Delhi District Court
State vs . (1) Vijay @ Bhola on 10 October, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST) : ROHINI COURTS: DELHI
Sessions Case No. 10/2014
Unique Case ID: 02404R010942204
State Vs. (1) Vijay @ Bhola
S/o Baldev SIngh
R/o VPO Mubarakpur Dabas,
Budha Panna, Delhi.
(Acquitted)
(2) Sunil
S/o DHaramvir
R/o H. No. 5, Village Mubarakpur Dabas
(near Bus Stand), Delhi.
(Acquitted)
(3) Suraj @ Parva
S/o Syoraj Singh
R/o H. No. 172, Mubarakpur Dabas
(near Bus Stand), Delhi.
(Acquitted)
FIR No. : 578/2013
Police Station : Aman Vihar
Under Section : 302/201/34 Indian Penal Code.
Date of committal to Sessions Court : 28.02.2014
Date on which orders were reserved : 14.10.2014
Date on which judgment pronounced : 14.10.2014
State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 1 of 117
JUDGMENT
BRIEF FACTS:
(1) The case of the prosecution in brief is that on 21.11.2013 at 9:30 PM at Plot No. 7, opposite Dr. Ambedkar Chaupal, Main Mubarakpur Road, Mubarakpur Khas, Delhi, within the jurisdiction of Police Station Aman Vihar, the accused Vijay @ Bhola and Suraj @ Parva, in furtherance of their common intention, took Munna @ Sumit (since deceased) in a room and committed murder of said Munna @ Sumit by fire shot of pistol.
(2) It is further alleged that on 21.11.2013 at 9:30 PM at Plot No. 7, opposite Dr. Ambedkar Chaupal, Main Mubarakpur Road, Mubarakpur Khas, Delhi, within the jurisdiction of Police Station Aman Vihar, the accused Vijay @ Bhola, Suraj @ Parva and Sunil, in furtherance of their common intention, and knowing and having believed that offence of murder has been committed, they all removed the body of Munna @ Sumit (now deceased) by keeping the same in the dickey of Assent Car bearing No. DL 4C A 3501 being driven by the accused Sunil from the spot, the evidence of commission of the said murder to disappear with intention to screening themselves from legal punishment.
CHARGE:
(3) Charge under Section 302/34 Indian Penal Code was settled against the accused Vijay @ Bhola and Suraj @ Parva. Further, charge State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 2 of 117 under Section 201/34 Indian Penal Code was settled against the accused Vijay @ Bhola, Sunil and Suraj @ Parva. All three accused pleaded not guilty and claimed trial.
(4) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
List of Prosecution Witnesses:
Sl. No. Witness No. Name of Witness Details of the Witness 1 PW1 Ct. Sandeep Police Witness proved the seizure of the Hundai Assent Car.
2 PW2 Ct. Jaswant Police Witness - Special Messenger 3 PW3 Ct. Ravinder Police Witness who had received the exhibits from the doctor concerned after postmortem of dead body.
4 PW4 Ct. Bhupender Police Witness who had taken the exhibits to the FSL.
5 PW5 Ct. Raj Kumar Police Witness who had taken the exhibits to the FSL.
6 PW6 Ct. Ravi Nalik Police Witness - Member of Crime Team as photographer.
7 PW7 W Ct. Rashmi Police Witness - PCR Official Kandpal 8 PW8 HC Raj Kumar Police Witness - MHC (M) 9 PW9 HC Jagpal Police Witness - MHC (R) 10 PW10 SI Anil kumar Police Witness - Incharge Crime Team 11 PW11 Insp. Mahesh Kr. Police Witness - Draftsman 12 PW12 HC Satya Narain Police Witness - Duty Officer. 13 PW13 Dr. Adesh Kumar Official Witness from SGM Hospital 14 PW14 Ct. Rajesh Police Witness who alongwith SI Subh State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 3 of 117 Sl. No. Witness No. Name of Witness Details of the Witness Ram first reached the spot on receipt of DD No. 17A.
15 PW15 HC Rajesh Police Witness 16 PW16 Malini Sharma Public Witness who had identified the dead body of the deceased.
17 PW17 Amit Public Witness who had identified the dead body of the deceased.
18 PW18 Sonu Dabas Public Witness 19 PW19 L. Babyto Devi Official Witness from FSL 20 PW20 Seema Nain Official Witness from FSL 21 PW21 Shashi Kumar Public Witness 22 PW22 V R Anand Official Witness from FSL 23 PW23 Baldev Singh Public Witness 24 PW24 Dharamveer Public Witness 25 PW25 Dr. Vivek Rawat Official Witness from BJRM Hospital 26 PW26 Vikramjit Singh Police Witness / DCP who has proved the Sanction u/s 39 Arms Act.
27 PW27 Mohd. Wali Ullah Public Witness 28 PW28 Anil Kumar Public Witness 29 PW29 Sanjay @ Ajit Public Witness 30 PW30 Raj Kumar Yadav Public Witness 31 PW31 SI Subh Ram Police Witness who first reached the spot 32 PW32 Insp. Rajesh Police Witness - Investigating Officer Kumar of the case.
List of Documents Exhibited:
Sr. No. Exhibit No. Details of documents Proved by
1. PW1/1 Affidavit of witness Ct. Sandeep Ct. Sandeep
2. PW1/A Seizure memo of Ascent car do State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 4 of 117
3. PW1/DX to Form 29 and 30 do
4. PW2/1 Affidavit of witness Ct. Jaswant Ct. Jaswant
5. PW3/1 Affidavit of witness Ct. Ravinder Ct. Ravinder
6. PW3/A Seizure memo of blood gauze of Do deceased
7. PW3/B Seizure memo viscera peti Do
8. PW3/C Seizure memo of cloths of deceased Do
9. PW3/D Seizure memo of bullet led Do
10. PW4/1 Affidavit of witness Ct. Bhupender Ct. Bhupender
11. PW4/A RC 303/21/13 Do
12. PW4/B FSL Receipt Do
13. PW5/1 Affidavit of witness Ct. Raj Kumar Ct. Raj Kumar
14. PW5/A RC 312/21/13 Do
15. PW5/B FSL receipt Do
16. PW5/C RC 319/21/13 Do
17. PW5/D Copy of FSL Receipt Do
18. PW6/1 Affidavit of witness Ct. Ravi Malik Ct. Ravi Malik
19. PW6/A1 to 38 Photographs Do
20. PW6/B Negatives of above photographs Do
21. PW7/1 Affidavit of witness W Ct. Rashmi W Ct. Rashmi Kandpal Kandpal
22. PW7/A CR DD No. 22 NOV 1050109 Do
23. PW8/1 Affidavit of witness HC Raj Kumar HC Raj Kumar
24. PW8/A Copy of Reg NO. 19 Sr. no. 1686/2 Do
25. PW8/B Copy of Reg NO. 19 Sr. no.1687/1 to 4 Do
26. PW8/C Copy of Reg NO. 19 Sr. no.1688/2 Do
27. PW9/1 Affidavit of witness HC Jagpal HC Jagpal
28. PW10/1 Affidavit of witness SI Anil Kumar SI Anil Kumar
29. PW10/A Crime Team Report Do
30. PW10/B Crime Team Report Do State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 5 of 117
31. PW11/1 Affidavit of witness Insp Mahesh Insp. Mahesh Kumar Kumar
32. PW11/A Scaled site plan Do
33. PW11/B Scaled site plan Do
34. PW12/1 Affidavit HC Satya Narain
35. PW12/A DD No. 21A Do
36. PW12/B FIR Do
37. PW12/C Endorsement on Rukka Do
38. PW13/A FSL report Dr. Adesh Kumar
39. PW14/A Arrest memo of accused Sunil Ct. Rajesh
40. PW15/A Disclosure Statement of accused Sunil HC Rajesh
41. PW15/B Sketch of cartridges Do
42. PW15/C Seizure memo of cartridges Do
43. PW15/D Sketch of pistol Do
44. PW15/E Seizure memo of Pistol Do
45. PW15/F Disclosure statement of accused Suraj Do
46. PW15/G Arrest memo of accused Suraj Do
47. PW15/H Personal search memo of accused Suraj Do
48. PW17/A Dead body identification statement Amit
49. PW17/PX1 Confronted statement of Amit Do
50. PW19/A FSL Report L Babyto Devi
51. PW20/A FSL Report Seema Nain
52. PW21/A Site plan Shashi Kumar Singh
53. PW21/B Personal search memo of Sunil Do
54. PW21/C Statement of Shashi Kumar Singh Do
55. PW22/A FSL Report Ballistics report V R Anand
56. PW20/PX2 Confronted Statement of Baldev Singh Baldev Singh State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 6 of 117
57. PW24/A Copy of Electricity and Registration Dharmabir paper
58. PW24/PX3 Confronted Statement of Dharambir Do
59. PW25/A Postmortem Report Vivek Rawat
60. PW26/A Sanction U/s 39 Arms Act Vikram Jit Singh
61. PW27/PX1 Confronted Statement of Mohd. Wali Mohd. Wali Ullah Ullah
62. PW 27/PX2 Confronted Statement of Mohd. Wali Do Ullah
63. PW29/PX1 Confronted Statement of Ajit Ajit
64. PW29/PX2 Confronted Statement of Ajit Do
65. PW31/A DD No. 17A SI Subh Ram
66. PW31/B Rukka Do
67. PW31/C Disclosure statement of accused Sunil Do @ Nanha
68. PW31/D Seizure memo of RC and form 29 & 30 Do
69. PW31/E Site plan at the place of recovery of Do dead body
70. PW31/F Arrest memo of accused Vijay Do
71. PW31/G Personal search memo of accused Vijay Do
72. PW31/H Disclosure statement of accused Vijay Do
73. PW31/I Pointing out memo Do
74. PW32/A Request to Autopsy Surgeon by SI Insp. Rajesh Subh Ram Kumar
75. PW32/B Brief Facts Do
76. PW32/C Form 25:35 Do
77. PW32/D Request to Autopsy Surgeon by Insp. Do Rajesh Kumar
78. PW32/E Seizure memo of electricity bill and Do property documents
79. PW32/F Property documents Do State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 7 of 117 EVIDENCE:
(5) In order to discharge the onus upon it, the prosecution has examined as many as Thirty Two Witnesses as under:
Public Witnesses:
(6) PW16 Smt. Malini Sharma, has deposed that on 22.11.2013, he had gone to the nehar at Bawana where he found the body of his nephew partly submerged in water and he identified him as his nephew as Manni. According to the witness on the next day he also went to SGM hospital where he identified his body vide memo ExPW16/A. (7) This witness was not cross examined by Ld. Defence counsel, despite opportunity granted.
(8) PW17 Sh. Amit, has deposed that on 22.11.2013, he alongwith Smt. Malini had gone to the nehar at Bawana where they found the body of his real brother partly submerged in water and he identified the body of his brother Sumit @ Manna. According to the witness on the next day he also went to SGM hospital where he identified his body vide memo Ex.PW17/A. Witness has further deposed that on the same day i.e on 23.11.2013, he received the body after postmortem examination vide receipt Ex.PW17/B. (9) This witness was not cross examined by Ld. Defence counsel, despite opportunity granted.
State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 8 of 117 (10) PW18 Sh. Sonu Dabas, has deposed that he is running a milk diary from 64, Kishan Vihar, Roop Vihar, Mubarkpur Dabas, Delhi and he had purchased a Car make Accent bearing no. DL4CR3501 from Rajnish Khokra, who is the resident of the same area. According to the witness he purchased the car for Rs. 70,000/ and when he purchased the said car it was registered in the name of Anil Kumar and till date it continues to be in his name and he has not got transferred the same in his name. Witness has further deposed that on 21.11.13, he had parked the aforesaid car at the office of Om Sai Property, Main Bus stand Mubark Pur Road and the said office was of Vijay who is son of his Chacha Sh. Baldev Singh. Witness has further deposed that he had changed the alphabet R into A on the number plate for the purpose of avoiding the traffic Challan but he does not know anything else.
(11) In the leading questions put by Ld. Addl. PP for the state, the witness has deposed that no person in the name of Sheikh had come to his house and informed told that his vehicle was called by one Sanjay at his office, therefore he himself drove the car and took the same at the office of Om Sai Properties.
(12) In cross examination by Ld. Addl. PP for the state, witness has deposed that he had not stated to the Investigating officer in his statement Ex.PW17/PX1 that on 21/11/13 one person namely Sheikh who was known to him had come to his house and told him that Sanjay had called State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 9 of 117 for his vehicle at his office and therefore he drove the same himself and took it to his office at Sai Properties and handed over the same to one Sanjay. The portion A to A of statement ExPW17/PX1 is read over and explained to the witness who denied having made so before police. Witness has denied the suggestion that he had given the aforesaid fact in his statement ExPW17/PX1 and he was not giving details deliberately. Witness has further deposed that he know Sanjay who is working in the office of Vijay who is the proprietor of Om Sai Properties and he know Vijay since he is brother of his Uncle Sh. Baldev. Sanjay is the resident of their village therefore he knows him and he is the son of Baljeet. Witness has denied the suggestion that he was deliberately concealing this fact regarding handing over the vehicle to Sanjay in order to save him being his good friend having family relation. The witness has seen the Car and correctly identified the same having the registration No. DL4CR3501 and the chasis no. MALCG41GR3M081629 which is ExP1. The photograph of the same is on judicial file has also been given ExP1(a to d). (13) In his cross examination by Ld. Defence counsel, witness has admitted that no document has been executed in respect of the sale purchase of the abovesaid car.
(14) PW21 Shashi Kumar Singh has deposed that he is working in the office of Sunil @ Nanhe which is situated at Plot No. 7, Opposite Dr. Ambedkar Chaupal, Mubarakpur, Main Road and he used to open the State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 10 of 117 office at 10.00AM and close the office on 7.308.00PM. According to the witness on 21.11.2013 he had left the office in between 8.00 and 8.30PM after closing the same and went to his house.
(15) Witness has further deposed that two police constables namely Sandeep and name of other he does not remember, came to his house alongwith Sanjay and Ct. Sandeep made inquiries from him whether he made a call to 100 number regarding the incident to which he had stated that he did not make any call to PCR. According to the witness he noted down his mobile number and he had given his mobile number 9716601651 and Ct. Sandeep verified his phone number from the documents. Witness has further deposed that his mobile number could not be matched thereafter he was asked to accompany them to the police station and Ct. Sandeep firstly took him to the plot no. 7 where police official Shubh Ram was present. Witness has further deposed that thereafter he was taken to the police post Prem Nagar where he was thoroughly interrogated by the police and he had stated to the police that he did not know anything else. According to the witness then SI Subh Ram told him that a murder has taken place at plot no.7 and asked him to tell as to what had happened in his presence and since Nothing happened in his presence, therefore he could not tell anything regarding this case. Witness has further deposed that thereafter he was taken to the police station situated at Bawana where he remained sitting in the Police Gypsy and thereafter he was taken to Bawana Nahar where he was kept sitting in State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 11 of 117 the Gypsy and thereafter he was brought to the police station. (16) Witness has further deposed that his signatures was taken on the site plan Ex.PW21/A at point A, in the police station and accused Sunil was arrested from the Plot No.7 vide memo Ex.PW14/A and the document Ex.PW21/B also bears his signatures at point A. (17) According to the witness he was interrogated by the police and the statement Ex.PW21/C bearing his signatures at point A. (18) In his cross examination by Ld. Defence counsel, witness has deposed that he had not stated in his statement Ex.PW21/C that on 21.11.2013 at about 8.30PM he was sitting alongwith his partner Sunil @ Nanhe and he has not stated in his statement Ex.PW21/C that accused Sunil was taking liquor in the room situated in the backside of the plot and after some time accused Vijay @ Bholu came alongwith his friend Sooraj @ Parva and Manna and went inside the room of Sunil and he has not stated in his statement Ex.PW21/C that accused Sunil on seeing Manna, Vijay @ Bholu and Sooraj came outside the room and after some time he Sunil heard the sound of firing and on this accused Sunil went inside the room situated on the backside and found Manna with bullet injuries and was lying near the door of the room and he has not stated in his statement Ex.PW21/C that Sunil informed him that Vijay @ Bholu quarrel with Manna on the issue of money transaction and he had fired upon Munna. He has denied having stated in his statement Ex.PW21/C State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 12 of 117 that he also went inside the room in which Manna was lying and after some time one Accent Car bearing no. DL 4C A 3501 came and the accused Sooraj @ Parva, Vijay @ Bholu and Sunil shifted the body of Manna in the dickey of the said Accent car and left the spot. According to the witness he has not stated in his statement Ex.PW21/C that the aforesaid vehicle was being driven by accused Sunil and when they were about to leave the spot Sanjay and Sheikh also came their on motorcycle and he has not stated in his statement Ex.PW21/C that he narrated this incident to the father of Vijay @ Bholu namely Baldev and was while leaving the spot all the three accused persons also threatened that if in case this incident is told to anybody, they would kill him and therefore they did not disclosed about this incident to the police. He has denied having stated in his statement Ex.PW21/C that on 22.11.2013 in the morning he came to know that Sh. Baldev informed the police at 100 number and the accused Vijay @ Bhola had committed the murder of Manna with bullet injuries.
