Delhi District Court
2 vs Kiran Is The Doctor Who Conducted on 7 June, 2012
-1-
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE-03, OUTER DISTRICT
ROHINI COURTS:DELHI
FIR No. : 182/2008
PS : Kanjhawala
U/s : 302/34 IPC
Unique Case ID : 02404R0 051852009
In the matter of
The State
Versus
1. Dinesh @ Naresh s/o Sh. Randhir Singh
R/o Village Katawra
Delhi.
2. Rajesh @ Anta s/o Late Sh. Prem Singh
R/o : Village Karala
Delhi.
...ACCUSED
Session Case No. : 315/09
Date of Institution : 28.02.2009
Date of Committal : 16.03.2009
Date of reserving judgment/order : 07.06.2012
Date of pronouncement : 07.06.2012
J U D G M E N T
1. Accused Dinesh @ Naresh was sent up by police of PS Kanjhawala to stand trial for offence punishable u/s 302/34 IPC. Subsequently accused Rajesh @ Anta was also sent for trial for same offence by way of supplementary charge sheet.
2. The prosecution case in brief is that on 21.11.08 on the receipt of DD No. 25A regarding person has been shot at Sukhbir Nagar, Near Shiv Mandir, ASI Shiv Narayan alongwith constable reached at the spot and found one person was lying dead on the ground facing ground and large quantity of blood FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 1 of 35 -2- fell from the head and other body. On taking cursory search of dead body, hole of gun shot was present near behind right ear and on the right side of the stomach, two live cartridges and two empty cartridges of 9mm was also found near dead body and on enquiry the name of the deceased was disclosed as Jagdish s/o Mahender Jaildar, resident of village Karala, Delhi. SHO also reached at the spot. No eye witness was found. On the basis of the same, FIR u/s 302 IPC was registered. The place was got inspected from crime team and photographs got done. The dead body was got removed to mortuary, Sanjay Gandhi Hospital, Delhi for postmortem. After lifting the dead body, one lead was also found underneath the body. The two live cartridges, two empty cartridges, lead, earth sample, blood sample were also seized.
3. During the investigation, it was revealed that the deceased had disputes regarding property with Rajesh who was also resident of Village Karala, Delhi, who had given threat to kill him, who was found absconding after checking. He had told his friend after firing at Jagdish that he has fired at Jagdish but Rajesh could not be found despite search. His mobile call details obtained. It was revealed that sometime before the incident he had made call to mobile no. 9811068950 on many occasions. The said telephone was found switched off on making call. Ownership of the said mobile was taken which was in the name of Dinesh @ Naresh. He was apprehended. He confessed his involvement with Rajesh @ Anta in the crime. He was arrested. One mobile phone, chewed mobile chip and scooter used in the FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 2 of 35 -3- offence were also seized. Efforts were made to arrest Rajesh but he was absconding and process u/s 82/83 Cr.PC was issued and charge sheeet was filed against accused Dinesh.
4. Subsequently accused Rajesh @ Anta was arrested and sent up for trial by way of supplementary charge sheet. The TIP of Rajesh was got fixed who was correctly identified by the witness and he was sent up for trial for 302/201/34 IPC.
5. After supplying the necessary copies to the accused, the case was committed to the court of session vide order dated 16.03.2009 by Ld. Metropolitan Magistrate.
6. My Ld. Predecessor, after finding prima-facie case, vide order dated 22.07.2009 charged both the accused Dinesh @ Naresh and Rajesh @ Anta for offence punishable U/s 302/34 IPC to which, they pleaded not guilty and claimed trial.
7. The prosecution in support of their case examined as many twenty five (25) witnesses.
8. The prosecution examined following material witnesses :-
i. PW-2 Sh. R. K. Singh, who was eye witness of the incident, however turned hostile towards the prosecution.
ii. PW-3 Bijender is witness with respect to threat given by Rajesh to his father and proved his statement as Ex.PW-3/A. iii. PW-4 Arun Kumar is eye witness of the occurrence FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 3 of 35 -4- and he proved his signature on TIP proceedings Ex.PW-4/A. iv. PW-13 Randhir Singh, brother of deceased, is witness regarding motive.
v. PW-16 Sh. Raj Singh @ Raju is the witness with respect to extra judicial confession of accused Rajesh but he turned hostile.
9. The prosecution also examined following formal witnesses :-
i. PW-1 Anuj Bhatia, Nodal Officer, Vodafone Mobile Services brought the record of mobile phone no. 9899228826 and proved that the same was issued to one Kosain Alam Ansari by Hutch (now vodafone) and further proved attested copies of application form, declaration form, I.D. Proof as Ex.PW-1/A, Ex.PW-1/B, Ex.PW-1/C and Ex.PW-1/D respectively. He also brought the record of mobile phone no.9811068950 issued in the name of Dinesh by the Hutch services (now Vodafone) and proved the application form as Ex.PW-1/E, declaration form as Ex.PW-1/F, and identity proof of Dinesh as Ex.PW-1/G. He also proved call details of mobile phone no. 9899228826 from 01.1.2008 to 22.11.2008 as Ex.PW-1/H and Cell I.D. Chart as Ex.PW-1/J and call detailed of phone no. 9811068950 as Ex.PW-1/K. ii. PW-5 Sh. Bhagat Singh, is owner of photo studio, FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 4 of 35 -5- proved the photographs Ex.PW-5/1 to Ex.PW-1/16 taken by his employee Tejpal who left the services of the hospital.
iii. PW-6 SI Manohar Lal, draftsman, prepared scaled site plan of the spot at the instance of IO and proved the same as Ex.PW-6/A. iv. PW-7 ASI Kanwal Singh, duty officer, recorded DD No. 25A regarding one person shot near Shiv Mandir, Sukhbir Nagar and proved the same as Ex.PW-7/A. He also recorded FIR on the basis of rukka and proved the same as Ex.PW-7/B, DD No. 27 as Ex.PW-7/C regarding started recording FIR and DD No. 28 Ex.PW-7/D regarding registration of FIR.
