Delhi District Court
As K.T. Palanisamy vs . State Of Tamil Nadu, Air 2008 Sc 1095 on 12 August, 2011
1
THE COURT OF V.K. BANSAL : SPECIAL JUDGE : NDPS
ADDL. SESSION JUDGE : ROHINI COURTS : DELHI
IN THE MATTER OF :
SC No.122/08
FIR No.202/08
PS Saraswati Vihar
U/s.302 IPC
State
Versus
1. Netrapal
s/o. Dulichand
r/o. A69, Krishna Vihar,
Sultan Puri,
Delhi
2. Manoj
s/o. Raghubir Singh
r/o. P49, Sharma Colony,
Budh Vihar,
PhaseII,
Delhi
3. Zaheer Ahmed
s/o. Chote Khan
r/o. C3/147, Sultan Puri,
Delhi
4. Afzal
s/o. Abdul Mobin
FIR NO.107/10
Page
1
of
43
2
r/o. 4002, Gali Barna,
Sadar Bazaar,
Delhi
5. Azaz Ahmed @ Raju
s/o. Ashfaqu
r/o. D32, Harsh Dev Park,
Budh Vihar,
PhaseII,
Delhi
6. Parvinder Singh @ Bittoo
s/o. Jaswant Singh
r/o. C3/474, Sultan Puri,
Delhi
7. Alisher
s/o. Bismillah
r/o. N38A/211,
CD Park,
Jahangir Puri,
Delhi
Date of Receipt : 19.09.2008
Date of Conclusion of arguments: 25.07.2011
Date of Decision : 12.08.2011
JUDGMENT :
1. On 21.04.2008, at about 8.20 PM, Police Control Room received information that at Kohat Metro Station, near MM Public School, three FIR NO.107/10 Page 2 of 43 3 persons are lying in injured condition in a car bearing no. DL8CS 0828. This information was flashed and DD no.15B was recorded at PS Saraswati Vihar. Police came into action and reached the spot, there they came to know that injured had already been removed to Max Hospital. No eye witness met them at the spot. Thereafter, Inspector P.P. Singh, leaving SI Rajiv Shah and Ct. Ashok to protect the site, went to Max Hospital alongwith staff. In the hospital, he found Sandeep admitted in the hospital and doctor declared him unfit for statement. Raghubir Prasad and Pawan Kumar were also found admitted in the hospital, but the doctors declared them brought dead. All the injured were having gunshot injuries. No eye witness met him even in the hospital. He left SI Rajiv Ranjan and Ct. Harkesh in Max Hospital and returned to the spot. On the spot, the windowpane of the driver side of the car bearing no. DL8CS0828 was found broken. There was blood on the body as well as on the seats of the the car. There was a bullet mark on the driver side door of the car. Eight empty shells were found inside and outside the car. Crime Team was called and scene of crime was photographed. The exhibits were seized. SI Rajiv Ranjan also collected some exhibits at Max Hospital in sealed condition, which were also taken into police possession. Postmortem on the dead body of Raghubir Prasad and Pawan Kumar Mittal was conducted at BJRM Hospital. The exhibits, which were sealed during postmortem, were also seized. Sandeep died during treatment on 27.04.2008. Postmortem on his body was also got FIR NO.107/10 Page 3 of 43 4 conducted. The car bearing no. DL8CS0828 was also got examined from the forensic experts. During investigation, Netrapal, who was working in the godown of Sandeep Mittal was interrogated and he confessed about the conspiracy hatched for the commission of offence and at his instance, other accused persons were apprehended. There was recovery of the looted amount from the accused persons. Call details of the mobile phone used by the accused persons during the commission of offence were also collected. Accused Shamsuddin, Amir and Pava could not be arrested. Initially, accused Ali Sher was also not arrested, but later on he was arrested and his supplementary chargesheet was filed. Ld. M.M. after complying the provisions of Section 207 Cr.PC, committed the case to the Sessions Court, as the offence punishable U/s.302 IPC is exclusively triable by the Sessions Court.
2. All the accused were charged for the offences punishable U/s.120B/395 R/w. Section 120B IPC and U/s.396 R/w. Section 120B IPC, to which they pleaded not guilty and claimed trial. Thereafter, the case was fixed for the prosecution evidence.
3. Prosecution in order to bring home the guilt of accused, examined 46 witnesses.
4. Sh. Lalit Mohan Mittal was examined as PW1. He identified the dead body of his cousin Pawan Mittal and proved his statement recorded to this effect as Ex. PW1/A and also the document Ex. PW1/B, vide which the dead body of Pawan Mittal was handed over to his father FIR NO.107/10 Page 4 of 43 5 Sh. Dhani Ram Mittal.
5. Sh. Dhani Ram Mittal was examined as PW2. He proved his statement regarding identification of the dead body of his son Pawan Mittal as Ex. PW2/A and document as Ex. PW2/B regarding handing over the dead body of his son Pawan Mittal to him.
6. Sh. Pawan Mittal was examined as PW3. He proved his statement as Ex. PW3/A regarding identification of the dead body of his uncle Raghubir Mittal and his dead body handed over to PW3 vide memo Ex. PW3/B.
7. Statement of Sh. Madan Mohan Mittal is also to the same effect.
8. Sh. Umed Singh was examined as PW5. He was father of Sandeep.
He stated that Sandeep was driver with Sh. Mittal. On 21.04.2008, he received a telephonic call that his son has received bullet injury. He went to Max Hospital, where his son was admitted. His son was shifted to AIIMS, where he died on 27.04.2008. He identified the dead body of his son, vide memo Ex. PW5/A and also received the dead body of his son vide memo Ex. PW5/B.
9. Sh. Hoshiar Singh was examined as PW6. He visited the shop of Rabhubir Mittal on 21.04.2008 at about 7.00 PM. He remained with him for about half an hour. At about 7.45 PM, driver of Raghubir Mittal brought the car and thereafter, Rabhubir Mittal alongwith his nephew Pawan Mittal boarded the car bearing no. DL8CS0828, white colour I10 and they went away. Next day, he came to know that somebody had fired at Raghubir Mittal, Pawan Mittal and their driver and that FIR NO.107/10 Page 5 of 43 6 Raghubir Mittal and Pawan Mittal had died. His testimony has gone unchallenged and uncontroverted.