(19) Witness has also denied having told the police that on 21.11.2013 at about 8.30PM he was sitting alongwith his partner Sunil @ Nanhe and accused Sunil was taking liquor in the room situated in the backside of the plot and after some time accused Vijay @ Bholu came alongwith his friend Sooraj @ Parva and Manna and went inside the room of Sunil and on seeing Munna, Vijay @ Bholu and Sooraj the accused State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 13 of 117 Sunil came out of the room and after some time he heard the sound of firing and on this accused Sunil went inside the room situated on the backside and found Manna with bullet injuries and was lying near the door of the room. He has also denied that Sunil had informed him that Vijay @ Bholu quarrelled with Munna on the issue of money transaction and he had fired upon Munna or that thereafter he also went inside the room in which Munna was lying and after some time one Accent car bearing no. DL 4C A 3501 came and the accused Sooraj @ Parva, Vijay @ Bholu and Sunil shifted the body of Manna in the dickey of the said Accent car and left the spot. Witness has denied that the aforesaid vehicle was being driven by accused Sunil and when they were about to leave the spot Sanjay and Sheikh also came their on motorcycle and he narrated this incident to the father of Vijay @ Bholu namely Baldev and while leaving the spot all the three accused persons also threatened that if this incident is told to anybody, they will kill him and therefore they did not disclose this incident to the police. Witness has denied that on 22.11.2013 in the morning he came to know that Sh. Baldev informed the police at 100 number and the accused Vijay @ Bhola had committed the murder of Manna with bullet injuries after which he alongwith the police officials and the accused Sunil @ Nanhe reached at the place of incident and the Investigating Officer Inspector Rajesh Kumar prepared the site plan at his instance. He has denied that the accused Sunil @ Nanhe was arrested at State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 14 of 117 his instance but Witness has admitted that the arrest memo Ex.PW14/A bears his signatures at point A. Witness has also denied the suggestion that on 22.11.2013 he alongwith the police official and accused Sunil @ Nanhe reached at the place of incident and the Investigating officer Inspector Rajesh Kumar prepared the site plan at his instance. Witness has further denied that accused Sunil @ Nanhe was arrested at his instance but has admitted that the arrest memo already Ex.PW14/A bears his signatures at point A. Witness has also denied that thereafter he had gone to Rohini Court where Investigating officer met him along with the three accused namely Vijay, Sunil and Suraj and he had identified them as the same persons who had committed the murder of Sumit @ Manna on 21.11.2013. He has further denied the suggestion that he had given the statement Ex.PW29/PX2 and had also given the names of accused persons in the said statement and at the time of his deposition in the court he was not giving the details and not giving the names of the accused persons deliberately in order to save the accused.
(20) According to the witness he can identify the accused Sunil and Bholu being resident of the same area but has denied the suggestion that he was not giving the name of these persons along with accused Suraj @ Parwa and their involvement in this case deliberately in order to save them. Witness has admitted that the names of the accused who were present in the court are Vijay @ Bhola, Sunil and Suraj but witness has State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 15 of 117 denied the suggestion that he had given the names of these accused in his statements as the assailants. Witness has denied the suggestion that he was not attributing any role to these accused persons as he had been won over by these accused persons being friendly relations with them and being residents of the same area.
(21) In his cross examination by Ld. Defence counsel, witness has deposed that his signatures were taken on blank papers by the police while he was kept in the police captivity.
(22) PW23 Sh. Baldev Singh, has deposed that he is running the business of Animal husbandry near their residence and Vijay @ Bholu is his youngest Son, who is a property dealer. According to the witness on 22.11.2013 he came to know that a firing incident had taken place in the plot of Dharamveer. According to the witness he do not remember as to who had given this information to him, but there were 34 persons of the market who had informed him pursuant to which he made a 100 number call and informed the police about the incident.
(23) In the leading questions put by Ld. Addl. PP for the state witness has deposed that he does not know as to who informed him about the fire taken place in the plot of Dharamveer. He has denied having stated to the police in his statement ExPW20/PX2 that on 21.11.13 at about 10.15 P.M one Sanjay, Sashi and one Sheikh who were already known to him came to his house and informed him that his son Vijay @ State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 16 of 117 Bholu had fired against one Nanha in the plot of Dharamveer. Witness has however admitted that Vijay @ Bholu is his son but has denied the suggestion that he was not deliberately giving this fact that one Sanjay, Sashi and Sheikh had informed him that his Son Vijay @ Bholu had fired at Nanhe in the plot of Dharamveer. Witness has denied the suggestion that in order to save his son Vijay @ Bholu he was deliberately concealing the aforesaid facts.
(24) This witness was not cross examined by Ld. Defence counsel, despite opportunity granted.
(25) PW24 Sh. Dharmveer has deposed that he is into the business of supplying the milk and he has three sons and his eldest son is Rakesh followed by Sunil and his youngest son is Adesh and that his Son Sunil @ Nanha (accused) is unmarried. According to the witness he did not state anything about his son Sunil @ Nanha to the police and and states that he is a registered owner of Plot no. 7, Village Mubarkpur, Dabas. Witness has further deposed that the said plot consists three shops on the front side, 6 rooms on the back and his son Sunil @ Nanha was doing the business of property dealing in one of the shop and used to go to the house in the evening. He has stated that he handed over the entire documents to the Investigating officer pertaining to the aforesaid plots. Witness has not brought the original documents of the electricity and the registration of the ExPW24/A(colly).
State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 17 of 117 (26) In the leading questions put by Ld. Addl. PP for the state, witness has deposed that he has not stated to the police that his son had fallen into bad habits in wrong company, or that he used to remain at the plot Mubarkpur Dabas and rarely came home. Witness has denied the suggestion that he was deliberately concealing this fact in order to save his son from penal consequences out of love and affection. (27) In his cross examination by Ld. Defence counsel, witness has deposed that the police has not recorded his statement at any point of time and they had interrogated him after about the month of incident. (28) PW27 Mohd. Wali Ullah @ Sheikh has not supported his earlier version and has deposed that he is graphic designer by profession and does not remember the exact date only 34 months back it was Friday and he had gone to offer the prayer. According to the witness while he was going to Mosque one Ct. Sandeep along with Sanjay met him on the way and inquired his name from him as to whether he was Sheikh to which he replied in affirmative. Witness has further deposed that Ct. Sandeep asked him to accompany him to Police Station and requested him to give some time so that he may offer the prayer but he did not give him the time and told that he would have to go to the Police Station immediately and he therefore accompanied them to the Police Station. Witness has further deposed that there he was confined in the police station for about 3 days and during this period information had come in State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 18 of 117 the police regarding about his being missing whereas at that time he was sitting in the police station and he heard the voice on wireless set. Witness has further deposed that he had requested the constable to allow him to make a call to his house since his parents were worried about his being missing, but the police official present in the police station did not allow him to make any call. According to him the aforesaid call had come in the police station, when one day has passed and after about two days he was relieved from the Police Station in the evening hours. He has stated that he does not know anything else except the aforesaid facts. (29) In his cross examination by Ld. Addl. PP for the state, witness has deposed that he was interrogated by the police but he does not remember whether his statement was recorded by the police or not. The statement Ex.PW27/PX1 has been read over and explained to the witness which he denied. According to the witness, he has not stated that on 21.11.2013 he along with his friend Sanjay were present in the office of Vijay @ Bholu and at the same time a phone had come on the mobile of Sanjay and Sanjay told him to take the vehicle from the house of Sonu and park the same at his office and therefore he went to his house on his motorcycle and on his asking Sonu Dabas had brought his car from his house and left the same at the office. He has denied that at the same time Suraj @ Parva came there and started saying that Vijay @ Bholu had called for the vehicle and left with the vehicle. He has also denied that be State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 19 of 117 became suspicious and therefore he and Sanjay reached at the plot of Sunil where Vijay, Sunil and Sooraj were ready to leave the plot in the Accent Car bearing No. DL 4C A 3501. He has denied that Sanjay asked Vijay as to what had happened on which Vijay told him that he had killed Munna and they were going to conceal his dead body by keeping the same in the dickey of the said car and thereafter they went away with the body and the said car. He has denied that Shashi was also present at that time and thereafter he, Sanjay and Shashi went to the house of vijay and narrated the entire incident to Sh. Baldev the father of Vijay. Witness has denied the suggestion that he was not giving the aforesaid facts deliberately in order to save the accused persons.
(30) Another statement Ex.PW27/PX2 was read over and explained to the witness who denied having made the same before the police. Witness has denied the suggestion that he had come to Rohini Courts earlier where the Investigating Officer met him and at that time he had seen three boys namely Vijay @ Bholu, Sunil @ Nanha and Suraj @ Parva and had identified them correctly as the same persons who were involved in the order of Sumit @ Manna which happened on the night of 21.11.2013. Witness has denied the suggestion that he had identified the aforesaid three boys in Rohini Court and he wwas not giving this fact deliberately in order to save them.
(31) The accused persons have been put to the witness and he has identified them correctly as the accused Vijay @ Bholu, Sunil @ Nanha State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 20 of 117 and Sooraj @ Parva are the resident of their locality. Witness has denied the suggestion that these are the same boys whose names he had given in his statement Ex.PW27/PX1 and Ex.PW27/PX2 and he was not giving the details and deposing against these persons deliberate. Witness has denied the suggestion that they were the same boys whose names he had given to the police and whom he had identified in the court therefore their names had come in his aforesaid two statements. Witness has further denied the suggestion that he has been won over by the accused persons therefore he was not deposing against them.
(32) This witness was not cross examined by Ld. Defence counsel, despite opportunity granted.
(33) PW28 Anil Kumar has deposed that he is doing the private job and in the year 2006, he has purchased the Hyudai Accent Car bearing no. DL 4C R 3501 of silver colour from the person resident of Swarn Park, Nangloi for Rs.2,90,000/. Witness has further deposed that he had got the said car transferred in his name and thereafter had sold the said car to one Manjeet Dabas in the year 2012 for Rs.80,000/. Witness has further deposed that presently this car has been purchased by Sonu Dabas and he know Sonu Dabas being the resident of the same village in which he is residing and his statement was recorded by the Investigating officer. Witness has correctly identified the car having the registration No. DL4CR3501 and the chassis number MALCG41GR3M081629 which is State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 21 of 117 Ex.P1 the photograph of which is on judicial file are Ex.P1 (a to d). (34) In his cross examination by Ld. Defence counsel, witness has deposed that when he purchased this vehicle the sale letter and other documents were executed but he did not hand over these documents to the police and has voluntarily added that on the basis of these documents he got the said vehicle transferred in his name. Witness has further deposed that the said vehicle was sold to Manjeet on an affidavit but he did not hand over this affidavit to the police and has voluntarily explained that the police never asked him for the same. According to the witness he cannot tell if Manjeet had executed any document with regarding to sale of this vehicle and he had mentioned the engine and chassis number in form No. 29 and 30 while transferring the vehicle to Manjeet. However, it was observed by the court that no such number has been mentioned in the document Ex.PW1/DX1 to Ex.PW1/DX4. Witness has further deposed that however the aforesaid forms bearing his signatures at point A and has denied the suggestion that his signatures on the aforesaid forms / documents Ex.PW1/DX1 to Ex.PW1/DX4 were taken later on. (35) PW29 Sanjay @ Ajit has also not supported his earlier version to the police and has deposed that he was working in the office Vijay @ Bholu which is situated at main Mubarakpur Bus stand and Vijay @ Bholu is a property dealer and his office is in the name of "OM Sai Properties". Witness has further deposed that last year probably it was State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 22 of 117 the month of December and it was 22nd day he opened the office in the morning and one constable namely Sandeep came to him who inquired from him about his name to which he told him that he was Sanjay @ Ajit. Thereafter the constable told him that he was called by the SHO in the Police Station and when he went to the Police Station, the SHO asked him about the whereabouts of Sheikh and Shashi to which he replied that they might be at their residences. Witness has further deposed that he was sent with the said Constable to the house of Sheikh and while they were going to the house of Sheikh, he met him on the way itself and he pointed him out to the constable. According to the witness thereafter Ct. Sandeep inquired from Sheikh regarding his identity and he confirmed the same on which Sheikh also accompanied them and they then went to the house of Shashi and met Shashi at his house. He was asked by the constable to accompany him to the police station and thereafter they all i.e. himself, Shiekh and Shashi accompanied Ct. Sandeep to the Police Station. (36) Witness has further deposed that in the Police Station SHO informed him that murder of one person with the name of Munna had been committed in a plot near the Road and he then asked him as to what he was doing the work of property dealing and he then made inquiries about Nanha, Sooraj and Vijay @ Bhola but he did not tell him anything and thereafter he was detained in the police station for three days, after which he was released and he was made to sign some documents. State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 23 of 117 (37) On a court question, the witness has informed that he has studied to class 6th and cannot read or write Hindi properly. (38) In cross examination by Ld. Addl. PP for the state, witness has admitted that police interrogated him but no statement was recorded. Witness has denied the suggestion that he had made a statement to the police vide Ex.PW29/PX1 wherein he had stated to the police that he and Sheikh were present in the office of Vijay @ Bholu and at the same time a phone had come on his mobile and he told Sheikh to take the vehicle from the house of Sonu and park the same at his office, therefore Sheikh went to his house on motorcycle and on his asking Sonu Dabas had brought his car from his house and left the same at the office and at the same time Suraj @ Parva came there and started saying that Vijay @ Bholu had called for the vehicle and left with the vehicle. He has denied that he became suspicious and therefore he and Sheikh reached at the plot of Sunil where Vijay, Sunil and Sooraj were ready to leave the plot in the Accent Car bearing no. DL 4C A 3501. He has denied having stated that he had asked Vijay as to what happened to which Vijay told him that he had killed Munna and they were going to conceal the dead body by keeping the same in the dickey of the said car and thereafter they went away with the body and the said car. Witness has also denied that Shashi was also present at that time and thereafter he, Sheikh and Shashi went to the house of Vijay and narrated the entire incident to Sh. Baldev the father State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 24 of 117 of Vijay. Witness has denied the suggestion that he was not giving the aforesaid facts deliberately in order to save the accused. (39) Another statement Ex.PW29/PX2 was read over and explained to the witness who denied having made so before police. Witness has denied the suggestion that he had come to Rohini Courts earlier where the Investigating officer met him and at that time he had seen three boys namely Vijay @ Bholu, Sunil @ Nanha and Suraj @ Parva or that he had identified them correctly as the same persons who were involved in the murder of Sumit @ Manna which took place on the night of 21.11.2013. Witness has denied the suggestion that he had identified the aforesaid three boys in Rohini Court and was not giving this fact deliberately in order to save them.
(40) The accused were put to the witness to which he has identified them correctly as the accused Vijay @ Bholu, Sunil @ Nanha and Sooraj @ Parva as the resident of same locality. He has however denied that these were the same boys whose names he had given in his statement Ex.PW29/PX1 and Ex.PW29/PX2 and to whom he had identified in the court or that therefore their names have come in his aforesaid two statements. Witness has further denied the suggestion that he has been won over by the accused persons therefore he was not deposing against them.
State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 25 of 117 (41) On a Court question, the witness has explained that at the time of incident he was using a mobile number 9910402439 and has voluntarily added that he had informed about his mobile number to the police. According to the witness at that time Sheikh was using mobile number 9873038536 and Vijay Bhola was having a landline number 01164655545 and no mobile, because he did not have any of his mobile numbers. Witness has further deposed that Vijay @ Bhola is known to him for last many years as they are both residing in the same area. (42) This witness has not been crossexamined by he Ld. Defence Counsel despite being granted an opportunity.
(43) PW30 Raj Kumar Yadav has deposed that he is working at Bharat Petroleum outlet at Bawana. He does not remember the exact date but about six months back his duty was from 2.00OPM to 6.00AM on the next morning and in those days he was handling the cash collected between 2.00PM to 6.00AM daily. Witness has further deposed that at about 10.30 PM he was filling diesel in the truck when three persons came to the petrol pump pushing their car and the guard asked him to fill the petrol in the said car first. "Teen larka gari ko dhakka marte aye, mujhe guard ne kaha pehle inki gaari mein tel daal do." (44) On a Court question the witness has explained that it was dark so he did not focus the colour or the make of the car but he think it was offwhite colour.
State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 26 of 117 (45) Witness has further deposed that one of the boys told him that "500 ka tel daal do" after which he put petrol in the car worth Rs.500/ and the boys then started the car again but it did not start on which three persons on the duty on petrol pump pushed the car outside the petrol pump (petrol pump he bahar car ko dhakka maar diya). According to the witness even then the car did not start and one of the boys who were sitting inside the car, paid him Rs.500/. Witness has further deposed that he cannot identify the said boy. On a Court question, the witness has explained that there are no CCTV cameras installed at the petrol pump. The witness was not been able to identify any of the persons who had come to the petrol Pump.
(46) When the accused persons namely Vijay @ Bhola, Sunil and Suraj @ Parva were specifically put to the witness by the Ld. Addl. PP for the State as those who had come to the petrol pump while pushing the car make Accent, the witness was even then not be able to identify any of the above accused saying that he did not focus any of the boys who had come. (47) In his crossexamination by the Ld. Defence Counsel, the witness has deposed that he had never come to the court or went to the Jail for the purpose of identification of accused persons. Medical / Forensic Evidence:
(48) PW13 Dr. Adesh Kumar, has deposed that in the present case one sealed wooden box sealed with the seal of SGMH Mortuary State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 27 of 117 MANGOLPURI DELHI83 was received in his office on 19.12.2013 and same was marked to him for chemical examination. According to the Witness on opening the parcel it was found containing Ex.1A (stomach pieces of small intestine with contents kept in a container), Ex.1B (pieces of liver, spleen and kidney kept in a container) and Ex.1C (blood sample, volume approx. 13.0ml. Kept in a container).
(49) Witness has further deposed that on chemical, microscope and TLC examination, metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides could not be detected in Ex.1A,1B and 1C. According to the Witness after examination, he remnants were sealed with the seal of AY FSL DELHI and his detailed report in this regard is Ex.PW13/A. (50) This witness was not been cross examined by Ld. Defence counsel, despite being granted an opportunity.
(51) PW19 Ms L. Babyto Devi has deposed that on 27.11.2013 she went to Aman Vihar police station and examined the Hyundai Accent Car No. DL4CR3501 but no blood could be detected on the said car.
According to the witness thereafter, she visited the spot of crime i.e. plot No. 7, Main Mubarakpur road, near Bus stand Mubarakpur Dabas where no blood could be detected and her report is Ex.PW19/A. (52) This witness has not cross been examined by Ld. Defence counsel despite opportunity granted.
State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 28 of 117 (53) PW20 Ms Seema Nain has deposed that on 26.12.2013 two sealed parcels were received in their office duly sealed with the seal of "SGMH MORTUARY MANGOLPURI DELHI 83" in connected with the present case and the same were marked to her for DNA examination. According to the witness on opening the first parcel it was found to contain Ex.1a(one damp foul smelling pant/lower), Ex.1b(one damp foul smelling Tshirt), Ex.1c (one damp foul smelling shirt) and Ex.1d( one cut/torn decomposing baniyan). Witness has further deposed that on opening the second parcel it was found to contain Ex 2 i.e. gauze cloth piece kept in polythene described as blood sample of the deceased and on examination blood was detected on Ex.1a, 1b, 1c, 1d and 2. (54) Witness has further deposed that Ex.1a, 1b, 1c, 1d and 2 were subjected to DNA isolation and DNA was isolated from the source of Ex. 1a, 1b, 1c and 2, however, DNA could not be isolated from the source of Ex.1d due to degradation. Witness has further deposed that identified plus amplification kit (STR) was used for each of exhibits and data was analyzed by Gene Mapper IDx software. According to the witness male DNA profile was generated from the source of Ex.2, however, DNA profile could not be generated from the source of Ex. 1A, 1b and 1c due to degradation of sample. Witness has further deposed that the remnants of the exhibits were sealed with the seal of S.Nn,FSL DELHI and her detailed report in this regard is Ex.PW20/A. State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 29 of 117 (55) This witness was not cross examined by Ld. Defence counsel, despite opportunity granted.
