State vs . (1) Satish Kumar @ Pawan @ Suresh @ Pappu on 17 January, 2015

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Delhi District Court

State vs . (1) Satish Kumar @ Pawan @ Suresh @ Pappu on 17 January, 2015

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII 
         (NORTHWEST): ROHINI COURTS: DELHI


Session Case No. 83/2012
Unique Case ID No.: 02404R0271492012

State                      Vs.  (1)           Satish Kumar @ Pawan @ Suresh @ Pappu
                                              S/o Sh. Brij Mohan
                                              R/o Y1126, Mangol Puri, 
                                              Delhi
                                              (Acquitted)


                                     (2)      Vikram Yadav @ Vijay
                                              S/o Inder Singh Yadav
                                              R/o H. No. 951, Village Bawana,
                                              Delhi
                                              (Proclaimed Offender)


FIR No.:                             83/2012
Under Sections:                      302/34 Indian Penal Code
Police Station:                      Kanjhawla (Crime Branch)

Date of committal to session court:                   20.4.2013

Date on which orders were reserved: 13.1.2015

Date on which judgment pronounced:17.1.2015


JUDGMENT:

(1) As per the allegations, on 20.4.2012 at about 11:55 PM at Budh Vihar - Kanjhawla Road, near Fakkar Dhaba, Karala Delhi the accused Satish Kumar along with the accused Vikram Yadav (since Proclaimed St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 1 of 117 Offender) in furtherance of their common intention committed murder of Rajender S/o Azad Singh by firing upon him by the firearms. Brief facts/ case of the prosecution:

(2) The case of the prosecution is that on 21.4.2012 at 00:17 Am a PCR call was received at Police Station Kanjhawla vide DD No. 2A regarding an accident and injured at Government School, Main Karala Road pursuant to which SI Pramod alongwith Ct. Satish Kumar reached at the spot i.e. opposite Fakkar Dhaba where one Accent car bearing Registration No. DL 8C T 4796 was found in an accidental condition with a tree. On checking the vehicle there were three bullet shots on the right side windscreen and one bullet hole was on front windscreen and blood stains were found on the driver seat of the vehicle and they came to know that the injured was removed to SGM Hospital by the PCR. In the meanwhile ATO and SHO of Police Station Kanjhawala also reached the spot and Ct. Satish was left at the spot for the protection and preservation of the scene of crime while SI Pramod went to Sanjay Gandhi Memorial Hospital where he obtained MLC of unknown person aged about 35 years who was declared brought dead by the doctor. On inquiry the name of deceased was revealed as Rajender and no eye witness was met in the hospital. The spot of incident was got inspected by the Crime Team and the various exhibits were then lifted from the vehicle which were taken into possession. SI Pramod then prepared a rukka which was handed over to Ct. Satish Kumar for St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 2 of 117 registration of FIR and further investigations were handed over to Inspector Sanjay Kumar Gaur as per the directions of the SHO. On 24.04.2012 the ascent vehicle was got inspected by the penal of experts of FSL who lifted eight exhibits and handed over the same to Investigating Officer. (3) During investigations it was revealed that the deceased was in friendly relations with one Kuldeep who indulged into satta/ betting who had been threatened by a desperate criminal namely Satish @ Pawan who was demanding protection money. The friends of Kuldeep namely Naveen @ Sonu, Sarabjeet Sardar, Sandeep @ Chacha and Ashish were also interrogated and it was revealed that Kuldeep had been receiving threatening calls from Satish Kumar @ Pawan. Thereafter the investigation of this case was transferred to Crime Branch. (4) On 2.7.2012 the accused Satish Kumar @ Pawan was arrested by the Special Cell, New Delhi Range from near Shiva/ Bharat Mandir, Bharat Vihar, Rishikesh and during his interrogation the accused disclosed his involvement in the present case. Thereafter the accused was interrogated in this case on 6.7.2012 after taking the permission from the Court after which he was arrested and taken on three days Police Custody remand on 6.7.2012 during which efforts were made to recover the weapon of offence and raids were conducted at Rishikesh, Hissar, Ghaziabad, Mohan Nagar Etc. in search of coaccused Vikram. However, neither the weapon of offence was recovered nor the coaccused Vikram was traced out and ultimately vide order dated 16.03.2013 the accused Vikram Yadav @ Vijay was declared St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 3 of 117 Proclaimed Offender. After completion of investigations charge sheet was filed against the accused Satish Kumar @ Pawan.

CHARGES:

(5) Charges under Sections 302/34 Indian Penal Code and Section 27 of Arms Act were settled against the accused Satish Kumar @ Pawan to which he pleaded not guilty and claimed trial.

(6) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:

List of Prosecution Witnesses:

Sr. PW Name of the Witness Details of the witness
No. No.
1. PW1 SI Ashwani Kumar Police Witness - Duty Officer
2. PW2 HC Anoop Kumar Police Witness MHCM
3. PW3 Ct. Yogender Police Witness who got preserved the dead
body in SGM Hospital
4. PW4 W/Ct./ Bhoomika Police Witness - PCR Form
5. PW5 Ct. Ajay Kumar Police Witness who has proved the
disclosure statements of the accused
6. PW6 Ct. Hari Om Police Witness - Special Messenger
7. PW7 HC Vishesh Kumar Police Witness - PCR Van Incharge
8. PW8 Ex. ASI Devender Kumar Police Witness - Mechanical Expert
9. PW9 Insp. Mahesh Kumar Police Witness Draftsman
10. PW10 HC Sudarsanan Police Witness who has proved the
disclosure statements of the accused
11. PW11 Ct. Anil Police Witness - DD Writer