10.Sh. Rajkumar was examined as PW7. He deposed that he was working with Sh. Sanjeev Mittal at his godown of shoes at Rithala. Earlier, he was working in the factory of Sh. Sanjeev Mittal at Rithala as Supervisor. His duty was to mark the attendance of labour and to supervise the working by them. The incident occurred on 21.04.2008. At the time of incident, Netrapal was working in the factory and after the incident, Netrapal did not return till 28.04.2008. He returned to his duty on 28.04.2008. Police made inquiries from all the labourers, including Netrapal. After inquiry, police took away Netrapal. The witness correctly identified Netrapal. He also stated that one Manoj, who was earlier working at the shop of Sanjiv Mittal, once came to meet Netrapal at the factory, as meeting was not allowed at the factory, he met Netrapal outside the factory. He also identified Manoj. He also stated that Manoj visited the factory twice or thrice and at the time of one of such visit, Manoj was also accompanied by another person. On inquiry, Netrapal told him that the other person was the Jija of Manoj and his name was Raju. He handed over the attendance register to the police, proved the same as Ex. PW7/A and also proved the seizure memo as Ex. PW7/B. He was led by Ld. Addl. PP regarding the identification of Raju @ Azaz Ahmed, but even on the pointing out by Ld. Addl. PP, the witness said that he cannot say if the person pointed out to him is the same person, who had come to meet FIR NO.107/10 Page 6 of 43 7 Netrapal alongwith Manoj. During cross examination, he stated that he does not have any document to show that he was working as Supervisor in the factory of Sanjeev Mittal at Rithala. No public person entered the factory when police came to make inquiries on 28.04.2008. There were other factories in Rithala, but police did not call anybody from the nearby factory. It is admitted that the register Ex. PW7/A does not bear his signature. He stated voluntarily that it is in his handwriting. It is also admitted that the register Ex. PW7/A also does not bear the signature of Netrapal. He admitted that some of the front pages of register had been torn. He explained that when Sanjeev Mittal used to clear the wages, he used to tear those pages. He stated that he cannot say the exact date and time when Manoj came to meet Netrapal. He denied the suggestion that Manoj did not come to meet Netrapal at factory. He also denied the suggestion that Manoj was not working at the shop at Inderlok.
11.Sh. Praveen Mittal was examined as PW8. He deposed that on 21.04.2008, he was at home. At about 07.02 PM, his brother Pawan Mittal telephoned him and told him that he was returning home. At about 7.457.50 PM, while he was strolling outside his house, he noticed his aunt coming towards his house. He asked her as to what is the matter and she told that vehicle of Sanjeev had met with an accident and driver had sustained injuries. In the meanwhile, Dhani Ram Mittal, his uncle came in the vehicle and asked him to sit in the car. They also took Sanjeev Mittal with them. They stopped their FIR NO.107/10 Page 7 of 43 8 vehicle near MM Public School and noticed the car of Sanjeev Mittal and they also noticed some rush near that car. They all reached near the car of Sanjeev Mittal and noticed Pawan and Rabhubir Mittal on the rear seat and blood was oozing from their bodies. Dhani Ram Mittal also called his son Lalit Mohan Mittal. They removed Pawan and Raghubir Mittal to Max Hospital. In the hospital, doctors informed that they had sustained bullet injuries and they are no more.
12.Sh. Sanjeev Mittal was examined as PW9. He deposed on the same lines as deposed by PW8. He also deposed that in the hospital, he came to know that a bag containing money had also been snatched and Sandeep was driving the car in which his father and cousin were travelling. He stated that after some days, he came to know that driver had also died.
13.Sh. Surender Singhal was examined as PW10. He stated that Pawan Mittal was his brother in law. On 01.05.2008, he received a telephone call from PS that police wanted to check the shop of Pawan Mittal situated at Inderlok. He took the keys of the shop and reached the shop alongwith Inspector P.P. Singh. From the shop, Inspector P.P. Singh seized the cash register Ex. PW10/B, vide memo Ex. PW10/A. The last entry in the register was dated 21.04.2008 and according to which the balance amount was Rs.3,64,159.44/. During cross examination, he stated that cash register does not bear his initials and is also not in his hand. He denied the suggestion that the cash register was manipulated at the instance of police and that it also does FIR NO.107/10 Page 8 of 43 9 not bear the signature of Sh. Pawan Mittal.
14.Sh. Sudhir Gupta was examined as PW11. He deposed that accused Afzal was having the shop of video CD in the street situated on the back side of his house and he used to talk with him on the mobile phone. He was cross examined by Ld. Addl. PP regarding Azaz Ahmed, but the witness stated that he does not know Azaz Ahmed, or if number 9213045525 was of Azaz Ahmed or not.
15.Dr. K. Goyal was examined as PW12. He proved the postmortem report of Pawan Mittal as Ex. PW11/A and he opined that the injuries were ante mortem in nature, caused by fired arm, which was rifle. Range of fire was beyond the blast effect range. Cause of death was combined effect of hemorrhage shock and respiratory effect consequent upon the injuries and heart and lungs resulting into hemothorax, fired arm injury was sufficient to cause death in ordinary course of nature. Mode of death was homicidal. Time since death was about 16 hours. Testimony of this witness has got unchallenged and uncontroverted.
16.Dr. Shivani from Max Hospital was examined as PW13. She was posted as CMO at Max Hospital Pitam Pura, on 21.04.2008. On that date, at about 8.20 PM, patient Raghubir Mittal, aged about 59 years male was brought by the police officials of PS Saraswati Vihar with alleged history of gunshot injuries by unknown strangers near MM School, about half hour prior to reaching to hospital, as told by the surviving occupant of the vehicle She examined the patient vide MLC FIR NO.107/10 Page 9 of 43 10 Ex. PW13/A and declared him brought dead. On the same day, at about 8.10 PM, patient Pawan Kumar was also brought to the hospital having gunshot injuries, by the police, who was examined by her vide MLC Ex. PW13/B and declared him brought dead. The third patient Sandeep was also having gunshot injuries, shot by unknown stranger, while driving the car, near MM Public School and was examined vide MLC Ex. PW13/C. That patient was shifted to AIIMS on the same day. The testimony of this witness has gone unchallenged and uncontroverted.
17.Ct. George Kutty was examined as PW14. He was on duty at AIIMS Trauma Centre and on 22.04.2008, he informed PS Defence Colony about the admission of one patient, who was referred from Max Hospital. He was operated upon and after the operation, the doctors handed over one sealed pulanda having bullet into it to him, having the seal impression of CMO JPMTC AIIMS ND. He made entry in his register and handed over the pulanda to SI Rajiv Shah and he also obtained the signature of SI Rajiv Shah in that register. The testimony of this witness also remained unchallenged and uncontroverted.
18.HC Harkesh was examined as PW15. He joined the investigation of this case on 27.04.2008 alongwith Inspector P.P. Singh. On that day, on receiving information vide DD no.8B, about death of Sandeep, he alongwith SI Rajiv Shah went to Trauma Centre AIIMS, where the dead body of Sandeep was identified by his relatives. After the postmortem, doctors handed over him sealed exhibits alongwith FIR NO.107/10 Page 10 of 43 11 sample seal, which was seized by Inspector P.P. Singh vide memo Ex. PW15/A. Ld. Addl. PP cross examined this witness and during cross examination, he stated that on 21.04.2008 also, he reached near MM Public School after receiving information on the wireless set and there he found a white car bearing registration no. DL8CS0828. Inspector P.P. Singh alongwith SI Rajeev Ranjan, SI Rajiv Shah and Ct. Ashok also arrived there. Thereafter, he alongwith Inspector P.P. Singh and SI Rajeev Ranjan went to Max Hospital, there they collected the MLC and thereafter they left the Max Hospital alongwith SI Rajeev Ranjan. He also stated that dead body of Pawan Mittal and Raghubir Mittal were shifted to BJRM Hospital Mortuary, where the postmortem was got conducted and thereafter their bodies were handed over to the relatives.
19.HC Satyapal Singh was examined as PW16. He delivered the copy of FIR to Ld. MM and the senior police officials.
