Delhi District Court
State vs . Vinod @ Vicky Etc on 18 July, 2014
SC No.20/12
FIR No.240/11
PS: Palam Village
State Vs. Vinod @ vicky etc
IN THE COURT OF DR. VIJAY KUMAR DAHIYA
ADDL. SESSIONS JUDGE : DWARKA COURTS:
NEW DELHI
In the matter of :
SC No. : 20/12
FIR No. : 240/11
Police Station : Palam Village
Under Section : 302/482/34 IPC
Received on assignment : 4.02.2012
Reserved for orders on : 14.7.2014
Judgment announced on : 18.07.2014 ( convicted )
State Vs. 1. Vinod @ Vicky
S/o Sh. Ramesh Vats
R/o A2, Chander Vihar,
Sector7
Dwarka, New Delhi.
2. Pramod Vats @ Sanshyi
S/o Sh. Ramesh Vats
R/o A2, Chander Vihar,
Sector7
Dwarka, New Delhi.
3. Manoj Kumar
S/o Sh. Ramesh Vats
SC No.20/12 Page 1 of
SC No.20/12
FIR No.240/11
PS: Palam Village
State Vs. Vinod @ vicky etc
R/o A2, Chander Vihar,
Sector7
Dwarka, New Delhi.
J U D G E M E N T
1. Accused has been sent up for trial for the offence punishable u/s 302/482/34 IPC.
2. Brief facts of the prosecution case are like this. On 06.09.2011 at about 5:25 pm, Inspector Naresh Khanka, ATO, PS Palam Village vide DD No. 69B was on patrolling duty in PS Palam Village. At about 10:00 pm, he received information on wireless that husband of the complainant shot dead WZ608, Near Shiv Mandir, Palam Chopal and DD No. 85B dated 06.09.2011 got recorded in this regard. SI Shanti Prakash, DO informed the beat staff on wireless and SI Birender Singh was also informed on phone regarding this incident. Inspector Naresh Khanka alongwith police staff reached WZ608, Badiyal Mohalla at the corner of Shiv Mandir and came to know that injured was taken to Mata Chanan Devi Hospital by his family members. Crime team was informed on wireless set. ASI Ishwar Singh, Crime team incharge alongwth photographer HC Bajrang reached the spot of incident. Inspector Naresh Khanka gave instructions to the police staff to keep guard of the spot of SC No.20/12 Page 2 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc incident. He alongwith SI Birender and HC Rakesh left for Mata Chanan Devi Hospital where Inspector Naresh Khanka came to know that injured Balwan Solanki, S/o Sh. Shish Ram, R/o WZ1104, Palam Village, Delhi was got declared dead by doctors vide MLC No. 3227. Doctors opined the cause of death of the deceased due to gunshot injuries. During inquires from Baljeet Singh, S/o Late Sh. Shish Ram, R/o WZ608, Palam Gaon, Near Shiv Mandir, New Delhi, he stated that he is brother of the deceased and the eye witness of the incident. He told the police that he alongwith his family resides at the above said address. On 06.09.2011 after taking dinner at about 9:30 pm, he alongwith his elder brother was present at the corner of Shiv Mandir Gali. They were exchanging words then one white colour Maruti car came from the side of Harizan Basti and stopped ahead of them. Accused Vinod @ Vicky, who was on the driver seat and his brothers Manoj and Pramod were on the back seat, came out of the car and started quarreling with his deceased brother Balwan Solanki and, thereafter, accused Vinod @ Vicky shot 23 fires on his deceased brother. Thereafter, they all escaped from the spot of incident towards Chutyal, Lodhi Chowk. Sandeep, cousin of the deceased took him to Mata Chanan Devi Hospital in his car where doctor declared him dead. Inspector Naresh Khanka gave instructions to SI Birender Singh to get preserved the dead body of the deceased in DDU Hospital and HC Ghan Shyam, DO got SC No.20/12 Page 3 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc registered the FIR under section 302/34 IPC and 25/27 A.Act on 07.09.2011. Crime team inspected the spot of incident and photographer took the photographs. Inspector prepared the sketch of the spot of incident at the instance of brother of the deceased namely Baljeet Singh and all the exhibits were taken by the police.
3. During investigation, police got recorded the statement of Sandeep Solanki, S/o Sh. Raj Kumar who stated that accused Vinod @ Vicky, Manoj and Pramod came at the corner of Shiv Mandir in white Maruti Car and killed the deceased. After postmortem, dead body of the deceased handed over to his family members and during investigation, Inspector received copy of PCR form. Statement of Const. Shyam Lal also got recorded.
4. On 27.09.2011 vide DD No. 22 B, PS Palam Village, Inspector got information on telephone from ISC, Crime Branch, Chanakya Puri, Delhi that accused Vinod @ Vicky was arrested in FIR No. 249/11 under section 25 Arms Act, PS Crime Branch, Nehru Place, New Delhi and accused Vinod @ Vicky disclosed in his disclosure statement that he had murdered the deceased Balwan Solanki alongwith his two brothers. Thereafter, accused Vinod @ Vicky produced before the court of Ld. ACMM and three days PC remand was taken. Accused Vinod @ Vicky SC No.20/12 Page 4 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc stated that almost two years back, a quarrel has been taken place between Balwan Solanki and them regarding plot No. F642 B, Palam Extension, Sector7, Dwarka and FIR No. 17/09 also got recorded in this regard. Balwan Solanki pressurized them for compromise. On 06.09.2011, deceased Balwan Solanki made a telephone call on his mobile phone and asked him to come to Shiv Mandir and, thereafter, he alongwith his two brothers went to Shiv Mandir, Badiyal Mohalla in Maruti Car No. DL 9CM 0457 where Balwan Solanki alongwith his brother Baljeet Solanki found present there. Thereafter, accused Vinod @ Vicky came out of his car and said to Balwan Solanki that "Chacha main aa gaya" and deceased Balwan Solanki said that I am not your uncle, I am your father. On hearing this, accused Vinod @ Vicky, Pramod and Manoj got furious and started quarreling with Balwan Solanki. Accused Vinod @ Vicky took out his pistol and fired 23 shots upon Balwan Solanki. and, thereafter, they all left the spot of incident. Thereafter, accused persons went to their uncle's house at Mundela Village and took their cousin Monu in their car and went to the house of their friend Joginder Pehalwan in Sapla, Haryana and stayed there for a night.
5. On 07.09.2011, they got prepared one duplicate number plate from a shop in Bahadurgarh. Their cousin Monu wanted to go back to Delhi but accused Vinod @ Vicky did not want to go SC No.20/12 Page 5 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc back Delhi and, thereafter, he got furious and fired upon his foot and left him near government hospital, Buland Sehar, UP. On 26.09.2011, police arrested accused Vinod @ Vicky and prepared the site plan at his instance. He also told the place where he had fired on the foot of his cousin Monu and during investigation from Banarsi Dass Hospital, Buland Sehar, it was found correct that vide MLC No. 27, injured Manjeet @ Monu, S/o Kunwar Pal, R/o Mundela Khurd was admitted. On 09.09.2011, accused Vinod @ Vicky alongwith his brother Pramod stayed in the Fauzi dhaba for 45 days at Sasni, Hathras and, thereafter, they stayed for 23 days in the lodge at Neelkanth, Uttrakhand.
6. On 29.09.2011, Maruti car No. DL 9CE 6934 was got recovered at the instance of accused Vinod @ Vicky. During investigation, owner of the dhaba also identified the accused Vinod @ Vicky by stating that on 09.09.2011, accused Vinod @ Vicky alongwith his brother Pramod came to his dhaba and stayed for 45 days. Sh. Rajender Singh, Manager of the Lodge also identified accused Vinod @ Vicky, who stayed there with another person. On 01.10.2011, PC remand of accused Vinod @ Vicky was taken for two days and during investigation, he told that he had prepared the forged number plates of his car. On 06.10.2011, Inspector Naresh Khanka got transferred and investigation was handed over to Inspector Mahender Singh. Statements of SC No.20/12 Page 6 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc witnesses got recorded under section 161 Cr.PC. Supplementary charge sheet was filed qua other accused persons.
7. After supplying copy of the charge sheet to the accused by Ld. Metropolitan Magistrate, case was committed to the Session and charge under section 302/482/34 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.
8. Prosecution was called upon to adduce evidence to establish its case as per law. Prosecution has tendered 50 witnesses in all in support of its case ( Two witnesses namely H C Bajrang Singh and Sh. Karnal Singh were given same serial as PW10 and PW10 A respectively) namely:
PW1 Constable Hardeep Singh
PW2 Sh. Baljeet Singh
PW3 H C Rattan Singh
PW4 Dr. Rakesh Prashad Shahi
PW5 H. C Ghan Shyam
PW6 Smt. Seema w/o sh. Baljeet Singh
PW7 Smt. Rekha Solanki
PW8 Sh. Sandeep Solanki
PW9 Ct. Brij Bhushan
SC No.20/12 Page 7 of
SC No.20/12
FIR No.240/11
PS: Palam Village
State Vs. Vinod @ vicky etc
PW10 H C Bajrang Singh
PW10A PW10A Sh. Karnail Singh s/o Sh. Chand Ram PW11 Sh. Bhagat Singh PW12 Sh. Naveen Kumar s/o Sh. Jai Bhagwan PW13 Constable Kartar Singh PW14 Sh. Pawan Singh Nodal Officer PW15 Sh. Babu Lal LDC, Trnasport Authority PW16 Ct. Pushpak PW17 Sh. Pokhpal Singh s/o Sh. Sewa Ram.
PW18 Sh. Sarvan Kumar sharma s/o Sh. Som
Dutt Sharma
PW19 Dr. Yogesh Tyagi, Assistant Professor,
Forensic Medicine PGI
PW20 Ct. Dharmender
PW21 ASI Ishwar Singh
PW22 ASI Hawa Singh
PW23 Dr. Rajeev Verma ,EMO Babu Banarsi
Dass Govt. hospital.
PW24 Ct. Sandeep
PW25 Ct. Shyam Pal
PW26 SI Vijender Singh
PW27 SI Jagdish Singh
PW28 SI Birender
PW29 H C Rakesh
PW30 SI Shanti Prakash
SC No.20/12 Page 8 of
SC No.20/12
FIR No.240/11
PS: Palam Village
State Vs. Vinod @ vicky etc
PW31 H C Satpal
PW32 Sh. Rajender Singh Chauhan s/o Sh.
Balbir Singh
PW33 Sh. Deepak, Assistant Ahlmad /LDC
PW34 H C Hanuman
PW35 Inspector Naresh Khanka
PW36 H C Rakesh
PW37 H C Nihal Singh
PW38 H C Vishram
PW39 SI Shanti Prakash
PW40 Ct. Satya Pal
PW41 Sh. Pradeep Kumar
PW42 Ct. Yogesh Kumar
PW43 Ct. Subhash Chand
PW44 Ct. Ranvir
PW45 Inspector Mahender Singh SHO P S
Aman Vihar
PW46 Ct. Shantnu
PW47 Dr. N.P Waghmare, Asst. Director
Ballistic FSL Rohini
PW48 H C Jag Narain
PW49 Inspector Satyavir , SHO
DETAILS OF DOCUMENTS EXHIBITED BY THE WITNESSES Exhibit No. Date of Details of exhibited documents.
SC No.20/12 Page 9 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc Statement PW1 : Constable Hardeep Singh Ex.PW1/A 25.11.2011 Site plan
PW2 Sh. Baljeet Singh S/o Late sh. Shish Ram Ex.PW2/A 6.09.2011 Statement of pw 2 Baljeet Singh Ex.PW2/B 7.9.2011 Seizure memo of bullet Ex.PW2/C 07.09.2011 Pointing out memo of place of occurrence PW3: H C Rattan Singh (MHCM) Ex.PW3/A 7.9.2011 Copy of relevant entry made at sl.no. 1078 in register no. 19 qua deposit of 6 sealed parcel alongwith sample seal.
Ex.PW3/B 8.9.2011 Copy of relevant entry made at sl.no. 1080 in register no. 19 qua one sealed parcel alongwith sample seal Ex.PW3/C 29.09.2011 Copy of relevant entry made at sl.
no. 1103 in register no. 19 qua
deposit of maruti car bearing no.
DL 9CE 6934
Ex.PW3/D 23.11.2011 Copy of relevant entry made at
SC No.20/12 Page 10 of
SC No.20/12
FIR No.240/11
PS: Palam Village
State Vs. Vinod @ vicky etc
sl.no. 1211 in register no. 19 qua
deposit of one number plate
bearing no. DL 9CM 0457
Ex.PW3/E 13.10.2011 Copy of relevant entry made in
register no. 19 qua sending 6
sealed parcel alongwith two
sample seals vide RC no.68/21
Ex.PW3/F 14.10.2011 Copy of relevant entry made in
register no. 19 qua sending 3
sealed parcel alongwith sample
seal vide RC no.70/21
Ex.PW3/G & 13.10.2011 & Acknowledgments regarding Ex.PW3/H 14.10.2011. deposing of exhibits in FSL.
PW4 Dr. Rakesh Prashad Shahi Ex. PW4/A 06.09.2011 MLC of Balwan Solanki PW5: H C Ghanshyam Ex.PW5/A 07.09.2011 Copy of FIR no. 240/11 Ex.PW5/B 07.09.2011 Endorsement on rukka Ex.PW5/C 6/7/9/2011 DD No.7 A Ex.PW5/D 6/7/2011 DD No. 8 PW6: Smt. Seema w/o Sh. Baljit Singh Ex.PW6/DA 7.9.2011 Statement u/s 161 of PW6 PW7 : Smt. Rekha Solanki Ex.PW7/DA 7.09.2011 Statement u/s 161 cr.pc of Ex.PW7/DX 07.09.2011 Statement u/s 161 cr.pc of SC No.20/12 Page 11 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc PW8: Sandeep Solanki Ex.PW8/DA 07.09.2011 Statement u/s 161 of PW 8 PW9 : Ct. Brij Bhushan No Exhibits PW10: H C Bajrang Singh EX.PW10/A1 to 6.09.2011 Positive photograph of place of A11 occurrence.
EX.PW10/B1 to 6.9.2011 Negative photograph of place of
B11 occurrence
PW10: Sh. Karnail Singh
Ex.PW10/A 07.09.2011 Identification memo of dead body
PW11: Sh. Bhagat Singh s/o Late Sh. Sheesh Ram Ex.PW11/A 07.09.2011 Identification memo of dead body Ex.PW11/B 07.09.2011 Handing over memo of dead body of deceased.
PW12 : Sh. Naveen Kumar s/o Sh. Jai Bhagwan No Exhibits PW13 : Ct. Kartar Singh No Exhibits PW14 : Sh.Pawan Singh, Nodal Officer Ex.PW14/A Nil Photo copy of customer application form alongwith I D proof of mobile connection no.9911074656 SC No.20/12 Page 12 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc Ex.PW14/B 01.9.11 to Call details of mobile phone number 30.9.2011 9911074656 Ex.PW14/C Nil Photo copy of customer application form alongwith I D proof of mobile connection no.9891787703 Ex.PW14/D 01.9.11 to Call details of mobile phone number 30.9.2011 9891787703 EX.PW14/E Certificate u/s 65 Indian Evidence Act01.9.11 to 30.9.2011 Ex. PW14/F 6.9.2011 Location of mobile no.9891787703 and 9911074656 on 6.9.2011 at 21.45 and 21.53 hours PW15: Sh. Babu Lal Ex.PW15/A 26.4.2011 Computerized copy of record qua vevicle no. DL 9CM 0457 qua change of transfer of owner EX.PW15/B 01.02.2013 Certificate issued by S P Singh MLO PW16: Ct. Pushpak Ex.PW16A 6/07.9.2014 DD No.85 B Ex.P1 ,Ex.P2 Empty bullet Ex P3 Plastic container PW17 : Pokhpal Singh s/o Sh. Sewa Ram Ex.PW17/DA 29.09.2011 Statement u/s 161 cr.pc of PW17 PW18 : Sh.Sarvan Kumar Sharma Ex.PW18/A 29.09.2011 Seizure memo of SC No.20/12 Page 13 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc photo copy of hotel entry register PW19: Dr. Yogesh Tyagi, Asst. professor Ex.PW19/A 07.09.2011 Postmortem report PW20: Ct. Dharmender No exhibits PW21: ASI Ishwar Singh Ex.PW21/A 06.09.2011 Crime team report.