St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 4 of 117
Sr. PW Name of the Witness Details of the witness
No. No.
12. PW12 Ct. Hans Ram Police Witness - Crime Team
Photographer
13. PW13 SI Anil Kumar Police Witness - Crime Team Incharge
14. PW14 Dr. N.P. Waghmare FSL Expert (Ballistics)
15. PW15 Dr. Kanaklata FSL Expert who has proved the Chemical
Analysis Report
16. PW16 Sh. M.N. Vijayan Nodal Officer from Tata Teleservices
17. PW17 Sh. Hussain M. Zaidi Nodal Officer from Idea Cellular
18. PW18 Sh. Anuj Bhatia Nodal Officer from Vodafone
19. PW19 Sh. Vishal Gaurav Nodal Officer from Bharti Airtel
20. PW20 Rajender Kumar Public Witness - Uncle of the deceased
21. PW21 Sandeep Public Witness - Driver of Kuldeep
22. PW22 Ashish Chikara Public Witness - Allottee of mobile No.
9213622222
23. PW23 Ms. Seema Nain FSL Expert (Serological/ Biological)
24. PW24 Sh. V.R. Anand FSL/ Ballistics Expert
25. PW25 Kuldeep Public Witness - Friend of deceased
Rajinder
26. PW26 Dr. Munish Wadhawan Autopsy Surgeon
27. PW27 Ms. Purnima Public Witness - Wife of the deceased
28. PW28 Sarabjit Singh Public Witness - Friend of deceased
Rajinder
29. PW29 Azad Singh Public Witness - Father of the deceased
30. PW30 Naveen @ Sonu Public Witness - Friend of deceased
Rajinder
31. PW31 Ashish Solanki Public Witness - Friend of deceased
Rajinder
32. PW32 Sandeep Solanki Public Witness - Friend of deceased
Rajinder

St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 5 of 117
Sr. PW Name of the Witness Details of the witness
No. No.
33. PW33 Insp. Sanjay Kumar Police Witness who had reached the spot
of incident
34. PW34 SI Pawan Dahiya Police Witness/ Officer from Special Cell
who has apprehended the accused Satish
35. PW35 SI Prabhanshu Police Witness who had recorded the
statement of W/Ct. Bhumika
36. PW36 SI Pramod Kumar Police Witness who had reached the spot
on receipt of information
37. PW37 Vaibhav Gupta Public Witness who had made a call on
100 number
38. PW38 SI Sahab Singh Police Witness who had recorded the
disclosure statement of the accused
39. PW39 Ct. Satish Police Witness who had joined
investigations with SI Pramod Kumar
40. PW40 Insp. Akshay Kumar Investigating Officer of the present case

List of Documents Exhibited:

Sr. Exhibit No. Name of documents Proved By
No.
1. PW1/1 Affidavit of evidence of SI Ashwani SI Ashwani Kumar
Kumar
2. PW1/A DD No. 2A
3. PW1/B Copy of FIR No.83/2012
4. PW1/C Endorsement of Rukka
5. PW2/1 Affidavit of evidence of HC Anoop HC Anoop Kumar
Kumar
6. PW2/A Entry in Register No. 19 at Sr. No. 1753
7. PW2/B Entry in Register No. 19 at Sr. No. 1756
8. PW2/C Entry in Register No. 19 at Sr. No. 1952

St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 6 of 117
Sr. Exhibit No. Name of documents Proved By
No.
9. PW2/D Entry in Register No. 21 at Sr. No.
80/21/12
10. PW2/E FSL Receipt
11. PW2/F Entry in Register No. 21 at Sr. No.
39/21/12
12. PW2/G FSL Receipt
13. PW3/1 Affidavit of evidence of Ct. Yogender Ct. Yogender
14. PW3/A Seizure Memo of Sandle
15. PW3/B Seizure Memo of exhibits preserved by
the Autopsy Surgeon
16. PW4/1 Affidavit of evidence of W/Ct. W/Ct. Bhoomika
Bhoomika
17. PW4/A PCR Form
18. PW5/1 Affidavit of evidence of Ct. Ajay Kumar Ct. Ajay Kumar
19. PW5/A Disclosure statement of accused dated
7.7.2012
20. PW5/B Supplementary disclosure statement of
accused dated 8.7.2012
21. PW5/C Supplementary disclosure statement of
accused dated 14.7.2012
22. PW5/D & Pointing out memos
PW5/E
23. PW6/1 Affidavit of evidence of Ct. Hai Om Ct. Hari Om
24. PW7/1 Affidavit of evidence of HC Vishesh HC Vishesh Kumar
Kumar
25. PW7/A Seizure memo of belongings of the
deceased
26. PW8/1 Affidavit of evidence of Ex. ASI Ex. ASI Devender
Devender
27. PW8/A Mechanical Inspection Report

St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 7 of 117
Sr. Exhibit No. Name of documents Proved By
No.
28. PW9/1 Affidavit of evidence of Inspector Inspector Mahesh
Mahesh Kumar Kumar
29. PW9/A Scaled Site Plan
30. PW10/1 Affidavit of evidence of HC Sudershnan HC Sudershnan
31. PW10/A Arrest Memo of the accused Satish
32. PW10/B Disclosure Statement of the accused
dated 6.7.2012
33. PW11/1 Affidavit of evidence of Ct. Anil Ct. Anil
34. PW11/A DD No. 6A
35. PW11/B DD No. 7A
36. PW12/1 Affidavit of evidence of Ct. Hans Ram Ct. Hans Ram

37. PW12/A1 to Photographs of the scene of crime PW12/A24

38. PW12/B Negatives of the photographs

39. PW13/1 Affidavit of evidence of SI Anil Kumar SI Anil Kumar

40. PW13/A Crime Team Report

41. PW14/A Report of FSL Expert pertaining to Dr. N.P. Waghmare inspection of Accent car No. DL8CT4796

42. PW14/B Ballistics Report

43. PW15/A Chemical Analysis Report Dr. Kanaklata Verma

44. PW16/A Customer Application Form of mobile Sh. M.N. Vijayan No. 9213622222

45. PW16/B ID Proof of the Customer

46. PW16/C Call Detail Records from 1.4.2012 to 21.4.2012

47. PW16/D Cell ID Chart of No. 9213622222

48. PW16/E Certificate under Section 65B of Evidence Act St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 8 of 117 Sr. Exhibit No. Name of documents Proved By No.

49. PW17/A Customer Application Form of mobile Sh. Hussain M. Zaidi No. 7351480636

50. PW17/B ID Proof of the Customer

51. PW17/C Call Detail Records from 1.3.2012 to 30.4.2012

52. PW17/D Cell ID Chart of No. 7351480636

53. PW17/E Certificate under Section 65B of Evidence Act

54. PW18/A Customer Application Form of mobile Sh. Anuj Bhatia No. 9711834567

55. PW18/B ID Proof of the Customer

56. PW18/C Call Detail Records from 14.3.2012 to 15.2.2012

57. PW18/D Cell ID Chart of No. 9711834567

58. PW18/E Certificate under Section 65B of Evidence Act

59. PW19/A Customer Application Form of mobile Sh. Vishal Gaurav No. 9971794645

60. PW19/B ID Proof of the Customer

61. PW19/C Call Detail Records from 10.4.2012 to 25.4.2012

62. PW19/D Customer Application Form of mobile No. 9760993997

63. PW19/E ID Proof of the Customer

64. PW19/F Call Detail Records from 1.3.2012 to to 30.4.2012 (UP Circle)

65. PW19/G Call Detail Records from 1.3.2012 to to 30.4.2012 (Delhi Circle)

66. PW19/H Cell ID chart of UP Circle

67. PW19/I Cell ID Chart of Delhi Circle St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 9 of 117 Sr. Exhibit No. Name of documents Proved By No.