20.HC Ashok Kumar was examined as PW17. On receipt of DD no15B, he alongwith SI Rajiv Shah reached the spot. Ct. Harkesh also reached there. Other police officials including the SHO also arrived there. On the spot, one car bearing no. DL8CS0828 of white colour was found parked. Inspector P.P. Singh, Ct. Harkesh and SI Rajiv went to Max Hospital, as injured has already been shifted to Max Hospital. Inspector P.P. Singh returned to the spot. On the instruction of SHO Inspector P.P. Singh, SI Rajiv Shah prepared the rukka. Rukka was taken to PS by him and after registration of FIR, he FIR NO.107/10 Page 11 of 43 12 returned to the spot and handed over the copy of FIR and original rukka to Inspector P.P. Singh and thereafter, he alongwith Inspector P.P. Singh reached Max Hospital. The dead bodies were sent to Mortuary, BJRM Hospital in his custody. After the postmortem on 22.04.2008, the dead bodies were handed over to their relatives. Doctors handed over him six sealed pulandas and four sample seals, which he handed over to Inspector P.P. Singh, who seized the same vide seizure memo Exs.PW17/A & PW17/B. During cross examination, he stated that he left the spot at 10.15 PM with rukka, reached at PS at 11.00 PM and left the PS at 11.30 PM alongwith original rukka and copy of FIR and reached the spot at about 12.15 AM.
21.Ct. Rajiv Kumar was examined as PW18. He deposed that he was posted at PS Mangol Puri. On the intervening night of 2122.04.2008, on receipt of DD no.15B, he alongwith SI Hira Lal left FBlock, Liquor Vend, Outer Ring Road, Mangol Puri, there they found one Maruti Esteem car bearing no.DL2C1969, parked in abandoned condition. SI Hira Lal called the Crime Team on the spot and got the car inspected. No chance prints were found. The car was seized U/s.66 D.P. Act. Later on, they came to know that original car number was DL2CL1929. He identified the car as Ex. P1. During cross examination, he stated that the car was recovered at about 4.15 AM.
22.SI Hira Lal was examined as PW19. He alongwith PW18 reached F Block, Outer Ring Road, near Liquor Shop, on receipt of DD no.15B FIR NO.107/10 Page 12 of 43 13 and seized the car Ex. P1, which was found abandoned. He deposed that on 21.05.2008, Inspector P.P. Singh met him and inquired from him about the Maruti Esteem Car and Inspector P.P. Singh also informed that the actual number of the car was DL2CL1929. During cross examination, he deposed that he did not seize any document to the effect that the actual number of the car was DL2CL1929.
23.HC Rajkumar was examined as PW20. He was working as MHCM at PS Mangol Puri and deposed about the deposit of car by SI Hira Lal in the Malkhana on 22.04.2008 and proved the entry in register no.19 as Ex. PW20/A. He also deposed that on 02.05.2008, he handed over the possession of the car to SI Rajiv of PS Saraswati Vihar vide RC no.8/21/08 and proved the endorsement to this effect as Ex. PW20/B and the photocopy of RC as Ex. PW20/C.
24.HC Sahib Singh was examined as PW21. He was working as DD Writer at PS Saraswati Vihar on 27.04.2008. On that day, he received the information from AIIMS Hospital about the death of Sandeep. On the basis of that, he recorded DD no.8B Ex. PW21/A and handed over the copy of same to SI Rajiv Shah.
25.HC Vijay Kumar was examined as PW22. He was working as Duty Officer at PS Saraswati Vihar on 21.04.2008 and proved the copy of FIR No.202/08 as Ex. PW22/A.
26.HC Sushil was examined as PW23. He deposed that on 28.04.2008, he joined the investigation of this case. They reached RAC Club, near Rohini and went to the godown of Sanjeev Mittal. The police made FIR NO.107/10 Page 13 of 43 14 inquiries from the employees. Accused Netrapal was found there. Inquiries were made from him and he was taken to Police Post Shakti Vihar. After interrogation, accused Netrapal was arrested. Accused Netrapal led the policed team to the house of accused Manoj. Manoj was found present in his house. He was also arrested. Thereafter, police team alongwith accused Manoj and Netrapal went to Sultan Pur at the house of accused Azaz Ahmed. Accused Azaz Ahmed was identified by accused Manoj and he was also arrested. Thereafter, police team alongwith all the three accused went to the house of accused Zaheer Ahmed at Sultan Puri. Accused Zaheer Ahmed was also found present in his house. He was also arrested. Thereafter, they went to Sadar Bazaar to the house of accused Afzal. Accused Afzal was also found present in his house and he was also arrested. All the accused persons were brought to PS. They were got medically examined at Bhagwan Mahavir Hospital and thereafter put into the lock up.
On 12.05.2008, he again joined the investigation of this case. They went to the house of brother of accused Alisher. One Shamsher Azad was found present there. One car bearing no. DL8CQ2279 make Wagon R was found parked in front of that house. The car was seized vide memo Ex. PW23/C and thereafter they returned to the PS. The car was shown to this witness and he identified the same as Ex. P2. He was cross examined by Ld. Addl. PP about the disclosure statements made by every accused and the recoveries effected and FIR NO.107/10 Page 14 of 43 15 he deposed during cross examination that their disclosure statements were recorded and the recovery of Rs.4500/ was effected from accused Netrapal and accused Zaheer Ahmed got recovered Rs.2500/. He also identified the accused persons on the pointing out of Ld. Addl. PP. He further deposed that two mobile phones were recovered from accused Afzal and two mobile phones were recovered from accused Azaz Ahmed. He also deposed that Rs.36,000/ were recovered from accused Azaz Ahmed and accused Manoj got recovered Rs.9800/ and accused Afzal got recovered Rs.13,000/ and one motorcycle bearing no. DL7SU7877. During cross examination, he stated that on 28.04.2008, they left the PS at about 11.15 PM in government vehicle no. DL1CJ3203.
27.HC Jai Lal was examined as PW24. He produced the original FIR No.262/08 recorded at PS Malviya Nagar regarding the theft of car. The FIR is dated 29.03.2008 regarding theft of Esteem car no. DL2C L1929.
28.ASI Mahavir Singh was examined as PW25. He was posted as ASI in PS Malviya Nagar. After registration of FIR No.262/08, the investigation of that case was assigned to him, but despite his best efforts, the Maruti Esteem car no. DL2CL1929 could not be recovered.
29.Ms. Madhuri was examined as PW26. She deposed that she was not having any mobile phone no. 9210210542 and she never gave her ID for taking this number to anybody. It is pertinent to mention that FIR NO.107/10 Page 15 of 43 16 according to the prosecution case, this mobile number was used by accused Azaz Ahmed.
30.SI Mahesh Kumar, Draftsman was examined as PW27 and he proved the scaled site plan of the scene of crime as Ex. PW27/A.
31.Sh. Rahul Singhal was examined as PW28. He deposed that he was running a CDs music shop under the name and style of Rahul Music at Gali Barna, Sadar Bazaar, Delhi, and accused Afzal was working with him for the last about four years before his arrest. He also deposed that accused Afzal was having mobile number 9250802465. During cross examination, he stated that the abovesaid mobile number was in his name and was used by accused Afzal also, but he did not produce any document that the said mobile number was in his name. He denied the suggestion that this mobile number was never used by accused Afzal.
