Delhi District Court
Sc No. 51751/2016 State vs . Sandeep @ Vicky & Ors. Page No. 1 on 8 February, 2023
DLNW010002292013
Presented on : 04-07-2013
Registered on : 22-08-2013
Decided on : 08-02-2023
Duration : 9 years, 7 months,
4 days
IN THE COURT OF
ASJ/SPECIAL.JUDGE(NDPS)
AT NORTH WEST, ROHINI COURTS, DELHI
(Presided Over by Sh. Vikram)
SC/51751/2016
Annexure 'A': List of witnesses
Annexure 'B' : List of exhibits
STATE
Vs.
1. SANDEEP @ VICKY
S/o Sh. Rishi Chhikara,
R/o Village Tatesar,
PO Jaunti, Delhi.
(Discharged)
2. PARAS @ GOLDY @VIKRAM @PARDHA
@SARKAR@RAKESH
S/o Sh. Prem Singh
R/o House No. 500, Sector 12,
Phase-II, Panipat, Haryana.
(Expired)
3. RAMNIWAS @ KALA @ MOTTA
@ KHADDA @ TAU
S/o Late Sh. Raghubir Singh,
R/o Village Rohad, PS Bahadurgarh,
District Jhajjar, Haryana.
SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 1
FIR No. : 258/2012
Police Station : Kanjhawala
Under Sections : 302/353/186 IPC
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APP for State : Sh. Kumar Sanjay
Advocate for accused : Sh. Ravi Dabas (Legal Aid Counsel)
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JUDGMENT
(Delivered on 08-01-2023) BRIEF FACTS
1. Precursor of the prosecution case is complaint of SI Khajan Singh, which led to registration of FIR No. 134/13. After registration of the case, it was investigated and on conclusion of investigations, chargesheet was filed against accused Sandeep @ Vicky for proceeding against him for offences under Section 202/302 IPC and against accused Paras @ Goldy for offences under Section 186/353/302/34 IPC and 25 Arms Act.
2. Subsequent thereto, a supplementary charge sheet was filed against accused Ram Niwas, for proceeding against him for offence under Section 186/353/302 read with 34 IPC.
3. Brief facts as emanating out of these two charge sheets, coupled with the complaint and FIR are that:-
During the intervening night of 25/26 November 2012 at about 2 am, HC Ram Kishan along with Ct. G.K. Siddaia, were posted at Jaunti Toll Tax Picket, situated within jurisdiction of PS Kanjhawala. At that time, a long white colour car came from the SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 2 side of Village Jaunti, which was stopped by HC Ram Kishan. HC Ram Kishan made the two persons, sitting at the back seat, to get down from the car and took their search, whereafter both these persons sat inside the car on the back seat.
HC Ram Kishan thereafter asked the person sitting on the adjacent sent to the driver of the said car to get down, but he did not get down despite directions, whereafter, driver of the said car started reversing the same and the person sitting adjacent to the driver took out a pistol, which was snatched by HC Ram Kishan and for getting the car stopped, HC Ram Kishan clinged onto the window of the car, whereafter, one of the persons from the car, fired bullets on HC Ram Kishan, which struck him on his leg and shoulder.
As per the prosecution case, HC Ram Kishan fell down and all those four persons then sped away in the said car towards Village Jaunti. HC Ram Kishan was taken to the hospital where he was declared "brought dead". The IO, on receipt of information, had went to the spot alongwith senior officials where one pistol was found lying. On checking it was found loaded with five live cartridges. The crime team photographed the spot after which the pistol was seized. Thereafter, on the statement of SI Khazan Singh, FIR was registered.
One accused Sandeep was arrested in FIR no. 282/12 by Anti Extortion cell in which he disclosed about his knowledge of this case as on 25.11.2012 one Neetu with his friends Paras, Alok and Kala had come to him home in a white Verna car and he took SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 3 them to his field where they had drinks. Sandeep had disclosed that on asking of Neetu he had given two fire arms to Kale and Alok which were kept with Sandeep by Neetu. Sandeep had also disclosed that on next morning he had come to know about murder of a police official at Jaunti Picket and after two days when Neetu had come to him to return the pistol and rounds he had confessed that he and Paras had fired shots at that policeman. Those pistols were recovered from Sandeep by Anti Extortion Cell.
