Delhi District Court
State vs . Anil Kumar on 30 April, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDITIONAL SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 1231/10
Unique Case ID No.: 02404R0198722010
State Vs. Anil Kumar
S/o Roshan Lal
R/o Gali No. 1, Patel Nagar,
Bahadurgarh, Distt. Jhajjar,
Harayana
(Convicted)
FIR No.: 153/2010
Police Station: Keshav Puram
Under Section: 302/307/392/397/511 Indian Penal Code and
25/27/54/59 Arms Act
Date of committal to sessions court: 28.8.2010
Date on which orders were reserved: 23.3.2012
Date of which judgment announced: 16.4.2012
JUDGMENT:
1. As per allegations, on 10.5.2010 at about 11:45 am at 2021/159, Ganesh Pura, Tri Nagar the accused Anil Kumar committed robbery of a bag containing Rs.2,50,000/ from Nitin Bansal, Krishan Kumar Bansal and Sandeep Kumar on the point of pistol. It is also alleged that while committing robbery the accused Anil Kumar fired a pistol shot on Nitin Kumar with such intention and knowledge and under such St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 1 circumstances that if he by that act caused death of Nitin Bansal, he would have been guilty of murder. Further, while committing robbery the accused Anil Kumar also fired with his pistol on Krishan Kumar Bansal and caused his death.
BRIEF FACTS/ CASE OF THE PROSECUTION:
2. The case of the prosecution is that on 10.5.2010 DD No. 15 was received at Police Station Keshav Puram pursuant to which SI Sanjeev Verma along with police staff reached Gali No.7, Kanhaiya Nagar, Tri Nagar where one Sandeep Kumar met him and produced the accused Anil Kumar along with pistol allegedly recovered from the accused. Sandeep Kumar also informed the police that accused had fired upon Krishan Kumar Bansal and Nitin Bansal who were removed to Maharaja Aggarsain Hospital. Thereafter, SI Sanjeev Verma handed over the accused and the pistol to ASI Mohd. Swaley whereas he himself went to Maharaja Aggarsain Hospital and collected the MLC of Krishan Kumar who was declared dead by the doctors. Injured Nitin Bansal was found present in the operation theater and therefore, SI Sanjeev Verma returned to the spot where he recorded the statement of Sandeep Kumar.
3. In his statement to the police Sandeep Kumar informed the police that for the last 14 years he was working with Krishan Kumar Bansal who was doing the work of Accounts at 2021/159, Ganesh Puri, Tri Nagar, Delhi. He further told the police that on 10.5.2010 he along with Nitin St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 2 Bansal (son of Krishan Kumar Bansal) went to Axix Bank ND Block, Pitampura to withdraw the money and at about 11:45 AM they came back after withdrawing Rs.2,50,000/ from the bank with amount was being carried in a red and blue coloured carry bag. According to Sandeep Kumar, the moment he and Nitin Bansal reached the gate of their office, one boy came from behind and snatched the bag containing money from his hand on the point of pistol and asked him, Nitin Bansal and Krishan Kumar (who was already present in the office) to go inside and threatened them. Thereafter the said boy ran away and tried to start a black coloured motorcycle make Pulsar bearing no. DLASW455 and in the meanwhile they (Sandeep Kumar, Nitin Bansal and Krishan Kumar Bansal) apprehended the said boy. On this the boy threatened to kill them and when they did not release him, the said boy fired 34 shots towards them during which he (Sandeep Kumar) snatched the bag from his hand. One bullet hit the right arm of Nitin Bansal whereas another bullet hit on the stomach of Krishan Kumar Bansal on which blood started oozing out. Sandeep Kumar further informed the police that his attention was diverted towards Nitin Bansal and Krishan Kumar Bansal and the said boy ran towards gali no.1 Kanhaiya Nagar on which he raised an alarm pursuant to which the said boy was apprehended by the public persons along with the pistol and was beaten up. Thereafter one Hemant Mehra shifted Krishan Kumar Bansal to Hospital whereas Nitin was removed to hospital by PCR van.
St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 3
4. On the basis of statement of Sandeep Kumar, the present case was got registered and the accused Anil Kumar was arrested. After completion of investigations charge sheet was filed against the accused. CHARGE:
5. This court has settled the charges under Sections 392/397/307/302 Indian Penal Code and Sections 25/27/54/59 of Arms Act to which the accused has pleaded not guilty and claimed trial.
6. Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the defence and the documents proved by them are hereby put in a tabulated form as under:
List of witnesses:
Sr. PW Name of the Witness Category of witness
No. No.
Prosecution witnesses:
1 PW1 Dr. V.K. Jha Official witness (Autopsy Surgeon)
2 PW2 Dr. Ashok Gupta Witness from Mahajraja Aggarsain
Hospital
3 PW3 Ct. Sikander Police witness
4 PW4 SI M.D. Meena Crime Team Incharge
5 PW5 HC Rohtash Duty Officer
6 PW6 SI Mahesh Kumar Draftsman
7 PW7 HC Narender Kumar Police witness/ MHCM
8 PW8 HC Jagdish Chand Duty Officer (PS South Rohini)
St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 4
9 PW9 Ct. Subhash Chand Photographer of Crime Team
10 PW10 W/Ct. Meenakshi Duty Officer/ DD Writer
11 PW11 Ajesh Gupta Official witness (Deputy Manager,
Axix Bank)
12 PW12 Rakesh Mehra Public witness
13 PW13 Hari Kishan Public witness
14 PW14 HC Jai Prakash Police witness/ MHCM
15 PW15 Ct. Ramesh Kumar Police witness
16 PW16 Sh. B.S. Jaiswal Deputy Commissioner of Police -
accorded sanctioned u/s. 39 of
Arms Act
17 PW17 Ms. L. Babyto Devi Forensic expert (Biological/
Serological)
18 PW18 HC Dharambir PCR official
19 PW19 Rahul Gupta Public witness
20 PW20 Hemant Mehra Public witness
21 PW21 Nitin Bansal Injured/ son of the deceased
22 PW22 Sanddep Kumar Public witness
23 PW23 Puneet Puri FSL (Ballistic) expert
24 PW24 HC Bhupender Singh Police witness
25 PW25 SI Sajeev Verma Initial Investigating Officer
26 PW26 Ct. Pawan Kumar Police witness
27 PW27 Inspector Ashok Kumar Investigating Officer
Defence witnesses:
28 DW1 Ashok Kumar Public witness (former employee)
29 DW2 Rajpal Public witness (former employee)
St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 5
List of documents exhibited:
Sr. Document Details Proved by
No. exhibit No.
1. Ex.PW1/A Postmortem Report Dr. V.K. Jha
2. Ex.PW1/B Opinion regarding range of fire arm
3. Ex.PW2/A MLC of injured Nitin Bansal Dr. Ashok Gupta
4. Ex.PW3/1 Affidavit of Ct. Sikander Ct. Sikander
5. Ex.PW3/A DD No.23A
6. Ex.PW4/1 Affidavit of SI M.D. Meena (Crime SI M.D. Meena
Team Incharge)
7. Ex.PW4/A Crime Team Report
8. Ex.PW5/1 Affidavit of HC Rohtash (Duty HC Rohtash
Officer)
9. Ex.PW5/A DD No. 19/A
10. Ex.PW5/B FIR
11. Ex.PW5/C DD No. 20/A
12. Ex.PW5/D DD No. 23/A
13. Ex.PW5/E DD No. 28/A
14. Ex.PW6/1 Affidavit of SI Mahesh SI Mahesh
(Draftsman)
15. Ex.PW6/A Scaled site plan
16. Ex.PW7/1 Affidavit of HC Narender HC Narender
17. Ex.PW8/1 Affidavit of HC Jagdish HC Jagdish
18. Ex.PW8/A FIR No. 138/10
19. Ex.PW9/1 Affidavit of Ct. Subhash (official Ct. Subhash
photographer)
20. Ex.PW9/A1 Photographs
to PW9/A6
St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 6
21. Ex.PW9/B Negatives of photographs
22. Ex.PW11/A Bank account statement Ajesh Gupta
23. Ex.PW11/B Covering letter
24. Ex.PW11/C Authority Letter
25. Ex.PW13/A Dead body identification memo Hari Kishan
26. Ex.PW13/B Dead body identification memo
27. Ex.PW13/C Receipt of dead body
28. Ex.PW14/A Entry No. 2540 of Register No. 19 HC Jai Prakash
29. Ex.PW14/B Entry No. 2542 of Register No.19
30. Ex.PW14/C Copy of RC
31. Ex.PW14/D FSL Receipt
32. Ex.PW15/1 Affidavit of Ct. Ramesh Ct. Ramesh
33. Ex.PW16/A Sanction U/s. 39 of Arms Act Sh. B.S. Jaiswal
34. Ex.PW17/A Biological report in respect of the Ms. L. Babyto
exhibits Devi
35. Ex.PW17/B Serological report in respect of the exhibits
36. Ex.PW18/A PCR Forms HC Dharaveer to PW18/C
37. Ex.PW21/A Bill of Maharaja Aggarsain Nitin Bansal Hospital
38. Ex.PW22/A Statement of Sandeep Sandeep Kumar
39. Ex.PW22/B Sketch of the pistol
40. Ex.PW22/C Seizure memo of pistol and cartridges
41. Ex.PW22/D Site plan
42. Ex.PW22/E Arrest memo of accused Anil St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 7
43. Ex.PW22/F Personal search memo of Anil
44. Ex.PW22/G Seizure memo of bag
45. Ex.PW23/A Ballistic examination reports Puneet Puri & PW23/B
46. Ex.PW24/A Seizure memo of clothes of injured HC Bhupender
47. Ex.PW24/B Seizure memo of clothes, pellet, blood sample gauze piece of deceased
48. Ex.PW25/D Rukka SI Sanjeev Verma
49. Ex.PW25/E Copy of FIR
50. Ex.PW25/F Sketch of the cartridges
51. Ex.PW25/G Seizure memo of cartridges
52. Ex.PW25/H Seizure memo of blood lifted from motorcycle
53. Ex.PW25/I Seizure memo of blood lifted from concrete
54. Ex.PW25/J Seizure memo of motorcycle
55. Ex.PW25/K Seizure memo of chappal
56. Ex.PW25/L Disclosure statement of Anil
57. Ex.PW26/A Seizure memo of shirt and blood Ct. Pawan Kumar sample of accused
58. Ex.PW26/B Seizure memo of swabs of accused
59. Ex.PW27/A Death Report Insp. Ashok
60. Ex.PW27/B Notice U/s. 160 Cr.P.C. Kumar
61. Ex.PW27/C Request for postmortem
62. Ex.PW27/D Brief facts
63. Ex.PW27/E Application for TIP
64. Ex.PW27/F Application for copy of TIP St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 8
65. Ex.PW27/G Copies of RC & PW27/H
66. Ex.PW27/I Acknowledgment of FSL & PW27/J
67. Ex.PW27/K MLC of accused Anil
68. Ex.PW27/L MLC of Krishan Kumar
69. Ex.PW27/M Death certificate of Krishan Kumar
70. Ex.PW27/N Application seeking opinion of Autopsy Surgeon PROSECUTION EVIDENCE:
7. In order to prove its case the prosecution has examined as many as twenty seven witnesses as under:
Public witnesses/ eye witnesses:
8. PW12 Rakesh Mehra is a resident of the same area and is a tailor by profession. He has deposed that on 10.05.20010 at about 12.0012.15 Noon he was passing through the road when he found many persons gathered in the street and also found a person in injured condition. According to him, he came near the crowd and also came to know that some persons had caused injuries by bullet to Krishan Kumar Bansal and his son Nitin Kumar Bansal whom he knew being the residents of Tri Nagar. He has proved having made a call to PCR on 100 number from his mobile bearing no. 9136244442 and left the spot and the PCR van came there.
St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 9
9. In his cross examination by Ld. Defence counsel witness has deposed that the police post is situated in the street leaving three streets from the street in question and his statement was recorded after twothree days of the incident when he was called in the police post Shanti Nagar. According to the witness, he was called by the police officials on telephone but he does not remember the time when his statement was recorded and has stated that it was day time. Witness has further deposed that he was going to his house form his shop and in the way he found crowd due to which reason he went there.
10. PW13 Hari Kishan Bansal is the father of the deceased Krishan Kumar and grandfather of the injured Nitin Bansal. He has deposed that his son Krishan Kumar Bansal used to reside at 3522/3, Narang Colony, Delhi and used to do the accounts work at Ganesh Pura, Tri Nagar, Delhi. According to him after the incident with his son and grandson Nitin Bansal, he went directly to Maharaja Aggarsen Hospital and his son Krishan Kumar Bansal was declared dead by the doctors. Witness has further deposed that he had identified the dead body of his son Krishan Kumar Bansal in the hospital vide Ex.PW13/A. According to him, one Vinod Kumar who is brother in law (Sala) of his son Krishan Kumar Bansal had also identified the dead body and his statement was also recorded by the Investigating officer regarding identification vide Ex.PW13/B. He has proved that after getting the postmortem conducted he obtained the body vide receipt Ex.PW13/C. St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 10
11. In his cross examination by Ld. Defence counsel witness has deposed that his said statement was recorded by the Investigating Officer in BJRM Hospital from where he obtained the dead body of his son.
12. PW19 Rahul Gupta a resident of the same area and is running a ready made garments shop in the name of Preeti Collection at 2019/157, Ganesh Pura, Tri Nagar. He has deposed that he does not remember the month but it was 10th day of 2010 he was sitting in his shop when at about 11:4512 noon he heard noise of two or three fire shots on which he came out of his shop and found that one person had sustained fire shot in the hand and his father was also with him. The witness has further deposed that he knew the injured as they were his customers and later on he came to know that the father of the injured also received bullet shot. According to him, blood was found oozing from the hand of the boy who received bullet shot and the public persons were beating one person at some distance. He has proved that he thereafter made a call to the PCR from his mobile bearing No. 9811520510 on which PCR came to the spot after sometime. The witness has further deposed that both the injured were taken to the hospital by the public and the person who was being beaten by the public was handed over to the police. The witness has correctly identified the accused Anil Kumar as the person who was beaten by the public and was handed over to the PCR.
St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 11
13. In his cross examination by Ld. Defence Counsel, the witness has explained that accused was not known to him previous to this incident. According to him, he did not hand over to the Investigating Officer any document showing that he was running the aforesaid garments shop and has deposed that the incident took place hardly at a distance of about ten to fifteen meters from his shop. He has explained that the police post is situated in their area leaving three streets from his shop but the police official from the said Shanti Nagar police post came after the PCR arrived. According to him, firstly the local police came to the spot after about five to seven minutes of his call to the PCR. He has stated that one police man came on motorcycle and rest came on foot, but he is unable to tell the total number of police officials. The witness has further deposed that he was called by the SHO to the police station after two days when his statement was got recorded at noon time but states that he did not mention the names of the persons who were injured due to the fire shots in his statement recorded by the Investigating Officer nor he can tell the names of the injured. He has also deposed that when the local police came to the spot there were 100150 public persons who had gathered there and the police remained at the spot till such time the injured was taken to the hospital. He has denied the suggestion that accused was shown to him outside the Court by the Investigating officer and it was for this reason he had identified him in the Court and has voluntarily explained that he had seen the accused at the spot committing the offence and it was for this St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 12 reason he could identify him. He has testified that the accused was apprehended by the public near gali No.1, Kanhiya Nagar, Tri Nagar, Delhi.
14. On a specific Court question the witness has explained that the public ran behind the accused till gali No. 1 where he was apprehended. He has further deposed that he did not go to gali No.1 where the accused was apprehended by public persons and has voluntarily stated that he had only seen him at the place of the incident. He has denied the suggestion that public had apprehended some other person who has been released by the police and accused was lifted from his office and falsely implicated in the present case on account of his animosity with SI Jagdish Dahiya of Bahadurgarh who was posted at Police Station Rohini at that time who got the accused involved in the case through a police officer Subhash posted at Police station Keshavpuram at that time. He has also denied the suggestion that accused is not involved in the incident and he had wrongly identified him at the instance of the local police.
15. PW20 Hemant Mehra is also a resident of the same area having business of computer hardware at 3823/6. Kanhaiya Nagar, Tri Nagar, Delhi. He has deposed that on 10.05.2010 he was coming out from his house bearing number 3833, Gali no.7, Kanhaiya Nagar where his brother Sh. R.K. Mehra is residing when he heard the voice of fired shot. According to the witness, he rushed towards the spot and found one person running with a pistol in his hand and Nitin having bullet shot on his hand whereas Krishan Bansal was having bullet shot on his stomach. The St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 13 witness has further deposed that one Sandeep Kumar who was the worker of Krishan Bansal was also there near the motorcycle and blood was found oozing from the hand of Nitin Bansal and from the stomach of Krishan Bansal on which he went to them. He has testified that Krishan Bansal, Nitin Bansal and Sandeep Kumar informed him that the person who was running from there had given bullet shot to them on which he immediately brought his Santro car and took Krishan Bansal in his Santro car and shifted him to Maharaja Agrasen Hospital. According to him, the PCR van also came there which took Nitin Bansal to Maharaja Agrasen Hospital. He has further deposed that he got Krishan Bansal admitted in the hospital but Krishan Bansal was declared dead by the doctor. The witness has also deposed that the person who was running from the spot with the pistol was apprehended at some distance by the public and he had seen him at the spot. He has correctly identified the accused Anil Kumar as the same person who was running from the spot with the pistol.
16. In his cross examination by Ld. Defence Counsel the witness has deposed that he was residing at house no. 3782/4, Kanhaiya Nagar but house no. 3833/7 where his brother is residing, is also his house but he had not given any document to show his residential proof and has voluntarily added that police never asked him for the same but he has his voter Icard which could show that he was residing at 3782/4, Kanhaiya St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 14 Nagar, Tri Nagar. According to him, he was known to the family of Krishan Bansal and Nitin Bansal since childhood and he was residing in this area since 1967 but the accused was not known to him and he never saw him in the area previously. The witness has testified that the place of the incident is hardly 5060 steps away from house no.3833/7 and the place of incident is on the same road/ gali where his aforesaid house is situated. According to him, he was not aware if there is a police post in the same gali and has voluntarily added that in so far as he remember the police post is in gali no. 12 which falls in Ganesh Pura area. Witness has further deposed that he did not follow the accused since he felt that it was his duty to first rush the injured to the hospital. He has admitted that both the injured were bleeding and has voluntarily added that apart from blood some liquid and bubbles were also coming out from the injury of Krishan Kumar Bansal who had been hit on the stomach. According to PW20, he had physically lifted the injured into his car and some blood had also come on his clothes during this process but the police did not seize the said clothes nor they asked him to hand over the same. Witness has further deposed that the police from the PCR had first met him while he was in the process of shifting the injured to the hospital and has voluntarily added that he had told the PCR officials that he was shifting the injured to Maharaja Agrasen Hospital. He has deposed that after the incident large number of public persons had gathered at the spot and there may be a crowd of 50100 persons and has voluntarily added that there were so many people in the St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 15 gali that it became difficult for him to move his car out of the area. PW20 Hemant Mehra has further deposed that the PCR had first come to the spot but he is not aware when the local police came to the spot and some person from the police had brought the other injured Nitin to the hospital who met him there. According to him, it took him about half an hour to reach Maharaja Agrasen Hospital where he reached at about 11:4512:00 noon and stayed at the hospital for about two to two and a half hours. Witness has further deposed that during this period some police officers had come to him and made inquiries in the hospital itself and his statement was recorded on 11.05.2010 at police chowki. He has deposed that there was not much blood which had come on the car when he took the injured to the hospital and has voluntarily added that more of the liquid and air bubbles were coming out from the injury of Krishan Kumar Bansal than blood. He is unable to tell the place where the accused was apprehended and has stated that he had only seen the accused running with the pistol in his hand after he had fired at the injured and the deceased. He has admitted that he did not see the accused actually firing upon the injured Nitin Bansal and the deceased Krishan Kumar Bansal but has voluntarily explained that the accused had already fired by at that time and was about 15 steps away from the injured when he was running away with the pistol in his hand. According to him the accused was running away in the opposite direction from him and has voluntarily added that he saw the face of the accused only once when he had turned around to see if anybody was following him. St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 16 Witness has further deposed that initially one or two persons were running after the accused but since a hue and cry was raised other persons also started running after him and has voluntarily added that his attention thereafter was only upon the injured and the deceased. PW20 has testified that he had seen the face of the accused at a distance of about 20 steps away and has voluntarily added that by that time he (witness) had rushed near the injured. According to the witness, he does not recollect what clothes the accused was wearing at the time of the incident but has voluntarily added that the accused was wearing shirt and he does not recollect whether it was with trousers/ pants or with parallels. Witness has further deposed that he had not seen accused coming to the spot but public persons were saying that he had come on a bike which was lying at the spot. He has denied the suggestion that accused has been shown to him outside the Court and he had identified him on the pointing out of the Investigating Officer. The witness has further denied the suggestion that he had never seen the face of the accused or that he was not present at the time of incident and came out of his house much later after the entire incident was over only to shift the injured to the hospital.