32.Dr. Adarsh Kumar, Assistant Professor, Forensic Medicine was examined as PW29. On 27.04.2008, he was Consultant On Duty at AIIMS Hospital and the postmortem on the body of Sandeep was conducted by Dr. Puneet Setia. He identified the signature of Dr. Puneet Setia and proved the postmortem report as Ex. PW29/A. According to the postmortem report, the cause of death is cranio cerebral damage in case of fire arm injury. All injuries are ante mortem, about one week in duration. Injury no.2 is fire arm injury and injury no.3 is fire arm exit wound. Injury no.4 produced by blunt force. Injury no.1 is sufficient to cause death in ordinary course of nature. FIR NO.107/10
Page 16 of 43 17 The testimony of this witness has gone unchallenged and uncontroverted.
33.Sh. Naresh Kumar, Senior Scientific Assistant, Biology, FSL Rohini was examined as PW30. On 23.04.2008, he examined the car no. DL8CS0828 in the premises of PS Saraswati Vihar and gave his report as Ex. PW30/A. He detected blood on the driver seat, rear seat, foot mat below the rear seat and exterior surface of the car. The samples of the portion of seat cover of driver seat, rear seat and the stains prepared from the anterior surface were collected. He proved his report as Ex. PW30/A. During cross examination, he stated that he examined the car at about 5.00 PM.
34.Sh. Ashok Kumar Setia was examined as PW31. It was from his mobile phone that the Police Control Room received the information. He deposed that he was standing in the balcony and noticed a large crowd, when he came down, people told him that firing had taken place. Somebody took his mobile phone and informed the police. He was cross examined by Ld. Addl. PP, but he denied the suggestion that he saw the persons firing on car no. DL8CS0828, or that one Esteem car was found obstructing the way of that car. He stated that he never told the police that three young boys were found standing near the Esteem car, or that he could not see their faces due to darkness and fear.
35.Sh. Narender Singh, Finger Print Expert was examined as PW32. He reached the spot alongwith SI Surajbhan, Incharge Mobile Crime FIR NO.107/10 Page 17 of 43 18 Team. He deposed that on 29.04.2008, he examined the car no. DL8CS0828 for chance prints. Two chance prints were developed on the right side window on outer side. He lifted the same and sent the same to Finger Print Bureau. His testimony has also got unchallenged and uncontroverted.
36.Sh. V.R. Anand, Senior Scientific Officer, Ballistics, FSL Rohini, was examined as PW33. He deposed that on 23.04.2008, on the directions of Director, FSL Rohini, he alongwith the team members examined the car bearing number plate DL8CS0828. He deposed that on observation, the glasses of front left side door were found broken. The glass pieces were found inside the car. A bullet impact mark was present on the front right side door. After removing the door from the car, one bullet was found inside the door, which was handed over to SHO. He proved his report as Ex. PW33/A. His further examination was deferred and on the next date, he stated that he does not want to say anything more. He was cross examined by Ld. Addl. PP. During cross examination, he deposed that he does not remember, if he put the bullet led recovered from the car in an envelope, sealed it with the seal of NK FSL, or that he also handed over the sample seal to SI Rajeev Ranjan. He denied the suggestion that he told the IO in his statement that he sealed the bullet led recovered in an envelope with the seal of NK FSL Delhi. He was confronted with his statement recorded U/s.161 Cr.PC. He was also confronted with his statement regarding handing over the sample seal. FIR NO.107/10
Page 18 of 43 19 The bullet led recovered was shown to the witness, bu he stated that he cannot admit or deny whether this is the same bullet led, which he recovered. The testimony of this witness has gone unchallenged and uncontroverted.
37.Ct. Dharmender was examined as PW34. He joined the investigation of this case on 30.04.2008. Accused Azaz Ahmed was in police custody on that day. He remained alongwith them and according to him, Azaz Ahmed got recovered from outside his house, one Pulsar motorcycle no. DL8SAF8020. According to this witness, the accused told that the key of that motorcycle is with Bitto @ Parvinder. Accused led them to the house of Bittoo @ Parvinder. He was arrested. His disclosure statement was recorded as Ex. PW34/C. He got recovered Rs.5500/ from the almirah, which were sealed and seized vide memo Ex. PW34/D. Accused Bittoo @ Parvinder also handed over the key of the motorcycle to the IO, which was seized by the IO vide memo Ex. PW34/E. Thereafter, they returned to the PS. The accused persons were put in the lock up and the case property was deposited in the Malkhana. During cross examination, he admitted that the place of recovery was thickly populated and that there was no public witness on the seizure memos and recovery memo. He also deposed that no notice was given to the public persons, who refused to join the investigation.
38.SI Surajbhan was examined as PW35. He was Incharge Mobile Crime Team and he visited the spot on 21.04.2008 alongwith his FIR NO.107/10 Page 19 of 43 20 team, there he found one car make Hyundai I10 white colour bearing registration no. DL8CS0828. He proved his detailed report as Ex. PW35/A.
39.SI Ved Prakash was examined as PW36. He joined the investigation of this case on 28.04.2008 alongwith other members of his team and deposed about the arrest of accused Netrapal, Manoj, Azaz Ahmed, Zaheer Ahmed and Afzal and about their disclosure statements and recovery at their instances. He also identified the case property.
40.SI Rajeev Ranjan was examined as PW37. He reached the spot on 21.04.2008, there he found a car bearing no. DL8CS0828. SHO alongwith staff was also present there. He went to Max Hospital alongwith Inspector P.P. Singh and Ct. Harkesh. In the hospital, Inspector P.P. Singh collected three MLCs and according to the MLCs, one was injured and two were brought dead. The dead bodies were sent to Mortuary under the custody of Ct. Harkesh and Ct. Ashok and the injured was shifted to AIIMS Hospital. He also received the pulandas of clothes of the deceased, sealed with the seal of Max Hospital, which were handed over to the SHO on the scene of crime, the same were seized vide memo Exs. PW37/A & PW37/B. He further deposed that on 23.04.2008, he got examined the car from the FSL Experts and after the examination, they handed over to him one pulanda containing a bullet led and three blood stained car seat covers, sealed with the seal of NK FSL, which were seized vide seizure memos Exs. PW37/C and PW37/D respectively. His FIR NO.107/10 Page 20 of 43 21 testimony remained unchallenged and uncontroverted.
41.Ct. Gurjeet Singh was examined as PW38. He was working as DD Writer at PS Saraswati Vihar on 21.04.2008. He deposed that on receiving the call from PCR via intercom at about 8.15 PM, regarding the incident, he recorded DD no.15B and handed over the copy of same to SI Rajiv Shah, who left for the spot alongwith Ct. Ashok. The testimony of this witness has also gone unchallenged and uncontroverted.
42.Ct. Vinod Kumar was examined as PW39. He also joined the investigation on 28.04.2008 and deposed about the arrest of accused Netrapal, Manoj, Azaz Ahmed, Zaheer Ahmed and Afzal, as deposed by PW36, but does not depose about the recovery of Rs.13,000/ and motorcycle from accused Afzal.
43.ASI Ramesh Chander was examined as PW40. He was the member of Mobile Crime Team and was photographer. He took total 22 photographs of the scene of crime and proved the negatives as Exs. PW40/1 to PW40/22 and photographs as Exs. PW40/23 to PW40/44. He denied the suggestion that he did not take the photographs, or that he did not visit the place at the given time and place.
44.Sh. Prem Kumar was examined as PW41. He made the complaint regarding missing of Maruti Esteem car bearing no. DL2CL1929, on the basis of which FIR no. 262/08 Ex. PW24/A was registered at PS Malviya Nagar. His testimony has got unchallenged and uncontroverted.
