the year 2006, she was doing BA 1st year through Correspondence from Delhi University. Her father Sh. Prem Singh had four sisters and one of them had expired. The eldest one is Ms. Santosh who resides in Pehladpur and Deepak and Dinesh are her FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 36 of 130 sons. Her second bua Krishna was earlier residing in Bakhtawarpur and then she shifted to Daryapur. She was having two sons namely Rakesh @ Thambu and Surender @ Kaira but Rakesh had expired. Her third Bua Ishwanti has two sons namely Anil and Sonu. PW2 further deposed that they are six brothers and sisters and accused Naresh is her brother. Sonu was married in village Daryapur in the year 2005 and PW2 and her family attended the marriage of Sonu under the pressure of the relatives as earlier, they were not on visiting terms with them. In the said marriage, PW2 met Bhupender Singh and they started talking each other on telephone. In the month of June/July 2006, PW2 met with Bhupender in Punjabi Bagh and they decided to marry each other. PW2 told her parents near 15.09.2006 that she wanted to marry with Bhupender. Initially, they refused for her marry with Bhupender but on her insistence, they agreed to marry PW2 with Bhupender. The father of PW2 told this fact to the other relatives and their relatives agreed for this marriage but her buas and their sons did not agree for this marriage. When her three buas and their sons came to know about this, they all came to the house of PW2 and said "Ye shadi hum hone nahi denge, chahe iske liye jaan se kyon na marna pade". They were also having some dispute with Anil and Sonu over a plot. They had FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 37 of 130 given a plot to Anil and Sonu, but as the full payment was not made by him, they refused to deliver the possession of the said plot to them.
28. PW2 further stated in her examination in chief that on 07.10.2006, three buas of PW2, their husbands, their sons along with their friends Kalu and Summon son of bua of Anil, came to their house. Anil told PW2 "ye shadi hum nahi hone denge" Maine jid kar rakhi thi". Anil slapped PW2 and attempted to strangulate her with a chunni which she was having. They also pressurized her parents not to marry PW2 with Bhupender. On 08.10.2006, three buas of PW2, Deepak, Dinesh, Surender, Sonu came to their house and Anil and Kalu brought Bhupender with them. Anil came to the first floor where their house was situated and told Sonu "Ja, Main Bhupender ko le aya hoon". Sonu along with his pistol went downstairs and brought Bhupender upstairs along with Kalu. After bringing Bhupender upstairs, they forcibly make Bhupender to refuse for marriage with PW2. Thereafter, Kalu took Bhupender downstairs along with him. PW2 further deposed that "Mere dubara jid karne par, ke tumne us se jabardasti na karyai hai, aur muje shadi usi se karni hai", they all gave beatings to PW2 and her family members. They all i.e. her three buas, their all sons, Kalu, one or FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 38 of 130 two friends of Anil and Bua's son of Sonu stayed back at her home on that day. In the evening, they were planning "ki ye manegi nahi, ise khatam kar do." Next day, on getting an opportunity, PW2 left the home from back door and reached the house of her friend Archana at Jaidev Park. PW2 was apprehending that if she did not leave the house, they would kill her. PW2 made a call to Bhupender from the house of her friend Archana and asked him to come in the park situated in front of Gurudwara and they will make a complaint in the Police Station. Bhupender reached near Gurudwara at about 1.00 pm. When PW2 was going towards Bhupender from the house of her friend Archana, Surender and Naresh started pulling her towards her house and they also gave beatings to her. PW2 was insisting that she will not go to home.
29. PW2 also stated in her examinationinchief that thereafter, Bhupender asked Naresh to go home and he will bring her to home. PW2 sat in the Indica Car of Bhupender driven by Brahm and by his side, one more boy was sitting. On the rear seat of the Indica car, PW2 sat along with Bhupender and when they had just reached near flyover in the Indica car, one Accent and Santro car followed them and after overtaking forced them to stop the Indica Car. Accent car was being driven by Anil and by his side FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 39 of 130 Surender was sitting and on the rear seat of that car, her two buas Krishna and Santosh were sitting. Anil got down from his Accent Car along with his pistol in his hand and he sat by the side of PW2 in Indica Car. In the meanwhile, from the Santro car, Sonu, Deepak, Dinesh, Sanjay and Summon got down and all were having weapons in their hands. The mother of Sonu kept sitting in that Santro Car. One Honda City car driven by Kalu also came there and his two friends got down from that Honda City car with weapons in their hands. In the meanwhile, Pulsar motorcycle driven by Naresh stopped on their left side. Anil, who was sitting in Indica car, was talking with them, when Kalu came in Honda City car. Kalu exhorted "bat mat karo, jaldi kam khatam karo aur niklo" On this, Anil made first fire on the neck of Bhupender and then Anil got down from the car. The other boys had surrounded their car from all sides, i.e. Deepak, Dinesh, Surender, Summon, Sanjay, Sonu who was sitting near the driver seat of the Indica car and two three boys, PW2 did not know their names, but she deposed that she can identify that same were there.
30. PW2 further stated in her examination in chief that Sonu fired at Bhupender and thereafter he fired on the head of PW2. While Sonu was firing, the other boys also started firing on them. FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 40 of 130 After being hit with bullet, PW2 became unconscious and regained her consciousness in Sufdarjung Hospital. PW2 deposed that she can identify the assailants and Sonu and two more assailants were not present in the court. All other assailants were present in the court and PW2 correctly identified all the assailants by their names, except Naveen. PW2 identified Naveen but stated that she does not know him by his name and he was one of the assailants. PW2 further deposed that since the day Sonu jumped the parole, he was extending threats to Bhupender on mobile phone and asked him to change his statement, otherwise he would kill Bhupender and his family members. PW2 also deposed that on 08.06.2009, Sonu @ Satyawan after jumping the parole, committed the murder of her jeth. PW2 further deposed that Sonu had also given 'supari" to sharpshooter to kill her husband Bhupender and this news had also come in the Print Media and their entire family was under threat including her one year son. PW2 identified one shirt of black colour having white strips Ex. P1 which Bhupender was wearing at the time of incident. Four seat covers, one pant, one shirt, one chunni and two baniyans were also taken out from the same gunny bag. PW2 also identified her chunni Ex. P6 which she was having on the date of incident; four seat covers are of the Indica Car Ex. P7 to FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 41 of 130 P10 in which they were traveling. PW2 also identified the Indica Car no. DL4SH1942 Ex. P2 in which she was traveling at the time of incident along with Bhupender; motorcycle make pulsar Bajaj of silver colour Ex. P3 on which accused Naresh reached there at the time of incident; and Accent Car Ex. P5. The defence counsel did not dispute the identity of Honda City Car of White Colour bearing no. DL8CT0045 as the same was already Ex. P4. PW2 further deposed that on 28.10.2006, she went to the PS to inquire about the case where she identified accused Dinesh @ Kallu.
31. It is reflected from crossexamination of PW2 conducted by Ld. Defence counsel that PW2 was not in senses when she was taken to ESI hospital, therefore, she could not tell how many police officers removed her to hospital. However, she volunteered that she regained senses in Safdurjung Hospital after five days that also after the operation. PW2 was not aware on which date she was operated but she regained senses after about 5/6 days of operation. PW2 denied the suggestion that she gave alleged history of being intercepted by two vehicles at Punjabi Bagh going towards Ring Road Raja Garden at ESI Hospital. PW2 regained senses on 14102006. No police personnel came to her on 14102006. PW2 also volunteered that police met her on 15102006. PW2 pointed FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 42 of 130 out the police the spot where the vehicles i.e. Cars and motorcycle were standing at the time of incident. PW2 stated that Honda City car was on the rear side of their Indica car at a distance of 5/6 steps and motorcycle was on the left side. On 15102006, Ishwar Singh, police officer recorded statement of PW2 at Safdurjung Hospital but she could not recall the time. PW2 told the Ld. Magistrate in her statement u/s 164 Cr.P.C. about the incident dated 08102006. PW2 denied the suggestion that no incident took place on 07102006 and 08102006 and that is why, she did not tell the Magistrate. PW2 stated that she did not tell the name of Naveen either to police or to the Magistrate as she was not knowing his name but she stated that she had only seen him. PW2 told the Ld. Magistrate that a Honda City car also reached the spot. PW2 denied the suggestion that there was no role played by Naresh in the entire incident and that is why she did not name him in her statement u/s 164 Cr.P.C. PW2 further stated that she and Bhupender saw that accused Dinesh @ Kalu arrived on the spot. PW2 told the police in her statement dated 15102006 that Dinesh @ Kalu exhorted 'bat mat karo, jaldi kaam khatam karo aur niklo'. PW2 could not recall if she did not tell the Ld. Magistrate the exact words that is "bat mat karo, jaldi kam khatam karo aur niklo'. FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 43 of 130 However, PW2 stated that it was mentioned in the statement u/s 164 Cr.P.C. by the Magistrate that 'he raised alarm to finish the work immediately'.
32. PW2 named total 11 boys and three ladies in her statement before the police dated 15102006. PW2 told the police in her statement that her bua and their sons told that 'wo ye shadi nahi hone denge, chahe iske liye jaan se kyon na marna pade'. PW2 told the police that on the night of 08102006, Dinesh @ Kalu stayed at their home and Dinesh @ Kalu brought Bhupender to their house after noon and before the evening. Dinesh @ Kalu remained at their house at that time for about 10 to 15 minutes and Dinesh @ Kalu returned to their house in the evening itself on 08102006. PW2 told the Ld. Magistrate in her statement that on 09102006, after leaving her house, she went to the house of her friend Archana and from there she made a call to Bhupender. PW2 also told the police in her statement that Anil got down from Indica car after firing on Bhupender and other boys had surrounded their car from all sides. PW2 further stated that Anil fired on the neck of Bhupender from a distance of 2/3 inches and Sonu fired on her head with the pistol from a distance of 5 to 6 inches. Till PW2 was in her senses, she noticed that Bhupender sustained only bullet injury. PW2 FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 44 of 130 denied the suggestion that no incident took place on 07102006 and 08102006. She further denied that as no incident took place on 07102006 and 08102006, that is why, she did not depose so before the Ld. MM. PW2 denied that Dinesh @ Kalu and Surender @ Kaira were not involved in the incidents which took place on 07102006 and 08102006 and that is why she did not name them before the Ld. MM in her statement. PW2 further denied that accused Dinesh @ Kalu was not present on the spot at the time of incident or that he did not make any exhortation or that is why, she did not mention about any exhortation in her statement before the police. PW2 further stated that she was knowing accused Dinesh @ Kalu before 28102006. She denied that Surender @ Kaira was named in this case only to misappropriate the money given to them in lieu of plot. She further denied that she was conscious in ESI hospital or that she deliberately did not give any statement for five days. She also denied that she deposed before the Ld. MM under the pressure of her husband. She also denied that she deposed before the court under the pressure of her husband.
33. PW2 further stated in her crossexamination that there were many shops and residences where she was beaten and attempted to drag towards her house by accused Naresh and FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 45 of 130 Surender while she was going towards Bhupender. PW2 was not knowing if public persons gathered there when she was beaten up by accused Naresh and Surender. PW2 also stated that most of the times, she used to talk with Bhupender from the landline installed at her house. She talked with Bhupender on 08102006 in the evening from the landline of her house but she did not remember the time. PW2 did not make a call either to PCR or to the PS after reaching at the house of her friend that she had a threat to her life. She volunteered that she made a call to Bhupender and told him that they will make a complaint to the police. PW2 was alone and made a call to Bhupender concealing herself from the other persons present. PW2 did not make a call to the police as she was frightened. PW2 further stated that police met her first time regarding this case on 15102006 at Safdurjung Hospital. She denied that she was conscious when she was shifted to hospital from the spot. PW2 denied that she made the statement on 15102006 after great consultation and deliberation or that the same was an afterthought. PW2 denied that her family members and relatives including Bhupender met her in the hospital from 09102006 till 15102006 continuously. PW2 also denied the suggestion that accused Deepak, Dinesh and Anil never visited her FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 46 of 130 th th th parental house on 07 , 8 and 9 October 2006 or that they never threatened her or that they were not having any objection to her marriage with Bhupender. PW2 knew Archana about two years th th before the incident as she studied with her in 11 and 12 class. PW2 stated that Archana was alone at her home when she reached her house on 09102006 and Archana did not inquire her as to why she reached her house. PW2 also stated that she also did not tell her the purpose of her visiting her house. PW2 further denied that she did not visit the house of her friend Archana on 09102006.
34. PW2 also stated in her crossexamination that she also denied that no incident took place with her on 09102006 at her residence. PW2 was not knowing if many persons witnessed the incident. Police took PW2 to the place of occurrence where the firing had taken place. PW2 had also shown the spot where accused Deepak, Dinesh and Anil were standing at the time of incident. PW2 further stated that she answered the questions put up by Ld. Magistrate in Hindi. PW2 did not remember if Ld. Magistrate recorded her statement in Devnagri script. PW1 put her signatures on the statement Ex. PW2/D1 in English. PW2 denied that she gave the statement to the police on 15102006 on the tutoring. She also denied that her statement was got recorded u/s FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 47 of 130 164 Cr. P. C. as police was suspecting that she may resile from her statement given to the police. PW2 further denied that Anil had never participated in the commission of this offence. She further denied that Dinesh and Deepak were falsely implicated in this case. PW2 did not remember if she named accused Sandeep in her statement before the ld. Magistrate. The court made observation that name of Sandeep was not there in the statement Ex. PW2/D1, however Samman was mentioned. PW2 denied the suggestion that Sandeep was never known as Samman. She volunteered that Sandeep used to visit their house along with accused Anil and she was knowing him only as Samman. She further denied that Sandeep @ Samman never visited her parental home along with Anil. PW2 told the police that all the accused persons were having weapons. PW2 further denied that Sandeep @ Samman was not having any weapon or that he was not present at the spot at the time of incident. She also denied that Sandeep @ Samman never visited her house or that he never threatened her. PW10 Shri Bhupesh Kumar, Ld. ADJVI West proved the application for recording statement u/s 164 Cr. P. C. of Raj Rani vide Ex. PW10/A; statement u/s 164 Cr.PC as Ex. PW2/D1; certificate as Ex. PW10/B and application for supply of copy of proceedings to IO vide Ex. FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 48 of 130 PW10/C.