17. PW21 Nitin Bansal is the son of the deceased who had also received injuries in the incident. He has deposed that he is looking after the account work at 2021/159, Ganesh Pura, Tri Nagar, Delhi and on 10.05.2010 he along with Sandeep Kumar who was working in their office went to Axis Bank, ND Block, Pitampura, Delhi for withdrawing the St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 17 amount from the bank on two wheeler scooter. According to him, he had withdrawn Rs. Two lacs from the bank and was already having Rs.50,000/ and therefore he kept the total Rs.2,50,000/ in a bag and proceeded towards their office. He has further deposed that at about 11:45 AM when they entered their office with the said amount, one person who was having pistol in his hand came in the office and at that time his father Sh. Krishan Kumar Bansal was already sitting in the office. The witness has also deposed that the said boy showed a pistol to him and Sandeep Kumar and snatched the bag from the hand of Sandeep Kumar and threatened them and also asked them to keep themselves inside the office. Witness has further deposed that as soon as they came inside the office from the gate due to threat, the said boy shut the door of the office and tried to run away after which they pushed the door of the office and came outside and found that the said boy was trying to start the pulsar motorcycle bearing no. DL 8S AW 455 on which they went after him and overpowered him. He has testified that he caught the hand of the said boy in which he was having pistol and Sandeep caught the bag and his father caught him from behind, on when the said boy asked them to let him free otherwise he would fire. According to him, when they did not leave the said boy, he succeeded in freeing his hand from him and fired twothree times, as a result one bullet hit on his right arm and other bullet hit on the stomach of his father after which blood started oozing from his hand and the stomach of his father. He has also deposed that the said bag was snatched by Sandeep and St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 18 thereafter finding no option he left the motorcycle at the spot and tried to escape. The witness has testified that they raised an alarm and the public persons overpowered him at some distance and started beating him when his name was known as Anil Kumar S/o Roshan Lal R/o Bahadurgarh, Haryana. According to the witness, Sh. Hemant Mehra and PCR van also came to the spot and Sh. Hemant Mehra took his father to Maharaja Aggarsen Hospital in his Santro car whereas he was taken to the same Hospital by PCR van. Witness has also deposed that in the hospital he came to know that his father had expired and his statement was recorded. According to the witness Nitin out of the amount which they had withdrawn a sum of Rs.2,03,435/ was got deposited in the hospital for his treatment and the remaining amount had been incurred by them in conducting the last rights of his father. He has proved having handed over the photocopy of bill of Maharaja Aggarsen Hospital to the Investigating Officer which bill is Ex.PW21/A. The witness has correctly identified the accused Anil Kumar as the same person who fired at him and his father and snatched the bag containing Rs.2,50,000/. He has also correctly identified the case property i.e. a blue and red colour bag with words "with best compliments PLOP" written on the same, as the same which contained the currency notes and was being taken away by the accused, which bag is Ex.P1.
St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 19
18. In his cross examination by Ld. Defence Counsel the witness has deposed that his father was into the business of maintaining accounts for various companies and he was assisting him for the last two years. According to him, apart from him and his father they had one other employee namely Sandeep Kumar who was assisting them. Witness has further deposed that his father was not a Chartered Accountant and their office is situated in a residential area but there are a large number of shops at that place. He has testified that he did not give any documents to the police to show that they were doing the business of accounts. He has also deposed that the accused had never come to their office previously and on the date of incident it was the first instance when he had come and has voluntarily added that they were intially suddenly taken aback because the accused had shown a revolver and they resisted only after a few minutes when the accused was going away with the bag containing the currency notes. The witness has further deposed that when they were trying to snatch the bag from the accused only they were present and no other public person were present though a couple of public persons were observing what was happening from a distance but they did not intervene. He has testified that he did not help his father when he was shot because he himself was injured with the pistol shot injury. He has admitted that he remained at the spot along with his father and did not follow the accused and has voluntarily stated that he was himself injured and could not move. According to him, the accused was apprehended by public persons after about 2030 feet but St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 20 the accused was not brought near him and his father since they were both almost immediately shifted to the hospital. He has deposed that PCR came to the spot after about half an hour to 45 minutes and in the meanwhile he was shifted to near by doctor's clinic by public persons and has voluntarily stated that after PCR came they took him to the hospital. Witness has further deposed that he did not tell the Investigating officer that he was first taken to the local doctor by public persons since the doctor did not give him any treatment stating that it was a police case and he should be shifted to the hospital. According to PW21, before the PCR reached the spot no official from the local police had come in his presence and for the first time he met the local police in the Maharaja Agrasen Hospital. Witness has further deposed that his statement was recorded in the hospital at about 10:0010:30 on the next morning since he was under treatment and had been operated and was declared fit on the next morning only. He does not remember who recorded his statement but states that SI Sanjeev Verma and Inspector Ashok Kumar had come to him and made inquiries. Witness has further deposed that he came to know the name of the accused after coming back from the hospital when he made inquiries from his friends and relatives. According to him, when the accused had come to their office he was wearing a helmet and has voluntarily added that the helmet got removed in the scuffle which followed outside when they tried to resist and snatch their bag back. He has also deposed that in his presence the helmet was not seized and he did not see the accused being caught but he saw him St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 21 running away when public had surrounding him and were in the process of beating him. The witness has denied the suggestion that there is a police post in the vicinity of the place of incident and has voluntarily added that it is in another gali which is about 4050 steps away from the place of incident. He has further denied the suggestion that the actual culprit/ accused who had committed the robbery and was wearing a helmet had run away from the spot and the accused has been falsely implicated only to work out the present case. The witness has denied the suggestion that he had never seen the face of the accused as he was wearing a helmet and has voluntarily stated that the helmet had come off. Witness has denied the suggestion that since the actual culprit had run away it is for this reason that no helmet was recovered from the spot or that since he had never seen the accused he had not mentioned about his description and details in his statement made to the police. Witness has denied the suggestion that Investigating Officer had shown him the photographs of the accused later or that he has deposed falsely at the instance of the Investigating Officer only to work out the present case as the actual accused had already escaped.
19. PW22 Sandeep Kumar is the employee of the injured Nitin and deceased Krishan Kumar Bansal also an eye witness to the incident. He was working with Nitin Bansal & Krishan Kumar Bansal at the time of incident for the last 14 years at 2021/159, Ganesh Pura, Tri Nagar, Delhi. According to the witness, he used to do the field work in the St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 22 office of Krishan Kumar Bansal and on 10.05.2010 he along with Sh. Nitin Bansal (son of Krishan Kumar Bansal) had gone to Axis Bank, ND Block, Pitam Pura on his two wheeler scooter for withdrawing money. He has further deposed that Sh. Nitin Bansal had withdrawn Rs.2,00,000/ from the bank and apart from the above Nitin Bansal was also having an additional amount of Rs.50,000/ after which Nitin Bansal kept the amount of Rs.2,50,000/ in a carry bag of red and blue colour. According to him, as soon as they entered their office, one person entered in the office with a pistol in his (witness) hand and snatched the bag from his hand on the point of pistol. He has deposed that the said boy threatened them to keep away otherwise he would kill them and shut the door of the office and ran towards his pulsar motorcycle but they (witness, injured and deceased) pushed the door and came outside and ran towards the said boy who was trying to start his motorcycle bearing no. DL 8S AW 455 which he could not start. The witness has further explained that the words "Police" was found mentioned on the front number plate of the motorcycle. According to the witness, Nitin Bansal caught hold of the hand of the boy in which he was having pistol whereas he (witness) snatched the bag from his hand and Krishan Bansal apprehended the said boy from back side. The witness has further deposed that accused Anil Kumar succeeded in releasing his hand from Nitin Bansal and fired twothree times during which one bullet hit on the right arm of Nitin Bansal and one bullet hit in the stomach of his father Krishan Kumar Bansal on which blood started oozing from right arm of St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 23 Nitin Bansal and stomach of Krishan Kumar Bansal on which his attention was diverted towards Krishan Kumar Bansal and Nitin while at the same time the accused ran towards Gali no.1, Kanhaiya Nagar along with the pistol. According to the witness immediately he raised an alarm by saying "Pakro - Pakro" on which some public persons came from front side who apprehended the boy and started beating him. According to the witness, at the same time Hemant Mehra came there who took Sh. Krishan Kumar Bansal to Maharaja Aggarsen Hospital in his Santro Car and after some time a PCR Van also came there which took Sh. Nitin Bansal to the same hospital and his statement was recorded by the Investigating Officer SI Sanjeev Verma which is Ex.PW22/A.
20. The witness proved having joined investigations with the Investigating Officer SI Sanjeev Verma and the fact that he had handed over the pistol snatched by him from the hands of the accused Anil Kumar to SI Sanjeev Verma who examined the pistol and found it to be containing four live cartridges in the magazine and one live cartridge in the chamber. According to him, SI Sanjeev Verma prepared the sketch of the pistol and cartridge which was recovered from the chamber vide Ex.PW22/B. He has proved that after measuring the pistol and cartridges, the same were wrapped in a cloth and were after which the said parcel was taken into possession vide memo Ex.PW22/C. The witness has testified SI Sanjeev Verma filled in the form of CFSL and at the same time Inspector Ashok St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 24 Kumar had also come to the spot who prepared the site plan Ex.PW22/D at his instance. He has also deposed that the accused Anil Kumar was interrogated and arrested in this case vide memo Ex.PW22/E and personally searched vide memo Ex.PW22/F during which Rs.210/, one mobile phone make Nokia and one silver coloured Kara (Ring) were recovered. According to the witness, he again joined the investigations with the Investigating Officer Inspector Ashok Kumar and handed over one carry bag of red and blue colour to him as the same bag which was containing Rs.2,50,000/ and snatched by the accused, which bag was converted into parcel and sealed with the seal of the Investigating Officer which parcel was taken into possession vide memo Ex.PW22/G. He has correctly identified the accused Anil Kumar as the same person who committed robbery on the point of pistol and fired. He has also correctly identified the case property i.e. one red and blue colour bag with the words "With Best Complements PLOP" written on the same, as the same bag in which they had brought currency from the bank which was snatched by the accused, which bag is Ex.P1; one black coloured pistol, three unused and two used cartridges along with two lead, as the same pistol in which the aforesaid cartridges were recovered which pistol is Ex.P2 and cartridges are collectively Ex.P3.
21. In his crossexamination by Ld. Defence counsel the witness has deposed that he did not hand over any document to the Investigating St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 25 Officer showing that he was working in the office of Krishan Kumar Bansal and has admitted that the office of Krishan Kumar Bansal is situated in a residential area. He has further deposed that they had no occasion to raise alarm on seeing the accused and has voluntarily added that they had seen the accused only when the accused snatched the bag from his hand. The witness has also deposed that the distance between the motorcycle and their office is about seven to eight paces and they got scared on seeing the pistol in the hand of accused therefore after snatching the bag they immediately did not raise alarm but recited by shouting as OyeOye. According to the witness, at that moment no public person came to them as none of them could understand as to what had happened. He has claimed that it took about twothree minutes in snatching the bag and scuffling with the accused. The witness has also deposed that he remained with the injured Krishan Kumar Bansal and Nitin Kumar Bansal but did not follow the accused. He is unable to tell the number of persons who ran after the accused but states that the accused was overpowered by the public persons at a distance of about 2530 yards from the office. He has also deposed that the accused was not brought back to the place where his motorcycle was parked but was kept at the same place where he (accused) was apprehended. According to him PCR van came to the spot after about 30 minutes and the local police came to the spot at about 12.45PM and states that three to four police officials came to the spot on two motorcycles. He has also deposed that he handed over the pistol to the St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 26 Investigating Officer at the spot itself. The witness has testified that the family members of Krishan Kumar Bansal and Nitin Bansal reached the hospital when both the injured were shifted to the hospital but he did not go the hospital with Krishan Kumar Bansal or Nitin Bansal and remained at the spot. According to the witness, police remained at the spot for about more than one hour since his statement was recorded by SI Sanjeev Verma at the spot itself. PW22 has further deposed that when the accused apprehended he did not see him and has voluntarily added that it was after the injured were taken to the hospital that he went to the spot where the accused was apprehended, that he saw the face of the accused. He has stated that at the time the accused came to their office was wearing a helmet but he saw the face of the accused when the helmet came off during the scuffle. He is unable to tell if the said helmet was seized by the police or not but states that he did not show the helmet to the police and has voluntarily added that he is not aware as to what happened to the helmet because after the accused was apprehended by public persons he did not see the helmet lying at the spot. According to the witness, he did not tell the police that the accused had come to the office with his face covered with the helmet or that the helmet was not found. He is unable to tell the names of the public persons who had apprehended the accused but has voluntarily added that he did not know them though they were all person who were either residents or were working in that area. He has denied the suggestion that he had never seen the face of the accused or that the actual St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 27 culprit/accused had run away from the spot and the accused has been falsely implicated by him at the instance of the local police. The witness has also denied the suggestion that he was shown the accused outside the court and that is how he had identified him in the Court and has voluntarily added that he had seen him at the time he had come to their office and snatched the bag and fired at Krishan Kumar Bansal and Nitin Bansal. Medical evidence/ witnesses:
22. PW1 Dr. V.K. Jha has deposed that on 11.5.2010 he was working as Medical Officer at BJRM Hospital Mortuary and on that day he conducted the postmortem on the dead body of Kishan Kumar S/o Hari Kishan aged about 48 years male, sent by Inspector Ashok Kumar of Police Station Keshav Puram vide postmortem report Ex.PW1/A. According to him cause of death in this case was spinal shock as a result of bullet injuries consequent to fracture Lumber4 and 5 vertebrae. He has also deposed that the fire arm injury was sufficient to cause death in ordinary course of nature and time since death was approximately 22 hours. He has proved that blood gauze piece and bullet recovered were sealed with the sample seal of Mortuary. The witness has also testified that on 18.07.2010 Investigating Officer Inspector Ashok Kumar of Police Station Keshav Puram moved an application before him seeking opinion regarding range of fire arms. According to the witness, after perusal of postmortem report Ex.PW1/A he opined that the range of fire arm was near range beyond St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 28 the flame effect but within the powdering range which report is Ex.PW1/B.
23. During his cross examination by Ld. Defence counsel the witness has deposed that the weapon of offence was not produced before him by the Investigating Officer.
24. PW2 Dr. Ashok Gupta has deposed that on 10.05.2010 he was working as CMO at Maharaja Aggarsen Hospital and on that day he examined the patient Nitin Bansal S/o Sh. Krishan Kumar Bansal aged about 25 years, male, with alleged history of firing by bullet vide MLC Ex.PW2/A reflecting that the injuries received were grievous. According to him, Dr. Lalit Mohan was also working in the hospital as Surgeon, DND and on examination he found entry wound of bullet positive in the middle of right upper arm. He has testified that the clothes of the patient were sealed and handed over to the police officials.
Forensic Evidence/ witnesses:
25. PW17 Ms L. Babyto Devi, Senior Scientific Officer FSL Rohini has deposed that on 01.06.2010 she was working as Senior Scientific Officer, in FSL Rohini and on that day 14 parcels duly sealed were received in the office regarding present case. According to her, the parcels were opened during which Parcel No. 2 was containing plastic container sealed with the seal of AK containing gauze cloth piece having dirty stains described as blood sample; Parcel No. 3 duly sealed with the same seal St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 29 containing gauze cloth piece having dirty brown stains described as blood sample; Parcel No. 4 was having plastic container with the same seal containing pieces of cemented material described as blood stained earth;
Parcel No. 5 having plastic container with the same seal containing pieces which are of cemented material described as earth control; Parcel No. 6 having plastic container with the same seal containing right palm swab of accused Anil Kumar sent in original to ballistic division; Parcel No. 7 containing plastic container with the same seal containing upper portion, right palm swab of accused Anil Kumar sent in original to ballistic division; Parcel No. 8 containing plastic container with the same seal containing left palm swab of accused Anil Kumar send in original to ballistic division; Parcel No. 9 containing plastic container with the same seal containing left upper palm swab of accused Anil Kumar sent in original to ballistic division; Parcel No. 10 containing plastic container with the same seal containing control swab of accused Anil Kumar taken from leg sent in original to ballistic division; Parcel No. 11 containing plastic container with the same seal containing control swab of accused Anil Kumar taken from back sent in original to ballistic division; Parcel No.12 duly sealed with the seal of MS BJRMH J. Puri, Delhi containing one shirt having dark brown stains; Parcel No. 13 sealed with the seal of Maharaja Agarsain Hospital, Punjabi Bagh, Delhi containing Ex.13a, 13b, 13c and 13d; Parcel No.14 sealed with the seal of FMT, BJRM Delhi containing Ex. 14a, 14b, 14c and 14d; Parcel No.15 sealed with the seal of FMT, BJRM, St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 30 Delhi containing Ex15. She has further deposed that she examined the aforesaid exhibits and submitted her report Ex.PW17/A running into three pages. She has also proved the serological report which is Ex.PW17/B. She has testified that the remnants of the exhibits have been sealed with the seal of BD FSL, Delhi. He has not been crossexamined by the Ld. Defence Counsel despite opportunity and hence his testimony has gone uncontroverted.
26. PW23 Puneet Puri Senior Scientific OfficercumEx Officio Chemical Examiner, FSL Rohini has deposed that on 31.05.2010, three sealed parcels (parcel no.1 sealed with the seal of SV, parcel no. 2 sealed with the seal of AK and parcel no.3 sealed with the seal of FMT, BJRM HOSPITAL, DELHI) received in the FSL. According to him, the seals on the parcels were intact and as per the specimen seals. He has proved that on on opening the first parcel one improvised pistol 7.65mm bore and five 7.65mm cartridges were found and were subsequently marked as Ex.F1 and A1 to A5 respectively; on opening the second parcel two 7.65mm cartridge cases and one metallic piece were found which were subsequently marked as Ex.EC1, EC2 and EBR1 and on opening the third parcel one bullet was found and was marked as Ex.EB2. According to the witness on examination, the improvised pistol 7.65mm bore marked Ex.F1 was in working order and the test fire was conducted successfully by using the cartridges marked Ex.A1 and A2, the test fired cartridge St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 31 cases were marked as TC1, TC2 and the two recovered test fired bullets were marked as TB1 and TB2. He has further proved that the cartridge cases marked Ex.EC1 and EC2 were fired empty cartridges and had been fired through the improvised pistol marked Ex.F1 as the individual characteristics of firing pin marks and breech face marks present on Ex.EC1, EC2 and on test fired cartridge cases marked TC1 and TC2 were found identical when examined under the comparison microscope. He has also proved that the metallic piece marked Ex.EBR1 was a fragment of jacket of bullet and no further opinion could have been possible due to insufficient data. The witness has also deposed that the bullet marked Ex.EB2 correspond to the bullet of 7.65mm cartridge and had been discharged through the improvised pistol 7.65mm bore marked Ex.F1 as the individual characteristics of striations present on Ex.EB2 (initially wrongly mentioned as Ex.EB1 and corrected as Ex.EB2) and on test fired bullets marked TB1 and TB2 were found identical when examined under the comparison microscope. He has also proved that the improvised pistol marked Ex.F1 was a firearm, the cartridges, cartridge cases, fragment of jacket of bullet and bullet were ammunition as defined in Arms Act 1959. He has proved his detailed report in his regard which is Ex.PW23/A and the exhibits were then resealed with the seal of PP, FSL, DELHI. The witness has further deposed that on 23.09.2010 nine sealed parcels, out of which six sealed parcels (parcel nos. 6 to 11) were sealed St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 32 with the seal of AK and three sealed parcels (parcel nos. 12 to 14) were sealed with the seal of BD, FSL DELHI were received from the biology division of the FSL which detailed report is Ex.PW23/B.
27. The witness has also correctly identified the case property i.e. the pistol which is Ex.P2 bearing his initials which was examined by him as F1; the cartridge Ex.P3 collectively all of whom bear his initials/ markings as the same which were sent to him for analysis which were marked as A1 to A5 (two have been test fired); test fired cartridges produced in the court which are Ex.P4 collectively (Ex.TC1 and TC2) and two test fired bullets which are Ex.P5 collectively (TB1 and TB2). Police/ official witnesses:
28. PW3 Ct. Sikander has in his examination in chief by way of affidavit which is Ex.PW3/1 proved that on 10.5.2010 at about 6:00 PM on the directions of Duty Officer, he delivered the special report to the Ld. ACMM and senior officers on government motorcycle no. DL1SN9690 and recorded his arrival vide DD No.23A which is Ex.PW3/A. This witness has not been crossexamined by the Ld. Defence Counsel and hence his testimony has gone uncontroverted.
29. PW4 SI M.D. Meena has in his examination in chief by way of affidavit Ex.PW4/1 has proved that on 10.5.2010 while posted as Crime Team Incharge in NorthWest District he inspected the scene of crime at the instance of SI Sanjeev Verma and prepared his report St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 33 Ex.PW4/A which he handed over to the SI Sanjeev Verma.
30. In his cross examination by Ld. Defence counsel the witness has deposed that he reached the spot at about 1:00 pm on 10.5.2010 and received the information from the Police Control Room at about 12:30 noon. According to him, there were five to ten local police officers present when he reached the spot including SI Sanjeev Verma and Inspector Ashok Kumar but he is unable to tell the names and designation of rest of the officials. He does not remember the exact distance between the empty shells from the motorcycle but states that they were lying about one meter away from the motorcycle. He has testified that they remained at the spot for about one hour but he is unable to tell whether the PCR van reached the spot in his presence. He has denied the suggestion that he did not visit the spot nor took the photographs of the spot.
31. PW5 HC Rohtash is the Duty Officer who in his examination in chief by way of affidavit Ex.PW5/1 proved that on 10.5.2010 at about 4:45 PM HC Bhupender handed over to him one rukka written by SI Sanjeev Verma on which he recorded the Kayami DD vide No. 19 which is Ex.PW5/A. He has also proved having recorded the copy of the FIR which is Ex.PW5/B and also recorded DD No.20/A with regard to the same which DD is Ex.PW5/C. This witness has further proved the DD No.23/A which is Ex.PW5/D and DD No.28/A which is Ex.PW5/E. He has not been crossexamined by the Ld. Defence Counsel despite St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 34 opportunity and hence his testimony has gone uncontroverted.