(56) PW22 Sh. V.R. Anand has deposed that on 02.01.2014 four sealed parcels were received in the office and the parcel No. 1,2 and 4 were sealed with the seal of RK and parcel No. 3 was sealed with the seal of "SGMH MORTUARY MANGOLPURI DELHI 83" and seals on the parcels were intact and as per the specimen seal.
(57) Witness has further deposed that on opening the parcel No. 1, it was found to contain one improvised pistol 7.65mm bore which was marked by him as Ex.F1 and on examination two bullets were found stuck inside the barrel of the Ex.F1 which were taken out and marked as EB1 and EB2. Witness has further deposed that on opening the second parcel, it was found to contain one 7.65mm cartridge case which was marked by him as Ex.EC1. Witness has further deposed that on opening the parcel No. 3, it was found to contain one bullet which was marked by him as Ex.EB3. Witness has further deposed that on opening the parcel No. 4, it was found to contain three 7.65 mm cartridges for test fire. Witness has further deposed that he examined the aforesaid exhibits and the improvised pistol Ex.F1 was in working order and the Test Fire was conducted successfully and the 7.65mm cartridge case marked Ex.EC1 was a fired empty cartridges. According to the witness the bullet marked EB1 to EB3 corresponded to the bullets of 7.65 mm cartridges and three State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 30 of 117 7.65 mm cartridges sent for test firing were test fired through the improvised pistol Ex.F1. Witness has further deposed that the test fired cartridges were marked as TC1 and TC3 and recovered bullets were marked as TB1 to TB3.
(58) Witness has further deposed that the individual characteristic of firing pin and breech face marks present on EC1 and TC1 to TC3 were examined under comparison microscope and were not found identical, hence the cartridge EC1 had not been fired through the improvised pistol Ex.F1.
(59) Witness has further deposed that the individual characteristics of striation marks present on EB1 and on TB1 to TB3 were examined under comparison microscope and individual characteristics of marks present on EB1 and TB1 to TB3 were found identical.
(60) Witness has further deposed that the individual characteristics of striation marks present on EB2 and EB3 were examined under comparison microscope and were found insufficient hence no opinion could be given on the bullets marked Ex.EB2 and EB3, i.e. whether these had been fired through the improvised pistol marked Ex.F1 or not. (61) Witness has further deposed that the Ex.F1/EC1, EB1 to EB3 were fire arms/ammunition as defined in the Arms Act, 1959 and his detailed report is Ex.PW22/A( running into three pages). State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 31 of 117 (62) This witness was not cross examined by Ld. Defence counsel, despite opportunity granted.
(63) PW25 Dr. Vivek Rawat has deposed that on 23.11.2013 he received the request from Inspector Rakesh Kumar, Police Station Aman Vihar for conducting Postmortem over the body of Sumit @ Munna and the body was identified by Amit and Nalini. According to the witness he along with Dr. Manoj Dhingra conducted the postmortem on the body of Sumit @ Munna, S/o Late Tara Chand, aged 25 years male, r/o C80, Agar Nagar Prem Nagar III, Delhi with alleged history of physical scuffle followed by attacked by firearm and having died on the spot on 21.11.2013 in area of Aman Vihar.
(64) Witness has further deposed that on external examination, fire arm entry wound 1.3 cm X .8cm cavity deep, oval shaped, over left front of chest situated 5.5. cm lateral to midline, 4 cm medial to left nipple, 20 cm down from left shoulder line was found. No blackening and tattooing was seen around the wound margins. Abraded margin seen around the wound with a width of .2 cm. Track of wound extended along second intercostal space piercing through lingual of left lung and pericardium to cross the aortic lumen at its base from left to right, then piercing through medial surface of upper lobe of right lung and coming out of its lateral surface, piercing the right 4th intercostal space and passing upwards through lateral chest muscles to finally gets lodged in superolateral area of right fossa just under the subcutaneous tissue. Both Lung's parenchyma State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 32 of 117 showed contusions hemorrhages along the track. Yellow metallic bullet without percussion cap was recovered and preserved and handed over to the Investigating officer.
(65) Brown full sleeves T shirt showing tear of 1 x .2 cm situated 14.5 cm from left lateral seam, 14 cm from left shoulder seam. White half sleeves T shirt showed tear 1 x 1 cm corresponding with above said tear. Grey half sleeves shirt showed tear 1 x .8 cm situated 16.5 cm from left shoulders seam and 8.5 cm from medial boarder (not preserved). (66) Witness has further deposed that on internal examination, pleural cavity showed 650 ml of fluid blood on both sides. Both lungs were congested and edematous. Bruised laceration seen along with the track of blood in both lungs as mentioned above. Pericardium showed 570 ml of fluid blood. Tearing of base of aorta was seen on left and side. All organs were pale.
(67) Witness has further deposed that time since death was within 6 to 12 hours prior to preservation in SGM Hospital Mortuary.
(68) Witness has further deposed that death was due to shock associated with damage for chest structures under injury no. 1 which was fresh and antemortem at the time of death and was sufficient to cause death in ordinary course of nature consequent to fire arm injury.
State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 33 of 117 (69) Witness has further deposed that they preserved viscera, blood stained gauze, clothes and yellow metallic bullet and handed over to the Investigating officer. He has proved their detailed postmortem report in this respect is Ex.PW25/A (running into four pages) bearing his signatures at point A on each page and bearing the signatures of Dr. Manoj Dhingra at point B on last page which he has identified as he is working under his supervision.
(70) According to the witness he can identify the metallic bullet and clothes if shown to him.
(71) Witness has correctly identified one brown full sleeves T shirt, white half sleeves T shirt, grey half sleeves shirt and one lower of brown color as the same as seized by him and belonging to the deceased. The brown full sleeves T Shirt is Ex.P4(a), white half sleeves T shirt is Ex.P4(b), grey half sleeves shirt is Ex.P4(c), one lower of brown color is Ex.P4(d). Witness has correctly identified one plastic container having one yellow metallic bullet as the same as recovered from the body of the deceased which is Ex.P5.
(72) In his cross examination by the Ld. Defence counsel, the witness has deposed that he has described the tracking of the bullet in the body of the deceased. According to the witness as it is mentioned in his report the bullet has passed from left side of chest cavity to right side of chest cavity and then finally got lodged in lower part of right State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 34 of 117 axillary fossa. Witness has further deposed that he can explain the manner in which the bullet which peats the left side of the chest and diverted to the right side of the chest cavity and has voluntarily added that there are two possibilities one that the velocity of the projectile and the ammunition was not much and second that it was fired from a distant range due to which reason there was not much force in the bullet when it entered the body and hit the base of the aorta which is a calcified structure and then diverted to the right side. Witness has further deposed that there are times that the hardness of the base of aorta is as much as that of a sea shell or the shell of the egg or even more and is hard to cut to the normal scalpel. Witness has admitted that in the present case it was not that hard.
Police / Official Witnesses:
(73) PW1 Ct. Sandeep has tendered his examinationinchief by way of affidavit, which is Ex.PW1/1 bearing his signatures at point A and B and he relied upon seizure memo of Hundai Accent car which is Ex.PW1/A bearing his signatures at point A and has identified the said car i.e. Hundai Accent of silver color, having registration No. DL4CR3501, chassis number MALCG41GR3M081629, Engine No. G4EB3A62075 as Ex.P1.
State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 35 of 117 (74) In his affidavit of examination in chief the witness has deposed that on 22.11.2013 he was posted as constable at Police Station Aman Vihar, Delhi and during patrolling he met with Inspector Rajesh Kumar at plot No. 7, opposite Dr. Ambedkar Chaupal, Main Mubarak road, Delhi. According to the witness the Investigating Officer Inspector Rajesh Kumar accompanied him in the investigation and during investigation seized one Hundai Car Accent bearing registration No. DL4CA 3501 along with RC and Form No. 2930 through seizure memo.
According to the witness his signatures are present on the seizure memo as a witness and as per the instructions of the Investigating Officer he took the vehicle to Police Station Aman Vihar where Crime Team had inspected / photographed the same. Witness has further deposed that the investigating officer had recorded his statement on 22.11.2013. (75) In his crossexamination by the Ld. Defence counsel the witness has deposed that his statement was recorded by the Investigating officer on 22.11.2013 in the police station and it was around 4:154:30 PM the car was recovered. According to the witness no crime team was summoned for lifting the finger prints from the car and he cannot say if the site plan of the spot where the car was recovered was prepared. According to the witness he cannot say if his signatures were obtained on the site plan and he also does not recall if they had taken down the chassis number and the engine number. Witness has further deposed that they had only tallied the registration number of the car with the State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 36 of 117 registration book. Witness has admitted that he had given the car registration number in his statement. Witness has further deposed that there was a difference between the registration number of the car in registration book and the registration number plate displayed on the car. Witness has admitted that he did not state the difference between the number in registration book and the registration plate fixed on the car on front and back. Witness has admitted that Ex.PW1/DX1 to Ex.PW1/DX4 are the form 29 and 30 which were recovered from the car. According to the witness he cannot say if Ex.PW1/DX1 to Ex.PW1/DX4 had put any identification mark. Witness has admitted that Ex.PW1/DX1 to Ex.PW1/DX4 do not bear the name of the purchaser or registration number or any other details of the car and has further deposed that the keys of the car were not made part of the case property. Witness has denied the suggestion that he was not party to seizure of the said car or that proceedings were conducted in the police station. (76) PW2 Ct. Jaswant has tendered his examinationinchief by way of affidavit, which is Ex.PW2/1 bearing his signatures at point A and B. In his affidavit, witness has deposed that on 22.11.2013 he was posted as constable at the Police Station Aman Vihar and FIR copies of the present case were entrusted to him by duty officer for delivering the same to the Ilaka MM, Joint CP/NR, Addl. CP/Outer district. According to the witness on the same day he had delivered the copies to all the above said State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 37 of 117 officers as special messenger on government vehicle motorcycle No. DL1S N 5908 in their respective offices. Witness has further deposed that investigating officer recorded his statement on the same day i.e. 22.11.2013.
(77) In his cross examination by Ld. Defence counsel, witness has deposed that he had left the police station at 1:30 PM to deliver the copies of FIR to all the concerned officers and also delivered the copy of FIR to the concerned Ld. MM in the Rohini courts and he also delivered the copy of FIR to Additional CP. According to the witness he returned back to the police station at about 4:15 PM and had delivered the copy of the FIR to the naib court. Witness has admitted that copy of FIR on the Judicial record does not bear the signatures of Ld. MM or naib court of the concerned court.
(78) PW3 Ct. Ravinder has tendered his examinationinchief by way of affidavit, which is Ex.PW3/1 bearing his signatures at point A and B and proved the seizure memo of blood gauze of deceased which is Ex.PW3/A, seizure memo of viscera peti of deceased and sample seal which is Ex.PW3/B, seizure memo of clothes of the deceased which is Ex.PW3/C and seizure memo of bullet led which is Ex.PW3/D. In his affidavit of examination in chief, witness has deposed that on 23.11.2013 he was posted as constable at police station Aman Vihar and was present in the police station and on that day he along with investigating officer State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 38 of 117 Inspector Rajesh Kumar and SI Shubh Ram proceeded from police station to Mortuary Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi were PM proceedings on the body of deceased was conducted by the doctor. (79) According to the witness after postmortem proceedings doctor had handed over one sealed envelope containing blood on gauze, one wooden box containing Viscera of deceased along with sample seal, one black plastic polythene containing cloths of deceased along with sample seal and one plastic container containing bullet led. Witness has further deposed that he had handed over all parcels sealed with the seal of SGMH MORTUARY MANGOLPURI DELHI83 to the investigating officer Inspector Rajesh Kumar, the same were taken into police possession by investigating officer through seizure memo and his signatures are on seizure memo as a witness.
(80) In his cross examination by Ld. Defence counsel, witness has deposed that there was no document detailing the exhibits was received from the doctor and he had only counted the parcels and he do not know their details.
(81) PW4 Ct. Bhupender has tendered his examinationinchief by way of affidavit, which is Ex.PW4/1 and proved the entry in register No. 21 vide RC No. 303/21/13 dated 19.12.2013, copy of which is Ex.PW4/A and copy of FSL receipt which is Ex.PW4/B. (Original entry and original FSL receipt seen and returned).
State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 39 of 117 (82) In his affidavit of examination in chief, witness has deposed that on 19.12.2013 he was posted as constable at police station Aman Vihar and on that day as per directions he had received one sealed wooden box containing Viscera along with one sample seal from MHC (M) police station Aman Vihar as per RC No. 303/21/13 dated 19.12.2013 for depositing in FSL Rohini and the pullanda was sealed with the seal of SGMH Mortuary Mangolpuri Delhi. According to the witness the same exhibits / pullandas were deposited by him in FSL Rohini Delhi and had given the acknowledge slip of case acceptance bearing No. FSL2013/C9377 dated 19.12.2013 to the MHC (M) Raj Kumar. Witness has further deposed that the exhibits/pullandas remained safe while in his custody and no tampering or altercation was done and investigating officer recorded his statement on 19.12.2013.
(83) In his cross examination by Ld. Defence counsel, witness has deposed that perhaps there were three sample seals. According to the witness there was one box and its three sample seals and he deposited the same at the FSL Rohini.
(84) PW5 Ct. Raj Kumar has tendered his examination in chief by way of affidavit, which is Ex.PW5/1 bearing his signatures at point A and B and proved the entry in register No. 21 vide RC No. 312/21/13 dated 26.12.2013, copy of which is Ex.PW5/A and copy of FSL receipt which is Ex.PW5/B and also proved RC No. 319/21/13 dated 02.01.2014, copy of State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 40 of 117 which is Ex.PW5/C and copy of FSL receipt which is Ex.PW5/D. (85) In his affidavit of examinationinchief, the witness has deposed that on 26.12.2013 and on 02.01.2014 he was posted as constable at police station Aman Vihar and on 26.12.2013 as per directions he had received two sealed pullandas containing cloths of deceased and blood on gauze along with sample seal from MHC(M) Police Station Aman Vihar vide RC No. 312/21/13 dated 26.12.2013 for depositing in FSL Rohini. According to the witness the same exhibits/pullandas were deposited by him in FSL Rohini and had given the acknowledge slip of case acceptance bearing No. FSL2013/DNA9531 dated 26.12.2012. Witness has further deposed that on 02.01.2014 as per directions he had received one sealed parcel containing empty cartridge, led of cartridge (bullet) and three live cartridge along with sample seal from MHC(M) Police Station Aman Vihar vide RC No. 319/21/13 dated 02.01.2014 for depositing by him in FSL Rohini. According to the witness the same exhibits/pullandas were deposited by him in FSL Rohini and had given the acknowledge slip of case acceptance bearing No. FSL2014/F0016 dated 02.01.2014. Witness has further deposed that the exhibits/pullandas remained safe during his custody and no tampering or altercation was done and investigating officer recorded his statement on 26.12.2013 and on 02.01.2014. (86) This witness was not cross examined by Ld. Defence counsel, despite opportunity granted.
State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 41 of 117 (87) PW6 Ct. Ravi Malik has tender his examination in chief by way of affidavit, which is Ex.PW6/1 bearing his signatures at point A and B and proved photographs which are Ex.PW6/A1 to Ex.PW6/A38 and negatives of the same which are collectively Ex.PW6/B. (88) In his affidavit by way of examinationinchief, the witness has deposed that on 22.11.2013 he was posted as photographer in crime team outer district and on that day on receipt of an information, he along with I/C SI Anil Kumar reached at plot No. 7, opposite Dr. Ambedkar Chaupal, Main Mubarak road, Village Mubarakpur Dabas, Delhi and after inspection/photograph they went to Police Station Aman Vihar where photograph of vehicle Hundai Accent bearing No. DL4CA 3501 was done and after that reached at Bawana Nehar towards Sonepat and took photographs of dead body. According to the witness at the instance of the investigating officer Inspector Rajesh Kumar and I/C Crime Team he took photographs of the site from different angles and on 27.12.2013 he had handed over 38 photographs to investigating officer Inspector Rajesh Kumar during investigation. Witness has further deposed that investigating officer recorded his statement on 27.12.2013. (89) In his cross examination by Ld. Defence counsel, witness has deposed that he joined Delhi police as a general constable. Witness has admitted that prior to joining the Delhi police he has no diploma or degree regarding specialization in photography. According to the witness State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 42 of 117 he has not done any specialized course in police courses on still photography and digital photography and he was called for taking the photographs of the concerning this FIR three times. Witness has further deposed that he was called for the photography on 22.11.2013 and was called to plot No. 7 Mubarakpur and was asked by the Investigating officer to take the photographs of a place where the rooms were constructed and there was no specific spot at this place so identified by the Investigating officer as the scene of crime. Witness has further deposed that he was instructed to take photographs from different angles. According to the witness he does not remember the premises where he was asked by the Investigating officer to take the photographs of the person who opened the lock of the premises. Witness has further deposed that this was an still film camera with SLR features. According to the witness he cannot tell about the DIN and ASA of the sheet of the film camera and he also cannot tell the details of the focus lenses of the camera. Witness has further deposed that he has used the flash in these photographs. According to the witness he does not recall as to what was the shutter speed and the aperture on the camera. Witness has admitted that he had not used a focus on a particular spot in any of the photographs taken inside the house by zooming the same. Witness has further deposed that they remained at the spot from 2 PM to 2:45 PM and there was a car parked at Police Station Aman Vihar and he was asked to take the photographs and hence they reached Aman Vihar police station at State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 43 of 117 around 44:15 PM. Witness has admitted that the photographs of the car which were taken at Police Station Aman Vihar were taken with the help of the flash. Witness has admitted that despite of their best efforts i.e. by using the police torch and the flash of the camera they could not get the clarity in the photographs. Witness has further deposed that they left police station at around 5 PM. According to the witness he cannot say whether it is was complete sunset when he finished the photography and he also does not know what was recovered from the said car by the police. Witness has further deposed that thereafter on the instructions of the control room they went to Bawana road and the crime team was headed by SI Anil Kumar. According to the witness he does not remember the name of the person who removed the clothes of the body and he cannot recall the names of member of the team who was present. He has explain that in the photographs, it was hand of local police official which is visible as he was showing the blood on the clothes of the deceased. Witness has further deposed that he has not taken the measurements of the spot before taking the photographs and had voluntarily added that he was only required to take the photographs, some other team members may have taken but he was not aware. Witness has denied the suggestion that he has not done his part of the investigations properly and scientifically. (90) PW7 W/Ct. Rashmi Kandpal has tender her examination in chief by way of affidavit, which is Ex.PW7/1 bearing her signatures at State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 44 of 117 point A and B and she proved CR DD No. 22 NOV 1050109 which is Ex.PW7/A. In her affidavit of examination in chief, witness has deposed that on 22.11.2013 she was posted in PCR unit PHQ Delhi and her duty was in control room from 8AM to 2 PM and on that day she recorded a PCR call received in PCR unit through 100 number vide CR DD No 22 Nov 1050109 regarding Dharambir, S/o Deep Chand ke plot mubarakpur village mein kal raat ko yehan goli chali hai caller ko subah pata chala hai. According to the witness the above said CRDD number was filled by her.