PW22 ASI Hawa Singh No exhibits PW23: Dr. Rajeev Verma Ex.Pw23/A 09/07/11 MLC of Manjeet s/o Kanwar Pal Ex.PW23/B 07.09.2011 Admission certificate of injured Manjeet PW24: Ct. Sandeep No exhibits.
PW25: Ct. Shyam Pal Ex.PW25/A 6.09.2011 PCR Form of call made at 100 PW26: SI Vijender Singh Ex.PW26/A 26.09.2011 Copy of FIR no. 249/11 PW27 : SI Jagdish Singh Ex.PW27/A 12.01.2009 Copy of FIR 17/09 SC No.20/12 Page 14 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc PW28: SI Birender Ex.PW28/A 7.09.2011 Seizure memo of cloth of deceased PW29: H C Rakesh Ex.PW29/A 27.9.2011 Arrest memo of accused Vinod Ex.PW29/B 27.09.2011 Disclosure statement of Vinod Ex.PW29/C 28.9.2011 Arrest memo of accused Manjeet @ Monu Ex.PW29/D 29.9.2011 Seizure memo of maruti car no DL 9CE6934 PW30: SI Shanti Prakash Ex.PW30/A 6.09.2011 DD No. 85 B Ex.PW30/B 06.09.2011 DD No. 69B PW31: H C Satpal Ex.PW31/A 27.09.2011 DD No. 22B PW32: Sh. Rajender Singh Ex.PW32/A 30.09.2011 Seizure memo of photo copy of visitors book Ex.PW32/B 30.09.2011 photo copy of visitors book PW33: Sh. Deepak Ex.PW33/A 26.9.2011 Sketch of country made pistol and cartridges.
Ex.PW33/B 26.09.2011 Seizure memo of country made SC No.20/12 Page 15 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc pistol and cartridges. PW34: H C Hanuman Ex.PW34/A 7.09.2011 Seizure memo of blood lifted with cotton from the spot Ex.PW34/B 07.09.2011 Seizure memo of blood stain concrete and earth control Ex.PW34/C 7.09.2011 Sketch of empty cartridges Ex.PW34/D 7.09.2011 Seizure memo of empty cartridges Ex.PW34/E 07.09.211 Seizure memo of sealed parcel taken from doctor with sample seal PW35: Inspector Naresh Khanka Ex.PW35/A 7.09.2011 Rukka Ex.PW35/B 07.09.2011 Site plan of the spot Ex.P1A 6/7.09.2011 Plastic jar EX.P2A 6/7.09.2011 Two empty cartridges Ex.P4 Bullet lead Ex.P5 Transparent plastic jar Ex.P6 Brown gauz cloth piece Ex.P7 Blood stained concrete road Ex.P8 One fired bullet lead. PW36: H C Rakesh Ex.PW36/A 08.06.12 Arrest memo of accused Parmod Ex.PW36/B 08.06.2011 Kalandra u/s 41.1 (c) Cr.PC qua SC No.20/12 Page 16 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc arrest of accused Parmod. PW37: H C Nihal Singh Ex.PW37/A 13.6.2012 Arrest memo of accused Parmod in FIR no. 240/11 Ex.PW37/B 13.6.2012 Disclosure statement of Parmod Ex.PW37/C 15.6.2012 Pointed out memo of place of occurrence by accused Parmod Ex.PW37/D 7.07.2012 Arrest memo of accused Manoj EX.PW37/E 7.07.2012 Personal search of accused Manoj Ex.PW37/F 7.07.2012 Disclosure statement of Manoj Ex.PW37/G 07.07.2012 Pointed out memo of place of occurrence by accused Manoj Ex.PW37/DA 13.6.12 Statement of pw 37 u/s 161 cr.pc Ex.PW37/DB 7.7.2012 Statement of PW 37 u/s 161 cr.p.c PW38: H C Vishram Ex.PW38/A 09.06.2012 DD no.17 qua apprehension of accused Parmod PW39: SI Shanti Prakash Ex.PW39/A 06.09.2011 DD No.69 B qua departure of inspector Naresh Khanka Ex.PW39/B 06.09.2011 DD No.85 regarding assault by fire shot Ex.PW39/C 06.09.2011 DD No.87 qua admission of injured SC No.20/12 Page 17 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc (deceased) as brought dead PW40: H C Rakesh No exhibits PW41: Sh.Pardeep Kumar Ex.PW41/A 08.06.12 DD no.35 A PW42: Ct. Yogesh No Exhibits. PW43: Ct. Subhash Chand Ex.PW43/A 29.9.2011 Seizure memo of car maruti 800 no DL 9CE 6934 PW44: Ct. Ranvir No exhibits PW45: Inspector Mahender Singh No exhibits PW46: Ct. Shantnu no exhibits SC No.20/12 Page 18 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc PW47: Dr. NP Waghmare Ex.PW47/A 13.02.12 Ballastic FSL report of case property Ex.PW47/X 18.5.2012 FSL report prepared by Dr. Imrana PW48: H C Jag Narain Ex.PW48/A 27.09.2011 Entry made in register no. 19 qua deposit of cloth parcel alongwith FSL form Ex.PW48/B 30.09.2011 Copy of RC No. 460/21 /11 vide which MHCM sent the sealed parcel alongwith FSL form to FSL Rohini Ex.PW48/C 30.9.2011 Copy of Acknowledgment of deposit of parcel in FSL. PW49: Inspector Satyavir Ex.PW49/A 7.11.2011 Seizure memo of number plate of maruti 800 bearing no. DL 9CE 6934 Ex.P49/1 and Number plates of maruti 800 P49/2 bearing no. DL 9CE 6934
9. PW1 is Const. Hardeep Singh, Assistant Draftsman, Maping Section who has deposed that on 25.11.2011 he went to the spot of incident alongwith Inspector Satyabir where complainant Baljeet met them and on his instance took rough notes and measurement and prepared scaled site plan Ex PW SC No.20/12 Page 19 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc 1/A on 29.11.2011. He handed over the same to IO. In cross examination he admitted that he had taken measurements with measuring tape and width of gali is 2 meter 35 cm but did not took the signatures of complainant Baljeet and IO on rough notes.
10. PW2 is complainant Baljeet Singh who deposed that on 06.06.2011 when he was talking to his brother Balwan Singh since deceased at the corner of Shiv Mandir Gali, one white colour Maruti Car came there and from the car accused persons namely Vinod @ Vicky, Pramod and Manoj got down. They started quarreling with his brother and later accused Vinod @ Vicky fired three shots towards his brother due to which he fell down and accused persons ran away from the spot. Later, he shifted his brother to Mata Chanan Devi Hospital where doctors declared him brought dead. In the meantime, police reached the hospital, recorded his statement Ex PW 2/A and took him to the spot of incident and seized the bullet vide memo Ex PW 2/B. He deposed that later he came to know that accused Vinod @ Vicky has been arrested but he did not remember the exact month of arrest. He was cross examined by Ld. State counsel wherein he deposed that the correct date of incident is 06.09.2011 and on 27.09.2011 accused had pointed out the place of occurrence vide Ex PW 2/C. Thereafter, on 25.11.2011 one draftsman has noted down SC No.20/12 Page 20 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc something at his instance.
11. In his crossexamination by Ld. Defence counsel he admitted the fact that his house is situated at a distance of 15 ft. from the spot. He was not having his mobile number at that time but his brother was having the same. He received a call and started talking to that person. He admitted that he did not see the initial number of the Maruti Car but the same has come from Harijan Colony, Shiv Mandir Wali Gali. When the car stopped half of its portion was in gali and front half was in Chowk. There was talk between his brother and accused persons and then a scuffle had taken place between them, during which accused Pramod and Manoj caught hold of his brother and after that firing was opened twice on his brother by accused Vinod @ Vicky. His brother received injuries on his knee and chest and fell down. After this incident he raised alarm but no public person came for help, except his cousin, his wife and wife of his brother since deceased who lifted the deceased in the car of his cousin brother and took him to Mata Chanan Devi Hospital. While taking his brother to hospital, he became unconscious by that time. His brother was made to lie on the floor of the van as the seats of the van has been removed for carrying school children. Accused Vinod @ Vicky was standing with a revolver in his hand at a distance of 2 to 2 ½ feet from him . He did not got any chance of holding the hand of SC No.20/12 Page 21 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc accused Vinod and stop him from firing. After this incident, he did not try to apprehend Vinod or tried to chase their car as all this incident happened in a spur of moment. He preferred to attend his injured brother. The distance between the spot of incident and Mata Chanan Hospital is 78 Kms. His bhabhi informed the police about the incident. He denied the submission of giving a call to accused Vinod @ Vicky or having any conversation with him or that accused Vinod rang him back as to why he had called him. He admitted that he did not tell the name of person who had killed his brother to the doctor. He denied the suggestion that he was not present at the spot or has not seen the accused Vicky firing at his brother. He denied the suggestion that his brother was assaulted by some unknown person or that he came out of the house only when there was hue and cry and saw that his brother was lying in the pool of blood.
12. PW3 HC Rattan Singh has deposed that on 7.9.2011, 8.9.2011, 29.9.2011, 23.9.2011 IO / Inspector Naresh Khanka had deposited with him six sealed parcels on different dates along with sample seal including One Maruti car no DL 9CE 6934 with one number plate bearing registration no. DL9C0457 by Inspector Satyabir Singh, which were deposited vide Ex PW 3/A, Ex PW 3/B, Ex PW 3/C and Ex PW 3/D respectively. On 13.11.2011, on the directions of SHO he sent this sealed parcel SC No.20/12 Page 22 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc to FSL through constable Brij Bhushan vide RC No. 68/21( Ex PW 3/E). On 14.11.2011 on the directions of IO he sent three sealed parcels to FSL through constable Brij Bhushan vide road certificate no. 70/21 (Ex PW 3/F) and after returning constable Brij Bhushan hand handedover him Acknowledgment Ex PW 3/G and Ex PW 3/H.
13. PW4 Dr. Rakesh Prasad Shahi has deposed that on 6.9.2011 deceased Balwan Solanki was brought to the hospital and he was declared brought dead in terms of MLC Ex PW 4/A.
14. PW5 HC Ghanshyam has deposed that on the intervening night of 6/7 September 2011 at about 2.50 a.m. He received rukka through HC Rakesh and he recorded FIR No. 240/11( Ex PW 5/A) and made his endorsement Ex PW 5/B and he started recording FIR vide DD No 7 and concluded the same vide DD No. 8(Ex PW 5/D).
15. PW6 is Smt. Seema, sister in law of the deceased. Her testimony will be discussed in later part of the judgment.
16. PW7 Smt. Rekha Solanki, wife of the deceased, her testimony will also be discussed in the later part of the judgment.
17. PW 8 Sh Sandeep Solanki is also relative of deceased and his SC No.20/12 Page 23 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc testimony will also be also discussed in the later part of judgment.
18. PW9 Ct. Brij Bhushan has deposed that on 13.10.2011 on the directions of IO, MHC(M) handed over to him five sealed parcels, which he got deposited with the FSL Rohini on the respective days respectively.
19.PW10 HC Bajrang Singh has deposed that on 6.9.2011 he along with incharge Crime Team ASI Ishwar Singh , HC Ram Prakash, Driver and constable Yudhvir went to the spot of accident , where IO along with staff was found present and on the directions of Incharge crime team he took 11 photographs . Photographs are Ex P.W 10/A1 and A11 and their negatives are Ex PW 10/B1B11.
20.PW10A Shri Karnail Singh, cousin brother of deceased, has deposed that on 7.9.2011 he had identified the dead body vide memo Ex PW 10/A.
21. PW11 Sh Bhagat Singh, brother of deceased has deposed that on 7.9.2011 he had identified the dead body of deceased vide memo Ex PW 11/A and the dead body was handed over to him vide memo Ex PW 11/B. SC No.20/12 Page 24 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc
22. PW12 Sh Naveen Kumar has deposed that he was working as mechanic at the shop of Ravi at Bahadurgarh. In the year of 2011 one person came in Maruti 800 and asked him that he was having number plates. He prepared number plate and handed over the same to accused Vinod @ Vicky. In a leading question put to him during the examination he stated that he cannot tell whether he had stated to the police that the said number plate was DL 9CE 6934, In the cross examination he could not tell whether the police came to the shop with the accused. He denied the suggestion that he did not prepare the number plate and affixed the same on the car.
23.PW13 Constable Kartar Singh has deposed that on 12.09.2011 he collected the PCR form from Police headquarter and handed over the same to the IO.
24.PW14 Sh Pawan Singh, Nodel Officer, Idea Cellular Ltd. Proved the customer application form along with ID proof in respect of mobile No. 9911074656 owned by Balwan Singh /o Sheesh Ram R/o WZ 1104, Badial Mohalla vide Ex PW 14/A and Ex PW 14/C. He also proved customer application form of accused Vinod Kumar along with ID Proof and call details of mobile no. 9891787703, in terms of Ex PW. 14/C and Ex PW14/D. He has also proved certificate U/S 65B of Indian Evidence Act 1872. The said certificate is Ex PW 14/E.He proved the cell ID SC No.20/12 Page 25 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc chart of both these mobile phones i.e 9911074656 and 9891787703 vide Ex.PW14/A & Ex.PW14/C respectively.
25. PW15 Sh Babu Lal LDC Transport Authority SW Zone, Palam has proved original report of registration of vehicle i.e. Maruti car 800 bearing no. DL9CM0457 vide Ex PW15/A. He has also proved the certificate U/S 65 B of the Indian Evidence Act vide is Ex PW 15/B.
26. PW16 Constable Pushpak has deposed that on the intervening night 6/792011 at about 10 p .m, He was on emergency duty from 8pm to 8am along with SI Birender Singh. He had got an information of recording DD no. 85B ( Ex PW16/A ) to the effect that husband of the caller had been shot. He along with SI went to the spot and found the SHO there along with staff. By that time injured had already been shifted to hospital, where he was declared brought dead. Blood smeared shirt of the deceased was seized by IO and sealed in a pullanda. The dead body of the deceased was preserved in mortuary of DDU. After postmortem the dead body was handed over to his relatives. He also identified the TShirt Ex P1 and torn parcel cloths Ex P2 which were seized by the IO after taking from Mata Chanan Devi Hospital. A leading question was allowed to put to the witness whether two empty bullets of the cartridge were also found lying at the spot or not. Sh Baljeet Singh SC No.20/12 Page 26 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc brother of the deceased was found in Mata Chanan Devi Hospital. The empty cartridges were identified by this witness as Ex P1 and P2 and plastic container Ex P3.
27.In crossexamination this witness admitted that they reached at the spot at about 10.10 p.m. He cannot tell how many other police officials in addition to SHO were present at the spot. The distance between empty cartridges which were lying at the spot was about 4 feet approximately. He had not got recorded the number of the empty cartridges in his statement. He cannot say whether the shirt was removed by doctor from body of deceased when it was produced by doctor or not. He did not know to whom the doctor handed over the shirt of deceased and who prepared pullanda of the shirt. The shirt was carefully checked before converting the same into a pullanda by him and SI Birender. There was no exit mark on the shirt of its back side. There was only one entry point on the shirt which has been marked as H3. This procedure was completed within 1 ½ hours. They left Mata Chanan Devi Hospital with the dead body of deceased for depositing the same in mortuary in DDU hospital at about 12.30/12.40 a.m. IO had not reached Mata Chanan Devi Hospital in their presence till they left with dead body. No writing work except seizure memo of shirt of deceased was prepared in his presence. No statement of any person was written by SHO in SC No.20/12 Page 27 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc his presence. He did not know in whose custody the sealed parcel of shirt remained after it was handed over by the doctor. He denied the suggestion that he has wrongly identified the empty cartridges.
28. PW 17 Sh. Pokhpal Singh has turned hostile and in cross by State counsel, he has denied that Inspector recorded his statement on 29. 9.2011 in which he has stated that Constable Subhash Chand from Rohtak Police station alongwith accused Vinod @ Vicky came to his village near water tank and in his presence accused Vinod @ Vicky pointed out towards a maruti car bearing no. DL 9CE6934 which was parked near Jhor and same was taken into possession. He admitted his signatures on document Ex. PW17/ DB but he voluntarily stated that his signatures were taken on blank paper by the police. He also failed to identify accused Vinod @ Vicky.