32. PW6 SI Mahesh Kumar is the draftsman who in his examination in chief by way of affidavit Ex.PW6/1 has proved that on 14.7.2010 on the request of Inspector Ashok Kumar he inspected the scene of crime and took the measurements after which on 23.7.2010 he prepared a scaled site plan which is Ex.PW6/A which he handed over to Inspector Ashok Kumar. This witness has not been crossexamined by the Ld. Defence Counsel despite opportunity and hence his testimony has gone uncontroverted.
33. PW7 HC Narender Kumar is a formal witness who in his examination in chief by way of affidavit Ex.PW7/1 has proved having taken the exhibits of this case from the MHCM which he deposited at FSL Rohini. He has also proved that so long as the exhibits remained in his custody the same were not tampered with. He has not been crossexamined by the Ld. Defence Counsel despite opportunity and hence his testimony has gone uncontroverted.
34. PW8 HC Jagdish Chand has in his examination in chief by way of affidavit Ex.PW8/1 proved that on 30.4.2010 while he posted as Duty Officer at Police Station South Rohini at about 1:20 AM HC Ramesh Lal handed over one rukka endorsed on the statement of Vishal Kapoor regarding theft of Bajaj Pulsar motorcycle bearing no. DL4SAS5455 from M2K parking Sector 3, Rohini pursuant to which he registered the St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 35 FIR No.138/10 copy of which is Ex.PW8/A. He has not been cross examined by the Ld. Defence Counsel despite opportunity and hence his testimony has gone uncontroverted.
35. PW9 Ct. Subhash Chand has in his examination in chief by way of affidavit Ex.PW9/1 proved having taken the photographs of the scene of crime which photographs are Ex.PW9/A1 to A16 and negatives of the photographs are collectively Ex.PW9/B.
36. In his cross examination by Ld. Defence counsel the witness has deposed that he reached the spot at about 1:00 pm on 10.5.2010 and received the information from the Control Room at about 12:30 noon. According to him, there were seven to eight local police officers present when he reached the spot with included SI Sanjeev Verma. He is unable to tell the names and designation of rest of the officials and has deposed that the motorcycle was in standing position when he saw it but does not remember the distance between the empty shells from the motorcycle. According to him, they remained at the spot for about one hour and the PCR van did not reach the spot in his presence. Witness has denied the suggestion that he did not visit the spot nor he took the photographs of the spot.
37. PW10 W/Ct. Meenakshi has deposed that on 10.05.2010 he was posted at Police Post Shanti Nagar, Police Station Keshav Puram as DD writer and on that day she received information from wireless set that St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 36 two persons had sustained bullet injuries. According to her, she recorded this information vide DD no.15 of Police Post Nagar which is Ex.PW10/A which she handed over to SI Sanjeev Verma for further necessary action. She has not been crossexamined by the Ld. Defence Counsel despite opportunity and hence his testimony has gone uncontroverted.
38. PW11 Ajesh Gupta Deputy Manager, Axix Bank, DP Block, Pitam Pura Branch has proved the bank account record of deceased Krishan Kumar Bansal according to which the address of Mr. Krishan Kumar Bansal is 3522/3, Narang Colony, Tri Nagar, Delhi110035 who was having an account bearing no. 040010100363471. Witness has further deposed that as on 10.05.2010 the balance in the account was Rs.Two Lacs as per statement Ex.PW11/A bearing his initial and official seal at point A. According to him, the said statement was already supplied to the police official vide covering letter vide Ex.PW11/B which also bear the official seal at point A and bears the signature of Mrs. Ranjani Khurana, AVP and Operations Head. He has placed on record an authority letter in his favour which letter is Ex.PW11/C bearing the signature of Mrs. Ranjani Khurana at point A. This witness has not been crossexamined by the Ld. Defence Counsel despite opportunity and hence his testimony has gone uncontroverted.
39. PW14 HC Jai Parkash has deposed that on 10.05.2010 he was posted at Police Station Keshavpuram as MHC(M) and on that day St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 37 Insp. Ashok Kumar, Investigating Officer of the case had deposited one sealed parcel containing one pistol and five live cartridges along with FSL form duly sealed with the seal of SV, one sealed parcel containing clothes of the injured along with sample seal duly sealed with the seal of Maharaja Agarsain Hospital, one parcel containing empty cartridge and pallet duly sealed with the seal of AK which was given serial No.1; two sealed parcel containing blood sample with the seal of AK; two sealed parcels containing blood stained earth and earth control duly sealed with the seal of AK; one motorcycle bearing No. DL8SAW455; one sealed parcel containing chappal with the seal of AK; six exhibits of the accused Anil Kumar duly sealed with the seal of AK; one sealed parcel containing shirt of accused Anil Kumar duly sealed with the seal of MS BJRM hospital; the articles recovered from the personal search of accused; one bag duly sealed with the seal of AK which he (witness) received the same vide entry No.2540 of register No.19 copy of which is Ex.PW14/A collectively, running into seven pages. The witness has also deposed that on 11.05.2010 Insp. Ashok Kumar had deposited three sealed parcels and two sample seals duly sealed with the seal of BJRM Hospital and he received the same vide entry No. 2542 of register No.19 copy of which entry is Ex.PW14/B. He has testified that on 31.05.2010 he had sent the sealed parcel containing pistol and five live cartridges, sealed with the seal of SV one sealed parcel containing two empty fire cartridges and pallets, marked as 1, sealed with the seal of AK and one sealed parcel containing bullet recovered from the body of the St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 38 deceased Krishan Kumar Bansal with the seal of FMT BJRM hospital, to FSL through Ct. Narender vide RC No.30/21, copy of which RC is Ex.PW14/C. The witness has further deposed that on 01.06.2010 he sent 14 sealed parcels (10 parcels were sealed with the seal of AK and two exhibits were sealed with the seal of FMT, BJRM Hospital, one was of Maharaja Agarsain Hospital and one was of MS BJRM Hospital) were sent to FSL through Ct. Ramesh vide RC No. 32/21, copy of the same is Ex.PW14/D running into two pages. The witness has explained that the sealed parcel mentioned at number 11 in the RC has been wrongly mentioned with the seal of AK, however same was sealed with the seal of BJRM hospital. According to him the pullanda mentioned in the RC at serial number 12 mentioned in the RC the pullanda was in fact sealed with the seal of Maharaja Agarsain Hospital instead of BJRM hospital. He has further clarified that the parcel containing blood stained clothes of deceased Krishan Kumar Bansal and the parcel containing blood sample of deceased have been wrongly mentioned as sealed with the seal of MS BJRM hospital inadvertently, however the said two parcels were sealed with the seal of FMT, BJRM hospital.
40. In his cross examination by Ld. Defence counsel witness has admitted that no separate DD regarding the aforesaid mistake was lodged but has denied the suggestion that no parcels were deposited by the Investigating Officer with him. He has further denied the suggestion that he made the aforesaid entries of his own later on at the instance of St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 39 Investigating officer.
41. PW15 Ct. Ramesh Kumar has in his examination in chief by way of affidavit Ex.PW15/1 proved having taken the exhibits from the MHCM on 1.6.2010 which he deposited with the FSL Rohini. He has not been crossexamined by the Ld. Defence Counsel despite opportunity and hence his testimony has gone uncontroverted.
42. PW16 Sh. B.S. Jaiswal Addl. DCPI, NorthWest District has deposed that on 28.10.2010 he was working as Addl. DCPI, North West District, Delhi when his subordinate had produced the case file including FIR, reports under Section 173 Cr.P.C. statement of witnesses recorded under Section 161 Cr. P.C., seizure memo, ballistic examination report before him. According to the witness, he had perused the same and after being satisfied he accorded sanction under Section 39 Arms Act for prosecution of accused Anil Kumar S/o Sh. Roshan Lal vide Ex.PW16/A. In his cross examination by Ld. Defence counsel the witness has denied the suggestion that he did not apply his mind while according said sanction.
43. PW18 HC Dharamveer has deposed that on 10.05.2010 he was working as record keeper at record branch, PCR Model Town and the PCR form EX PW 18/A running into two pages was received in the office from CPCR, PHQ which was recorded by WCt. Rekha at 12:15:19. According to him another PCR form recorded by WCt. Rakesh was received which was recorded at 12:15:48 which is Ex.PW18/B and PCR St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 40 form received in the office recorded by W/Ct. Pavitra at 12:19:10 which is Ex.PW18/C.
44. In his cross examination by Ld. Defence counsel the witness has deposed that he had not filled the aforesaid forms. According to the witness, he was working as record clerk on 10.05.2010 and has not produced the register in which some other official made entries regarding receiving of the said forms. He has deposed that he did not make entry regarding receiving the aforesaid forms in the said register.
45. PW24 HC Bhupender Singh has deposed that on 10.05.2010 he was posted at Police Post Shanti Nagar, Police Station Keshavpuram and on receipt of DD No.15 PP Shanti Nagar he along with SI Sanjeev Verma, Mohd. Swaley and Ct. Pawan Kumar reached at Gali No.7, Kanhiya Nagar, Tri Nagar, Delhi where one Sandeep Kumar met them who had produced the accused Anil Kumar before them along with one pistol stated to have be recovered from Anil Kumar. According to him, SI Sanjeev Verma interrogated Anil Kumar and Sandeep Kumar had also disclosed that accused Anil Kumar had fired upon Krishan Kumar Bansal and Nitin Bansal who had already been removed to Maharaja Agarsain Hospital. The witness has further deposed that SI Sanjeev Kumar handed over the accused and the recovered pistol to ASI Mohd. Swaley who was left at the spot along with Anil Kumar whereas he along with SI Sanjeev Kumar went to Maharaja Agarsain Hospital where SI Sanjeev Verma collected the MLC of Krishan Bansal and Nitin Bansal. According to the St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 41 witness, the injured Krishan Kumar Bansal was declared dead whereas the operation of Nitin Bansal was going on and no eye witness met them in the hospital. He has proved that the doctor concerned handed over the sealed parcel containing clothes of the injured Nitin Bansal duly sealed with the seal of hospital and sample seal which SI Sanjeev Verma took into possession vide memo Ex.PW24/A after which he along with SI Sanjeev Verma came to the spot where SI Sanjeev Verma inspected the spot and pistol. According to the witness, he checked the pistol and found four round in the magazine and one round in its chamber after which SI Sanjeev Verma prepared the sketch of pistol and one live cartridge vide Ex.PW22/B. He has testified that the Investigating Officer converted the pistol and cartridges into parcel and sealed the same with the seal of SV. The witness has also deposed that the Investigating Officer filled in form FSL at the spot which seal after use was handed over to some police official whose name he does not remember. According to the witness, the sealed parcel was taken into possession vide memo Ex.PW22/C and Investigating Officer SI Sanjeev Kumar recorded the statement of Sandeep Kumar vide Ex.PW22/A. He has also deposed that SI Sanjeev Verma prepared the rukka and he (witness) took the same to the Police Station for getting the case registered and came back to the spot with copy of FIR and original rukka which he handed over to Insp. Ashok Kumar as further investigation of this case was handed over to him. The witness has also testified that the accused Anil Kumar was handed over to Insp. Ashok St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 42 Kumar after which Insp. Ashok Kumar arrested the accused vide memo Ex.PW22/E and Insp. Ashok Kumar handed over the accused and the case property to SI Sanjeev Verma for taking the same to the police post. PW24 has testified that Inspector Ashok Kumar took him to Maharaja Agarsain hospital where Inspector Ashok Kumar prepared the inquest documents in the hospital. According to the witness, Inspector Ashok Kumar handed over the said documents to him for taking the same to the BJRM hospital mortuary along with the dead body pursuant to which he (witness) took the dead body also to mortuary BJRM hospital and the postmortem on the dead body of the deceased Krishan Bansal was conducted after which it was handed over to Hari Krishan Bansal and Vinod Kumar. According to the witness, the doctor concerned handed over three parcels with the seal of the hospital containing clothes, pellet, blood sample, gauze piece and sample seal to Inspector Ashok Kumar which he took into possession vide memo Ex.PW24/B. He has also proved that one motorcycle bearing No. DL8SAW455 of black color along with key was also taken into possession by Insp. Ashok Kumar. This witness has correctly identified the accused Anil Kumar in the Court.
46. In his cross examination by Ld. Defence counsel the witness has deposed that he was present at Police Post when he received the said DD on which he along with SI Sanjeev Verma went to the spot on his private motorcycle of make Hero Honda and reached there at about 12:30 PM whereas Ct. Pawan Kumar and ASI Mohd. Swaley came at the spot St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 43 after about two or four minutes after their arrival. According to the witness, DD entry regarding their departure from the police post was got made by SI Sanjeev Verma in his presence and no separate DD entry was made regarding their departure which fact of departure was mentioned in DD NO. 15 PP. He has also deposed that Sandeep met them in front of house No. 2021/169, Shanti Nagar, near gali No.7, Kanhiya Nagar and they went to the hospital at about 12:45 PM. The witness has admitted that he had signed the seizure memo of pistol but after seeing the seizure memo of Pistol the same was not bearing his signatures. He is not aware whether the signature of concern doctor was obtained on the seizure memo of pullanda containing blood stained clothes of injured and has stated that he remained in the hospital for about fortyfive minutes. According to PW24, the statement of Sandeep was recorded by the Investigating Officer while sitting on the stairs of house No.2021/169, Shanti Nagar and no other statement of any witness was recorded in his presence. He has further deposed that he received rukka at about 4:30 PM and reached police station within five to seven minutes. He is unable to tell the time spent in registration of the FIR and has stated that no separate departure entry was made by him. He is also unable to tell as to how much time was taken in preparing the pullandas at the spot. He has admitted that the memo regarding the handing over of the seal was prepared by SI Sanjeev Verma. According to him when they returned from the hospital to the spot the accused was standing in the custody of ASI Mod. Swaley and Ct. Pawan at St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 44 house No.2021/169, Shanti Nagar and Insp. Ashok Kumar had also come there at the spot at about 12:45 PM. He does not remember to whom the information regarding the arrest of the accused was given nor does he remember as to by which mode the information was conveyed. He also does not remember whether he had told the Investigating Officer regarding the presence of the said motorcycle in his statement recorded under Section 161 Cr.P.C. but when confronted with his statement under Section 161 Cr.P.C. this fact was not found recorded. Witness has further deposed that the police officials finally left the spot at about 8 PM and his statement was recorded by the Investigating Officer at police station on 11.05.2010 in the evening and no other statement was recorded by the Investigating Officer in his presence. According to him, public persons related to injured persons did not meet the police officials in the hospital the first time when they went to the hospital. He has denied the suggestion that the accused Anil Kumar was not apprehended by the public at the spot, it was some other person who had committed the offence or that the accused was lifted from his office and falsely implicated in the present case on account of his enmity with SI Jagdish Dahiya of Bahadurgah and one Subhash who was posted at Police Station Keshavpuram at that time. The witness has also denied the suggestion that all the writing work was done while sitting in the police station or that the signatures of accused Anil Kumar were obtained on blank papers later on and the same were converted into certain documents. He has further denied the suggestion that the accused was not St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 45 involved in the incident and he had wrongly identified at the instance of Investigating Officer.
47. PW25 SI Sanjeev Verma has deposed that on 10.05.2010 he was posted at police post Shanti Nagar, police station Keshav Puram as Incharge Police Post and on that day ASI Mohd. Swaley, HC Bhupender and Ct. Pawan reached at gali No. 7, Kanhiya Nagar, Tri Nagar. According to him, one Sandeep Kumar met him who had produced the accused Anil Kumar before him along with his pistol stated to have been recovered from the accused Anil Kumar after which Sandeep Kumar had informed him that Anil Kumar had fired upon Krishan Kumar Bansal and Nitin Kumar Bansal who had already been taken to Maharaja Agarsain Hospital and had handed over the accused Anil Kumar and the pistol recovered from him to ASI Mohd. Swaley. According to the witness, he left ASI Mohd. Swaley and Ct. Pawan with the case property at the spot and at the same time SHO along with his staff also reached the spot. He has further deposed that he and HC Bhupender left for Maharaja Agarsain Hospital and on reaching there he collected the MLC of deceased Krishan Kumar Bansal on which the doctor had made an endorsement regarding alleged history of firing by bullet in the abdomen and was declared dead. According to the witness, he collected the MLC of injured Nitin Bansal on which the doctor made endorsement as alleged history of firing by bullet injury on right upper arm and the injured Nitin Bansal was present in the operation theater. He has further deposed that the doctor concerned handed over the parcel St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 46 containing clothes of injured Nitin Bansal and sample seal with the seal of Maharaja Aggarsain Hospital, Punjabi Bagh which he took into possession vide memo Ex.PW24/A and since no eye witness met him in the hospital therefore he along with ASI Mohd. Swaley came to the spot where Sandeep was already present who had given his statement to him vide Ex.PW22/A. According to the witness, he examined the pistol and found four live cartridges in the magazine and one live cartridge was found in its chamber after which he prepared the sketch of pistol and one live cartridges recovered from its chamber vide Ex.PW22/B. He has also deposed that the said pistol & five cartridges were converted into parcel and sealed the same with the seal of DV and filled the FSL form and took the said parcel into possession vide memo Ex.PW22/C. According to the witness, he prepared the rukka Ex.PW25/D and handed over the same to HC Bhupender who took the same to the police station for getting the FIR registered and came back to the spot along with the copy of FIR vide Ex.PW25/E. He has further deposed that Inspector Ashok had already reached the spot being the case of murder and they found motorcycle Pulser bearing No. DL8 SA W 455 which was mentioned on rear number plate and the word "POLICE" was found mentioned on the front number place. He has testified that they found one pellet in front of shop No. 2021/159, Ganesh Pura and one empty cartridge in front of 2059/157 and one empty cartridge was found in front of 3816/7 Kanhiya Nagar. Witness has further deposed that the crime team St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 47 had already reached the spot which inspected the spot and the photographs of the spot was taken by the photographer of the crime team. According to him, Insp. Ashok Kumar lifted two empty cartridges from the above said places and prepared the sketch of the said cartridges vide Ex.PW25/F. He has also deposed that the said empty cartridges and pellets were sealed by Insp. Ashok Kumar with the seal of AK and the sealed parcel was taken into possession vide memo Ex.PW25/G. According to him, Insp. Ashok Kumar lifted the blood sample from the stairs with the help of gauze piece and kept the same in a plastic container which was also sealed with the seal of AK. The witness has further deposed that the blood was also lifted from the rear wheel of the said motorcycle with the help of gauze piece and kept the same in another plastic container which container was marked at serial Nos.2 and 3 and taken into possession vide memo Ex.PW25/H. According to PW25, Insp. Ashok Kumar had lifted blood stained concrete and concrete without blood stained and kept the same in two plastic containers and sealed the same with the seal of AK which parcels were also taken into possession vide memo Ex.PW25/I. He has testified that the said motorcycle was also seized vide memo Ex.PW25/J and Insp. Ashok Kumar lifted one chappal of black color having brand "Cooler from Liberty" and sealed the same with the same seal and taken into possession vide memo Ex.PW25/K. According to him, the accused Anil Kumar was given beatings by the public persons due to which reason he was sent to St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 48 Babu Jagjeevan Ram Memorial hospital through Ct. Pawan for his medical examination. Witness has further deposed that Insp. Ashok Kumar also went to FSL Rohini for taking the swab of accused Anil Kumar and thereafter came back at the spot and before his arrival, the face of the accused was muffled. According to the witness, Insp. Ashok Kumar inspected the spot and prepared site plan vide Ex.PW22/D at the instance of Sandeep Kumar. He has stated that the accused Anil Kumar was interrogated and arrested in this case vide memo Ex.PW22/E and personally searched vide memo Ex.PW22/F. According to him the supplementary statement of Sandeep Kumar was recorded by Insp. Ashok Kumar and the disclosure statement of accused Anil Kumar was recorded vide Ex.PW25/L. Witness has further deposed that Insp. Ashok Kumar with HC Bhupender went to Maharaja Agarsain Hospital for getting the dead body shifted to Babu Jagjeevan Ram Memorial Hospital. According to him he, Ct. Pawan and ASI Mohd. Swaley were sent to police post with the case property and the accused whereas Insp. Ashok Kumar came to the police post from Maharaja Agarsain Hospital and at the same time Sandeep came to police post and produced one bag of red and blue color which was snatched by the accused which was containing cash and thereafter the said bag was also sealed with the seal of AK by Insp. Ashok Kumar and took the same into possession vide memo Ex.PW22/G. He has proved that the supplementary statement of Sandeep was recorded and his statement was St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 49 recorded by the investigating officer Insp. Ashok Kumar.
48. He has correctly identified the accused Anil Kumar in the Court and also correctly identified the case property i.e. one pistol of black color and three unused and two used cartridges along with two lead which pistol Ex.P2 and the cartridges are Ex.P3 (collectively); two empty shell along with one pallet which is Ex.P6 (collectively); one plastic container containing blood stained earth which is Ex.P7; one plastic container containing earth control which Ex.P8; one chappal which is Ex.P9; one bag of red and blue color as the same as produced by Sandeep which is Ex.P1 and the motorcycle No.DL 8S AY 5455 on superdari in a case FIR No.138/10 Police Station South Rohini, U/s 379 IPC as the same motorcycle which was taken into possession from the spot on 10.05.2010 which is Ex.P10.