(91) In her cross examination by Ld. Defence counsel, witness has admitted that they cannot ascertain the place from where the caller is calling in case if he is calling from a landline. Witness has admitted that if they received a call from cell phone they can send the PCR on the address that he had given. Witness has admitted that there are three police vehicles which are send to the spot.
(92) PW8 HC Raj Kumar, has tender his examination in chief by way of affidavit, which is Ex.PW8/1 bearing his signatures at point A and B and proved the entry in register No. 19 vide mud No. 1686/2, copy of which is Ex.PW8/A, Mud no. 1687/1, 1687/2,1687/3 and 1687/4 copies of which are Ex.PW8/B,(running into three pages), Mud No. 1688/1 and 1688/2, copies of which are Ex.PW8/C (running into three pages). Witness has also proved the entry in register No. 21 vide RC No. State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 45 of 117 303/21/13 dated 19.12.2013, copy of which is Ex.PW4/A and copy of the FSL receipt of the same which is Ex.PW4/B. Witness also rely upon 312/21/13, copy of which is Ex.PW5/A and copy of FSL receipt of the same which is Ex.PW5/B. Witness also proved RC No. 319/21/13, copy of which is Ex.PW5/C and copy of FSL receipt which is Ex.PW5/D. (93) In his affidavit of examinationinchief, witness has deposed that on 22.11.2013 he was posted as Head constable MHC (M) at police station Aman Vihar and on that day Inspector Rajesh Kumar had deposited one Hundai Accent Car bearing No. DL4CA3501, silver color and he made the entry in register No. 19 at serial No. 1686/2. According to the witness on 23.11.2013 the Investigating Officer Inspector Rajesh Kumar had deposited one sealed envelope containing blood on gauze, one sealed wooden box containing Viscera along with sample seal, one sealed black plastic polythene containing cloths of deceased, one sealed plastic container containing Bullet led. Witness has further deposed that all the parcels were sealed with the seal of SGMH MORTUARY MANGOLPURI DELHI83. According to the witness the investigating officer Inspector Rajesh Kumar had deposited four pullandas, along with sample seal of SGMH MORTUARY MANGOLPURI DELHI83 and he made entry in the register No. 19 at serial No. 1686/1, 1687/2, 1687/3, 1687/4. Witness has further deposed that on 24.11.2013 one sealed parcel containing a pistol and a magazine, one sealed parcel containing empty State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 46 of 117 cartridge and both parcels were sealed with the seal of RK deposited by Inspector Rajesh Kumar and he made entry in register No. 19 at serial No. 1688/1,1688/2. According to the witness on 19.12.2013 as per directions one sealed Viscera Box along with sample seal was handed over to Ct. Bhupender No. 1317/OD vide RC No. 303/21/13 dated 19.12.2013 for depositing in FSL Rohini Delhi. Witness has further deposed that Ct. Bhupender No. 1317/OD had given the acknowledgment slip of the case acceptance bearing No. FSL2013/C9377 dated 19.12.2013 and the same was pasted on RC Book. Witness has further deposed that on 26.12.2013 as per directions two sealed pullandas containing cloths of deceased and blood on gauze along with sample seal were handed over to Ct. Raj Kumar NO. 2235/OD vide RC No. 312/21/13 dated 26.12.2013 for depositing in FSL Rohini, Delhi. According to the witness Ct. Raj Kumar 2235/OD had given the acknowledge slip of case acceptance bearing No. FSL2013/DNA9531 dated 26.12.2013 and the same was pasted on the RC book. Witness has further deposed that on 02.01.2014 as per directions one sealed parcel containing empty cartridge led of cartridge (bullet) and three live cartridge along with sample seal were handed over to ct. Raj Kumar No. 2235/OD vide RC No. 319/21/13 dated 02.01.2014 for depositing in FSL Rohini, Delhi. Witness has further deposed that Ct. Raj Kumar No. 2235/OD had given the acknowledgment slip of the case acceptance bearing No. FSL 2014/F0016 dated 02.01.2014 and the same was pasted on RC Book. According to the witness the exhibits/pullandas State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 47 of 117 remained safe during his custody and no tampering or altercation was done and investigating officer recorded his four statements on 19.12.2013, 26.12.2013, 02.01.2014 and on 10.02.2014.
(94) In his cross examination by Ld. Defence counsel, witness has deposed that the RC of this car was not deposited in the malkhana. Witness has denied the suggestion that mark X in Ex.PW8/B was inserted subsequently. Witness has admitted that a periodical inspection of register no. 19 is held by superior officers every year. Witness has admitted that this inspection by the superior officers can be done in any month and day of the year. Witness has admitted that the register No. 19 from which the Ex.PW8/B does not bear the inspection seal and signatures of any superior officers. Witness has denied the suggestion that they run parallel registers to suit the convenience of the Police Stations Officers and the mohrar malkhana.
(95) PW9 HC Jagpal has tendered his examination in chief by way of affidavit, which is Ex.PW9/1 bearing his signatures at point A and B. In his affidavit of examination in chief, witness has deposed that he was posted as head constable MHC(R) at Police Station Aman Vihar and during investigations of the present case he had handed over the computerized copies of previous involvements records of accused Sunil @ Nanhe, S/o Dharambir Singh, R/o village Mubarakpur Dabas, Delhi. State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 48 of 117 (96) This witness was not cross examined by Ld. Defence counsel, despite opportunity granted.
(97) PW10 SI Anil Kumar has tendered his examination in chief by way of affidavit, which is Ex.PW10/1 bearing his signatures at point A and B and proved the crime team report of Sultanpur Dabas which is Ex.PW10/A and crime team report of inspection of car at police station Aman Vihar and dead body at Bawana which is Ex.PW10/B. (98) In his affidavit of examination in chief the witness has deposed that on 22.11.2013 he was posted as an Incharge of the Crime Team Outer District and on that day on receipt of an information, he along with Ct. Ravi Malik (Photographer) and staff reached at plot No. 7, opposite Dr. Ambedkar Chaupal, Main Mubarak Road, Village Mubarakpur Dabas, Delhi and after inspection/ photograph they went to the Police Station Aman Vihar where inspected/ photographed the vehicle Hundai Accent Car bearing No. DL4CA 3501 and after that they reached at Bawana Nehar, towards Sonepat and also inspected/photographed the dead body. Witness has further deposed that on reaching the spot, the same was inspected by him and his team from 2PM to 2:45 PM vide SOC No. 1341/A/13 and further from 4:15 PM to 6:45PM vide SOC No. 1241 B/13 respectively. According to the witness at his instance the investigating officer Inspector Rajesh Kumar, photographer Ct. Ravi Malik took the photographs of all the Inspected Places and the State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 49 of 117 Investigating Officer recorded his statement on 27.12.2013. (99) In his cross examination by the Ld. Defence Counsel, the witness has deposed that he had not measured the spot from where dead body was recovered and where it was placed for inspection and he had asked the photographer to take the photograph of the place from where the body was recovered. According to the witness no site plan was shown to him by the Investigating Officer of the place of occurrence and between his visit and inspections of the spots he had no interaction with the Investigating Officer nor Investigating Officer had any interaction with him till 27.12.2013 when his statement was recorded. He has stated that the reports were given to the Investigating officer on the same day. According to the witness he had not done any marking nor the Investigating officer had done any marking on any spot that they visited for crime team investigations and the photography.
(100) Witness has further deposed that at plot No. 7 house of Dharamvir, Main Mubarakpur Village near Harijan Chaupl it had a built up portion of many rooms and Investigating officer was already present at the spot. Witness has further deposed that they did not find any clue of crime at the spot. Witness has further deposed that he gave report to two places i.e. Police Station Aman Vihar and Bawana Canal but nothing was recovered from the car. Witness has denied the suggestion that the registration number of the car is not clearly visible on the car and same is his answer about the front of the Hundai car. Witness has denied the State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 50 of 117 suggestion that he has not dealt with this investigations scientifically. Witness has also denied the suggestion that he has not scientifically done his part of investigations even though he was trained in scientific investigations of crime.
(101) PW11 Insp. Mahesh Kumar is the draftsman and has tendered his examination in chief by way of affidavit, which is Ex.PW11/1 bearing his signatures at point A and B and proved the scaled site plan of the spot where dead body was found which is Ex.PW11/A and scaled site plan of place of incident which is Ex.PW11/B. (102) In his affidavit of examination in chief the witness has deposed that on 17.12.2013 he was posted as Inspector/Draftsman at crime branch, 10th floor, PHQ, Delhi police and on that day on call of investigating officer he had visited the Police Station Aman Vihar and departed to the spot along with the investigating officer and reached plot No. 7, opposite Dr. Ambedkar Chaupal, Main Mubarak road, village Mubarak Dabas, Delhi and Bawana Nehar towards Sonepat and took measurements for preparation of scaled site plan. Witness has further deposed that as per the noting he prepared the scaled site plan of site and the same was handed over to the investigating officer on 10.01.2014 and investigating officer recorded his statement on 17.12.2013. (103) In his cross examination by Ld. Defence counsel, witness has deposed that Insp. Rajesh Kumar called him at Aman Vihar police station State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 51 of 117 and he went along with him to plot No. 7, Mubarkpur Dabas and Bawana nehar towards Sonepat within Delhi and measured the measurements of site plan. According to the witness no rough site plan was given to him of either of the places that he visited and there was no independent person apart from the Investigating officer when he was asked to draw the site plan of both the places and he drew the site plan on the basis of rough notes that he had prepared at the spot.
(104) PW12 HC Satya Narain has tendered his examination in chief by way of affidavit, which is Ex.PW12/1 bearing his signatures at point A and B and proved DD No. 21A, copy of which is Ex.PW12/A, copy of FIR which is Ex.PW12/B and endorsement on rukka which is Ex.PW12/C. (105) In his affidavit of examination in chief the witness has deposed that on 22.11.2013 he was posted as head constable at police station Aman Vihar and was performing duties as duty officer from 8AM to 4 PM and on that day a rukka for registration of FIR was handed over by Ct. Rajesh No. 1742/OD. According to the witness the necessary DD entry of kaymi vide DD No. 21A at 12:40 PM was lodged and rukka was handed over to Ct. Vikrant CIPA Operator for converting the same in FIR through computer. Witness has further deposed that after registration of FIR No. 578/13, U/s 302/201/34 IPC, the same was handed over to Ct. Rajesh Kumar for handing over the same to Inspector Rajesh Kumar for State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 52 of 117 further investigations.
(106) This witness has not been cross examined by Ld. Defence counsel, despite being granted an opportunity granted. (107) PW14 Ct. Rajesh has deposed that on 12.11.13, he was posted at Police Station Aman Vihar and on that day, on the receipt of DD no. 17A he alongwith SI Subh Ram reached at plot no. 7, Opposite Ambedkar Chaupal, Main Mubark Pur Road, Mubarik Pur Dabas, Delhi where the complainant Sashi Kumar met them and gave his statement to SI Subh Ram. According to the witness SI Subh Ram recorded his statement and prepared the rukka and he took the same to the Police Station and got the case registered and he brought the copy of FIR and original rukka and handed over the same to Investigating officer SI Subh Ram. Witness has further deposed that SI Subh Ram prepared the site plan at the instance of complainant Shashi Kumar and crime Team had also visited the spot and photographer of the crime team took the photograph at the spot. According to the witness at the instance of complainant Sashi Kumar the accused Sunil @ Nanhe was apprehended and he was interrogated and arrested in this case vide memo Ex.PW14/A. Witness has further deposed that at the instance of Sunil @ Nanhe the vehicle DL4CA3501 was stopped but the driver ran away leaving the aforesaid vehicle and the vehicle was checked and found contain form 29 & 30, which was having the signatures of one Anil Kumar and one RC State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 53 of 117 was also found on the dice board which was having the registration no. as DL4CR3501. Witness has further deposed that the aforesaid vehicle and documents were handed over to Ct. Sandeep after taking the same into possession and at the instance of Sunil @ Nanhe he alongwith SI Subh Ram reached at Bawana Narela Road ahead of Hanuman Mandir and near the Sonipat Nehar where the accused Sunil had disclosed that accused Sunil, Vijay @ Golu and Suraj had thrown the body of Sumit @ Nanhe. Witness has further deposed that the dead body was taken into possession by the Investigating officer and he took the body of the deceased Sumit @ Nanhe to the mortuary of Sanjay Gandhi Hospital and Investigating officer prepared the inquest documents and got the postmortem on the body of the deceased conducted and his statement was recorded by the Investigating officer. Witness has pointed out towards a boy as Sunil who is wearing yellow TShirt as the accused Sunil @ Parva byt it was observed by the court that the witness had wrongly identified the accused Vijay @ Bhola as Sunil.
(108) However when accused Sunil @ Parva was specifically put to the witness by Ld. Addl. PP for the state, he correctly identified him as Sunil @ Parva and explained that since he could not see the accused properly and at the time of arrest of accused Sunil @ Parva was cleaned shaved he was therefore confused.
(109) The witness has identified the Hudai Accent car of Silver color having registration No. DL4CR3501, Chasis number State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 54 of 117 MALCG41GR3M081629, Engine No. G4EB3A62075 and witness has correctly identified the same. Same is Ex.P1.
(110) In his cross examination by Ld. Defence counsel, witness has deposed that his statement was recorded by the investigating officer in mortuary of SGM hospital by hand. According to the witness he does not know when his statement was written on the computer. Witness has also admitted that his statement was not read over to him which he has admitted to be correct. Witness has further admitted that there is difference of registration number RC of the impugned car and the number plate. Witness has further deposed that no body from specialized agency was called to the spot to inspect the abandoned car and no memo was drawn as to the keys of the car as the person who fled away was had taken the keys along with him. According to the witness nothing was written about the person who had abandoned the car and run away and no details of features and the clothes worn by the person who ran away after abandon the car were not recorded or stated by him. Witness has further deposed that the documents recovered from the car were seized at the spot only and there were only two form of number 29 and 30 (two leafs only) and original RC which were handed over to Ct. Sandeep in a sealed condition. According to the witness no memo of handing over of car and the sealed documents were written and got signed by Ct. Sandeep and no statement was recorded at that time when documents were sealed and the State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 55 of 117 car was seized. Witness has further deposed that his signatures were not obtained on the seizure memo of the car and the documents recovered there from. Witness has denied the suggestion that no disclosure statement was made by the accused in his presence nor any pointing out memo was drawn in his presence. Witness has denied the suggestion that he was concealing the facts from the court to help the investigating officer or that he did not participate in the investigations as stated by him in his examination in chief. Witness has further denied the suggestion that he was deposing falsely at the instance of the investigating officer. (111) PW15 HC Rajesh has deposed that on 24.11.13, he was posted at Police Station Aman Vihar and on that day, he alongwith Insp. Rajesh Kumar was busy in the investigation of this case. According to the witness the accused Sunil @ Nanha was already arrested in this case who was interrogated by the Investigating Officer Insp. Rajesh Kumar in his presence who had given his disclosure statement vide ExPW15/A. Witness has further deposed that thereafter he alongwith Insp. Rajesh Kumar accused Sunil @ Nanhe and Vijay @ Bhola and three constables reached at Plot no. 7, Near Dr. Ambedkar Chaupal, Main Mubark Pur Road and got recovered one empty cartridge from the garbage, out of one room and produced before Inspector Rajesh Kumar. Investigating officer prepared the sketch of the cartridge vide ExPW15/B and the said cartridge was converted into parcel and sealed the same with the Seal of State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 56 of 117 RK and the said parcel was taken into possession vide memo Ex.W15/C. According to the witness thereafter he alongwith aforesaid accused and staff reached at Bawana Nehar near Mandir where the accused Vijay @ Bhola had pointed out a place where they had thrown the pistol and the accused Vijay @Bhola got recovered the pistol. Witness has further deposed that the Investigating officer prepared the sketch of a pistol vide ExPW15/D and the said pistol was also converted into parcel and sealed with the same seal and the sealed parcel was taken into possession vide seizure memo ExPW15/E which seal after use was handed over to him. According to the witness thereafter they all went to village Mubark Pur Dabas for the search of the other accused person and when they reached Village Mubark Pur Dabas one secret informer met them, who took them to Nangloi Railway Station where the other accused namely Suraj @ Parwah was apprehended at the instance of secret informer, he was interrogated and his disclosure statement was recorded vide ExPW15/F. Witness has further deposed that the accused Suraj @ Parwah was arrested in this case vide memo ExPW15/G and his personal search was conducted vide memo ExPW15/H and thereafter he alongwith the police staff and the case property came to the police station and deposited the case property and his statement was recorded by the Investigating officer. The witness has correctly identified the accused persons by pointing out and by name. Witness has also correctly identified one pistol as the same, State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 57 of 117 as recovered from the bushes at the instance of accused Vijay @ Bhola. The same is ExP2. Witness has also correctly identified one cartridge/led as the same, as recovered from the garbage at the instance of Sunil @ Nanhe.v The same is ExP3.