29. PW18 is Sh. Sarvan Kumar Sharma has deposed that on 29.11.2011 Inspector Naresh Pal alongwith 23 police officials came from Delhi to his hotel Sahil Palace where he was working as a Manager at that time and he can identify the accused by face but he could not recollect his name . He identified the accused Vinod which was brought to him by the police. The police had inquired about stay of accused Vinod @ SC No.20/12 Page 28 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc Vicky in his hotel. He handed over photo copy of visitor book containing entry of stay of accused Vinod @ Vicky in his hotel which was seized vide Ex. PW18/A. In cross , he denied suggestion that accused Vinod @ Vicky had not stayed in his hotel or that he was instructed by the police officials who have brought the accused Vinod to his hotel to identify him. The details in register (Ex.PW18/A) was filled in by accused Vinod in his own handwriting.
30. PW19 is Dr. Yogesh Tyagi ,Assistant professor , Forensic Medicine, PGI , RML hospital has deposed that on 7.9.2011, he was posted as Junior Specialist in DDU hospital. He conducted postmortem on the dead body of deceased Balwan Solanki in terms of Ex.PW19/A. The cause of death was opined by him as shock of fire arm injury over the chest. In cross, he admitted that he has not received site plan alongwith inquest paper from the IO at the time of conducting postmortem. He stated that fire arm probably shot from a distance of more than 6 meters. However, exact distance is the expertise of forensic ballistic because it depends on the fire arm weapon used and force of the fire arm projectile depends on the fire range of weapon. The force of the projectile not always depend from the distance from the body, from where the weapon was fired and it was shot. The bullet was recovered from the body so, there is no question of splinter injury on the SC No.20/12 Page 29 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc other side standing beside the deceased. Only one bullet was recovered from the body of deceased and there were two fire arm injuries present on the body of deceased and second bullet was not recovered from the body of deceased. There was single entry wound on the body of the deceased in both the injuries , mentioned in postmortem report. He denied the suggestion that the by standers with the deceased who were in the firing range could have sustained the injury by the firing from a distance range.
31. PW20 is Constable Dharmender who has deposed that on 7.9.2011 he was posted at P S Palam Village and duty officer had handed over him three envelope containing copy of FIR to deliver the same at the residence of Senior police officer and at the residence of concerned ld. MM, Joint CP and DCP South West.
32. PW21 is ASI Ishwar Singh who has deposed that on 6.9.2011, he was posted as Incharge Crime team South West. On that day, at about 10.15 p.m, on receipt of information from control room regarding firing in Palam Village, he alongwith H. Ct. Bajrang, Constable Yudhveer and H. Ct. Ram Prakash reached the spot. He noticed blood at 23 places near Shiv Mandir and two empty cases of 9 m.m cartridge lying there. He inspected the site and H. Ct. Bajrang took photographs of SC No.20/12 Page 30 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc the spot of incident. The injured was already shifted to the hospital. He remained there till 11.30 p.m. He prepared his report ( Ex.PW21/A) and handed over to the IO at the spot.
33. In cross examination, he admitted that when he reached the spot, SI Virender was present there. Inspector Khanka reached within few minutes after his arrival. He did not know know what proceedings done by Inspector Naresh Khanka at the spot . Empty cases were lying at a distance of 2/3 feet from the blood spot. He had not seen any empty lead at the crime scene. The distance from the outer door of H.No. 608 to the place of occurrence is about 10 ft. He did not know whether brother of the deceased came to the spot in his presence or not .
34. PW22 is ASI Hawa Singh who has deposed that on the intervening night of 6/ 7.09.2011 , he was on duty on Zebra
79. At about 10 p.m , he received an information regarding firing upon the husband of the caller at H. No.804, Badiyal Mohalla, Near Shiv Mandir, Palam Village . He reached the spot and found that injured Balwan Solanki was shot. He has been shifted to Mata Chanan Devi Hospital . Blood was lying on the road . Two empty cartridges were also lying there and local police came there and took over investigation . Thereafter, he left the spot. During cross , he has deposed that SC No.20/12 Page 31 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc SI Virender had reached at the spot simultaneously when he reached. He did not notice whether SHO and SI Virender left the spot because he left the spot just after arrival of the SHO at the spot. He did not notice anything else except blood and empty cartridges.
35.PW23 Dr. Rajeev Verma, EMO, Babu Banarsi Dass Government hospital has deposed that on 7.9.2011 he examined Manjeet s/o Kanwar Pal at about 9.25 p.m in the said hospital. He brought the original register in which entry of said Manjeet Singh has been made in terms of Ex.PW23/A. He proved the original admission certificate of the injured in the hospital vide Ex. PW23/B. The injured had left the hospital of his own on 8.9.2011 at about 5.30 p.m. The injured was referred to Higher Medical Center by Dr. Sachin Kumar, EMO of the hospital vide his endorsement Ex.PW23/B.
36.PW24 is Const. Sandeep who has deposed that he joined the investigation on 28.9.2011 alongwith Inspector Subhash Chand, PSI Chandan Singh, H C Rakesh, H C Sanjeev and accused Vinod @ Vicky. They left Delhi for Bulland Shehar in a Innova car and after completion of investigation on that day, accused Vinod @ Vicky was lodged in police station Kotwali, Bulland Shehar in the immediate custody of H C Sanjeev and Rakesh . On 29.9.2011, accused Vinod @ Vicky was taken from SC No.20/12 Page 32 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc P S Kotwali from the custody of H C Sanjeev and Rakesh and joined the investigation. They went to Nangla Kira, where one constable Subhash Chand was found present and joined in the investigation. After entering into the village, accused Vinod @ Vicky took them towards the village pond. He got recovered a white maruti car bearing no. DL 9 C E 6934 and disclosed that he had used the said car in the commission of the offence in the present case. He alongwith his brother Parmod had fled away from the spot. He had come to the village and left the said vehicle there. Original number of the said vehicle is DL 9CM 0457 and the accused had got prepared a fake number plate from Bahadurgarh. IO prepared rough site plan of the place from where , the accused got recovered the said car and seized the said car. IO recorded statement of the persons present there. Thereafter, the police party alongwith accused went to PP Daulat Pur where I.O took photographs of the car . The said car was cleaned and brought by PW24 to Delhi and made his arrival entry vide DD no. 26 A in P S Palam Village. IO had recorded his statement on 30.9.2011 after arrival in Delhi.
37. In cross, IO had made an arrival entry in connection with investigation of this case on 28.9.2011 . He did not remember whether investigation was conducted by the IO on 28.9.2011. Constable Subhash of P S Kotwali was joined by the IO and he SC No.20/12 Page 33 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc was taken from P S Kotwali on 29.9.2011. The police party started with the accused for village Nangla Kira . He denied the suggestion that Pokhpal had also not joined the investigation of this case and all the signatures of Pokhpal were taken on the blank paper. The car was found parked as locked and the said car was taken by him from P S Daulat pur . He did not remember whether he had changed the fake number plate with the original number plate lying in the car . He did not remember whether he had driven the said car with fake number plate from Buland Shehar to Delhi. He denied the suggestion that he had not brought the said maruti car with fake number plates from Bulandshehar to Delhi.
38. PW 25 is Ct. Shyam Pal who has deposed that on 6.9.2011 he received a secret information from mobile no. 9971018719 regarding gun shot injury received by the husband of the caller. He recorded the said information in PCR form Ex.PW25/A.
39. PW26 is SI Vijender Singh who has deposed that on 26.9.2011 , he apprehended accused Vinod @ Vicky with one country made pistol and 3 live cartridges from under Mundka Metro Station in case FIR No. 249/11 P S Crime Branch. He came to know that accused Vinod @ Vicky was wanted in case FIR no. 240/11 P S Palam Village and so, he sent the SC No.20/12 Page 34 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc information in P S Palam village vide DD No. 22. He also proved copy of FIR 249/11 as Ex. PW26/A. He produced the accused in the court of ld. ACMM, Tis Hazari on 27.9.2011 where , IO of this case came there and he handed over all the documents to the IO of this case .
40. In cross , he has admitted that accused Vinod @ Vicky was arrested in case FIR no. 249/11. He was not aware about any secret information in respect of carrying illegal arm by accused Vinod @ Vicky . The investigation of this case was marked to him on 26.9.2011 and received the copy of FIR alongwith rukka from H C Jaleshwar . The country made pistol had already recovered from accused Vinod @ Vicky by ASI Ishwar Singh. He only prepared arrest memo, personal search memo of the accused and recorded statement of the witnesses.
41.PW27 is SI Jagdish Singh who has proved FIR no.17/09 ( Ex.PW27/A) lodged for offences u/s 325/323/34 IPC, in P S Palam Village .
42. PW28 is SI Birender who has deposed that he was on duty on 6.9.2011 and on receipt of DD No. 85 B, he alongwith Constable Pushpak went to the spot near Shiv Mandir , Palam Village where he found blood and two empty cartridges were SC No.20/12 Page 35 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc lying in the gali. The injured had already been shifted to Mata Chanan Devi Hospital. Thereafter, he alongwith Constable Pushpak went to the hospital and on reaching there, he found that injured Balwan was found admitted where he was declared brought dead. Doctor had sealed the clothes of the deceased in parcel which were seized vide memo Ex. PW28/A. He received MLC of the deceased and thereafter , on the directions of Inspector Naresh Khanka, he took the dead body to DDU hospital . He left the constable in the mortuary of DDU to guard the dead body and he returned to the spot. IO recorded his statement.
43. In cross, he has admitted that he stayed at the spot for about 57 minutes for the first time . Inspector Naresh Khanka and SHO Satvir Singh and other staff of P S Palam Village were already present there. He did not notice anything else except blood and two empty cartridges at the spot . He reached the hospital at about 11 p.m on 6.9.211. Inspector Khanka and H C Rakesh were in police gypsy and he alongwith Ct. Pushpak was on motorcycle. They all reached hospital. No written proceeding was conducted by Inspector Khanka except seizure of parcel and making inquiry from persons available there. Inspector Khanka had not recorded statement of any public eye witness in his presence till 12.15 a.m on 7.9.2011. After depositing the dead body in mortuary , he reached at the spot SC No.20/12 Page 36 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc at about 4.30/5 a.m
44. PW29 is H.C Rakesh who has deposed that on 6.9.2011, at about 10.05 p.m he was present at beat no. 4. He received an information from duty officer about firing. He went to the spot near Shiv Mandir, Palam Village where Inspector Naresh Khanka and other police officials were present there and at the corner of temple, two empty cartridges and blood were lying . He came to know that injured was shifted to the hospital . He alongwith Inspector Naresh Khanka went to hospital. SI Birender Singh and Ct. Pushpak also went there. After reaching hospital, he found that Balwan had been declared brought dead. IO sent him to the police station for getting the case registered. He went to the police station and got the case registered. He alongwith copy of FIR and original Rukka came to the spot and handed over the same to the IO. On 27.9.2011 , he again joined the investigation of this case and he alongwith Inspector Naresh Kanta went to Tis Hazari Court where SI Bijender of Crime Branch produced accused Vinod @ Vicky in the court of ld. ACMM. After taking permission, Inspector Naresh Kanta interrogated accused Vinod and arrested him vide Ex.PW29/A. Accused made a disclosure statement Ex.PW29/B regarding throwing his mobile phone in the bushes near metro station. The said mobile was tried to trace but the same could not be found . Thereafter, accused led them to the SC No.20/12 Page 37 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc place of incident and pointed out the place of occurrence where complainant was present and complainant identified the accused. Thereafter, the police party returned to the police station.
45. On 28.9.11 he alongwith Inspector Naresh Khanka, Inspector Subhash Chand , PSI Chandan, H C Sanjeev, Ct. Sandeep and accused Vinod went to District Buland Shehar UP. On the way, accused disclosed about causing injury on the leg of his cousin Manjeet on 7.9. 2011. He recorded supplementary statement of accused ( Ex.PW29/C). Thereafter, police party went to Kotwali Buland Shehar and on inquiry , he came to know that Ct. Shantnu of UP Police has got admitted Manjeet in the hospital. He ( Manjeet) was referred to some higher medical center. IO recorded statement of Ct. Shantnu and collected photo copy of documents of Manjeet . Accused Vinod @ Vicky was lodged in lock up of Kotwali, Buland Shehar after medical examination. On 29.29.11, they went to village Nangla Kira where Ct. Subhash of UP police joined the investigation. Accused got recovered maruti car bearing no. DL 9 CE 6934 which was seized vide Ex.PW29/D in presence of public witness Pokhpal. Thereafter, car was brought to Police Post. After taking its photographs , the said car was sent to P S Palam Village through Ct. Sandeep.
Thereafter, accused took the police party in Sahil Palace
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Hotel, Aligarh where he alongwith his associates stayed for the period of 18.9.2011 to 21.9.2011. I.O seized the record of the hotel vide Ex.PW18/A. Thereafter, accused took the police party to Sidhwali lodge , Neelkanth, Paudi Garhwal from where, IO seized the hotel record and recorded statement of Sh. Rajender Singh Chauhan, the Manager of the hotel. Then, they came back to Delhi on 30.9.2011.
46. In cross, he deposed that he reached the spot at 10.15 p.m but he cannot say if, he had stayed at the spot for about one hour or more. He did not remember the time when he reached at the hospital and when IO recorded statement of Baljeet. He had gone to the police station on motorcycle with rukka. He did not remember whether any other article was found lying at the spot. IO had not prepared any site plan in his presence. He did not remember if the IO had seized the empty cartridges and blood in his presence. He did not remember at what time , they reached near Metro station for searching the mobile phone of the accused in the bushes. He did not remember at what time, they reached alongwith accused Vinod at the spot on 27.9.2011. When he reached the spot, Baljeet came out from his house at the spot. The distance of the house of Baljeet from the spot might be 1015 ft. he denied the suggestion that pointing out memo was prepared by the I.O himself while sitting in the police station and Baljeet was not present at that SC No.20/12 Page 39 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc time on the spot nor accused Vinod had pointed out any place of occurrence in presence of Baljeet. He did not remember if IO had asked Baljeet to join the investigation on 28.9.2011 as the accused was to be taken out of station for investigation. He also did not remember whether disclosure statement was made by the accused before starting from Delhi or on the way. IO had inquired from Police Station Kotwali regarding admission of the injured in the hospital . However, no case was registered in that regard.
47. He did not remember the time when they started from police station Kotwali on 29.9.11 for village Nangla Kira. He did not know the distance from P S Kotwali to Village Nangla Kira and he cannot tell how much time, they took for reaching Village Nangla Kira. Ct. Subhash of UP Police met them outside village Nangla Kira. He did not remember if the car was locked or unlocked . The car was having number plates bearing no. DL 9CE 6934 and the number plates were on the front side as well as on the back side of the car. He denied the suggestion that the accused had not pointed out any car nor the said car was recovered from the spot at the instance of the accused. He admitted that the IO had not joined the Sarpanch or any respectable person of the village at the time of recovery of the said car. He denied the suggestion that no person by the name of Pokhpal was present at the time of recovery of alleged SC No.20/12 Page 40 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc car . He did not know who had given key of the car to Ct.Sandeep. He did not remember if the car was opened in his presence on the spot and he did not remember if the car was searched by the IO after opening the same at the spot. He also did not remember if anything else was recovered from the car or not.
48. PW30 is SI Shanti Prakash who has deposed that he was working as duty officer at P S Palam Village on 6.9.2011 and at about 10 p.m, he recorded DD No. 85 B ( Ex. PW16/A ) regarding causing gun shot injuries to the husband of the caller . At about 10.50 a.m, he also recorded DD No.87B ( Ex.PW30/A) regarding admission of one Balwan by his brother Baljeet in Mata Chanan Devi Hospital. He had also recorded DD No. 69 B ( Ex.PW30/B) at about 5.25 p.m on 6.9.2011 regarding leaving police station by Inspector Naresh Khanka .
49.PW31 is H C Satpal who has deposed that he was working as duty officer on 27.9.2011 and at about 10 a.m, he had recorded DD No.22 B ( Ex.PW31/A) regarding arrest of accused Vinod @ Vicky by crime branch who was wanted in this case FIR no.240/11. He informed about the same to Inspector Naresh Kumar Khanka.