49. In his cross examination by Ld. Defence Counsel the witness has deposed that he left the Police Post Shanti Nagar immediately after receiving the call on a private motorcycle. According to him, ASI Mohd. Swaley, HC Bhupender and Ct. Pawan accompanied him on another motorcycle and they reached within two to three minutes. Witness has further deposed that Sandeep was standing in the gali number 159 in front of premises no. 2020, Ganesh Pura, Delhi and one or two public person were there who told him that it was Anil who fired the shot but is not aware the names and addresses of the public persons who had given him this St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 50 information. According to him, at the time he returned from the hospital it was thereafter that he found the crime team inspecting the spot and has voluntarily added that when he left the spot, crime team had not reached there. He has further stated that there were not many persons in the hospital when he reached there and PCR officials were not present in the hospital at that time. He has also deposed that Inspector Ashok Kumar came alone at the spot at 2.15PM on a government vehicle. According to the witness the chappal of black colour was lying at a distance of two to three steps from the motorcycle towards the backside and there was some dark stains on the chappal due to which reason the Investigating Officer seized the same. According to him, the statement of Sandeep was recorded at about 3.15PM and finger prints from the pistol were not lifted by him prior to preparation of its pullanda and seizing the same. Witness has further deposed that there were some blood stains on the rear wheel of the motorcycle which he had also noticed and no other vehicle was parked near the said motorcycle in the gali. He has also stated that the writing work was done while sitting in the gali on a chair in front of house number 2020 but he does not recollect having noticed any helmet near the motorcycle. Witness has further deposed that the disclosure statement of the accused was recorded while sitting in front of H. No. 2020 and it took about 25 minutes in recording the disclosure statement of the accused. According to him the sister of the accused was informed telephonically about the arrest of accused but he does not recollect if Subhash was posted at Police Station St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 51 Keshav Puram at any point of time. According to him, he did not try to trace out the PCR Officials who took the injured to the hospital. He has denied the suggestion that the real culprits had escaped from the spot and to work out this case, he had falsely implicated accused Anil as the accused was having some animosity with SI Jagdish Dahiya who was posted at Police Station Rohini and one Subhash posted at Police Station Keshav Puram who are residents of Bahadurgargh (Haryana). The witness has also denied the suggestion that nothing was recovered from the accused or that all the writing work was done while sitting in the police station. He has further denied the suggestion that the accused was not arrested in the manner stated by him or that the signatures of accused were obtained on blank papers and later on the same were converted into certain documents against him.
50. PW26 Ct. Pawan Kumar has deposed that on 10.05.2010 he was posted at Police Post Shanti Nagar, Police Station Keshav Puram and on that day on the receipt of DD No.15, Police Post Shanti Nagar, he along with SI Sanjeev Verma, ASI Mohd. Swaley and HC Bhupender reached at the spot i.e. gali no.7, Kanhayya Nagar, Tri Nagar where one Sandeep Kumar met SI Sanjeev Verma who produced the accused Anil Kumar and one pistol stated to have been recovered from accused Anil Kumar before him. According to him SI Sanjeev Verma handed over the custody of accused Anil Kumar to him and the custody of pistol to ASI Mohd. Swaley whereas SI Sanjeev Verma and HC Bhupender went to St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 52 Maharaja Aggarsen Hospital as the injured had already been taken there. The witness has testified that he and accused Anil and ASI Mohd. Swaley remained at the spot and after some time SHO came to the spot. According to him, Inspector Ashok Kumar had also come to the spot after which he (witness) he took the accused Anil Kumar to BJRM Hospital for his medical examination as he was having injuries due to beatings given by the public. He has further deposed that the medical examination was got done and doctor concerned took the shirt of accused into possession. According to the witness he took one parcel and sample seal containing shirt duly sealed with the seal of BJRM Hospital. Witness has further deposed that he along with the accused Anil Kumar took the parcel containing shirt and sample seal to FSL, Rohini where Inspector Ashok Kumar had already reached and handed over the aforesaid parcel and sample seal to Inspector Ashok Kumar which were seized vide memo Ex.PW26/A. He has also deposed that six swabs of accused Anil Kumar were taken in FSL Office which were sealed by the Investigating officer with the seal of AK and were marked with S. No. 6 to 11 which parcels were taken into possession vide memo Ex.PW26/B. He has correctly identified the accused Anil Kumar in the Court.
51. In his cross examination by Ld. Defence Counsel the witness has deposed that he left the police post Shanti Nagar at about 12.22PM and no separate departure entry was made by the Investigating officer in his presence. According to him, he accompanied ASI Mohd. St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 53 Swaley on his scooter but he is unable to tell the number or make of the said scooter. Witness has deposed that they reached the spot within five minutes from their departure from police post but he does not remember whether any PCR official was present at the spot at that time. He does not remember the gali number where complainant Sandeep met them and accused Anil also present there. According to the witness he alone accompanied the accused to the BJRM hospital in a TSR and it took about 45 minutes in the medical examination of the accused. Witness has further deposed that Inspector Ashok Kumar came to the spot at about 2.152.30PM on government vehicle and remained at FSL for about 30 minutes. According to the witness, the accused was taken to the spot after the FSL on a TSR but he does not remember when police officials finally left the spot and he also do not remember the time when he handed over the pullanda, containing the shirt of the accused, to the Investigating officer.
52. Witness has denied the suggestion that he did not join the investigation of this case. Witness has denied the suggestion that he did not hand over any pullanda to the Investigating officer. He has denied the suggestion that he has deposed falsely at the instance of the Investigating officer.
53. PW27 Inspector Ashok Kumar is the Investigating Officer of the present case who has deposed that on 10.05.2010 he was posted at Police Station Keshavpuram and on that day further investigations of this case was handed over to him. According to him, on receipt of St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 54 information on wireless set he reached the spot i.e. gali No.7, Kanhiya Nagar, Delhi where SI Sanjeev Verma, ASI Mohd. Swaley, HC Bhupender and Ct. Pawan met him. The witness has further deposed that SI Sanjeev Verma were busy in the investigations of this case and further investigation of this case was handed over to him. He has testified that he received the copy of FIR, original rukka from HC Bhupender and SI Sanjeev Verma also handed over the sketch, seizure memo of pistol and cartridges and seizure memo of the shirt of victim and sample seal. He has proved having prepared the site plan Ex.PW22/D at the instance of complainant Sandeep. According to him, they found motorcycle pulsar bearing No. DL8SAW455 which was mentioned on the rear number plate and the word 'police' was found mentioned on the front number plate and they also found one pellet in front of shop No. 2021/159 Ganesh Pura, one empty cartridge in front of Shop No. 2059/157 and one empty cartridge in front of shop No.3816/7 Kanihya Nagar. He has proved having prepared the sketch of empty cartridge vide Ex.PW25/F after which he converted the said cartridges and pellet into parcels and sealed with the seal of AK and took the same into possession vide memo Ex.PW25/G. According to him, he lifted blood sample with the help of gauze piece from the stairs in front of house No. 2020/159, Ganesh Pura, Tri Nagar and kept the same in a plastic container and sealed with the seal of AK and also lifted the blood from the rear wheel of the said motorcycle, which were kept in a plastic container and sealed with the same seal after which the said two parcel containing the St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 55 aforesaid blood samples were taken into possession vide memo Ex.PW25/H. The witness has also proved having lifted the blood stains concrete and earth control which were kept in two separate plastic containers and sealed the same with the same seal and taken into possession vide seizure memo Ex.PW25/I. According to him, the said motorcycle was also taken into possession vide seizure memo Ex.PW25/J and he also found one chappal of left foot in front of house No. 2020/159 which was having number 10 with words 'Cooler from Liberty' which chappal was converted into parcel and sealed with the same seal and was taken into possession vide memo Ex.PW25/K. He has further deposed that thereafter he went to the FSL Rohini where Ct. Pawan Kumar met him along with accused Anil and had produced the parcel containing shirt of the accused duly sealed with the seal of Babu Jagjeevan Ram Memorial hospital which he took the same into possession vide memo Ex.PW26/A. The witness has also deposed that the accused was produced before the official of FSL Rohini and the expert FSL took six swabs of the accused from different parts of his body and he converted the same into six parcels and sealed the same with the seal of AK which parcels were also taken into possession vide memo Ex.PW26/B. He has proved that the accused was arrested in this case vide memo Ex.PW22/E and was personally searched vide memo Ex.PW22/F. According to him, the accused was interrogated in this case and his disclosure statement was recorded vide Ex.PW25/L. St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 56 The witness has proved that on the same day he prepared the death report vide Ex.PW27/A and HC Bhupender had brought the dead body from Maharaja Agarsain Hospital to mortuary Babu Jagjeevan Ram Memorial hospital after which the body was got preserved. According to him, the complainant Sandeep Kumar had produced one carry bag of red and blue color on which the word "with best compliments PLOP" was found mentioned, before him stated to be the same in which he (Sandeep) had kept the money and was snatched by accused Anil Kumar but he (Sandeep) took the said bag from the hand of accused after which he (the witness) converted the same into parcel and sealed the same with the same seal and had taken the same into possession vide memo Ex.PW22/G. He has proved having recorded the statements of witnesses and having issued the notice under Section 160 Cr.P.C. to the accused Anil Kumar requiring him to remain in muffled face vide Ex.PW27/B after which the accused was lodged in the lock up and the case property was deposited in the Malkhana. The witness has further deposed that on 11.05.2010 he along with SI Sanjeev Verma went to Maharaja Aggarsen Hospital and injured Nitin Verma who was already admitted in the hospital, was fit for giving statement on which he recorded his statement under Section 161 Cr.P.C. According to him, thereafter he went to mortuary Babu Jagjeevan Ram Memorial hospital where the postmortem on the dead body of deceased Krishan Kumar was got conducted on his request Ex.PW27/C. The St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 57 witness has also proved having prepared the brief facts vide Ex.PW27/D and the dead body was duly identified by Sh. Hari Krishan Bansal, father of the deceased and Sh. Vinod Kumar, brother in law (Saala) of the deceased vide Ex.PW13/A and Ex.PW13/B respectively. According to the Investigating Officer after getting the postmortem was conducted, the dead body was handed over to Sh. Hari Kishan vide receipt Ex.PW13/C and the doctor concerned handed over three sealed parcels containing exhibits, clothes, pallet, blood sample and one parcel of sample seal to him which he took the same into possession vide memo Ex.PW24/B. According to the witness the accused was produced before the Court and was sent to judicial custody and he moved an application before Ld. MM for getting the Test Identification Parade of accused conducted vide application Ex.PW27/E which was fixed for 15.05.2010. He has proved that on 15.05.2010 the accused was produced before Ld. MM for getting his Test Identification Parade conducted and Sh. Neeraj Gaur, Ld. MM had conducted his Test Identification Parade vide proceedings Ex.PX1 in which the accused had refused to participate. According to the witness, he moved an application for supplying the copy of Test Identification Parade proceedings vide Ex.PW27/F and same was allowed therefore he obtained the copy of the proceedings. He thereafter obtained two day police remand of accused Anil Kumar but during that period nothing incriminating could be recovered. The witness has proved having collected the postmortem report St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 58 Ex.PW1/A and sent the exhibits i.e. empty cartridge, pallets, katta and five cartridges alongwith FSL form to FSL Rohini through Ct. Narender on 31.05.2010 vide RC No.30/21/2010. He has also testified that on 01.06.2010 he send the remaining exhibits to the FSL Rohini through Ct. Ramesh vide RC No. 32/21/2010 which copy of the RCs are Ex.PW27/G and Ex.PW27/H respectively. According to the Investigating Officer, he also collected the acknowledgment of the acceptance of the exhibits at FSL office and both the receipts are Ex.PW27/I and Ex.PW27/J and he deposited the MLC of injured Nitin Bansal for getting the opinion of nature of injury and the nature of injury was given as grievous on the MLC which is Ex.PW2/A of injured Nitin Bansal and he also collected the MLC of accused Anil Kumar which is Ex.PW27/K. The witness has also proved having collected the FSL results which are already Ex.PW17/A, Ex.PW17/B, Ex.PW23/A and Ex.PW23/B and also collected the copy of FIR of the connected case i.e. FIR No.138/2010 pertaining to Police Station South Rohini. He has also proved having collected the sanction under Section 39 of Arms Act which is Ex.PW16/A. According to the witness, he got the scaled site plan prepared through SI Mahesh Kumar who had submitted the scaled site plan which is Ex.PW6/A. He has also deposed that he submitted the supplementary charge sheet regarding submission of FSL report and sanction and also collected the MLC of the injured Krishan Kumar, from SI Sanjeev Verma which is Ex.PW27/L. He has further St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 59 proved having collected the death certificate of Kishan Kumar vide Ex.PW27/M and also collected the document/ bank statement vide Ex.PW11/A vide covering letter vide Ex.PW11/B. The witness has further deposed that he collected the medical treatment record /bill of injured Nitin Bansal which is Ex.PW21/A and he also collected the PCR forms from the record which is Ex.PW18/A to Ex.PW18/C. According to him, he also collected the photographs of place of incident from the photographers which are Ex.PW9/A1 to Ex.PW9/A16. The witness has also deposed that he also obtained subsequent opinion from the doctor/ Autopsy surgeon which is Ex.PW1/B on his request Ex.PW27/N.
54. The witness has correctly identified the accused in the Court and has also correctly identified the case property i.e. one bag of red and blue colour as the same as produced by Sandeep which is Ex.P1; one pistol of black colour which is Ex.P2; three unused and two used cartridges along with two lead which cartridges are collectively Ex.P3; one plastic container containing two empty shell along with one pallet which is collectively Ex.P6; one plastic container containing blood stained earth which is Ex.P7; one plastic container containing earth which is Ex.P8; one chappal which is Ex.P9; one motorcycle bearing no. DL 8 AY 5455 which is obtained on superdari in case FIR No.138/10 PS South Rohini which motorcycle is Ex.P10 and two number plates, one is showing DL 8S AW 5455 and another plate having no registration number but St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 60 having the word "Police" in red colour which are Ex.P11(colly).
55. In his cross examination by Ld. Defence counsel the witness has deposed that he received the information about this incident at about 12.2012.25PM and reached the spot at about 2.15PM on foot. According to the witness, he met the complainant and other police official in front of H. No. 2021/2020 in gali no.159 and made inquiries from some public persons present there however he did not record any statement of the said public persons as they told to him that they had came to the spot later on. He has further deposed that SHO was already present at the spot at that time but he does not remember whether the complainant Sandeep was present when he prepared the seizure memo of motorcycle. According to him, Ct. Pawan had brought the accused to FSL and they remained in the FSL office about 4045 minutes. He has denied the suggestion that he prepared the seizure memo as narrated by complainant Sandeep and has deposed that he did not see any PCR Van at the spot after his arrival there. According to the witness, he did not try to trace out the PCR officials who took the injured to the hospital and had seized the chappal as it contained some blood stains. The witness has further deposed that he had made inquiries from some public persons present at the spot however he is unable to tell their names and addresses. He has also deposed that the crime team official did not meet him at the spot when he reached there and no public persons told him that a helmet was lying there at the spot but has voluntarily stated that during the inspection no helmet was found at the St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 61 spot. He has also testified that the disclosure statement of the accused recorded at about 7 to 8 PM and it took hardly ten minutes in writing the disclosure statement of the accused. According to him the disclosure statement of accused was recorded while sitting in front of the police post and the distance between the police post and the spot is about 1520 meters. He has further deposed that Ct. Pawan took the accused to the hospital in a TSR and the sister of accused was telephonically informed about the arrest of the accused pursuant to which he made a DD entry. The witness has testified that he finally left the spot at about 8.00 to 8.30PM. He has denied the suggestion that the real culprit had escaped from the spot and to work out this case the accused has been falsely implicated in this case as he was having some animosity with SI Jagdish Dahiya who was posted at Police Station Rohini and one Subhash posted at Police Station Keshav Puram who are residents of Bahadurgarh (Haryana). He has further denied the suggestion that he did not conduct the investigations of this case fairly or that nothing was recovered from the accused or that all writing work was done while sitting in the police station or that the accused was not arrested in the manner stated by him. The witness has also denied the suggestion that the signatures of accused were obtained on blank papers and later on the same were converted into certain documents against him. STATEMENT OF ACCUSED/ DEFENCE WITNESS:
56. After the completion of prosecution evidence, the statement of the accused was recorded under Section 313 Code of Criminal Procedure St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 62 wherein all the incriminating evidence was put to him which he has denied. He has stated that he is innocent and has been falsely implicated in this case since he is having some animosity with SI Jagdish Dahiya who was posted at Police Station Rohini and one Subhash posted at Police Station Keshav Puram who are residents of Bahadurgarh, Haryana. According to him, he was lifted from his office forcibly by police officials due to which he sustained injuries. The accused has examined two witnesses in his defence.
57. DW1 Ashok Kumar has deposed that on 10.5.2010 he was working as Training Supervisor in Hans Security Services, at House No. 154, Sector 2, Mangolpur Kalan, Delhi and his duty hours were 10 AM to 7 PM. According to him, on 10.5.2010, he was present at his office and at about 5:30 PM some police officials came to their office in a government vehicle and told their Managing Director Anil Kumar that SHO had called him for some inquiries. He has stated that thereafter Anil Kumar accompanied the said police officials. The witness has further deposed that he went to his house after his duty hours and on next morning he came to know that police had falsely implicated Anil Kumar in a murder case. He has stated that on 10.5.2010 Anil Kumar remained present in the office for the whole day till 5:30 PM when the police officials came.
58. In his crossexamination by the Ld. Addl. PP for the State the witness has deposed that he has not brought his identity card or any other document to show that he was working in Hans Security Services. He St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 63 has also deposed that he had not brought the attendance register showing that he was present in his office on 10.5.2010. According to him, signatures of Anil Kumar were never taken on the attendance register and has voluntarily added that he was the owner of the Security Agency and therefore his signatures were never taken. He has testified that he was not taking care of any day to day management of security agency and therefore he is unable to tell whether any income tax return was ever filed. Witness has further deposed that the security agency being run by the accused was registered but he is unable to tell its details. According to the witness, on coming to know that Anil Kumar was falsely implicated in the present case, he did not lodge any complaint with the police, Court or any authority. He has further deposed that accused Anil Kumar is not related to him but is known to him for last four years. He has denied the suggestion that he has deposed falsely at the instance of the Anil Kumar being his employee.
59. DW2 Sh. Rajpal has similarly deposed that on 10.5.2010 he was working as Supervisor in Hans Security Services, at House No. 154, Sector 2, Mangolpur Kalan, Delhi and his duty hours were 10 AM to 7 PM. According to him, on 10.5.2010 he was present at his office and at about 55:30 PM when some police officials came to their office in a government vehicle and told their Managing Director Anil Kumar that SHO had called him for some inquiries after which Anil Kumar accompanied the said police officials. He has also deposed that he went to his house after his duty hours and on next morning when he came to his office, he came to St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 64 know that police had falsely implicated Anil Kumar in a murder case. The witness has testified that on 10.5.2010 Anil Kumar remained present in the office for the whole day till 5:30 PM when the police officials came.
60. In his crossexamination by the Ld. Addl. PP for the State the witness has deposed that he has not brought his identity card or any other document to show that he was working in Hans Security Services. He has also deposed that he had not brought the attendance register showing that he was present in his office on 10.5.2010. According to him, signatures of Anil Kumar were never taken on the attendance register and has voluntarily added that he was the owner of the Security Agency and therefore his signatures were never taken. He has deposed that his job in the agency was to collect money from the clients who had engaged the guards from their agency and disburse it to the guards at the site. He is not aware if any income tax was given by the agency. Witness has further deposed that the security agency being run by the accused was registered but he is unable to tell its details. He has testified that the security agency being run by the accused was registered but he is unable to tell its details. According to the witness, on coming to know that Anil Kumar was falsely implicated in the present case, he did not lodge any complaint with the police, Court or any authority. He has further deposed that accused Anil Kumar is not related to him but is known to him since 2005. He has denied the suggestion that he has deposed falsely at the instance of the Anil Kumar being his employee.
St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 65 FINDINGS:
61. I have heard the arguments advanced by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written synopsis/ memorandum of arguments filed on behalf of the parties and the evidence on record. First I propose to deal with all the allegations/ averments made by the various witnesses examined by the prosecution individually in a tabulated form as under and later on comprehensively.
Sr. Name of the Details of deposition
No. witness
PUBLIC WITNESSES:
1. Rakesh Mehra He is a resident of the same area and is a tailor by
(PW12) profession. He has deposed on the following aspects:
1. That on 10.05.20010 at about 12.0012.15 Noon he was passing through the road when he found many persons gathered in the street and also found a person in injured condition.
2. That he came near the crowd and came to know that some persons had caused injuries by bullet to Krishan Kumar Bansal and his son Nitin Kumr Bansal whom he knew being the residents of Tri Nagar.
3. That he made a call to PCR on 100 number from his mobile bearing no. 9136244442 and left the spot and the PCR van came there.
2. Hari Kishan He is the father of the deceased Krishan Kumar and Bansal (PW13) grandfather of the injured Nitin Bansal. He has deposed on the following lines:
1. That his son Krishan Kumar Bansal used to reside at 3522/3, Narang Colony, Delhi and used to do the accounts work at Ganesh Pura, Tri Nagar, Delhi.
2. That after the incident with his son and grandson Nitin Bansal he went directly to Maharaja Aggarsen Hospital and his son Krishan Kumar Bansal was St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 66 declared dead by the doctors.
3. That he had identified the dead body of his son Krishan Kumar Bansal in the hospital vide Ex.PW13/A.
4. That one Vinod Kumar who is brother in law (Sala) of his son Krishan Kumar Bansal had also identified the dead body and his statement was also recorded by the Investigating officer regarding identification vide Ex.PW13/B.