v. PW-8 Sh. M. N. Vajeyan, Nodal Officer, Tata Tele Services Ltd., brought the record of mobile phone no. 9211687658 and proved that the same is in the name of Rajesh Kumar s/o Ram Dass and proved the copy of customer application form as Ex.PW-8/A, I.D. Proof as Ex.PW-8/B, downloaded copy of call details through emails as Ex.PW-8/C, copy of call details as Ex.PW-8/D, certificate u/s 65(B) of Evidence Act as Ex.PW-8/E and Cell I.D. Chart as Ex.PW-8/F. vi. PW-9 HC Surender Singh is MHC(M) with whom case properties were deposited, and he got deposited FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 5 of 35 -6- the same with FSL for examination and proved relevant entries as Ex.PW-9/A, Ex.PW-9/B, copy of road certificate as Ex.PW-9/C and receipt of FSL as Ex.PW-9/D. vii. PW-10 SI Sanjay Gade, Incharge Mobile Crime, who inspected the spot and proved his report as Ex.PW-10/A. viii. PW-11 Dr. J. V. Kiran is the doctor who conducted postmortem upon the dead body of deceased and observed as many as two gun shot injuries and opined cause of death is shock consequent to penetrating injury to the neck and abdomen via injury no.1 and 2 caused by projectiles discharged from rifle fire arm weapon and injuries were sufficient to cause death in ordinary course of nature and proved postmortem report as Ex.PW-11/A. ix. PW-12 Subhash identified dead body and proved his statement in this regard as Ex.PW-12/A. x. PW-14 W/Ct. Rekha is witness who recorded information that a person was shot by bullet at Sukhbir Nagar and filled the PCR form and flashed the information on the NET for subsequent transmission for needful and proved the said PCR form as Ex.PW-14/A. xi. PW-15 HC Phool Kumar is special messenger who delivered the copy of FIR to ACP, DCP, Joint CP FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 6 of 35 -7- and Area MM.
xii. PW-17 Sh. A. S. Bajwa, the then ACP, is witness who had sent the request for providing call details and proved request letter as Ex.PW-17/A. xiii. PW-18 SI Ishwar Singh is the first IO who on the receipt of the information reached at the spot and got preserved the dead body at mortuary for postmortem and witness of seizure of three sealed parcels alongwith sample seal after the postmortem and proved the seizure memo of the same as Ex.PW-18/A. xiv. PW-19 Ct. Manoj is witness who deposited the exhibits at FSL Rohini vide RC No. 36/21/09.
xv. PW-20 Ct. Sunil is witness of formal arrest of accused Rajesh on his surrender in the court and proved arrest memo as Ex.PW-20/A and pointing out memo of the place of occurrence as Ex.PW-20/B. xvi. PW-21 SI Ram Avtar is witness with respect to arrest of accused Rajesh under S. 41.1 Cr.PC and proved his arrest and personal search memo as Ex.PW-21/A and Ex.PW-21/B respectively.
xvii. PW-24 Sh. Naresh Kumar, Sr. Scientific Officer examined the exhibits biologically and serologically and proved the detailed reports as Ex.PW-23/E and Ex.PW-24/A respectively.
FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 7 of 35 -8-xviii.PW-25 Sh. Sudhanshu Kaushik is the Metropolitan Magistrate, who conducted TIP proceedings of accused Rajesh and proved application for request of TIP as Ex.PW-25/A, fixing the TIP for another date as Ex.PW-25/B, TIP proceedings of accused as Ex.PW-4/A, his certificate as Ex.PW-25/C, application of IO Ex.PW-25/D.
10. The prosecution also examined following witnesses of arrest and investigation :
i. PW-22 ASI Shiv Narain is the witness who initially reached at the spot on the receipt of DD entry and witness of seizure of articles from the spot and arrest of accused Dinesh, and recovery effected at his instance. He proved seizure memo of blood Ex.PW-22/A, seizure memo of earth control as Ex.PW-22/B, seizure memo of two live cartridges as Ex.PW-22/C, seizure memo of two empty cartridges as Ex.PW-22/D, seizure memo of bullet as Ex.PW-22/F, and their sketch memo as Ex.PW-22/E. He also proved arrest memo, personal search memo and disclosure statement of accused Dinesh as Ex.PW-22/G, Ex.PW-22/H and Ex.PW-22/J respectively, seizure memo of mobile phone make Nokia as Ex.PW-22/K, seizure memo of sim as Ex.PW-22/L, seizure memo of scooter as Ex.PW-22/M in addition to other memos.
FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 8 of 35 -9- ii. PW-23 Inspector Harish Chander is IO. He in addition to other memos proved rukka as
Ex.PW-23/A, site plan as Ex.PW-23/B, arrest memo of accused Rajesh in this case as Ex.PW-23/C, Kalandara u/s 41.1 (A) Cr.PC as Ex.PW-23/D, FSL report as Ex.PW-23/E.
11. After conclusion of the trial, statement u/s 313 Cr.PC of both accused persons recorded wherein they denied the prosecution evidence and claimed innocence.