35. Now, let us examine whether the statements given by PW1 and PW2 in the court are reliable and trustworthy. It has emerged from the testimony of PW1 and PW2 discussed above that PW1 and his family as well as PW2 were under continuing threat and the accused persons had already planned if PW1 and PW2 got married, they will kill PW1 and PW2. Further, when PW1 was being taken to the hospital after the incident and firing upon him, he was so feared and shocked that he was not in a position to tell exactly the names and numbers of the accused persons and even the vehicles. Even, health condition of PW1 was not such to enable him to give complete statement on the date of incident since he was admitted in the hospital for treatment. Moreover, PW2 specifically stated that how her buas and their sons were not agreed to her marriage with PW1 and when they came to the house of PW2, they exhorted "ye shadi hum hone nahin denge, chahe iske liye jaan se kyon na marna pade". Even, they also pressurized parents of PW2 not to marry with PW1. The accused persons namely Deepak, Dinesh, Surender, Sonu, Anil and Kalu along with three buas of PW2 gave beatings to PW2 and her family members when they came to the house of PW2 on 08102006. All stayed at her house FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 49 of 130 on 08102006 and her three buas and their all sons Kalu, one or two friends of accused Anil and buas' son Sonu were planning in the evening on the same day to kill PW2 and how on 09102006, PW2 called PW1 and PW1 reached near Gurudwara, accused Surender and Naresh were beating PW2 and pulling her towards her house. PW2 however had to sit in the Indica car of PW1 wherein deceased Brahm and one Sunil Nandal was also sitting and thereafter reached flyover. Accent and Santro cars followed and overtook them. Accent car was driven by accused Anil and accused Surender was sitting along with her two buas Krishna and Santosh. Accused Anil got down from his Accent car with a pistol in his hand and had to sit by her side in Indica car and at the same time, accused Sonu, Deepak, Dinesh, Sanjay and Samman also got down from the Santro car and they were also having weapons in their hands. It is also specifically stated by PW2 that meanwhile Honda City car also came there which was being driven by accused Kalu and his two were also there in the car. Then Pulsar motorcycle being driven by accused Naresh stopped on left side of Indica car. When accused Anil was talking to PW1 and PW2 in the Indica car, accused Kalu exhorted 'baat mat karo, jaldi kaam khatam karo aur niklo'. In response to the said exhortation of accused Kalu, accused Anil fired FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 50 of 130 on the neck of PW1 and immediately after firing on PW1, accused Anil got down from the car and the other persons surrounded Indica car from all sides. The accused Deepak, Dinesh, Surender, Samman, Sanjay and two/ three boys were near the driver seat of Indica car. Accused Sonu fired at PW1 and thereafter at PW2 which had hit on the head of PW2. At the time when accused Sonu was firing, the other boys also started firing on them and after hit by bullet, PW2 became unconscious and she regained her consciousness in the hospital.
36. Section 120B IPC applies to those who are the members of the conspiracy during the continuance and conspiracy has to be treated as a continuing offence and whoever is a party to the conspiracy during the period for which a person is charged and is liable under this section and this section only applies where no express provision is made for punishment of such conspiracy and prosecution has to prove that the accused agreed to do or caused to be done an act; such act was illegal or was to be done by illegal means and some overt act was done by one of the accused in pursuance of the agreement and further, it is necessary that there should be direct communication between each conspirator and every other but the criminal design alleged must be common to all. FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 51 of 130 It may be noted here that direct evidence of conspiracy is almost an impossibility and it is in a rare case only that there is direct evidence of the place where the conspiracy was entered into and in almost every case, conspiracies have to be inferred from the subsequent conduct of the parties having regard to all the circumstances of the case. Further, the offence of conspiracy can be established by direct evidence or circumstantial evidence, therefore, if the conditions laid down in section 10 of the Evidence Act are satisfied, an act done by one is admissible against coconspirators. In Vijayan Vs. State of Kerala, 1999 (3) SCC 54, AIR 1999 SC 1086, it was held that to bring home the charge of conspiracy within the ambit of section 120B, it is necessary to establish that there was an agreement between the parties for doing an unlawful Act. It is difficult to establish conspiracy by direct evidence. In the present case, there was an agreement among the accused persons for the accomplishment of the act i.e. if PW2 will marry with PW1, she would be killed by them and it was the subsequent act of the accused persons that they followed PW1, PW2, PW7 and deceased Brahm Singh and stopped their Indica car and thereafter started firing upon them which shows the circumstances how the accused persons conspired and thereafter acted upon it. FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 52 of 130
37. PW1 and PW2 are no doubt the injured persons in this case who are the eyewitness to the incident of firing by the accused persons. PW1 and PW2 have not only correctly identified the accused persons but also identified the shirt Ex. P1 which PW1 was wearing at the time of incident; Indica car Ex. P2 in which they were travelling at the time of incident; Bajaj Pulsar motorcycle as Ex. P3 which was driven by accused Naresh and he reached by it at the spot; Honda city car as Ex. P4 and Accent car as Ex. P5 which were also used for committing the offence; chunni of PW2 as Ex. P6, four seat covers as Ex. P7 to P10. During crossexamination, PW1 denied that he was fully well at the time of giving his statement Ex. PW1/A. PW2 also stated in her crossexamination that she was not in senses when she was taken to the hospital and she regained her senses in the hospital after five days i.e. on 14102006. Now, in this context about the aforesaid versions of PW1 and PW2, I would place a reliance upon the judgement reported in the case of State of Uttar Pradesh Vs. Kishan Pal, 2008 (8) JT 650: 2008 (11) SCALE 233, it was held that it is the quality of the evidence and not the quantity of evidence which is required to be judged by the court to place credence on the statement. In Raja Vs. State (1997) 2 Crimes 175 (Del.), it was held that it is wellknown principle of law FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 53 of 130 that reliance can be based on the solitary statement of a witness if the court comes to a conclusion that the said statement is the true and correct version of the case of the Prosecution. In the case of Kartik Malhar Vs. State of Bihar 1996 (1) RCR (Crl.) 308, the Hon'ble Supreme Court held that conviction can be based on the testimony of a single witness provided his credibility is not shaken and court finds him a truthful witness. It has been further held that Section 134 categorically lays down that no particular number of witnesses are required to prove a fact. The evidence has to be weighed and not counted. In the present case, the testimonies of PW1 and PW2 have not only inspired the confidence but they are also trustworthy. There is no irreconcilable inconsistencies in the testimony of PW1 and PW2. The clear and consistent stand of PW1 and PW2 who corroborated each other about the presence of accused persons at the site and identification by them creates no doubt. Further, accused Naresh is the real brother of PW2 and why PW2 shall spare the real culprits and falsely implicate her real brother as well as her cousin brothers.
38. Let us further examine whether motive for murder is significant where the direct evidence is available. Every criminal act is done with a motive. The proof of motive satisfies the judicial mind FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 54 of 130 about the authorship of the crime but the absence does not ipso facto result in the acquittal of the accused. Absence of proof cannot undo the effect of evidence if otherwise, it is reliable and sufficient as motive is not always capable of precise proof, if proved, may only lend additional support to strengthen the probability of commission of offence by the accused but the absence of proof does not ipso facto warrant in acquittal. Assuming for the sake of arguments that prosecution failed to prove the precise motive, still it would not make any difference as it is well settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be proved; sometimes, however, the motive is shrouded in mystery and it is very difficult to locate the same. If, however, the evidence of the eye witnesses is so creditworthy and is believed by the Court which has placed implicit reliance on them the question whether there is any motive or not becomes wholly irrelevant. In taking this view, I am supported with the judgement of Molu & Others Vs. State of Haryana AIR 1976 Supreme Court 2499. In Bakau Pandey Vs. State of Bihar, AIR 2004 SC 997, it was held that when direct evidence establishes the crime, the motive becomes insignificant. FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 55 of 130 Therefore, I am of the view that the present case is also based on direct evidence and therefore even if it is presumed that prosecution has failed to prove the motive for murder, the same has no significance.
39. PW3 Smt. Rajbala, mother of PW2, stated in her examination in chief that she has six children including two sons namely Naresh and Rohit and four daughters namely Raj Rani, Kavita, Nisha and Neelam. She also has three sistersinlaw (nanads) out of which, two were married in Daryapur and living there and one was living in Pehlad Pur. The sisterinlaws and their children were not on visiting terms with her family. Her daughter Raj Rani was married with Bhupender and it was arranged marriage and her family agreed to the marriage of Raj Rani with Bhupender. Accused Naresh is her son and brother of Raj Rani. PW3 deposed that she does not remember how Bhupender and Raj Rani came to know each other and how the marriage was arranged. PW3 further deposed that nothing happened with Raj Rani and Bhupender before their marriage. The daughter of PW3 namely Raj Rani was not on visiting terms with her and her family after the marriage. She was not aware why Raj Rani was not on visiting terms with her and my family. PW3 correctly identified accused Anil, Surender, Deepak FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 56 of 130 and Dinesh son of Sunder Lal and Naresh in the court. PW3 could not identify accused Summon and Sanjay and she was not aware if they were friends of aforesaid sons of her sisterinlaws and she did not know Dinesh @ Kalu. During crossexamination conducted by Ld. APP for State, PW3 stated that they had no objection to the marriage. PW3 was confronted with portion A to A1 of Ex. PW3/A wherein it was so recorded. PW3 stated that initially, she and her husband were not ready to marry Raj Rani with Bhupender but later on they agreed as Raj Rani was adamant to marry Bhupender. PW3 further stated that on 09.10.2006, her daughter Raj Rani left the house, but she did not know, where she had gone. PW3 admitted the suggestion that after she came to know that Monu and Raj Rani were injured due to bullet injury, she went to Hospital. PW3 denied the suggestion that she opposed the bail of Naresh saying that he was with Anil and Sonu and therefore, he be not granted. PW3 further stated that she was in grief at that time and she did not know what happened at that time. PW3 stated that after the death of her husband, the circumstances had changed. PW3 also stated that her son Rohit was not working. PW3 denied the suggestion that Sonu had pressurized them to depose in his favour. PW3 further stated that her three daughters were unmarried, her FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 57 of 130 younger son was studying and that is why, she wanted that Naresh shall come out from the jail. PW3 also stated that due to this reason, she was deposing in favour of the accused persons.
40. PW4 Phool Kumar stated in his examination in chief that he is having three sons and one daughter and Bhupender/PW1 is the youngest. About 4/5 days prior to 8.10.2006, he came to know that Raj Rani and Bhupender love each other. He further stated that neither his family, nor family of Raj Rani had any objection to the marriage of Bhupender with Raj Rani. On 08.10.2006, his son Monu @ Bhupender told him that family members of Raj Rani would come today for "Tikka Ceremony". The family members of Raj Rani did not turn up, though he made all the arrangement of the ceremony. At about 10.30/11.00am, Anil, Sonu and one Kaira, whose exact name he did not know, and two sons of maternal aunt of Sonu, came to his house and they told them that they would not allow this marriage to take place and if marriage is performed, then they will be having enmity towards them. After extending the threats, they left. In the evening, Kalu and Anil came to his house. Kalu asked Bhupender to go to the house of Raj Rani and refuse to marry Raj Rani. PW4 also asked Bhupender that having enmity is not a good thing and asked him to refuse for marry. FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 58 of 130 Bhupender accompanied Kalu and Anil. In the morning of 9.10.2006, Anil and Kaira came to the house of PW4 and asked Bhupender not to marry with Raj Rani, otherwise there will be quarrel. PW4 was also present there at that time. They also said that there would be killing also, if the marriage is performed and thereafter they left. At about 11.00/11.30am, Monu left for Delhi telling PW4 that he had received a call from the house of Raj Rani. At about 1.15/1.30pm, PW4 received the information that Monu had been fired at and he had sustained bullet injuries. PW4 along with his nephew hired a taxi and went to ESI hospital, near Punjabi Bagh, Delhi. Police was already there. Monu and Raj Rani were in the hospital and PW4 was not permitted to meet them. PW4 stated that Sonu was not present in the Court on that day but if produced, he can identify him. PW4 also identified accused Anil, Kaira, Dinesh, Deepak and Kalu in the court. During crossexamination by Ld. defence counsel, PW4 almost resiled from his statement given in his examination but he stated that he told the police that at about 1:15/ 1:30 pm, he received information that Monu had been fired at and he had sustained bullet injuries. PW4 told the police in his statement that he went to ESI hospital. PW4 denied the suggestion that he was deposing falsely or that he had named the aforesaid FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 59 of 130 accused persons with ulterior motive and at the instance of his son Bhupender. PW4 further denied that Dinesh @ Kalu and Surender @ Kaira neither visited his house nor extended any threats. PW4 denied that he did not tell any village about the threats as no such threats were extended. PW4 further stated that police from PS Punjabi Bagh came to his residence after the incident of firing. PW4 denied that accused persons never came to his house on 08/09102006 or that no such threats were extended.