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50. PW32 is Sh. Rajender Singh Chauhan who has deposed that he is owner of Shri Sidhball Neelkanth Mahadev, Paudi Garhwal and on 30.9.11, he had told the IO that accused Vinod had arrived in his hotel on 14.9.2011 and left the hotel on 15.9.2011. He gave copy of page no. 159 ( Ex.PW32/B) where relevant entry was made to the I.O who seized the same vide Ex.PW32/A. In cross, he deposed that the column of details of conveyance in the register at page no.159 has no entry about any vehicle and he cannot say if visitor had brought his vehicle or not.
51. PW33 is Sh. Deepak,Assistant Ahlamd of the court of ld.
CMM (West) ,Tis Hazari Court who brought original case file of case FIR no. 249/11,P S Crime branch. He proved sketch of country made pistol alongwith cartridge available ( on judicial file of case FIR no. 240/11 of P S Palam Village) as Ex. PW33/A. He also proved photo copy of seizure memo of country made pistol alongwith cartridge as Ex. PW33/B.
52. PW 34 is H.C Hanuman who has deposed that on 6.9.2011 he received a message of firing at Shiv Mandir, Palam Village. He reached the spot. He found blood was lying on the corner of shiv Mandir and two empty cartridges were also lying there. He also came to know that injured had already been taken to the hospital. IO Inspector Naresh Khanka left him at the spot. He SC No.20/12 Page 42 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc went to the hospital alongwith his staff and came back at the spot at 3 a.m. IO, prepared site plan at the instance of complainant, recorded statement of the public witnesses, lifted the blood and sealed the same keeping in a plastic container with the seal of NK and seized vide seizure memo Ex.PW34/A. I.O also seized blood stained concrete and earth control vide Ex.PW34/B , prepared sketch of empty cartridges vide Ex.PW34/C. I.O seized the said cartridges vide Ex.PW34/D after sealing them with seal of NK and seal was handed to him after use. During the investigation, one bullet led was found near electric pole which was also sealed and seized by the I.O Inspector Naresh vide ExPW2/B. In the mean time, H C Ramesh came at the spot with copy of FIR. Thereafter, they went to the PS and deposited the case property in malkhana. Thereafter, he alongwith IO went to the mortuary where postmortem of deceased was conducted. He collected one envelope and sealed parcel alongwith two sample seal from the doctor which were seized vide memo Ex.PW34/E. Then, they came back to P S and deposited the case property.
53. In cross ,he deposed that he remained at the spot till arrival of the IO at the spot. He did not notice the bullet lead at the spot as it was not visible. The place of recovery of bullet lead was at some distance from the spot. He admitted that the location of empty cartridges is shown in the site plan but he did not SC No.20/12 Page 43 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc remember if location of recovery of bullet lead is shown or not. PW 2 Baljeet came to the spot before half an hour of reaching IO at the spot at about 3 a.m. He denied the suggestion that Baljeet had returned to the spot before 11 p.m . The sealing and packing material like plastic container were already with the IO. He handed over the seal to the IO at the time of seizure of bullet led which he took back after use but no handing over or taking over memo was prepared. Statement of public witnesses were recorded at the spot. IO had asked public persons to join the proceedings but none had joined . 7080 public persons were present at the spot. He returned the seal to the IO after recording his statement.
54.PW35 is Inspector Naresh Khanka who has deposed that on 6.9.2011 at about 5.15 p.m when he was patrolling in a government vehicle, he received an information from control room that " mere Aadmi ko goli maar di" on wireless. He reached the spot i.e WZ 608, Badiyal Mohalla near Shiv Mandir, Palam Village and found that blood and two empty cartridges were lying at the corner of Shiv Mandir. He also came to know that injured had aleady been taken to Mata Chanan Devi hospital . In the mean time other police officials came there . He alongwith H C Rakesh, SI Virender and driver went to the hospital and in the hospital, he came to know that one Balwan Solanki was found admitted as brought dead. He SC No.20/12 Page 44 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc collected his MLC. One Baljeet, brother of deceased met him and recorded his statement ( Ex.PW2/A). He prepared rukka Ex.PW35/A and sent H C Rakesh to P S for registration of case. Doctor had handed over him one sealed parcel having shirt of deceased alongwith sample seal which he seized the same vide seizure memo Ex.PW28/A, he deposited the dead body in mortuary and leaving one constable there. He alongwith SI Virender came back to the spot. At the spot, he prepared sketch of empty cartridges , sealed them with seal of NK and seized vide memo Ex.PW34/D. He also seized blood from the spot with the help of cotton. He sealed the same with seal of NK and seized vide Ex.PW34/A. He also seized blood stained concrete and earth control vide memo Ex.PW34/B. Thereafter, on searching one bullet lead was also recovered from electric pole which was also seized vide memo Ex.PW2/B. He also prepared site plan Ex.PW35/B at the instance of complainant . He got the dead body postmortem in DDU hospital vide inquest proceedings Ex.PW35/C. After postmortem, the dead body was handed over to his relatives. Doctor handed over him one envelope having blood gauze and one sealed parcel having bullet led in sealed condition alongwith sample seal which he seized the same vide seizure memo Ex.PW34/E. He recorded statement of the witnesses.
55. On 8.9.11 doctor also handed over one sealed parcel SC No.20/12 Page 45 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc containing clothes of the deceased alongwith one sample seal which he seized vide seizure memo Ex.PW35/D. On 27.9.11, he received an information from Crime branch regarding apprehension of accused Vinod @ vicky with some illegal arms near Mundka metro line and his production before the court of ld. ACMM , at Tis Hazari. He alongwith his staff reached the court and after taking permission from the court, he interrogated the accused. He arrested him vide arrest memo Ex. PW29/A. He recorded his disclosure statement and obtained his P/C remand till 30.9.2011. Pursuant to his disclosure, accused led them to the buses Sec.12 Metro Station to get his mobile recovered but nothing was recovered. Accused Vinod also pointed out the place of incident, in presence of complainant, vide memo Ex.PW2/C. On 28.9.2011 he alongwith accused and staff went to Buland Shehar, UP. He reported the local police there as accused Vinod disclosed that after the incident, he alongwith his cousin Monu was absconding in a car. After reaching Bulandshehar , he fired a shot on thigh of Monu. On inquiry, he came to know that said Monu was referred to some higher hospital on 8.9.211. He recorded statement of Ct. Tyagi of P. S Bulandshehar in this regard.
56. On the next date, accused led them to Village Nangli Kira and got recovered one Maruti car having fake no. DL 9 CE6934 SC No.20/12 Page 46 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc ( Original no. DL 9CM 0457) which was used in commission of offence. The said car was seized by him vide memo Ex.PW29/D. He recorded statements of the witnesses, took photographs of the car from his mobile phone. He got the said car deposited in mal khana by Ct. Sandeep. Thereafter, accused took them to a hotel Sahil at Aligarh where Manager Sharvan, identified accused Vinod. He collected record of hotel regarding stay of Vinod and seized vide memo Ex.PW18/A. Thereafter, accused led them to Rishikesh and then to Neelkanth. He seized the relevant record of hotel ( Ex.PW32/B ) vide seizure memo Ex.PW32/A. Sh. Rajinder Singh, Manager of hotel also identified the accused. He recorded statement of the manager. Thereafter, they returned to Delhi and produced the accused before ld. MM and obtained police custody remand till 3.10.2011.
57. On 1.10.2011 accused led them to Bahadurgarh and pointed out shop from where he got prepared fake number plate affixed on the car. The owner of shop Naveen identified the accused. During investigation, he collected postmortem report and sent the exhibits to FSL. Thereafter, he was transferred and handed over the file to MHCR . He identified the empty cartridges as Ex.P1 A and Ex.P2A, bullet led as Ex.P4 and other exhibits.
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58. In cross, he deposed that he reached the spot at 10.15 p.m on 6.9.2011. The crime team reached the spot at about 11/ 11.15p.m in his presence. He admitted that many public persons including Rekha wife of deceased, Seema wife of complainant Baljeet, son of deceased and other family members met him at the spot but he did not record statement of Rekha and Seema. He did not call any private photographer before arrival of crime team. Crime team took the photographs of the spot in his presence. He admitted that names of assailants were not clear from the spot inquiry till he left the place for hospital. He recorded statement of Baljeet at about 1/1.15a.m in the hospital. He denied that statement of Baljeet was recorded by him in the hospital by 10.30 p.m. He left the hospital and reached at his house at about 11 p.m. The parcel was taken after recording of statement however, the dead body was sent to mortuary of DDU hospital before recording the statement of Baljeet. He reached the spot from the hospital at about 3 a.m. By that time crime team had left the spot . During the presence of crime team at the spot, lead of bullet was not recovered so, there is no photograph which shows the presence of lead at the spot. The lead was recovered at 7 a.m on 7.9.2011. He prepared rough site plan according to the scene of crime but he did not remember if the gali of Shiv Mandir which goes towards Harijan Basti is 5 to 10 ft shorter towards Shiv Mandir. There is no difference in the rough site SC No.20/12 Page 48 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc plan and scaled site plan.
59. He has not shown the lead in site plan Ex. PW35/B as the lead was recovered after preparing the site plan. He denied that no lead was found at the spot and that is why it was not shown in the site plan . He also denied that since no lead was found on the spot, as such it has not come in the photographs. He admitted that he has not prepared any fresh site plan showing the lead which was recovered later on. There are no shops near the place of occurrence . He cannot say whether there are any shop near the place of occurrence i.e two grocery shop, one barber shop, two PCO shops, one atta ki chaki, one bisleri shop. He admitted that the place of occurrence is known as Shiv Mandir Chowk. He did not make any inquiry from any shopkeeper regarding this incident. He did not know if son of Samander ,who is brother of Balwan is also having a shop of bisleri water at the place of occurrence. He made inquiries only from the neighbours who were residing in the same street. He did not make any inquiry about the telephone of deceased , though it was stated by Baljeet in his statement that when the incident has taken place , his brother Balwan received a telephone on his mobile. He did not remember, if any specific inquiry qua telephone of deceased was made from his wife Smt. Rekha.
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60. He denied that the accused Vinod took him to the hospital where injured Monu was admitted. He did not record statement of injured Monu . He also did not record statement of relative of Monu who has got shifted Monu in the hospital in Bulandshehar. The car was towed with their vehicle and was taken to Police post. He did not seize the fake number plate which was affixed on the Car. He denied that he himself got the fake number plate prepared and affixed the number plate on the car and falsely seized the car in Delhi instead of at village Nangla Khera. He also denied Naveen Kumar was working as a mechanic and not a shopkeeper and no forged number plate was got prepared by the accused from Naveen Kumar. He admitted that he did not seize the forged number plate separately even at the time of depositing the same with MHCM. He did not remember if the complainant was called at the time when accused Vinod was brought at the place of occurrence. He also denied that he prepared the pointing out memo of his own by sitting in the police station and the accused never brought at the place of occurrence. He made inquiry and found that there was dispute between the complainant party and the accused party and he has also placed on record the copy of FIR revealing the enmity between both the parties.
61. PW36 is H C Rakesh who has deposed that on 8.6.12 he SC No.20/12 Page 50 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc alongwith Ct. Satpal, Ct. Ranbir and Ct. Yogesh went in search of PO in village Kanganheri . He received secret information that one Pramod who was wanted in murder case of Palam Village and is PO had come to the house of his relative. He constituted a raiding party and reached opposite Krishna Vidayalya, Village Kanganheri. One person coming from opposite side was stopped and apprehended at the instance of secret informer whose name revealed as Parmod . He arrested the accused vide arrest memo Ex.PW36/A by preparing kalandra u/s 41.1 (C) Ex. PW36/B.
62. In cross, he deposed that accused was arrested at about 10.15p.m. He informed P S Palam Village regarding arrest of accused Pramod , wanted in a murder case. He produced the accused before the court of ld. MM on 9.6.2012 after 2 p.m and by that time, accused remained in his custody. No police official from P S Palam Village or IO approached him before producing the accused in the court.
63. PW37 is H C Nihal Singh who has deposed that on 13.6. 12 he had joined the investigation in this case alongwith IO /Insector Satbir Singh. He went to central jail , Tihar . IO arrested accused Parmod in Tihar Jail No. 1 vide arrest memo Ex.PW37/A, recorded disclosure statement Ex.PW37/B of the accused and informed the Jail Superintendent in this regard.
SC No.20/12 Page 51 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc They came back to P S. On 15.6.2012 , he again joined
investigation in this case in PS. In his presence accused took them to place of occurrence and pointed out the place of occurrence vide memo Ex. PW37/C.
64. On 7.7.12, he again joined the investigation alongwith Inspector Mahender Singh and left the P S early morning for A2, Chander Vihar, Sec7, Dwarka. I.O arrested accused Manoj at about 5.30 a.m vide memo Ex.PW37/D, his personal search was taken vide memo Ex. PW37/E. I.O recorded disclosure statement of accused Manoj vide memo Ex. PW37/F. Accused Manoj pointed out the place of occurrence vide memo Ex. PW37/G.
65. In cross, he stated that his statement was recorded by the IO on 13.6.12 in the police station. He did not tell the name of accused Pramod. He was not aware about the purpose for going to Tihar Jail and on reaching there, he came to know that they had gone there to make inquiry from accused Pramod and his formal arrest. The disclosure statement of accused was recorded in room of superintendent. I.O did not asked Superintendent to become a witness of disclosure . On 15.6.2012 they left Police station in afternoon and complainant was not called by the IO after reaching the spot before preparing pointing out memo . On 7.7.12 ,Io did not ask SC No.20/12 Page 52 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc any public person to become a witness of arrest and disclosure of accused Manoj. He admitted that at the time of pointing out by accused Manoj, complainant was not called.
66.PW38 is H C Vishram who has deposed that on 9.6.12 he was working as duty officer and he recorded information at about 11.10 a.m regarding apprehension of PO namely Pramod u/s 41.1.C Cr.PC vide DD no. 17 ( Ex.PW38/A) in rojnamcha.
67. PW39 is SI Shanti Prakash who deposed that on 6.9.2011 he was working as duty officer at P S Palam Village. At about 5.25 p.m, he recorded DD No.69 ( Ex.PW39/A) regarding departure of Inspector Naresh Khanka. On the same day, at about 10 p.m ,he also recorded DD No.85 (Ex.PW 39/B) regarding assault by fire shot at WZ 608 near Shiv Mandir , Palam Chaupal. At about 10.50 P.M , he recorded DD No. 87( Ex.PW39/C) regarding admission of injured in the hospital as brought dead .
68. PW40 is Ct. Satya Pal who has deposed on the line of PW36 H C Rakesh. In his cross, he stated that he did not know whether an information about arrest of accused Parmod was given to concerned P S or I.O of the case FIR No. 240/11. They did not go to the house of relatives of accused Parmod .
SC No.20/12 Page 53 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc 69. PW41 is Sh. Pradeep Kumar, Ahlmad of the court of Sh. Pankaj Sharma who had brought kalandra u/s 41.1.cr.p.c
bearing DD No.35 A dt. 8.6.12 P S Dwarka and prove copy of the same as Ex.PW36/B. He also proved copy of DD no. 35 A as Ex.PW41/A. In cross he admitted that he is not conversant with the case pertaining to that kalandra.
70. PW42 is Ct. Yogesh Kumar who also deposed on the line of PW36 H C Rakesh and PW40 Ct. Satya Pal qua arrest of accused Parmod from Village Kanganheri. In cross, he deposed that accused was apprehended at about 10.15 p.m and no responsible person of the village was called by the IO for joining the investigation. I.O also gave information to concerned P S Palam Village regarding apprehension of accused Parmod, wanted in murder case at P S Palam from the spot itself. They stayed at the spot for about 15/20 minutes and writing work was done at the spot. No police officer from P S Palam Village reached at the spot. Accused was brought at P S Dwarka Sector 9 at about 11.30 p.m after medical examination.
71. PW43 is Ct. Subhash Chand who has deposed that on 29.9.2011 he was posted at PP Daulat Pur , PS Dibai Distt. Bulandshehar and was on patrolling. During patrolling, IO of this case alongwith his staff and accused Vinod met him and SC No.20/12 Page 54 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc he joined the investigation. Accused took them near a pond and got recovered one white colour maruti 800 car bearing no. DL 9CE 6934. Accused Vinod informed the IO that this was the same car by which he alongwith his brother had come there. Io prepared site plan ( Ex.PW43/A) of the place of recovery and seized the car vide memo Ex.PW29/D.