FIR NO.107/10
Page 21 of 43 22
45.HC Madan Lal was examined as PW42. He remained in the investigation of this case on 30.04.2008 and deposed on the same lines, as deposed by PW34 regarding the recovery of motorcycle no. DL8SAF8020 make Baja Pulsar from outside the house of accused Azaz Ahmed and arrest of accused Parvinder @ Bittoo and recovery of Rs.5500/ and the keys of motorcycle. He denied the suggestion that he did not join the investigation and that is why the disclosure statement of accused Parvinder does not bear his signature. He also denied the suggestion that no efforts were made to join the public witnesses.
46.ASI Jagat Singh was examined as PW43. He joined the investigation on 28.04.2008 and deposed on the same lines, as deposed by PWs 36 and 39 regarding the arrest of accused Netrapal, Manoj, Azaz Ahmed, Zaheer Ahmed and Afzal, regarding their disclosure statements and the recoveries, but he does not speak about the recovery at the instance of accused Afzal.
47.HC Narender Kumar was examined asPW44. He was working as MHCM at PS Saraswati Vihar and proved the entries in register no.19 regarding deposit of case property from time to time as Exs. PW44/A, PW44/B, PW44/C, PW44/D, PW44/E, PW44/F and PW44/G.
48.HC Amar Singh was examined as PW45. He was posted in Headquarter Police Control Room on 21.04.2008. On that day, at 08.07 PM, he received the information about the incident from telephone number 9810183897, he recorded the message and FIR NO.107/10 Page 22 of 43 23 flashed the same on the wireless of the district control room. He proved the PCR form as Ex. PW45/A.
49.IO of the case Inspector P.P. Singh was examined as PW46. He was the SHO PS Saraswati Vihar at the relevant time. He carried out the entire investigation and deposed accordingly. He besides other evidence, also deposed that he collected the call details of the mobile phones used by accused persons i.e. accused Alisher, Azaz Ahmed and Afzal and that they were consistently in touch with each other on that day since morning on their mobile numbers 9212960406, 9213045525 and 9250802465. According to the cell IDs, the location of accused Alisher was at Inderlok at 7.15 PM, location of accused Azaz Ahmed was also at Inderlok at 7.15 PM and location of accused Afzal was at Inderlok from 6.15 PM to 7.46 PM. location of the abovesaid three accused were changed from Inderlok to Wazir Pur JJ Colony, which is adjoining to Saraswati Vihar to Pitam Pura. After commission of offence around 8.00 PM, they left all left in different directions. The location of accused Alisher at 8.13 PM was at Jahangir Puri. The location of accused Azaz Ahmed at 8.25 PM was at Mangol Puri, where the Esteem car, used in the commission of offence was left abandoned and the location of accused Afzal at 8.12 PM was at Rohini Sector7. He proved the call details report of accused Alisher as Ex. PW46/PX, that of accused Azaz Ahmed as Ex. PW46/PY and that of accused Afzal as Ex. PW46/Z.
50.Sh. Manish Kumar Singh, Assistant Nodal Officer Tata Teleservices FIR NO.107/10 Page 23 of 43 24 was examined as PW47 and he proved the customer application forms and call detail records from 01.04.2008 to 25.04.2008 on mobile numbers 9213045525, 9210210542, 9213970212, 9213056281 & 9250802465 as Exs. PW47/A1 to PW47/A5 and Exs. PW47/B1 to PW47/B5 respectively. He also proved the certificate U/s.,65(B) of Evidence Act alongwith call detail report as Ex. PW47/C. Thereafter, the prosecution evidence was closed.
51.Statements of accused were recorded U/s.313 Cr.PC, wherein they denied the entire evidence and stated that they have been falsely implicated. None of the accused wished to lead evidence in defence and the case was fixed for final arguments.
52.I have heard the Ld. Addl. PP for the State as well Ld. Counsels for the accused. Ld. Counsel Sh. R. Menon filed the written arguments on behalf of accused Azaz Ahmed and Manoj. Ld. Counsel Sh. Vivek Gupta also filed the written arguments on behalf of accused Afzal.
53.Ld. Addl. PP submitted that this case is based upon the conspiracy hatched by accused Alisher with his coaccused Netrapal to commit the robbery. Ld. Addl. PP submitted that Netrapal was working in the factory/godown of Sanjeev Mittal. While working with them, he came to know that they always carrying bigger amount while closing the the shop. In order to become rich, he hatched this conspiracy and joined other persons i.e. Manoj and Zaheer Ahmed. They also later on joined other accused persons. Ld. Addl. PP submitted that in view of this conspiracy, they followed the car of the victims on 21.04.2008, FIR NO.107/10 Page 24 of 43 25 stopped it at 8.00 PM near MM Public School, Nishant Kunj, Pitam Pura, robbed the occupants of the car of Rs.2,60,000/ and then killed them from point blank range. Raghubir Mittal and Pawan Mittal were brought dead immediately on reaching hospital. However, the driver Sandeep succumbed to his injuries in AIIMS Hospital. Ld. Addl. PP submitted that this ghastly offence of dacoity with murder was committed by the accused persons, but unfortunately, there is no eye witness of the incident. Case of the prosecution is based upon the circumstantial evidence the prosecution want to establish the guilty of the accused by proving on record the following circumstances:
1.Conspiracy;
2. Conduct of accused Netrapal;
3.Call detail record, showing the presence of accused persons;
4.Recovery of looted money from the possession of accused persons;
5.Recovery of Esteem car used in the commission of offence.
54. Before moving further, in my opinion, it is important to mention that it is not required in every case that there shall be ocular evidence. A person can be held guilty even on the basis of circumstantial evidence, provided each circumstance is proved and established beyond doubt and the circumstances so proved and established formed a complete chain. The circumstances point towards the guilt of the accused and are inconsistent with any reasonable hypothesis of innocence of accused. Reliance is placed upon the judgments, cited as K.T. Palanisamy Vs. State of Tamil Nadu, AIR 2008 SC 1095 and FIR NO.107/10 Page 25 of 43 26 Aftab Ahmed Ansari Vs. State of Uttranchal, AIR 2010 SC 773. It is to be seen whether in the present case, all these ingredients, as laid down from time to time by the Hon'ble Supreme Court and High Court have been established or not. I take up the circumstances one by one.
1.Conspiracy: Ld. Addl. PP submitted that accused Netrapal was an employee of Sh. Sanjeev Mittal and he was working in his factory of shoes at Rithala. Prosecution has proved this by examining PW7 by proving on record the attendance register Ex. PW7/A. Ld. Addl. PP submitted that the attendance register starts from March, 2008 and it shows the presence of Vijay, Netrapal and Rajkumar. Again in April 2008, it marks the presence of Rajkumar, Netrapal and Vijay. In May, 2008, it is Vijay, Balram and Rajkumar and there is also one entry of 01.06.2008. Ld. Addl. PP submitted that from this record, it is clear that Netrapal was working in the factory and was employee of Sh. Sanjeev Mittal. Ld. Addl. PP submitted that accused Manoj used to come to meet Netrapal at the factory, as deposed by PW7 and even Azaz Ahmed came to meet accused Netrapal. Ld. Addl. PP submitted that they are the coconspirators in the commission of offence and the fact that they used to meet and talk with each other on the mobile phone, clearly shows that they hatched the conspiracy and it was hatched by Netrapal, who was working in the factory, as reflected from the attendance register Ex. PW7/A. Ld. Addl. PP further submitted FIR NO.107/10 Page 26 of 43 27 that he was also meeting with the other accused persons namely Manoj and Azaz Ahmed, as has come in the testimony of PW7. In fact, they hatched the conspiracy to commit this offence at the instance of Netrapal and thereafter committed this offence.