41. PW7 Sunil Nandal deposed that Bhupender Singh is his friend. On 09.10.2006, he went to meet Bhupender Singh at his residence at village Daryapur as he had met with an accident before 09.10.2006. As he had to come to Karol Bagh, Delhi from there, Bhupender told him that he would also go to Delhi. They started from village Daryapur in Indica Car driven by Brahm. Bhupender was sitting on the rear seat and PW7 was sitting on the front left side seat of the car. While they were on the way to Delhi, Bhupender received a phone call from his friend Raj Rani who told Bhupender that she wanted to meet him. They went to Punjabi Bagh and from Punjabi Bagh Highway, she sat in their car on the rear seat with Bhupender. PW7 asked Bhupender to drop him at Rajouri Garden. When they reached near Cremation Ground, two FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 60 of 130 cars came and they forced them to stop. One person alighted from each car and they started firing on their car. Thereafter, they both fled away in those two cars, in which they came there. PW7 stated that he can identify those persons and stated that out of those two, none was present in the court on that day. PCR van came on the spot and removed Bhupender, Raj Rani and PW7 to ESI Hospital and there they were treated. Brahm Singh was also removed in separate vehicle in the hospital. Bhupender and Raj Rani also told these facts in the PCR van while going to the hospital. Statement of PW7 was recorded by the police. However, during cross examination conducted by Ld. APP for State, PW7 resiled from his previous statement Ex. PW7/A given to the police except to state he handed over the pistol and cartridges to the PCR Officials. PW7 again said, he only pointed out the pistol and cartridges to the PCR officials. His clothes got stained with his blood and blood of his friends. PW7 admitted his signatures at point A on the sketch Ex. PW7/B and memo Ex. PW7/C but stated that his signatures were obtained on blank papers. During crossexamination by Ld. defence counsel, PW7 stated that two cars which came there were Accent and Santro.
42. PW3, PW4 and PW7 have not fully supported the case FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 61 of 130 of the Prosecution but it does not mean that their whole testimonies should be discarded. In this context, a reliance can be had upon the judgement reported in the case of Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J 2653 (1), it was held that evidence of hostile witnesses cannot be treated as effaced or washed off the record altogether. Part of his evidence which is otherwise acceptable can be acted upon. In Paramjit Singh @ Pamma Vs. State of Uttarakhand, AIR 2011 SC 200, it was held that evidence of hostile witness need not be rejected en bloc but should be considered with caution and court should look for corroboration. In the present case, it reveals from the testimonies of PW3 and PW4 that PW4 knew that PW1 and PW2 loved each other. Accused Anil, Sonu, Surender @ Kaira and Kalu came to the house of PW1 and PW4 and threatened them not to marry PW1 with PW2. PW4 also came to know that PW2 had been fired and PW1 and PW2 were admitted to hospital. PW4 also identified the accused Anil, Kaira, Deepak, Dinesh and Kalu. PW4 denied that the accused persons never visited his house on 08/09102006 nor extended any such threat. PW7 also admitted the phone call received by PW1 from PW2 while PW1 and PW7 were on their way to Delhi. PW7 further admitted that they were forced to stop their car by two cars i.e. FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 62 of 130 Accent and Santro near Cremation Ground, Punjabi Bagh and also firing by them on their Indica car. PW7 also admitted that he, PW1 and PW2 were removed by PCR van from the spot and admitted to ESI Hospital. Brahm Singh (since deceased) was also removed from the spot in a separate vehicle to hospital. PW7 further admitted that he handed over pistol and cartridges to PCR officials. PW7 also admitted that his clothes were got stained with his blood and blood of his friend. Therefore, the statement of PW4 and PW7, as discussed above, are also supportive to the direct evidence of PW1 and PW2.
43. PW13 Dr. Parmod Gandhi, CMO stated in his examination in chief that on 09.10.2006, he examined injured Bhupender s/o Phool Chand at about 1.30 pm vide MLC No. 352/06 Ex. PW13/A. Patient was brought with history of gun shot injury at Punjabi Bagh Club. On local examination, he found following injuries on the person of Bhupender Singh:
1. Penetrating wound on the left side of the chest.
2. Penetrating wound at the base of left thumb.
3. Penetrating wound at the left side of the neck.
After examination and after giving him initial treatment, the case was referred to Dr. Pushpender, Senior Resident, Surgical FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 63 of 130 Department for detailed examination and further management. During crossexamination by Ld. defence counsel, PW13 stated that injured himself had given the history which was recorded by him in the MLC. The injured did not tell the names of the assailants. PW13 could not recall if he asked the names of the assailants from the injured. Injured Bhupender remained in his custody for about 20/25 minutes. Injured was brought by ASI Layak Ram to the hospital. Police did not inquire the injured in the presence of PW13. PW24 Retd. Commander J.S. Kuderia, Maharaja Agrasen Hospital, Sr. administrative Officer, Punjabi Bagh stated that injured Bhupender, 21 years male, was admitted in their hospital on 10.10.2006, with history of gun shot injury. Patient was operated and two bullets were removed from his body, one from the left side of the chest and other from the right side of the chest. The said two bullets, which were taken out from the body of Bhupender were kept in two separate plastic bottles and both the bottles were sealed with the seal of Maharaja Agrasen Hospital, Punjabi Bagh, New Delhi. Injured was admitted with IP no. 619847 and he was discharged on 17.10.2006. On 20.10.2006, PW24 handed over the said two sealed plastic bottles along with sample seal to the IO of the case of PS Punjabi Bagh which were seized by the IO vide seizure memo FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 64 of 130 Ex. PW24/A. During crossexamination by Ld. Defence counsel, PW24 stated that he had no personal knowledge as to who operated the injured.
44. PW20 Dr. S. C. Jain CMO stated that on 09.10.2006, he was working as CMO at ESI hospital, Basai Darapur and at about 1.30 pm, injured Raj d/o Prem Singh was brought by ASI Laik Kumar of PCR to ESI hospital, Basai Darapur with alleged history of gun shot injury. On examination, he found that there was gun shot wound over the scalp near right ear and over left forehead with haematoma piercing and exit wound. PW20 gave the treatment instantly and referred the patient to Surgical Specialist, Neuro Surgery Department for further management vide MLC Ex. PW20/A. During crossexamination by Ld. defence counsel, PW20 stated that alleged history was given by ASI Liak RamPCR official and not by the injured. He also stated that ASI Liak Ram did not tell the names and number of the assailants. PW20 also stated that since there was urgency, therefore, he did not mention if there was any blackening or tattooing around the gun shot wound.
45. PW14 Dr. Girish Arora CMO, ESI hospital stated in his examination in chief that on 09.10.2006, he was posted as CMO in ESI hospital, Basai Darapur, Delhi. On that day, he examined FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 65 of 130 Brahm Singh s/o Pratap Singh, 24 years male brought by ASI Layak Ram for medical examination with alleged history shot by bullet at about 1.30pm near Punjabi Bagh Club. On examination, patient was conscious and was responding to oral commands. Pupil were normal and reacting to light. On local examination, he found following injuries on the person of injured :
1. There was bullet injury on epigastrium.
2. There was bullet injury on right hypochondrium region rounded in shape approximately 1 cm in diameter.
Thereafter, Brahm Singh was referred to the surgical team and doctor for further detailed examination and management. One bullet was handed over to ASI Mahender Singh. He prepared the MLC Ex. PW14/A with portion encircled in red as endorsement of Dr. Pushpender Shukla Ex.PW14/B. During crossexamination by Ld. defence counsel, PW14 stated that history was given firstly by ASI Layak Ram and then by the injured. The injured remained with PW14 upto 2 pm. PW14 stated that statement of injured was not recorded either by ASI Layak Ram or by him as there were 2 or 3 injured. Injured did not tell them the name of the assailant. PW14 also did not inquire the name of the assailant from the injured. PW14 stated that endorsement regarding handing over the bullet to FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 66 of 130 ASI Mahender Singh was in his handwriting. PW14 stated that on the MLC, it was not mentioned that patient was unfit for statement from 09102006 to 14102006. PW14 volunteered that it remained on the file. He further stated that in their hospital, there was no such practice to mention on the MLC that the injured was fit or unfit for statement by CMO.
46. PW22 Dr. Girish Arora, ESI hospital stated that on 9.10.2006 at about 1.35 pm, injured Brahm Singh was brought to ESI hospital by ASI Laik Ram. PW22 examined the injured and found a bullet injury on the epigestrium and right hypochobrium region in round shape and approximately 1cm in diameter. PW22 referred the injured to surgeon on duty for further examination and management. He proved the MLC as Ex. PW22/A. After examination from the surgical ward, one bullet was given to PW22 by the surgeon in a sealed cover which he handed over to the police. During crossexamination by Ld. defence counsel, PW22 stated that alleged history mentioned on the MLC was told to him by ASI Laik Ram. PW22 stated that he found two bullet wounds on the person but as the blood pressure was falling down, he referred the injured to surgeon on duty for management and examination. PW22 also stated that one bullet was received by him in sealed cover on FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 67 of 130 the same day. In the MLC, PW22 did not mention the date, however, he volunteered that but in his record it was mentioned. PW22 denied the suggestion that no such bullet was handed over to him by the surgeon nor the same was handed over by him to the police. PW22 further stated that it was mentioned in the record that bullet was handed over to the police. PW22 volunteered that as per record, it was mentioned that two bullets were handed over to the police as one was received later on from the operation theatre but there was no receipt. The first bullet was handed over to police on 09102006. PW22 was not aware on which date the second bullet was received and then handed over to the police. PW22 denied the suggestion that he did not examine the injured personally or that no bullet was handed over by him to the police or that he was deposing falsely.
47. PW15 Dr. Rakesh, Senior Specialist Surgery stated that in the year 2006, he was working as Senior Specialist (Surgery), St. Stephen Hospital. He brought the summoned record file i.e document bearing IP No. 905182/1 pertaining to deceased Brahm Singh and proved the photocopy of same as Ex.PW15/A (collectively). It is reflected from the crossexamination of PW15 that injured himself gave the history to him as well as to the other FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 68 of 130 doctors present there. However, injured did not tell the name of the assailants. Even, PW15 did not inquire the name of assailants. Injured was fully conscious and was able to speak when brought to their hospital. The record of ESI Hospital was also available with them. However, PW15 could not comment even after going through the record, if the injured was fit or unfit for statement from 09102006 to 13102006. PW15 stated that there was no such entry on the record placed before them from ESI hospital by the injured that he was unfit for statement from 09102006 to 13102006 but PW15 categorically stated that the injured was on ventilator during operation and after operation, he was not able to speak. PW15 also stated that he was not present when the injured was brought to the hospital and he cannot say if the police officials also came to the hospital along with injured. On 14102006, the injured remained under his supervision since morning till evening. The injured was conscious before operation. The injured was operated upon at 1:35 pm on 14102006. Meaning thereby, though Brahm Singh was conscious before operation but his condition was not such that he could be fit till that time for giving his statement.
48. PW9 Dr. Manoj, Medical Officer, Sanjay Gandhi Memorial Hospital, Delhi stated that on 18.10.2006, he conducted FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 69 of 130 postmortem on the dead body of Brahm Singh son of Partap Singh aged about 24 years male, sent by Inspector Gurmeet Singh, SHO, PS Punjab Bagh with alleged history of gunshot injury on 09.10.2006 and admitted in ESI Hospital and thereafter referred to St. Stephan Hospital and expired on 17.10.2006 at 4.40 pm. He proved his detailed postmortem report vide Ex. PW9/A. PW9 further stated that the metallic bullet, xray and blood sample in gauze piece were sealed and handed over to the IO with sample seal which was seized vide memo Ex. PW9/B. PW9 also identified the handwriting and signatures of Dr. Amit Kumar Parsad, JR on the MLC No. 15524 of Prem s/o Layak Ram, 42 year old male and MLC no. 15523 of Raj Bala wife of Prem Singh, prepared by Dr. Amit Kumar Parsad which are Ex. PW9/C and Ex. PW9/D bearing signatures of Dr. Amit Kumar Prasad at point A. PW9 also stated that on external examination, following injuries were found on the body of deceased :
1. Stitched wound of size 5 cm present over right elbow and 1.5 cm over neck
2. Stitched operated wound present over front of abdomen 18 cm from epigastrium below umbilicus
3. Two stitches lacerated wound present on left antrolateral side FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 70 of 130 of lower chest and abdomen of size 2 cm each one in anterior th axillary line at about 10 rib and one on axillary line 3 cm below and 6 cm lateral to first rib
4. One stitched wound of size 2 cm present on right side of posterior axillary 4 cm below axilla Internal Examination : th Chest : Chest wall hemetoma present on left side ribs at 6 intercostal space and a metallic body bullet recovered with injury on lower part of the left lobe Abdomen : Laceration of liver right lobe of size 3 cm x 1 and half cm x 1 cm.
PW9 opined that the cause of death was due to shock as a result of multiple injuries. All injuries were antemortem in nature. Total number of inquest papers were 31. During crossexamination by Ld. Defence counsel, PW9 denied the suggestion that he had never seen Dr. Amit writing and signing. PW9 stated that he did not mention about injuries no. 1 to 4 listed in PM report as to with which weapon these injuries were caused. However, he volunteered that one bullet was recovered. PW9 further stated that he had not put his initial around work "bullet" as it was not inserted later on. He volunteered that before conducting the postmortem, he got FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 71 of 130 conducted the xray of the body where he noticed the bullet. PW9 denied the suggestion that he did not conduct postmortem on the dead body personally or that he gave opinion without examining the body himself.