5. That after getting the postmortem conducted he obtained the body vide receipt Ex.PW13/C.
3. Rahul Gupta He is also a resident of the same area and is running a (PW19) ready made garments shop in the name of Preeti Collection at 2019/157, Ganesh Pura, Tri Nagar. He has deposed on the following aspects:
1. That he does not remember the month but it was 10th day of 2010 he was sitting at his aforesaid shop.
2. That at about 11:4512 noon he heard noise of two to three fire shots on which he came out of his shop and found that one person sustained fire shot in the hand and his father was also with him.
3. That he knew the injured as they were his customer and later on he came to know that the father of the injured also received bullet shot.
4. That blood was found oozing from the hand of the boy who received bullet shot and the public persons were beating one person at some distance.
5. That he made a call to the PCR from his mobile bearing No. 9811520510 on which after sometime PCR came to the spot.
6. That both the injured were taken to hospital by the public and the person who was being beaten by the public was handed over to the police.
The witness has correctly identified the accused Anil Kumar as the person who had committed the offence and was apprehended by the public after which he was beaten up and was handed over to PCR.
St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 67
4. Hemant Mehra He is also a resident of the same area having business of (PW20) computer hardware at 3823/6. Kanhaiya Nagar, Tri Nagar, Delhi. He has deposed on the following aspects:
1. That on 10.05.2010 he was coming out from his house bearing number 3833, Gali no.7 , Kanhaiya Nagar where his brother Sh. R.K. Mehra is residing when he heard the voice of fire shot.
2. That he rushed towards the spot and found one person running with a pistol in his hand and Nitin having bullet shot on his hand whereas Krishan Bansal was having bullet shot on his stomach.
3. That one Sandeep Kumar who was worker of Krishan Bansal was also there near the motorcycle and blood was found oozing from the hand of Nitin Bansal and from the stomach of Krishan Bansal on which he went to them.
4. That Krishan Bansal, Nitin Bansal and Sandeep Kumar informed him that the person who was running from there had given bullet shot to them on which he immediately brought his Santro car and took Krishan Bansal in his Santro car and shifted him to Maharaja Agrasen Hospital.
5. That the PCR van also came there which took Nitin Bansal to Maharaja Agrasen Hospital.
6. That he got Krishan Bansal admitted in the hospital but Krishan Bansal was declared dead by the doctor.
7. That the person who was running from the spot with the pistol was apprehended at some distance by the public and he had seen him at the spot.
He has correctly identified the accused Anil Kumar as the same person who had fired shots at Nitin and Krishan Kumar Bansal and was running from the spot with the pistol in his hand and was apprehended by the public after a short chase and beaten and handed over to the police with pistol.
5. Nitin Bansal He is the son of the deceased and also received injuries in (PW21) the incident. He has deposed as under:
St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 68
1. That he is looking after the account work at 2021/159, Ganesh Pura, Tri Nagar, Delhi and on 10.05.2010 he along with Sandeep Kumar who was working in their office went to Axis Bank, ND Block, Pitampura, Delhi for withdrawing the amount from the bank on two wheeler scooter.
2. That he had withdrawn Rs. Two lacs from the bank and was already having Rs.50,000/ and therefore he kept the total Rs.2,50,000/ in a bag and proceeded towards their office.
3. That at about 11:45 AM when they entered their office with the said amount, one person who was having pistol in his hand came in the office and at that time his father Sh. Krishan Kumar Bansal was already sitting in the office.
4. That the said boy showed a pistol to him and Sandeep Kumar and snatched the bag from the hand of Sandeep Kumar and threatened them and also asked them to keep themselves inside the office.
5. That as soon as they came inside the office from the gate due to threat, the said boy shut the door of the office and tried to run away after which they pushed the door of the office and came outside and found that the said boy was trying to start the pulsar motorcycle bearing no. DL 8S AW 455 on which they went after him and overpowered him.
6. That he caught the hand of the said boy in which he was having pistol and Sandeep caught the bag and his father caught him from behind, on which the said boy asked them to let him free otherwise he would fire.
7. That when they did not leave the said boy, he succeeded in freeing his hand from him and fired two three times, as a result one bullet hit on his right arm and other bullet hit on the stomach of his father after which blood started oozing from his hand and the stomach of his father.
8. That the said bag was snatched by Sandeep and thereafter finding no option he (boy) left the motorcycle at the spot and tried to escape.St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 69
9. That they raised an alarm and the public persons overpowered him at some distance and started beating him and his name was known as Anil Kumar S/o Roshan Lal R/o Bahadurgarh, Haryana.
10. That PCR van also came to the spot and Sh. Hemant Mehra took his father to Maharaja Aggarsen Hospital in his Santro car whereas he was taken to the same Hospital by PCR van.
11. That in the hospital he came to know that his father had expired.
12. That they got deposited Rs.2,03,435/ in the hospital for his treatment and the remaining amount has been incurred by them in the last rights of his father.
13. That he had handed over the photocopy of bill of Maharaja Aggarsen Hospital to the Investigating Officer which bill is Ex.PW21/A. The witness has correctly identified the accused Anil Kumar as the same person who fired at him and his father and snatched the bag containing Rs.2,50,000/. He has also correctly identified the case property i.e. a blue and red colour bag with words "with best compliments PLOP" written on the same, as the same which contained the currency notes and was being taken away by the accused, which bag is Ex.P1.
6. Sandeep Kumar He is the employee of the deceased and is also an eye (PW22) witness to the incident. He has deposed as under:
1. That he was working with Sh. Krishan Kumar Bansal for the last 14 years with Sh. Krishan Kumar Bansal who was doing the job of accounts at 2021/159, Ganesh Pura, Tri Nagar, Delhi.
2. That he used to do the field work in the office of Krishan Kumar Bansal and on 10.05.2010 he along with Sh. Nitin Bansal (son of Krishan Kumar Bansal) went to Axis Bank, ND Block, Pitam Pura on his two wheeler scooter for withdrawing money.
3. That Sh. Nitin Bansal withdrawn Rs.2,00,000/ from the bank and apart from the above Nitin Bansal was also having an additional amount of Rs.50,000/ after St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 70 which Nitin Bansal kept the amount of Rs.2,50,000/ in a carry bag of red and blue colour and as soon as they entered their office, one person entered in the office with a pistol in his hand and snatched the bag from his hand on the point of pistol.
4. That the said boy threatened them to keep away or else he would kill them and shut the door of the office and ran towards his pulsar motorcycle.
5. That they pushed the door and came outside and ran towards the said boy who was trying to start his motorcycle bearing no. DL 8S AW 455 but he could not start the said motorcycle.
6. That the word "Police" was found mentioned on the front number plate of the motorcycle.
7. That Nitin Bansal caught hold of the hand of the boy in which he was having pistol whereas he (witness) snatched the bag from his hand and Krishan Bansal apprehended the said boy from back side.
8. That accused Anil Kumar succeeded in releasing his hand from Nitin Bansal and fired twothree times during which one bullet hit on the right arm of Nitin Bansal and one bullet hit in the stomach of his father Krishan Kumar Bansal on which blood started oozing from right arm of Nitin Bansal and stomach of Krishan Kumar Bansal.
9. That his attention was diverted towards Krishan Kumar Bansal and Nitin while at the same time the accused ran towards Gali no.1, Kanhaiya Nagar along with the pistol.
10. That he raised an alarm by shouting "Pakro - Pakro"
on which some public persons came from front side who apprehended the boy and started beating him.
11. That Hemant Mehra came there who took Sh. Krishan Kumar Bansal in his Santro Car to Maharaja Aggarsain Hospital and PCR Van also came there which took Sh. Nitin Bansal to the same hospital and his statement was recorded by the Investigating Officer SI Sanjeev Verma which is Ex.PW22/A. St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 71
12. That he has joined the investigations with the Investigating Officer SI Sanjeev Verma and he handed over the pistol snatched by him from the hands of the accused Anil Kumar to SI Sanjeev Verma who examined the pistol and found containing four live cartridges in the magazine and one live cartridge in the chamber.
13. That SI Sanjeev Verma prepared the sketch of the pistol and cartridge which was recovered from the chamber vide Ex.PW22/B.
14. That after measuring the pistol and cartridges, the same were wrapped in a cloth and was sealed with some seal and the said parcel was taken into possession vide memo Ex.PW22/C.
15. That SI Sanjeev Verma filled in the form of CFSL and at the same time Inspector Ashok Kumar had also come to the spot who prepared the site plan Ex.PW22/D at his instance.
16. That accused Anil Kumar was interrogated and arrested in this case vide memo Ex.PW22/E and personally searched vide memo Ex.PW22/F during which Rs.210/, one mobile phone make Nokia and one silver coloured Kara (Ring) were recovered.
17. That he again joined the investigation with the Investigating Officer Inspector Ashok Kumar and handed over one carry bag of red and blue colour to him as the same bag which was containing Rs.
2,50,000/ and snatched by the accused, which bag was converted into parcel and sealed with the seal of Investigating Officer which parcel was taken into possession vide memo Ex.PW22/G. This witness has correctly identified the accused Anil Kumar as the same person who committed robbery on the point of pistol and fired at him, Nitin and Krishan Kumar Bansal thereby causing gun shot injuries to Nitin Bansal in his hand and to Krishan Kumar Bansal in his stomach which proved fatal for him (Krishan Kumar) and has proved having snatched the pistol from the hand of St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 72 accused Anil after accused Anil was apprehended by the public persons which pistol he handed over to the Investigating Officer on his reaching the spot. He has also correctly identified the case property i.e. one red and blue colour bag with the words "With Best Complements PLOP" written on the same, as the same bag in which they had brought currency from the bank which was snatched by the accused, which bag is Ex.P1; one black coloured pistol, three unused and two used cartridges along with two lead, as the same pistol in which the aforesaid cartridges were recovered which pistol is Ex.P2 and cartridges are collectively Ex.P3.
MEDICAL EVIDENCE
7. Dr. V.K. Jha This witness has proved having conducted the postmortem (PW1) on the dead body of deceased Krishan Kumar Bansal on 11.5.2010 vide postmortem report Ex.PW1/A. He has proved:
1. That the cause of death in this case was spinal shock as a result of bullet injuries consequent to fracture Lumber4 and 5 vertebrae.
2. That the fire arm injury was sufficient to cause death in ordinary course of nature and time since death was approximately 22 hours.
3. That blood gauze piece and bullet recovered were sealed with the sample seal of Mortuary.
4. That on 18.07.2010 Investigating Officer Inspector Ashok Kumar of Police Station Keshav Puram moved an application before him seeking opinion regarding range of fire arms.
5. That after perusal of postmortem report Ex.PW1/A he opined that the range of fire arm was near range beyond the flame effect but within the powdering range which report is Ex.PW1/B.
8. Dr. Ashok Gupta This witness has proved that on 10.05.2010 at Maharaja (PW2) Aggarsen Hospital he medically examined the injured Nitin Bansal with alleged history of firing by bullet vide MLC Ex.PW2/A according to which there was an entry wound St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 73 of bullet in the middle of right upper arm of the injured.
The MLC Ex.PW2/A reflects that the nature of injuries received by Nitin Bansal was grievous.
FORENSIC EVIDENCE:
9. Ms. L. Babyto Devi She has proved having examined the exhibits of this case (PW17), Senior biologically and serologically and has proved her reports Scientific Officer which are Ex.PW17/A & Ex.PW17/B according to which:
FSL Rohini 1. Human blood of 'B' Group was detected on gauze cloth piece exhibit 2 (lifted from the spot).
2. Human blood of 'AB' Group was detected on gauze cloth piece exhibit 3 (lifted from the back tyre of motorcycle).
3. Human blood was detected on cemented piece exhibit 4 (blood stained earth).
4. Blood was detected on control cemented piece exhibit 5 (earth control).
5. Human blood was detected on shirt exhibit 12 (shirt of accused Anil Kumar).
6. Human blood of 'AB' Group was detected on Baniyan exhibit 13a (Baniyan of injured Nitin Bansal).
7. Human blood of 'AB' Group was detected on shirt exhibit 13b (shirt of injured Nitin Bansal).
8. Human blood of 'AB' Group was detected on pants exhibit 13c (pants of injured Nitin Bansal).
9. Human blood of 'AB' Group was detected on handkerchief exhibit 13d (belonging to injured Nitin).
10. Human blood of 'B' Group was detected on Baniyan exhibit 14a (belonging to deceased Krishan Kumar).
11. Human blood of 'B' Group was detected on pant exhibit 14c (belonging to deceased Krishan Kumar).
12. Human blood was detected on shirt exhibit 14d (belonging to deceased Krishan Kumar).
13. Human blood of 'B' Group was detected on gauze cloth piece exhibit 15 (blood sample belonging to deceased Krishan Kumar).
10. Puneet Puri He is the Senior Scientific OfficercumExOfficio (PW23) Chemical Examiner, FSL Rohini who has proved the St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 74 ballistic reports Ex.PW23/A & Ex.PW23/B according to which:
1. The cartridge cases marked Ex.EC1 and EC2 were fired empty cartridges and had been fired through the improvised pistol marked Ex.F1 as the individual characteristics of firing pin marks and breech face marks present on Ex.EC1, EC2 and on test fired cartridge cases marked TC1 and TC2 were found identical when examined under the comparison microscope.
2. That the metallic piece marked Ex.EBR1 was a fragment of jacket of bullet and no further opinion could be possible due to insufficient data.
3. That the bullet marked Ex.EB2 (recovered from the body of the deceased on postmortem) corresponds to the bullet of 7.65mm cartridge and had been discharged through the improvised pistol 7.65mm bore marked Ex.F1 as the individual characteristics of striations present on Ex.EB2 and on test fired bullets marked TB1 and TB2 were found identical when examined under the comparison microscope.
4. That the improvised pistol marked Ex.F1 was a firearm, the cartridges, cartridge cases, fragment of jacket of bullet and bullet were ammunition as defined in Arms Act 1959.
He has also correctly identified the case property i.e. the pistol which is Ex.P2 bearing his initials which was examined by him as F1; the cartridge Ex.P3 collectively all of whom bears his initials / markings as the same which were sent to him for analysis which were marked as A1 to A5 (two have been test fired); test fired cartridges produced in the court which are Ex.P4 collectively (Ex.TC1 and TC2) and two test fired bullets which are Ex.P5 collectively (TB1 and TB2).
POLICE/ OFFICIAL WITNESSES (Proving investigations)
11. Ct. Sikander This witness has proved that on 10.5.2010 at about 6:00 (PW3) PM on the directions of Duty Officer, he delivered the St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 75 special report to the Ld. ACMM and senior officers on government motorcycle no. DL1SN9690 and recorded his arrival vide DD No.23A which is Ex.PW3/A.
12. SI M.D. Meena This witness has proved that on 10.5.2010 while posted as (PW4) Crime Team Incharge in NorthWest District he inspected the scene of crime at the instance of SI Sanjeev Verma and prepared his report Ex.PW4/A which he handed over to the SI Sanjeev Verma.
13. HC Rohtash He is the Duty Officer who has proved that on 10.5.2010 at (PW5) about 4:45 PM HC Bhupender handed over to him one rukka written by SI Sanjeev Verma on which he recorded the Kayami DD vide No. 19 which is Ex.PW5/A. He has also proved having recorded the copy of the FIR which is Ex.PW5/B and also recorded DD No.20/A with regard to the same which DD is Ex.PW5/C. This witness has further proved the DD No.23/A which is Ex.PW5/D and DD No. 28/A which is Ex.PW5/E.
14. SI Mahesh Kumar He is the draftsman who has proved that on 14.7.2010 on (PW6) the request of Inspector Ashok Kumar he inspected the scene of crime and took the measurements after which on 23.7.2010 he prepared a scaled site plan which is Ex.PW6/A which he handed over to Inspector Ashok Kumar.
15. HC Narender This witness has proved having taken the exhibits of this Kumar (PW7) case from the MHCM which he deposited at FSL Rohini.
He has also proved that so long as the exhibits remained in his custody the same were not tampered with.
16. HC Jagdish Chand This witness has proved that on 30.4.2010 while posted as (PW8) Duty Officer at Police Station South Rohini at about 1:20 AM HC Ramesh Lal handed over one rukka endorsed on the statement of Vishal Kapoor regarding theft of Bajaj Pulsar motorcycle bearing no. DL4SAS5455 from M2K parking Sector 3, Rohini pursuant to which he registered the FIR No.138/10 copy of which is Ex.PW8/A.
17. Ct. Subhash chand This witness has proved having taken the photographs of (PW9) the scene of crime which photographs are Ex.PW9/A1 to St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 76 A16 and negatives of the photographs which are collectively Ex.PW9/B.
18. W/Ct. Meenakshi She has proved that on 10.5.2010 she received information (PW10) from wireless set that two persons sustained bullet injuries on which she recorded DD no.15 of Police Post Nagar which is Ex.PW10/A which she handed over to SI Sanjeev Verma for further necessary action.
19. Ajesh Gupta He is Deputy Manager, Axix Bank, DP Block, Pitam Pura (PW11) Branch who has proved the bank account record of deceased Krishan Kumar Bansal according to which the address of Mr. Krishan Kumar Bansal is 3522/3, Narang Colony, Tri Nagar, Delhi110035 who was having an account bearing no. 040010100363471. He has further proved the statement of account Ex.PW11/A according to which as on 10.05.2010 the balance in the account was Rs.Two Lacs. This witness has also proved that the said statement was already supplied to the police official vide covering letter vide Ex.PW11/B and has placed on record an authority letter in his favour which letter is Ex.PW11/C.
20. HC Jai Prakash He is the MHCM who has proved the entry no. 2540 and (PW14) 2542 of register No. 19 which are Ex.PW14/A & Ex.PW14/B; copy of RC No.30/21 which is Ex.PW14/C and copy of RC No. 32/21 which is Ex.PW14/D.
21. Ct. Ramesh Kumar This witness has proved having taken the exhibits from the (PW15) MHCM on 1.6.2010 which he deposited with the FSL Rohini.
22. Sh. B.S. Jaiswal, This witness has proved having accorded the sanction Addl. DCPI under Section 39 Arms Act for prosecution of accused Anil (PW16) Kumar S/o Sh. Roshan Lal vide Ex.PW16/A.
23. HC Dharamveer This witness has proved the PCR forms which are (PW18) Ex.PW18/A; Ex.PW18/B and Ex.PW18/C.
24. HC Bhupender This witness had reached the spot along with SI Sanjeev Singh (PW24) Verma and has proved the following documents:
Ex.PW24/A Seizure memo of parcel containing the clothes of injured Nitin Bansal St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 77 Ex.PW24/B Seizure memo of three parcels containing clothes, pellet, blood sample, gauze piece and sample of deceased Krishan Kumar
25. SI Sanjeev Verma He is the initial investigating officer who has proved the (PW25) various investigation proceedings and the following documents:
Ex.PW25/D Rukka
Ex.PW25/E Copy of FIR
Ex.PW25/F Sketch of the cartridges
Ex.PW25/G Seizure memo of cartridges
Ex.PW25/H Seizure memo of blood lifted from
motorcycle
Ex.PW25/I Seizure memo of blood lifted from concrete
Ex.PW25/J Seizure memo of motorcycle
Ex.PW25/K Seizure memo of chappal
Ex.PW25/L Disclosure statement of Anil
26. Ct. Pawan Kumar This witness had also gone to the spot along with SI (PW26) Sanjeev Verma and has proved having taken the accused Anil to BJRM Hospital for his medical examination since the accused was beaten by the public persons. He has also proved that the doctor concerned took the shirt of accused into possession and he handed over the said parcel containing shirt and sample seal to Inspector Ashok Kumar who seized the same vide memo Ex.PW26/A. He has also deposed that six swabs of accused Anil Kumar were taken in FSL Office which were taken into possession vide memo Ex.PW26/B.
27. Inspector Ashok He is the subsequent Investigating Officer of this case and Kumar (PW27) apart from the documents proved by the various witnesses, he has proved the following documents:
Ex.PW27/A Death Report
Ex.PW27/B Notice U/s. 160 Cr.P.C.
Ex.PW27/C Request for postmortem
St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 78
Ex.PW27/D Brief facts
Ex.PW27/E Application for TIP
Ex.PW27/F Application for copy of TIP
Ex.PW27/G & Copies of RC
PW27/H
Ex.PW27/I & Acknowledgment of FSL
PW27/J
Ex.PW27/K MLC of accused Anil
Ex.PW27/L MLC of Krishan Kumar
Ex.PW27/M Death certificate of Krishan Kumar
Ex.PW27/N Application seeking opinion of Autopsy
Surgeon
62. Coming now to the microscopic evaluation of the evidence against the accused persons.
Ocular Evidence/ Identity of the accused:
63. Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspect connected with the offence, there is no reason to reject their testimonies.