(112) In his cross examination by Ld. Defence counsel, witness has deposed that he joined the investigations on 24.11.2013 itself and he was not a witness to the arrest of Sunil. According to the witness he does not know when Sunil @ Nanhe was arrested and stated that it was around 11 AM on 24.11.2013. Witness has further deposed that the accused Sunil @ Nanhe was not produced before the Ld. Magistrate on 24.11.2013 and Investigating officer introduced him to the accused and he had not accompanied the accused to the court on 25.11.2013. According to the witness he did not participate in the investigations after 24.11.2013. Witness has admitted that number engraved on the empty cartridge was not taken down by the Investigating officer. Witness has further deposed that there were three constables who were having custody of the accused at the time of recovery of the cartridge Ex.PW15/B. According to the witness no other constable was made a Witness to the recovery and just across the spot of recovery of the cartridge Police Chowki / Post of Police Station Aman Vihar is situated across the road but no body was called from the police post. He has stated that there are only shops which are situated on the main road and the Investigating officer himself went to the State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 58 of 117 shopkeepers asking them to become witness of the recovery. Witness has further deposed that he cannot say who were the shopkeepers who the Investigating Officer had asked to join the investigations and in his presence the Investigating officer did not ask the owner of plot No. 6 and 8 to join the investigations. According to the witness he does not know how many rooms are built on plot No. 7. Witness has admitted that plot No. 7 has shops on to the boundary wall. Witness has further deposed that no photography of the recovery of empty cartridge was done and they went inside the house. According to the witness no crime team came to the spot on that day and no memo of handing over of seal was drawn and states that the seal was returned to the Investigating officer after 23 days. Witness has admitted that the pistol was not recovered from plot No. 7. Witness has further deposed that they left the spot i.e. plot No. 7 at around 2 PM and the distance between plot No. 7 and the spot of seizure of pistol is around one hour. According to the witness the Jurisdiction of the spot of recovery of pistol falls within the jurisdiction of Police Station Bawana and neither the information of their visit to the jurisdiction of Police Station Bawana nor any help was sought from Police Station Bawana to participate in the investigations. According to the witness no site plan of the place of recovery of Ex.PW15/E was prepared. He has deposed that Ex.PW15/E is the sketch of the pistol and has further deposed that the pistol has a detachable cartridge case and no sketch of State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 59 of 117 the magazine was separately prepared and no live cartridge was found in the pistol so recovered vide memo Ex.PW15/D. Witness has further deposed that the place of recovery of pistol is a road on both sides of which there are nalas and has voluntarily explained that the pistol was recovered from the bank of the nehar in bushes. Witness has further deposed that the Investigating officer had a mobile phone which had a feature of camera and no body from plot No. 7 till the spot of recovery of pistol was joined or requested by the Investigating Officer for joining the investigations and after the recovery they came back to Mubarkpur. Witness has admitted that his phone i.e. NOKIA 5233 which he was carrying at that time has camera features. Witness has admitted that his phone number even at that time had camera feature in it. Witness has admitted that neither he nor the Investigating Officer of the case took the photographs of recovery, its spot and objects at the relevant time. Witness has further deposed that the Investigating officer told him that one person who was an informer had told him about pointing out towards Suraj @ Parva as the person who was the witness to the occurrence of the death of Sumit @ Manna. According to the witness he does not know if Investigating officer had given the information of recovery of pistol to the Police Station Bawana and accused Suraj @ Parva was arrested from the platform of Railway Station Nangloi. Witness has further deposed that the railway staff at the platform was not associated with the arrest and State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 60 of 117 investigations of the case. According to the witness he does not recollect what was recovered as Jamatalashi from the accused Suraj and states that the Investigating officer might have informed the close relative of Suraj, He has deposed that he himself did not give information to the relation of Suraj about his arrest and has voluntarily added that the Investigating officer must have given the same. He has further deposed that the memo of arrest was not drawn in his handwriting and has voluntarily added that it is in the handwriting of the Investigating officer. Witness has further deposed that in his presence the Investigating officer did not obtain the signatures of the other three constables other than himself on any of the documents prepared and that he had returned the seal to the Investigating officer after 23 days. Witness has further deposed that no memo regarding the handing over of the seal or return of the seal was prepared and his statement was recorded by the Investigating officer in the Police Station after their return. According to the witness he does not know if the Investigating Officer can operate the computer and states that in his presence the Investigating officer had recorded his statement in his handwriting.
(113) According to the witness he does not know if Nanhe was arrested on 22.11.2013 and states that he had seen Nanhe in the Police Station on 23.11.2013 in the evening. Witness has further deposed that he did not know Nanhe personally but was told in the Police Station that he is Sunil @ Nanhe. He has stated that he had seen Nanhe in police station State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 61 of 117 between 67 PM and had seen Sunil @ Nanhe along with Investigating officer. According to the witness he does not know who had put him in the lockup and when the accused Sunil @ Nanhe was put in the lockup. Witness has further deposed that there is CCTV camera installed in the police station. Witness has admitted that CCTV camera has recorded their entry back to the Police Station together with the accused on CCTV camera.
(114) Witness has denied the suggestion that there was no spot visit by him along with Investigating officer. Witness has denied the suggestion that nothing was recovered at plot No. 7 at the time on the day as stated by him in his statement. Witness has denied the suggestion that accused was not apprehended in his presence. Witness has denied the suggestion that all the memos were drawn in the police station. Witness has denied the suggestion that he was deposing to save the Investigating officer from mishandling of the investigations. Witness has denied the suggestion that he have not participated in the investigations or that he was deposing falsely at the instance of the Investigating officer. (115) PW26 Sh. Vikram Jit Singh is the Deputy Commissioner of Police (Outer District) who has deposed that the case file including the seizure memo, statement of witnesses and other relevant documents were produced before him by his subordinates and he has perused the same and on being satisfied he accorded the sanction U/s 39 Arms Act to prosecute the accused Vijay @ Bholu Son of Baldev Singh U/s 25/54/59 State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 62 of 117 Arms Act and the said sanction dated 22.04.2014 is Ex.PW26/A. (116) In his cross examination by Ld. Defence counsel, witness has deposed that when the documents were produced before him by the subordinates, they included the FSL result of the inspection of the Fire Arms. Witness has admitted that the result regarding bullets recovered from the barrel was also produced before him. Witness has admitted that the letter of request for granting sanction is not referred to by him in his report in his sanction ExPW26/A. Witness has admitted that in his report it is not mentioned that the bullet fire and the bullets struck in the barrel were not bearing the similar characteristic. Witness has denied the suggestion that he had reproduced the extracts of the copy of the challan in his aforesaid report. Witness has denied the suggestion that the sanction U/s 39 Arms Act has been given by him without of application of mind particularly upon the report of the ballistic expert in a routine manner.
(117) PW31 SI Subh Ram has deposed that on 22.11.2013 he was posted at Police Station Aman Vihar and on that day on the receipt of DD No.17A vide Ex.PW31/A regarding firing in the plot of Dharambir, Mubarakpur Village, he along with Ct. Rajesh reached at the spot i.e. Plot No.7, opposite Dr. Ambedkar Chaupal, Main Mubarakpur Dabas Delhi where one Shashi Kumar met them and gave his statement which is Ex.PW21/C and attested by him. Witness has further deposed that he State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 63 of 117 prepared rukka Ex.PW31/B and he handed over the rukka to Ct. Rajesh who got the case registered. According to the witness further investigation of this case was handed over to Inspector Rajesh. Inspector Rajesh came to the spot and he prepared the site plan in his presence vide Ex.PW21/A. Witness has further deposed that Inspector Rajesh called the crime team who reached the spot and inspected the same. Witness has further deposed that the accused Sunil @ Nanha was arrested in this case vide memoEx.PW14/A and his personal search was conducted vide memo Ex.PW21/B and the accused Sunil @ Nanha was thoroughly interrogated and whatever he had stated was recorded separately vide Ex.PW31/C. According to the witness at the same time the accused Sunil @ Nanha had pointed out towards an Ascent car bearing No. DL4CA3501 and disclosed that this was the same which was used by them in the offence and the said car was got stopped and two persons were found sitting in the said car. Witness has further deposed that on seeing the police party the persons sitting in the car ran away leaving the car and the aforesaid car was checked and found one RC and form 29 & 30 in the dickey of the said car and the said car was taken into possession vide seizure memo Ex.PW1/A and the aforesaid RC and form 29 & 30 were also taken into possession vide seizure memo Ex.PW31/D and the said forms are Ex.PW1/DX1 to Ex.PW1/DX4. The RC is Ex.PW31/X. Witness has further deposed that thereafter the accused Sunil @ Nanha took them to BawanaNarela Road, State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 64 of 117 near Hanuman Mandir and he got recovered the dead body of Sumit @ Manna and the body was got photographed by the crime team. According to the witness Inspector Rajesh Kumar prepared the site plan at the place of recovery of dead body which is Ex.PW31/E and the body was sent to Mortuary of SGM Hospital.
(118) Witness has further deposed that thereafter he alongwith Inspector Rajesh Kumar and Ct. Rajesh and the secret informer reached at plot number 274, Utsav Vihar, Sukhbir Nagar, Delhi for the search of accused Vijay @ Bholu. According to the witness, at the instance of the secret informer, the accused Vijay @ Bholu was arrested in this case by the Investigating officer vide memo Ex.PW31/F and his personal search was conducted vide Ex.PW31/G. Witness has further deposed that he was thoroughly interrogated and his disclosure statement was recorded vide Ex.PW31/H and the case property was deposited in the Malkhana and the accused was sent to lock up. According to the witness Investigating officer prepared the memo of pointing out cum recovery memo regarding dead body vide Ex.PW31/I. (119) Witness has further deposed that on 23.11.2013 he alongwith Inspector Rajesh Kumar and Ct. Ravinder went to the SGM Hospital for getting the postmortem examination on the body of deceased conducted and the postmortem examination on the dead body was conducted and the doctor concerned handed over one envelop containing blood gauze duly State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 65 of 117 sealed with the seal of SGM Hospital which the Investigating officer took into possession vide memo Ex.PW3/A. Witness has further deposed that the doctor concerned also handed over one wooden box containing viscera and sample seal duly sealed with the seal of SGM Hospital which the Investigating officer took into possession vide memo Ex.PW3/B. According to the witness the doctor also handed over one sealed parcel containing clothes of the deceased duly sealed with the seal of SGM Hospital which the Investigating officer took into possession vide memo Ex.PW3/C. Witness has further deposed that the doctor also handed over one sealed plastic box containing bullet duly sealed with the seal of SGM Hospital which the Investigating officer took into possession vide memo Ex.PW3/D and the aforesaid parcels were deposited in the Malkhana by the Investigating officer and his statement was also recorded by the Investigating officer. Witness has correctly identified accused Vijay @ Bholu and Sunil @ Nanhe. He has also identified the Hyudai Accent Car of Silver colour having registration number DL 4C R 3501 chasis number MAL CG 41 GR 3M 081 629, Engine number G4 E B 3A 62075 as produced by Superdar which is Ex.P1.
(120) In his crossexamination by Ld. Defence counsel, witness has deposed that he received the DD No. 17A at about 9.15AM and Shashi met him at the spot and he recorded statement of Shashi at the spot. Witness has admitted that date has not been mentioned under the State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 66 of 117 signatures of Shashi on the statement Ex.PW21/C. He has admitted that there is an overwriting on the registration number of car on Ex.PW21/C and also that the dimension of the room is not mentioned in the site plan Ex.PW21/A. Witness has denied the suggestion that accused Vijay @ Bholu never recorded his disclosure statement or that the signatures of accused Vijay @ Bholu were taken on blank papers and the same was converted into disclosure statement later on. Witness has further deposed that he does not know if the Forms 29 & 30 were easily available in the market. He has stated that he tried to ask public persons to join the investigation but there was nobody around. He has deposed that he did not look around the location and its topography. According to the witness he had taken the signature of accused Sunil @ Nanhe on the seizure memo Ex.PW1/A but when confronted with Ex.PW1/A the signatures of accused Sunil @ Nanhe were not there. The same was his answer with regard to Ex.PW13/D where signatures of accused are not found. (121) Witness has further deposed that the car was recovered before the sunset and he did not prepared any site plan of the place of recovery of the vehicle and he also did not observe the topography of the area of the place of recovery of vehicle but in so far as he recalls, there were tea stall and a doctor's clinic. According to the witness, nobody from the public, including from the doctor's clinic and other tea shops, were called to join the investigation. According to the witness, he does State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 67 of 117 not recall if tracing of chassis number of the car was done and he further do not recall as to which constable went under the car to note the chassis number. He admits that he had also compared the registration number plate on the car and on the registration book and they were not similar but he did not make any report on paper to this effect. He has stated that he had not taken into possession the blood stained clothes of the accused Sunil @ Nanhe and Vijay @ Bholu and he had not seen any evidence regarding the crime in the car but cannot say about rest of the team accompanying him whether they had checked the car for detection of any evidence about the crime.
(122) Witness has denied the suggestion that he has not legally investigated the case in accordance to procedure of DPR and the procedure established by law. Witness has further denied that all this investigation was make belief and so was carried out in the Police Station only or that no investigation was carried out at the spot as stated by him during the examination. Witness has further denied the suggestion that he was withholding the facts of the case to suppress his inability to have investigated the case in accordance with law.
(123) PW32 Inspector Rajesh Kumar has deposed that on 22.11.2013 he was posted as Inspector Investigation at Police Station Aman Vihar and the initial investigation was conducted by SI Shubh Ram who got the case registered and the further investigation of this case was handed over to him. According to the witness he received copy of the State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 68 of 117 FIR and the original rukka from Ct. Rajesh and reached the spot and he called the crime team at the spot which inspected the spot and the spot was got photographed by the crime team and he prepared the site plan in the presence SI Shubhram at the instance of Shashi vide Ex.PW21/A. According to the witness the accused Sunil @ Nanha was arrested in this case at the instance of Shashi vide memo Ex.PW14/A and his personal search was conducted vide memo Ex.PW21/B. Witness has further deposed that the supplementary statement of Shashi was recorded U/s 161 Cr. P. C. after it was received and the accused Sunil @ Nanha was thoroughly interrogated and whatever he had stated was recorded separately vide Ex.PW31/C. According to the witness while the accused Sunil @ Nanhe was being taken to Bawana for the recovery of the dead body, and at the same time the accused Sunil @ Nanha had pointed out towards an Ascent car bearing No. DL4CA3501 and disclosed that this was the same which was used by them in the offence. Witness has further deposed that the said car was got stopped and two persons were found sitting in the said car i.e. one person was found sitting on the driving seat whereas the other was found sitting on the other front seat next to driver seat. According to the witness on seeing the police party the persons sitting in the car ran away leaving the car. Thereafter, the car was checked and one RC and form 29 & 30 were found in the dickey of the said car and the said car was taken into possession vide seizure memo State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 69 of 117 Ex.PW1/A. Witness has further deposed that the aforesaid RC and form 29 & 30 were also taken into possession vide seizure memo Ex.PW31/D and the said forms are Ex.PW1/DX1 to Ex.PW1/DX4 and the RC is already Ex.PW31/X. Witness has further deposed that the aforesaid car was handed over to Ct. Sandeep with the direction to take the said car to the police station and Ct. Sandeep took the same to the police station and thereafter the accused Sunil @ Nanha took them to BawanaNarela Road, near Hanuman Mandir and when they reached near Bawana Nagar towards Sonepat and when they reached till 1.5 kilometer towards Sonepat, the accused got recovered the dead body of Sumit @ Manna from the bushes. According to the witness the body was got photographed by the crime team and he prepared the site plan at the place of recovery of dead body which is Ex.PW31/E. Witness has further deposed that the body was sent to Mortuary of SGM Hospital. SI Shubh Ram made request vide Ex.PW32/A and sent the same to the Authopsy Surgeon. (124) Witness has further deposed that thereafter he along with SI Shubhram and accused Sunil @ Nanhe and the secret informer reached at plot number 274, Utsav Vihar, Sukhbir Nagar, Delhi for the search of accused Vijay @ Bholu. According to the witness at the instance of the secret informer, the accused Vijay @ Bholu was arrested in this case by him vide memo Ex.PW31/F and his personal search was conducted vide Ex.PW31/G. Witness has further deposed that he was thoroughly State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 70 of 117 interrogated and his disclosure statement was recorded vide Ex.PW31/H and thereafter they all came back to the police station and the case property was deposited in the Malkhana. According to the witness the accused was sent to lock up. Witness has further deposed that he may mention that at the time of recovery of dead body, he prepared the memo of pointing out cum recovery memo regarding dead body vide Ex.PW31/I. Witness has further deposed that he recorded statement of witnesses.
(125) Witness has further deposed that on 23.11.2013 he along with SI Shubhram and Ct. Ravinder went to SGM Hospital for getting the postmortem examination on the body of deceased conducted and he prepared the inquest document i.e. brief facts Ex.PW32/B and also filled up Form 2535 vide Ex.PW32/C and made a request to the Autopsy Surgeon vide Ex.PW32/D and also recorded statement of Smt. Malini and Sh. Amit regarding identification of the dead body vide Ex.PW16/A and Ex.PW17/A. According to the witness thereafter the postmortem on the dead body of the deceased Sumit @ Manna was got conducted vide Ex.PW5/A. Witness has further deposed that the dead body was handed over to the relatives of the deceased vide receipt Ex.PW17/B. Witness has further deposed that the doctor concerned handed over one envelop containing blood gauze duly sealed with the seal of SGM Hospital which he took into possession vide memo Ex.PW3/A and the doctor concerned State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 71 of 117 also handed over one wooden box containing viscera and sample seal duly sealed with the seal of SGM Hospital which he took into possession vide memo Ex.PW3/B. Witness has further deposed that the doctor also handed over one sealed parcel containing clothes of the deceased duly sealed with the seal of SGM Hospital which he took into possession vide memo Ex.PW3/C. (126) Witness has further deposed that the doctor also handed over one sealed plastic box containing bullet duly sealed with the seal of SGM Hospital which he took into possession vide memo Ex.PW3/D and thereafter they came back to the police station and the aforesaid parcels were deposited in the Malkhana by him. Witness has further deposed that he recorded the statement of witnesses and thereafter both the accused namely Vijay @ Bholu and Sunil @ Nanhe were brought to the concerned court and their three days' police custody remand was taken and thereafter they all came back to the police station and the accused persons were sent to lock up.