68. PW19/J Certificate under Section 65B of Evidence Act

69. PW20/A Dead Body Identification Memo Rajender Kumar

70. PW20/B Dead Body Identification statement of Azad Singh

71. PW20/C Receipt of Dead Body

72. PW23/A Biological Report Ms. Seema Nain

73. PW23/B Serological Report

74. PW26/A Postmortem Report of the deceased Dr. Munish Wadhawan

75. PW27/A Superdarinama of Accent car No. Smt. Purnima DL8CT4796

76. PW27/B1 to Photographs of the vehicle i.e. Accent PW27/B4 Car of white colour bearing No. DL8CT4796

77. PW33/A Rough Site Plan Insp. Sanjay Kumar Gaur

78. PW33/B Seizure of accent car No. DL8CT4796

79. PW33/C Inquest Papers

80. PW33/D Application for conducting Postmortem

81. PW33/E Seizure memo of the exhibits lifted by the FSL Experts

82. PW34/A Kalandra under Section 41.1 (a) Cr.P.C. SI Pawan Dahiya

83. PW34/B Disclosure statement of accused

84. PW36/A Seizure Memo of the articles lifted from SI Pramod Kumar the spot

85. PW36/B Rukka

86. PW38/A Disclosure Statement of the accused SI Sahab Singh St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 10 of 117 EVIDENCE:

(7) In order to prove its case the prosecution has examined as Forty Witnesses as under:

Public Witnesses:

(8) PW20 Rajender Kumar has deposed that he is residing at VPO Kulasi, District Jhajjhar, Haryana along with his family and is posted as Sub Inspector Security in Delhi Police. According to the witness on 21.04.2012 he had identified the dead body of his nephew Rajender son of his brother Azad Singh at SGM hospital vide memo Ex.PW20/A and his brother Azad Singh also present in the hospital and had identified the dead body of his nephew Rajender vide memo Ex.PW20/B. Witness has further deposed that after the conduct of postmortem he had received the dead body of his nephew vide memo Ex.PW20/C. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this granted.

(9) PW21 Sh. Sandeep a Driver by profession has deposed that he is residing at VPO Ladpur, Delhi81 along with his family and Kuldeep Singh is known to him as he belongs to his village and he used to drive his (Kuldeep's) vehicle. According to the witness Kuldeep had obtained a SIM card with mobile number 9711834567 of Vodafone and he had given his identity proof i.e. driving licence to him for obtaining the said number on his identity and address but the same is being used by Kuldeep for last about 45 years. Witness has further deposed that the police had called him St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 11 of 117 to the Police Station for inquiry on this point and he informed them about the same.

(10) In his cross examination by Ld. Defence counsel, witness has deposed that he is driving the vehicle of Kuldeep for the last five to six years. Witness has further deposed that Kuldeep does not know how to drive and he used to pick him up and leave him. According to the witness, he never used the mobile phone of Kuldeep even if he was with him in the car and has voluntarily explained that in an eventuality if the phone was left in the car, he would only informed Kuldeep that there was a missed call but he did not attend to the call. Witness has denied the suggestion that he was the user of mobile number 9711834567 and has voluntarily explained that it is Kuldeep who is using the same.

(11) PW22 Sh. Ashish Chikkara has deposed that he is residing at 25/671, Chikkara Colony, Bahadurgarh, Haryana along with his family and he is working with Shree Ganesh Industries Manesar and previously he was residing at B51, Anand Nagar, Village Nithari, Delhi. According to the witness Parveen Rathi is his friend for the last about ten years and about three years ago, he was introduced by Parveen to his Jeeja Naveen Solanki @ Sonu. Witness has further deposed that Naveen was already having a mobile No. 9911542222 while at that time he was using a mobile number 9213622222 and Naveen requested him to give him his number so that both his mobile numbers have a similar sequence and hence on asking of his friend Parveen Rathi he gave him his SIM card bearing Number St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 12 of 117 9213622222 and ever since it is Naveen @ Sonu who is using the above number. He has deposed that he had obtained a new number and police had made telephonic inquiries from him and he informed them about the aforesaid facts.

(12) In his cross examination by Ld. Defence counsel, witness has deposed that he did not obtain any written undertaking from Naveen @ Sonu regarding handling and bearing future responsibility pertaining to phone No. 9213622222.

(13) PW25 Kuldeep has deposed that he is residing at Village and Post Office Ladpur, Delhi81 with his family and he is working as property dealer in the village. According to the witness, he is not aware of anything about the present case however he met deceased Rajinder twothree days prior to his death at Sri Radhey Property, Budh vihar and where they had formal talk. Witness has further deposed that occasionally he visited to Radhey property to play badminton matches. He has testified that on 20/21.04.12 in the morning i.e. on the next day, he came to know that Rajinder was shot dead in the night while he was driving the vehicle by some unknown person and he also accompanied the last rites i.e. funeral.

According to the witness he knew the accused Satish (whom the witnessed identified in the Court) as he had met him five six years back at his office in Mangol Puri. Witness has further deposed that the police had made inquires from him but he does not know anything about the present case. St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 13 of 117 (14) In his cross examination by Ld. Addl. PP for the State, the witness has deposed that he had not stated before the police in statement Mark A that he indulged in a satta cases of IPL and other matches; that Satish @ Pawan called him in a private numbers and asked him to met him physically to discuss about the earnings of Satta and he further told him that he will pay the profits to him when these talks were going on, he had told these facts to Rajinder who was his friend; that he does not know how to drive the vehicle so that he used to drop him at Sri Radhey Property at Budh Vihar in the morning and used to take him back after the game in the night. However, when confronted with his statement Mark A portion A to A where the above facts were found so recorded. Witness has further deposed that he had also not stated before the police in the statement Mark A that accused Satish had told him that he had brought the police official or the police official did not pay the amount earn from Satta so he would teach him a lesson. He has also denied having told the police that he hired a taxi for his travel as driver used to take him from house and drop him back or that on 19.04.12 deceased Rajinder told him that he was on long leave and during the leave period he would complete his personal work and therefore on 20.04.12 he did not visit his office and later, on 21.04.12 in the morning he came to know that some unknown person had fired shots on the Rajinder while he was on the way to his house and committed his murder. He has denied having told the police that when he came to know this fact he went to the house of Rajinder or that he had suspicion that accused Satish had St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 14 of 117 committed this crime. However, when confronted with his statement Mark A the above aspects were found so recorded.