12. Accused Rajesh stated that this is a false case. He is innocent and falsely implicated in this case. He was not knowing the co-accused Dinesh prior to his arrest in this case. The aforesaid phone number 9899228826 belongs to one other person, namely, Suresh s/o Jagdish resident of Karala, who is not his brother. His brother and he never used the aforesaid mobile phone number and he never made any telephonic call to co-accused Dinesh. He cannot tell as to why his co-villager Suresh s/o Jagdish was in communication with his co-accused Dinesh, as during trial he came to know that the number i.e. 9899228826 belong to his co-villager Suresh s/o Jagdish. However, his brother is Suresh s/o Prem Singh. The plot upon which the witnesses are claiming having dispute with his family, belongs to his family and since his childhood he is residing in the same without any kind of dispute as the said plot was purchased by his father from the father of Jagdish in the year 1972, as he has been knowning since his childhood. He FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 9 of 35 -10- stated that he would lead evidence in his defence and examined DW-1 Sh. Devender Singh.
13. Accused Dinesh also stated that he is innocent and falsely implicated in this case. He was not knowing the co-accused Rajesh prior to his arrest in this case. The aforesaid phone number 9899228826 belongs to Suresh S/o Jagdish, R/o Karala to whom he was in communication because he was having a electrician/electronic shop and used to do repair work on orders. During that period, he was in conversation with the aforesaid Suresh through his mobile in relation to repair of his electrical motor. The said Suresh S/o Jagdish is a different person, from his co-accused, namely, Suresh S/o Prem Singh, both resident of Karala. He never talk to his co-accused prior to his arrest in this case. He also stated that he would lead evidence in his defence and examined DW-2 Sh. Suresh Kumar.
14. I have heard Sh. A. K. Srivastava, Ld. Addl. PP for the State and Sh. Nitin Vashisth, Ld. Counsel for the complainant and Sh. Pradeep Rana, Advocate, for both accused persons. I have also gone through the record.
15. PW-2 R. K. Singh was the initial eye witness. He deposed that he is an advocate by profession and on 21.12.2008, after finishing his work at Tis Hazari Courts, he was coming back to his house. On that day, when he reached near the bus stand, adjoining the Shiv Mandir road at about 5:30 p.m, he found a crowd gathered in the gali, which is one gali away from their house. He went to his house. After 15-20 minutes, he heard FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 10 of 35 -11- that someone had fired gun shots. He came out in the gali and reached the place, where crowd had gathered. One person was lying with his face down and blood was also oozing from his body. He was aged about 60 years. He called at 100 number (sic) thrice from his mobile number and then police also reached there. Dead body was lifted from the spot. The scene was got photographed. Crime team also reached there.
16. He was declared hostile by the prosecutor. He stated that police had recorded his statement after 2-3 days of the occurrence. He could not admit or deny the suggestion that the person, who was lying in the gali, was also present in the gali, when he was going to his house and two boys were quarreling with him. He admitted that later on it was came to his knowledge that the person, who was lying in the gali was Jagdish, who later on expired. He also denied the suggestion that accused Rajesh, is the same person, who was with accused Dinesh and they both were quarreling with deceased Jagdish. He admitted his signature on Ex.PW-2/A and the address mentioned therein was also written by him, but he does not know its contents and he signed the same without reading the same properly. He admitted when he signed, the said memo was completely written but again stated the above said contents were written in his presence. Further said, the police officials had got prepared the paper before getting his signature
17. PW-7 ASI Kanwal Singh was duty officer on 21.11.2008. He stated that on that day at about 6.15 p.m., the wireless operators FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 11 of 35 -12- informed him that one person was shot near Shiv Mandir, Sukhbir Nagar. He recorded DD No.25A Ex.PW7/A. The same finds mentioned that one person has been shot dead at near Shiv Mandir, Sukhbir Nagar. The said call was also earlier recorded as P-59 from phone no. 9968384051.
18. Apparently PW-2 is a witness who had informed the police for the first time. Ex. PW-2/A is pointing out memo of Dinesh. Signature of this witness is below from other police witnesses with his address. As per statement of R.K. Singh recorded u/s 161 Cr.PC, he is given mobile number 9968384051 from which the call was given. This witness also claims that he had given the call from the said mobile phone. After the complainant not supporting prosecution, the whole prosecution case now rests on the motive of previous enmity and the eye witness Arun Kumar. Firstly lets have overview of the law with respect to the motive. Hon'ble Supreme court in case titled as Sheo Shankar Singh v. State of Jharkhand, 2011 Crl. L. J. 2139, observed as under : To quote :
13. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well settled by a long line of decision of this Court. These decisions have made a clear distinction between cases where prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eye witnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 12 of 35 -13- upon an eye-witness account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eye-witnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely even if prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eye-witnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eye-witness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eye-witnesses. See Shivaji Genu Mohite v. The State of Maharashtra, (1973) 3 SCC 219 : (AIR 1973 SC 55), Hari Shanker v. State of U.P. (1996) 9 SCC 40 and State of Uttar Pradesh v. Kishanpal and Ors.
(2008) 16 SCC 73 : (2008 AIR SCW 6322).
19. PW-3 Bijender, son of deceased, testified that he is having motor binding shop, situated at Village Karala. Accused Rajesh and his brothers, namely, Suresh and Satish had illegally possessed their plot in the village and there is a dispute between them for that plot. That plot belongs to his father and is in the name of his grand father. Accused Rajesh also threatened his father to kill him. One Panchayat was also held to solve the dispute, but due to fear and threats advanced by the accused Rajesh, Panchayat could not solve the dispute. There was also a litigation between his father and accused Rajesh for illegal possession. Accused Rajesh had advanced threats on so many occasions to kill his father and shoot him. And on 21.11.2008, his father was murdered. He also stated that one day prior to the FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 13 of 35 -14- murder of his father, accused Rajesh had threatened to kill his father and he (accused) had murdered his father.