55.Ld. Defence Counsel submitted that, though the story of the prosecution revolves upon the hypothesis that there was a conspiracy hatched and in furtherance of that conspiracy, this offence was committed, but no such evidence is brought on record. There was a star witness of the prosecution namely Shekh Asrat. According to the prosecution story, he heard the accused persons i.e. Alisher and Aamir alongwith other accused persons talking about the plan, but Shekh Asrat has not been examined. During evidence, one person came to the Court, claiming himself to be Shekh Asrat, but IO of the case Inspector P.P. Singh told that he is not the person, who is witness in this case. Thereafter, Shekh Asrat was not produced in the witness box. Summons sent at his address were received back unclaimed. PW7 also does not say, as to what talks had taken place between accused Netrapal and PW7, as he is also not able to identify accused Azaz Ahmed. Therefore, the story of prosecution about the conspiracy is not established.
56.After hearing the arguments and going through the record, I found that so far as conspiracy is concerned, onus was on the prosecution to prove and establish that there was a conspiracy hatched by the accused persons to commit the offence. The star witness of the FIR NO.107/10 Page 27 of 43 28 prosecution to prove and establish the conspiracy was Shekh Asrat. Summons were sent to Shekh Asrat. One person also appeared in pursuance to the summons, but the IO of the case Inspector P.P. Singh told the Court that he is not the witness, who was examined by him U/s.161 Cr.PC. Summons were ordered to be served through IO also, but thereafter Shekh Asrat could not be served and Shekh Asrat could not be examined. Therefore, that valuable piece of evidence about the conspiracy could not be brought on record. It is alleged that accused Manoj used to come to meet Netrapal and once Manoj also came alongwith one more person. In my opinion, for the sake of arguments, even if it is believed that Manoj visited the factory to meet Netrapal, that does not make a difference. The fact that they met outside the factory also does not make a difference as according to the rules followed at the factory as deposed by PW7, any person who has to meet his relative during working hours has to go outside the factory to meet him. Therefore, this fact also does not make a difference that accused Netrapal had gone out of factory to meet Manoj, so far as other accused are concerned, which according to the story of prosecution was Azaz Ahmed @ Raju, who could not be identified by PW7, despite pointing out by the Ld. Addl. PP. There is no evidence as to what talks they had between them.
57.Keeping in view all these facts, in my opinion, so far as this circumstance is concerned, prosecution has not been able to prove and establish the same beyond reasonable doubt. FIR NO.107/10
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2. Conduct of accused Netrapal : Ld. Addl. PP submitted that after the incident, which took place on 21.04.2008 Netrapal did not return on his duty. He remained absent, which is evident from the register Ex. PW7/A. According to this register, he was on duty on 21.04.2008 and thereafter he reported on 28.04.2008, on which date police apprehended and arrested him in the present case. The fact that he absconded after commission of offence itself points toward his guilty mind and also shows his involvement in the commission of the offence.
58.Ld. Defence Counsel submitted that so far as the attendance of accused Netrapal is concerned, it is not established and proved that it is the attendance register of the godown; secondly it has not been properly maintained in the ordinary course. There is no signature of the accused, or of the person maintaining it, hence the same cannot be believed. Even otherwise, the register is found to be torn. Some pages are missing and the explanation given is that the owner used to tear the pages of the months, of which the payment of wages has been made. Ld. Counsel submitted that in that case, there should not have been pages for the month of March itself in the register, as according to the record, the payment for that month had already been made and that of April and May also. According to this register the final payment has been made as calculation is there on the pages itself, but those pages are still in the register, which clearly shows that FIR NO.107/10 Page 29 of 43 30 this register is nothing but manipulated. There is also nothing on record that accused Netrapal was working there as Sanjeev Mittal, who was examined as PW9, has nowhere stated that Netrapal was his employee, or was working in his godown. Ld. Counsel submitted that in the absence of any such evidence, it cannot be even presumed that accused Netrapal was an employee of Sanjeev Mittal. Ld. Counsel further submitted that as there is nothing on record that he was an employee of Sanjeev Mittal and working there and the register produced is also not maintained in the ordinary course, therefore, cannot be relied and thirdly, the best evidence has not been adduced by the prosecution.
59.After hearing the arguments, I found that the prosecution examined witness PW7, to the effect that accused Netrapal was working in the godown of Sanjeev Mittal. PW7 deposed that he was working there, but no such record has been produced that Nerapal was an employee. One register Ex. PW7/A has been placed on record alleging that it is the attendance register. Pages of the attendance register were found torn and according to PW7, these pages were torn by the owner, after the dues of employees were cleared, but I found that in the register, page of March and April are still there. It also shows that the calculation about the wages had been done and despite that, these pages are still on the record, which creates suspicion about explanation given by PW7. Even otherwise, this register does not bear signature of PW7, which again creates doubt about the FIR NO.107/10 Page 30 of 43 31 authenticity and genuineness of this register. Prosecution has alleged that accused was an employee of Sanjeev Mittal, but surprisingly, Sanjeev Mittal did not utter a single word in this regard that accused Netrapal was his employee, or he was working at his factory or godown. Keeping in view the above facts, in my opinion, prosecution has not been able to prove that he was an employee of Sanjeev Mittal or that he absconded after the offence.
3. Call detail record, showing the presence of accused persons : Ld. Addl. PP submitted that in the present case, accused persons were following the deceased from their shop itself in furtherance of the conspiracy and they all were in touch with each other on their mobile phones. The call details of those mobile phones were taken up, proved on record, which clearly shows that they were present there at the time of incident and also committed the offence as Ld. Counsel submitted that Alisher used the mobile phone no.9212960406, Azaz Ahmed used mobile mobile phone no.9213045525 and Afzal used mobile phone no.9250802465. Their call detail records which have been proved on record as Exs. PW46/PX, PW46/PY and PW46/PZ clearly shows that they were constantly in touch with each other since morning on these mobile phones. As per the details, the location of accused Alisher was at Inderlok from 7.18 PM to 7.42 PM, that of accused Afzal also at Inderlok from 6.57 PM to 7.46 PM, and that of accused Azaz Ahmed from 7.18 PM to 7.39 PM also at Inderlok. Ld. FIR NO.107/10 Page 31 of 43 32 Addl. PP submitted that the record also shows that they were talking with each other during this period. From there, the location of the three mobile phones shifted to Wazir Pur. At 7.53 PM, Alisher was at Wazir Pur, at about 7.42 PM, Azaz Ahmed was also at Wazir Pur and from 7.50 PM to 7.56 PM, Afzal was also at Wazir Pur. Thereafter, so far as accused Alisher is concerned, his position comes to Majlis Park, Jahangir Puri area, accused Azaz Ahmed's location is at Mangol Puri at 8.12 PM, where the Esteem Car, which was used in the commission of offence was found abandoned and the location of accused Afzal was at Rohini at 8.20 PM. Ld. Addl. PP submitted that this clearly shows that in furtherance of that conspiracy, which was hatched between them, they followed the car, got it stopped at Rohini, near M.M. Public School and committed the offence. After committing the offence, accused Afzal left the car abandoned at Mangol Puri, which was recovered from there later on. It is prayed that these call details clearly point towards the guilt of the accused in the commission of offence.