(15) According to the witness, the mobile number 9711834567 belongs to him. He has admitted that accused Satish had made four calls on his aforesaid mobile number from the telephone number from 7351480636. Witness has further deposed that first time he made a call on 15.03.12 at about 8:30 and second time at 9:00 PM and thereafter, he again made him a call on 17.03.12 in the afternoon at about 1:30 PM and thereafter 2:00 PM. He has also deposed that he had not stated in his statement Mark B to the police that during the conversation with the accused Satish he i.e. Satish demanded a sum of Rs.5 lacs and he further assured him that thereafter he would not be pressurized in the area. He has denied having told the police that when he told Satish that he was not having a sum of Rs. 5 lac at that time, the accused threatened him and told him "Jyada hoshiar banane ki koshish na kar agar paise nhi pauche to mujhe or mere himayati ko goli se boon dunga" or that after receiving the threat he was very frightened and he disclosed this fact before deceased Rajinder and other persons namely Naveen @ Sonu, Sarabjeet, Sandeep @ Chacha and Ashish who used to sit at Budh Vihar office and they told him not to worry as Delhi Police Constable Rajender comes whim him i.e. "phir tere sath to Delhi Police ka sipahi Rajinder aksar aata jata hai". He has also denied having told the police that on 20.04.12 deceased Rajinder told him that he had St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 15 of 117 taken long leave and hence he had not come in his office at Budh Vihar on 20.04.12. However, when confronted with his statement Mark B the above facts were found so recorded.

(16) Witness has denied the suggestion that he was involved in Satta and due to this reason he was having a friendship with accused Satish. Witness has further denied the suggestion that accused Satish demanded a sum of Rs.5 lac from him from the earning of Satta game or that when he show his inability to pay a sum of Rs.5 lac to accused Satish he threatened him with dire consequences and also threatened to kill him along with his well wishers. He has also denied the suggestion that he had narrated about this demand of Rs.5 lac from accused Satish before deceased Rajinder and his friends Naveen, Sarabjit, Sandeep and Ashish or that police had recorded his correct version whichever he told to them. Witness has further denied the suggestion that he has been won over by the accused and his family members or that he was deposing falsely in order to save him from penal consequences.

(17) In his cross examination by Ld. Defence counsel, witness has deposed that he does not recognize the voice of accused Satish. According to the witness he cannot say the caller over his phone 9711834567 was accused Satish or someone else who disclosed his name as Satish. (18) PW27 Smt. Purnima has deposed that she is residing at house No. 25/147, VPO Punjab Khor, Delhi - 81 along with her family and at the time of her deposition in the court she was on training at PTC (police St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 16 of 117 training college). According to the witness, she had taken the ASCENT vehicle belonging to her husband bearing No. DL8CT4796 on Superdari vide superdarginama which is Ex.PW27/A (running into three pages). She has produced the aforesaid vehicle i.e. car ASCENT of white color bearing No. DL8CT4796 which is Ex.P1 and the photographs of the same are also present on the record which are Ex.PW27/B1 to Ex.PW27/B4. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this granted. (19) PW28 Sh. Sarabjit Singh has deposed that he is residing at B7/117118, Sector3, Rohini, Delhi with his family and he used to come at the office A40, Main Budh Vihar where he met with one Rajinder @ Raju who was in Delhi police who used to come with Kuldeep since Kuldeep did not know how to drive the vehicle. Witness has further deposed that they used to come to their office in Accent Car no. DL8CT4796. According to the witness in the month of April, 2012, he came to know that somebody has committed the murder of Rajinder @ Raju but he is not aware as to who had committed the murder and the reason for the murder of Rajinder. (20) In his examination by Ld. Addl. PP for the State, witness has admitted that police had made inquiries from him but he is unable to tell whether police had recorded any statement or not. Witness has further deposed that he had not stated in his statement Mark C to the police that one month prior to the death of Rajinder, Kuldeep had received twothree St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 17 of 117 telephone calls from one Satish who was demanding the money by threatening him which fact was disclosed by Kuldeep to him, Rajinder and other friends namely Naveen, Sandeep and Ashish. He has also denied having told the police that on 20.04.12 he along with his friends, Naveen, Sandeep, Ashish were watching IPL cricket match and at about 10:30 Naveen received a telephone call from Rajinder and he was inquiring whether some eatables were to be brought on which Sandeep told Rajinder to bring Roti and after about fifteen minutes Rajinder came in the office at Budh Vihar and they all had took dinner and after the IPL match they left the office. He has also denied having the police that Rajinder told them that he would drop them at their respective residences as he was also going towards his house after which Naveen, Sandeep and Ashish sat in the vehicle of Rajinder and went home. He has also denied having told the police that in the night at about 11:30 am he received a call from Naveen who informed him that somebody had committed the murder of Rajinder on the way to his house there which he reached at SGM Hospital Mangolpuri where he came to know that Rajinder was declared dead. However, when confronted with his statement Mark C the above facts were found so recorded.