On the basis of this information accused Sandeep was arrested in this case and section 202 IPC was added. However, in his wisdom IO moved an application for discharge of accused and Ld. MM, on 05.03.2013, instead of discharging released accused Sandeep on bail.
Accused Paras @ Goldy was arrested 03.04.2013 on the basis of his disclosure statement made by him in FIR No. 327/2012 dated 16.09.2012, PS K.N. Katju Marg.
As per the prosecution case, accused Ram Niwas, against whom the supplementary charge sheet was filed, was arrested in this case on the basis of his disclosure statement in FIR No. 162/2013 PS Crime Branch. During investigation, accused Ram Niwas refused to participate in Judicial TIP and during the course of investigations, he was identified by eye-witness, to be the one sitting on the back seat of the said car, which was stopped by deceased HC Ram Kishan for checking.
SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 4 The other two accused involved in this case namely Neetu Dabhodia and Alok Gupta, were reported to have died in Police Encounter in PS Vasant Kunj with respect to which FIR No. 453/13 was registered at PS Vasant Kunj.
CHARGE
4. Vide detailed order dated 13.02.2015 accused Sandeep was discharged and accused Ram Niwas was charged for commission of offence u/S 186/353/302/34 IPC to which accused Ram Niwas pleaded not guilty and claimed trial. Accused Paras @ Goldy was declared proclaimed offender at that time however, later on proceeding against him got abated on his death.
EVIDENCE
5. To prove its case against accused Ram Niwas @ Kala prosecution examined 36 witnesses. A gist of their testimony is as follows:
5.1 Pw1 Khazan Singh is the complainant who was on duty at the spot with deceased. He proved the complaint Ex.Pw1/A and site plan Ex.Pw1/B. He also proved the sketch of pistol and cartridges seized from the spot as Ex.Pw1/D and its seizure memo Ex.Pw1/E. Pw1 identified and proved the pistol and cartridges Ex.P1 and P2. Pw1, however, failed to identify the accused Ram Niwas as the occupant in the car at rear seat who was frisked by deceased.
SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 5 5.2 Pw2 Ms. Meenu Kaushik Ld. MM proved the record of TIP proceedings Ex.Pw2/A to Ex.Pw2/E qua accused Paras @ Goldy.
5.3 Pw3 Ct. G K Siddaiah was also on duty at spot with deceased. He deposed about arrival of Pw1 and HC Virender in Govt. Vehicle Tata 407 for checking the vehicles. He also deposed about arrival of one white colour big vehicle having three four persons sitting in the car which was stopped by deceased. To the incident he deposed that "I also saw that HC Ram Kishan (deceased) was knocking the glass of the car for checking the vehicle. While SI Khazan Singh was writing in the register, I heard gun shot and saw that HC Ram Kishan Struck against the window of the said vehicle and fell down at a distance of 5 feet from it. The driver of said vehicle reversed the car at a high speed for a distance of about 100 meters. HC Bijender started the Tata 407 and chased the said vehicle from some distance but those persons managed to to escape in their vehicle towards Jaunti village. We ran and went towards HC Ram Kishan who was badly injured and was unconscious. His body was kept in Tata 407 vehicle and SI Khazan Singh gave information of the said information.......".(bold added) To the identity of accused Pw3 deposed that "I had seen the spot and I only recollect that same was of white colour long car. As the incident had taken place in a spur of moment I could hardly react and I could see the person sitting on the back seat of the car only for a second when he got down. I had seen the said person from some distance and he looked like the accused SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 6 present in the court today".
5.4 Pw4 Inspector Anil Kumar was in charge crime team on the who was called at spot by IO. He proved his report Ex.Pw4/A. 5.5 Pw5 HC Vijender Singh is the Driver of Tata 407 who had went to spot with Pw1. The deposition of Pw5 is "I alongwith SI Khazan Singh got down from Tata 407 Vehicle. SI Khazan Singh asked Ct. Siddia to bring the checking register. I came back to Tata 407 and set on the driving seat of the vehicle.