(127) Witness has further deposed that on 24.11.2013 the accused Sunil @ Nanhe was again interrogated and his supplementary disclosure statement was recorded vide Ex.PW15/A and thereafter he alongwith HC Rajesh and other staff alongwith both the accused persons came to the spot and at the instance of accused Sunil @ Nanhe, one empty cartridge was recovered. According to the witness he measured the same and State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 72 of 117 prepared the sketch vide Ex.PW15/B and he converted the aforesaid cartridge into parcel and sealed the same with the seal of RK and the seal after use was kept by him for further use. Witness has further deposed that the aforesaid parcel was taken into possession vide seizure memo Ex.PW15/C and thereafter they all alongwith both the accused persons reached at NarelaBawana Road, near Hanuman Mandir, towards Sonepat Road where the accused Vijay @ Bholu after walking at a distance of about one kilometer, got recovered one pistol alongwith Magazine from the bushes. Witness has further deposed that he prepared the sketch of the pistol and the Magazine vide Ex.PW15/D and he converted the aforesaid pistol and magazine into parcel and sealed the same with the seal of RK which seal after use was handed over to HC Rajesh. Witness has further deposed that he took the aforesaid parcel into possession vide seizure memo Ex.PW15/E. (128) Witness has further deposed that on the same day i.e. on 24.11.2013 at the instance of secret informer the coaccused Suraj @ Parva was apprehended from Railway Station Nangloi and he was interrogated and on being satisfied he was arrested in this case vide memo Ex.PW15/G and his personal search was conducted vide memo Ex.PW15/H and his disclosure statement was also recorded vide Ex.PW15/F. Witness has further deposed that thereafter they all came back to the spot and the case property was deposited in the malkhana and State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 73 of 117 he recorded the statement of witnesses. According to the witness during the course of investigation he called Inspector Mahesh Kumar at the spot and at the place of recovery of dead body and the weapon of offence, and on his instance he prepared the rough notes and measurement and thereafter he collected the scaled site plan from Inspector Mahesh Kumar vide Ex.PW11/A and Ex.PW11/B. Witness has further deposed that he collected the postmortem report Ex.PW25/A, the photographs of the body and the scene of crime and the said carEx.PW6/A1 to Ex.PW6/A38. According to the witness he also collected the electricity bill and the documents of the property of plot no.7, Khasra no. 26/1/12, Mubarakpur Dabas from Dharambir Singh which he took into possession vide memo Ex.PW32/E. Witness has further deposed that the electricity bill is Ex.PW24/A and the documents of the said property is Ex.PW32/F collectively. Witness has further deposed that he collected the crime team report vide Ex.PW10/A and Ex.PW10/B. Witness has further deposed that the exhibits were got sent to FSL and he recorded the statement of other witnesses and the case property in the malkhana. he also collected the FSL result Ex.PW20/A. (129) Witness has further deposed that on 22.04.2014 he collected the sanction U/s 39 of Arms Act against accused Vijay @ Bholu to prosecute him under Arms Act which is Ex.PW26/A. Witness has correctly identified accused Vijay @ Bholu, Sunil @ Nanhe and Suraj @ State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 74 of 117 Parva. He has also identified the Hyudai Accent car of Silver colour having registration number DL 4C R 3501 chasis number MAL CG 41 GR 3M 081 629, Engine number G4 E B 3A 62075 was produced by Superdar which is Ex.P1. Witness has also correctly identified one pistol as the same as recovered from the bushes at the instance of accused Vijay @ Bholu which pistol is Ex.P2. Witness has also correctly identified one cartridge/ lead as the same as recovered from the garbage at the instance of accused Sunil @ Nanhe which cartridge / lead is Ex.P3. (130) In his crossexamination by the Ld. Defence Counsel, the witness has deposed that the Ex.PW21/A is in his handwriting. Witness has denied the suggestion that complainant Shashi was not present at the spot at the time of preparation of site plan Ex.PW21/A. According to the witness he was not told the position of the deceased as well as the accused in the said site plan. Witness has admitted that he had not recorded on the Ex.PW21/A the fitting and fixtures in the room at point A in the area encircled red. Witness has further deposed that SI Anil of Crime team had come and before he drew the site plan, he had asked crime team to look for the evidence inside the room. According to the witness since SI Shubhram had reached the spot earlier, he had told him about the angles of the photographs to be asked to the crime team to be taken and no finger prints or chance prints were lifted from the spot. Witness has further deposed that he did not instruct the crime team to take the finger prints State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 75 of 117 from the jugs, bottles present over there and the supplementary statement of Shashi was recorded after preparing the documents Ex.PW21/A, Ex.PW14/A and Ex.PW20/B. Witness has further deposed that no pointing out memo was drawn by him and accused Sunil @ Nanha was interrogated on the road in full public view. Witness has further deposed that no site plan of the spot of recovery of car was prepared by him and he had carried out a visual inspection of the car in which the crime had taken place and he could not find any evidence relating to the crime in the same. According to the witness, he did not check the chassis number of the car at the spot nor he tried to trace it and has voluntarily added that he had checked chassis number after he reached the police station but did not trace the same. Witness has further deposed that Ct. Sandeep was the one who had gone under the car to check the chassis number, voluntarily added that Ct. Sandeep had checked the chassis number by lifting the bonnet. Witness has admitted that one cannot check the chasis number without undergoing the car.
(131) Witness has further deposed that thereafter they went to Bawana Road for recovery of the dead body in terms of the disclosure made by accused Sunil @ Nanha and when he reached Bawana Road, the crime team had not reached there by that time and he had sent a message to the crime team through wireless after reaching Bawana Nahar. According to the witness crime team had arrived at the spot after they had State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 76 of 117 brought out the dead body from the Nahar where it was lying partially submerged in water and he was carrying a mobile phone at that time and it had a camera facility. Witness has further deposed that he did not take any photographs of the dead body when it was submerged in the Nahar and he cannot tell whether the photographs Ex.PW6/A7 and Ex.PW6/A8 were taken at the time when the dead body was submerged or after removal of dead body from the Nahar. Witness has further deposed that Inspector Rakesh Kumar Addl. SHO of their Police Station is visible in photograph Ex.PW6/A6. According to the witness the persons shown in the photograph Ex.PW6/A5 are the mixture of police officials, public persons and crime team members. Witness has further deposed that SI Shubhram and one or two other officers took out the dead body from the Nahar but details of the said officers he cannot tell and he did not prepared any memo regarding removing of dead body from Nahar to the road and has voluntarily added that it was not required as he had already prepared the pointing out cum recovery memo. Witness has further deposed that he did not obtain the signatures of any public persons seen in the photograph Ex.PW6/A5 and has voluntarily added that normally public persons do not sign.
(132) Witness has further deposed that the pistol was recovered at the instance of accused Vijay @ Bhola from Bawana Nahar and he did not prepare any site plan of the place of recovery of pistol and he also did not State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 77 of 117 direct the photography / videography of proceedings of the recovery of pistol and also did not lift any chance print or finger print from the pistol nor he put any mark of identification on the pistol so recovered and states that he obtained the signatures of Sunil on the sketch of the pistol Ex.PW15/D because accused Sunil was also present though the recovery was got conducted by the accused Vijay. Witness has admitted that by that time Sunil was already an accused and in their custody. (133) Witness has further deposed that the cartridge had been recovered from outside the room where incident had taken place and the said cartridge was recovered on the pointing out of accused Sunil. Witness has admitted that when he initially inspected the spot, the cartridge had not been recovered and has voluntarily added that Sunil had informed that while cleaning the room, the cartridge had been thrown out in the koora. Witness has further deposed that no site plan of the place of recovery of the cartridge was prepared by him. Witness has admitted that Ex.PW15/D, Ex.PW15/G, Ex.PW1/A, Ex.PW31/D, Ex.PW15/C, Ex.PW3/A to Ex.PW3/E have not been prepared by him. Witness has further deposed that he had not filed any application before the court for TIP of the accused persons, by PW Raj Kumar Yadav. He has explained that he had called Shashi, Sanjay @ Ajeet, Mohd. Waliullah and Raj Kumar Yadav by phone to come to the Court No. 113 to identify the accused. According to the witness, he had not called them to the court State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 78 of 117 but he had called them to identify the accused persons in the Police Station and has voluntarily added that he had called the witnesses for purpose of interrogation at first floor on 15th of February. Witness has denied the suggestion that the witnesses Sashi, Valibullah and Ajit were detained by him for five days in the Police Station. Witness has denied the suggestion that he had not scientifically and legally investigated the matter. Witness has further denied the suggestion that he has not investigated the matter in it right direction. Witness has further denied the suggestion that he is withholding the facts from the court about the case. Witness has further denied the suggestion that accused were made to sign on blank papers on which various memos and sketches were prepared. Witness has denied the suggestion that pointing out memos and the seizure memos have been prepared without actually participating in the act. Witness has denied the suggestion that he was not helping the court by concealing the actual facts.
STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
(134) After completing the prosecution evidence, statements of accused Vijay @ Bhola, Suraj @ Parve and Sunil under Section 313 Cr.PC were recorded wherein the entire incriminating material / evidence against the accused were put to them which they have denied. The accused have stated that they are innocent and have been falsely implicated in this case and they have nothing to do with the present case.
State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 79 of 117 According to the accused Sunil, he was lifted by the police from his office at Mubarakpur Dabas where he was doing the business of property dealing. However, the accused have chosen not to examine any witness in defence.
FINDINGS:
(135) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the evidence on record and the written memorandum of arguments filed by the parties.
Medical Evidence:
(136) The case of the prosecution is that the the death of the deceased Sumit @ Munna had occurred due to fire arm injury on his chest. In this regard the prosecution is placing its reliance on the testimony of Autopsy Surgeon Dr. Vivek Rawat (PW25) and the postmortem report proved by him.
(137) I have gone through the testimony of Dr. Vivek Rawat (PW25) who has proved that on 23.11.2013 he received the request from Inspector Rakesh Kumar, Police Station Aman Vihar for conducting Postmortem over the body of Sumit @ Munna on which he along with Dr. Manoj Dhingra conducted the postmortem on the body of Sumit @ Munna, S/o Late Tara Chand, aged 25 years male, r/o C80, Agar Nagar State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 80 of 117 Prem Nagar III, Delhi with alleged history of physical scuffle followed by attacked by firearm & died on the spot on 21.11.2013 in area of Aman Vihar. The witness has proved that on external examination, fire arm entry wound 1.3 cm X .8cm cavity deep, oval shaped, was found over left front of chest situated 5.5. cm lateral to midline, 4 cm medial to left nipple, 20 cm down from left shoulder line; no blackening and tattooing was seen around the wound margins, Abraded margin seen around the wound with a width of .2 cm, track of wound extends along second intercostal space piercing through lingual of left lung and pericardium to cross the aortic lumen at its base from left to right, then piercing through medial surface of upper lobe of right lung and coming out of its lateral surface, pierces the right 4th intercostal space and passing upwards through lateral chest muscles to finally getting lodged in superolateral area of right fossa just under the subcutaneous tissue. Both Lung's parenchyma showed contusions hemorrhages along the track. He has proved that the yellow metallic bullet without percussion cap, recovered and preserved and handed over to the Investigating officer. He has also proved that there was a brown full sleeves T shirt showing tear of 1 x .2 cm situated 14.5 cm from left lateral seam, 14 cm from left shoulder seam; White half sleeves T shirt showed tear 1 x 1 cm corresponding with above said tear; Grey half sleeves shirt showed tear 1 x .8 cm situated 16.5 cm from left shoulders seam and 8.5 cm from medial boarder (not State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 81 of 117 preserved). He has further proved that on internal examination, pleural cavity showed 650 ml of fluid blood on both sides; both lungs were congested and edematous, bruised laceration seen along with the track of blood in both lungs as mentioned above, pericardium showed 570 ml of fluid blood, tearing of base of aorta seen on left and side and all organs were pale.
(138) The Autopsy Surgeon has proved that the time since death was within 6 to 12 hours prior to preservation in SGM Hospital Mortuary and the death was due to shock associated with damage for chest structures under injury no. 1 which was fresh and antemortem at the time of death and was sufficient to cause death in ordinary course of nature consequent to fire arm injury. He has also proved that they preserved viscera, blood stained gauze, clothes and yellow metallic bullet and handed over to the Investigating Officer. He has proved the detailed postmortem report in this regard which is Ex.PW25/A (running into four pages).
(139) The above Medical Evidence on record is compatible to the prosecution case to the effect that the death of the deceased Sumit was caused on account of firearm injury which was sufficient to cause death in ordinary course of nature.
State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 82 of 117 Forensic Evidence:
(140) The case of the prosecution is that after the Investigating Agency came to know of the spot of the incident i.e. Plot No. 7, Main Mubarakpur road, near Bus Stand Mubarakpur Dabas and the same was got inspected through the FSL Expert. Further, the various exhibits/ samples including the bullet recovered from the body of the deceased was preserved by the Autopsy Surgeon and were sent to the FSL for expert opinion. In this regard the prosecution is placing its reliance on the testimonies of the FSL Experts i.e. Chemical, Biology and Ballistics and the reports prepared by them.
Chemical Analysis Report:
(141) Coming first to the report relating to the viscera examination, Dr. Adesh Kumar (PW13) Senior Scientific Officer (Chemistry) has proved that one sealed wooden box sealed with the seal of SGMH Mortuary MANGOLPURI DELHI83 was received in his office on 19.12.2013 which was marked to him for chemical examination. On opening the parcel it was found containing Ex.1A (stomach pieces of small intestine with contents kept in a container), Ex.1B (pieces of liver, spleen and kidney kept in a container) and Ex.1C (blood sample, volume approx. 13.0ml. Kept in a container). He has proved that on chemical, microscope and TLC examination, metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 83 of 117 pesticides could not be detected in Ex.1A,1B and 1C and he prepared a detailed report in this regard which is Ex.PW13/A. (142) This report does not assist the prosecution in any manner nor does it incriminate the accused.
Biology/ Serological Reports:
(143) Coming next to the Biology and Serological reports, Ms L. Babyto Devi (PW19) has proved that on 27.11.2013 she went to Aman Vihar Police Station and examined the Hyundai Accent Car No. DL4CR3501 but no blood could be detected on the said car. Further, she has further proved that she then visited the spot of crime i.e. Plot No. 7, Main Mubarakpur Road, Near Bus stand Mubarakpur Dabas where no blood could be detected and her detail report in this is Ex.PW19/A. This report also does not assist the prosecution in any manner nor does it incriminate the accused.
(144) Further, Ms. Seema Nain (PW20) has proved that on 26.12.2013 two sealed parcels were received in their office duly sealed with the seal of "SGMH MORTUARY MANGOLPURI DELHI 83" in connected with the present case and the same were marked to her for DNA Examination. On opening the first parcel it was found to contain Ex.1a (one damp foul smelling pant/lower), Ex.1b (one damp foul smelling Tshirt), Ex.1c (one damp foul smelling shirt) and Ex.1d (one State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 84 of 117 cut/torn decomposing baniyan) and on opening the second parcel it was found to contain Ex.2 i.e. gauze cloth piece kept in polythene described as blood sample of the deceased. She has proved that on examination blood was detected on Ex.1a, 1b, 1c, 1d and 2. She has further proved that the above exhibits were subjected to DNA isolation and DNA was isolated from the source of Ex.1a, 1b, 1c and 2, however, DNA could not be isolated from the source of Ex.1d due to degradation. She has also proved that identified plus amplification kit (STR) was used for each of exhibits and data was analyzed by Gene Mapper IDx software and the male DNA profile was generated from the source of Ex.2, but DNA profile could not be generated from the source of Ex.1A, 1b and 1c due to degradation of sample. She has proved her detailed report in this regard which is Ex.PW20/A. (145) It is writ large that the DNA profile could not be generated from the exhibits but even otherwise, I fail to understand why the clothes of the deceased were sent for DNA examination and got matched with his own blood. It is natural that the same would be matching and it was not relevant, once the clothes i.e. exhibits were present on the body of the deceased itself. The prosecution has failed to explain why it became necessary to get this examination conducted, rather the Addl. PP has fairly conceded that it was irrelevant and not required under the given circumstances.
State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 85 of 117 Ballistic Report:
(146) Coming now to the report of the Ballistic Expert and to the testimony of Sh. V.R. Anand (PW22) who has proved that on 02.01.2014 four sealed parcels were received in the office and the parcel No. 1, 2 and 4 were sealed with the seal of RK and parcel No. 3 was sealed with the seal of "SGMH MORTUARY MANGOLPURI DELHI 83" and seals on the parcels were intact and as per the specimen seal.
(147) On opening the parcel No.1, it was found to contain one improvised pistol 7.65mm bore which was marked by him as Ex.F1 and on examination two bullets were found stuck inside the barrel of the Ex.F1 which were taken out and marked as EB1 and EB2; on opening the second parcel, it found to contain one 7.65mm cartridge case which was marked by him as Ex.EC1; on opening the parcel No. 3, it was found to contain one bullet which was marked by him as Ex.EB3 and on opening the parcel No. 4, it was found to contain three 7.65 mm cartridges for test fire. He has proved that on examination he found that the improvised pistol Ex.F1 was in working order and test fire conducted successfully and the 7.65mm cartridge case marked Ex.EC1 was a fired empty cartridges. The bullet marked EB1 to EB3 correspond to the bullets of 7.65 mm cartridges and three 7.65 mm cartridges sent for test firing were test fired through the improvised pistol Ex.F1. The test fired cartridges were marked as TC1 and TC3 and recovered bullets were marked as TB1 State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 86 of 117 to TB3. He has proved that the individual characteristic of firing pin and breech face marks present on EC1 and TC1 to TC3 were examined under comparison microscope and were not found identical, hence it was opined that the cartridge EC1 had not been fired through the improvised pistol Ex.F1. He has further proved that the individual characteristics of striation marks present on EB1 and on TB1 to TB3 were examined under comparison microscope and individual characteristics of marks present on EB1 and TB1 to TB3 were found identical. Further, the individual characteristics of striation marks present on EB2 and EB3 were examined under the comparison microscope and were found insufficient and hence no opinion could be given on the bullets marked Ex.EB2 and EB3, whether these had been fired through the improvised pistol marked Ex.F1 or not. He has also proved that Ex.F1/EC1, EB1 to EB3 were fire arms/ammunition as defined in the Arms Act, 1959 and his detailed report in this regard is Ex.PW22/A (running into three pages).