20. PW-13 Randhir Singh testified that deceased Jagdish was his younger brother. Rajesh, Satish and Suresh are real brothers and identified Rajesh. They (witness) are having a plot, situated near the house of accused Rajesh, in khasra No.679/1, located at Village Karala. All the three aforesaid persons had taken adverse possession of their aforesaid plot, measuring about 450 sq. yards. He along with his deceased brother Jagdish had repeatedly made request to the aforesaid persons to vacate their plot, but they had clearly denied to do so and threatened them by saying tumhe jaan se maar denge. His father is residing at village Sanpla, District Rohtak, Haryana. The said plot is in the name of his father. Accused Rajesh, along with one other person had met his father at Sanpla Village and asked his father to sell the said plot in their name, otherwise he and his (witness) sons will face the dire consequences. But his father had declined to do so. He stated that on 25.05.2008, accused Rajesh and his brothers Suresh and Satish, after breaking the boundary wall of their plot had started construction over that plot. On 26.05.2008, Jagdish had informed the police at 100 number and police reached at the plot and stopped the construction. Thereafter, again in the night of 26.05.2008, accused Rajesh and his brothers again started construction on their plot. On this, on the next day i.e. 27.05.2008, he along with his brother Jagdish went to PS Kanjhawala, where they lodged a written complaint to the SHO, but no action was taken FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 14 of 35 -15- by the police on that written complaint and accused Rajesh along with his brothers continued construction work, on their plot.
21. He stated that on 28.05.2008, he along with his brother Jagdish again went to PS Kanjhawala and told about the matter to the SHO, who sent two constables with them. When they reached on the said plot, in the presence of both constables, accused Rajesh gave a punch blow on the chest of Jagdish and Jagdish fell down and accused Rajesh tried to hit him, but both the constables intervened and saved him. At that time, accused Rajesh again challenged by saying that police hamara kuchh nahi bigad sakti, dekh liya humne police ke samne usko mara hai, aur kaho to goli marke dikhaye aur tum main himmat hai to kabja le kar dikhao. At that time, they came back to their house with the help of two constables. Thereafter, in the evening of 28.05.2008, he along with his brother Jagdish went to the office of ACP Sultan Puri, where they made a written complaint against the accused Rajesh and his brothers. On the said complaint, the concerned ACP had telephoned SHO Kanjhawala to take action, but no action was taken by the SHO and they came back to their house. The accused persons continued illegal construction on their plot. On 29.05.2008, he along with Jagdish went to the office of DCP (Outer) District, where they also complained about the matter to the DCP. On receipt of their complaint, the DCP had directed SHO Kanjhawala, listen to the complainant, but even thereafter no action was taken on their complaint by the SHO. Thereafter, he FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 15 of 35 -16- along with his brother Jagdish (deceased) approached Commissioner of Police, ITO, Delhi, where they also made written complaint, dt. 03.06.2008. On 21.11.2008, his brother Jagdish was shot dead. The witness proved photocopy of complaint dated 27.05.2008 as Ex.PW-13/A and complaint dated 28.05.2008 Ex.PW-13/B.
22. Ex.PW-13/B is complaint made to ACP Sultanpuri, which is dated 28.05.2008 which bears signature of the witness Randhir Singh and the deceased. It is mentioned in the complaint that they had gone to the police station in the morning regarding complaint and thereafter two police constables accompanied them and on seeing that accused Rajesh and his family members hit Jagdish with punch and challanged them in the presence of police. It is also mentioned that they are in the habit of forcibly occupying the property.
23. Ex.PW-13/A is also complaint dated 27.05.2008, however, in the said document exhibit mark has not been put but there is no dispute regarding the identity of the document. The same is addressed to SHO PS Kanjhawala. In this complaint also it is mentioned that they (accused) had reached at village Sanpla and threatened his father to sell the property and if he does not sell the property or give road space to them then it may result in loss of their life. It is also mentioned that they had broken their boundary wall in the mid night of 25.05.2008.
24. PW-3 Bijender, son of deceased, in his cross-examination stated that he was informed about the death of his father by one Sh.
FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 16 of 35 -17-Dinesh at about 5:30-6:00 p.m, while he was in the electric market, situated at Avantika. He had not told the police officials in his statement that he has been informed by Dinesh. He did not tell the I.O the plot number and khasra number. He did not tell the I.O in his statement that the plot was in the name of his grand father. He does not remember whether on 21.11.2008, he had stated in his statement to the police that the panchayat could not be successful due to the fear and threats of the accused Rajesh. And again said no panchayati was threatened. He does not know, which panchayati was threatened by accused Rajesh, as he never participated in any proceedings of the panchayat and only his father used to go to attend the panchayat. He was confronted with the portion of his statement that his father and his grand father had filed a civil suit, regarding the plot in question.
25. He had not given any copy to the I.O, regarding the said civil litigation. The plot in question was in Lal Dora. They had not filed any suit in the court of SDM, regarding the possession of the said plot. He denied the suggestion that there is no plot belonging to them on which the accused persons had forcibly trespassed. He stated that his father had not made any complaint, regarding the threats allegedly made by the accused persons one day before the incident to him before any police authority, even no call was made at 100 number, nor he had made any call on 100 number. However, he denied the suggestion that no such threat was ever extended.
FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 17 of 35 -18-26. PW-13 Randhir Singh stated in his cross-examination that out of the land under Khasra No. 679/1, about 450 sq. yds, belong to them, which is in the name of his father who is alive and he has documents of ownership of the same. He admitted that as of now he does not have any document which suggest his ownership with regard to aforesaid plot but voluntarily stated that the same is in the name of his father. He stated that they were two brothers including deceased Jagdish. His father has also not executed any document in favour of his deceased brother in respect of the aforesaid plot. His father had filed a case but he could not tell the details of the said case. His father had not lodged any police complaint personally with regard to the said plot against anybody. He stated that as of now the family of the accused namely Rajesh is in the illegal possession of the said plot. In reply to the question whether he has filed any criminal or civil case against the Rajesh and his family members in any court of law with regard to possession of the said plot or seeking action against the accused, he stated that he had filed the complaint to the police dated 27.05.2008 and 28.05.2008, on which no action was taken by the police and he had also filed a complaint case on 12.06.2008 but he does not know where the said case is pending nor he knows the particulars of the same. He stated that police had not registered any FIR on his aforesaid complaint. He denied the suggestion that the father of the accused namely Rajesh had purchased the plot in question admeasuring 450 sq. yards from his father in the year 1972 by executing a Sale Deed and since then they are in continuous possession. He stated that his father is residing in FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 18 of 35 -19- Sampla, District Rohtak Haryana since his retirement in the year 1990 and he is residing at Karala, Delhi. He, however, could not tell the date as to when accused Rajesh had extended threat to him and his father at Sampla. However, it was in the month of March but no complaint was lodged with the police at PS Sampla.
27. He further stated that on the day when his brother was murdered, he alongwith his son Subhash and son of Jagdish namely Vijender went to PS at about 6:00 p.m. but had not disclosed anything to the police with regard to the dispossession of plot in question and the threat extended by the accused Rajesh and family members. On that day statement of his son and son of deceased was not recorded. He did not give any statement to the police with regard to the plot, therefore, they did not record his statement in this regard.
28. This witness is real brother of deceased and had remained present with him during one incident when the property in question was tresspassed and has produced the complaint made by the deceased and him to the police. His testimony corroborated by the complaint. Although this complaint were not handed over by him to the police when his statement was being recorded. However, those complaints only show inaction on the part of the police which police might have taken. Moreover, those complaints have been proved from the original official record of the police. Therefore it cannot be said to be manipulated and subsequently introduced. The testimony of this FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 19 of 35 -20- witness is reliable to the fact that the accused persons raising construction over the property and he alongwith deceased had made complaint with the SHO and when no action was taken to ACP and the accused Rajesh hit the deceased in his presence.
29. As regards testimony of Vijender, it is mostly hearsay.
However, he also corroborates other witness that there was dispute regarding plot of land which accused Rajesh and his brother has illegally possessed. Therefore the accused Rajesh has motive against Jagdish as he (Jagdish) was pursuing the complaint against them regarding illegal possession of the plot. Merely because they had not filed any civil suit to get the possession back does not in any manner proves that there was no dispute regarding the plot.
30. The other evidence is evidence of eye witness. PW-4 Arun Kumar is most important witness. He testified that he was doing the business of property dealer alongwith deceased Jagdish and on 21.11.2008, he alongwith deceased Jagdish had gone to village Karala and in the evening they went to Shiv Mandir, Sukhbir Nagar and at about 5:45-6:00 p.m. they came out from the Shiv Mandir, he went aside in a plot for urinating and deceased Jagdish was walking on the road. Meanwhile, two boys came from the right side gali and they started firing at Jagdish and Jagdish fell down. Those boys after firing at him turned back with their weapons and he thought that they are coming towards him and he ran away towards the fields. He became scared and perplexed. He identified those boys in the FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 20 of 35 -21- court. He stated that he also identified accused Rajesh in judicial TIP. Police recorded his statement on 8.4.2009.
31. Ld. Counsel on behalf of accused persons had submitted that the testimony of this witness is not reliable as his statement was recorded after a gap of about 5 months of the incident and explanation that he was scared and perplexed is not satisfactory as this witness has earlier remained in jail and therefore could not be scared and in fact is introduced witness. In support of his arguments, Ld. Counsel for accused cited Ganesh Bhavan Patel and another v. State of Maharashtra, AIR 1979 SC 135. In the said case, one person had illicit relation with the wife of the appellant accused no.1 who was aware of these relations, and about two to four months before the occurrence, had threatened to kill the deceased. The deceased at about 7:00 p.m. was returning home on his bicycle, and when he entered in the lane adjacent to their home, both the appellants assaulted him with knives and daughter of the deceased was sitting on the charpoy in the compound which was enclosed by a wall and was close to the lane. Another girl aged about 13 years was sitting on the Otla nearby. On being attacked, the deceased raised alarm bachao- bachao, daughter of deceased ran towards the place of occurrence and saw both appellants causing injuries to the deceased with knives, she was threatened by showing knife, she raised hue and cry on which another witness, who was passing from there in his car, came and on seeing him one of the assailants fled away with knife and another was caught hold by the witness who later on also got FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 21 of 35 -22- himself released and fled away. Another girl seeing the appellant assaulting the deceased ran towards residential room of the deceased and informed his wife who rushed to the place of occurrence. Thereafter police came. It is noticed that there was unusual delay in recording the statement of eye witnesses, although witnesses are available but their statement was recorded on the next day. It was held by Hon'ble Supreme Court that delay of few hours, simpliciter, in recording the statement of eye witnesses may not by itself, amount to a serious infirmity. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the eye-witnesses to be introduced. Ld. Counsel also cited Anil Mollah and Another v. State of West Bengal, AIR 1996 SC 3471. In this case, the deceased was owner of brick kiln. He was on his way and was accosted by four-five persons, appellant no.1 fired upon him with his gun and appellant no.2 slit the throat with a knife and after raising slogans '' Inquilab Zindabad' fled away. Employees of deceased witnessed occurrence and another employee heard the sound of gun shot. Hon'ble Supreme Court held that PW-3 employee of the deceased was present when deceased was assaulted. He did not raise any alarm. He did not go near employer even after assailants fled away, to see his condition. According to him, he got frightened and fled away to his home but he neither at his home nor in the village did disclose what he had seen in the evening. In the morning of following day, went to the fields of the deceased employer and many co-employee were present but FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 22 of 35 -23- he did not disclose to them. Even he gave information to three days after occurrence which was recorded by the police. It is observed that the conduct of the witness that he did not disclose till the next day appears to be unnatural and creates an impression that he is not witness of occurrence. The witness try to take shelter on the plea that he was frightened and he did not pick up courage to inform anyone either in the village or on the brick-fields regarding the occurrence. This plea was not accepted by the court.