SI Khazan Singh was writing the checking details in the register. I saw one white colour vehicle (Lambi car like Verna or Honda city) which came at the picket and stopped there. This vehicle stopped for about 15 seconds and HC Ram Kishan reached near the said vehicle. HC knocked the window glass of the driver seat. The car driver dropped the glass of the window down and had some discussion, which I have not heard. Thereafter HC Ram Kishan reached the rear window of the car which was behind driver seat and he opened the window. From that side one person got down who was around 35-40 years old and he was wearing white Kurta Payjama and was having a lohi (kind of shawls for male) around him. This person lifted both his hands upward from his lohi and HC Ram Kishan checked him. Thereafter HC Ram Kishan took a round from rear side of car and came at the rear left window of side window of the car. HC Ram Kishan opened the side window and from that side one person came out who was also wrapping around him one chadar. HC Ram Kishan also checked him and thereafter he also sat inside the car. Thereafter SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 7 HC Ram Kishan opened the window of the front left side window. From that one person also came out and stand up and then he again sat inside the vehicle. HC Ram Kishan was that time standing between this front left opened window and the car. Then immediately I heard a sound of gun fired. I shouted there was a gunshot fired and I started igniting the engine of my vehicle. I again heard a second gunshot fired and I saw that the said car was reversing and HC Ram Kishan who was standing at the window was hit by the window of the car and he was thrown for about 5-7 feet. The driver reversed the vehicle at a very high speed and reversed the car for about 200-225 meters. When I was starting my vehicle, since it was CNG run vehicle it took long self in igniting/starting the engine of my vehicle. I started my vehicle and chasing the car for about 20-25 yards. The car which was at a speed took a turn and moved their vehicle towards Jaunti village and the vehicle was being driven at a high speed. I left my vehicle Tata 407 and rushed towards HC Ram Kishan for his assistance on foot".(bold added) Pw5 deposed that he can identify Paras as the one who for a few second got down from the car stood up and thereafter again sat in the car and he had identified Paras in PS on 05.04.13 in the lockup. This examination was done on 19.08.2015. Ld. Prosecutor, however requested to defer the examination of Pw5 on that date to seek clarification from IO.
On next date i.e. 18.09.2015 when examination of Pw5 resumed Pw5 deposed that he had visited PS on 26.09.2013 as he had come to know about arrest of murderer of HC Ram Kishan.
SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 8 There, in the DO room, he saw one person sitting who was being inquired by police and Pw5 identified that person as the one who was sitting in the car on that night, behind the seat of driver who was the first one to get down from car and he disclosed his name as Ram Niwas i.e. the accused facing trial. Pw5 also deposed that the driver of the car was Neetu Daboria, person sitting adjacent to him was Paras @ Goldy and on rear left seat was Alok Gupta siting beside accused Ram Niwas.
5.6 Pw6. Dr. Manoj Dhingra proved PM report Ex.Pw6/A. 5.7 Pw7. Ct Hans Raj is the photographer in the crime team and proved negatives of photographs of spot Ex.Pw7/A1 to A7 and the photographs Ex.Pw7/B1 to B7.
5.8 Pw8 SI Ajit Singh is in charge control room and he proved the register recording information of the incident Ex.Pw8/A which was transmitted to PCR vide entry Ex.Pw8/B. 5.9 Pw9 Ct. Sandeep is the special messenger who delivered the copy of FIR at the house of area MM.
5.10 Pw10 Ct. Yoginder was with IO on DD no. 3B and went to spot with him. From spot he went to hospital where on instructions of IO shifted the dead body to SGM Hospital where the body was examined post mortem. After post mortem doctor handed over the exhibits i.e. piece of bullet recovered from body of deceased, gauze having blood of deceased and clothes, which were seized. He proved the seizure memo of these exhibits as SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 9 Ex.Pw10/A. 5.11 Pw11 Sh. Balbir Singh and Pw12 Sh. Bharat Singh proved the dead body identification memos Ex.Pw11/A and Ex.Pw12/A respectively. They also proved dead body handing over memo Ex.Pw11/B. 5.12 Pw13 SI Bhoop Singh proved the disclosure statement of accused Paras Ex.Pw13/A. 5.13 Pw14 Ct. Rakesh had taken the exhibits from MHC(M) to FSL and deposited the same against acknowledgment.