(148) It is writ large from the above Ballistic Report that the bullet (Ex.P5) recovered from the body of the deceased was not matching with the firearm got recovered by the accused Vijay @ Bhola and hence, the above ballistic report does not assist the prosecution in any manner.
State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 87 of 117 Ocular Evidence:
(149) 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. The eye witness account requires a careful independent assessment and evaluation for its credibility, it should not be adversely prejudged on the basis of other evidence. The ocular evidence has to be tested for its inherent consistency and inherent probability of the story, consistency of the account given by one witness with that given by the other witness held to be creditworthy, consistency with the undisputed facts, the 'credit' of the witnesses who performed in the witnessbox, their power of observation and it is only then that the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
(150) The brief facts of the case is that on 25.11.2013 at 9:30 PM at Plot No.7, Opposite Dr. Ambedkar Chaupal, Main Mubarak Road, Mubarak Pur Khass, Delhi the accused Vijay @ Bhola and Duraj @ Parva took the deceased Manna @ Sumit S/o Tara Chand in a room (belonging to the father of the accused Sunil @ Nanhe) where they both shot him dead with the firearm and thereafter the accused Vijay @ Bhola, Suraj @ Parva and Sunil @ Nanhe removed the dead body of Sumit from the spot of crime by keeping the same in the Dickey of Accent Car bearing No. State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 88 of 117 DL4CA3501 which was being driven by accused Sunil and threw the dead body of Sumit in Bawana Neher, to cause its disappearance with an intent to screen themselves from the legal punishment. In order to prove its case the prosecution is placing its reliance on the testimonies of Shashi Kumar Singh (PW21), Mohd. Wali Ullah @ Sheikh (PW27), Sanjay @ Amit (PW29) and Raj Kumar Yadav (PW30).
(151) Since the prosecution is placing its heavy reliance on the testimonies of Shashi Kumar Singh (PW21), Mohd. Wali Ullah @ Sheikh (PW27), Sanjay @ Amit (PW29), hence it is necessary for this Court to first determine whether what they have deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 89 of 117 evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.:
Krishnan Vs. State reported in AIR 2003 SC 2978).
(152) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons and one of the reasons is that they do not have courage to depose against habitual criminal apprehending threats to their life. A rustic or an illiterate witness may not be able to withstand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at times under the stress of cross examination, certain answers are snatched from him. When such a person is faced with an astute lawyer, there is bound to be imbalance and, hence minor discrepancies have to be ignored. Instances are not uncommon State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 90 of 117 where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State of Bihar reported in AIR 2002 SC 1965).
(153) Now applying the settled principles of law to the facts of the present case, I may observe that the most important witnesses of the prosecution i.e. Shashi Kumar Singh (PW21), Mohd. Wali Ullah @ Sheikh (PW27), Sanjay @ Amit (PW29), on whose statements the prosecution had initially placed its reliance, have all resiled from their earlier statements made to the police and have turned hostile on the aspect of the incident and their presence at the spot. Coming first to the testimony of Shashi Kumar Singh (PW21) the relevant portion of his testimony is as under:
"......... I am working in the office of Sunil @ Nanhe which is situated at Plot No. 7, Opposite Dr. Ambedkar Chaupal, Mubarakpur, Main Road. I used to open the office at 10.00AM and close the office on 7.308.00PM. On 21.11.2013 I had left the office in between 8.00 and 8.30PM after closing the same and went to my house.
Two police constables namely Sandeep and name of other I do not remember, came to my house alongwith Sanjay. Ct. Sandeep made inquiries from me whether I made a call to 100 number regarding the incident to which I had stated that I did not make any call to PCR. He noted down my mobile number and I had given my mobile number 9716601651. Ct. Sandeep verified my phone number from the State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 91 of 117 documents. My mobile number could not be matched thereafter I was asked to accompany them to the police station. Ct. Sandeep firstly took me to the plot no. 7 where police official Shubh Ram was present. Thereafter I was taken to the Police Post Prem Nagar where I was thorough interrogated by the police. I had stated to the police that I do not know anything else. Then SI Subh Ram told me that a murder has taken place at polot no.7 and asked me to tell as to what had happened in my presence. Since Nothing happened in my presence, therefore I could not tell anything regarding this case. Thereafter I was taken to the Police Station situated at Bawana where I remained sitting in the police Gypsey. Thereafter I was taken to Bawana Nahar where I was kept sitting in the Gypsey. Thereafter I was brought to the Police Station.
My signatures was taken on the site plan Ex.PW21/A at point A, in the police station. Accused Sunil was arrested from the Plot No.7 vide memo already Ex.PW14/A bearing my signatures at point A. The document Ex.PW21/B also bears my signatures at point A. I was interrogated by the police and the statement Ex.PW21/C bearing my signatures at point A. At this stage Ld. Addl. PP for the state requests to cross examine the witness as he is resiling from his earlier statement Ex.PW21/C made before the police.
Heard. Permission is granted.
XXXXXX by Ld. Addl. P P for the state.
I have not stated in my statement Ex.PW21/C that on 21.11.2013 at about 8.30PM I was sitting State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 92 of 117 alongwith my partner Sunil @ Nanhe. I have not stated in my statement Ex.PW21/C that accused Sunil was taking liquor in the room situated in the backside of the plot and after some time accused Vijay @ Bholu came along with his friend Sooraj @ Parva and Manna and went inside the room of Sunil. I have not stated in my statement Ex.PW21/C that accused Sunil on seeing Manna, Vijay @ Bholu and Sooraj came outside of the room and after some time I Sunil heard the sound of firing and on this accused Sunil went inside the room situated on the backside and found Manna with bullet injuries and was lying near the door of the room. I have not stated in my statement Ex.PW21/C that Sunil informed me that Vijay @ Bholu quarrel with Manna on the issue of money transaction and he had fired upon Manna. I have not stated in my statement Ex.PW21/C that I also went inside the room in which Manna was lying. I have not stated in my statement Ex.PW21/C that after some time one Accent car bearing no. DL 4C A 3501 came and the accused Sooraj @ Parva, Vijay @ Bholu and Sunil shifted the body of Manna in the dicky of the said Accent car and left the spot. I have not stated in my statement Ex.PW21/C that the aforesaid vehicle was being driven by accused Sunil and when they were about to leave the spot Sanjay and Sheikh also came their on motorcycle. I have not stated in my statement Ex.PW21/C that I narrated this incident to the father of Vijay @ Bholu namely Baldev and while leaving the spot all the three accused persons also threatening that if this incident is told to anybody, they will kill him and therefore we did not disclose this incident to the police. I have not State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 93 of 117 stated in my statement Ex.PW21/C that on 22.11.2013 in the morning I came to know that Sh. Baldev informed the police at 100 number and the accused Vijay @ Bhola had committed the murder of Manna with bullet injuries.
It is wrong that I have stated in my statement Ex.PW21/C that on 21.11.2013 at about 8.30PM I was sitting alongwith my partner Sunil @ Nanhe. It is wrong that I have stated in my statement Ex.PW21/C that accused Sunil was taking liquor in the room situated in the backside of the plot and after some time accused Vijay @ Bholu came alongwith his friend Sooraj @ Parva and Manna and went inside the room of Sunil. It is wrong that I have stated in my statement Ex.PW21/C that accused Sunil on seeing Manna, Vijay @ Bholu and Sooraj came outside of the room and after some time I Sunil heard the sound of firing and on this accused Sunil went inside the room situated on the backside and found Manna with bullet injuries and was lying near the door of the room. It is wrong that I have stated in my statement Ex.PW21/C that Sunil informed me that Vijay @ Bholu quarrel with Manna on the issue of money transaction and he had fired upon Manna. It is wrong that I have stated in my statement Ex.PW21/C that I also went inside the room in which Manna was lying. It is wrong that I have stated in my statement Ex.PW21/C that after some time one Accent car bearing no. DL 4C A 3501 came and the accused Sooraj @ Parva, Vijay @ Bholu and Sunil shifted the body of Manna in the dicky of the said Accent car and left the spot. It is wrong that I have stated in my statement Ex.PW21/C that the aforesaid State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 94 of 117 vehicle was being driven by accused Sunil and when they were about to leave the spot Sanjay and Sheikh also came their on motorcycle. It is wrong that I have stated in my statement Ex.PW21/C that I narrated this incident to the father of Vijay @ Bholu namely Baldev and while leaving the spot all the three accused persons also threatening that if this incident is told to anybody, they will kill him and therefore we did not disclose this incident to the police. It is wrong that I have stated in my statement Ex.PW21/C that on 22.11.2013 in the morning I came to know that Sh. Baldev informed the police at 100 number and the accused Vijay @ Bhola had committed the murder of Manna with bullet injuries.
I have not stated to the police in my statement Ex.PW21/PX1 that on 22.11.2013 I along with the police official and accused Sunil @ Nanhe reached at the place of incident and IO Inspector Rajesh Kumar prepared the site plan at my instance. I have not stated in my statement Ex.PW21/PX1 that accused Sunil @ Nanhe was arrested at my instance. It is correct that the arrest memo already Ex.PW14/A bears my signatures at point A. It is wrong to suggest that on 22.11.2013 I alongwith the police official and accused Sunil @ Nanhe reached at the place of incident and IO Inspector Rajesh Kumar prepared the site plan at my instance. It is incorrect to suggest that I have stated in my statement Ex.PW21/PX1 that accused Sunil @ Nanhe was arrested at my instance. It is correct that the arrest memo already Ex.PW14/A bears my signatures at point A. It is wrong to suggest that thereafter I had gone to Rohini court where IO met State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 95 of 117 me along with three accused namely Vijay, Sunil and Suraj and I had identified them as the same persons who had committed the murder of Sumit @ Manna on 21.11.2013. It is further wrong to suggest that I had given the statement Ex.PW29/PX2 and I had also given the name of accused persons in the said statement and now I am not giving the details and not giving the names of the accused persons deliberately in order to save the accused persons.
I can identify the accused Sunil and Bholu being resident of the same area. It is wrong to suggest that I am not giving the name of these persons along with accused Suraj @ Parwa and their involvement in this case deliberately in order to save them. It is correct that the names of the accused persons who are present in the court are Vijay @ Bhola, Sunil and Suraj but it is incorrect that I had given the names of these accused in my aforesaid statements as the assailants. It is incorrect to suggest that I am not attributing the role of these accused persons today as I have been won over by these accused persons being friendly relations with them and being residents of the same area.......".
(154) This witness has turned totally hostile and has stated that he had been detained by the police for three days and falsely shown as witness. In his crossexamination by the Ld. Defence Counsel he has stated that his signatures were taken on blank papers by the police while he was kept in the police captivity.
State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 96 of 117 (155) Now coming to the testimony of Mohd. Wali Ullah (PW27) who has also similarly resiled from the statement made to the police. The relevant portion of his testimony is as under:
"....... I am graphic designer by profession. I do not remember the exact date only 34 months back it was Friday. I had gone to offer the prayer. While I was going to Mosque one Ct. Sandeep alongwith Sanjay met me in the way and inquired my name from me as to whether am I Sheikh to which I had stated that I am Sheikh. Ct. Sandeep asked me to accompanied him to Police Station. I requested him to give me some time so that I may offer the prayer but he did not give me the time and told that I would have to go to the police station immediately. I accompanied them to the police station. I went to the police station. I was confined in the police station for about 3 days. During this period the information had come in the police regarding my missing and at that time I was sitting in the police station and I heard the voices on the wireless set. I had requested the constable to allow me to make a call to my house since my parents were worried about my being missing, but the police official present in the police station did not allow me to make a call. The aforesaid call had come in the police station, when one day has passed and after about two days and thereafter I was relieved from the police station in the evening hours. I do not know anything else except the aforesaid facts.
At this stage Addl. PP request to cross examine this witness.
Heard. Request allowed.
XXXXXXX by Add. PP for the State.
State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 97 of 117 I was interrogated by the police but I do not remember whether my statement was recorded by the police or not. The statement ExPW27/PX1 is read over and explained to the witness which he denied from top to bottom having been given to the police. I have not stated in my statement Ex.PW27/PX1 that on 21.11.2013 I alongwith my friend Sanjay were present in the office of Vijay @ Bholu and at the same time a phone had come on the mobile of Sanjay. I have not statement in my statement Ex.PW27/PX1 that Sanjay told me to take the vehicle from the house of Sonu and park the same at his office, therefore I went to my house on my motorcycle and on my asking Sonu Dabas had brought his car from his house and left the same at the office. I have not stated in my statement Ex.PW27/PX1 that at the same time Suraj @ Parva came there and started saying that Vijay @ Bholu had called the vehicle and left with the vehicle. I have not stated in my statement Ex.PW27/PX1 that I got suspicious and therefore I and Sanjay had reached at the plot of Sunil where Vijay, Sunil and Sooraj were ready to leave the plot in the Accent Car bearing no. DL 4C A 3501. I have not stated in my statement Ex.PW27/PX1 that Sanjay asked Vijay as to what happened to which Vijay told him that he had killed Munna and they were going to conceal his dead body by keeping the same in the dicky of the said car and thereafter they went away with the body and the said car. I have not stated in my statement Ex.PW27/PX1 that Shashi was also present at that time and thereafter I, Sanjay and Shashi went to the house of Vijay and narrated the entire incident to Sh. Baldev the father of of Vijay.
State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 98 of 117 It is wrong to suggest that I have stated in my statement Ex.PW27/PX1 that on 21.11.2013 I alongwith my friend Sanjay were present in the office of Vijay @ Bholu and at the same time a phone had come on the mobile of Sanjay. It is wrong to suggest that I have stated in my statement Ex.PW27/PX1 that Sanjay told me to take the vehicle from the house of Sonu and park the same at his office therefore I went to my house on my motorcycle and on my asking Sonu Dabas had brought his car from his house and left the same at the office. It is wrong to suggest that I have stated in my statement Ex.PW27/PX1 that at the same time Suraj @ Parva came there and started saying that Vijay @ Bholu had called the vehicle and left with the vehicle. It is wrong to suggest that I have stated in my statement Ex.PW27/PX1 that I got suspicious therefore I and Sanjay reached at the plot of Sunil where Vijay, Sunil and Sooraj were ready to leave the plot in the Accent Car bearing no. DL 4C A 3501. It is wrong to suggest that I have stated in my statement Ex.PW27/PX1 that Sanjay asked Vijay as to what happened to which Vijay told him that he had killed Munna and they were going to conceal his dead body by keeping the same in the dicky of the said car and thereafter they went away with the body and the said car. It is wrong to suggest that I have stated in my statement Ex.PW27/PX1 that Shashi was also present at that time and thereafter I, Sanjay and Shashi went to the house of Vijay and narrated the entire incident to Sh. Baldev the father of Vijay.
It is wrong to suggest that I am not giving the aforesaid facts deliberately in order to save the accused persons. Is is further wrong to suggest that the State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 99 of 117 aforesaid accused persons are known to me therefore I am not giving the details and not deposing against them in order to save them.
At this stage another statement Ex.PW27/PX2 is read over and explained to witness who denied having made so before police. It is wrong to suggest that I had come to Rohini Courts earlier where IO met me and at that time I had seen three boys namely Vijay @ Bholu, Sunil @ Nanha and Suraj @ Parva and I had identified them correctly as the same persons who were involved in the order of Sumit @ Manna which happened on the night of 21.11.2013. It is wrong to suggest that I had identified the aforesaid three boys in Rohini Court and I am not giving this fact today deliberately in order to save them.
At this stage the accused persons have been put to the witness to which he has identified them correctly as the accused Vijay @ Bholu, Sunil @ Nanha and Sooraj @ Parva are the resident of our locality. It is wrong to suggest that theses are the same boys whose names I had given in my statement Ex.PW27/PX1 and Ex.PW27/PX2 or that I am not giving the details and deposing against these persons deliberate. It is wrong to suggest that they are the same boys whose names I have given to the police and to whom I had identified in the court therefore their names come in my aforesaid two statements. It is further wrong to suggest that I have been won over by the accused persons therefore I am not deposing against them....."
(156) It is writ large that the witness Mohd. Wali Ullah (PW27) has turned totally hostile not having supported his earlier version on the State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 100 of 117 aspect of the incident and on the aspect of the accused being the author of the crime. He has not supported the prosecution case at all. (157) Coming next to the testimony of Sanjay @ Ajit (PW29), who too has not supported the earlier version given by him to the Police. The relevant portion of his testimony is as under:
"........ I was working in the office Vijay @ Bholu which is situated at main Mubarakpur Bus stand. Vijay @ Bholu is a property dealer and his office is in the name of "OM Sai Properties". Last year probably it was the month of December and it was 22nd day I opened the office in the morning. One constable namely Sandeep came to me who inquired from me, my name to which I stated that I am Sanjay @ Ajit.
He told me that I was called by the SHO in the police station. SHO asked me about the whereabouts of Sheikh and Shashi to which I replied that they might be at their residence. I was sent with the said Constable to the house of Sheikh and while we were going to the house of Sheikh, he met us on the way itself and I pointed him out to the constable. Thereafter Ct. Sandeep inquired from Sheikh regarding his identify and he confirmed the same on which Sheikh also accompanied us and we went to the house of Shashi. We met Shashi at his house and he was asked by the constable to accompany him to the Police Station and thereafter we all i.e. myself, Shiekh and Shashi accompanied Ct. Sandeep to the police station.
In the police station SHO informed me that murder of one person with the name of Munna had been committed in a plot near the road. He then asked State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 101 of 117 me as to whether I was doing the work of property dealing. He then made inquiries about Nanha, Sooraj and Vijay @ Bhola but I did not tell him anything and thereafter I was detained in the police station for three days, after which I was released. I was made to sign some documents.
On court question: I have studied to class 6th. I cannot read or write Hindi properly.