32. Ld. Counsel on behalf of accused, also cited Peddireddy Subbareddi and others. v. State of Andhra Pradesh, AIR 1991 SC 1356. In the said case, on the day of occurrence deceased and his son-in-law PW1 went to village to obtain loan from his co-brother who told him that he was not having and will bring money within 2/3 days and thereafter they left village at about 6:00 p.m. when they were proceeding along a path way and after covering a distance of three-four farlangs accused 1 to 4 armed with axes and accused 5 to 7 each armed with dagger attacked the deceased and attempted to murder PW1. The deceased fell down crying 'I am dead'. PW1 ran to a distance of 20 yards and thereafter to his native place and informed mother-in-law. Thereafter crowd collected. Hon'ble Supreme Court held that testimony of PW1 who is only sole witness cannot be accepted as he his highly interested witness besides being highly artificial. It was observed that he was son-in-law. He did not go to the village and inform any one of the villagers, but on the other hand he went to his village which is said to be at the FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 23 of 35 -24- distance of four furlong and states that he only informed mother-in-law and came with the present version only on the next morning. The conduct of PW1 in not reporting to any of the villagers about the occurrence throws a considerably doubt on the veracity of his evidence which is incredible and the report about the occurrence was given by a delay of 15 hours.
33. Ld. Counsel also cited Panda Nana Kare v. State of Maharashtra, AIR 1979 SC 697. In the said case, PW-7 was only witness witness who was friend of the deceased. Facts of the case were that after a death of Yamunabai's husband, intimacy developed between Yamunabai and deceased, and Yamunabai was also friendly with accused, accused told Yamunabai to cut off her relations with the deceased and to remain in his exclusive keeping but she turned down his proposal and hence the accused developed enmity against the deceased. PW1 alongwith deceased went to sleep at court-yard tethered, PW7 heard the shriek of deceased and got up and saw accused running away at a distance 10 to 15 feet from him, he raised alarm, people gathered but he did not disclose assembled person that accused had thrown a stone and run away and therefore his testimony was rejected.
34. Ld. Counsel also cited Chanan Singh v. State of Haryana, 1971 SC 1554. In this case, where the questions were whether the witness actually saw accused firing at the deceased, and conduct consequent to the occurrence. It was observed that there was no evidence whatsoever to suggest that witness was struck by FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 24 of 35 -25- terror or fear, no one chased pursued or chased him and there was no threat to him . It would be strange to expect so many persons to stand silent and watch accused fire at deceased and none would offer any resistance. Hence his testimony was not held to be reliable.
35. On the other hand Ld. Counsel for the complainant also cited judgment of hon'ble Supreme Court in case titled as Sheo Shankar Singh v. State of Jharkhand & Anr., 2011 Crl. L. J. 2139. In the said judgment, the Apex Court summed up the law and delay in recording statement of witness. To quote :
49. Mr. Lalit contended that Mr. Prasant Banerjee (PW-6) was not an eye-witness as he had come to the place of occurrence 7-8 minutes after the occurrence.
He also argued that the witness had not made any statement to the police till 2nd June, 2000 which renders his story suspect. There is no doubt a delay of one and half months in the recording of statement of Prasant Banerjee (PW-6). The question is whether the same should by itself justify rejection of his testimony. Our answer is in the negative. The legal position is well settled that mere delay in the examination of a particular witness does not, as a rule of universal application, render the prosecution case suspect. It depends upon circumstances of the case and the nature of the offence that is being investigated. It would also depend upon the availability of information by which the investigating officer could reach the witness and examine him. It would also depend upon the explanation, if any, which the investigating officer may offer for the delay. In a case where the investigating officer has reasons to believe that a particular witness is an eye-witness to the occurrence but he does not examine him without any possible explanation for any such omission, the delay may assume importance and FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 25 of 35 -26- require the Court to closely scrutinize and evaluate the version of the witness but in a case where the investigating officer had no such information about any particular individual being an eye-witness to the occurrence, mere delay in examining such a witness would not ipso facto render the testimony of the witness suspect or affect the prosecution version. We are supported in this view by the decision of this court in Ranbir and Ors. v. State of Punjab (1973) 2 SCC 444 : (AIR 1973 SC 1409) where this court examined the effect of delayed examination of a witness and observed :
"....... The question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got-up witness to falsely support the prosecution case. It is, therefore, essential that the "Investigating Officer should be asked specifically about the delay and the reasons therefor....."
50. Again in Satbir Singh and Ors. v. State of Uttar Pradesh (2009) 13 SCC 790 : (AIR 2009 SC 2163) the delay in the examination of the witness was held to be not fatal to the prosecution case. This Court observed :
"32. Contention of Mr. Sushil Kumar that the Investigating officer did not examine some of the witnesses on 27th January, 1997 cannot be accepted for more than on reason; firstly, because the delay in the investigation itself may not benefit the accused; secondly, because the Investigating Officer (PW 8) in his deposition explained the reasons for delayed examination of the witnesses..."