5.14 Pw15 Ct. Krishan Kumar proved the DD entry regarding departure of deceased and Pw3 Ex.Pw15/A, departure entry of Pw1 and Pw5 Ex.Pw15/B and DD no. 3B regarding information of incident Ex.Pw15/C. 5.15 Pw16 Sanjeev Sharma and Pw17 Suresh Kumar are MCD booth operators and they proved the site plan prepared at the instance of accused Ram Niwas Ex.Pw16/A and the pointing out memo Ex.Pw16.B. 5.16 Pw18 SI Ravinder Joshi was SI at special cell who had arrested accused Paras @ Goldy in FIR no. 327/12.
5.17 Pw19 HC Rajender Kumar is the duty officer and he proved departure entry Ex.Pw19/A regarding departure of IO and Pw10 to the spot. He also proved the arrival entry of Rukka SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 10 Ex.Pw19/B and the endorsement on Rukka Ex.Pw19/C. He further proved copy of FIR Ex.Pw19/D and departure entry of sending special messenger to Area Magistrate Ex.Pw19/E. 5.18 Pw20 HC Anup Singh is the MHC(M). he proved the deposit of exhibits and case properties vide entry Ex.Pw20/A and the road certificate of sending it to FSL EX.Pw20/B. He also proved the acknowledgment of FSL regarding receipt of exhibits in FSL Ex.Pw20/C. 5.19 Pw21 SI Sandeep is the first IO and he proved Rukka Ex.Pw21/I. 5.20 Pw22. Ct. Ashok was with Pw21 during initial investigation and it was him who had taken Rukka and got the FIR registered.
5.21 Pw23 SI Naresh Kumar had reached at spot on information of incident and went with Pw1 and other to hospital with injured HC Ram Kishan.
5.22 Pw24 ASI kailash proved DD no. 7A regarding receipt of information of arrest of accused Ram Niwas as Ex.Pw24/1.
5.23 Pw25 HC Suresh proved departure entry of SI Khazan Singh for patrolling, dated 26.09.2013, as Ex.Pw25/1.
5.24 Pw26 SI Nirmal, Pw29 ASI Anil and Pw30 ASI Pradeep Kumar proved the arrest memo and personal search memo of SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 11 accused in FIR no. 162/13 PS Crime Branch as Ex.Pw29/1 and Ex.Pw29/2 respectively.
5.25 Pw27 Ct. Anil proved the arrest memo of accused in this case as Ex.Pw27/1. He also proved the disclosure statement Ex.Pw27/2. He is also a witness in pointing out memo Ex.Pw16/B. 5.26 Pw28 HC Gunender proved DD no. 54 B dated 26.09.2013 regarding return to PS and departure for patrolling, of SI Khazan Singh, at 5.40 pm, as EX.Pw28/1.
5.27 Pw31 Dr. Manish Wadhawan proved the cause of death in PM report Ex.Pw6/A that death was caused due to hemorrahage and shock associated with injury no.1 mentioned in the report which could be possible from projectile discharged from a firearm capable of discharging such a projectile.
5.28 Pw32 Sh. Punit Suri proved the Ballistic FSL report EX.Pw32/1.
5.29 Pw33 ACP RS Khatri proved the complaint u/S 195 CR.P.C Ex.Pw33/A. 5.30 Pw34 Inspector Sanjay Kumar is the second IO. He proved the inquest form Ex.Pw34/A disclosure statement and arrest of accused Sandeep (discharged) Ex.Pw34/B and Ex.Pw34/C respectively.
SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 12 5.31 Pw35 Sh. Bhupender Singh Ld. ACMM (the then MM) proved the TIP proceedings of accused Ram Niwas Ex.Pw35/A and his refusal to participate Ex.Pw35/B. 5.32 Pw36 Inspector Tarif Singh is the last IO who filed the chargesheet.