72. In cross, he stated that the distance between the police post and the place of recovery was about 2/2.5 k.m. Delhi police did not reach in his presence. He had left PP for patrolling at about 10/11 a.m. He went for patrolling in the area of Village Daulat Pur, then to the border of Jahangirabad Road and then to the village Nangla Kira. He cannot tell the time by approximation whether he reached at village Nangla Kira at 3p.m,4p.m or 5 p.m or before that. The glass of window of driver side was broken and the car was locked. He called a person from the house situated near the place of recovery of car. I.O asked him to join the investigation and recorded his statement. He did not remember whether IO had obtained signature of that person on the seizure memo of car .IO also recorded his statement. The number plates were fixed on both the sides of the car. The car was towed with one tractor and was taken to PP Daulat pur as the key was not available. He went to police post alongwith Delhi police and car. No key of the car was found in his presence. He did not remember the SC No.20/12 Page 55 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc name of the owner of the tractor. No complaint was lodged by any person of the village in the police post about this abandoned car which was lying for the last so many days. He did not remember if the IO recorded disclosure statement of Vinod in this regard or not.
73.PW44 is Const. Ranvir who deposed on the line of PW36 H C Rakesh, PW40 Ct. Satpal and PW42 Ct. Yogesh Kumar regarding arrest of Pramod . In cross, he stated that no public person was called from village Kanganheri at the time of arrest of accused and H C Rakesh had informed P S Palam Village about arrest of accused in his presence from the spot. Again stated that information was not given from the spot. They reached P S Chhawla at 10 p.m alongwith accused which is at a distance of half an hour by driving from the spot of arrest .Accused was apprehended at about 9 p.m. They left for patrolling at about 8 p.m and reached in the area of Kanganheri at about 8.15 p.m. Secret informer met them on the way and they gave information in P S Palam Village about arrest of accused after reaching at P. S Dwarka south. No police offical from P S Palam Village reached P S Dwarka after receiving information .
74.PW45 is Inspector Mahender Singh who has deposed that on 7.7.12 he was posted at P S Palam Village and received a secret SC No.20/12 Page 56 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc information regarding accused Manoj, PO of case FIR no. 240/11 that he was present in his house. He alongwith H C Nihal Singh went to his house in Govt. vehicle. He arrested the accused vide memo Ex.PW37/D, conducted his personal search vide memo Ex. PW37/E. He recorded disclosure statement Ex.PW37/F of the accused. Accused pointed out place of incident vide pointing out memo Ex.PW37/G.
75. In cross, he stated that he had received investigation of this case as main IO of this case was on medical rest on 7.7.2012. After producing the accused Manoj in concerned court, he handed over the file to Inspector Satbir Singh. He did not prepare charge sheet in this case. He had read statement of complainant during the period file remained with him. He did not remember if he read statement of eye witness Seema. He denied that accused Manoj had surrender in the police station and he was not arrested from his house in the manner as stated by him. Some ladies family members and one male person i.e uncle / Tau of accused were also present at the house at the time of arrest of accused. He recorded disclosure statement of accused at his house . He did not take signature of uncle of accused on disclosure statement. Accused was taken to the spot after his arrest in the morning perhaps between 7 /8 a.m. He did not call complainant at the spot at that time nor Seema , wife of complainant. No shop was SC No.20/12 Page 57 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc noticed at the spot . He did not remember, if any, shop was there around the area of 1520 meter of the spot. He cannot say whether the spot was a busy chowk. However, it is at the corner of Shiv temple. He admitted that he was conducting investigation in the murder case and accused was arrested in the said case by him. He did not collect any evidence of conspiracy against accused Manoj during the period, he remained IO. No public person was joined at the time of preparation of pointing out memo through accused Manoj as no one was present there. Shiv temple is adjacent to the spot. Pandit of temple was not called as he was not seen there at that time. He remained at the spot for about 1520 minutes. No public person came at the spot during his stay. After that day, he never went to the spot. He conducted inquiry about the role of the accused in this case on the same day but not at the time of taking the accused at the spot. He cannot tell the name of the persons from whom he inquired about role of the accused nor he can give their description.
76. Pw46 is Ct. Shantnu who has stated that on 7.9.201, he alongwith SHO Sh. Vinod Kumar Tyagi was present in the area. At about 9/9.15 p.m they reached near Mohan Nursing home. Crowd was gathered . They found one boy ( Manjeet) in injured condition having injury on his thigh. He was shifted to Babu Banarsi Dass hospital. In the hospital, they came to SC No.20/12 Page 58 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc know that injured had sustained bullet injuries. Family members of said boy were informed in this regard . On the next day, the said injured was referred to some other hospital and his uncle attended the boy. In cross , he stated that IO did not record statement of the injured . No case was registered at P S Kotwali about the said incident. He did not talk to the uncle of injured and on next day, he heard that the said injured was taken by his uncle.
77. PW47 is Dr. N P Waghmare, Assistant Director Ballistic FSL Rohini who has stated that on 13.10.2011 five sealed parcels alongwith respective sample seals were received in FSL. Same were marked to him for analysis. After comparing the sample seals with the parcels , he opened the parcels and provided them serial no. 1 to 5. On opening of parcel no.1, one plastic container was taken out which in turn was containing two 9mm empty cartridge cases and same were marked as EC1 and EC2 by him. On opening of parcel no. 2 , one plastic container was taken out which was containing one 9 mm bullet. He marked the bullet as EB1. On opening parcel no.3, one plastic bag was found which in turn was containing one deformed 9 mm bullet and same was marked by him as EB2. On opening parcel no. 4 one blue colour jeans , one white colour sando banian and one gray colour underwear were recovered. The same were marked by him as JP1, B1 and U1 SC No.20/12 Page 59 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc respectively. On opening parcel no.5 one dark blue colour half sleeve Tshirt was found. The same was marked by him as TS1. His detailed report regarding his examination is Ex. PW47/A running into four pages, bearing my signatures at point A, A1, A2 and A3. All the parcels were resealed with the seal of FSL NPW Delhi and were handed over to police alongwith report and proved FSL report prepared by MS Imrana as Ex.PW47/X and identified her signatures at point A, A1 And A2 on Ex.PW47/X as he has seen her writing and signing in ordinary course of his duty.
78. PW48 is H C Jag Narain who has stated that on 27.9.2011 SI Vijrender Singh , IO of case FIR no. 249/11 deposited with him one cloth parcel sealed with seal of I S alongwith FSL form in mal khana. He made entry in this regard at sl. no. 1321 in register no. 19. He proved relevant entry as Ex.PW48/A. On 30.9.2011 he had sent sealed parcel alongwith FSL form to FSL Rohini through H/C Hans Raj vide RC No. 460/21/11 ( Ex.PW48/B). HC Hans Raj returned to him and deposited the acknowledgment ( EXPW48/C) of case acceptance . In cross, he stated that appropriate column in register no. 19 does not bear the signature of depositor.
79.PW49 is Inspector Satyavir who stated that on 7.11.2011 , investigation of this case was taken by him. During SC No.20/12 Page 60 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc investigation, he seized fake number plates of Maruti 800 car vide seizure memo Ex. PW49/A. He also visited the spot with draftsman, Sh. Hardeep Singh near Shiv Mandir corner Barhiyal Maula, Palam Village, New Delhi who took measurement preparing the scaled site plan and handed over the same to him. He collected certified copy of MLC of Manjeet @ Monu from Govt. hospital Bulland Shehar. He also collected certified copy of call details of mobile phone of deceased and accused Vinod @ Vicky.
80. On 6.2.2012, an information was received that accused Parmod Vats was arrested by P S Dwarka /South who was PO in this case. He collected the relevant documents from IO of P S Dwarka /South. He arrested accused Parmod Vats, after taking permission of the court vide arrest memo Ex.PW37/A. Accused Parmod Vats was interrogated. He recorded his disclosure statement Ex. PW37/B. Accused pointed out place of occurrence vide memo Ex. PW37/C. During investigation, he also recorded statement of witnesses. He also identified the two number plates bearing no. DL9CE6934 as Ex. P49/1 and P49/2. He admitted that the number plates were not sealed in any pullanda and particulars of FIR are mentioned on only one number plate i.e Ex. P49/1. He did not deposit any sealed pullanda pertaining to this case with MHC(M). The number plates were deposited in mal Khana in loose condition on SC No.20/12 Page 61 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc 23.11.2011. He did not remember on which date , the car was deposited in mal khana. The said car was released on superdari as per order of court. He also identified the original number plate bearing no. DL 9CM0457 as Ex.Pw49/1 and 2 which were removed from the said car in presence of superdar . He had not taken signature of superdar on the seizure memo of number plates.
81. On 6.9.2011 he had not gone to the spot at the time of call of incident. For the first time, he had gone to the spot of incident on 15.9.2012. Again he said, that he had gone to the spot for the first time on 23.11.2011. Again said on 25.09.2011, he had gone to the spot for the first time. Site plan of the place of incident was got prepared in presence of complainant by him through drafts man. The draftsman took measurement of the street in his presence. The width of the street was measured by draftsman might be 15 to 17 ft. He denied that the width of the street was 7.5 ft and that he was not present when measurement was taken by the draftsman. He did remember the date when I received the scaled site plan. He admitted that on 25.9.2011 he was not the IO of this case. Again said, he had taken the draftsman on 25.11.2011 on the spot and not on 25.9.2011. I had seen the site plan prepared by first IO. He did not remember if he had tallied the site plan prepared by first IO and which was prepared by SC No.20/12 Page 62 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc the draftsman. He has proved the site plan as Ex. PW1/A . Site plan Ex. PW35/B is different then Ex. PW1/A.
82. He admitted that width of gali is 2.5 meter. He denied that if the car is stopped in the gali, the doors of the car cannot be opened. He denied that, in case, the back portion of car is in gali, the back door of the car can be opened. He got the information about arrest of accused Parmod on 9.6.2012 from P S Dwarka South. He had gone to court on the same day when the accused was to be produced in the court. He had moved an application for interrogation of accused before the court. He denied that he had not gone to the court on 9.6. 2012 nor he arrested accused Parmod on 9.6. 2012 in the court. He arrested the accused Parmod in jail on 13.6.2012. Identity of accused was disclosed by jail superintendent. He did not obtain signatures of jail superintendent on arrest memo of accused. Disclosure statement of accused was recorded in jail. He did not obtain signatures of jail Superintendent on disclosure statement. HC Nihal accompanied him to the jail. He was apprised about the purpose of their visit to jail. Two days police custody remand of accused was taken and he was taken to the spot on 15.6.12. Complainant had also come to the spot on that day. He did not obtain signatures of complainant on pointing out memo.
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83. After getting the investigation of this case on 7.11.2011, he had gone for the investigation of this case for the first time on 25.11.2011. Thereafter, he had gone alongwith accused Parmod on 15.6.12 to the spot in day time . Nobody had gone to call the complainant but he ( complainant ) himself had reached the spot after seeing the police. There are no shops near the place of occurrence. The shops i.e grocery, PCO booth, Atta Chakki and other shops are at a distance of about 100/150 meters from the place of occurrence. The house of Baljeet complainant is at a distance of about 10 yards from the place of occurrence. He had not seen if there is any grocery shop adjoining to house of complainant Baljeet. No shopkeer was available at the time when he visited the place of occurrence. He cannot tell the names nor he can give the description of the persons who were asked by him to join the investigation. He has no knowledge if there is any Bisleri water shop near the place of occurrence which is being run by son of brother of complainant Baljeet. The public persons simply stated about firing and nothing else. Occurrence of this incident took place at 9.30 p.m. He admitted that there is telephone call from mobile number of deceased Balwan i.e 9911074656, on the mobile phone of accused Vinod at 9.45 p.m on 6.9.2011. He also admitted that there is a telephone call from mobile of accused Vinod on the phone of deceased SC No.20/12 Page 64 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc Balwan at 9.53 p.m on 6.9.2011. He did not remember whether he had conducted investigation in view of ascertaining the possession of mobile phone of the complainant. The mobile phone of deceased Balwan was not traced our nor any efforts were made. He did not remember whether he had made any investigation on the line of telephone calls . He did not remember, if the telephone of the deceased at 9.45 a.m to 9.51 p.m was in possession of complainant Baljeet. He denied that telephone of deceased was in possession of complainant and complainant made a call to the accused at 9.45 p.m after the incident to verify the position of accused Vinod.
84. He had not made any interrogation from the wife of deceased deceased Balwan nor from the wife of complainant Baljeet . He also did not made any inquiry from the son of deceased Balwan regarding the mobile phone of Balwan. He did not try to contact Manjeet @ Monu whose certified copy of MLC was collected by him from Bullandshehar.
85. Thereafter, statement of the accused persons recorded u/s 313 cr.p.c in which accused persons pleaded not guilty and stated that they do not want to lead DE, therefore, DE was closed.
86. It has been contended by Ld. State counsel that the accused SC No.20/12 Page 65 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc persons in furtherance of common intention has fired upon deceased Balwan in the presence of Baljeet Singh , brother of deceased and fled away in their maruti car. PW6 Smt. Seema also witnessed the said occurrence as she was standing on the roof of the house. The testimony of this witness ( PW6 Smt. Seema) is corroborated with the testimony of PW8 Sandeep another eye witness and PW7 Smt. Rekha, wife of deceased who immediately rushed to the spot and shifted the deceased to Mata Chanan Devi Hospital. She stated that on the way deceased told her wife / PW7 Rekha that he has been fired upon by the accused persons. Therefore, this statement made by the deceased to his wife, is not only a dying declaration but a part of the same transaction as defined as resgaeste u/s 6 of Indian Evidence Act. There is no delay in recording of FIR. The accused were absconding and evidence regarding their absconding is also placed on record. There was previous enmity between the deceased and the accused persons so they were having motive to eliminate the deceased Balwan Solanki. The prosecution has also proved on record that the accused had put a fake number plate on the maruti car which was recovered at the instance of accused Parmod from Nangla Kira . Although the weapon of offence could not be recovered from accused persons. In view of the eye witness account and other circumstantial evidence , the prosecution has been able to prove the guilt of all the accused persons, SC No.20/12 Page 66 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc therefore, they may be convicted for the offences for which they are charged.