36. Ld. Counsel also cited case titled as Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) II (2010) CCR 179 (SC). In the said case, it was held that mere delay in recording statement of witness does not necessarily discredit their testimonies. Ld. Counsel also cited a judgment of Division FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 26 of 35 -27- Bench of Allahabad High Court in case titled as Hakimuddin alias Hakim v. State of U.P., 2011 (61) ACR 2430. It is with respect to the fact that testimony of a related witness cannot be rejected on this ground alone. Ld. Counsel also cited judgment of division bench of our own hon'ble High Court in case titled as Rajinder alias Lala and etc. v. State, 2010 Crl. L. J. 15. In the said case, in the night deceased alongwith PW1 and PW2 were going to a market for purchasing pigs and on the way, they met by the appellants who were gambling at that time, the deceased also joined in the gambling while other two stood outside the slum dwelling where the deceased and appellants were gambling and after having won the entire stake money, the deceased was leaving the slum-dwelling in question when appellants asked him to lend some money to them and on refusal by the deceased to do so, the appellants indiscriminately stabbed him and fled from the place of occurrence after causing the death of the deceased and PW1 and PW2 witnessed the incident. PCR Police also received the information and police reached at the spot. PW1 and PW2 who claimed to have witnessed the incident of murder of the deceased were also found present at the spot. IO recorded statement of PW1 and forwarded the same for registration of FIR. After registration of FIR, IO also recorded statement of PW1 Hemraj u/s 161 Cr.PC. It was observed that both eye witnesses have deposed that they ran away from the place of occurrence after they being threatened by the appellant and the Court held that can conduct of said witness in running away from the place of occurrence to the safety of their neighbourhood after being threatened by the FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 27 of 35 -28- appellants who were armed with knives and had already murdered the deceased in a gruesome manner is a natural conduct.
37. Ld. Counsel also cited Rakesh & Anr. v. State of M.P., 2011 [4] JCC 2712. In the said case, hon'ble Supreme Court held that minor discrepancies between narration of the witnesses, the evidence cannot be discarded. Ld. Counsel also cited Mohammad Mian v. State of Uttar Pradesh, AIR 2011 SC 397 wherein hon'ble Supreme Court held that the inconsistency in the three witnesses who have stated that there were enmity between parties since long, minor discrepancies were insignificant. Ld. Counsel also cited another judgment of hon'ble Supreme Court in case titled as Ramesh & Ors. v. State of Rajasthan, 2011 (3) JCC 1599. In the said case, hon'ble Supreme Court held that some irregularities here and there or some casual investigation by the police, does not in any manner benefit the accused.
38. There is no quarrel to the legal propositions cited by both the parties. However, the appreciation of evidence would depend upon the fact and circumstances of each case. Now, in the light of above, I shall analysis the testimony of PW-4. In his cross-examination he stated that he used to remain with deceased Jagdish most of the time, as they used to deal with the properties/estates jointly. At the time of incident, the temple was open and lot of peoples were there, praying therein. He did not go to the temple to inform the people. He does not know, FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 28 of 35 -29- whether the person, present in the temple or in front of the temple, saw the incident or not, as soon after the incident he ran away from the spot. He did not tell about the incident to anybody including his family members or the family members of the deceased. He did not visit any police officials or PS to this effect and he voluntarily stated that he was scared. He did not make any call to the police control room, as he straight away went to his home. He never visited the house of the deceased thereafter. Police also never met him with regard to the investigation of this case. He never saw the accused. The family members of the deceased had never visited his house despite the fact that the deceased was the partner with him in his property dealing business. According to him, the family members of the deceased were not knowing this fact that the deceased had gone with him to Shiv Mandir, Sukhbir Nagar. He did not ask anything about the investigation of the present case. He was not aware, who had been arrested in this case during the investigation till April, 2009, nor he knew whether any assailant had been arrested till April, 2009. He admitted that he is facing trial in a case registered at PS Narela, regarding quarrel and in the said case he was also arrested and remained in custody for 28 days in the said case in the year 2007. However, he denied the suggestion that the said case was of kidnapping. He could not tell the FIR number of the said case.
39. He stated that he came to know from his friends that one of the assailants had been arrested in this case but he could not tell the name of the said friend, from whom he came to know.
FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 29 of 35 -30-40. PW-13 Randhir Singh stated that his deceased brother had left his job in 1995 and thereafter he was not doing any worthwhile vocation. He categorically stated that he did not know PW-4 Arun resident of Pooth and again stated that he had seen (him) on the last date of hearing outside the court only once. He stated he did not know whether the said person is friend of son of Jagdish namely Vijender.
41. PW-13 brother of deceased had been pursuing the complaint with deceased regarding dispute of the plot, had categorically stated that his deceased brother was not doing any worthwhile vocation and he even stated that he does not know any person namely Arun (PW-4) whereas PW-4 Arun claims that he was partner in the business of property dealing with deceased and mostly deceased used to remain with him. It is not possible that deceased was working with PW-4 in property business and PW-3 would not know this fact. Whereas he was pursuing the complaint only 4/5 months prior to this incident. Further it is also surprising that none of the family members of deceased had visited PW-4 to know as to who had killed him or whether he was with him on the date of occurrence or not. The conduct of this witness is such that he cannot be believed. This witness claims that he was scared and therefore did not tell anyone from his family members. He even did not visit family of the deceased after his death despite the fact that deceased was partner in the property business. He had not made any enquiry regarding the investigation. He is not even aware as to who was arrested in this case. This witness is not a person who is not FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 30 of 35 -31- aware about criminal proceedings. He had been arrested two years back and remained in judicial custody for 28 days. Therefore it cannot be believed that he got scared and therefore did not make statement for five months.
42. The cited judgment Rajinder alias Lala and etc. v. State (supra) of division bench of hon'ble Delhi High Court is not applicable to the facts of the present case as in the said case the witnesses who saw murder run away and thereafter when police came they were present at the spot and their statement was recorded. Therefore the fear in their mind was temporary. If it is believed that he was scared after having seen the murder, he was remained silent for about five months. He is not aware as to who was arrested. Therefore it cannot be believed that he waited for arrest of the actual assailants and thereafter came to the police to get his statement recorded when the fear ceased to exist. Therefore the testimony of this witness cannot be believed and this witness has even contradicted the own family member of the deceased who claims that they do not know any person namely Arun. Therefore his testimony is highly suspect.