(21) He has denied the suggestion that Kuldeep had disclosed before him, his friends and deceased Rajinder that he had received a threatening calls or that on 20.4.2012 deceased Rajinder had brought rotties in the office of Radhey Property Budh Vihar and he along with deceased, Naveen, St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 18 of 117 Sandeep and Ashish had dinner in the office while watching the IPL match. He has further denied the suggestion that after the match Naveen, Sandeep and Ashish went to their respective houses in the vehicle of deceased Rajinder or that he was deposing falsely in order to save the accused from penal consequences as he has been won over by accused and his family members. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard. (22) PW29 Sh. Azad Singh is the father of the deceased has deposed that he is residing at house No. 147, VPO Punjab Khore, Delhi 81 along with his family and he is doing the business of transport and cable TV and his son Rajender was a constable in Delhi police for the period of about one to one and a half year prior to the incident he was posted at Police Station Rithala (Metro). Witness has further deposed that his son Rajender used to come in his private car i.e. Hundai ASCENT bearing No. DL8CT4796 which was taken on superdari by his daughter in law Purnima. According to the witness, on the intervening night of 20/21.04.2012 on receipt of information regarding the death of his son as some body had fired on him, he had gone to the mortuary of SGM hospital where he identified the dead body of his son Rajender vide identification memo which is Ex.PW20/B. Witness has further deposed that after postmortem he received the dead body of his son vide memo Ex.PW20/C. (23) With the permission of the Court, leading questions were put to the witness who has admitted that his son Rajender had started interacting/ St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 19 of 117 (uthna bethna) with one Kuldeep who is resident of village Ladpur and is the property dealer of the area and is also indulging into satta of cricket matches and has voluntarily explained that he heard about this after the incident. According to the witness, he cannot identify Kuldeep. (24) He has not been cross examined by Ld. Defence Counsel, despite being granted an opportunity in this regard. (25) PW30 Sh. Naveen has deposed that he is residing at H. No. 315, Village Pooth Kalan, Delhi with his family and is working as a property dealer and running his office at A40, Main Budh Vihar where he met with one Rajinder @ Raju who was in Delhi police who used to come with Kuldeep as Kuldeep did not know how to drive the vehicle and they used to come to his office in his Accent Car no. DL8CT4796. According to the witness in the month of April, 2012, he came to know that somebody had committed the murder of Rajinder @ Raju but he is not aware who had committed the murder and he also does not know what was the reason for the murder of Rajinder.

(26) In his cross examination by Ld. Addl. PP for the State, witness has admitted that police inquired from him but he is unable to tell whether police had recorded his statement or not. Witness has further deposed that he had not stated in his statement Mark D to the police that one month prior to the death of Rajinder, Kuldeep received two - three threatening telephone calls from one Satish who was demanding the money by threatening him which fact was disclosed by Kuldeep before him to St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 20 of 117 Rajinder and other friends namely Sarabjit, Sandeep and Ashish. He has denied having told the police that on 20.04.2012 he along with his friends, Sarabjit, Sandeep, Ashish were watching IPL cricket match and at about 10:30 PM they received a telephone call from Rajinder who was inquiring whether some eatables were to be brought on which his friend Sandeep told Rajinder to bring Roti and after about 15 minutes, Rajinder came to the office at Budh Vihar and they all had dinner. He has denied having told the police that after the IPL match they left the office and Rajinder told them that he would drop them at their respective residences as he was also going towards his house on which he, Sandeep and Ashish sat in the vehicle of Rajinder and Sarabjit went to his house in his own vehicle. However,when confronted with his statement Mark D the above facts were found so recorded.

(27) Witness has further deposed that he had also not stated in his statement Mark D to the police that in the night at about 11:30 AM he received a call from Deepak Mathur who was a resident of Majri Karala, who informed him that somebody had committed the murder of Rajinder on the way to his house and that he was going to Mangol Puri hospital on which he too reached at SGM Hospital Mangolpuri where he came to know that Rajinder was declared dead. However, when confronted with his statement Mark D where the above facts were found so recorded. Witness has denied the suggestion that Kuldeep had disclosed before him, his friends and deceased Rajinder that he had received a threatening calls. He St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 21 of 117 has also denied the suggestion that on 20.4.12 deceased Rajinder had brought rotties to this office i.e Radhey Property Budh Vihar; that he along with deceased, Sarabjit, Sandeep and Ashish had dinner in the office while watching the IPL match; that after the match he, Sandeep and Ashish went to their respective houses in the vehicle of deceased Rajinder or that he was deposing falsely in order to save the accused from penal consequences as he have been won over by accused and his family members. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard.

(28) PW31 Sh. Ashish Solanki has deposed that he is residing at D5, Mange Ram Park, Budh Vihar Phase II, Delhi along with his family and he is into business of transport under the name and title of Mahadev Transport situated at A25, Mange Ram Park, Budh Vihar Phase II, Delhi. According to the witness, Naveen a resident of Pooth Kalan is his friend who is a property dealer and is also having his business in the same area of Budh Vihar and he remained with him during free time. Witness has further deposed that Kuldeep is a resident of Ladpur and is known to him and his friend Naveen @ Sonu. According to the witness Kuldeep is a bookee indulging into sattebazi in cricket matches and this Kuldeep was also a good friend of Rajender, an employee of Delhi Police. He has deposed that Kuldeep did not know how to drive a vehicle and therefore most of the time he used to come and go along with Rajender who often used to come to the office of Naveen where they used to play badminton St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 22 of 117 together. He has testified that on the date of the incident when Rajender had been shot they i.e. he, Naveen, Sarabjeet and Sandeep were sitting in the office of Naveen when Sandeep received a call from Rajender @ Raju and asked them if some eatables were to be brought and after some time Rajender brought some chicken. Witness has further deposed that at that time IPL matches were going on and after seeing the match they left the office and Sarabjeet was drunk at that time and he went back to his house whereas he, Naveen and Sandeep went with Rajender @ Raju in his vehicle and first Naveen was dropped at Pooth Kalan, thereafter across the road, there is Mange Ram park where he was dropped and when he was dropped only Sandeep and Rajender were present in the vehicle and later he came to know that Sandeep had been dropped at Sardar Jheel. Witness has further deposed that at about 11:30 AM he received a call from Sandeep that somebody had shot Raju @ Rajender who had expired on which they went to SGM hospital from where they came to know that he had been shot at Majri village. He has deposed that they went to the spot where they found the vehicle of Rajender had hit a tree and they also met the officials of Delhi Police who took them to Police Station Kanjhawala where they were interrogated by the police.

(29) With the permission of the Court, leading questions were put to the witness by the Ld. Addl. PP for the State, wherein the witness has admitted that the date of incident when Rajender had been shot was 20.04.2012. Witness has admitted that he has told the police that about a St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 23 of 117 month prior to the death of Rajender, Kuldeep had received a threatening call but he is not aware if the said call was issued by Satish or somebody else.