At this stage, on request of Ld. Addl. PP he is permitted to cross examine the witness on the version given by him to the police.
XXXXXX by Ld. Addl. PP for the state.
It is correct that police interrogated me but no statement was recorded. It is wrong to suggest that I had made a statement to police vide Ex.PW29/PX1 wherein I had stated to the police that I and Sheikh were present in the office of Vijay @ Bholu and at the same time a phone had come on my mobile.
I have not stated in my statement Ex.PW29/PX1 that I told Sheikh to take the vehicle from the house of Sonu and park the same at his office, therefore Sheikh went to his house on motorcycle and on his asking Sonu Dabas had brought his car from his house and left the same at the office.
I have not stated in my statement Ex.PW29/PX1 that at the same time Suraj @ Parva came there and started saying that Vijay @ Bholu had called the vehicle and left with the vehicle. I have not stated in my statement Ex.PW29/PX1 that I got suspicious and therefore I and Sheikh reached at the plot of Sunil where Vijay, Sunil and Sooraj were ready to leave the plot in the Accent Car bearing no. DL 4C A 3501. I have not stated in my statement State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 102 of 117 Ex.PW29/PX1 that I asked Vijay as to what had happened to which Vijay told me that he had killed Munna and they were going to conceal the dead body by keeping the same in the dicky of the said car and thereafter they went away with the body and the said car. I have not stated in my statement Ex.PW29/PX1 that Shashi was also present at that time and thereafter I, Sheikh and Shashi went to the house of Vijay and narrated the entire incident to Sh. Baldev the father of Vijay.
It is wrong to suggest that I have stated in my statement Ex.PW29/PX1 that on 21.11.2013 I alongwith Sheikh were present in the office of Vijay @ Bholu and at the same time a phone had come on the mobile of Sanjay. It is wrong to suggest that I have stated in my statement Ex.PW29/PX1 that I told Sheikh to take the vehicle from the house of Sonu and park the same at his office, therefore Sheikh went to his house on motorcycle and on his asking Sonu Dabas had brought his car from his house and left the same at the office. It is wrong to suggest that I have stated in my statement Ex.PW29/PX1 that at the same time Suraj @ Parva came there and started saying that Vijay @ Bholu had called the vehicle and left with the vehicle. It is wrong to suggest that I have stated in my statement Ex.PW29/PX1 that I got suspicious therefore I and Sheikh reached at the plot of Sunil where Vijay, Sunil and Sooraj were ready to leave the plot in the Accent Car bearing no. DL 4C A 3501. It is wrong to suggest that I have stated in my statement Ex.PW29/PX1 that I asked Vijay as to what happened to which Vijay told him that he had killed Munna and they were going to conceal his dead body State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 103 of 117 by keeping the same in the dicky of the said car and thereafter they went away with the body and the said car. It is wrong to suggest that I have stated in my statement Ex.PW29/PX1 that Shashi was also present at that time and thereafter I, Sheikh and Shashi went to the house of Vijay and narrated the entire incident to Sh. Baldev the father of Vijay.
It is wrong to suggest that I am not giving the aforesaid facts deliberately in order to save the accused persons. It is further wrong to suggest that the aforesaid accused persons are known to me therefore I am not giving the details and not deposing against them in order to save them.
At this stage another statement Ex.PW29/PX2 is read over and explained to witness who denied having made so before police. It is wrong to suggest that I had come to Rohini Courts earlier where the IO met me and at that time I had seen three boys namely Vijay @ Bholu, Sunil @ Nanha and Suraj @ Parva and I had identified them correctly as the same persons who were involved in the murder of Sumit @ Manna which happened on the night of 21.11.2013. It is wrong to suggest that I had identified the aforesaid three boys in Rohini Court and I am not giving this fact today deliberately in order to save them.
At this stage the accused persons have been put to the witness to which he has identified them correctly as the accused Vijay @ Bholu, Sunil @ Nanha and Sooraj @ Parva are the resident of same locality. It is wrong to suggest that these are the same boys whose names I had given in my statement Ex.PW29/PX1 and Ex.PW29/PX2 and I am not giving the details and deposing against these persons deliberately. It is State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 104 of 117 wrong to suggest are the same boys whose names I have given to the police and to whom I had identified in the court therefore their names come in my aforesaid two statements. It is further wrong to suggest that I have been won over by the accused persons therefore I am not deposing against them.
On Court Question: At the time of incident I was using a mobile number 9910402439 Vol. I have informed about my mobile number to the police. At that time Sheikh was using mobile number 9873038536 and Vijay Bhola was having a landline number 01164655545 and I think he never possessed any mobile because I do not have any of his mobile numbers. Vijay @ Bhola is known to me for last many years as we are both residing in the same area......"
(158) All these three star witnesses of the prosecution have neither supported the version of the prosecution of being eye witnesses to the incident nor they have associated themselves in any manner with the accused persons. In fact they have totally resiled from their earlier versions and turned completely Hostile to the prosecution case. (159) Further, the prosecution also placed its reliance on the testimony of Raj Kumar Yadav (PW30) who was the employee of the Petrol Pump where the accused had allegedly gone by pushing the car and purchased petrol for Rs.500/. It is the case of the prosecution that while the accused were shifting the dead body of the deceased from the scene of crime in Hyundai Accent Car No. DL4CR3501 it stopped and thinking that its fuel / petrol had finished, they had pushed the vehicle to the State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 105 of 117 nearby petrol pump and got filled up the petrol worth Rs.500/ despite which the vehicle did not start. Raj Kumar Yadav (PW30) has proved this version of the prosecution but does not connect the accused with the said incident. He states that three boys had come pushing their vehicle but he is unable to identify these boys or the accused nor has been able to give the details and make or model of the car or its colour. The relevant portion of his testimony is as under:
".......... I am working at Bharat Petroleum outlet at Bawana. I do not remember the exact date but about six months back my duty was from 2.00OPM till 6.00AM next morning. In those days I was handling the cash collected between 2.00 PM to 6.00AM daily. At about 10.30PM I was filling diesel in the truck when three persons came to the petrol pump pushing their car and the guard told me to fill the petrol in the said car first. "Teen larka gari ko dhakka marte aye, mujhe guard ne kaha pehle inki gaari mein tel daal do." On Court question: It was dark so I did not focus the colour or the make of the car but I think it was offwhite colour.
One of the boys told me that "500 ka tel daal do" after which I put petrol in the car worth Rs.500/ . The boys then started the car again but it did not start on which the three persons on the duty on petrol pump pushed the car outside the petrol pump. (petrol pump kae bahar car ko dhakka maar diya). Even then the car did not start. One of the boys who were sitting inside the car, paid me Rs.500/.
I cannot identify the said boy. On court State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 106 of 117 question: there are no CCTV cameras installed at the petrol pump.
At this stage the witness has not been able to identify any of the persons who had come to the petrol Pump.
At this stage the permission is granted to the Ld. Addl. PP to specifically put the accused persons to the witness.
All the accused namely Vijay @ Bhola, Sunil and Suraj @ Parva have been put to the witness specifically as those who had come to the petrol pump while pushing the car make Accent but the witness has not be able to identify any of the above accused saying that he did not focus any of the boys who had come.
(160) It is writ large that the testimony of Raj Kumar Yadav (PW30) does not help the prosecution in any manner nor does it connect the accused with the prosecution version of having shifted the dead body which aspect does not stand established. He has also explained that no CCTV cameras had been installed at the Petrol Pump.
(161) Here, I may observe that the registered owner of this vehicle i.e. Hyundai Accent Car No. DL4CR3501 is one Anil Kumar (PW28) who has proved that he had purchased this car to one person who is a resident of Swarn Park Nangloi for Rs.2,90,000/ and thereafter he sold the said car to one Manjeet Dabas in the year 2012 for Rs.80,000/ and presently this car has been purchased by Sonu Dabas. He has identified the said car which is Ex.P1. Further, Sonu Dabas (PW18) has admitted State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 107 of 117 that he had purchased this car from Rajnish Khokra for Rs.70,000/ and has further proved that he had changed the alphabet 'R' to 'A' on the number plate in order to avoid the traffic challan. According to him, on 21.11.2013 he had parked the aforesaid car at the office of Om Sai Property, Main Bus Stand , Mubarakpur Road which was the office of Vijay who is the son of his chacha/ uncle Baldev Singh.
(162) Further, the Forensic Evidence proves that no blood was detected from the said car nor any incriminating material has been found in the said car so as to confirm the version of he prosecution regarding the use of this car in shifting of body to the Canal. Raj Kumar Yadav (PW30) has not only turned hostile on the point of identity of the accused but also on the make and model of the car. Except for the disclosure statements of the accused themselves that they had used this car while shifting the dead body to Bawana Neher which disclosure statements are inadmissible in evidence, there is no other material on record to connect them.
(163) This being the background, I hold that the ocular and other circumstantial evidence as above is insufficient to incriminate the accused Vijay @ Bhola, Sunil @ Nanha and Suraj @ Parva.
Arrest of the accused - their Disclosure Statements:
(164) The case of the prosecution is that the incident in question had taken place on the plot of Dharamveer who is the father of accused Sunil @ Nanhe. On the date of the incident i.e. 21.11.2013 at about 8:30 State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 108 of 117 PM the accused Vijay @ Bhola and Suraj @ Parva had come to the said plot along with their friend Manna @ Sumit. The nearby residents i.e. Shashi Kumar Singh, Mohd. Wali Ullah @ Sheikh and Sanjay @ Amit heard the noise of a firing shot on which they went inside the room where they saw Manna @ Sumit lying near the door and he was shot at.
Pursuant to the same information was given to Baldev Singh the father of accused Vijay @ Bhola who reached the spot and make a call at 100 number to the police.
(165) In this regard, Baldev Singh (PW23) has admitted that he is the father of accused Vijay @ Bhola and it was he who made a call at 100 number but he has denied having told to the police that on 21.11.13 at about 10.15 PM Sanjay, Sashi and one Sheikh who were already known to him came to his house and informed him that his son Vijay @ Bholu had fired against one Nanha in the plot of Dharamveer. Here, I may observe that the material witnesses i.e. Shashi Kumar Singh (PW21), Mohd. Wali Ullah @ Sheikh (PW27) and Sanjay @ Amit (PW29) have all turned hostile on the incident and as regards their presence at the spot of the incident. Dharamveer (PW24) the father of accused Sunil @ Nanha has proved that he is owner of the plot in question and in this regard has placed on record the ownership documents which are Ex.PW24/A collectively. Here, I may observe that the only evidence on record to indicate that the incident in question had taken place at Plot No. 7, Main State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 109 of 117 Mubarakpur road, near Bus Stand Mubarakpur Dabas is the disclosure statements of the accused persons since the Forensic Expert Ms. L. Babyto Devi (PW19) has also proved that the no blood was detected at Plot No. 7, Main Mubarakpur Road, near Bus Stand Mubarakpur Dabas. Therefore, under these circumstances, there is nothing on record to confirm and prove that this plot i.e. Plot No. 7, Main Mubarakpur Road, near Bus Stand Mubarakpur Dabas was the place where the crime had been committed. Further, it is the case of the prosecution that at the instance of Shashi Kumar Singh the accused Sunil @ Nanja was apprehended and pursuant to his disclosure statement the accused Sunil @ Nanha also got recovered the Accent car bearing No. DL4CA3501 and then got recovered the dead body of the deceased Sumit from near Bawana Neher (which is also called Bawana Neher) which dead body was partly submerged in water. It is writ large that the dead body which was partially submerged was at a place which was accessible, open and visible to all. The dead body was identified by Ms. Malini Sharma (PW16) who the Mausi of the deceased and Amit (PW17) brother of the deceased who have confirmed that the said body was of the deceased and when they went to the spot it was partially submerged. Hence under the given circumstances the possibility of the presence of the dead body being already found at the spot cannot be ruled out.
(166) It is further the case of the prosecution that on 24.11.20103 at the instance of accused Sunil @ Nahe one empty cartridge was recovered State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 110 of 117 from the spot which empty cartridge was then taken into possession vide memo Ex.PW15/C. Pursuant to his supplementary disclosure statement the accused Sunil @ Nanhe then led the police team to NarelaBawana Road, near Hanuman Mandir towards Sonepat from where he got recovered one pistol with magazine from the bushes which pistol along with the magazine was taken into possession vide memo Ex.PW15/E. In this regard the prosecution has placed its reliance on the testimonies of HC Rajesh (PW15), SI Shubh Ram (PW31) and Inspector Rajesh (PW32). (167) I have gone through the testimonies of these witnesses and I may observe that it has come in the crossexamination of these witnesses that no photographs of the spot of recovery has been taken despite the availability of the camera. Further, no public witness was joined despite the availability. After the arrest of accused Sunil @ Nanhe the police team was aware that the accused was taking them to the Bawana Neher for purposes of recovery of the dead body. Why then no arrangements for taking the photographs has been done? Why no public witnesses were joined in the recovery proceedings? HC Rajesh (PW15) has admitted in his crossexamination that the mobile phone of the Investigating Officer had the facility of camera.
(168) A very serious doubt is created in the mind of the Court with regard to the recovery of the empty cartridge case outside the room where the incident had alleged by the police taken place and that too after two State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 111 of 117 days of the incident which appears to be suspicious. If the scene of crime was cleaned (as per the case of the prosecution) then there is no reason why the accused would leave this empty cartridge at the spot. I may observe that the said place is open and accessible to public and anybody would have planted the same. Same is the case with the dead body of the deceased. The place from where the dead body was recovered is also an open place accessible to general public. In this regard the Hon'ble Supreme Court in the case of Trimbak Vs. State of Madhya Pradesh reported in AIR 1954 SC 39 held that:
"........ The fact of recovery does not conclusively prove that the accused was in possession of these articles when the fields from where the recovery was made, was an open one and accessible to all and sundry. This fact of recovery is compatible with the circumstance of somebody else having placed the articles there.
(169) Also, in the case of Mani Vs. State of Tamil Nadu reported in 2008 AIR (SC) 1021 it has been held that:
"....Where the discovery of the relevant articles have been made from the open ground though under the bushes, that too after more than 10 days of the incident, such discovery would be without any credence...."
(170) This being the background, the only evidence on record is the alleged recovery of dead body of the deceased Sumit, recovery of State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 112 of 117 empty cartridge case from outside the room and the recovery of pistol at the instance of accused Sunil @ Nanhe (which FSL does not connect with the led recovered from the body of the accused) which does not establish the guilt of the accused beyond reasonable doubt. Here, I may observe that the prosecution has not been able to connect the pistol allegedly recovered at the instance of Sunil and the cartridge case recovered from outside the room. The recovery of the dead body at the instance of the accused Sunil @ Nanhe is a very weak piece of evidence and it will not be safe to rely upon this evidence to hold it against the accused. (171) In view of the above, I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Vijay @ Bhola, Sunil @ Nane and Suraj @ Parva beyond reasonable doubt and hence benefit of doubt is being to them.
FINAL CONCLUSION:
(172) In the case of Sharad Birdhichand SardavsState of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. 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;
State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 113 of 117
2. 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;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. 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.
(173) Applying the settled principles of law to the facts of the present case, it is evident that the identity of the accused Vijay @ Bhola, Suraj @ Parva and Sunil @ Nanhe stand established being residents of the same village as that of the deceased. It stands established that the death of the deceased Sumit was caused on account of firearm injury which was sufficient to cause death in ordinary course of nature but the prosecution has however not been able to prove and substantiate the allegations against the accused Vijay @ Bhola, Suraj and Sunil @ Nanhe of having committed the murder of Sumit at Plot No. 7, Main Mubarakpur road, near Bus Stand Mubarakpur Dabas and then shifted the dead body of the deceased to Bawana Neher in an Accent Car bearing No. DL4CR3501 where they threw the dead body of the deceased. The Forensic Evidence State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 114 of 117 on record establishes that no blood could be detected on the abovesaid car nor any blood spots were found at the alleged place of incident i.e. Plot No. 7, Main Mubarakpur road, near Bus Stand Mubarakpur Dabas. The Ballistic Report shows that the bullet recovered from the body of the deceased was not matching with the firearm allegedly got recovered by the accused Vijay @ Bhola. The alleged eye witnesses to the incident have not supported the prosecution version nor the alleged recovery of the dead body at the instance of the accused Sunil @ Nanhe, which is a very weak piece of evidence, does not inspire confidence of this Court. (174) Therefore, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the guilt of the accused persons. The materials brought on record by the prosecution are insufficient so as to hold that each of the accused namely Vijay @ Bhola, Suraj @ Parva and Sunil @ Nanhe was guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused. Crucially, the material and evidence on the record do not bridge the gap between "may be true" and must be true" so essential for a court to record a State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 115 of 117 finding of guilt of an accused, particularly in cases based on circumstantial evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Vijay @ Bhola, Suraj @ Parva and Sunil @ Nanhe, beyond reasonable doubt and hence, benefit of doubt is being given to them who are acquitted of the charges under Section 201/34 Indian Penal Code. Further, the accused Vijay @ Bhola and Suraj @ Parva are acquitted of the charges under Section 302/34 Indian Penal Code.
(175) File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 14.10.2014 ASJ (NW)II: ROHINI
State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 116 of 117
State Vs. Vijay @ Bhola etc.
FIR No. 578/13
PS Aman Vihar
14.10.2014
Present: Addl. PP for the State.
All three accused are in JC with Sh. Anwar Ahmed Khan, Advocate.
Heard oral arguments. Be listed for orders at 4:00 PM.
(Dr. Kamini Lau)
ASJ/NWII, Rohini/14.10.2014
4:00 PM
Present: Addl. PP for the State.
All three accused are in JC with Sh. Anwar Ahmed Khan, Advocate.
Vide my separate detailed judgment dictated and announced in the open court but not yet typed, the accused Vijay @ Bhola, Suraj @ Parva and Sunil @ Nanhe have been acquitted of the charges under Section 201/34 Indian Penal Code. Further, the accused Vijay @ Bhola and Suraj @ Parva have been acquitted of the charges under Section 302/34 Indian Penal Code. The accused are in Judicial Custody. They be released if not required in any other case.
File be consigned to Record Room.
(Dr. Kamini Lau) ASJ/NWII, Rohini/14.10.2014 State Vs. Vijay @ Bhola Etc., FIR No. 578/13, PS Aman Vihar Page No. 117 of 117