STATEMENT OF ACCUSED
6. After completion of prosecution evidence accused was examined u/S 313 Cr.PC and all the incriminating material were put to him. Accused claimed innocence and false implication. He did not opt to lead any defence evidence.
ARGUMENTS
7. Prosecution submits that the case against accused has been fairly proved as the accused has been positively identified by Pw5 as one of the occupants in the car from which, during checking, one of them fired at HC Ram Kishan. Therefore it has to be presumed that he shared the common intention with the other occupants of car as they were heading somewhere to commit some crime. Hence the accused Ram Niwas @ Kala is liable to be convicted for offence murder read with section 34 IPC.
8. Ld. LAC for defence on the other hand submitted that accused is falsely implicated in this case and roped in this case on the basis of false and fabricated disclosure statements of other SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 13 accused persons, out of them one is already discharged and other one has died, and those disclosure statements has no evidenciary value. It is also submitted that identification of accused by Pw5 is doubtful as his version of the manner in which incident happened contradicts with Pw1. Defence contends that accused was arrested in some other case and the information of his arrest was already given to police of this case on 22.03.2019 itself however accused was produced in court only on 25.09.2013 only and by that time witnesses were made aware of identity of accused therefore he had to refuse his TIP.
9. Ld. Defence Counsel also pointed to the manner of examination of Pw5 that on first day when the witness was examined he was asked about identity of an accused who was not on trial but no identification of accused Ram Niwas was done and the recording of evidence was deferred on the pretext of seeking clarification from IO but on next day without seeking any clarification the examination was resumed and accused was identified. Therefore Pw5 was either tutored for identification or forced to identify accused Ram Niwas. Otherwise like Pw1 and Pw3, Pw5 too had no occasion to clearly see as to who had come down from car to make a positive identification after 10 months of incident. Ld. LAC also pointed to the fact that winter was nearing and witnesses have admitted that there was fog therefore the vision was limited, hence Pw5 had not seen the face of accused Ram Niwas or other occupants of car at the spot and his testimony naming and identifying all the occupants of car is false and based on the disclosure statements of accused Sandeep and Paras which were fabricated by police and bear no relevance in SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 14 this case. Therefore it is pleaded that prosecution has failed to proved its case beyond reasonable doubts. Hence, accused is liable to be acquitted.
FINDINGS
10. There is no dispute that HC Ram Kishan died due to the bullet injuries he received while he was on duty, checking vehicles at Jaunti Picket. Therefore it was a homicide. As per PM report Ex.Pw6/A injury no. 1 is a firearm entry wound .8cm x . 3cm oval shaped surrounded by tattooing in an area of 3 x 2 cm over posterolateral aspect of right shoulder 9 cm below the acromion with fracture of right shoulder. Track of wound directs from right shoulder to right lower lobe of lung, apex of heart, intestine & lodged in left abdominal muscles, injury track is from above to downwards and right to left. This is the injury which caused hemorrhage and shock leading to death of HC Ram Kishan. The way this injury is caused with a fire arm is sufficient to infer that the person who fired the shots intended to kill HC Ram Kishan. Further the injury itself was sufficient to cause death in ordinary course of nature as it speared through vital parts of body. Therefore HC Ram Kishan was murdered by the one who fired those bullet shots.
11. The case of prosecution against accused Ram Niwas is not that he caused those injuries. It is that the accused Ram Niwas being occupant of rear seat shared common intention with the one who fired at HC Ram Kishan. Therefore the crucial question required to be addressed is whether the prosecution has proved SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 15 the presence of accused Ram Niwas in the car or not.
12. There are three witnesses of the spot i.e. Pw1 SI Khazan Singh on whose statement FIR was registered, Pw3 Ct. G K Siddaiah and Pw5 HC Vijender Singh. It is Pw5 only who has identified accused as the occupant of rear seat in the car which Ram Kishan was checking. However, there is difficulty in accepting the version of Pw5.
13. As per Pw5, HC Ram Kishan first went to the driver of car, knocked his window and talked to him then frisked the occupant of seat behind the driver after calling him out, which as per Pw5 is accused Ram Niwas, then came to left side of car, called out the person sitting on rear left seat and frisked him and then called out the occupant of front left seat who came out and immediately sat in and then two shots were fired. The deposition of Pw5 is that HC Ram Kishan was standing between the open front window and the car therefore after suffering gun shots when car reversed in high speed HC Ram Kishan was thrown away for 5-7 feets.