(30) In his cross examination by Ld. Addl. PP for the State, witness has denied the suggestion that Kuldeep was his good friend and that he had come to know that Satish had issued threats to Kuldeep on two to three occasions because he wanted to extort money from him and Kuldeep had disclosed about the same to Rajender. He denied the suggestion that Kuldeep had disclosed this fact to them and also to Rajender while they used to sit in his office. However, when confronted with his statement Ex.PW31/PX1 it was found so mentioned that Kuldeep had received two to three threatening calls from one Satish as he wanted to exhort money and was disclosed by Kuldeep to Rajender and others who used to sit in the office. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this granted. (31) PW32 Sh. Sandeep Solanki has deposed that he is residing at H. No. 119, Village Pooth Kalan, Delhi with his family and he is working property dealer in the office of his friend Naveen @ Sonu at A40, Main Budh Vihar Road where he used to met Rajinder @ Raju who was working in Delhi Police. Witness has further deposed that Kuldeep also used to visit the above office along with Rajinder in his Accent Car no. DL8ST4796. According to the witness on 21.04.12 at about 12:30 in the noon he came to know that someone had committed the murder of Rajinder @ Raju by gun St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 24 of 117 fire when he was on the way to his house but he is not aware as to who had committed the murder and he also does not know the reason for the murder of deceased Rajinder.

(32) In his cross examination by the Ld. Addl. PP for the State, witness has admitted that police had made inquiries from him but he is unable to tell whether police had recorded his statement or not. Witness has further deposed that he had not stated in his statement Mark E to the police that one month prior to the death of Rajinder, Kuldeep received two to three threatening telephone calls from one Satish who was demanding the money by threatening him which fact was disclosed by Kuldeep to him, Rajinder and other friends namely Sarabjit, Naveen and Ashish. He has also denied having told the police that on 20.04.2012 he along with his friends, Sarabjit, Naveen, Ashish were watching IPL cricket match and at about 10:30 PM they received a telephone call from Rajinder who was inquiring as to whether some eatables were to be brought on which he told Rajinder to bring some Roties for them and after about 15 minutes Rajinder came in the office of Naveen at Budh Vihar and they all had dinner and after the IPL match they left the office. He has further denied having told the police that Rajinder told them that he would drop them at their respective residences as he was also going house on which he, Naveen and Ashish sat in the vehicle of Rajinder whereas Sarabjit went to his house in his own vehicle. However, when confronted with his statement Mark E portion C to C these facts were so found recorded.

St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 25 of 117 (33) Witness has admitted that he had received a telephone call from Naveen @ Sonu who informed him that someone had committed the murder of Rajinder by firing the bullets while he was on the way to his house on which he reached at SGM Hospital Mangolpuri where he came to know that Rajinder was declared dead by doctor.

(34) Witness has denied the suggestion that Kuldeep had disclosed before him, his friends and the deceased Rajinder that he had received threatening calls. He has denied that on 20.4.12 deceased Rajinder brought rotties in his office i.e Radhey Property Budh Vihar or that he along with deceased, Sarabjit, Naven and Ashish had a dinner in the office while watching the IPL match and after the match he, Naveen and Ashish went to their respective house in the vehicle of deceased Rajinder. He has also denied the suggestion that he was deposing falsely in order to save the accused from penal consequences as he had been won over by accused and his family members.

(35) This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard. (36) PW37 Sh. Vaibhav Gupta has deposed that he is residing at 306, Rani Khera, Delhi81 along with his family and he is working with Apex Solutions, Call Center Company, situated at Model Town Phase II as a team leader and his duty hours are from 2 PM to 11 PM. Witness has further deposed that on 20.04.2012 he finished his duty at around 10:4511:00 PM and was returning home when at around 12 AM (midnight) St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 26 of 117 he reached near Karala school and found one Ascent car bearing No. DL8CT 4796 in an accidental condition which had hit a tree. According to the witness he was in the cab of his call center and on seeing this they stopped the cab, after which he and his driver went near the accidental vehicle and opened the door of the vehicle on which the lights inside was switched on and they saw one person on the driver seat with large amount of blood was oozing out from the right side of his chest. Witness has further deposed that the said person appeared to be unconscious. According to the witness he immediately made a call to the PCR on 100 number from his mobile No. 7838471234 and after about ten minutes the PCR came to the spot and shifted the injured to the PCR vehicle and took him to the hospital and his statement was recorded later. (37) In his cross examination by Ld. Defence counsel, witness has deposed that for the first time his statement was recorded by the police after about a month and there were no public persons at the spot when he reached there and has voluntarily explained that public persons started collecting after his reaching the spot.

Witnesses of Medical Record:

(38) PW26 Dr. Munish Wadhawan has deposed that on 21.04.2012 he along with Dr. Manoj Dhingra conducted the postmortem examination on the body of Rajender S/o Azad Singh, 35 years male. Witness has further deposed that the body was brought by Inspector Sanjay Kumar St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 27 of 117 Gaur, Police Station Kanjhawala with alleged history of firearm injury inside the car on the night of 20.04.2012. According to the witness, on postmortem examination following injury was found:

1. Fire arm entry wound oval, inverted margins 1.1 x .8 cm surrounded by abrasion collar and grease collar on anterior aspect of right arm 8 cm below the shoulder joint and 4cm lateral to right axilla. On exploration there was bruising under neath projectile pass through under lying skin, sub cutaneous tissues muscles, right axilla, inter coastal space between first and second right ribs, piercing upper lobes of right and left lung, fracturing fourth and fifth left rib posteriorly and then fracturing left scapula and bullet found embedded in left scapular back muscles. There was about 1.5 meter of fluid and clotted blood in pleural cavity.

Injury track was running from right to left and anterior posteriorly.

(39) He has proved that the cause of death was Haemorrahagic shock due to riffled fire arm injury to lungs, ante mortem in nature, injury No. 1 is sufficient to cause death in ordinary course of nature and time since death was about 12 hours. Witness has further deposed that after the postmortem examination the body was handed over to the Investigating Officer along with postmortem report and nine inquest papers. He has proved the detailed postmortem examination report in this regard St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 28 of 117 which is Ex.PW26/A bearing his signatures at various points mark A and also bearing the signatures of Dr. Manoj Dhingra at various points mark B. (40) In his cross examination by Ld. Defence counsel, witness has denied the suggestion that he has given the cause of death and time of death at the instance of the Investigating Officer.

FSL Experts:

(41) PW14 Dr. N. P. Waghmare has deposed on behalf of Sh. V. R. Anand, AD (Ballistics), FSL, Rohini and has proved that on 24.4.2012 a team of experts examined the Hundai Accent Car bearing No. DL 8C T4796 standing at Police Station Kanjhawala and following observations were made:

1. One hole was found present on the right side of front wind screen glass marked as 'H1", swabs around the hole and control swab have been taken.