60.Ld. Defence Counsel submitted that onus was upon the prosecution to prove and establish that the mobile phones, firstly were used by the accused persons. There is one witness PW11 Sudhir Gupta. According to the prosecution story, he used to talk with Afzal and Azaz Ahmed on mobile phone no.9213045525. This witness was declared hostile and was cross examined by Ld. Addl. PP. He specifically stated that he knows Afzal, but do not know any Azaz Ahmed and also FIR NO.107/10 Page 32 of 43 33 stated that mobile no.9213045525 was of accused Azaz Ahmed. There is one more witness PW26 and she stated that she was not having any mobile no.9210210542. According to the police story, this number was of Azaz Ahmed and there is one more witness PW28, who told the police that Afzal was having mobile no.9250802465. According to this witness, this mobile phone was kept at his shop and was also used by accused Afzal. Ld. Counsel submitted that there is no evidence that accused Afzal ever worked on that shop or that this mobile phone was kept there. It is prayed that onus was upon the prosecution to prove and establish the same, and the prosecution has failed to prove and establish the same.
61. After hearing the arguments and going through the record, I found that so far as call details are concerned, no doubt the location of the three accused persons comes at the places i.e. Inderlok, Wazir Pur and Rohini. It is also evident from the call details that the two accused namely Alisher and Azaz Ahmed were in touch with each other, but there is call either on the phone of Afzal, or to Afzal by these accused persons. The time of commission of offence, as per the prosecution case is around 8.00 PM on 21.04.2008 and as per the call details record, accused Afzal was on telephone even at 7.56 PM. Accused Alisher was on telephone even at 7.53 PM and was talking with Azaz Ahmed. Even, according to the prosecution, they were moving together, then there was no need for them to talk on telephone. Even otherwise, there is nothing on record that the mobile phone FIR NO.107/10 Page 33 of 43 34 no.9250802465 was with accused Afzal, as it is in the name of one Rahul Singhal. So far as mobile no.9213045525, it is in the name of Brahm Singh and Brahm Singh has not been examined to ascertain that this mobile phone was with Azaz Ahmed. Rahul Singhal was examined and he stated that this mobile was used to be kept at his shop, where accused was working and accused was also using the same. Even if it is presumed that accused Afzal was using the same and it used to remain there, even then it does not lead us anywhere, as according to the evidence, there were no talks on this mobile phone by the accused persons. No doubt, from the location of these mobile phones, it is clear that accused Alisher was at Inderlok on 21.04.2008 from 7.18 PM to 7.44 PM, at 7.53 PM, he was in Wazirpur and thereafter at 8.13 PM, his position is at Majlis Park, Jahangir Puri and similarly, position of accused Azaz, if it is presumed that this mobile phone was with accused Azaz, then his position was at Inderlok from 7.18 PM to 7.39 PM and at 7.42 PM at Wazir Pur and similarly, the position of accused Afzal was at Inderlok from 6.57 PM to 7.46 PM and at Wazir Pur from 7.50 PM to 7.56 PM and thereafter, from 8.12 PM onwards in Rohini Sector7, but this circumstance no doubt creates some suspicion, but does not exclusively point towards the involvement of the accused persons in the commission of offence and is not inconsistent with any reasonable hypothesis of innocence of accused.
FIR NO.107/10
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4.Recovery of looted money from the possession of accused persons: Ld. Addl. PP submitted that in the present case, when the police carried was the investigation and reached the godown of Sanjeev Mittal, on suspicion they apprehended accused Netrapal from the factory; he was interrogated and he confessed about the commission of crime. His disclosure statement was recorded. Same is Ex. PW23/D (PW39/A) and in furtherance of that disclosure statement, he got recovered Rs.4500/, out of Rs.6,000/, which came to his share from the looted amount. That amount was seized by the police vide seizure memo Ex. PW23/E. Accused Netrapal then led the police party to the house of accused Manoj. Accused Manoj was found present at his house i.e. at P49, Sharma Colony, Budh Vihar, Sultan Puri, Delhi. He was also arrested. On interrogation, he also confessed about the commission of offence. His disclosure statement was also recorded and same is Ex. PW39/B. He got recovered Rs.9,800/, part of the looted amount, which was with him from an iron box kept in a room of his residence. This amount was in the form of 98 currency notes of Rs.100/ denomination each. The same was seized vide seizure memo Ex. PW39/E. Thereafter, accused Netrapal and Manoj led the police party to the house of their coaccused Azaz Ahmed at D32, Harsh Dev Park, Bush Vihar. Accused Azaz was found there. He was also arrested. On interrogation, he also confessed about the commission of crime and his disclosure statement Ex. PW39/F was recorded. he got recovered Rs.36,000/ FIR NO.107/10 Page 35 of 43 36 from the almirah kept in one room of the house. This amount was in the form of 30 currency notes of Rs.1000/ denomination, 6 currency notes of Rs.500/ denomination and 30 currency notes of Rs.100/ denomination each. These were seized vide seizure memo Ex. PW46/L. Two mobile phones were also recovered from his position, which were also seized vide Ex. PW46/M. From his possession, the RC of vehicle no. DL8SAF8020 were also recovered. Accused Azaz Ahmed also pointed out the place, where they also left the Esteem car after the commission of offence. Then, the three accused persons led the police team to the residence of accused Zaheer at D3/147. He was arrested. He also confessed about the commission of offence. His disclosure statement is proved as Ex. PW39/J. In pursuance to the disclosure statement, accused got recovered Rs.2500/ i.e. 25 currency notes in the denomination of Rs.100/ each. Same were seized vide memo Ex. PW39/M. One mobile phone was also recovered in his personal search, which was also seized vide memo Ex. PW39/N. He also pointed out the place of occurrence. Then they all led the police team to the house of accused Afzal at Sadar Bazaar. Accused Afzal was also found in his house and he was arrested. His confessional statement is Ex. PW36/A and he got recovered Rs.13,000/, which was his share out of the looted amount. These were also seized vide memo Ex. PW36/D. Two mobile phones were seized from his possession. One motorcycle bearing no. DL7SU 7877, black Pulsar, was also recovered from outside the house of FIR NO.107/10 Page 36 of 43 37 accused Afzal, which was also seized vide memo Ex. PW23/DX. On 30.04.2008, accused Azaz Ahmed led the police team to the house of accused Parvinder, who was arrested from his house and he was arrested. His disclosure statement was recorded. same is proved on record as Ex. PW36/C and Rs.5500/ got recovered from his possession. Accused Azaz Ahmed also got recovered one motorcycle bearing no.DL8SAF8020 from outside his house no. C3/474, which was also seized vide memo Ex. PW34/E. Ld. Addl. PP submitted that the prosecution has proved the recovery of this looted amount and also the motorcycle used in the commission of offence by examining witnesses PWs 23, 36, 39 & 46. All these witnesses have stood through the test of cross examination. No doubt, there is no independent recovery witness in this case, but when the police witnesses have stood through the test of cross examination, there is no need to discredit them. Their testimonies cannot be discarded merely on the ground that there is no public witness, wherein the witnesses examined are trustworthy and reliable.