49. PW30 Dr. P.K. Jain, Incharge, Casualty, ESI Hospital, Ring Road stated that on 09.10.2006, he was posted in ESI Hospital. On that date, Dr. S.C. Jain handed over to him one parcel containing blood stained shirt and Baniyan of Bhupender; one sealed parcel containing blood stained pants and Baniyan of Brahm Singh; one sealed parcel containing blood stained Chunni of Raj; one sealed parcel containing bullet received from the body of Brahm Singh along with sample seal. PW30 handed over the same to the police along with sample seal vide seizure memo Ex. PW29/B. PW17 Dr. Supreethi Kohli Specialist (Radiologist) stated that on 9.10.2006, she was working as Radiologist in ESI hospital, Basai Darapur, Delhi. On that day, she examined Xray plate bearing No. E22985 AP view and E22986 Lateral dated 9.10.2006 of Ms. Raj of the skull and Xray Plate No. E22987 of chest AP View of Ms. Raj. She found body injury i.e depressed fracture of the skull frontal region in lateral view. There was no bony injury to the chest according to the Xray plate. She proved the Xray report of Ms. Raj FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 72 of 130 as Ex.17/A and Xray plates as Ex.PW17/A1 to Ex.PW17/A3. On the same day, she also examined Xray plates bearing No. E22979 AP View, E22983 Lateral View of the skull, Xray plates bearing No. E22981 AP View of Cervical Spine, E22982 Lateral View of Cervical spine and E22980 AP View Chest and E22984 Lateral View of chest of injured Bhupender. She proved the Xray report of Bhupender as Ex.17/B and Xray plates as Ex.PW17/B1 to Ex.PW17/B6. On the same day, she also examined Xray plates bearing No. E22977 AP View Abdomen, E22978 Lateral view of abdomen of patient Brahm Singh. In the Xray plate of lateral view of abdomen, shadow of radio opaque foreign object was noticed. She further proved the Xray report of Brahm Singh as Ex.17/C and Xray plates as Ex.PW17/C1 and Ex.PW17/C2. During cross examination by Ld. Defence counsel, PW17 stated that in the report of radiographer, the number of plates were starting with alphabet B. She volunteered that she mentioned the xray plates with alphabet E and on the Xray plate also, alphabet E was mentioned. PW17 denied that xray plates Ex. PW17/B1 to B6 were not of injured Bhupender. PW17 stated that there is some cutting on the MLC number on the xray report of Brahm Singh and there were no initials on that. PW17 stated that entries are made in the xray FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 73 of 130 register. PW17 did not bring that register and that register was never taken by the police from their hospital. However, PW17 volunteered that register cannot be given to the police. PW17 denied that there was no such entry in the xray register.
50. It reveals from the abovediscussed testimonies of the doctors i.e. PW13, PW14, PW20, PW22, PW17, and PW9 that PW13 examined the injured Bhupender/ PW1 who was brought with history of gunshot injury at about 1:30 pm. PW14 examined Brahm Singh (since deceased) and he also found bullet injuries on his person. PW20 examined Raj Rani/ PW2 and he also found gun shot wound on her person. PW22 also examined Brahm Singh who found a bullet injury on the person of Brahm Singh. PW9 conducted postmortem on the dead body of Brahm Singh. The examination conducted by the doctors as stated above of Brahm Singh (since deceased), PW1 and PW2 shows that all these persons were injured by firing/ gun shot and death of Brahm Singh was as a result of multiple injuries which were antemortem in nature.
51. PW19 Pratap Singh stated that in the month of October 2006, he received information on telephone that his son had met with an accident and in ESI hospital, Punjabi Bagh. He went to ESI hospital, Punjabi Bagh and found his son Brahm Singh admitted FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 74 of 130 who was in semiconscious condition and Brahm Singh recognized PW19. PW19 got him shifted to St. Stephen hospital after 23 days where he died. After postmortem, PW19 received the dead body of his son on 18.10.2006 vide Ex.PW6/B. PW6 Manish Kumar stated that on 17.10.2006, his brother Brahm Singh expired. The dead body was removed from St. Stephen Hospital to Sanjay Gandhi hospital for postmortem. PW6 identified the dead body of his brother in mortuary of Sanjay Gandhi hospital on 18.10.2006 vide statement Ex. PW6/A. PW6 received the dead body of his brother vide Ex. PW6/B. PW8 Tilak Raj stated that on 18.10.2006, on receipt of information regarding death of his nephew Brahm, he went to Sanjay Gandhi Memorial hospital, Delhi and identified the dead body of Brahm vide Ex.PW8/A. After postmortem, he received the dead body vide receipt already Ex.PW6/B.
52. PW26 Retired SI Layak Ram stated that on 09.10.2006, he was posted in PCR as ASI and Incharge on PCR van Power85 and on duty along with driver ASI Attar Singh and gunman Ct. Phool Pagar. He stated that his position was near Shamshan Ghat, Ring Road, Punjabi Bagh. At about 1.25 pm, towards drain on hearing commotion, they reached there in PCR van and came to know that shooting incident had taken place. He found three injured and one FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 75 of 130 car, of which the front windowpane of the driven side was found broken. Injured Bhupender gave him one pistol and told that this pistol was of assailants which fell in the car. Bhupender also told that assailants had fled away in two cars, out of which one was Santro bearing no. 0105. There was blood in the car. All the injured were inside the car when they reached the spot. Some empty cartridges/shell were lying outside the car and inside the car. The pistol which was handed over to PW26 by injured Bhupender, was found loaded with two cartridges. In total, there were four persons, out of them, three were injured and out of them, one was lady. PW26 removed Bhupender and Raj to ESI Hospital in his PCR van. One Sunil was also present on the spot but he was not having any injury. Third injured Brahm also reached to ESI Hospital in some other vehicle. ASI Mahender Singh and Addl. SHO Lakhvinder Singh reached ESI Hospital. PW26 handed over the pistol and injured to them and thereafter he returned to his base. On the same day, at about 2.15/2.30 pm, ASI Mahender Singh and SI Ishwar Singh again called their PCR van to the spot. The sketch Ex. PW7/B of the pistol and two live cartridges was prepared at the spot. Thereafter, the pistol and two cartridges were put in a parcel of cloth, sealed and seized vide memo Ex. PW7/C. PW26 made entry FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 76 of 130 in the log book. PW26 stated that the original log book was destroyed vide order dated 31.05.2010 and therefore, same could not be produced. PW26 proved the photocopy of the order of destruction of record as Ex. PW26/A and photocopy of the log book as Ex. PW26/B running into four pages. PW26 further stated that Bhupender also told him the names of the assailants as Anil, but he could not recall other names but stated that those assailants were of Daryapur. PW26 identified the pistol Ex. P11 which was handed over to him by injured Bhupender.
53. During crossexamination by Ld. Defence counsel, PW26 stated that he mentioned in the Log Book that Bhupender handed over the pistol to him. He denied the suggestion that he did not mention this fact in the Log Book. However, it was also observed by the court that it was mentioned in the Log Book that injured handed over the pistol to him with which the offence was committed. PW26 further stated in his crossexamination that he mentioned in the Log Book that the pistol which was handed over to him by the injured was handed over by him to the Addl. SHO Lakhvinder Singh. It was again observed by the court that it was there in the Log Book. PW26 also informed the PCR that pistol was handed over to him by the injured. PW26 denied the suggestion FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 77 of 130 that Bhupender did not hand over the pistol to him. PW26 also stated that ASI Mahender Singh and SI Ishwar Singh were present on the spot when the pistol Ex. P11 was seized. Seizure memo of the pistol was prepared at about 2:15 or 2:30 pm. He denied the suggestion that said pistol was not seized on the spot or that it was later on planted in the PS just to give colour to the prosecution case. PW26 further stated that his vehicle was at a distance of about 200 yards from the place where incident had taken place and place of incident was visible to him from his base. PW26 could not see what was going on and the commotion continued for 2/3 minutes. PW26 immediately after noticing commotion, reached at the spot in his van. PW26 made inquiries from Brahm and Bhupender and they told him about the incident. PW26 did not give the details of the incident to the doctor while getting the injured admitted. PW26 stated that on the butt, there were straight lines from the barrel to downward. PW26 stated that he identified the pistol in the court on the basis of those lines on the butt but he did not try to see whatever was written or engraved on the pistol. The statement of PW26 was recorded by SI Ishwar Singh on the spot after the preparation of seizure memo. PW26 remained on the spot for about 30 minutes at the time of second visit. PW26 further stated that FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 78 of 130 police was carrying on the proceedings on the spot when he reached second time but his attention was not towards them.
54. PW27 HC Ramesh Chand stated that on 09.10.2006, on receipt of DD No.16A, he along with SI Ishwar Singh reached at Ring Road, near Shamshan Ghat, near Ganda Nala, Punjabi Bagh and found one Indica car bearing no. DL4 SU1942. The driver side windowpane/glass of the said car was found broken. Blood was lying inside and outside the car and live cartridges and empty cartridge cases were also lying there. There was also a bullet mark on the left front side window of the said car. Thereafter, PW27 along with SI Ishwar Singh reached at ESI Hospital where ASI Mahender Singh met them who handed over one pulanda having seal of ESI Hospital to SI Ishwar Singh which was seized by SI Ishwar Singh. ASI Mahender Singh recorded the statement of injured namely Bhupender Singh. One more injured Sunil @ Sonu was also present there. ASI Mahender Singh prepared a tehrir and handed over the same to Ct. Sanesh at about 3.20 PM for registration of the FIR. Thereafter, PW27 along with ASI Mahender Singh, SI Ishwar Singh and injured Sunil again reached at the spot, there SI Ishwar Singh prepared site plan at the instance of Sunil. Crime Team was called at the spot. Spot was got photographed by FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 79 of 130 the Crime Team and Crime Team also inspected the spot. Three live cartridges, three empty shells of 9 MM caliber and one projectile of the bullet/led was found outside the car. Three empty shells of 7.65MM and one projectile of the bullet/led were found inside the car. The recovered cartridges were kept in two separate plastic containers sealed with the seal of IS and given marks A and B. The seat covers of the rear seat and driver seat of the said Indica car were also removed and were kept in a plastic katta and sealed with the seal of IS. The said Indicar car was also seized vide memo Ex. PW27/A. ASI Layak Ram of PCR handed over one 9MM pistol and two live cartridges to SI Ishwar Singh stating that the same were handed over to him by Sunil. SI Ishwar Singh prepared the sketch of said country made pistol and two live cartridges and the same were taken into police possession after preparing a pulanda and sealing the same with the seal of IS. Thereafter, SI Ishwar Singh recorded the statements of ASI Layak Ram, ASI Mahender Singh and Ct. Sanej. Thereafter, PW27 along with SI Ishwar Singh again reached at the ESI Hospital where doctor handed over four pulandas having seals of ESI Hospital to SI Ishwar Singh stated to be containing clothes of injured Bhupender, Brahm Singh and Rajrani and one bullet along with one sample seal of ESI Hospital. FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 80 of 130 Same were also seized by SI Ishwar Singh. Thereafter, PW27 along with SI Ishwar Singh, Sunil along with case property reached at the PS. Parents of injured Rajrani namely Prem Singh and Raj Bala met them at the PS and SI Ishwar Singh made inquiries from them, recorded their statements. Thereafter, as per the instructions of SI Ishwar Singh, PW27 got Prem Singh, Raj Bala and Sunil medically examined at Sanjay Gandhi Memorial Hospital.
55. PW27 further stated in his examination in chief that after medical examination of Sunil, doctor handed over him two pulandas, stated to be containing clothes of injured Sunil, having seal of SGM Hospital along with sample seal. Thereafter, they came back to the PS and PW27 handed over the said two pulandas in sealed condition to the IO which were seized vide seizure memo Ex. PW27/B. SI Ishwar Singh also obtained the photocopy of the log book from ASI Layak Ram of PCR. On 07.02.2007, PW27 again joined the investigation of the present case along with SI Ishwar Singh, HC Labh Singh, Ct. Harjeet and Ct. Sanej. They all reached at Bus Stand Narela and from there they along with secret informer started moving towards village Narela. There, one man, who was coming in the street from the front side, was apprehended on the pointing out of secret informer. On interrogation, his name was FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 81 of 130 revealed as Naveen (correctly identified). He was arrested and his personal search was conducted and on his pointing out at about 6.45 PM, accused Sandeep (correctly identified) was apprehended from Bus Stand Bahadurgarh, Haryana. He was also arrested and his personal search was conducted. At the instance of accused Sandeep, accused Anil Kumar (correctly identified) was arrested from village Kansala and his personal search was also conducted. Accused Naveen, Sandeep and Anil were arrested vide memos Ex. PW27/C, PW27/D and PW27/E and their personal search was conducted vide memos Ex. PW27/F, PW27/G and PW27/H. PW27 identified Indica car bearing no. DL4SU1942 as Ex. P2 which was seized from the spot; one pistol Ex. P11 which was seized by SI Ishwar Singh at the spot; five empty cartridges Ex. P12 out of which two were with the pistol and three were lying on the ground and were live at that time; three empty cartridges Ex. P13 and one deformed bulled head as Ex. P14 which were lying on the ground outside the car at the spot; three empty cartridges Ex. P15 and one deformed bullet head as Ex. P16 which were found inside the said Indica car no. DL4SU1942; two covers of the driver's seat and its back as collectively Ex. P17 and two seat covers of the rear seat and its back as collectively Ex. P18 which were removed from the FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 82 of 130 driver's seat and the rear seat of the above said Indica car and were seized in his presence; pants of Sunil as Ex. PW 27/X and shirt of Sunil as Ex. PW27/Y which were worn by Sunil.