2. One hole was found present on the right hand door glass (driver side door) marked as 'H2' swab around the hole and control swab have been taken.

3. One hole was found present on the back right hand door glass marked as 'H3' swab around the whole has been taken.

4. One hole was found present on the back right hand quarter glass marked as 'H4' swab around the hole has been taken.

5. One small fragment of bullet was found from the front left hand side St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 29 of 117 seat.

6. One small hole was found present on the inside covering of black left hand door.

7. After removing the inside door covering of black left hand door, one lead piece and two fragment of bullet were taken out.

(42) Witness has further deposed that the swabs 'H1' to 'H2', two control swabs, one lead piece and three pieces of fragment of bullet were handed over to Investigating Officer who was advised to send the exhibits in FSL for detailed examination. He has proved the report prepared by Sh. V. R. Anand which is Ex.PW14/A. (43) According to the witness, on 26.10.2012 eleven sealed parcels nos. (5) to (15) pertaining to present case were received in the Ballistics Division from Biology Division, which were examined by Sh. V. R. Anand, Assistant Director (Ballistics) vide his detailed report Ex.PW14/B according to which:

1. The two deformed bullets marked exhibits 'EB1' & 'EB2' correspond to the bullet of 9 mm cartridge.

2. The fragment of jacket of bullets marked exhibits 'EBR1' & 'EBR3' are fired through the rifled firearm.

3. The fragment of bullet marked exhibits 'EBR2' is fired through the rifled firearm.

4. No opinion can be given on the metallic piece marked exhibit 'M1'.

5. The individual characteristic of rifling marks present on bullet St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 30 of 117 marked exhibit 'EB1', 'EB2' and 'ERB1' were compared and examined under comparison microscope Leica DMC and were found identical. Hence exhibits bullets 'EB1', EB2' and 'EBR1' have been discharged through the same firearm.

6. The swabs marked as C1 and S1 and C2 and S2 to S4 were analyzed in the Atomic Absorption Spectrophotometer for the detection of Gun Shot Residue (GSR) particles. As a result of Atomic Absorption Spectrophotometer, no opinion can be given on the swabs marked exhibits S1 to S4 due to insufficient data.

7. The swab HS1 taken at and around the hole along with control swab were analyzed in the Atomic Absorption Spectrophotometer (AAS) for the detection of Gun Shot Residue (GSR) particles. As a result of Atomic Absorption Spectrophotometer (AAS), the element copper and lead were detected in the swab marked as HS1.

8. The exhibits EB1 and EB2, ERB1 to ERB3 are the ammunition as defined in the Arms Act, 1959.

(44) In his cross examination by Ld. Defence counsel, witness has admitted that he was not present at the time when the above exhibits were lifted and has voluntarily explained that he was deposing on the basis of the official record. Witness has denied the suggestion that Sh. V. R. Anand, Ballistic Expert was available or that he has deliberately not appeared in the court and has voluntarily explained that Sh. V.R. Anand was on training course for three days.

St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 31 of 117 (45) PW15 Dr. Kanak Lata Verma has deposed that on 25.5.2012 one plastic yellow box duly sealed with the seal of SGMH Mortuary Mangolpuri, Delhi consisting of four exhibits i.e. 1A to 1D were marked to her. According to the witness, on chemical, microscopic and TLC examination, metallic poison, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranqualizers and pesticides could not be detected in Ex. 1A, 1B, 1C and 1D. She has proved her detailed report in this regard which is Ex.PW15/A. This witness was not cross examined by Ld. Defence counsel, despite an opportunity being granted in this regard. (46) PW23 Ms. Seema Nain has deposed that on 3.8.2012, fifteen sealed parcels containing exhibits of present case were received in the FSL Rohini, Biology Division and the same were marked to her for biological and serological examination. According to the witness all the parcels were sealed and seals were tallied with the sample seals provided in the forwarding authority's letter and she examined the exhibits and prepared by detail reports which are Ex.PW23/A and Ex.PW23/B. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this granted.

(47) PW24 Sh. V.R. Anand has deposed that as per the directions of Director FSL, Rohini he along with the team inspected the car Hundai Ascent bearing registration No. DL8CT4796 which was parked at Police Station Kanjhawala. According to the witness, on 24.04.2012 they examined the above said car and made following observations:

St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 32 of 117

1. One hole was found present on the right side of front wind screen glass marked as 'H1", swabs around the hole and control swab have been taken.

2. One hole was found present on the right hand door glass (driver side door) marked as 'H2' swab around the hole and control swab have been taken.

3. One hole was found present on the back right hand door glass marked as 'H3' swab around the whole has been taken.

4. One hole was found present on the back right hand quarter glass marked as 'H4' swab around the hole has been taken.

5. One small fragment of bullet was found from the front left hand side seat.

6. One small hole was found present on the inside covering of black left hand door.

7. After removing the inside door covering of black left hand door, one lead piece and two fragment of bullet were taken out.

(48) Witness has further deposed that the swabs 'H1' to 'H4', two control swabs, one lead piece and three pieces of fragment of bullet were handed over to Investigating Officer who was advised to send the exhibits in FSL for detailed examination. He has proved the report prepared by him which is Ex.PW14/A. (49) According to the witness, on 26.10.2012 eleven sealed parcels bearing nos. (5) to (15) pertaining to present case were received in the St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 33 of 117 Ballistics Division from Biology Division description of which parcels are mentioned in the report. The witness has also deposed that the aforesaid parcels were examined by him vide his detailed report Ex.PW14/B and following observations were made:

1. The two deformed bullets marked exhibits 'EB1' & 'EB2' correspond to the bullet of 9 mm cartridge.

2. The fragment of jacket of bullets marked exhibits 'EBR1' & 'EBR3' are fired through the rifled firearm.

3. The fragment of bullet marked exhibits 'EBR2' is fired through the rifled firearm.

4. No opinion can be given on the metallic piece marked exhibit 'M1'.

5. The individual characteristic of rifling marks present on bullet marked exhibit 'EB1', 'EB2' and 'ERB1' were compared and examined under comparison microscope Leica DMC and were found identical. Hence exhibits bullets 'EB1', EB2' and 'EBR1' have been discharged through the same firearm.

6. The swabs marked as C1 and S1 and C2 and S2 to S4 were analyzed in the Atomic Absorption Spectrophotometer for the detection of Gun Shot Residue (GSR) particles. As a result of Atomic Absorption Spectrophotometer, no opinion can be given on the swabs marked exhibits S1 to S4 due to insufficient data.