43. Further as regards identity of the accused Rajesh @ Anta, in the TIP, this witness has categorically stated that he is resident of Village Pooth Kalan, Delhi since his birth. He admitted that Village Karala and Village Pooth Kalan are adjacent to each other. The boundaries of both the villages are overlapping. The residents of both the villages are visiting each other on the occasion of marriages and at the time of holding of village FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 31 of 35 -32- panchayats. PW-4 Arun is resident of Pooth Kalan whereas accused Rajesh @ Anta is resident of Karala, and admittedly both villages are adjacent to each other and therefore he could have identified him in TIP as he was resident of adjacent village and not much importance can be attached to the TIP of the accused.
44. As regards accused Dinesh, he has been arrested on the basis of phone calls made on his telephone by the co-accused Rajesh and mobile chip was recovered from his possession. As per chargesheet, mobile phone bearing no. 9899228826 was belonging to Rajesh and from the said phone before the time of incident many calls were made on 9811068950 and when the call was made on his phone it was found switched off and his ownership was traced, it was found be in the name of Dinesh @ Naresh s/o Randhir Singh resident of Village Katawra, Delhi. He was apprehended and he admitted guilt and has chewed chip.
45. PW-1 Anuj Bhatia, Nodal Officer, Vodafone Mobile services Ltd. testified that as per record the mobile phone no. 9899228826 issued by the Vodafone Services which was previously Hutch and as per record, mobile number was issued to one Kosain Alam Ansari, and he proved the attested copies of application form, declaration form, I.D. Proof as Ex.PW-1/A, Ex.PW-1/B, Ex.PW-1/C and Ex.PW-1/D respectively. As per record telephone number 9811068950 is issued in the name of Dinesh s/o Randhir and proved application form as Ex.PW-1/E, FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 32 of 35 -33- declaration form as Ex.PW-1/F and identity proof of Dinesh as Ex.PW-1/G. He also proved call details. Thereafter the same nodal officer was recalled on the application u/s 311 Cr.PC of prosecution and he had produced customer application form of the mobile number 9899228826 which was found to be issued in the name of Suresh resident of H. No. 189, Village & PO Karala and proved the same as Ex.PW-1/X. In his cross-examination he stated that as per their record the phone number 9899228826 in the month of November 2008 was being used by the subscriber namely Suresh s/o Sh. Jagdish, resident of Karala. He stated that initially the abovesaid number was in the name of Kamal Chaudhary w.e.f. 26.10.2006 to 26.07.2007 and thereafter this number was issued in the name of Kausain Alam Ansari w.e.f. August 2007 to July 2008 and thereafter it was in the name of Suresh s/o Sh. Jagdish w.e.f. 7.11.2008 to November, 2009. Thereafter it was in the name of Noor Mohd. w.e.f. November 2009 to May 2011 and currently it is being used by Manoj Kumar w.e.f. May, 2011.
46. As per IO, later on the CDR of the mobile phone of accused Rajesh was obtained and as per call details report, phone number 9899228826 was found to be in the name of Suresh brother of accused Rajesh. When the phone calls were analyzed, it was found that there were several calls between the abovesaid number and phone number 9811068950 which belongs to accused Dinesh.
47. As per record of mobile phone company, the phone number FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 33 of 35 -34- 9899228826 in the month of November 2008 was being used by the subscriber namely Suresh s/o Sh. Jagdish, resident of Karala However, interestingly this is not a Suresh who is brother of accused Rajesh @ Anta as the name of the father of the accused Rajesh @ Anta is not Jagdish but in fact is Prem Singh. Accused Dinesh examined DW-2 Sh. Suresh Kumar s/o Sh. Jagdish Singh who deposed that he was having a mobile phone no. 9899228826 during the period of November, 2008 in his name. He knows the accused Dinesh. He was an agriculturist and in his tubewell whenever the electric motor needs some repair, he used to call Dinesh for repairing the same and other jobs. He used to call him on his mobile from his mobile phone for such jobs. On account of non-working of electric motor he called Dinesh from 21.11.2008 or 22.11.2008 several times from his mobile to his mobile number 9811068950. Therefore, if it is believed that on the date of incident many time conversation took place between mobile numbers 9899228826 and 9811068950, it cannot be linked with the present offence. Even otherwise there is no other evidence against accused Dinesh @ Naresh.
48. The only evidence against these two accused persons after discarding testimony of PW-4 Arun Kumar and the link of mobile phone between two, is only motive. It is settled principle of law that enmity is doubled edged weapon, it can be used for falsely implicating and it is also motive to commit crime. Hon'ble High Court of Delhi held so in case titled as Dharambir @ Dharma v. State, Crl. Appeal No.119/2010 & FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 34 of 35 -35- Crl. M. (Bail) 1451/2010 decided on 13.10.2011. Moreover, the motive in the present case is remote possibility as incident had taken place about five months ago before the date of occurrence and merely on the basis of the motive one cannot be convicted.
49. As per discussion above, I am of the opinion that prosecution has failed to prove their case against accused Rajesh @ Anta and Dinesh @ Naresh beyond reasonable doubt. They are accordingly acquitted of the charges. They are in j/c, therefore, they be set at liberty forthwith if not required in any other case. Case property, if any, be destroyed after the expiry of period of appeal. File be consigned to record room.
Announced in the open court today i.e. on 07.06.2012 GURDEEP SINGH ASJ-03/Outer/Rohini/ Delhi 07.06.2012 FIR No.:182/2008, PS: Kanjhawala State v. Dinesh @ Naresh etc. Page 35 of 35