56. During crossexamination by Ld. Defence counsel, PW27 stated that he reached the spot along with SI Ishwar Singh on a twowheeler scooter but he could not recall the exact time of their reaching the spot and no public person was present on the spot. PW27 stated that CNG pump was also situated near the place of incident. The Indica car was found parked by the side of the road facing Rajouri Garden. PW27 told the police in his statement u/s 161 Cr.P.C. that three live cartridges and three empty shells and one bullet head were found lying on the road outside the Indica car and inside the car three empty shell and one bullet head were found. PW27 remained on the spot for a total period of 2 or 2½ hours. SHO, Senior officers and Crime Team also visited the spot. PW27 signed one document on the spot. SI Ishwar Singh handed over the seal after use. PW27 further stated that no public person agreed to join the investigation at the time of arrest of accused Naveen. He denied that all the memos were prepared in the PS or that no recovery was effected in his presence. He also denied that accused Naveen was lifted from his house or that accused Naveen FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 83 of 130 did not make any disclosure statement or that his signatures were obtained on blank papers. PW27 further stated that they received DD no. 16A at 1:40 pm in the PS Punjabi Bagh. PW27 and SI Ishwar Singh examined the spot minutely and also checked car no. DL4SU1942. PW27 also stated that finger prints of Anil were taken when he was arrested. PW27 denied that he did not visit the spot. PW27 also denied that they did not visit village Kansla. PW27 stated that efforts were made to join the investigation from the bus stand Kansala but nobody agreed to join. PW27 did not remember if local PS Sanpla was informed about the arrest of Anil from their area. He denied that accused Anil was called in the PS from his residence or that he was falsely implicated in this case. PW27 further denied that entire paper work was done in the PS. PW27 also stated that notice in writing was given to the public persons who refused to join. No written permission was taken for leaving Delhi. PW27 volunteered that Senior police officers were informed. No public person agreed to join the proceedings at the time of arrest and conducting of personal search of accused Sandeep. PW27 denied that accused Sandeep was not arrested from bus stand Bahadurgarh. He also denied that accused was lifted from his residence and falsely implicated in this case. He further denied that FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 84 of 130 accused Sandeep was never known as Samman.
57. PW12 ASI Mahender Singh stated in his examination in chief that on 09.10.2006, he was posted at PS Punjabi Bagh and on receipt of DD no. 16A through Ct. Snej at about 1:40 pm regarding a firing incident, he along with Ct. Snej reached Ring Road, near Shamshan Ghat, Punjabi Bagh. On the spot, he found one blue colour Indica car no. DL4SU1942 standing with driver side windowpane broken and there was a bullet mark on the windowpane on the conductor side. Blood was lying scattered inside and outside the car. Four empty shells were lying inside the car. Outside the car, four empty shells and three live cartridges were found. No eyewitness met him on the spot. It came to his knowledge that injured persons were removed to ESI Hospital vide DD no. 18A. PW12 left Ct. Snej at the spot and went to ESI Hospital where he found Raj admitted vide MLC no. 351, Bhupender vide MLC no. 352 and Brahm Singh vide MLC no. 353. PW12 also confirmed by stating that doctor declared injured Raj and Brahm Singh unfit for statement. PW12 recorded statement of Bhupender vide Ex. PW1/A. The Doctor handed over one pullanda having seal of ESI hospital containing the bullet taken out from the body of injured Brahm Singh. Thereafter, PW12 came to the spot and made FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 85 of 130 endorsement Ex. PW12/A on the statement of Bhupender and sent the rukka to PS through Ct. Snej. SI Ishwar Singh reached the spot and Ct. Snej handed over the rukka and copy of FIR to SI Ishwar Singh. PW12 also handed over the pullanda which he received from ESI Hospital to SI Ishwar Singh which was seized vide seizure memo Ex. PW12/B. ASI Layak Ram of PCR and one Sunil, public witness came to the spot and they handed over one pistol and two live cartridges of .9 mm to SI Ishwar Singh. SI Ishwar Singh put the pistol as well as two live cartridges in a piece of cloth, prepared pullanda and sealed with the seal of IS and seized the same vide memo Ex. PW7/C. Three live cartridges, three empty shells and one bullet head were found outside Indica Car and all these cartridges, empty shells and bullet head were put in one pullanda and sealed with the seal of IS and seized vide memo Ex. PW12/C. Inside the car, three empty shells and one bullet head were found.
58. PW12 also stated in his examination in chief that these all were put in one pullanda and sealed with the seal of IS and seized vide memo Ex. PW12/C. The seat covers of rear seat was found stained with blood and front driver seat cover was also found stained with blood. Both these seat covered were put in one plastic katta and was sealed with the seal of IS and seized vide FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 86 of 130 memo Ex. PW12/D. Indica car was also seized by SI Ishwar Singh. SI Ishwar Singh prepared the site plan at the instance of Sunil. PW12 also identified one shirt of black colour having white strips, four seat covers, one pant, one shirt, one chunni and two baniyans; three white clothes having seals of ESI, MLC, Hospital and one paper having seal of mortuary, SGM Hospital, Mangolpuri; the seat covers Ex. P7 to P10 of the Indica Car. PW12 also identified the Indica car bearing no. DL 4 SU1942 as Ex. P2; one pistol Ex. P11 which was seized by SI Ishwar Singh, some empty plastic containers and eight envelopes; five empty cartridges in five separate transparent zippers as Ex. P12 out of which two were with the pistol and three were lying on the ground and were live at that time; three empty cartridges Ex. P13 and one deformed bulled head as Ex. P14 which were lying on the ground outside the car at the spot; three empty cartridges Ex. P15 and one deformed bullet head Ex. P16 which were found inside the said Indica car no. DL4S U1942. During crossexamination by Ld. Defence counsel, PW12 stated that he reached the spot on private motorcycle at about 1:45 pm. PW12 remained at the spot for about 4/5 minutes. PW12 denied the suggestion that no exhibit were lying on the spot or that those were later on planted. He further denied that no proceedings FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 87 of 130 were recorded in the PS. PW12 returned to the PS at about 7 pm. PW12 stated that he made the arrival entry but he could not recall the DD number.
59. PW16 Ct. Raj Kumar stated that on 09.10.2006, he was posted at mobile Crime Team, West District as photographer. On that day, he along with I/C SI Anil Kumar and HC Surender reached at the spot i.e Ring Road, Near Ganda Nala, ESI hospital, Delhi and he took 17 photographs Ex.PW16/1 to Ex.PW16/17 of the scene of crime from different angles. He also brought 17 negatives as Ex. PW16/18 to Ex.PW16/34. During crossexamination by Ld. defence counsel, PW16 stated that he remained at the spot from 2:15 pm to 3:15 pm. However, PW16 stated that he was not aware what proceedings were conducted by other officers as he was busy in taking photographs. PW18 W/HC Pushpa, Duty Officer proved the FIR No. 887/06 u/s 307/34 IPC & 25/54/59 Arms Act as Ex. PW18/A and endorsement as Ex. PW18/B. She also recorded DD No. 21A as Ex. PW18/C regarding registration of FIR and DD No.16A as Ex.PW18/D. PW18 also proved DD No.18A as Ex.PW18/E and DD no. 50B as Ex.PW18/F. PW21 Ashok Kumar brought the record of Accent Car make Hyundai bearing No. DL4 CS7509 which was registered in the name of Anil s/o Rajinder Singh, r/o 348A Darya FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 88 of 130 Pur Kalan, Bawana. This information was given to the police on their request vide Ex.PW21/A.
60. PW23 Ct. Sanej Kumar stated that on 09.10.06, he was posted at PS Punjabi Bagh as constable. On that day, he handed over DD No.16A to ASI Mahinder Singh and thereafter he along with ASI Mahinder Singh reached at the spot i.e. Ring Road, near Shamshan ghat Punjabi Bagh where they found one indica car no. DL 4SU1942 of blue colour. The windowpane of the driver side of the said car was found broken and there were marks of bullet on the conductor side of the car (left side). Empty cartridges were lying inside the car as well as near the car on the ground. There was blood stains inside and outside the car. They came to know that injured has been shifted to ESI hospital. ASI Mahinder Singh left PW23 at the spot and went to ESI hospital. After some time, SI Ishwer Singh and Ct. Ramesh also arrived at the spot and thereafter they both also went to ESI hospital. PW23 further stated that the cartridges, empty cartridges and lead which were found outside the car were kept in a plastic container and the three empty shells and one lead piece which were found inside the indica car were kept in a separate plastic container. The mouth of both the plastic container was tied with the plaster tape and were marked A and B FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 89 of 130 respectively and sealed with the seal of IS and were seized vide memo Ex. PW12/C. The pieces or rear seat cover and front right seat cover having blood stains were taken which were put in a plastic katta and sealed with the seal of IS and seized vide memo Ex.PW12/D. PW23 identified the Indica car bearing no. DL4SU 1942 as Ex. P2; one pistol Ex. P11, some empty plastic containers and eight envelopes sealed with the seal of Ballistics CFSL Kolkata taken out; cartridges Ex. P12 out of which two were with the pistol and three were lying on the ground and were live at that time; three empty cartridges Ex P13 and one deformed bulled head as Ex. 14 which were lying on the ground outside the car at the spot; three empty cartridges Ex. P15 and one deformed bullet head Ex P16 which were found inside the said Indica car no. DL4SU1942; two covers of the driver's seat and its back are collectively Ex. P17 and the two seat covers of the rear seat and its back are collectively Ex. P18. During crossexamination by Ld. Defence counsel, PW23 stated that he had noticed the Indica car on the spot and in his presence additional SHO, ACP, DCP along with their staff reached the spot. Addl. SHO, ACP, DCP also checked the Indica car after reaching the spot and they did not lift any exhibit from inside the Indica car. PW23 denied the suggestion that nothing was found FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 90 of 130 either from inside the Indica car or outside the Indica car and that is why they did not lift anything from there. PW23 also stated that exhibits were seized from the spot after sending the rukka. He denied the suggestion that no such exhibits were found on the spot. PW23 further stated that he left the spot at 3:20 pm with the rukka. He denied that he did not take the rukka from the spot at about 3:20 pm. He also denied that he did not see any such exhibit on the spot.
61. PW29 Inspector Ishwar Singh stated that on 09.10.2006, he was posted as Sub Inspector in PS Punjabi Bagh. On that day, on receipt of information regarding incident of firing vide DD no.16A and another DD no. 18A regarding admission of three injured in the said firing incident in ESI Hospital, he along with Ct. Ramesh reached at the scene of crime after leaving the PS at about 2:10 pm vide DD no. 19A. On reaching the spot i.e. main Ring Road, Near Ganda Nala/drain, PW29 found one Indica car bearing no. DL4SU1942. Ct. Sanej was found already present at the spot. The driver side window glass of the said Indica car was found broken and there was mark of bullet hole on the left side front door of the said car. Blood was lying on the driver seat, rear seat of the said car and on the ground at the spot. Three live cartridges, FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 91 of 130 three empty cartridges, both of 9 MM caliber and one projectile of the bullet i.e. lead were lying on the ground at the spot around the car. Three empty cartridges of 7.65 MM caliber and one projectile of the bullet i.e. lead were found inside the car. After leaving Ct. Sanej at the spot, PW29 along with Ct. Ramesh reached at the ESI Hospital. ASI Mahender of PS Punjabi Bagh met PW29 at the hospital. In the presence of PW29, ASI Mahender Singh recorded the statement of injured Bhupender Singh vide Ex. PW1/A and made his endorsement on the same and prepared a tehrir. Thereafter, PW29 along with ASI Mahender Singh, injured Sunil and Ct. Ramesh reached at the spot and the tehrir was handed over to Ct. Sanej for registration of the FIR. Crime Team arrived at the spot on their call. PW29 got the spot photographed from the Photographer of Crime Team. ASI Layak Ram of PCR was also there at the spot, when PW29 reached the spot second time. ASI Layak Ram of PCR in the presence of ASI Mahender Singh handed over one pistol along with two live cartridges to PW29 stating that the said pistol was handed over to him by one injured, eyewitness namely Sunil which was used by the assailants and remained there inside the said Indica car. PW29 prepared sketch of the said pistol and two live cartridges vide Ex. PW7/B. PW29 measured the pistol FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 92 of 130 and cartridges and the same were seized vide seizure memo already Ex. PW7/C after preparing a pulanda with the help of white cloth and sealing the same with the seal of IS. ASI Mahender handed over three MLCs to PW29 pertaining to injured namely Rajrani, Bhupender and Brahm along with one pulanda, sealed with the seal of MLC ESI Hospital which he had received from the doctor of ESI Hospital and stated to be containing the projectile of the bullet which was taken out from the body of Brahm by the doctor. The said pulanda was taken in police possession vide seizure memo Ex. PW12/B. PW29 along with Ct. Ramesh went to ESI Hospital leaving ASI Mahender, Ct. Sanej and Sunil at the spot where doctor handed over him three pulandas in sealed condition with the seal of MLC ESI Hospital, stated to be containing the clothes the abovesaid three injured and one pulanda stated to be containing the bullet lead found inside the body of Brahm, sealed with the seal of MLC ESI Hospital. All the abovesaid four pulandas along with sample seal were seized by PW29 vide seizure memo Ex. PW29/B.
62. On 31102006, PW29 joined investigation with IO Inspector Gurmit Singh and accused Surender @ Kaira (correctly identified) was apprehended from Bawana bus stand on the basis of a secret information. He was arrested vide arrest memo Ex. FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 93 of 130 PW28/G and his personal search was conducted vide memo Ex. PW28/H. On detailed interrogation, accused Surender @ Kaira gave disclosure statement Ex. PW28/J. Pursuant to his disclosure statement, accused Surender @ Kaira got recovered one Accent car bearing no. 7509 from the fields of accused Anil at village Daryapur. The car was seized vide memo Ex. PW28/L. Accused Surender @ Kaira then pointed out the place of occurrence vide pointing out memo Ex. PW28/K. On 02112006, information was received from Crime Branch that one of the accused of the present case namely Naresh was to be produced before the court of ACMM, Rohini. Accused Naresh (correctly identified) was produced in the court of Ld. ACMM and with the permission of the court, he was formally arrested vide memo Ex. PW28/N. On interrogation, he gave disclosure statement Ex. PW28/M. While in police custody, accused Naresh Kumar led the police party to the place of occurrence and pointed out the place of occurrence vide pointing out memo Ex. PW28/P.