62.Ld. Defence Counsels submitted that no public witness was joined in the search and seizure despite the fact that public witnesses were available. The complainant was available. Even from the factory, from where accused Netrapal was apprehended, none was joined. Learned defence counsel submitted that prosecution has miserably failed to prove the recovery of the currency notes from the possession of the accused persons. No public witness was joined while effecting FIR NO.107/10 Page 37 of 43 38 recovery from the house of the accused persons and the only police personals are the witnesses to the recovery. This nonjoining of the public witnesses itself creates a doubt about the truthfulness of the story of the prosecution, that also when they are investigating a serious offence of triple murder and when they were knowing that they were going to effect recovery of looted amount, a very material evidence. Learned counsel submitted that nonjoining of public witnesses itself creates a doubt. There is also no evidence as to what was the amount which was actually looted from them. Ld. counsel submitted that according to the disclosure statement of accused Manoj Kumar, Rs. 13,000/ came to his share, out of which he had spent Rs. 5,000/ and this fact was told by to the police that he can get recover the remaining amount, but according to the evidence, he got recovered Rs. 9,800/. Recoveries are from the houses and there is nothing on record that none else except the accused was having access to these places. Number of currency notes were no where mentioned in the seizure memo and in fact signatures of accused were obtained on blank papers, which were later on used as seizure memo. Learned counsel submitted that keeping in view all these facts and contradictions, benefit be given to the accused persons and they be acquitted.
63. After hearing the arguments and going through the evidence, I found that PW23 was in the investigation, when the accused persons were arrested and he in his examinationinchief nowhere stated about the FIR NO.107/10 Page 38 of 43 39 disclosure statements made by the accused persons and also that they got recovered any looted amount.
64. PW39 was also in the investigation, but he is silent about the recovery of Rs. 13,000/ from Afzal and also about the recovery of motorcycle. Similarly, PW43 also does not speak about the recovery at the instance of Afzal. No public witness has been joined in the investigation, though Investigating Agency was very well knowing that they were going to effect recovery of looted amount. Public persons were also there, but none was joined. Keeping in view all the contradictions in the testimonies of police witnesses itself, when one of the witness examined as PW23 is completely silent about the disclosure statement and recovery and was crossexamined by the ld. Addl. PP and two witnesses do not speak anything about the recovery at the instance of Afzal and there is also discrepancy about the recovery from accused Manoj, as according to the disclosure statement, he could recovery only a sum of Rs. 8,000/, but seizure memo shows that Rs. 9,800/ were recovered There is also discrepancy so far as accused Azaz Ahmad is concerned, according to the seizure memo, the recovered amount from him is Rs. 36,000/, but in the statement of SI Rajesh Kumar recorded u/s 161 Cr.P.C, an amount of Rs. 40,500/ was recovered. I found that these recoveries as shown by the police do not inspire any confidence. FIR NO.107/10
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5. Recovery of Esteem car used in the commission of offence : Ld. Addl. PP submitted that in this case, one maruti Esteem Car was involved in the commission of offence, which blocked the way of the car of the deceased and that car was infact owned by one Prem and he got registered an FIR at PS Malviya Nagar regarding the theft of the car on 20.03.2011. FIR has been proved on record as Ex. PW 25/A and the car was identified as Ex. P1. It was found abandoned by the police of Police Station Mangol Puri i.e. the same place, where the call details of accused Azaz Ahmad shows his presence. Ld. Addl. PP submitted that this clearly shows that accused Azaz Ahmad was moving in this car, who left it abandoned in Mangolpur, from where, it was recovery by the police. Ld. Addl. PP had also poined out that place of incident, this recovery of car from that place, the fact that it was a stolen car and the presence of the accused at that place as is evident from the call details clearly shows that this car was involved in the commission of offence and was used in obstructing the way of the car bearing no. DL8CS0828, in which the deceased were traveling.
65.Ld. defence counsel submitted that onus was on the prosecution firstly to prove and establish that this car was involved in the commission of offence and the witness examined to prove and establish this fact was examined as PW31 Sh. Ashok Kumar Setia. According to his statement recorded by the police u/s 161 Cr.P.C, he noticed that one esteem car was obstructing the way of car no. DL8CS0828 and FIR NO.107/10 Page 40 of 43 41 some persons were firing on that car. But this witness has not supported the prosecution case in this regard. He was crossexamined by Ld. Addl. PP at length, but of no avail. There is no other evidence to link the esteem car with the commission of offence. According to the prosecution, accused Azaz Ahmad used this car, but prosecution has not been able to prove that mobile phone, which prosecution alleged to be of Azaz Ahmad, was in fact used by him. Witness Brahm Singh has not been examined to prove and establish that this mobile phone was with the accused Azad Ahmad. No finger prints were lifted from the car to find out as to who was using the car. If the accused was driving the car as alleged by the prosecution, his finger prints must have been there in the car, but no such evidence has been brought on record. Ld. defence counsel submitted that under these circumstances, it cannot be said that esteem car was firstly used in the commission of offence or it was left abandoned by the accused from where it was recovered by the police of PS Mangol Puri.
66.After hearing the arguments and going through the record, I found that onus was upon the prosecution to prove and establish that esteem car Ex. P1 was used in the commission of offence and by using that car, they obstructed the way of I10 car of the deceased bearing no. DL 8CS0828. The prime witness to prove this fact is PW31, but he did not support the prosecution case at all. There is no other evidence to show that this car was in any manner involved in the commission of FIR NO.107/10 Page 41 of 43 42 crime. No finger prints were lifted from the car to prove and establish that accused Azaz Ahmad was driving that car. So far as the use of the mobile phone is concerned, as discussed by me earlier that does not show or prove that accused Azaz Ahmad was using that mobile phone at the relevant time. The best witness to prove this fact could have been the owner of said mobile phone i.e Sh. Brahm Singh, in whose name the said mobile SIM was issued, but Brahm Singh had not been examined by the prosecution. Under these circumstances, I am of the opinion that prosecution has failed to prove and establish all these facts.
67.In the present case, it had come in the evidence that finger prints were also lifted, which were found on the car bearing no. DL8CS0828 and that was also the best evidence to show the involvement of the accused persons in the commission of offence, as according to the prosecution story, they snatched the bag from the deceased and in that process, they must have touched the body of the car and also other places, but report of finger print was not proved to establish the involvement of accused in commission of offence.
68.The theory of motive in this case according to the prosecution was robbery and persons were killed in order to prevent them from identifying the accused persons in the court, but before relying upon the motive, it has to be seen that other circumstances, which have been proved and established, points towards the guilt of the accused and at the same time inconsistence with any reasonable hypothesis of FIR NO.107/10 Page 42 of 43 43 innocence of the accused, but as discussed the prosecution has not been to able to prove and establish the theory of conspiracy, absconding of Netrapal, recovery of looted amount and recovery of maruti esteem. The chain of circumstances is incomplete. Keeping in view all these facts, I give the benefit of doubt to the accused persons and acquit them. File be consigned to Record Room. Announced in open Court on 12 August, 2011 th (V.K. BANSAL) ADDL. SESSION JUDGE ROHINI : DELHI : 12.08.2011 FIR NO.107/10 Page 43 of 43