64. The entire case of the prosecution rests on the testimony of Nitin Bansal (PW21) who is the son of the deceased and had also received injuries; Rahul Gupta (PW19) who is having a shop in the area; Hemant St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 79 Mehra (PW20) a resident of the same area and Sandeep Kumar (PW22) the employee of Nitin Bansal. Coming first to the statement of injured Nitin Bansal, the relevant portion of his statement is as under:
"........I was looking after the account work at 2021/159, Ganesh Pura, Tri Nagar, Delhi. On 10.05.2010 I along with Sandeep Kumar who was working in our office went to Axis Bank, ND Block, Pitampura, Delhi for withdrawing the amount from the bank on two wheeler scooter. I had withdrawn Rs 2 lacs from the bank. I was already having Rs 50,000/. I kept the aforesaid 2.5 lacs in a bag and proceeded towards our office. At about 11:45 AM when we entered our office with the said amount, one person who was having pistol in his hand came in the office. At that time my father Sh. Krishan Kumar Bansal was already sitting in the office. That boy showed the pistol to me and Sandeep Kumar and snatched the bag from the hand of Sandeep Kumar. He threatened and asked us to keep ourselves inside the office. As we came inside the office from the gate due to threat of the accused and he shut the door of the office and tried to run away. We pushed the door of the office and came outside and found the said boy was trying to start the pulsar motorcycle. The number of the said motorcycle is DL 8S AW 455. We went after him and overpowered him. I caught his hand in which he was having pistol. Sandeep caught the bag and my father caught him from behind. On this he asked us to let him free otherwise he will fire. When we did not leave him, he succeeded in freeing his hand from me and fired 23 times. As a result one bullet hit on my right arm and other bullet hit on the stomach of my father.St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 80
Blood started oozing from my hand and the stomach of my father. The said bag was snatched by Sandeep. Finding no option he left the motorcycle at the spot and tried to escape. We raised an alarm and the public persons overpowered him at some distance and started beating him. His name was known as Anil Kumar S/o Roshan Lal R/o Bahadurgarh, Haryana. Sh. Hemant Mehra and PCR van also came to the spot. Sh. Hemant Mehra took my father to Maharaja Aggarsen Hospital in his Santro car. I was taken to the same Hospital by PCR van. In the hospital I came to know that my father had expired. My statement was recorded. We had got deposited Rs.2,03,435/ in the hospital for my treatment and the remaining amount has been incurred by us in the last rites of my father.
65. This witness Nitin Bansal (PW21) has been exhaustively crossexamined and there are no major contradictions and there is no reason to disbelieve his version. He himself received a fire shot injury and was injured in the incident and his oral testimony finds due corroboration from the testimony of Sandeep Kumar (PW22). The Ld. Defence Counsel has put a specific suggestion to the witness regarding the accused wearing a helmet which the witness has admitted but has explained that when the accused had come to their shop, he was wearing a helmet but the said helmet got removed in the scuffle which followed outside when they tried to resist and snatch their bag back on which the accused had fired. He has specifically denied that the accused has been falsely implicated only to work out the present case or that he had never seen the face of the accused St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 81 as he was wearing a helmet. He has also denied that since the actual culprit had run away it is for this reason that no helmet was recovered from the spot.
66. Coming now to the testimony of Rahul Gupta (PW19) who is having a garment shop in the area in the name of Preeti Collection at 2019/157, Ganesh Puri, Tri Nagar, Delhi i.e. the shop in the neighbourhood where the incident had taken place. He has proved that on the date of incident i.e. 10.5.2010 he was sitting at his shop when at about 11:4512:00 noon he heard noise of twothree shots and when he came out of his shop, he found that one person sustained fire shot in the hand and his father was also with him. According to the witness, he knew them because they were their customers and he also saw that public persons were beating a person on account of which he made a PCR call from his mobile no. 9811520510. He has proved that the accused was the same person who had been beaten by public and was handed over to the police. The relevant portion of his testimony is as under:
"...... I am running a ready made garments shop in the name of Preeti collection at the aforesaid address. I do not remember the month but it was 10th day, 2010 I was sitting at my aforesaid shop. At about 11:4512 noon I heard noise of 23 fire. I came out of my shop I found one person sustained fire shot in the hand and his father was also with him. I knew them as they were my customer. Later on I came to know that his father also received bullet shot. The blood was found oozing from the hand of the boy who received bullet shot. The public St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 82 persons were beating one person at some distance. I made call to the PCR from my mobile bearing No. 9811520510. After some time PCR came to the spot. The aforesaid injured were taken to hospital by the public. The person who was being beaten by the public was handed over to the police. My statement was recorded by the IO. I can identify the boy who was being beaten by the public. At this stage witness has correctly identified the accused who is present in the court today who was beaten by the public and was handed over to PCR......"
67. Further, in his crossexamination he has deposed as under:
"....... It is wrong to suggest that accused was shown to me outside the court by the IO today and it is for this reason I had identified him in the court. Vol. I had seen the accused at the spot committing the offence and it is for this reason I could identify him. The accused was apprehended by the public near gali No. 1, Kanhiya Nagar, Tri Nagar, Delhi.
On court question : The public ran behind the accused till gali No. 1 where he was apprehended.
I did not go to gali No. 1 where the accused was apprehended by the public persons. Vol. I had only seen him at the place of the incident....."
68. This witness has also been exhaustively crossexamined wherein he has deposed that when he came out he had seen a large number of public persons gathered and he remained there till the injured was taken to the hospital. He has stated that he had seen the accused committing the offence and it is for this reason that he had identified him. The witness has St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 83 stated that the accused was apprehended by public persons who ran after him and on being asked by the Court to explain the witness has stated that the public had run behind the accused till gali no.1, Kanhiya Nagar, Tri Nagar where the accused was apprehended. A specific suggestion was put to the witness that public persons had apprehended some other person but the said person was later on released and falsely implicated the present accused but the witness has denied the suggestion and had stated that he had seen the accused whom he has identified in the Court i.e. Anil Kumar present at the spot of the incident thereby ruling out the possibility of the police having swapped the accused in the police station (i.e. leaving the person who had been handed over to the police and falsely implicating the accused).
69. Coming now to the testimony of Hemant Mehra (PW20) who is a resident of 3782/4, Kanhiya Nagar, Tri Nagar Delhi and is having business of computer hardware at 3823/6, Kanhiya Nagar, Tri Nagar which is in the area where the incident had taken place. He has specifically identified the accused Anil Kumar as the person who was running from the spot with the pistol in his hand after the incident. The relevant portion of his testimony is as under:
"....... I am having business of computer hardware at 3823/6. Kanhaiya Nagar, Tri Nagar, Delhi. On 10.05.2010 I was coming out from my house bearing number 3833, Gali no.7 , Kanhaiya Nagar where my brother Sh. R.K. Mehra is also residing. I heard the voice St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 84 of fire . I rushed towards the spot and found one person was having a pistol in his hand and was running. Nitin was having bullet shot on his hand and Krishan Bansal was having bullet shot on his stomach. One Sandeep Kumar who was worker of Krishan Bansal was also there near the motor cycle . The blood was found oozing from the hand of Nitin Bansal and the blood was oozing out from the stomach of Sh. Krishan Bansal. I went to them. Sh. Krishan Bansal ,Nitin Bansal and Sh. Sandeep Kumar informed that the person who was running from there had given bullet shot to them. I immediately brought my Santro car. I took Sh. Krishan Bansal in my Santro car and took him to Maharaja Agrasen Hospital. The PCR van also came there which took Nitin Bansal to Maharaja Agrasen Hospital. I got Sh. Krishan Bansal admitted in the hospital. Sh. Krishan Bansal was declared dead by the doctor. My statement was recorded by the IO. The person who was running from the spot with the pistol was apprehended at some distance by the public. I had seen him at the spot. I can identify the accused if shown to me. The witness has seen towards the accused Anil Kumar and has correctly identified him as same person who was running from the spot with the pistol.
70. Further, in his crossexamination he has deposed as under:
".......I can not tell where the accused was apprehended. Vol I had only seen him running with the pistol in his hand after he had fired at the injured and the deceased. It is correct that I did not see the accused actually firing upon the injured Nitin Bansal and the deceased Sh. K .K. Bansal. Vol he had already fired by at that time and St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 85 was about 15 steps away from the injured when he was running away with the pistol in his hand. The accused was running away in the opposite direction from me. Vol I saw his face when he had turned around to see if anybody was following him. I had seen the accused once. Initially I saw that 12 persons were running after the accused but since a hue and cry was raised other persons also started running after him. Vol my attention thereafter was only upon the injured and the deceased. At the time the accused had fired upon the injured and was running away when he turned and I saw his face he must be at a distance of about 20 steps away from me. Vol by that time I had rushed near the injured. I do not recollect what clothes the accused was wearing at the time of the incident. Vol I remember that he was wearing shirt but I do not recollect whether it was with trousers/pants or with parallels. I had not seen coming the accused to the spot but public persons were saying that he had come on a bike which was lying at the spot....."
71. It is evident that this witness has been crossexamined at length by the Ld. Defence Counsel wherein he has explained that the place of incident was hardly 5060 steps away from house no. 3833/7. He has also explained that he did not follow the accused since he felt that it was his duty to first rush the injured to the hospital; and rightly so, since he had seen that both the injured had received gun shot injury. He is the person who had lifted the injured Krishan Kumar Bansal (deceased) and taken him to his car and thereafter shifted him to Maharaja Aggarsain Hospital. St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 86 According to him, he reached Maharaja Aggarsain Hospital after about half an hour and has explained that a lot of time had been wasted because a large crowd of persons had collected in the gali after the incident as a result of which it was difficult to move the car out from the area. Ld. Defence Counsel has vehemently argued that Hemant Mehra (PW20) is a planted witness and it is evident from the fact that his blood stained clothes were never seized by the police and therefore, his testimony cannot be relied upon. I have considered the submissions made and I may observe that Firstly the witness Hemant Mehra has explained that there was not much blood coming out from the wounds of the injured and in fact there was liquid and bubbles oozing out from the wound which explained why his clothes were not soiled. Secondly the the MLC of the deceased Krishan Kumar Bansal which is Ex.PW27/L proves that he had been brought to Maharaja Aggarsain Hospital by Hemant Mehra. In fact Hemant Mehra (PW20) has also explained that Nitin Bansal had been brought to the hospital later on by the PCR. He has proved that PCR officials came to the spot when he was in the process of shifting the injured to the hospital and therefore when the PCR brought Nitin Bansal to Maharaja Aggarsain Hospital it was he who had given the details to the hospital. The presence of Hemant Mehra (PW20) is also reflected from the MLC of Nitin Bansal which is Ex.PW2/A. Lastly the Postmortem Report Ex.PW1/A of Krishan Kumar Bansal proves that the gun shot injury received by the deceased was on spinal cord i.e. Lumber 4 and 5 and he died on account of St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 87 spinal shock as a result of bullet injuries consequent to fracture Lumber4 and 5 vertebrae which explains why there was less blood and more of the liquid fluid oozing out from the wound of the deceased.
72. It is further argued by the Ld. Defence Counsel that the witness Hemant Mehra (PW20) has specifically admitted that he did not see the accused actually firing and only saw him running away from the spot of the incident despite which he did not follow the accused and therefore, it was difficult for him to see the face of the accused at that time. Here, I may mention that Hemant Mehra (PW20) has specifically explained that the place of incident was hardly 5060 steps away from his house and the incident had taken place as soon as he was coming out of his house bearing No. 3833, Gali No.7 Kanhaiya Nagar when he heard the sound of fire and rushed towards the spot when he saw the accused Anil Kumar running away having a pistol in his hand. He had first noticed the accused Anil Kumar when he had already fired upon the injured and the deceased when he was just 15 steps away from the injured and saw him running away with a pistol in his hand in the opposite direction from him and he saw the face of the accused when he turned around to see if anybody was following him. This witness has further explained that he had seen the accused at that time and initially one or two persons were running after the accused but since a hue and cry was raised, other persons also started chasing the accused while his (witness's) own attention and St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 88 foucs was upon the injured and the deceased. He has also explained that he saw the face of the accused while he (accused) was just 20 steps away from him since by that time he himself rushed near the injured to help them. Merely because the clothes of this witness Hemant Mehra (PW20) who had taken the injured to the hospital have not been collected or seized by the police is not sufficient to disbelieve the testimony of the witness once the documentary record i.e. the MLC of the injured and the deceased prove the presence of the witness in the hospital at the time when the injures and the deceased were brought.
73. Coming next to the statement of Sandeep Kumar (PW22) who is the employee of the deceased and the injured who had properly seen the face of the accused at the time of the incident and is the person who had actually raised an alarm. The relevant portion of his testimony is as under:
"........... I am working with Sh. Krishan Kumar Bansal for the last 14 years. Sh. Krishan Kumar Bansal doing the job of accounts at 2021/159, Ganesh Pura, Tri Nagar, Delhi. I used to work in his office and look after the field work. On 10.05.2010 I and Sh. Nitin Bansal went to Axis Bank, ND Block, Pitam Pura on his two wheeler scooter for withdrawing money. Sh. Nitin Bansal had withdrawn Rs. 2,00,000/ from the bank. Apart from the above he was also having an additional amount of Rs. 50,000/. Sh. Nitin Bansal kept the amount of Rs. 2,50,000/ in a carry bag of red and blue colour. As soon as we entered our office, one person entered in the office with a pistol in his hand and snatched the bag from my hand on the point of pistol. He threatened us to St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 89 keep away otherwise he will kill us. He shut the door of the office and ran towards his pulsar motorcycle. We pushed the door and came outside and ran towards him. He was trying to start his motorcycle bearing no. DL 8S AW 455 which he could not start. The work "Police"
was found mentioned on the front number plate of the motorcycle. Sh. Nitin Bansal caught his hand in which he was having pistol. I snatched the bag from his hand and Sh. Krishan Bansal also apprehended him from back side. The accused Anil Kumar succeeded in releasing his hand from Sh. Nitin Bansal and started firing. He fired 23 times. One bullet hit on the right arm of Sh. Nitin Bansal and one bullet hit in the stomach of his father Sh. Krishan Kumar Bansal.
Blood started oozing from right arm of Sh. Nitin Bansal and the stomach of Sh. Krishan Kumar Bansal.
My attention was diverted towards Sh. Krishan Kumar Bansal and Nitin and at the same time the accused ran towards Gali no.1, Kanhayya Nagar alongwith the pistol. I raised an alarm by saying " Pakro - Pakro". Some public person came from front side who apprehended him and started beating him. At the same time Sh.
Hemant Mehra came there who took sh. Krishan Kumar Bansal in his Santro Car to Maharaja Aggarsen Hospital. PCR Van also came there which took Sh. Nitin Bansal to the same hospital. ...."
74. He has further in his crossexamination deposed that:
"...... The IO made enquiry from me at the spot and I handed over the pistol to the IO at the spot itself. Family members of Krishan Kumar Bansal and Nitin Bansal reached the hospital when both the injured were St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 90 shifted to the hospital. I did not go the hospital with Sh. K. K. Bansal who was taken by Sh. Hemant Mehra or with Nitin Bansal who was taken by PCR but remained at the spot. The police remained at the spot for about more than one hour since my statement was recorded by SI Sanjeev Verma at the spot itself. Immediately when the accused apprehended I did not see him Vol. It was after the injured were taken to the hospital that I went to the spot where the accused was apprehended that I saw his face. At the time the accused came to our office was wearing a helmet. I saw the face of the accused when the helmet came off during the scuffle. I cannot tell if this helmet was seized by the police or not. I did not show the helmet to the police. Vol. I do not know what happened to the helmet because after the accused was apprehended by public persons I did not see the helmet lying at the spot....."
75. This witness has correctly identified the accused in the Court as the same person who had committed robbery upon Nitin Bansal and Krishan Kumar Bansal and has also identified the bag in which he along with Nitin Bansal had brought the cash from Axix Bank which bag is Ex.P1 and the pistol & cartridges which were used by the accused in firing upon the injured and which he had snatched from the hands of accused. This witness in his crossexamination has explained that they were scared on seeing the pistol in the hand of the accused and therefore after snatching the bag they immediately did not raise alarm and could not understand as to what had happened and also did not follow the accused when he was running away but other public persons chased the accused when he raised St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 91 an alarm. He has further stated that he saw the face of the accused only when he was apprehended by the public persons and has explained that at the time when the accused came to his office he was wearing a helmet but the said helmet came off during the scuffle.
76. The Ld. Defence Counsel has vehemently argued that there was no occasion for the witness to have seen the face of the accused who was wearing helmet and this witness has falsely identified the accused on the asking of the police officials. He has also pointed out that the helmet in question has not been recovered. I have considered the submissions made before me. At the very outset I may observe that in so far as the aspect of the witness not having seen the accused is concerned, it is unbelievable because the witness has repeatedly asserted that there was a scuffle when the accused had snatched the bag from his hand on the point of pistol but thereafter the injured Nitin Bansal caught hold the hand of the accused in which he was having the pistol whereas he (witness) snatched the bag from the hand of the accused and Krishan Kumar Bansal also apprehended the accused from the back side but the accused succeeded in releasing his hand from Nitin Bansal and fired two to three times on which one bullet hit on the right arm of Nitin Bansal and other bullet hit in the stomach of Krishan Kumar Bansal on which blood started oozing out from right arm of Nitin Bansal and the stomach of Krishan Kumar Bansal. The victim Nitin Bansal and witness Sandeep have explained that it was during this scuffle that the helmet of the accused had come off. The witness Sandeep has specifically St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 92 explained that on this his attention was diverted and the accused started running away towards gali no.1 Kanhaiya Nagar along with pistol. He has specifically stated that he had seen the accused when he snatched the bag from his hand and immediately did not raise an alarm because they were shocked and initially no public persons came to their rescue as nobody could understand as to what had happened and the whole incident took place within twothree minutes. The witnesses Rahul Gupta and Hemant Mehra who had witnessed the firing of shots and seen the accused running along with a pistol in his hand, with public chasing him after which he was apprehended, have also specifically explained the above sequence. Further, the witness Sandeep Kumar has proved that it was he who had taken the pistol from the hand of the accused which he later handed over to the police. Merely because the police has failed to recover or seize the helmet in question, cannot be a ground to disbelieve the witness. It has come on record that a large number of public persons had gathered in the street in hundreds and the entire attention of the eye witnesses was on the injured and in rushing the injured to the hospital in an attempt to save their lives. Therefore, the possibility of the helmet not being noticed or being picked up by some public person who walked away with it, cannot be ruled out. Therefore, non recovery of the helmet will not be fatal to the case of the prosecution.
77. It is further evident from the record that the judicial Test Identification Parade of the accused Anil Kumar were also sought to be St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 93 conducted but the accused refused to participate in the same. The said proceedings conducted by Sh. Neeraj Gaur, Ld. MM are Ex.PX1 (proceedings admitted by the accused) and no ostensible justification forthcoming for the same, an adverse inference is drawn against the accused Anil Kumar.
Withdrawal of the sum of Rs. Two Lacs from the bank robbed from the victims by the accused:
78. The case of the prosecution is that on the date of incident i.e. on 10.5.2010 Nitin Bansal (PW21) and Sandeep Kumar (PW22) had gone to Axix Bank ND Block, Pitam Pura and withdrawn a sum of Rs. Two lakhs from the bank. Nitin Bansal was already carrying a sum of Rs. 50,000/ and he kept the entire amount of Rs.2,50,000/ in a bag and proceeded to their office pursuant to which the offence took place at their office 2021/159, Ganesh Pura, Tri Nagar Delhi at about 11:45 AM. In this regard Sh. Ajesh Gupta (PW11) Deputy Manager, Axix Bank has proved the withdrawal of a sum of Rs. Two Lacs from the bank from account bearing no. 040010100363471 in the name of Krishan Kumar Bansal and the statement of account reflecting the same is Ex.PW11/A. This documentary record corroborates the oral testimonies of Nitin Bansal and Sandeep Kumar and proves the withdrawal of a sum of Rs. Two Lacs from the bank which the accused had succeeded in snatching from the victims on the point of Chinese pistol after he entered into their shop. It stands St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 94 established that after snatching the bag containing Rs.2 lacs withdrawn by Nitin and Sandeep from Axix Bank and kept in the bag along with Rs. 50,000/ which Nitin was previously carrying, the accused threatened the victims and escaped from their shop by showing the pistol. It further stands established that thereafter the accused Anil tried to start his motorcycle which he had parked in the gali but incidentally the motorcycle could not start and in the meanwhile the victims Nitin Bansal, Sandeep Kumar and Krishan Kumar came out of their shop following him and caught hold of him. While Nitin Bansal caught hold of his hand in which he was holding his pistol, Sandeep caught hold of the hand in which he was holding the bag and tried to snatch the bag containing the robbed amount back from him while Krishan Kumar Bansal caught hold of him from behind. During this scuffle the helmet of the accused Anil was removed and fell off and Anil managed to flee his hand from Nitin in which he was holding the pistol and fired twothree shots while Sandeep Kumar managed to snatch the bag containing the cash from his other hand. One shot hit Nitin on his hand and the other shot hit Krishan Kumar in his stomach and in the meanwhile the accused Anil in order to save himself started to run away from the spot when an alarm was raised by the victims and the public persons started chasing the accused Anil who was apprehended after 2030 feet from the place of the incident. The aspect of withdrawal of the amount and armed robbery in which two of the victims received injuries one of whom was fatally wounded, stands conclusively established. St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 95 Use of stolen motorcycle bearing no. DL4SAS5455 by the accused at the time of commission of offence:
79. The case of the prosecution is that the accused before this Court namely Anil Kumar had come to the spot i.e. office of Krishan Kumar Bansal at 2021/159, Ganesh Pura, Tri Nagar on a motorcycle make Pulsar bearing no. DL 4SAW455 which was stolen one and its correct registration number is DL4SAS5455. In this regard, PW8 Ct. Jagdish Chand has proved that the said motorcycle belonging to one Vishal Kapoor was stolen from M2K Parking, Sector 3, Rohini on 30.4.2010 in respect of which an FIR bearing No. 138/10, under Section 379 Indian Penal Code, Police Station South Rohini which is Ex.PW8/A was lodged. The testimony of this witness has gone uncontroverted. Further, the various eye witnesses have proved that the accused Anil Kumar had come on this motorcycle and was trying to flee away but could not start the motorcycle due to which reason he was apprehended after a short chase. The said motorcycle was seized from the spot vide memo Ex.PW25/J an aspect which has been proved by SI Sanjeev Verma (PW25) and Inspector Ashok Kumar (PW27). Further, blood was also lifted from the back tyre of the said motorcycle and the FSL reports Ex.PW17/A & Ex.PW17/B shows the presence human blood of 'AB' Group belonging to the injured Nitin Bansal. The fact that the said motorcycle was found at the spot, also finds due corroboration from the PCR forms Ex.PW18/A, Ex.PW18/B and St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 96 Ex.PW18/C which show that information was received at 13:10:27 from PCR Van T53 that at the time of the incident Anil Kumar was riding on motorcycle No. DL8SAW455 (Nitin Bansal S/o K.K. Bansal R/o 2522/3, Narang Colony jo ki apne father ke saath bank se rakam nikal kar bag me lekar aa rahe they, motorcycle no. DL8SAW455 Pulsar par sawar Anil uprokt ne bag lootnae ki koshish ki or goli chala di). The photographs Ex.PW9/A6, Ex.PW9/A7, Ex.PW9/A9, Ex.PW9/A11, Ex.PW9/A12, Ex.PW9/A14 and Ex.PW9/A15 also show the motorcycle make Pulsar at the spot bearing back number plate DL8SAW455. In view of the above, I hereby hold that the use of stolen motorcycle make Bajaj Pulsar bearing registration no. DL4SAS5455 by the accused Anil Kumar in committing the offence, stands duly proved and established.