14. On the other hand Ex.Pw1/A, on which FIR is registered, records that after HC Ram Kishan signaled the car to stop it was stopped. HC Ram Kishan asked two persons sitting in the rear seat to get down and they got down and were frisked, thereafter HC Ram Kishan asked the person sitting adjacent to driver who rolled down the window but did not get down from car and when HC Ram Kishan tried to drag that person out of the car the driver of the car started reversing the car and one of them took out a SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 16 pistol but HC Ram Kishan grabbed that pistol and clinged to the window of reversing car and one of those occupants shot at HC Ram Kishan.
15. Pw1 however, did not depose about taking out of gun by the occupant of car, its snatching by HC Ram Kishan, clinging to window of car and firing at HC Ram Kishan by one of the occupant of car in his deposition.
16. If the testimonies of Pw5 and Pw1 are reconciled with PM Report the testimony of Pw1 appears to be accurate as it fits with the injury no.1 in PM report. The deposition of Pw5 that the window was open and HC Ram Kishan was standing between window and car cannot fit with injury no. 1 as it is impossible to cause a bullet injury on a person standing outside a car by someone sitting inside a sedan car, making an entry wound from shoulder landing the bullet at abdomen, piercing vital parts of body.
17. The deposition of Pw3 is that he saw HC Ram Kishan knocking the glass of car for checking the vehicle and while Pw1 was writing the register he heard gunshot and saw that HC Ram Kishan was struck against window of the vehicle and fell down at a distance of 5 feet from it. This witness had seen only one person sitting at rear seat for moment when he got down. Therefore Pw3 could not positively identify if the accused was same person or not but he looked like the accused.
18. Accused Ram Niwas was arrested after about 10 months of SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 17 incident and the prosecution has not proved any fact on record to establish the identify of the occupants specially the one who was wearing Kurta Payjama and had wrapped a lohi. The disclosure statements of co accused Sandeep, given in FIR no.282/12 was never proved not it would have been admissible.
19. Even the disclosure statement of deceased accused Paras in FIR no.372/12, Ex.Pw13/A and in this FIR Ex.Pw10/B and of discharged accused Sandeep, Ex.Pw34/B, do not given any detail of fourth person except the name 'Kala'.
20. Therefore the only admissible evidence against accused is the testimony of Pw5 identifying him as the person sitting behind driver seat in that car, wearing Kurta Payjama and wrapped brown lohi, who as per Pw5 had come out of car and was frisked by HC Ram Kishan.
21. The defence questions the occasion with and capacity of Pw5 of making positive identification and contends that if Pw5 or Pw3, who deposed that the accused looks like the persons sitting in rear seat of car, had actually seen the person or noticed the features of that person, why is it that no sketch of any suspect was prepared by the police. I find force in this contention because both Pw-3 & Pw-5 have not deposed about any description of suspect, who was sitting on the rear seat behind driver, being given to IO during investigation. Therefore, it is unsafe to believe that Pw-5 could have seen the face of the person sitting behind the driver seat. The doubt on capacity of and occasion with Pw-5 to identify the person sitting in the car is SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 18 also reinforced for the fact that he was not able to identify as well as recollect if the car was Verna or Honda City. If he was not in position to identify the make of car which is bigger than accused, it is doubtful if Pw-5 had positively seen the face of person sitting in the back seat of the car who for few moments came down and frisked by deceased HC Ram Kishan. The visibility must have been effected by the fog as deposed by Pw-3.
22. Further the identification of accused by Pw-5 is again under suspicious circumstances. It is deposed by Pw-5 that he had gone to police station on 26.09.2013 as he had to come to know about arrest of a person who was involved in the murder of Ram Kishan but in cross examination he admits that he was not called by the IO nor given any information to visit the police station to identify the accused. The IO has not even proved any DD entry of arrival of Pw-5 in the police station for making identification of accused. The fact is that the accused was already arrested in FIR No. 162/2013 on 21.09.2013 and the information regarding the disclosure of accused Ram Niwas to PS Kanjhawala was immediately given after his arrest. Pw-26 is the IO of FIR No. 162/2013 and there is no deposition of Pw-26 that accused Ram Niwas was kept in muffled face during the period he was under his custody. Therefore, there was a justification with accused to refuse the TIP.