87. Per contra, Ld. Counsel for the defence has contended that alleged eye witnesses namely PW2 Baljeet ,PW6 Smt. Seema , PW8 Sandeep and PW7 Smt. Rekha are planted witnesses. Their presence is highly improbable. After careful scanning of their testimony. The presence of alleged eye witness PW2 Baljeet who was standing at a distance of 2 ½ feet at the scene of crime is highly improbable as a real brother, he did not try to intervene in the scuffle which was going on between the deceased and the accused. The explanation given by PW2 for not coming forward to rescue his brother from the clutches of the accused persons is against the human conduct as the real brother would like to interfere in the dispute in which there is risk of life to his brother. PW2 Baljeet Singh has neither tried to save his brother by catching hand of accused Vinod @ Vicky or snatching the weapon of offence. In this regard reliance is placed upon State Vs. Narender Bhatia passed by Delhi High Court in Crl. Appeal no. 3586/12 He has further contended oral testimony is full of contradiction and improvements and contrary to medical evidence. PW19 Dr. Yogesh has categorically stated that in case firing was done from a distance of about 6 meters. Whereas, as per ocular evidence , the deceased was fired upon from a distance of SC No.20/12 Page 67 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc about 23 feet This contradiction in the oral testimony with medical evidence could not be reconciled and the accused deserves to the benefit of doubt. PW8 Sandeep has stated in his cross examination that accused Manoj and Parmod were grappling ( Chipte hue the ) with Balwan Solanki at the time when he was shot by accused Vinod @ Vicky, therefore, when the co accused of Vinod @ Vicky were grappling with deceased it was not possible for accused Vinod to fire upon the deceased Balwan Solanki. It is further contended that the accused had been planted by the alleged eye witnesses in order to settle their score. Otherwise, the case of the prosecution is highly doubtful in as much as PW2 shouted "
his brother was gun down by the accused persons . He also informed PW7 Rekha who reached at the spot after hearing hue and cries, but she had made a call at 100 number at 10.01 p.m but she did not disclose name of any accused persons who had shot at her husband . Testimony of PW 7 Rekha is demolished by PW2 Baljeet Singh as PW7 Rekha has stated that her husband was semi conscious when he was shifted to hospital, whereas, PW2 Baljeet Singh has stated that deceased was fully unconscious and was not in position to speak when he was put in the van and shifted to the hospital. PW6 Seema had not gone to the hospital and she remained present in her house near place of occurrence and PW35 Inspector Naresh Khanka reached at the spot at 10.15 SC No.20/12 Page 68 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc p.m, as he admitted in his cross examination. Pw6 Smt. Seema and PW7 Smt. Rekha met him on the spot but PW6 Seema did not try to give the name of the accused persons to the IO at that time and no such name of the accused were supplied to the IO when he first time, came to the spot of incident. Even the crime team Incharge remained at the spot till 11.30 p.m none of the alleged eye witness has given name of the accused persons to the incharge or to the IO who happened to remain on the spot up to 12 mid night. Therefore, the conduct of the alleged eye witnesses of not supplying information regarding involvement of accused persons is highly doubtful. In the present case, it is established that the alleged witnesses are planted and the accused persons deserve to be acquitted by getting benefit of doubt. In this regard reliance is placed upon Suresh @ Bona Vs. State passed by Delhi High Court in Crl. Appeal 1211/2010
88. It is further contended that there is delay in recording FIR in the present case. PW2 Baljeet had gone to the hospital but he had not disclosed the name of the assailants/ accused persons to the doctor of Mata Chanan Devi Hospital and thereafter, PW2 admitted in his cross examination that when they reached in the hospital alongwith deceased police also reached there and thereafter, statement of PW2 was recorded immediately, after the deceased was declared brought dead by SC No.20/12 Page 69 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc the doctor. After giving his statement to the police in the hospital , he reached at his house at about 10.45/11 p.m . Thereafter, PW2 again reached at the spot of incident at 11 p.m , he would have met the IO , who admittedly remained at the spot till 12 mid night, meaning thereby either PW2 is telling lie with regard to recording his statement or IO has not given the correct fact with respect to time of recording statement of PW2 . If statement of PW2 was recorded at 10.30 p.m as stated by him ( PW2) then there is delay in recording FIR which was admittedly recorded at 2.50 A.M i.e after delay of 5½ hours. This delay in lodging the FIR is result of deliberations and discussion amongst the complainant and his family members in order to take revenge from the accused persons , as there was admittedly enmity between the accused persons and the deceased . In this regard, reliance is placed upon State of Maharashtra Vs. Ahmed Shika Babajan passed by SC in Crl. Appeal 2529/2002, Roze Ali Vs. State of Delhi passed by Delhi High Court in Crl. Appeal 229/2003
89.It is further contended that despite the availability of public witnesses, police has failed to join any public witness in the investigation at any point of time. As PW2 Baljeet has admitted in his cross examination that there are one grocery shop near the place of incident including other shops i.e one barber shop, two PCO shops and one flour mill situated at a SC No.20/12 Page 70 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc distance of 1520 feet from the spot. These shops were opened. If I.O reached at the spot at 10.15 p.m and remained there for about 2 hours but he did not try to join public witness nor recorded their statement or inquired the fact as to how the incident had taken place . Even the IO failed to examine PW6 Smt. Seema and PW7 Smt. Rekha during the period he remained at the place of incident. It is further contended that PW2 Baljet Singh was confronted with his statement Ex.PW2/A in respect of the part of such statement that accused Parmod and Manoj caught hold of the deceased from his neck and accused Vinod @ Vicky fired at the deceased while PW2 was standing at a distance of 2 ½ ft. and he (Pw2) did not try to separate the accused persons from his brother/deceased. This important contradiction makes the presence of PW2 at the scene of crime highly improbable. PW2 has even disowned the pointing out memo Ex.PW2/C as he has admitted in his cross examination that he had seen accused Vinod @ Vicky in the court, for the first time after the date of incident i.e 6.09.2011. PW2 has also admitted that he has told the name of the accused persons to his sister in law i.e PW7 Smt. Rekha when she reached the spot. There is no mention of name of accused persons by PW6 Smt. Seema and PW7 Smt. Rekha to the IO , which prove that name of the assailants were not known to the eye witness till 12 p.m as IO left the spot at 12 mid night.
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90. He further contended that admittedly there was a telephonic contact between the mobile phone of deceased Balwan Solanki and accused Vinod @ Vicky at 9.45 p.m and thereafter , there is a call from telephone of accused Vinod @ Vicky on mobile phone of deceased at 9.53 p.m but no investigation was conducted by the I.O in respect of the said telephonic call nor the telephone of deceased Balwan was recovered, during the course of investigation. Admittedly, deceased was shot at 9.30 p.m and at 9.45 p.m ,he might be on the way to Mata Chanan Hospital then, who had made a call at 9.45 p.m from mobile of accused Vinod @ Vicky to deceased and who had received the call of accused Vinod which was made on the phone of deceased at 9.53 p.m . It was suggest to PW2 Baljeet Singh , in his cross examination that telephone of the deceased was in possession of PW2 Baljeet Singh and PW2 in order to verify the location of accused Vinod @ Vicky telephoned him and thereafter, accused Vinod @ Vikcy made a call on the mobile phone of deceased at 9.53 p.m which was attended by PW2 but PW2 Baljeet failed to reply to this query which proves that after verifying the location of accused Vinod @ Vicky, the complainant after due deliberations and discussions named all the accused persons in the present FIR.
91. It is further contended that as per deposition of PW2 Baljeet SC No.20/12 Page 72 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc Singh, accused persons came from side of Harijan Basti in a maruti car and half portion of the said car was out side the gali and half portion of the said car was inside the gali . Admittedly, the width of the gali as admitted by PW1 is about 2.35 meters ( 7.5 ft) , therefore, the back portion of the car was inside the gali so, it was not possible for accused Manoj and Parmod to come out from the said car. Otherwise also, both brother would not like to travel on back seat and allow their third brother to drive the car and one brother should have sit besides accused Vinod @ Vicky . PW6 Smt. Seema has contradicted herself to her previous statement by saying that accused came from the side of Harijan Basti whereas in her earlier statement made to the police , she has stated that car of the accused had come from the side of Ramphal Chowk. PW6 Smt. Seema has also admitted in her cross examination that it was dark and she cannot say if she had seen anyone catching hold of her jeth Balwan Solanki . She has also admitted the location of various shops in the vicinity of the scene of crime and police had reached the spot in her presence and Balwan was not in position to speak and her statement was recorded by the police after about 1 ½ hours after removal of injured to the hospital. Therefore, if her statement is believed then, she might have disclosed the names of accused to the police at about 11.30 p.m and there was no reason for the IO not to record her statement. PW8 SC No.20/12 Page 73 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc Sh. Sandeep Solanki has also claimed himself to be an eye witness of the incident while he was standing on the roof. He also stated that all the three brothers / accused were grappling with the deceased. But this version has not been corroborated by PW2 Sh. Baljeet Singh who was standing just at a distance of 2 ½ ft from his brother. In such circumstances, it was unnatural for accused Vinod @ Vicky to fire at Balwan Solanki when his real brothers were in the firing range . Therefore, all the public witnesses have been planted by the police in order to create eye witnesses . Even no weapon of offence was recovered at the instance of accused Vinod @Vicky and empty bullet with which the deceased was fired upon, has not been fired from the said weapon. So, there is no evidence on record to connect the accused persons with the alleged offence. Therefore, the accused are entitled for getting benefit of doubt.
92. I have heard the ld. Counsel for the State as well as defence counsel and have gone through the record.
93. As per prosecution story accused persons were having enmity with the deceased over some dispute of property and on 06.09.2011 after sharing common intention they reached the spot of incident as prior to that there was a dialogue between accused Vinod @ Vicky at about 9:45 pm and therefore accused SC No.20/12 Page 74 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc Vinod @ Vicky called the deceased on his phone. After alighting from Maruti 800 Car, accused persons had an altercation with the deceased and accused Vinod @ Vicky fired upon the deceased who died on the spot and accused persons fled away from the spot of incident. Accused Vinod @ Vicky along with his co accused Pramod absconded and stayed at different places after applying a false number plate on said Maruti 800 car purchased from Bahadurgarh on 07.09.2011 and after his arrest in other FIR under Arms Act he was also arrested in present FIR and on his disclosure statement he pointed out the place where he stayed during his abscondance and also got recovered the car which was used in the course of offence by accused persons.
94.It may be noted here that the present case is based on eye witness account of three witnesses namely PW2 Baljeet, PW6 Seema & PW8 Sandeep. Admittedly, the deceased Balwan died of homicidal death as deposed by Pw19 Dr. Yogesh Tyagi in terms of PMR Ex. PW19/A.
95. Before proceeding further, I would like to discuss the testimony of PWs who are eye witnesses to this incident. PW2 Baljeet was standing and talking to his brother Balwan ( since deceased) at about 9:30 pm and accused came from the side of Shiv Mandir (temple) and stopped the car. Accused Vinod @ SC No.20/12 Page 75 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc Vikky alighted from the driver seat and his brother Parmod and Manoj alighted from the rear seat. Accused quarreled with his brother and in the scuffle accused Vinod @ Vikky fired upon the deceased who fell down. He removed his brother to Mata Chanan Devi Hospital with the help of his cousin and wife of the deceased who was declared brought dead by doctor. Police recorded his statement. Thereafter, he along with police come to the spot and inspecting the spot. Police seized the bullet lead from the spot vide memo Ex.PW2/B. In cross examination, he stated that he came out of his home at about 9:15 pm and thereafter deceased came there. The deceased was talking to someone on his mobile phone. The width of the Harijan Basti wali gali is about 8, 9 feet. The half portion of the car was in gali and front portion was on the chowk/ crossing. The gali coming from the Harijan Basti is also known as Shiv Mandir wali gali.
96. At the time of dispute between the deceased and accused persons he was standing at a distance of about 3 feet. He did not get any chance to intervene as the fire was opened and prior to that there was a conversation between the deceased and accused but suddenly accused Vinod @ Vicky opened fire and he was not expecting any such thing. There are two grocery shops near the spot at a distance of 40 feet from the spot of incident and other shops are at a distance of about SC No.20/12 Page 76 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc 1520 feets. He could not get a chance even to hold the hand of accused Vinod @ Vicky. He did not try to apprehend accused as he preffered to attend his brother and raised an alarm as after receiving gun shot injuries his brother had become semi unconscious. The deceased was made to lie on the floor of the Maruti Van of PW8 Sandeep as back seat of that van was removed for children as that van was used for carrying school children. His sister in law was sitting on the floor with the deceased. The deceased had become unconscious when he was put in the van. They reached hospital by 10.05 pm. Rekha informed the police while sitting in the van. He denied having called accused Vinod from the mobile phone of deceased at about 9:45 pm and, thereafter, accused Vinod called on the mobile phone of deceased which was attended by him at about 9:53 pm. He did not tell the name of the assailants to doctor in the hospital. Police recorded his statement in the hospital. After giving his statement, he reached his home at about 11.00 pm. He had not gone to the spot again after coming from hospital. There was an enmity between his family and that of the family of accused.
97. PW6 Seema has deposed that on 06.09.2011 at about 9:30 p.m she was on the roof of her house for checking water level in the tank, as water supply used to be provided in the night. Her husband, PW2 and the deceased were standing at the corner of SC No.20/12 Page 77 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc mandir and in the meantime, a Maruti 800 car came from Ramphal Chowk side and stopped. Accused Vinod @ Vicky alighted from driving seat and accused pramod and Manoj alighted from the rear seats. They started quarreling with the deceased. Her husband tried to intervene but accused Vinod @ Vicky fired upon the deceased and they fled away in the said car. The deceased was shifted to hospital in van of PW8 Sandeep by her husband and her sister in law.
98. In cross, she stated that she was checking the level of water from tank as she cannot check inside by standing on the roof. She had seen her husband talking to the deceased for about 10 minutes. There was electricity in area. Street light was there. The car came from the side of Harijan basti. The said road is about 810 feet in width. She was confronted with her previous statement where she stated that car came from the side of Ramphal Chowk. Half portion of the car was inside the gali and half portion was on the chowk/crossing. By hatapai, she meant scuffle. It was dark and she cannot tell whether she has seen anyone while catching hold of her jeth. Her husband was standing at a distance of about 3 feet. She had seen her husband trying to intervene, in the meantime, accused fired upon the deceased. She cried from the roof and came downstairs. She denied each and every suggestion given to her regarding the incident. She does not know about any dispute SC No.20/12 Page 78 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc between the deceased and accused. Public persons had gathered at the spot. She does not know their names. She admitted that there are shops near the spot of incident which were open. The deceased was semi conscious when she approached the scene of crime. Police came after removal of the deceased from the spot. Her statement was recorded by police about 1:30 hours after removal of the body of deceased. Accused persons are not unknown to her. The deceased was conscious as there was movement in his body but he was unable to speak.
99. PW7 Rekha Solanki is the wife of the deceased. She stated that on 06.09.2011 at about 9:30 pm she heard the noise that someone has been shot. She came out of her house and rushed to the gate of Shiv mandir, where some persons had gathered and her husband was lying in an injured condition in a pool of blood. She called at 100 number. Her brother in law Sandeep brought Maruti van and shifted the deceased in Mata Chanan Devi hospital. She accompanied her husband who told her that accused Vinod @ Vikky has fired upon him along with accused Manoj and Pramod. She does not know that there was any dispute between her husband and accused persons.
100. In cross, she stated that police had recorded her statement. In the van she was sitting besides her husband. Her husband was SC No.20/12 Page 79 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc able to speak a bit. She denied the suggestion that her husband was unconscious and not able to speak when he was shifted to hospital in the van. She further denied the suggestion that her husband had not told her that accused persons has not fired upon him. She was confronted with her previous statement with respect of enmity between the accused persons and her husband. She informed the police on 100 number before starting of the maruti van. The mobile phone of her husband was given by someone to her son on next day. She came to know about the name of assailant after making call at 100 number. She came to know the name of assailants later on. Her husband was conscious but he was unable to speak when she reached the spot. Thereafter, he was put in the van and he got conscious and he stated the name of accused . She does not know that her husband was an accused in a case FIR No. 17/09 P.S., Palam Village. She denied the suggestion that her brother in law Baljeet was sitting on the seat of Maruti van. She did not remember whether her husband was having mobile phone at the time of shifting him in the van. Mobile no. of her husband was 9911074656.
101. PW8 Sandeep Solanki has deposed that on 06.09.2011, at about 9:30 pm, he was standing on the roof of first floor of his house. Accused came in white colour Maruti car from the side of Mandir wali gali and stopped near shiv mandir. They SC No.20/12 Page 80 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc alighted from the car. His cousin Baljeet and Balwan(deceased) were also standing there. Accused persons started quarreling with the deceased. In the meantime, accused Vinod @ Vicky took out a pistol and fired the gun shot upon the deceased and fled away in the said car towards Jat Choupal Chowk. He and his sister in law reached the spot and shifted the deceased in his van accompanied by Baljeet and Rekha where the deceased was declared brought dead. His sister in law Rekha called 100 number at about 10:30 pm. Police came in Mata Chanan Devi hospital.
102. In cross, he stated that the distance of place of occurrence from where he was standing is about 1012 meters. The maruti car was stopped after crossing the street near shiv mandir. The width of gali/lane is about 7/8 feet. He denied the suggestion that maruti car has not crossed the street or that its half portion was inside the gali. His statement was recorded by police at about 10:30 pm at the house of Bhagte. He is confronted with his previous statement that he told police that maruti car came from the side of mandir wali gali and stopped. Accused alighted from the car. The deceased told his sister in law Rekha that accused fired upon the deceased and further his sister in law called at 100 number.
103. Baljeet was standing at a distance of about 67 feet from the SC No.20/12 Page 81 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc deceased. All the accused persons were standing adjoining to the deceased at a distance of about 11.5 feet. Accused persons had caught hold of the deceased and grappled with the deceased. He has seen the deceased from back side. During the scuffle/ grappling, they have taken number of turns. He has seen when Balwan was shot at. He admitted that there are two grocery shops, two PCO shops, one barbar shop and one flour mill near the place of occurrence but he cannot say whether shops were opened or not. He raised hue & cry after the deceased was shot at and before his reaching Baljeet had reached the deceased. Thereafter, Rekha reached the spot. Rekha had informed the police before the deceased was shifted in van on the floor as rear seat of the van has been removed for carrying school children. His blood stained cloth are not seized by police when he returned from hospital threefour persons had also came in his maruti vans from hospital.