Recovery of the pistol & cartridges and Sanction under Section 39 of Arms Act:
80. The witness Sandeep Kumar (PW22) who is the employee of Krishan Kumar Bansal (deceased), was involved in the scuffle with the accused. He has in his testimony before the Court specifically proved that it was he who had snatched the pistol from the hand of Anil Kumar which he later on handed over to SI Sanjeev Verma who examined the same and found it to be containing four live cartridges in the magazine and one live cartridge in the chamber, after which the sketch of the pistol and cartridges was prepared which is Ex.PW22/B and after measuring the pistol and St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 97 cartridges, the same were wrapped in a cloth and was seized vide memo Ex.PW22/C. The eye witness Hemant Mehra (PW22) has specifically testified that he had seen the accused Anil Kumar running with a pistol in his hand. Sandeep Kumar (PW23) has identified the pistol as the same pistol which he had snatched from the hand of accused Anil Kumar. The testimony of Sandeep Kumar (PW23) finds due corroboration from the PCR record showing that at 12:23:49 the pistol make Chinese had been handed over to the Investigating Officer by eye witness at the spot itself and therefore, the question of planting the same on the accused later on does not arise. Therefore, I hereby hold that the prosecution has been duly able to prove and substantiate the recovery of pistol along with the cartridges from the accused Anil Kumar.
81. Further, the sanction under Section 39 of Arms Act which has been accorded by Sh. B.S. Jaiswal, Addl. DCPI has been duly proved by him as Ex.PW16/A and it has also been proved that he had accorded the same after perusing the statements of witnesses under Section 161 Cr.P.C., seizure memo, ballistic examination report and after satisfying himself. There is no ground to discredit the same.
Record of the PCR Calls:
82. Rakesh Mehra (PW12) has proved that on the date of incident i.e. 10.5.2010 at about 12:00 - 12:15 Noon he was passing through St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 98 the road, he found many persons gathered in the street and when he came near the crowd he came to know that Krishan Kumar Bansal and Nitin Bansal had received bullet injuries, on which he immediately made a call to the PCR on 100 number from his mobile phone bearing no. 9136244442 and left the spot. This fact finds a due mention in the PCR record duly proved by HC Dharamveer (PW18) which PCR forms are Ex.PW18/A, Ex.PW18/B and Ex.PW18/C. It is evident from the record that a large number of public persons made calls to the PCR. The first call was made by Rahul Gupta from his mobile No. 9811520510 at 12:15:19 to the effect that 'Kanhiya Nagar Tri Nagar Gali No.7 Goli Chali Hai do logo ko goli lagi hai'. Further, an information was received from phone no. 1127382371 at 12:15:48 to the extent that 'House No. 2059 Gali No. 159Ganeshpura Tri Nagar yaha kisine fire kar diya hai'. Thereafter a PCR call was made from 9136244442 (mobile belonging to Rakesh Mehra) at 12:19:10 to the effect that 'Kanhiya Nagar Gali No.7 ke bahar Tri Nagar yaha par koi ek admi par gole chala kar bhag gaye'.
83. For the sake of convenience the details of the various wireless messages transmitted by/ to the PCR vans as borne out from the PCR forms and recorded by the PCR staff and duly proved by HC Dharamveer (PW18) are reproduced in a tabulated form as under: St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 99
PCR Call received from:
Mobile No. 9811520510 (mobile belonging to Rahul Gupta) at 12:15:19 Phone No. 1127382371 at 12:15:48 Mobile No. 9136244442 (mobile belonging to Rakesh Mehra) at 12:19:10 Sr. Time of the Details Aspects which stand No. wireless message established 1 12:21:20 from Call is true, ek ladke ➢ Within six minutes of PCR Van C17 ko goli lagi hai jisko receiving the information PCR pvt gadi se u/k hosp van reached the spot.
laya ja chuka hai ➢ Call has been found to
be correct.
➢ Injured shifted to the
hospital.
2 12:26:59 from Ek larka jisne goli ➢ Boy who had fired shots
PCR Van C16 mari hai with ashla has been apprehended at the
public ne parkar liya spot by public persons along
hai L/P HC with arm and ammunitions
Bhupender 1605 (Asla)
Moka par
3 12:30:52 from Jis larke ko goli lagi ➢ Nitin who was injured
PCR Van C17 hai Yadav clinic se on account of gun shot has
uske parents been shifted to Aggarsain
Aggarsain hospital le Hospital from Yadav Clinic
jana chahte hai,
injured to hospital le
jaa rahe hai
4 12:33:47 from SHO with staff moka ➢ SHO reaches the spot
PCR Van T53 par along with staff
5 12:37:58 from Goli marne wale ➢ Name of the boy who
PCR Van C16 larke ka naam Anil had fired upon the injured, was
S/o Roshan lal Age 27 revealed as Anil s/o Roshan
years, R/o Gali No.1, Lal R/o Bahadurgarh, Haryana Patel Nagar, (establishing the presence of the Bahadurgarh, accused Anil Kumar on the spot St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 100 Haryana hai of incident) 6 13:10:27 from Nitin Bansal S/o K.K. ➢ Preliminary PCR Van T53 Bansal R/o 2522/3, investigations at spot revealed Narang Colony jo ki that Nitin and his father had apne father ke saath returned from bank after bank se rakam nikal withdrawing amount which kar bag me lekar aa they kept in a bag.
rahe they, motorcycle ➢ Anil came on a
no. DL8SAW455 motorcycle bearing no.
Pulsar par sawar DL4SAW455 make Pulsar.
Anil uprokt ne bag ➢ Anil robbed Nitin and
lootnae ki koshish ki his father of the bag
or goli chala di. containing the amount and
fired shots on them.
7 13:22:27 from Do injured Nitin ➢ Two persons are injured
PCR Van C17 Bansal S/o K.K. in the incident i.e. Nitin
Bansal age 26/27 Bansal aged 26/27 years and
years or uske father his father K.K. Bansal aged 48 K.K. Bansal age 48 years.
years jo dono ko goli ➢ Both of them have lagi thi Maharaja received gun shot injuries and Aggarsain Hospital have been taken to Maharaja Punjabi Bagh lekar Aggarsain Hospital.
haye hai, jisme K.K. ➢ After examination K.K.
Bansal ke pait me Bansal who received gun shot
goli lagi hai ko wound in stomach is declared
doctor Sahab ne dead in Maharaja Aggarsain
checkup karne ke Hospital.
baad dead declare ➢ Nitin who received gun
kar diya hai or Nitin shot injury in his hand is
Bansal ko right hand undergoing treatment in
me goli lagi hai ka Maharaja Aggarsain Hospital
treatment kar rahe where he is in an unconscious
hai jo behosi ki halat condition.
me hai goli lagne ka ➢ These gun shots were
fired by Anil who committed
St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 101
karan dono bank se robbery with them.
rakam nikal kar apne
ghar aa rahe they ek
larka Anil uprokt ne
dono ko goli mari thi.
8 12.23.49 from Anil ne jis weapon ko ➢ The weapon of offence
PCR Van T53 use kiya Chinese was a Chinese pistol
pistol hai
9 13:3913 from PCR Base Metro Station ➢ PCR Vans returned to
Van C17 Kanhiya Nagar or their destination
C16 ka base metro
Station Keshav
Puram hai
84. The aforesaid PCR record filled up in the Central Control Room on the basis of the various WT messages (electromagnetic wireless transmission record) received from the different PCR vehicles which had reached the spot, has been maintained in the official course of business.
The said record has not been duly controverted by the accused and it duly corroborates the oral versions of the various eye witnesses and completes the sequence of events which took place after the various PCR vehicles (detailed above in the able) reached the spot on receipt of information of the incident.
Medical Evidence:
85. Dr. V.K. Jha (PW1) has proved having conducted the postmortem on the dead body of Krishan Kumar and has also proved the St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 102 postmortem report which is Ex.PW1/A according to which the cause of death was was spinal shock as a result of bullet injuries consequent to fracture Lumber4 and 5 vertebrae. He has further proved that the fire arm injury was sufficient to cause death in ordinary course of nature.
The witness has proved that the bullet recovered from the body and the blood gauze piece were sealed with the sample seal of Mortuary and handed over to the police. He has also proved that the range of fire arm was near range beyond the flame effect but within the powdering range which report is Ex.PW1/B. In view of the above, I hereby hold that the opinion of Dr. V.K. Jha with regard to the distance of fire and the cause of death corroborate the oral version of the witnesses that the bullet had been fired from a close range.
86. Further, Dr. Ashok Gupta (PW2) has proved the MLC of injured Nitin Bansal who was brought to the hospital with the alleged history of firing by a bullet and on examination there was an entry wound of bullet in the middle of right upper arm, which MLC is Ex.PW2/A. The said MLC shows that the nature of injuries was opined by the doctor as 'Grievous'.
87. The aspect of death of Krishan Kumar has not been disputed and the MLC Ex.PW27/L shows that Krishan Kumar was brought to Maharaja Aggarsain Hospital with the alleged history of firing by bullet in the abdomen by some unknown person while going to office Kanhiya St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 103 Nagar (Tri Nagar) as told by the attendant (Hemant Mehra). Forensic evidence:
88. After the recovery of the pistol the same had been sent to FSL Rohini for examination along with the cartridges and cartridge cases and one metallic piece recovered from the body of the deceased at the time of postmortem. Sh. Puneet Puri (PW23), Senior Scientific Officer has proved the Ballistic Report which is Ex.PW23/A and has proved that the pistol (Ex.P2) was the same which had been examined by him as F1 and the cartridges (Ex.P3) were the same which had been sent to him for examination. He has also identified the test fired bullets and the cartridges which were sent to him for examination and the test fired cartridges. The witness has further proved that the improvised pistol was a firearm and the cartridges, cartridge cases, fragment of jacket of bullet and bullet were ammunition as defined in Arms Act. He has conclusively proved that the cartridge cases which had been recovered from the pistol Ex.P3 had been fired through the improvised pistol Ex.P2 which he has opined since the individual characteristics of firing pin marks and breech face marks present on the said cartridges were found identical when compared with the test fire cartridges under microscope examination.
89. Further, the ballistic report in respect of the swabs of the accused which report is Ex.PW23/B shows that gunshot residue particles (GSR) were detected around the hole on the half sleeves shirt marked St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 104 exhibit 'C2' (belonging to the injured Nitin Bansal). However, no opinion could be given on the swabs due to insufficient data.
90. Therefore, under these circumstances, I hereby hold that the prosecution has been able to establish that two bullets had been fired from the pistol snatched from the hand of the accused Anil Kumar by Sandeep Kumar.
91. Further, as per the FSL reports which are Ex.PW17/A & Ex.PW17/B show that human blood of 'B' Group was detected on gauze cloth piece exhibit 2 (lifted from the spot); human blood of 'AB' Group was detected on gauze cloth piece exhibit 3 (lifted from the back tyre of motorcycle); human blood was detected on cemented piece exhibit 4 (blood stained earth); blood was detected on control cemented piece exhibit 5 (earth control); human blood was detected on shirt exhibit 12 (shirt of accused Anil Kumar); human blood of 'AB' Group was detected on Baniyan exhibit 13a (Baniyan of injured Nitin Bansal); human blood of 'AB' Group was detected on shirt exhibit 13b (shirt of injured Nitin Bansal); human blood of 'AB' Group was detected on pants exhibit 13c (pants of injured Nitin Bansal); human blood of 'AB' Group was detected on handkerchief exhibit 13d (belonging to injured Nitin); human blood of 'B' Group was detected on Baniyan exhibit 14a (belonging to deceased Krishan Kumar); human blood of 'B' Group was detected on pant exhibit 14c (belonging to deceased Krishan Kumar; human blood was detected on shirt exhibit 14d (belonging to deceased Krishan Kumar) and human blood St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 105 of 'B' Group was detected on gauze cloth piece exhibit 15 (blood sample belonging to deceased Krishan Kumar). It therefore stands established that the blood group of deceased Krishan Kumar Bansal was of 'B' Group and of the injured Nitin Bansal was of 'AB' Group. The presence of the blood groups belonging to the injured and the deceased on the various exhibits lifted from the spot conclusively establishes that the incident had taken place at the spot from where the exhibits were lifted. I hereby hold that the forensic evidence corroborates the oral testimonies of the various eye witnesses and injured.
Defence of the accused:
92. The defence of the accused is that he is inimical to one SI Jagdish Dahiya who was posted at Police Station Rohini and one Subhash who was posted at police Station Keshav Puram, both of whom are residents of Bahadurgarh, Haryana and they have falsely implicated him in the present case. In his defence the accused has examined two witnesses i.e. Ashok Kumar (DW1) and Rajpal (DW2) both of whom have stated that on 10.5.2010 when they were present at their office at House No. 154, Sector 2, Mangolpur Kalan, Delhi at about 5:30 PM some police officials came to their office in a government vehicle and told their Managing Director Anil Kumar that he had been called by the SHO for some inquiry after which they came to know that Anil Kumar has been falsely implicated in a murder case.
St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 106
93. I may observe that both the witnesses are highly untrustworthy. They have not been able to produce any documentary record to prove that they were the employees of Anil Kumar. Further, this claim of the accused Anil Kumar and the defence witnesses that Anil Kumar was present in his office at House No. 154, Sector 2, Mangolpur Kalan, Delhi on 10.5.2010 and lifted by the police at 5:30 PM stand falsified on three counts. Firstly the record of the Police Control Room in the form of PCR forms Ex.PW18/A, PW18/B and Ex.PW18/C as discussed herein above, which is an official record being maintained in the ordinary course of business proved by HC Dharamveer (PW18) and presumed to be correct and has not been duly controverted establishes that on 10.5.2010 at 12:26:59 when the PCR Van C16 reached the spot the accused had already been apprehended by the public persons along with pistol; at 12:37:58 he disclosed his name as Anil Kumar S/o Roshan Lal R/o Bahadurgarh, Haryana and at 12:23:49 information was received from PCR Van T53 that the weapon which was used by Anil Kumar was a Chinese pistol. Secondly the MLC of the accused Anil Kumar dated 10.5.2010 which is Ex.PW27/K establishes that he was taken to BJRM hospital at about 3:30 PM for his medical examination with the alleged history of being beaten by public persons where he was treated by Dt. Sumit Arora and Dr. Anil after which the accused Anil Kumar was taken to the FSL Rohini where swabs of both his hands were taken. This out rightly defeats the claim of the accused Anil that he was lifted at 5:30 PM and falsely St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 107 implicated after the actual person was left. Lastly all the independent eye witnesses who were public persons and had personally witnessed the incident, have identified the accused Anil Kumar as the assailant and the person who had been caught at the spot and there being no history of animosity, there is no reason why they would have falsely implicated the accused. In view of the aforesaid, I hereby hold that the entire defence of the accused is sham and hereby rejected.
Contradictions and Discrepancies:
94. Ld. Defence Counsel has vehemently argued that there are material discrepancies in the testimonies of the eye witnesses in terms of the distance of the accused and the victim; whether the assailant was wearing a helmet or not; how the identity of the assailant could be established; direction from which the assailant had come, direction in which the assailant was running and the distance from the spot of incident and the place where the assailant/ accused had been allegedly apprehended.
95. I have considered the submissions made. Before coming to the merits of the case, it is necessary to discuss the law relating to contradictions and discrepancies. In the case of State of H.P. Vs. Lekhraj and another reported in JT 1999 (9) SC 43 it was observed by the Supreme Court of India as that: In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 108 observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.........
.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial."
96. Further, in the case of Surender Singh Vs. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under : "It is wellestablished principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity."
97. As far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish Vs. State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has held that When the discrepancies are comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also in the case of State of Rajasthan Vs. Kalki, reported in (1981)2 SCC 752 it has been held that in the depositions of witnesses there are always normal discrepancy, however, St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 109 honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
98. Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally nondiscrepant. Courts have to bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. Too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
99. The Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1), the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses. St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 110
(a) By and large a witness cannot be expected 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.
(b) Ordinarily 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 attuned to absorb the details.
(c) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(d) By and large 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 expect a witness to be a human tape recorder.
(e) 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 moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(f) Ordinarily 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 lateron.
(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing crossexamination made by counsel and out of St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 111 nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
100. Applying the settled principles of law to the facts of the present case it is evident that at the time of the incident it was Krishan Kumar Bansal, Nitin Bansal and Sandeep Kumar who were together in the shop. The whole incident must have lasted for hardly around a minute while they were in the shop when the accused snatched the bag containing money on the point of pistol. It is natural that the victims must have been taken by a surprise and were in a state of shock to have reacted immediately and it took them time to realize what was going on after the bag was snatched on the point of a pistol and the accused was going away to start his motorcycle when they actually followed the assailant/ accused while he was trying to start his motorcycle and also caught hold his hand in which the accused was having the bag and the hand in which he was holding the pistol. Surprised on reaction of the victims the accused started firing gun shots from his Chinese pistol after managing to free his hand from the grip of Nitin while Sandeep snatched the bag containing the looted/ robbed amount from the hands of the accused and one shot hit Nitin Bansal on his St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 112 hand while another shot hit Krishan Kumar Bansal on his stomach. While the attention of the public persons diverted to the victims the accused in the meanwhile started to flee on foot as his motorcycle did not start but for the fact that Sandeep Kumar raised an alarm initially by shouting 'oye oye' and thereafter 'Pakropakro' on which public persons started chasing the accused and after a distance of about 2030 feet they were able to apprehend him and also thrashed him before the police reached the spot. The witnesses Rakesh Mehra, Hemant Mehra and Rahul Gupta were the witnesses who were standing in the gali and had heard the gun sots when they saw the accused firing shots and running away. In fact Hemant Mehra (PW20) had come out of his house when the scuffle was going on and it was for this reason that he was able to see the face of the accused Anil Kumar. The distance and the directions from which the witnesses had witnessed the incident was different and this explains the difference in perception and how each public witness has perceived the incident from a different angle and in a different manner. It is normal that eye witnesses are often overtaken by events and occurrences which they could not have anticipated which has an element of surprise and therefore, the mental faculties cannot be expected to be attuned to absorb the details. Further the powers of observation differ from person to person and what one may notice, another may not and therefore, by and large it is not expected of a public witness to possess a photographic memory and to recall the details of an incident as a tape recorder more so when the incident is such that the St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 113 sequence of events took place in rapid succession or in a short time span as has happened in the present case and hence, the contradictions & discrepancies found in the statements of the public witnesses namely Hemant Mehra, Rahul Gupta, Nitin Bansal and Sandeep Kumar as highlighted by the Ld. Defence Counsel [Ref.: Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat (Supra)].
101. A discrepancy in the number of the motorcycle mentioned by the various eye witnesses has been duly highlighted by the Ld. Defence Counsel. I may note that this discrepancy stands validly explained. The evidence on record including the photographs Ex.PW9/A6, Ex.PW9/A7, Ex.PW9/A9, Ex.PW9/A11, Ex.PW9/A12, Ex.PW9/A14 and Ex.PW9/A15 show that the motorcycle was in fact bearing an incomplete number plate i.e. bearing no. DL4SAW455 mentioned on the back side of the number plate. It is unrealistic to expect that public persons should make a precise or reliable statement and to recall exact number of the motorcycle as seen by them since usually people make their reliable estimates on the basis of what they had seen at the spur of the moment.
102. Therefore, under these circumstances, I hold that the discrepancies as pointed by the Ld. Defence Counsel if any, are not material and have been explained. The documentary/ circumstantial evidence in the form of wireless messages recorded in PCR forms Ex.PW18/A, Ex.PW18/B and Ex.PW18/C and the Forensic Evidence in St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 114 the form of FSL and Ballistic Reports, corroborate the oral testimonies of the witnesses who I hold are reliable and trustworthy and also established the incident having take place and the witnesses having been present at the spot and witnessed the same. Even otherwise, none of the public witness was previously known to the accused or any history of animosity between them and hence, there is no reason why they would falsely implicate the accused only to assist the local police in working out the case as alleged by the accused. In view of the above, I find the argument raised by the Ld. Defence Counsel devoid of merit.