63. On 13112006, PW29 again joined the investigation of the case with Inspector Gurmit Singh. On receipt of secret information, accused Deepak was apprehended from the bus stand of Prahlad Pur. He was arrested vide arrest memo Ex. PW28/Q1 FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 94 of 130 and his personal search was conducted vide personal search memo Ex. PW28/Q2. On interrogation, he gave disclosure statement Ex. PW28/Q3. He pointed out the place of occurrence vide pointing out memo Ex. PW28/Q4. On 07022007, PW29 received a secret information that accused Naveen, wanted in the present case, had visited his village Narela and he could be arrested from there. On receipt of information, PW29 along with HC Labh Singh, Ct. Ramesh, Ct. Snej and Ct. Harjit went to Narela where the secret informer met them and then they along with the secret informer proceeded towards the house of accused Naveen and on the way, the secret informer pointed out towards accused Naveen (correctly identified) in the gali. Accused Naveen was arrested vide arrest memo Ex. PW27/C and his personal search was conducted vide memo Ex. PW27/F. On interrogation, accused Naveen told that he was going to meet accused Sandeep @ Saman at Bahadurgarh bus stand. Accused Naveen then took them to Bahadurgarh bus stand where on his pointing out, accused Sandeep @ Saman (correctly identified) was apprehended. He was arrested vide arrest memo Ex. PW27/D and his personal search was conducted vide memo Ex. PW27/G. On interrogation, accused Naveen and Sandeep told that they had to meet accused Anil at village Kansala, Distt. Rohtak, FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 95 of 130 Haryana. Both of them then took the police team to village Kansala, Distt. Rohtak, Haryana where at their instance accused Anil (correctly identified) was apprehended and arrested vide arrest memo Ex. PW27/E and his personal search was conducted vide memo Ex. PW27/H.
64. On 08022007, Inspector Gurmit Singh interrogated accused Anil, Naveen and Sandeep in detail and they gave disclosure statements Ex. PW28/Q5 to PW28/Q7 respectively. They led the police party to the place of occurrence and on their pointing out, a pointing out memo Ex. PW28/Q8 was prepared. On 16032007, PW29 again joined the investigation with Inspector Gurmit Singh. Accused Dinesh @ Deshi was in judicial custody in Rohini jail in some other case. With the permission of the court, PW29 along with IO visited the Rohini jail and after interrogation, IO arrested accused Dinesh @ Deshi (correctly identified) vide arrest memo Ex. PW28/Q9. He gave disclosure statement Ex. PW28/Q10. On 10042007, PW29 executed the process u/s 82 Cr. P. C. qua accused Satyawan @ Sonu r/o village Daryapur, Sanjay r/o village Mundka and Vijay Sehrawat @ Lamba r/o village Daryapur. PW29 further stated in his examination in chief that they came to know that accused Satyawan @ Sonu was in judicial custody in a case FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 96 of 130 under Arms Act from PS Keshav Puram. PW29 along with Inspector Gurmit Singh and other staff went to Tihar Jail with the permission of the court where after interrogation, accused Satyawan @ Sonu (since PO) was arrested vide arrest memo Ex. PW28/Q11. On interrogation, he gave disclosure statement Ex. PW28/Q12. PW29 identified all the accused persons present in the court. PW29 also identified the Honda City car as Ex. P4; Accent car as Ex. P5 (identity of Accent car was not disputed by Ld. defence counsel); Indica car bearing no. DL4SH1942 as Ex. P1 (identity of Indica car was not disputed by Ld. defence counsel). PW29 also identified pistol as Ex. P11; two covers of the drivers seat and its back and two seat covers of the rear seat and its covers as Ex. P7 to P10; five empty cartridges as Ex. P12 (colly) out of which two live rounds were found with the pistol and three live rounds were found on the ground which were test fired; three empty cartridges Ex. P13 (colly), which were found lying outside the car at the spot; one deformed bullet head Ex. P14 which was found lying on the ground outside the car; three empty cartridges as Ex. P15 (colly) and one deformed bullet Ex. P16 which were found lying inside the Indica car no. DL4SH1942.
65. During crossexamination conducted by Ld. defence FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 97 of 130 counsel, PW29 stated that the base of PCR van was at a distance of about 100 meters from the spot of occurrence. Even at the time when PW29 conducted the investigation, he was not aware as to who all officials were performing duties in the PCR van except ASI Liak Ram. PW29 did not make any inquires from the employees of CNG petrol pump since it was a wide road and the CNG petrol pump was across the road. When PW29 reached at the scene of incident, he did not find any public person or vehicle parked at the spot. However, PW29 volunteered that vehicles were passing nearby the spot. From the spot, he went to the hospital and then returned back to the spot. PW29 further stated in his crossexamination that injured Bhupender and Raj Rani were got admitted in ESI Hospital on 09102006 at 1:30 pm by ASI Liak Ram of PCR. After completing the spot proceedings, PW29 went to hospital where he contacted the doctor and Smt. Rajrani was found unfit for statement. The doctor declared her unfit for statement at about 6:30/7 pm on his separate application. PW29 also stated that during the period between 09.10.2006 to 15.10.2006, he repeatedly submitted the same application before the concerned doctor seeking permission to record the statement of Raj Rani. The cremation ground was at a distance of about 300 yards from the spot and the CNG pump was FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 98 of 130 across the road and it was a ten lane road. PW29 requested 57 passersby to join the investigation but they refused. PW29 did not enquire the neighbours of Raj Rani as the incident dated 08.10.2006 occurred inside the house. PW29 denied the suggestion that he had not made investigation properly as there were inconsistencies in the statements of the witnesses. PW29 further stated in his cross examination that on interrogation, Naveen had disclosed that he was to meet the coaccused Sandeep @ Samman at Bahadurgarh and that Sandeep was waiting for him at Bahadurgarh but this fact was not recorded by way of disclosure statement but the same was recorded in the case diary. PW29 denied the suggestion that he did not record the statement of Raj Rani between 09.10.2006 to 15.10.2006 only for the purpose of giving her an opportunity to deliberate with Bhupender and to provide her chance to falsely implicate the innocent persons. The crime team reached at the spot at around 4.00 pm. PW29 did not remember whether he recorded the statement of the person at whose instance the scaled site plan was prepared. However, he again said that Raj Rani pointed out the positions of the cars to SI Manohar Lal.
66. PW29 further stated in his crossexamination that on 28.10.2006, he left the police station along with IO at around 6.30 FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 99 of 130 am in government Gypsy but he could not recall its number or the name of the driver. Accused Dinesh @ Kalu met them alone on the first floor of the house No. 117, Rajdhani Enclave. Some passers by were requested to join the investigation by the IO but they refused. The disclosure statement of accused Dinesh @ Kalu was recorded while sitting in the Gypsy. PW29 also stated in his cross examination that they remained at village Dariya Pur for about 3045 minutes. They reached back to the police station at about 10.00 pm. IO made arrival entry in DD Register but PW29 was not aware about the DD number. PW29 further stated in his crossexamination that on 31.10.2006, they started from PS at about 7.30 pm. They went to Village Bawana via Ghevra Road, Kanjhawala leading to Bawana bus stand. On that day, they used government Gypsy being driven by a Constable whose name he did not know. PW29 also stated that whenever the official vehicle was used by them an entry to that effect was always made in the log book of the vehicle but usually they do not record the statement of the driver nor they request him to join the police proceedings. Bawana bus stand and surrounding places are thickly populated. IO requested 57 persons to join the arrest proceedings but they declined to do so. No notice was issued to them and thereafter they arrested accused Surender FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 100 of 130 @ Kaira. The disclosure statement of accused Surender @ Kaira was recorded at bus stand Bawana in the Gypsy itself. The fields from where accused Surender @ Kaira got Accent car recovered was situated in the NorthEast side of village Daryapur. There were no tubewells or public persons available in the fields. The fields were situated at a distance of about 2½ kilometers from village Daryapur. PW29 denied the suggestion that accused Surender @ Kaira was forced to sign on blank papers which was conveniently converted into his alleged disclosure statement and alleged seizure memo of Accent car.
67. PW29 also stated in his crossexamination that the accused Naresh was formally arrested in the court premises and his disclosure statement Ex. PW28/M was recorded in the court premises itself. PW29 denied that suggestion that accused Naresh had made no disclosure statement and his signature were obtained on plain papers which were later on converted into his alleged disclosure statement. Accused Naresh took them to the spot of occurrence at about 6 pm on 02112006. PW29 also denied the suggestion that accused Naresh never pointed out the place of occurrence or that memo Ex. PW28/P was a manipulated document. The distance between PS and Narela is about 25 kilometres and FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 101 of 130 they started from PS at about 2:30 pm. Naveen was arrested at 5 pm. PW29 denied the suggestion that he did not carry out a fair investigation and colluded with complainant party for the purpose of falsely implicating the accused persons. PW29 further denied the suggestion that he gave full opportunity to the witnesses to deliberate and to make out a false story for the purpose of falsely roping in the accused persons or that no recovery was effected at the instance of any of the accused persons and the same have been planted upon them.
68. PW29 further stated in his crossexamination that he remained at site for 20 minutes on the date of occurrence of offence at the first visit before leaving to the ESI hospital. PW29 also found the bullets and other exhibits at the site of occurrence before leaving to the ESI hospital. After reaching ESI Hospital, PW29 also tried to know the condition of the injured persons of this case. PW29 remained in the ESI Hospital till 4:30 pm at the first instance. However, PW29 volunteered that he again visited to the ESI hospital after 4:30 pm. PW29 demanded the Crime Team which simultaneously reached the spot when he also reached there. Finger Experts were also present which were in the Crime Team. PW29 also stated in crossexamination that the aforesaid finger print FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 102 of 130 experts and Crime Team adequately and properly and also minutely examined the said Indica car inside and outside and also the spot around the said vehicle on the date of occurrence of offence. PW29 denied the suggestion that he did not show the pistol to the Crime Team and the Finger Experts because it was planted one. PW29 volunteered that the pistol recovered was handed over to ASI Liak Ram of PCR by injured Bhupender Singh stating that it was snatched by injured from the accused Deepak. PW29 also denied the suggestion that the site plan Ex. PW29/A was not prepared at the pointing out of eyewitness Sunil. The rukka was sent from the spot in the presence of PW29. The pistol and the cartridges were not sent along with the rukka from the site. PW29 denied the suggestion that pistol and cartridges were not sent along with the rukka from the spot because they wanted to plant it against the accused in this case. PW29 also denied the suggestion that he never made any DD entry after his arrival on 09102006.
69. PW29 also stated in his crossexamination that the death summary of Brahm Singh along with the other relevant papers were seized by the IO concerned. PW29 denied the suggestion that the doctor concerned informed him as well as the SHO that the cause of the death as septicemia (sepsis) and he was trying to hide this fact. FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 103 of 130 PW29 stated that no document pertaining to accused Sandeep was collected during investigation that he was ever known as Saman. However, he volunteered that the name of Saman @ Sandeep was mentioned in supplementary statement of witness. PW29 further stated in his crossexamination that the name of Sandeep nowhere found in the FIR. PW29 again volunteered that in the FIR, only the name Saman was mentioned. PW29 started interrogating accused Sandeep at about 7.00/ 7.30 pm. He asked the public persons to join the proceedings but none agreed to join. No notice was served on those public persons who refused to join the investigation. PW29 denied the suggestion that accused Deepak was not arrested from the village. PW29 further denied the suggestion that document Ex.PW29/Q1, PW29/Q2, PW29/Q3 & PW29/Q4 were prepared while sitting in the police station. PW29 also denied the suggestion that accused Deepak never pointed out the place of occurrence to them. On 13.11.2006, they returned to the P.S. Punjabi Bagh at about 12 midnight and arrival entry was also made in the P.S. However, PW29 personally did not make his arrival entry but it was made by the IO. PW29 denied the suggestion that on 13.11.2006, he did not leave the police station at all.
70. PW31 HC Mahender Singh, was MHCM at PS Punjabi FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 104 of 130 Bagh on 09102006 and he proved entry no. 3541 dated 09102006 in Register no. 19 vide Ex. PW31/A; entry no. 3586 dated 18102006 of register no. 19 vide Ex. PW31/B; entry no. 3591 dated 20102006 of register no. 19 vide Ex. PW31/C; entry no. 3648 of register no. 19 vide Ex. PW31/D; entry no. 3670 of register no. 19 vide Ex. PW31/E; entry no. 3675 of Register no. 19 vide Ex. PW31/F; entry no. 3776 of register no. 19 vide Ex. PW31/G. PW31 stated that on 18122006, five parcels and three sample seals of Mark IS, ESI hospital SGMH mortuary, Mangolpuri were sent to CFSL, Kolkatta through Ct. Virender vide RC no. 189/21/06 Ex. PW31/K and he also handed over Ct. Virender 8 sealed parcels who took the same to CFSL Kolkatta vide RC no. 190/21/06 Ex. PW31/J and he made entry in register no. 19 vide Ex. PW31/H. PW31 further stated that on 25122006, Ct. Virender handed over the acknowledgement receipts to PW31 and he made entry in register no. 19 vide Ex. PW31/L. On 26062007, PW31 received one plastic sac duly sealed with the seal of CFSL Kolkatta containing the remnants of the parcels and CFSL report and he handed over the CFSL report to SI Ishwar. P31 made entry in register no. 19 vide Ex. PW31/M. PW31 also identified the handwriting and signatures of HC Ranjit on Ex. PW31/N made by FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 105 of 130 HC Ranjit in register no. 19. During crossexamination by Ld. defence counsel, PW31 denied the suggestion that case property/ parcels, seals and sample seals were tempered with in league with IO.