104. From the conjoint reading of the testimony of PW 2 Baljeet, PW6 Seema and PW8 Sandeep Solanki who are alleged eye witnesses to the incident, it can be safely concluded that the deceased was fired upon by accused Vinod @ Vicky after sharing common intention with other accused persons before 10:00 pm. There is connectivity between the mobile phone of deceased and accused Vinod @ Vicky first at 9:45 pm and thereafter at 9:53 pm on 09.06.2011. In this regard, PW14 SC No.20/12 Page 82 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc Sh. Pawan Singh Nodal Officer Idea cellular Ltd. has proved on record that mobile no. 9911074656 is owned by Balwan Singh (deceased) in terms of Ex.PW14/A and mobile number 9891787703 is owned by accused Vinod @ Vikky in terms of Ex. PW14/C.
105. PW14 has also proved on record that on 6.9.2011 at 9.45 p.m , a call has been made from mobile phone bearing no. 9991787703 and thereafter a call has been made from mobile phone bearing no. 9891787703 on mobile phone bearing no. 9911074656 at about 9:53 pm on 06.09.2011in terms of call details records of their mobile phones vide Ex. PW14/B & Ex. PW14/D respectively. As per the deposition of PW14 Pawan Singh, the location of the mobile phone number of the deceased, at that time, was at tower no.29223 i.e Lodhi Chowk, Dwarka in terms of PW14/E as 9:45 pm on 06.09.2011 and at tower no. 28371 i.e Palam Village at about 9:53 pm on 06.09.2011 in terms of Ex.PW14/F.
106. I D cell location of mobile phone of accused Vinod @ Vicky was at tower no. 26101 i.e Pochanpur at about 9.45 p.m on 6.09.2011 and at tower no. 28392 I.e Palam Extension at about 9.53 p.m on 6.9.2011 in terms of Ex.PW14/F. From this discussion, it can safely be concluded that there was a telephonic contact between accused Vinod @ Vicky and the SC No.20/12 Page 83 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc deceased at 9:45 pm on 06.09.2011. Thereafter at about 9:53 pm on 06.09.2011 the accused Vinod @ Vikky made a call from his mobile number 9891787703 on the mobile phone number 9911074656. The location of both mobile phone numbers is near the spot of incident as the range of tower varies from 03 kelometeres. In his statement u/s 313 Cr.Pc accused Vinod has taken the defence that on 6.09.2011 at about 9:45 pm, he received a call from the deceased on his mobile phone no. 98911787703 when he was near the Goyla Dairy and thereafter, he made a call from his mobile on the mobile phone of the complainant at 9:53 pm, but his defence is contrary to cell ID location of his phone because he stated that his location was near Goyla Dairy which is at a distance of about 15 km from the spot of incident and as per Cell I D chart , his location is near Pochanpur which is at a short distance from the spot of incident and at 9:53 pm on 06.09.2011 his location is at Palam extension which is near to the spot incident. Therefore, the plea of accused Vinod @ Vicky regarding his presence at the time of incident in Shyam Vihar, Goyala Dairy is false and he himself admitted his conversation with the complainant at about 9.45 pm and 9.53 pm on 6/9/11. This false plea of accused incriminates him and further prove that the deceased was alive till 9.53 p.m on 6.09.2011. In regard to exact time of an incident or the time duration of an occurrence usually people make their estimates by guess work on the spur of the SC No.20/12 Page 84 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc moment at the time of interrogation and one cannot expect people to make very precise or reliable estimates in such matters as it depends on the time sense of individuals which varies from person to person. Ordinary a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused or mixed up when interrogated later on. Therefore, the testimony of the eye witnesses whereby stated that the deceased was fired upon at about 9.30 p.m on the day of incident , cannot be doubt as in village persons are generally not having exact sense of time. But the fact that incident took after 9.53 p.m is corroborate by the fact that PW7 after hearing gun shot immediately rushed to the spot and thereafter made a call at 10.01 p.m to police. Therefore, the firing incident took place at around 9.5510 p.m.
107. It may be noted that presence of PW2 at the spot is corroborated by PW6 Seema who was present on the roof of her home for checking supplying of water in water tank and PW5 Sandeep Solanki was standing on the roof of his home. PW2 Baljeet has stated that the deceased was talking to someone on his phone before, the accused arrived at the spot.
108. The Ld. Defence counsel has contended that presence of the SC No.20/12 Page 85 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc PW2 Baljeet and PW6 Seema and PW8 Sandeep is doubtful and they are interested witnesses in order to falsely implicate the accused persons on account of previous enmity between the parties and even the blood stained clothes of them including wife of the deceased have not been seized by police. PW2 Baljeet has neither tried to save his brother nor he tried to apprehend the accused persons. To my mind, this contention appears to be attractive but the same is fallacious and deserves to be rejected and as much as PW2 Baljeet has stated in categoric terms that he could not anticipate the accused persons, who are known to his brother would commit such an act and further he stated that he has not tried to apprehend the accused as he was more interested in taking care of his brother who was in need of medical care and he was interested in shifting him in the hospital to save his life.
109. It is settled law that the way in which a witness would react to a fact situation, cannot be anticipated with arithmetical niceties. The court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set SC No.20/12 Page 86 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not failing within a set pattern is unproductive and a pedantic exercise.
110.Therefore, the act of PW2 Baljeet not intervening in the act of the accused when they were scuffling and thereafter fired upon him, cannot doubt his testimony and his presence at the spot of incident. Despite some minor variation or improvement ,he has with stood the test of cross examination and nothing could be elicited in his cross which may cast any doubt over his testimony. Otherwise, such discrepancies make him a trustworthy witness of credit as he is not supposed to give a videographic version of all sequence of events which took place prior in time to his deposition. The contradiction in the testimony of PW2 where he stated that he was sleeping and not talking to his brother is not a contradiction because, PW2 in the earlier sentence has stated that it is wrong to suggest that he had not seen the incident of firing by accused Vicky on his brother Balwan and in next sentence which is in continuation of this previous sentence of PW2, it is mentioned that he was sleeping in his house meaning thereby that PW2 denied this suggestion that he was sleeping in his house at the time of incident, therefore, this contention is neither here nor there.
SC No.20/12 Page 87 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc
111. So far as the ratio of Narinder Bhatia (supra) is concerned, it may be noted that in that case the presence of alleged eye witness at the spot was found improbable but in the present case, presence of PW2 Baljeet, PW8 Sandeep and PW6 Seema at the spot of incident cannot be doubted. Therefore, the ratio of Narender Bhatia is distinguishable to the facts of the present case and as such , is not applicable herein this case.
112. It is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment and sometimes in their over anxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same.
113. As far as the alleged major contradiction and discrepancies in the testimony of PW2, PW6, PW7 and PW8 with regard to their presence and coming of the accused persons in maruti car at the spot and thereafter leaving the spot by accused person and thereafter shifting of the deceased in the maruti SC No.20/12 Page 88 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc van to Mata Chanan Devi hospital and the telling of the deceased the name of assailants to his wife ( PW7) are concerned, it may be noted that these contradictions are neither material contradiction nor vital discrepancies. Otherwise, those are minor discrepancies which in no manner could affect the case of prosecution and such discrepancies are bound to occur in the version of a truthful witness. While appreciating the evidence of a witness, the court must take into consideration whether contradictions and inconsistencies in the evidence are material, merely because there are some inconsistencies, is it sufficient to impair the credit of the witness? Should the entire evidence of the witness be discredited. The Apex Court in Krishna Mochi Vs. State of Bihar 2002 AD (SC) 45 has taken into consideration the grounds which court should take into consideration while go dealing with the contradictions in the statement, but the contradiction should not be material. A witness who is examined at length is also likely to make some discrepancies, unlike a person who has crammed up the evidence, undue importance should not be given by the court due to discrepancies as long as the test of trustworthiness is satisfied.
114. By and large a witness cannot be expended to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
SC No.20/12 Page 89 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc Occasionally, it so happens that a witness is overtaken by events. The witness could not have anticipated the
occurrence which so often has an element of surprise. The mental faculties, therefore, cannot be expected to be attended to absorb the details. The process of observation differs from person to person what one may notice, another may not. People cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to except a witness to be a human tape recorder.
115. In the same manner, non seizure of blood stained clothes of PW2 Baljeet, PW7 Rekha and PW8 Sandeep by police does not create a doubt regarding their presence at the spot and removing the deceased to Mata Channan Devi Hospital. It is settled law that shoddy investigation conducted by the IO is no ground to raise doubt with regard to the testimony of a witness when his testimony is otherwise reliable. Therefore, non seizure of blood stained clothes of the witnesses namely PW2, PW7 Rekha and PW8 Sandeep is not going to raise clouds of doubt over their testimonies.
116. Another contention of the counsel for the defence is that PW2 Baljeet is an interested witness. His testimony is not reliable as there is contradiction with respect to time of SC No.20/12 Page 90 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc recording FIR and names of accused were incorporated after due deliberation with PW7.
117. It is settled law that mere relationship of a witness with the deceased is no ground to discard his testimony, if it is otherwise found to be reliable and trustworthy. In the normal course of events, a close relation would be the last person to spare the real assailant and implicate a false person. However, the possibility that he may also implicate some innocent person along with the real assailant cannot be ruled out and therefore, as a matter of prudence, court should look for some independent corroboration of his testimony to decide about the involvement of the other accused in the crime.
118. I found no force in the contention of the defence counsel that conviction cannot be recorded on the sole testimony of interested witnesses as conviction can be based on the testimony of a single eyewitness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability . So long as the single eye witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then SC No.20/12 Page 91 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect.
119. So far as ratio of Suresh @ Bona (supra) is concerned , the ratio of the said judgment to the effect that the testimony of the interested witness is to be seen with suspicion and material improvement made by the witness in his testimony further creates doubt with regard to the prosecution story but in the present case , no such material contradiction has been pointed out during the course of arguments which may create doubt with regard to the trustworthiness of eye witness otherwise, these are not interested witnesses but are relative witnesses. Ratio of this judgment is also not applicable to the facts of the present case.
120. It may be noted here that PW8 Rekha deposed that she rushed to the spot after hearing the noise and find that her husband is lying in pool of blood. She removed him in the van to hospital and but before made a call at 100 number. Her testimony is duly corroborated by PW25 Ct. Shyam Lal who has deposed that on 6.9.11, at about 10.01 pm, he received an SC No.20/12 Page 92 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc information from mobile phone number 9971018719 regarding receiving bullet injury to the husband of caller and after receiving that information, he recorded there in PCR form Ex PW25/A and forwarded the same to PS, Palam Village and that information was sent to PW22 ASI Hawa Singh, who was on PCR Van Zebra 79, went to the house of PW8 Rekha and found that injured has been shifted to hospital.
121. The information supplied at 100 number by PW8 Rekha which was received by PW25 Shyam Lal who in turn supplied the said information to P.S Palam Village which was recorded by PW30 SI Shanti Prakash vide DD No. 85B Ex PW16/A. Thereafter, PW28 SI Birender alongwith PW16 reached the spot of incident.
122. The contention of the defence counsel that PW2 told PW8 Rekha about involvement of the accused persons but she did not revealed their names at the time of making a call at 100 number is immaterial in nature. PW8 Rekha has stated that after seeing the deceased, she made a call at 100. No suggestion has been given to her that she had made a call after having received the information regarding involvement of accused in the murder of her husband by PW2 Baljeet. Although PW2 Baljeet has stated that it is wrong to suggest that he had not stated to his sisterinlaw that accused persons had fired at his SC No.20/12 Page 93 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc brother but no suggestion has been given to this witness that he had passed on the said information to PW8 Rekha before her making a call at 100 number to police. In addition to it, the said statement made by the deceased to his wife PW7 is also relevant being res gestae.
123. Although PW2 Baljeet Singh has not stated the name of accused persons to doctors, yet non mentioning the name of assailant at the time of admission of the deceased in hospital, is not going to affect the prosecution case. PW2 has categorically stated that after his brother was declared dead by doctor, his statement Ex PW2/A was recorded. He has stated that he made his statement at about 10.45 pm. At about 11.00 pm, he left hospital for his home and he did not went to spot of incident.
124. PW35 has stated that on 6.9.2011 at about 10PM he received an information from crime team that "mera adami to goli mar di". He reached the spot. Injured was already shifted to Mata Chanan Devi hospital. PW35 along with PW2 HC Rakesh, PW21 SI Birender went to MCD hospital where deceased was declared brought dead and he recorded the statement of PW2 Baljeet and prepared rukka Ex PW 35/A and sent the same through PW29 HC Rakesh to police station for registration of FIR.
SC No.20/12 Page 94 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc 125. During his cross, he stated that he reached the spot of
incident at about 10.15PM on 6.9.2011. Crime team reached the spot at about 11.15 PM in his presence. PW8 Rakesh, PW6 Smt. Seema and other persons met him but he did not record their statement. He left the spot at 11.30 11.45 PM for the hospital. He admitted that the name of assailants were not clear from the spot inquiry till he left the place for hospital. He did not remember whether seema had told the names of assailants or not. He recorded the statement of PW2 Baljeet Singh at about 1.001.15 am in the in the hospital in the night of 6/7.9.2011. He sent PW 21 Rakesh at about 2.30a.m for registration of FIR.
126. The testimony of PW35 Naresh Khanka/ IO that he recorded the statement of PW2 Baljeet at 1 .00am on 6/7.9.2011 did not inspire confidence as other police officials namely, PW28 SI Birender, PW29 HC Rakesh and PW34 HC Hanuman have deposed that PW35 had left the spot of incident at about 11 PM on 6.9.2011. PW 28 SI Birender has stated in his cross that he stayed at spot of incident for 57 minutes and he reached the hospital at about 11 PM on 6.9.2011. PW35 Inspector Naresh Khankha and HC Rakesh were in police Gypsy and he along with PW 16 Ct. Pushpak were on motorcycle. and all left the spot for hospital at the same time.
SC No.20/12 Page 95 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc PW27 HC Rakesh who accompanied PW 35 Naresh Khanka
has also corroborated this aspect of the testimony of PW 28 SI Birender that he along with PW 35 SI Naresh Khankha reached the spot, where it was informed that injured has been shifted to Mata Chanan Devi hospital and he along with PW35 Naresh Khankha reached the hospital and PW28 SI Birender PW 16 Constable Pushpak also ran there, where the deceased was declared brought dead and PW2 Baljeet statement was recorded by IO /PW35 Naresh Khanka and PW35 prepared rukka and sent PW27 for registration of the FIR and he after registration of FIR went to spot along with FIR and handed over the same to the IO.
127. The testimony of PW28 SI Birender and PW27 HC Rakesh has been further corroborated by PW34 HC Hanuman, who after getting the information reached the spot where two empty cartridges were lying and injured was shifted to the hospital. PW34 was left at the spot by PW35 Inspector Naresh Khankha and PW35 left the spot along with staff for hospital and PW35 returned to the spot of incident at 2 a.m. On 7.9.2011. A conjoint regarding of the testimonies PW28 SI Birender, PW29 HC Rakesh and PW 34 HC Hanuman leads to the irresistible conclusion that all police officials including PW35 Naresh Khankha left the spot of incident at about 11 PM on 6.9.2011 and thereafter, statement of PW2 Baljeet was recorded in the SC No.20/12 Page 96 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc hospital by PW35 Naresh Khankha and he sent PW28 HC Rakesh after preparing rukka for registration of FIR. Therefore, if the testimony of PW35 Naresh Khanka is juxtaposed with the testimony of other police witnesses namely PW 25, PW 27 and PW 34, the testimonies of these police witnesses inspires more confidence and I found no ostensible reasons to disbelieve the same and PW 35 Inspector Naresh Khankha has improved his version regarding recording of statement of PW2 Baljeet in the hospital at about 11.15a.m on 6/7.9.2011 for the reasons best known to him. I am of the opinion that the version of the incident , after the murder of the deceased so far as, recording of the statement of PW2 Baljeet as given by PW 28, PW27 and PW34 inspires more confidence, therefore, it can safely concluded that PW2 Baljeet has promptly made his statement to PW35 Naresh Khankha at about 10.45 PM but FIR was lodged at about 3a.m on 6.9.2011. So far as delay in recording in FIR is concerned, it may be noted that there is no delay in recording the FIR as, after recording the FIR PW28 Ct. Rakesh went to the spot along with the FIR.