FINAL CONCLUSIONS:
103. In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) The circumstances should be of conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 115
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
104. Applying the settled principles of law to the facts of the present case it is evident that the identity of the accused Anil Kumar stands established. The following aspects stand established:
➢ That the deceased Krishan Kumar Bansal was looking after the accounts work at his office situated at 2021/159 Ganesh Pura, Tri Nagar Delhi along with his son Nitin Bansal and one Sandeep Kumar.
➢ That on 10.5.2010 Nitin Bansal along with Sandeep Kumar went to Axis Bank, ND Block, Pitampura and withdrawn Rs. Two lacs which amount he kept in a bag along with Rs.50,000/ which he was already carrying.
➢ That at about 11:45 AM when they entered their office where Krishan Kumar Bansal was already present, the accused Anil Kumar came in the office and showed a pistol to them and snatched the bag from the hand of Sandeep Kumar.
➢ That after snatching the bag containing Rs.2 lacs withdrawn by Nitin and Sandeep from Axix Bank and kept in the bag along with Rs.50,000/ which Nitin was previously carrying, the accused threatened the victims and escaped from their shop by showing the St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 116 pistol.
➢ That thereafter the accused Anil tried to start his motorcycle bearing no. DL8S AW 455 make Pulsar which he had parked in the gali but incidentally the motorcycle could not start and in the meanwhile the victims Nitin Bansal, Sandeep Kumar and Krishan Kumar came out of their shop following him and caught hold of him.
➢ That while Nitin Bansal caught hold of his hand in which he was holding his pistol, Sandeep caught hold of the hand in which he was holding the bag and tried to snatch the bag containing the robbed amount back from him while Krishan Kumar Bansal caught hold of him from behind.
➢ That during this scuffle the helmet of the accused Anil was removed and fell off and Anil managed to flee his hand from Nitin in which he was holding the pistol and fired twothree shots while Sandeep Kumar managed to snatch the bag containing the cash from his other hand.
➢ That one shot hit Nitin on his hand and the other shot hit Krishan Kumar in his stomach and in the meanwhile the accused Anil in order to save himself started to run away from the spot when an alarm was raised by the victims and the public persons started chasing the accused Anil who was apprehended after 2030 feet from the place of the incident.St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 117
➢ That Sandeep Kumar snatched the pistol from the hand of accused Anil Kumar and handed over the same to the police thereafter.
➢ That Hemant Mehra had seen the accused Anil Kumar as the person who had shot Krishan Kumar Bansal and Nitin Bansal and was running from the spot with a pistol in his hand and was thereafter apprehended by the public persons but his entire focus was on the injured Krishan Kumar whom he rushed to Maharaja Aggarsain Hospital where Krishan Kumar was declared dead by the doctors.
➢ That Rahul Gupta a resident of the area made a PCR Call at 12:15:19 from his Mobile No. 9811520510 and identified the accused Anil Kumar as the person who had committed the offence and was apprehended by the public after which he was beaten up and was handed over to PCR.
➢ That Rakesh Mehra a resident of the same area also made a PCR all at 12:19:10 from his Mobile No. 9136244442..
➢ That the injured Nitin Bansal was removed to Hospital by PCR where he was treated.
➢ That the nature of injuries received by Nitin were opined by the doctor as 'Grievous' ➢ That the cause of death of Krishan Kumar Bansal was spinal shock as a result of bullet injuries consequent to fracture Lumber4 St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 118 and 5 vertebrae and the fire arm injury was sufficient to cause death in ordinary course of nature.
➢ That the range of fire arm was near range beyond the flame effect but within the powdering range.
➢ That the improvised pistol (recovered from the accused Anil Kumar) was a firearm, the cartridges & cartridge cases (recovered from the spot), the bullet recovered from the body of the deceased (EB2) and the fragment of the bullet (EBR1) lifted from the spot by the Investigating Officer were ammunition as defined in Arms Act 1959.
105. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
106. The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 119 prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
107. In view of my aforesaid discussion, I hereby hold the accused Anil Kumar guilty of the offence under Section 392 read with 397 Indian Penal Code (having committed robbery of Rs.2,50,000/ on the point of pistol); under Section 307 Indian Penal Code (having caused grievous injuries upon Nitin Bansal with such intention and knowledge and under such circumstances that if by that act he caused the death of Nitin Bansal, he would have been guilty of murder); under Section 302 Indian Penal Code (having committed the murder of Krishan Kumar Bansal) and also under Section 25/27/54/59 of Arms Act (having been found in possession of pistol containing one live cartridge and also having used the same) for which the accused is accordingly convicted.
108. Case be listed for arguments on sentence on 23.4.2012.
Announced in the open court (Dr. KAMINI LAU)
Dated: 16.4.2012 ASJII(NW)/ ROHINI
St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 120
IN THE COURT OF Dr. KAMINI LAU: ADDITIONAL SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 1231/10 Unique Case ID No.: 02404R0198722010 State Vs. Anil Kumar S/o Roshan Lal R/o Gali No. 1, Patel Nagar, Bahadurgarh, Distt. Jhajjar, Harayana (Convicted) FIR No.: 153/2010 Police Station: Keshav Puram Under Section: 302/307/392/397/511 Indian Penal Code and 25/27/54/59 Arms Act Date of Judgment: 16.4.2012 Arguments heard on: 23.4.2012 Date of sentence: 30.4.2012 APPEARANCE:
Present: Sh. Sukhbir Singh, Additional Public Prosecutor for the State.
Convict Anil Kumar in judicial custody with Sh. Rajneesh Antil Advocate.
ORDER ON SENTENCE:
Vide my separate detailed judgment dated 16.4.2012, the convict Anil Kumar has been held guilty of the offence under Section 392 St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 121 read with 397/ 307/ 302 Indian Penal Code and under Section 25/27/54/59 of Arms Act.
The case of the prosecution is that the deceased Krishan Kumar Bansal, his son Nitin Bansal and his employee Sandeep Kumar used to do the job of accounts from premises No.2021/159, Ganesh Pura, Tri Nagar, Delhi. On 10.5.2010 Nitin Bansal (son of the deceased) along with his employee Sandeep Kumar went to Axis Bank, ND Block, Pitampura and withdrawn Rs. Two lacs which amount he kept in a bag along with Rs. 50,000/ which he was already carrying. At about 11:45 AM when they entered their office where Krishan Kumar Bansal was already present, the accused Anil Kumar came in the office and showed a pistol to them and snatched the bag from the hand of Sandeep Kumar. The accused Anil Kumar thereafter tried to run away on his motorcycle bearing no. DL8S AW 455 make Pulsar which his bag containing Rs.2,50,000/ which he had snatched from the victims but while the accused Anil was tying to start the said motorcycle, Nitin Bansal, Krishan Kumar Bansal and Sandeep overpowered him while Nitin Bansal caught hold the hand of the accused Anil Kumar in which he (accused) was having a pistol, Sandeep Kumar caught hold the bag and Krishan Kumar Bansal caught hold the accused from behind. However, the accused Anil succeeded in freeing his hand from Nitin Bansal and fired twothree times as a result of which one bullet hit on the right arm of Nitin Bansal whereas the other bullet hit the stomach of Krishan Kumar Bansal. The accused Anil Kumar thereafter St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 122 tried to flee on foot by leaving his motorcycle behind but since an alarm was raised by the victims and the public persons had heard the gun shots, they gave him a chase and apprehended him after a few yards when he was severely beaten by the public and the pistol which he was carrying was snatched by Sandeep Kumar who handed over the same to the police later on. At least three public persons made call to PCR and the injured Krishan Kumar Bansal was immediately removed to Maharaja Aggarsain Hospital by Hemant Mehra where he was declared dead by the doctors. The injured Nitin Bansal was first taken to Yadav Clinic in the same area but was thereafter removed to Maharaja Aggarsain Hospital by PCR where he was treated for the gun shot injury in his hand.
The medical evidence on record establishes that the cause of death of Krishan Kumar Bansal was spinal shock as a result of bullet injuries consequent to fracture Lumber4 and 5 vertebrae and this fire arm injury was sufficient to cause death in ordinary course of nature. It has also been established that the range of fire arm was near range beyond the flame effect but within the powdering range. Further, the MLC of the injured Nitin Bansal proves that there was an entry wound of bullet in the middle of right upper arm of the injured and the nature of injures was grievous. The forensic evidence on record established that the improvised pistol (recovered from the accused Anil Kumar) was a firearm, the cartridges & cartridge cases (recovered from the spot), the bullet recovered from the body of the deceased (EB2) and the fragment of the bullet St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 123 (EBR1) lifted from the spot by the Investigating Officer were ammunition as defined in Arms Act 1959.
On the basis of the testimonies of the various witnesses examined by the prosecution including the victim/ injured Nitin Bansal and eye witness Sandeep Kumar; the various public witnesses namely Rakesh Mehra, Rahul Gupta and Hemant Mehra and also on the basis of the medical and forensic evidence on record, this Court held the accused Anil Kumar guilty of the offence under Section 392 read with 397 Indian Penal Code (having committed robbery of Rs.2,50,000/ on the point of pistol); under Section 307 Indian Penal Code (having caused grievous injuries upon Nitin Bansal with such intention and knowledge and under such circumstances that if by that act he caused the death of Nitin Bansal, he would have been guilty of murder); under Section 302 Indian Penal Code (having committed the murder of Krishan Kumar Bansal) and also under Section 25/27/54/59 of Arms Act (having been found in possession of pistol containing one live cartridge and also having used the same) for which the accused has been accordingly convicted.
Heard arguments on the point of sentence. The convict Anil th Kumar a young boy of 29 years is 8 class pass and at the time of his arrest he was running a security agency. He has a family comprising of aged parents, one younger brother, one married sister, wife, two daughters (aged about 9 years and 6 years) and one son (aged 2 years). He is in judicial St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 124 custody since 10.5.2010. Ld. Counsel appearing on behalf of the convict has vehemently argued that the convict is a young boy and is not involved in any other case. He submits that the convict was involved in another case bearing FIR No. 138/10 Police Station South Rohini wherein he has been acquitted. It is argued that the family of the convict including his wife, two daughters and one son are totally dependent upon him. He further requests that a lenient view be taken against the convict.
On the other hand, the Ld. Additional Public Prosecutor has placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convicts Anil Kumar. It is also stated that the convict has not been able to show any mitigating circumstances in his favour which could make out a case for imposition of sentence of imprisonment for life. He has prayed that a strict punishment be awarded to the convict Anil Kumar.
I have considered the submissions made before me. At the outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be kept in mind before awarding a death sentence in any given case.
St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 125
The law is well settled in the decision in Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], where it was held that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. Again it was cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the accused as also the offence. Some aggravating circumstances were also culled out, they being:
(a) where the murder has been committed after previous planning and involves extreme brutality; or
(b) Where the murder involves exceptional depravity.
The mitigating circumstances which were mentioned in that judgment were:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance;
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;
(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;
(d) The probability that the accused can be reformed and rehabilitated.
The State shall by evidence prove that the accused does not satisfy St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 126 the conditions (c) and (d) above;
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;
(f) That the accused acted under the duress or domination of another person; and
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], wherein the Hon'ble Supreme Court insisted upon the mitigating circumstances being balanced against the aggravating circumstances. The aggravating circumstances were described as under:
(a) When the murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.
(b) When the murder of a large number of persons of a particular caste, community, or locality is committed.
(c) When the murder of an innocent child, a helpless woman is committed.
However, at the same time it must be kept in mind that the principle of there being a proportion between punishment and offences ought not to be so mathematically followed so as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 127 Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes.
In criminal appeal no.528/2009 and death reference number 1/2009 Hon'ble High Court of Delhi in its judgment dated 31/8/2009 observed that the Court has to see as to whether the case falls in the category of the Rarest of Rare i.e an extreme form of being extremely rare within the larger category of rare or not. Thus, it has to be established that the case falls in the category of the rarest of the rare. Making a reference to their earlier decision as rendered in death reference number 1/2008, titled State Vs. Raj Kumar Khandelwal Hon'ble Mr. Justice Pradeep Nandrajog and Hon'ble Ms. Justice Indermeet Kaur of the Delhi High Court further referred to the summary of various judicial pronouncements as made by them while considering the mitigating factors and the aggravating factors. The various judicial pronouncements in this regard are summarized as under: A bird's eye view of various judicial decisions reveal that Courts have considered the under noted circumstances, as mitigating: lack of any prior criminal record as held in the decision reported as 2006 EWHC 1555 (OQ) In Re.
Butters'; the age of the offender being too young or too old as held in the decision reported as AIR 1974 SC 799 Ediga Anamma Vs. State of Andhra Pradesh; the character of the offender i.e how the offender is perceived in the society by men of social standing; the probability of St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 128 the offenders' rehabilitation, reformation and re adaptation in the society; whether the offence was committed under a belief by the assailant that he was morally justified in doing so; or that the accused acted under the duress or domination of another person as held in the decision reported as 1982 (3) SCC 24 Bachan Singh Vs. State of Punjab; commission of the offence at the spur of the moment without any premeditation; or the offender being provoked (for instance by prolonged stress) in a way not amounting to the defence of provocation, as held in the decisions reported as 2008 EWHC 36 (QB) Re. Rahman and AIR 1998 SC 2821 A. Devendran Vs. State of Tamil Nadu; a belief by the offender that the murder was an act of mercy as held in the decision reported as 1994 (Supply) 3 SCC 143 Janki Dass Vs. State (Delhi Administration); a guilty plea by the offender or his voluntarily surrendering before the authorities and his being genuinely remorseful as held in the decisions reported as (2008) EWHC 92 (QB) In Re. Rock and (2006) EWHC 1555 (QB) In Re. Butters'; that the offender acted to any extent in self defence; that his intention was merely to cause serious bodily harm rather than to kill; that the victim provoked or in any way contributed to the crime, as held in the decision reported as AIR 1999 SC 1699 Kumudi Lal Vs. State of U.P. Lastly, in the decisions reported as AIR 2007 SC 2531 Swami Shradhanand @ Murali Manohar Mishra Vs. State of Karnataka and 2007 Cri. L.J. 1806 Shivu & Anr. Vs. High Court of Karnataka & Anr., it was held that in cases of conviction being based on circumstantial evidence a lenient view should be taken on the issue of sentence.
St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 129 Aggravating factors/circumstances have been opined to be; the accused having undergone previous convictions and his proving to be a future danger/threat or menace to the society considering aspects like criminal tendencies, vagabond lifestyle, drug abuse etc. as per the decision reported as (2008) EWHC 719 (QB) In Re. Miller;
offender being in a dominating position to the victim or in a position of trust and has abused the trust; anti social or socially abhorrent nature of the crime i.e where the offence arouses social wrath and shakes the confidence of the people in any social institution; a crime committed for a motive which evinces total depravity and meanness for instance, a financial gain; where the magnitude of the crime is large i.e there are more than one victim; where the crime is committed in an extremely brutal, grotesque, diabolical revolting or dastardly manner so as to arouse extreme indignation of the community as held in the decision reported as 1983 (3) SCC 470 Machhi Singh Vs. State of Punjab; significant degree of planning or premeditation and lack of remorse as held in the decision reported as AIR 2005 SC 2059 Holiram Bordoli Vs. State of Assam; the victim being vulnerable due to age or physical infirmity as held in the decision reported as 2008 (110) Bom. LR. 373 State of Maharashtra Vs. Haresh Mohandass Rajput; mental or physical suffering inflicted on the victim before the death; victim being a public service provider or performing a public duty at the time when the crime was committed, as held in the decision reported as (1977) 431 US 633 Roberts Vs. Louisiana. Lastly, the offender attacking sovereign democratic institutions as held in the decision reported as 2003 (6) SCC 641 Navjyot Sandhu @ Afsan Guru Vs. State".
St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 130 Hon'ble Mr. Justice Pradeep Nandrajog in his decision as rendered in Shree Gopal @ Mani Gopal Vs. State Crl. Appeal No. 528/09 decided on 31.8.2009 examined another important facet pertaining to the sentencing procedure i.e of consideration of alternative options while referring to the decision of Hon'ble Supreme Court of India as rendered in the case Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra, JT 2009 (7) SC 249 wherein the Hon'ble Supreme Court of India had observed that a real and abiding concern for the dignity of human life postulates resistance to taking a life through the instrumentality of law. That ought not to be done, save in the rarest of rare cases, when the alternative option is unquestionably foreclosed.
The Hon'ble Mr. Justice Pradeep Nandrajog further considered the various alternatives available to him in the light of Section 433 Cr.P.C. and Section 433A Cr.P.C. regarding the meaning of the sentence for imprisonment for life and the power of the executive to grant remission but, not before a period of 14 years of imprisonment. He also referred to various other decisions of Hon'ble Supreme Court of India while classifying the sentence of imprisonment in two categories i.e the ordinary category whereby the court leaves the exercise of executive power at the discretion of the executive, to be so exercised after 14 years of imprisonment and grant remission; and a higher category, where the Court, in a rare case, but not the rarest of the rare, would clip said benefit being extended by St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 131 directing that the accused shall undergo an actual sentence for a higher period or even for the remainder of his life. Such kind of cases can be put in the category of rare cases with appropriate direction of not being entitled to the benefit of remission till a fixed term of imprisonment is undergone. Some of the decisions, noted in this regard by the Hon'ble Judge were Swami Shraddhanand Vs. State of Karnataka reported in AIR 2007 (SC) 2531 in paras 60 to 63 of the said decision i.e the decisions reported as Shri Bhagwan Vs. State of Rajasthan reported in 2001 (6) SCC 296, Parkash Dhawal Khairnar (Patil) Vs. State of Maharashtra reported in 2002 (2) SCC 35, Ram Anoop Singh Vs. State of Bihar reported in 2002 (6) SCC 686 and Mohd. Munna Vs. Union of India reported in 2005 (7) SCC 417. The convict in the said case was thus sentenced to imprisonment for life with a direction that he will not be considered for being grant of remission till he undergoes an actual sentence of 20 years. It is, therefore, evident that the courts are required to draw a virtual balance sheet listing the mitigating and the aggravating circumstances against each other and then forming an opinion as to where does the fulcrum rest. The various aggravating circumstances are to be considered in the light of the aforesaid mitigating circumstances which also includes in itself the aspect of young age of the convict and his conduct during the course of trial.
Now, coming to the case in hand, I would like to draw a balance sheet of aggravating and mitigating factors. The mitigating factors St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 132 in the present case is that the convict Anil Kumar is a young boy of 29 years with aged parents, wife and three children. He has no other criminal involvements and has already been acquitted in the case bearing FIR No. 138/10, PS South Rohini. The aggravating factors are that the murder of deceased Krishan Kumar Bansal had been committed in broad day light with the sole intent of monetary gains without any history of animosity and the convict was apprehended at the spot of the incident itself by public persons. The convict Anil Kumar is a desperate criminal for whom life has no value and he does hesitate to take law in his hands and ruthlessly silences his victims at slightest resistance as has happened in the present case. He has destroyed the family of the victims by taking away the life of the senior earning member and grievously injuring his son.
The Courts of law cannot ignore the conditions prevailing in the Country where the law and order situation has deteriorated and worsened in the resent past. Young persons robbing innocent victims by putting them in fear of death with unhesitant and indiscriminate use of dangerous weapons on them whether or not they offer any resistance, thereby spreading terror in the society and adversely affecting the social order and faith of the people in the system. There cannot be a disconnect between the sentences so imposed by the Court on such persons involved in criminal activities and the aspirations of those who have faith in the Justice System. Undue sympathy, under these circumstances, to impose inadequate sentence would do more harm to the justice system to undermine the public St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 133 confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of this court to award a sentence having regard to the nature of the offence and the manner in which it was executed or committed. (Ref: Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463). No leniency can be shown to persons who have no respect for life. Anyone who does not hesitate to take the law into his hands for pure monetary reasons does not deserve any leniency and any indulgence by the court, under these circumstances, can be misplaced.
In view of my aforesaid discussion, I am of a considered opinion that this case cannot be put on the same pedestal as other ordinary murder cases. It is also true that punishment in every case does send a message to the community at large. Thus besides a number of other factors to be considered one of the relevant factor also to be kept in mind by the court while deciding or awarding any punishment to a convict for any given offence is the sentiments of the community or the message which may travel to the community at large and the fact that it may deter similar other such like offenders. Hence, the present case can be easily classified as a 'Rare Case' which calls for the exercising of alternative options by the court. I therefore, award the following sentences to the convict Anil Kumar:
1. The convict Anil Kumar is sentenced to Rigorous Imprisonment for St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 134 a period of 10 (Ten) years and fine to the tune of Rs.5,000/ for the offence under Section 392 read with 397 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 15 days.
2. He is also sentenced to Rigorous Imprisonment for a period of 10 (Ten) years and fine to the tune of Rs.5,000/ for the offence under Section 307 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 15 days.
3. He is further sentenced to Rigorous Imprisonment for life with the direction that he shall not be considered for grant of remission till he undergoes an actual sentence of 20 (Twenty) years and fine for a sum of Rs.10,000/ for the offence under Section 302 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one month.
4. Further the convict is sentenced to Rigorous Imprisonment for a period of Three (3) Years and fine of Rs.2,000/ for the offence under Section 25/27 of Arms Act. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one week.
All the sentences shall run concurrent. Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial, as per rules.
St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 135
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
One copy of the judgment and order on sentence be given to the convict free of costs and one of order on sentence be attached with his jail warrant.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 30.04.2012 ASJ (NW)II: ROHINI
St. Vs. Anil Kumar, FIR No. 153/10, PS Keshav Puram Page No. 136