71. PW28 Inspector Gurmeet Singh stated in his examination in chief that on 17.10.2006, he was posted as SHO, PS Punjabi Bagh and on receipt of intimation from St. Stephen's Hospital, vide DD no. 50B that one person namely Brahm, who was injured in the shootout incident on 09.10.2006 had expired, therefore, Section 302 IPC was added in the present FIR. On 18.10.2006, PW28 along with SI Ishwar Singh and other staff reached at St. Stephen's Hospital and got the body of deceased Brahm transferred to Sanjay Gandhi Memorial Hospital for postmortem. PW28 submitted the inquest papers along with a request Ex. PW28A for conducting the postmortem of deceased Brahm to Autopsy Surgeon Dr. Manoj Dhingra. He proved the Form No. 25.35 (1)(B) as Ex. PW28/B. PW28 recorded statements of Tilak Raj and Manish Kumar regarding the identification of the dead body of Brahm vide Ex. PW8/A and PW6/A. PW28 got the postmortem of the body of Brahm conducted and thereafter, the dead body was handed over to the relatives of the deceased, FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 106 of 130 namely Pratap Singh vide memo Ex. PW6/B. After the postmortem, doctor handed over him one jar in sealed condition, stated to be containing one bullet, which was recovered from the body of the deceased during the postmortem, one blood sample in sealed condition along with one sample seal of SGM Hospital which were seized vide memo Ex. PW9/B. On 20.10.2006, PW28 along with SI Ishwar Singh and other staff reached at Maharaja Agrasen Hospital where Sh. J.S. Guleria, Admn. Officer handed over two sealed plastic bottles, stated to be containing one bullet each along with one sample seal of Maharaja Agrasen Hospital. The said bullets were recovered from the body of injured Bhupender Singh. Both the abovesaid bottles along with sample seal were taken into possession vide memo Ex. PW24/A. On 27.10.2006, PW28 along with one injured namely Rajrani, her parents, SI Ishwar Singh and other staff reached at Rohini Courts, where on his application Ex. PW10/A, Ld. Link MM recorded the statement of Rajrani u/s.164 Cr.PC.
72. PW28 further stated in his examination in chief that on 28.10.2006, on receipt of secret information regarding presence of accused Dinesh @ Kalu in a rented accommodation situated at Rajdhani Enclave, PW28 constituted a raiding party, consisting of FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 107 of 130 himself, SI Ishwar, HC Labh Singh and other staff and they all in plain clothes reached at Rajdhani Enclave in his government Gypsy along with informer. They parked the government Gypsy behind the Rajdhani Enclave at a distance of about 300400 meters from the spot i.e. H. No.117, Rajdhani Enclave. From outside House No. 117, accused Dinesh @ Kalu (correctly identified) was apprehended on the pointing out of informer. He was interrogated and arrested vide arrest memo Ex. PW28/B and his personal search was conducted vide memo Ex. PW28/C. PW28 recorded disclosure statement of accused Dinesh @ Kalu vide Ex. PW28/D. Accused Dinesh @ Kalu led the police party to the place of occurrence and pointed out the place of incident vide pointing out memo Ex. PW28/E. Thereafter, they all along with accused Dinesh @ Kalu came back to the PS where eyewitness Rajrani identified the accused Dinesh @ Kalu and her supplementary statement was recorded in this regard. Thereafter, accused Dinesh @ Kalu led the police party to his residence situated at Village Dariya Pur and from there he got recovered one Honda City car bearing no. DL8C T0045 which was found parked outside his residence. The said car was seized vide seizure memo Ex. PW28/F.
73. PW28 also stated in his examination in chief that on FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 108 of 130 31.10.2006, PW28 along with SI Ishwar Singh, HC Labh Singh and other staff, including driver of government Gypsy were present in the area of PS Bawana in civil clothes. There, PW28 received secret information that one of the accused namely Surender @ Kaira was present at Bawana Bus Stand. They immediately conducted a raid and on the pointing out of informer accused Surender @ Kaira (correctly identified) was apprehended from the Bawana Bus Stand at 8.00 PM vide arrest memo Ex. PW28/G and his personal search was conducted vide memo Ex. PW28/H. PW28 recorded disclosure statement of accused Surender @ Kaira vide Ex. PW28/J. Thereafter, accused Surender @ Kaira led the police party to the place of incident and pointed out the place of incident vide pointing out memo Ex. PW28/K. Pursuant to disclosure statement, accused Surender @ Kaira got recovered one black coloured Ascent car bearing no. DL4CS7509 from the fields of another accused Anil which was seized vide seizure memo Ex. PW28/L. On 02.11.2006, an information was received from Anti Extortion Cell, Crime Branch vide DD No.10A that one of the accused of the present case namely Naresh was going to be produced before the Court of Ld. ACMM Rohini. PW28 along with staff was already present at Rohini Courts, as accused Surender @ Kaira was produced before the Rohini FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 109 of 130 Courts on that day. PW28 along with staff reached in the Court of Ld. ACMM Rohini Courts and moved an application before the Ld. ACMM to order to produce the accused before the concerned Court of Sh. Dig Vinay Singh, the then Ld. MM. With the permission of the Court, accused Naresh (correctly identified) was interrogated. PW28 recorded his disclosure statement vide memo Ex. PW28/M. He was formally arrested vide arrest memo Ex. PW28/N. Accused Naresh led the police party to the place of occurrence and pointed out the place of occurrence vide pointing out memo Ex. PW28/P.
74. PW28 further stated in his examination in chief that on 13.11.2006, PW28 along with SI Ishwar Singh and HC Lab Singh and other staff including the driver of government Gypsy were present in the area of Bawana and Prahlad Pur. There, at about 6.30 PM, PW28 received a secret information that one of the accused involved in the present case namely Deepak was present near the Bus Stop of Prahlad Pur. They all along with informer immediately reached at Bus Stop Prahlad Pur and apprehended accused Deepak. He was arrested and his personal search was conducted vide memos respectively Exs. PW28/Q1 & PW28/Q2. PW28 recorded his disclosure statement vide Ex. PW28/Q3. Accused Deepak led the police party to the place of occurrence and FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 110 of 130 pointed out the place of occurrence vide pointing out memo Ex. PW28/Q4. On 05.12.2006, PW28 moved an application before the Court of Ld. Area MM and obtained NBW's against accused Satyawan @ Sonu, Vijay Sehrawat, Sanjay, Anil, Naveen, Sandeep and Dinesh. On 22.12.2006, PW28 along with SI Manohar Lal, SI Ishwar Singh, Rajrani reached the spot and there on the pointing out of SI Ishwar Singh and Rajrani, SI Manohar Lal took the rough notes and the measurements. Later on, he handed over the scaled site plan to PW28. On 18.12.2006, PW28 sent the exhibits to FSL, Kolkata, through Ct. Virender, vide RC Nos.189/21/06 and 190/21/06.
75. PW28 also stated in his examination in chief that he prepared the first chargesheet against accused Naresh, Dinesh @ Kalu, Surender @ Kaira and Deepak after keeping the seven accused in column no. 2. On 07.02.2007, SI Ishwar Singh told PW28 about the arrest of three accused persons involved in this case namely Anil, Naveen and Sandeep @ Saman. On 08.02.2007, PW28 interrogated accused Anil, Naveen and Sandeep and recorded their disclosure statements Ex. PW28/Q5, Ex. PW28/Q6 and Ex. PW28/Q7 respectively. All of them led the police party to the place of occurrence vide pointing out memo Ex. PW28/Q8. On FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 111 of 130 03.03.2007, Inspector Hari Ram Malik from Special Staff informed PW28 that one of his team had apprehended accused Dinesh @ Desi. On 16.03.2007, PW28 visited Rohini Jail, along with SI Ishwar Singh, HC Labh Singh and other staff and interrogated accused Dinesh in the room of Superintendent Jail and formally arrested him vide arrest memo Ex. PW28/Q9. On 17.03.2007, accused Dinesh was produced before the Court of Ld. MM. PW28 interrogated accused Dinesh and recorded his disclosure statement Ex. PW28/Q10. PW28 recorded statement of witnesses and filed supplementary chargesheet against accused Dinesh, Naveen, Anil and Sandeep @ Saman. PW28 stated that he can identify the Honda City car Ex. P5 (identity not disputed by defence counsel). He also identified Ascent car as Ex. P5. PW28 also correctly identified accused Deepak in the court who was arrested by him in the present case on 13.11.2006.
76. During crossexamination by Ld. Defence counsel, PW28 stated that he had taken up the investigation on 18102006 and he mentioned in the case diary of 18102006 that investigation was taken over by him. In response to question that was it correct that on his own he came to conclusion that Smt. Krishna, Smt. Santosh and Smt. Ishwanti were not on the spot and they is why he FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 112 of 130 did not chargesheeted them, PW28 stated that it was incorrect as there was no active role played by them according to the statement, he did not chargesheet them. Accused Dinesh @ Kalu was living in one room on the first floor in that house on rent. PW28 requested the public persons to join the investigation but none agreed. PW28 denied the suggestion that accused Dinesh @ Kalu was lifted from his house at village Daryapur. PW28 denied that he obtained the signatures of accused Dinesh @ Kalu on the blank papers. He further denied that accused Dinesh @ Kalu did not point out the place of incident or that he did not get the car recovered. PW28 denied the suggestion that accused Surender @ Kaira was lifted from his house from village Daryapur. He also denied that accused did not make any disclosure statement or that he did not get recovered the car or that he did not point out the place of occurrence. He also denied that signatures of accused Surender @ Kaira were obtained on blank papers or that the same were later on converted into disclosure statement. PW28 further denied that accused Naresh made no disclosure statement or that his signatures were obtained on the blank papers or that later on conveniently converted into the alleged disclosure statement. PW28 further denied that accused Naresh did not lead the police party to FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 113 of 130 the place of occurrence or that he did not point out the place of occurrence. He further denied that he had not carried out any fair investigation. PW28 also denied the suggestion that no public person was present during the interrogation of accused Sandeep. He also denied that accused had not led them to the place of occurrence as the place of occurrence was already in the his knowledge. PW28 further denied that accused Sandeep did not point out the place of occurrence or that his signatures were obtained on blank papers or that those blank papers were used in recording the disclosure statement as well as the pointing out memo. He denied that accused Anil did not make any disclosure statement or that he obtained signatures of accused Anil on blank papers which were subsequently used for preparation of disclosure statement and other documents.
77. PW25 SI Jagdish Kumar stated that on 01.11.2006, he was posted at AntiExtortion Cell, Crime Branch on receipt of secret information regarding presence of accused Naresh Khapra, wanted in case FIR no. 887/06, PS Punjabi Bagh, near Ghevra Village. On the basis of said information, PW25 constituted a raiding party consisting of himself, ASI Gyanender Singh, HC Jasbir, Ct. Sanjay Kumar, Ct. Mukesh Kumar and Ct. Sunil, and left the office at 10.20 FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 114 of 130 AM, vide DD no.7, in a private vehicle. They reached at Ghevra Turn at about 11.30 am where on the pointing out of secret informer, accused Naresh Khapra (correctly identified) was arrested vide memo Ex PW25/A and his personal search was conducted vide memo Ex. PW25/B when he was waiting for someone on a motorcycle bearing no. DL6SR6974 make Bajaj Pulsar. During his search, one mobile phone make LG of Reliance, model no. LG RD 2030 was also recovered which was taken into police possession vide seizure memo Ex. PW25/C and the said motorcycle was also seized vide seizure memo Ex. PW25/D. Accused was produced before the Court on 02.11.2006 and PW25 informed the DO, PS Punjabi Bagh regarding the arrest of accused Naresh Khapra. As such, IO of the present case reached at Rohini Courts and by the orders of the Court, he received the custody of accused Naresh Khapra. PW25 handed over the said motorcycle and mobile phone to the MHC(M) PS Punjabi Bagh along with copies of seizure memos. PW25 identified the motorcycle make Pulsar bearing no. DL 6 SR 6974 as Ex. P3. During crossexamination by Ld. defence counsel, PW25 stated that HC Jasbir received secret information at about 10:20 am. PW25 further stated that he was driving the maruti WagonR bearing no. HR26M8009 belonging to FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 115 of 130 him and he had reflected this fact in DD no. 7. PW25 further stated that secret informer had pointed out accused Naresh Khapra at Ghevara turn from a distance of about 50 meters. They all were in civil dress and ASI Gyanender and PW15 apprehended the accused. PW25 was not knowing the mobile number which was claimed to be seized from the accused vide seizure memo Ex. PW25/C. PW25 stated that place where the accused was apprehended was a thickly populated area but no public persons who were available there were asked to join the proceedings. PW25 denied the suggestion that accused Naresh Khapra was lifted from his house and thereafter he was falsely shown arrested from village Ghevara or that he had deposed falsely to this effect or that all the seizure memos were prepared while sitting in the PS.
78. PW11 HC Virender Kumar stated that on 18.12.2006, he collected exhibits from MHC(M) PS Punjabi Bagh and deposited the same at CFSL Kolkata vide RC No.189/21 and 190/21. PW5 SI Manohar Lal stated in his examination in chief that on 22.12.2006, he along with SI Ishwar Singh went to Ring Road, near Cremation Ground, Punjabi Bagh, Delhi where Raj Rani was also present. On the pointing out of Raj Rani, he took the measurement of the place of occurrence and took rough notes and prepared the scaled site FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 116 of 130 plan Ex. PW5/A. During crossexamination by Ld. Defence counsel, PW5 denied that scaled site plan was never prepared on the pointing out of Raj Rani. PW5 denied that he never visited the place of occurrence or that Raj Rani did not meet him on the spot or that he did not inspect the scene of crime on the pointing out of Raj Rani. PW5 further denied that he did not prepare any rough notice or that he did not destroy the same.