128. So far as ratio of Ahmed Shika Babajan ( supra) and Roze Ali ( Supra ) is concerned , the ratio of judgment is also to the effect that if delay is not explained, it is fatal to the case of prosecution but in the present case, no delay on the part of PW2 eye witness in getting recording his statement but the FIR was lodged at about 2 a.m after mid night. Therefore, there is SC No.20/12 Page 97 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc no delay in lodging the FIR and it cannot be stated that the FIR is result of embellishment
129. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding its true version. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint may prove to be fatal. In such case of delay, it also cannot be presumed that the allegations were an after thought or had given a coloured version of events. The court has to carefully examine the facts before it, for the reason, that the complainant party may initiate criminal proceedings just to harass the other side with mala fide intentions or with ulterior motive of wreaking vengeance. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, when an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law. ( Vide: Sahib Singh Vs. State of Haryana, AIR 1997 SC 3247; G.Sagar Suri & Anr. V. State of U.P & Ors.' AIR 2000 SC 754; Gorige Pentaiah V. State of A.P. & Ors.(2008) 12 SCC 531; and Kishan Singh ( dead ) Thr. Lrs.Vs. Gurpal Singh & Ors.AIR 2010 SC 3624) SC No.20/12 Page 98 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc
130. So far as the contention of the defence counsel that despite availability of public at the spot, IO has not recorded the statement and there are material contradictions in the testimony of public witnesses, therefore, there is false implication of accused persons after due deliberation is concerned. It may be noted that IO/PW35 Naresh Khankha has admitted in his cross that Rekha wife of the deceased Seema and son of Rekha were present at the spot. But Rekha / PW7 had accompanied the deceased to hospital alongwith PW2 Baljeet and PW8 Sandeep. So presence of PW7 Rekha at the spot is falsified by other Pws. Therefore, this part of the testimony of PW35 Naresh Khankha is false. Even if it is presumed for the sake of arguments that Seema and son of Rekha were present at the spot but IO has failed to record their statement. It is the fault of IO in not recording their statement. Further more in the cross of any of the related witness namely PW2 Baljeet, PW6 Seema, PW7 Rekha and PW8 Sanjay no suggestion has been given that IO has contacted them for recording their statement prior to recording of the statement of PW2 in the hospital. Therefore, if the IO failed to record the statement of the witnesses who were present at the spot their testimonies cannot be discarded as their presence at the spot cannot be doubted. In addition to it, no suggestion has been given to the IO whether he tried to SC No.20/12 Page 99 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc record statement of witnesses prior to recording of statement of PW2 Baljeet but witnesses refused to record their statements. Therefore, it can be safely concluded that there is no delay on behalf of the eye witnesses in recording their statement and naming the accused persons as the perpetrator of the crime. Further for fault of IO or faulty investigation in the present case, the prosecution case cannot be thrown to winds where other evidence is trustworthy.
131. It may be noted that as per prosecution story accused persons after committing murder of the deceased Balwan were absconding and abscondance is a fact which incriminates the accused. In this regard it is relevant to note here that it is a settled law that mere absconding by itself does not necessary lead to a conclusion of a guilty mind. The act of self preservation is such that an innocent man may feel paniky and try to evade arrest when wrongly suspected of a grave crime. The act of absconding is no doubt a relevant piece of evidence to be considered alongwith other evidence but its value would always depend on the circumstances of each case. For instance, the circumstance of abscondance can be extremely fatal, if the prosecution is able to prove that the victim was last seen in the company of the deceased and that the accused is absconding after the death of the victim. Normally, the courts are disinclined to attach much importance to the act of SC No.20/12 Page 100 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc absconding, treating as a very small much item in the evidence for recording conviction. It can scarcely be held as a determining link in the chain of circumstance evidence which must admit of no other reasonable hypothesis then that of the guilt of the accused. In this regard, I found support from Matru Vs State of U.P. AIR 1972 SC 1050.
132. Criminal trial is not an enquiry into the conduct of an accused for any purpose other than to determine whether he is guilty of the offence charged. In that connection, that piece of conduct of the accused be held to be incriminatory which has no reasonable explanation except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can alone be considered as material.
133. In the present case, the accused persons fled away from the spot and as per the story of prosecution, accused Vinod @ Vicky got prepared a false number plate bearing registration no. DL9CF6934 from PW12 Sh. Naveen Kumar and fled away from Delhi and after staying at different places , he had hidden the said Maruti 800 car near a village pond in a lane in village Nangla Kida, Distt. Bulandshahar, UP. It may be noted here that PW12 has deposed that accused Vinod @ Vicky got prepared a number plate but he did not remember the fake number of SC No.20/12 Page 101 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc said plate but he identified accused Vinod @ Vicky as the person who get prepared the said false number plate after making a payment of Rs 100 although he could not tell the date of such preparation of fake number plate but to the extent that accused Vinod @ Vicky got prepared a false number plate from him inspires confidence. Therefore, it can safely be concluded that accused Vinod @ Vicky got prepared a fake number plate.
134. It is relevant to mention here that accused Vinod @ Vicky was arrested by PW26 SI Vijender Singh who was investigating the case FIR 249/11 of PS - Crime Branch and one country made pistol and 3 live cartridges were recovered from his possession. He came to know about the involvement of accused Vinod in the present FIR and he informed PS - Palam Village accordingly.
135. The said information was received by PW31 HC Sanjeev on 29.9.11 vide DD No. 22B (Ex PW31/A). He informed PW35 Inspector Naresh in this regard. After getting the said information PW35 interrogated the accused Vinod @ Vicky arrested him vide arrest memo Ex PW29/A. Accused Vinod suffered a disclosure statement (Ex PW29/C) Accused Vinod stated that he threw his mobile phone near metro station, sector12 Dwarka but Sim could not be traced. He pointed out the place of occurrence in the presence of complainant. On SC No.20/12 Page 102 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc 28.9.11, accused Vinod had led the police to Bullandshahar, UP and disclosed that he alongwith his cousin Monu was running in the car and after reaching Bullandshahar he fired upon Monu which hit in his thigh although IO/PW31 recording statement of PW46 Ct. Shantnu and examined PW23 Dr. Rajeev Verma, EMO, Babu Banarsi Dass hospital, Bullandshahar, UP who deposed that on 7.9.11, he examined one Manjeet S/o Kanwar Pal in terms of his report Ex PW23/A but injured left hospital on his own on 8.9.11 Therefore, the testimony of this witness, it can not be proved that Monu @ Manjeet was fired upon by accused Vinod as IO failed to cite said Manjeet as a witness.
136. Thereafter, accused led police to village Nagli Kira, Bulandshahar, UP on 29.9.11 and got recovered the Maruti 800 car bearing fake number plate of DL9CE 6934 whereas its original registration no. is DL9C M0457. The said vehicle was seized by PW55 vide seizure memo Ex PW29/D.
137. The testimony of PW35 Inspector Naresh Khanka is duly corroborated by police witness namely PW29 H.C Rakesh, PW43 Ct. Subhash of UP Police who have deposed on the lines of PW35 so far as recovery of maruti 800 car in terms of the disclosure statement of accused Vinod @ Vicky and only public witness PW17 Pokhpal Singh has turned hostile and not SC No.20/12 Page 103 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc supported the case of prosecution despite being cross examined by the state counsel. But recovery of car at the instance of the accused persons in the present case is relevant under section 27 of the Indian Evidence Act even if, public witness PW17 has turned hostile as it is settled law presence of the public witnesses at the time of the recovery of incriminating article on the basis of information supplied by accused is not a sina qua non for being relevant. Therefore, from this deposition of public witnesses, it can safely be concluded that the car which was used in the commission of offence was recovered at the instance of accused Vinod @ Vicky with fake number plate and said car was owned by Sh. Pradeep Kumar in terms of record Ex PW15/A.
138. Another fact pertaining to the abscondance of accused persons is tried to be proved by prosecution by leading evidence that accused persons after committing murder were absconding and had stayed at Aligarh and thereafter, at Rishikesh. PW35 has stated that accused Vinod disclosed that he stayed at Aligarh in Sharvan hotel and PW35 got this fact verified from the hotel Shrvan and seized the relevant record ( Ex PW18/A).
139. PW18 Sh. Sarvan Kr. Sharma had supported the version of PW35 by deposing that about one & half year back, he was SC No.20/12 Page 104 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc working as Manager in Hotel Sahil Place in Aligarh and on 29.11.2011 PW35 Naresh alongwith accused Vinod @ Vicky came and he after verifying the detail told PW35 that accused Vinod alongwith one other person had stayed in his hotel for two day in terms of documents Ex PW18/A.
140. Accused also disclosed to PW35 Naresh Khanka that he stayed for 14.9.11 to 15.9.11 at Rishikesh. PW35 verified that fact from PW32 Sh. Rajender Singh Chauhan who has supported the case of prosecution and stated that on 30.9.11. IO of this case contacted him and accused Vinod was with IO at that time. He handed over the record of guests/ to IO vide Ex PW32/B. Therefore, prosecution has proved on record that accused Vinod and Parmod were absconding. Accused Vinod and Parmod stayed in sharwan hotel including the hotel of PW18 and PW32 Rajender Singh Chauhan at Aligarh and hotel Shri Sidhbali Neelkanth Mahadev, Paudi Garhwal respectively. The abscondance of accused Vinod and Parmod also incriminate them.
141. Other accused namely accused Pramod and Manoj were apprehended and arrested later on and qua them supplementary charge sheet was filed which was clubbed with the main file of accused Vinod @ Vicky.
SC No.20/12 Page 105 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc 142. As per prosecution case, Pramod was arrested on 8.6.12
when PW36 HC Rakesh, PW42 Ct. Yogesh Kr. and PW40 Ct. Satya Pal were searching for proclaimed offender on the basis of secret information that accused Pramod Kumar wanted in a murder case has come to one of his relative in Kanganheri. Accused was apprehend at the instance of secret informer and he admitted his involvement in the present FIR and was arrested vide Ex PW36/A in terms of kalandara u/s 41.1(c) CrPC and DD in this regard was recorded by PW38 HC Vishram vide Ex PW38/A. Therefore, accused Pramod was arrested by PW49 Inspector Satyavir Singh on 13.6.12 from Tihar Jail in the present case. Thereafter, accused parmod was interrogated. He suffered a disclosure statement and pointed out place of occurrence.
143. Accused Manoj was arrested by PW45 Mahavir Singh and PW37 HC Nihal Singh on 7.7.12 at about near Chander Vihar, Sector7, Dwarka at about 5.30 am vide arrest memo Ex PW37/D. He was also interrogated and he suffered disclosure statement and pointed out place of occurrence. No recovery was made from accused Manoj & Pramod.
144. So far as motive is concerned, it is pertinent to mention here that in the present case, prosecution has proved the motive of commission of the offence and the present case is SC No.20/12 Page 106 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc not based on circumstantial evidence. Wherein motive and conduct of accused has paramount importance. In this regard reliance is placed upon Sanjay Mittal Vs. State of Haryana 200293) RCR criminal 127:
" In a murder case, which is based on circumstantial evidence motive plays a vital role but in eye witness account motive does not have much importance. The court is to take into consideration the motive for the crime. When there is no motive, then the link in the chain is missing. When the prosecution fails to prove the motive in the part of the accused, its case becomes doubtful. Not only this, the prosecution has to prove each and every circumstance beyond reasonable doubt that accused was not the person who committed the offence and none else. The court is not to base its findings in surmises and conjunctures.
145. In the present case criminal cases are pending between the parties as admitted by PW2 Baljeet who has stated that there was inimical relations between the family of deceased and the family of accused persons. Although other PW s namely PW6 Seema, PW7 Rekha, PW8 Sandeep has stated that they have no SC No.20/12 Page 107 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc knowledge of any cases pending between the deceased and the accused. But the deceased was facing criminal charges in case FIR No. 17/09 PS : Palam Village (Ex PW27/A) in which accused Vinod is the complaint. Therefore, the prosecution has been successful in proving the motive on the part of accused persons to do away with the accused. As far as the contention of the counsel for defence that ocular evidence is contrary to medical evidence as Pws/eyewitnesses have deposed that the accused was fired upon from a distance of about 34 feet but as per the opinion of PW19 Dr. Yogesh Tyagi , the deceased was fired from a distance of about six meters, is concerned. It may be noted that PW19 has further clarified that exact distance in the expertise of forensic ballistics as it depends on the fire arm weapon used. Force of the fire arm projectile depends on the fire arm weapon. The force of the projectile is not always depend at the distance from the body from where the weapon was fired. Therefore, the opinion of Dr. Yogesh is not conclusive as he himself was doubtful and furthermore the opinion of doctor is always binding on the court and it is only have a persuasive value.
146. In this regard, it may be noted that if the eye witnesses' version, even though the relatives, is found to be truthful and credible after deep scrutiny the opinionative evidence of the doctor cannot wipe out the effect of eyewitnesses' evidence.
SC No.20/12 Page 108 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc
The opinion of the doctor cannot have any binding force and cannot be said to be the last word on what he deposes or meant for implicit acceptance. On the other hand, his evidence is liable to be sifted, analysed and tested, in the same manner as that of any other witness, keeping in view only the fact that he has some experience and training in the nature of the functions discharged by him."
147. It may be added here that when there is a contradiction in the ocular evidence and medical evidence, the ocular evidence is to be preferred and will take precedence over medical evidence. But if oral evidence is totally irreconcilable with medical evidence in that case ocular evidence. In this regard reliance is placed on In state of U.P V. Hari Chand, (2009) 13 SCC 542, Hon'ble Apex Court reiterated the aforementioned position of law and stated that " in any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy."
148. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value visavis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the SC No.20/12 Page 109 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.
149. It may be noted here as contended by Ld. Defence counsel that fire arm recovered from the person of accused Vinod @Vicky could not be connected with the murder of deceased. Admittedly weapon recovered from possession of accused Vinod @ Vicky could not be connected with the bullet recovered from the deceased body. But the recovery of fire arm is not necessary and if other evidence on record connect the accused with the offence, non recovery of fire arm with which the deceased was fired upon is immaterial. In this regard reliance is placed on Hon'ble Apex Court in authority titled as Muna Vs. State of M.P (2003) 11 S.C.C,480 held that absence of recovery of gun from the accused is not fatal. Similarly, the Hon'ble Apex Court held in authority titled as Krishna Gopal Vs. State of Bihar (2003) 10 S.C.C,45 that non recovery of weapon is not fatal.
150. So far as the contention of the defence counsel that the width of the gali/ lane is about 2.35 meter and maruti 800 cannot pass through that gali so, the factum of coming of the accused through that lane is highly improbable. This SC No.20/12 Page 110 of SC No.20/12 FIR No.240/11 PS: Palam Village State Vs. Vinod @ vicky etc contention is also fallacious as the width of maruti is not more than 4 ft. and said maruti car can pass through the said lane measuring about 2.35 meter ( 7.5 ft ). Similarly , contradictions with regard to rough site plan and scaled site plan with regard to the topography of the spot of incident is also immaterial. As such minor variation are bound to occur in rough site which is put to scale in a scaled site plans and IO Naresh Khanka has clarified this difference in the site plan. I find no substance in this contention , same is hereby rejected. Similarly, the contention that the lead recovered from the spot of incident was not depicted in the photographs and not detailed in crime team report is also immaterial because as per the IO and the police witnesses , the said lead bullet was found in the early morning in the intervening night of 6/7092011 and I find no substance in this contention also. So far as the contention regarding, the accused Vinod @ Vicky has not shared with common intention with his co accused Parmod and Manoj Kumar so, they have no role to play in the alleged offence is also immaterial as their presence at the spot of incident is proved by eye witness who found them grappling with the deceased at the time when deceased was fired upon by accused Vinod @ Vicky. I find no substance in this contention that accused Vinod @ Vicky has not shared with common intention with his co accused and they murdered the deceased in furtherance of common intention.
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151. From the above discussion, I am of the opinion that the prosecution has fully proved its case as per law against all the accused namely Vinod @ Vicky, Pramod Vats and Manoj Kumar for offences under Section 302/34 IPC. They are convicted for offences under Section 302/34 IPC. The The prosecution has also proved offence u/s 482 IPC against accused Vinod @ Vikcy . Therefore, Accused Vinod @ vicky is also convicted for offence u/s 482 IPC. Accused Pramod Vats and Manoj are hereby acquitted from offence u/s 482 IPC.
152. Put up for hearing on the point of quantum of sentence on 31.7.2014.
Announced in the open court (Dr. Vijay Kumar Dahiya)
th
on the 18 July 2014 ASJ/ Dwarka Courts
New Delhi/ 18.07.2014
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