23. There is no other evidence against accused except inadmissible disclosure statement.
24. In view of the discussion above held, as it is unsafe to rely SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 19 on the identification by Pw-5 for possible lack of occasion and capacity in recognizing the face of the person who was sitting behind the driver in the car and there is no attempt to make any sketch of any suspect, had Pw-5 or other witnesses were in possession of identifying the fourth occupant of the car, I am of the view that prosecution has failed to prove the case against accused beyond all reasonable doubts. Hence, the accused is acquitted of the charges levelled against him.
Digitally signed by VIKRAMVIKRAM Date: 2023.02.08 Date : 08.02.2023 15:54:43 +0530 (Vikram) ASJ-02/Spl. Judge (NDPS), North West, Rohini Courts, Delhi/08.02.2023 Dictated on : 08.02.2023 Transcribed on : 08.02.2023 Digitally signed by VIKRAM checked on : 08.02.2023 Date: Signed on : 08.02.2023 VIKRAM 2023.02.08 15:54:48 +0530 (Vikram) ASJ-02/Spl. Judge (NDPS), North West, Rohini Courts, Delhi/08.02.2023 SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 20 Annexure 'A' List of Prosecution Witnesses S.No. PW No. Name of Witness Details of Witness 1. PW-1 Khazan Singh Checking officer(retired SI) 2. PW-2 Ms. Meenu Kaushik Ld. MM 3. PW-3 Ct. G K Siddaiah Posted at Jaunti Toll Tax Picket 4. PW-4 Insp. Anil Kumar Incharge Crime Team 5. PW-5 HC Vijender Singh Driver 6. PW-6 Dr. Manoj Dhingra Conducted Post mortem 7. PW-7 Ct. Hans Raj Photographer 8. PW-8 SI Ajit Singh Recrod Incharge 9. PW-9 Ct. Sandeep Witness taken the copy of FIR beore Ld. Duty MM, Joint CP and DCP concerned 10. PW-10 Ct. Yoginder Joined investigation with IO 11. PW-11 Sh. Balibir Singh Dead body identification 12. PW-12 Sh. Bharat Singh Dead body identification 13. PW-13 SI Bhoop Singh Witness to arrest of accused Paras @ Vikram 14. PW-14 Ct. Rakesh Deposited the case property with FSL 15. PW-15 Ct. Krishan Kumar DD writer 16. PW-16 Sh. Sanjeev Sharma Booth Operator 17. PW-17 Sh. Suresh Kumar Incharge at Naka Toll Tax SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 21 18. PW-18 SI Ravinder Joshi IO of case FIR No. 307/2012, PS KNK Marg 19. PW-19 HC Rajender Duty Officer 20. PW-20 HC Anup Singh MHC(M) 21. PW-21 Ex. SI Sandeep IO 22. PW-22 Ct. Ashok Kumar Joined investigation with IO 23. PW-23 SI Naresh Kumar Brought deceased to hospital 24. PW-24 ASI Kailash Proved DD No. 7A 25. PW-25 HC Suresh Proved DD No. 14B 26. PW-26 SI Nirmal IO of case FIR No. 162/13, Crime Branch 27. PW-27 Ct. Anil Witness to arrest of accused Ram Niwas 28. PW-28 HC Gunender Proved DD No. 54B 29. PW-29 ASI Anil Witness to arrest of accused Ram Niwas in case FIR No. 162/13, Crime Branch 30. PW-30 ASI Pradeep Kumar Witness to arrest of accused Ram Niwas in case FIR No. 162/13, Crime Branch 31. PW-31 Dr. Munish Wadhawan Conducted postmortem 32. PW-32 Sh. Puneet Puri Proved FSL report 33. PW-33 ACP R.S. Khatri File complaint under Section 195 