79. PW32 Dr. N. P. Waghmare, Asstt. Director, Ballistics, FSL Delhi examined pistol of 7.65 calibre marked Ex. B and proved his detailed report Ex. PW32/A. PW32 opined that Ex. B is in normal working order. PW32 also examined eight sealed parcels sent by Deputy Commissioner of Police, West District and proved his detailed report as PW32/B. PW32 also stated that Ex. A is a firearm i.e. regular 9 mm pistol made in USA, capable of chambering and firing 9 mm calibre regular ammunition. PW32 opined that pistol Ex. A is in normal working condition and Ex. cartridges Marked LR1 to LR5 were live ammunition before they were test fired in the laboratory. PW32 in his crossexamination mentioned the individual characteristic marks in Ex. PW32/A and PW32/B. After having gone through the reports Ex. PW32/A and PW32/B, PW32 stated that he did not specify the individual FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 117 of 130 characteristic marks which he observed during microscopic examination. However, PW32 volunteered that he mentioned comparison of firing pin marks and breech face marks. PW32 further stated that scientifically it cannot be find out as to when the firearm was last fired. PW32 also stated that while carrying out the examination under microscope as well as chemical examination, they maintain the worksheets. PW32 denied the suggestion that he did not carry out the examination as deposed by him in his examination in chief. PW33 Smt. Tithi Day stated that on 19.12.2006, she was posted as Junior Scientific Officer, at CFSL Kolkata and she examined parcel no. 1, which found to contain four seat covers of car which were given No. Ex.1a, 1b,1c and 1d. Parcel No.2 on opening found containing one shirt and one baniyan which were given No. Ex.2a and 2b. Parcel No. 3 was found containing one shirt, one baniyan, one pant and same were given Ex. 3a, 3b and 3c. Parcel No. 4 was found containing one chunni was given No. Ex.4. Parcel No.5 was found containing one gauze which was given No. Ex.5. After examination, she proved her detailed report Ex. PW33/A. Ex. 1a, 1b, 1c, 1d, 2a, 2b, 3a, 3b, 3c, 4 and 5 were found positive for human blood. During crossexamination by Ld. Defence counsel, PW33 stated that there was no special mark of FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 118 of 130 identification on the parcels sent to him for examination.
80. It has emerged from the abovediscussed evidence of investigation conducted by the police officers and FSL experts that it were the accused persons who were involved in firing upon Brahm Singh (since deceased), PW1 & PW2. The Ld. Defence counsel argued that the police has not investigated the case fairly and the investigation is defective. Whereas, Ld. APP for State argued that if there is a defective investigation, the accused persons cannot get the benefit of it. It is pertinent to mention here that even if the investigation is defective or faulty, the accused persons cannot be acquitted solely on account of defective or faulty investigation. In State of UP Vs. Hari Mohan and others., AIR 2001 SC 142, it was held that if the investigation is defective in nature, it cannot be made a basis for acquitting accused. In Dhanaj Singh alias Shera and others. Vs. State of Punjab, AIR 2004 SC 1920, the appellants had been convicted for offence punishable u/s 302 r/w section 34 IPC. It was held that accused cannot be acquitted solely on account of defective investigation. To do so, would tantamount to playing into the hands of investigating officer if investigation is designedly defective. I have also found that there are some contradictions in the testimonies of the PWs/ police officials discussed above, yet FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 119 of 130 these contradictions are minor contradictions and do not go to the root or core of this case. In this context, a reliance is placed upon the judgement reported in the case of State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety.
81. Ld. Defence counsel argued that no independent witness was joined in the investigation, therefore, in the absence of independent witness during investigation, the investigation conducted by the police cannot be believed as trustworthy. Whereas, the Ld. APP for the State argued that generally public persons do not come forward to join investigation in such criminal cases. I am of the view that as far as independent witnesses joining the investigation are concerned, they are reluctant to become witnesses of criminal trial. Therefore, law is not that testimony of police officers is absolutely untrustworthy or that it can never be acted upon. It has been held in a catena of judgements of the Hon'ble Supreme Court and Hon'ble High Courts that merely because independent witnesses are not joined in a case, the Prosecution case cannot be thrown out. In such circumstances, no benefit can be given to the accused persons for nonjoining of FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 120 of 130 independent witnesses. In this context, a reliance can be had upon the judgements reported in the case of State of UP Vs. Anil Singh AIR 1988 SC 1998; Ambika Prasad & Anr. Vs. State 2002 (2) Crimes 63 (SC); Dr. Krishna Pal & Anr. Vs. State of UP 1996 (7) SCC 194.
82. It is true that absence of the name of an accused in the FIR is not always indicative of his innocence because there may be some other clinching evidence on record to establish his complicity. Where FIR is shown to have actually been recorded without delay and investigation started on its basis, if any delay is caused in sending the same to the Magistrate which the prosecution fails to explain by furnishing reasonable explanation, ipso facto the same cannot be taken to be a ground for throwing out the prosecution case if the same is otherwise trustworthy upon appreciation of evidence which is found to be credible. In State Vs. Maharaj Singh (2004) 3 Crimes 395 (SC), it was held that delay in lodging the FIR would be material when there is a doubt regarding the prosecution case. Delay is not fatal when the delay in registering the case was due to the ignorance and negligence on the part of the police and the delay in lodging the report before the police has not caused any serious prejudice to the accused nor did it cast any FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 121 of 130 serious doubt on the prosecution case. At best, it can be taken to be an infirmity in investigation. The Hon'ble Supreme Court observed in the case of Ravinder Kumar, 2001 (6) Scale 119 that the attack on prosecution case on the ground of delay in lodging FIR has almost bogged down as stereotyped redundancy in criminal cases. The court stated that law has not fixed any time for lodging the FIR, hence a delayed FIR is not illegal. In the present case, the case was firstly registered u/s 307 IPC and after death of Brahm Singh, Section 302 IPC was added in the FIR. The FIR was registered on the same day of the occurrence of the incident. Meaning thereby, there was no delay in registration of FIR. Further, the accused persons were known to the injured persons, therefore, TIP of the accused persons was not required. Even otherwise, absence of TIP cannot be fatal to the prosecution case. In Harbhajan Singh, 1975 Cri.L.J 1553 (SC), it was held that the absence of a test identification parade would not be necessarily fatal where there were other corroborative circumstances pointing to the guilt of the accused.
83. The prosecution has proved on record that the accused persons were extending continuous threats to PW1 and PW2 that they should not get married and when they took steps for marriage, FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 122 of 130 the accused persons planned and conspired with each other to kill PW1 and PW2. PW1 and PW2 were followed by the accused persons in their cars and motorcycle and stopped Indica car in which Brahm Singh (since deceased), PW1, PW2 and PW7 were travelling and the accused persons started firing as a consequence of which, Brahm Singh, PW1 and PW2 sustained bullet injuries. They were brought to the hospital. Later on, Brahm Singh died. PW1 and PW2 being the eyewitnesses, identified the accused persons. The prosecution case is no doubt based upon the direct evidence and the eyewitnesses are the injured persons i.e. PW1 and PW2. Medical treatment given to Brahm Singh (since deceased), PW1 and PW2 has also proved on record to substantiate the fact that bullet injuries sustained by them were due to firing/ gunshot by accused persons. In State Vs. Virendra Prasad, 2004 CriL.J. 1373 (SC), it was held that as evidence on record clearly established, seven rounds of bullets were fired by accused from very close range which hit the deceased, a police official and the two injured witnesses. It was held that the case was covered by section 300. Therefore, the prosecution has proved its case by way of the ocular evidence coupled with medical and scientific evidence against the accused persons. In Janak Singh FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 123 of 130 2004 Cri L. J. 2533 (SC), it was held that where the evidence of eyewitnesses is supported by medical evidence, it cannot be brushed aside easily. But even where there is some discrepancy between evidence of eyewitness and medical expert, then also, the court may rely on the evidence of eyewitness and record conviction. I have also perused all the aforesaid judgements relied upon by the Ld. Counsel for the accused persons and I have found that the facts and circumstances of the present case are distinguishable from the facts and circumstances of the aforesaid reported judgements.
84. In view of the my aforesaid discussion, I am of the considered opinion that Prosecution has been able to prove its case against the accused persons beyond reasonable doubt. I, therefore, hold all the accused namely Surender @ Kaira, Deepak, Naresh Khapra, Dinesh Kumar @ Kalu, Anil, Sandeep @ Samman, Naveen and Dinesh @ Deshi guilty and convict them u/s 120B/307/302 IPC. Accused Surender @ Kaira, Anil, Naresh Khapra, Deepak are also convicted for the offence u/s 27/54/59 Arms Act.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 30042013 FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 124 of 130 IN THE COURT OF SH. YASHWANT KUMAR: ADDL SESSIONS JUDGE03: NW : ROHINI : DELHI SESSIONS CASE NO. 38/11 FIR No. 887/06 P.S. Punjabi Bagh U/S: 302/307/120B/34 IPC & 25/27/54/59 Arms Act STATE Versus (1) Surender @ Kaira s/o Sh. Pale Ram r/o Vill. & PO Daryapur Kalan, PS Bawana, Delhi (2) Deepak s/o Sh. Sunder Lal R/o Vill & PO Prahladpur, Delhi.
(3) Naresh Khapra s/o Sh. Prem Singh r/o H. No. 61, Gali No. 3, Madan Park, Punjabi Bagh, Delhi (4) Dinesh Kumar @ Kalu s/o Sh. Angrej Singh R/o Vill & PO Daryapur Kalan, PS Bawana, Delhi FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 125 of 130 (5) Anil s/o Sh. Rajender Singh r/o Vill & PO Daryapur Kalan, Delhi (6) Sandeep @ Samman s/o Sh. Azad Singh r/o VPO Gola District, Jhajjar, Haryana.
(7) Naveen s/o Sh. Gopi Chand r/o Pana Paposiyan, Village Narela, Delhi.
(8) Dinesh @ Deshi s/o Sh. Sunder Lal r/o VPO Prahladpur, Delhi Order on Sentence
1. Arguments have been heard from Ld. defence counsel and Ld. APP for State. Ld. defence counsel Sh. R. N. Sharma argued that convicts Surender, Anil, Dinesh @ Kalu, Naresh and Naveen are in J/C since 2006. Convict Surender is aged 30 years and having mother in his family. Convict Naresh is aged 27 years and having mother and one unmarried sister in his family. There is FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 126 of 130 neither any previous criminal record nor any conviction in any criminal matter except the present case. Convict Anil is aged 37 years old and having wife, two daughters and one son in his family. Convict Sandeep is aged 31 years and having mother and brother in his family. Convict Naveen is aged 26 years and having mother in his family. The father of convict Surender, Naveen and Naresh expired during trial of the case. Ld. counsel for the convicts further argued that considering the facts and family circumstances, lenient view may be taken against them.
2 Sh. R. S. Malik, Ld. counsel for convicts Deepak and Dinesh @ Deshi argued that both convicts are real brothers and married persons. Convict Dinesh is aged 28 years and having wife, one son of 6 years and other of 8 years. Convict Deepak is aged 28 years and having wife, one daughter aged 7 years and one son aged two years. Ld. counsel for convicts Deepak and Dinesh has further argued that there is no previous involvement of the convicts in any case except the present one. Prayer has been made for taking lenient view.
3. The Ld. APP for the State has argued that no leniency should be shown to the convicts as they are involved in a heinous crime of murder.
FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 127 of 130
4. Every attempt to murder and murder with conspiracy is a heinous crime but awarding of sentence other than the sentence of death is the general rule now and only 'special reasons', that is to say, special facts and circumstances in a given case, will warrant the passing of the death sentence. Apart from personal implications, it is also a crime against the society. Life imprisonment is the rule and death sentence is an exception.
5. The Supreme Court in Bachan Singh's case AIR 1980 SC 898, has laid down the following guidelines to be applied to the facts of each individual case where the question of imposing of death sentence arises; (i) the extreme penalty of death need not be inflicted except in rarest of rare cases of extreme culpability; (ii) before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the crime; (iii) life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime and (iv) a balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 128 of 130 a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
6. It is the nature and gravity of the crime but not the criminal which are germane for consideration of appropriate punishment in a criminal trial. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victims but also against the society to which the criminal and the victims belong.
7. In my view, present case does not fall within the bracket of rarest of rare cases where collective conscience of the community is so shocked that it expects the court to inflict death penalty. Considering the totality of facts and circumstances, all convicts are sentenced with imprisonment for life u/s 120B/302 IPC with fine of Rs. 8,000/ each, in default of payment of which, they shall undergo SI for one year each. All convicts are further sentenced with RI for ten years u/s 120B/307 IPC with fine of Rs. 5,000/ each, in default of payment of which, they shall undergo six months SI each. Further, the convicts Surender @ Kaira, Anil, Naresh Khapra, Deepak are also sentenced with RI for three years u/s 27 Arms Act with fine of Rs. 2,000/ each, in default of payment of which, they shall undergo three months SI each. All the sentences shall run FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 129 of 130 concurrently. The convicts shall get benefit of Section 428 Cr.P.C. for the period during which, they remained in custody during investigation/trial. Copy of the judgment and order on sentence be given to convicts free of cost. File be consigned to Record Room with liberty to the Prosecution to revive the case file on arrest of accused Vijay Sehrawat @ Lamba, Sanjay and Satyawan @ Sonu who are POs.
(YASHWANT KUMAR) ASJ/NW03/ROHINI/DELHI ANNOUNCED IN OPEN COURT on 28052013 FIR No. 887/06; State Vs. Surender @ Kaira etc. Page 130 of 130