Cr.P.C. 34. PW-34 Insp. Sanjay Kumar IO Gaur 35. PW-35 Sh. Bhupender Singh (Ld. ACMM) Witness to TIP of SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 22 accused Ram Niwas 36. PW-36 Insp. Tarif Singh IO SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 23 Annexure 'B' List of Exhibits S.No. Exhibit No. Details of Remarks Documents 1. Ex. PW 1/A Complaint 2. Ex. PW 1/B Site plan 3. Ex. PW 1/C Statement 4. Ex. PW 1/D Sketch of pistol 5. Ex. PW 1/E Seizure memo of pistol and cartridges 6. Ex. P1 Pistol 7. Ex. P2 Cartridges 8. Ex. PW 2/A Statement of IO During TIP 9. Ex. PW 2/B Statement of accused During TIP 10. Ex. PW 2/C TIP proceedings 11. Ex. PW 2/D Certificate 12. Ex. PW 2/E Endorsement 13. Ex. PW 4/A Reported Prepared by Insp. Anil Kumar 14. Ex. PW5/DX Statement under Exhibited in Section 161 Cr.P.C. cross examination 15. Ex. PW 6/A PM report 16. Ex. PW 7/A 1 Negative of to A 7 photographs 17. Ex. PW 7/B 1 Developed copies of to B 7 photographs 18. Ex. PW 8/A Entry in DM Net Register 19. Ex. PW 8/B Relevant entry in wireless log & diary 20. Ex. PW 10/A Seizure memo 21. Ex. PW 10/B Disclosure statement of accused Paras @ Goldy SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 24 22. Ex. PW 11/A Dead body identification memo 23. Ex. PW 11/B Dead body handing over memo 24. Ex. PW 12/A Dead body identification memo 25. Ex. PW 13/A Disclosure statement of accused Paras @ Goldy 26. Ex. PW 14/A Copy of road certificate 27. Ex. PW 14/B acknowledgment 28. Ex. PW 15/A DD No. 46B 29. Ex. PW 15/B DD No. 57B 30. Ex. PW 15/C DD No. 3B 31. Ex. PW 16/A Site plan 32. Ex. PW 16/B Pointing out memo 33. Ex. PW 17/A Statement Exhibited in cross examination done by State 34. Mark 18/A Arrest memo of In case FIR no. accused Paras @ Goldy 327/2012, PS KNK Marg 35. Ex. PW 19/A DD No. 3A 36. Ex. PW 19/B DD No. 4A 37. Ex. PW 19/C Endorsement on ruqqa 38. Ex. PW 19/D FIR 39. Ex. PW 19/E DD No. 5 40. Ex. PW 20/A Entry No. 2069 in register no. 19 41. Ex. PW 20/B Photocopy of RC No. 108/21/13 42. Ex. PW 20/C Acknowledgment/recei pt of FSL 43. Ex. PW 21/A Endorsement on statement of SI Khazan SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 25 Singh 44. Ex. PW 24/1 Copy of DD No. 7A dated 22.09.2013 45. Ex. PW 25/1 Copy of DD No. 14B dated 26.09.2013 46. Ex. PW 27/1 Arrest memo of accused Ram Niwas 47. Ex. PW 27/2 Disclosure statement 48. Ex. PW 28/1 Copy of DD No. 54B dated 26.09.2013 49. Ex. PW 29/1 Arrest memo of In case FIR No. accused Ram Niwas 162/2013, PS Crime Branch 50. Ex. PW 29/2 Disclosure statement 51. Ex. PW 32/1 FSL report no. 2013/F4606 dated 30.10.2023 52. Ex. PW 33/A Complaint under Section 195 Cr.P.C. 53. Ex. PW 34/A Post mortem form 54. Ex. PW 34/B Disclosure statement of accused Sandeep @ Vicky 55. Ex. PW 34/C Arrest memo of accused Sandeep @ Vicky 56. Ex. PW 35/A TIP proceedings of accused Ram Niwas 57. Ex. PW 35/B Statement of accused Ram Niwas 58. Ex. PW 36/A Arrest memo of accused Paras @ Goldy SC No. 51751/2016 State Vs. Sandeep @ Vicky & Ors. Page no. 26