7. The swab HS1 taken at and around the hole along with control swab were analyzed in the Atomic Absorption Spectrophotometer (AAS) St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 34 of 117 for the detection of Gun Shot Residue (GSR) particles. As a result of Atomic Absorption Spectrophotometer (AAS), the element copper and lead were detected in the swab marked as HS1.

8. The exhibits EB1 and EB2, EBR1 to EBR3 are the ammunition as defined in the Arms Act, 1959.

(50) This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this granted. Nodal Officers:

(51) PW16 Sh. M.N. Vijayan, Nodal Officer from Tata Teleservices Ltd. has proved that mobile No. 9213622222 has been issued in the name of Ashish Chikkara S/o Sh. Surender Chikkara, R/o B51, Anand Nagar, Village Nithari, Delhi vide Customer Application Form which is Ex.PW16/A, copy of driving licence in support of ID proof is Ex.PW16/B. He has proved the call details from 01.04.2012 till 21.04.2012 which are Ex.PW16/C (running into 42 pages); the cell ID chart is Ex.PW16/D (running into four pages) and the certificate U/s 65 B of Indian Evidence Act which is Ex.PW16/E. (52) In his cross examination by Ld. Defence counsel, witness has deposed that the main server is situated at Hayderabad and the above details have been retrieved by him personally from the office at Delhi there being a direct access. Witness has denied the suggestion that they do not have an authentic and full proof system of power backup at Delhi office resulting St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 35 of 117 into loss of data. Witness has denied the suggestion that the above CDRs have been fabricated on the directions of the Investigating Officer or that the record produced by him herein above is not the true and authentic record of the call details.

(53) PW17 Sh. Hussain M. Zaidi Nodal Officer from Idea Cellular Ltd. has proved that mobile No.7351480636 has been issued in the name of Saroj W/o Sh. Ravinder, R/o 193, Maniram Dass, Nagina Ruller Bijnor, UP vide Customer Application Form which is Ex.PW17/A and copy of voter ID card in support of ID proof is Ex.PW17/B. Witness has further proved the call details from 01.03.2012 till 30.04.2012 which are Ex.PW17/C; Cell ID Chart which is Ex.PW17/D (running into single page) and certificate U/s 65 B of Indian Evidence Act which is Ex.PW17/E. He has been cross examined by the Ld. Defence Counsel but nothing much has come out of the same and the witness has stood by his version. (54) PW18 Sh. Anuj Bhatia Nodal Officer from Vodafone has proved that mobile No. 9711834567 has been issued in the name of Sandeep S/o Sh. Jagbir Singh, R/o VPO Ladpur, Delhi81 vide Customer Application From which is Ex.PW18/A and copy of driving licence in support of ID proof which is Ex.PW18/B. He has also proved the call details from 14.03.2012 till 15.03.2012 which are Ex.PW18/C (running into six pages); Cell ID Chart which is Ex.PW18/D (running into 118 pages) and the certificate U/s 65 B of Indian Evidence Act which is Ex.PW18/E. St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 36 of 117 He has been crossexamined by the Ld. Defence Counsel but nothing much has come out of the same and the witness has stood by his version. (55) PW19 Sh. Vishal Gaurav Nodal Officer from Bharti Airtel Ltd. has proved that the mobile No. 9971794645 has been issued in the name of Rajender Singh Khatri S/o Sh. Azad Singh, R/o 147, VPO Punjab Khore, Delhi vide Customer Application Form which is Ex.PW19/A and copy of driving licence in support of ID proof which is Ex.PW19/B and call details from 10.04.2012 till 25.04.2012 which are Ex.PW19/C (running into eight pages). He has also proved that mobile No. 9760993997 has been issued in the name of Roshni Devi, W/o Sh.

Rajendera, R/o 139, Mohalla Bapugram, Rishikesh, Dehradun vide Customer Application Form which is Ex.PW19/D; copy of voter ID card in support of ID proof which is Ex.PW19/E; call details from 01.03.2012 till 30.04.2012 of UP circle which are Ex.PW19/F (running into 26 pages) and call details from 01.03.2012 till 30.04.2012 of Delhi Circle which are Ex.PW19/G (running into one page). He has further proved the cell ID chart both of UP and Delhi circles which are Ex.PW19/H (running into four pages) and Ex.PW19/I (running into four pages) respectively and certificate U/s 65 B of Indian Evidence Act which is Ex.PW19/J. He has been crossexamined by the Ld. Defence Counsel but nothing much has come out of the same and the witness has stood by his version. St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 37 of 117 Police/ Official Witnesses:

(56) PW1 SI Ashwani Kumar is a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW1/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having lodged DD No. 2A which is Ex.PW1/A, having recorded FIR No.83/12 copy of which is Ex.PW1/B and his endorsement on rukka which is Ex.PW1/C. He has been crossexamined by the Ld. Defence Counsel but nothing has come out of the same and the witness stood by his version. (57) PW2 HC Anoop Kumar is also a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved entry in register no. 19 vide S. No.1753 copy of which is Ex.PW2/A (four pages);

entry at S. No. 1756 copy of which is Ex.PW2/B; entry at S. No.1952 copy of which is Ex.PW2/C; entry in register no.21 vide RC No.80/21/12 copy of which is Ex.PW2/D, receipt issued by the FSL copy of which is Ex.PW2/E; entry in register no.21 vide RC No. 39/21/12 copy of which is Ex.PW2/F and receipt issued by the FSL copy of which is Ex.PW2/G. This witness has been crossexamined by the Ld. Defence Counsel but the witness has stood by his version.

(58) PW3 Ct. Yogender is a formal witness who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 21.04.2012 the dead body of Ct. St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 38 of 117 Rajender Khatri was preserved in the mortuary of SGM Hospital Mangolpuri and the custody of the dead body was entrusted to him and the dead body was handed over to the father of the deceased Sh. Azad Singh in the presence of his uncle Sh. Rajender Kumar after the postmortem. He has proved that on 21.4.2012 after the postmortem the belongings of the deceased were seized by the Investigating Officer. He has further proved the seizure memo of sandal which is Ex.PW3/A and seizure memo of exhibits of deceased which is Ex.PW3/B. According to the witness on 25.05.2012 he took the exhibits to the FSL and after depositing the same in the FSL he handed over the FSL receipt to the MHC(M). He has also proved the RC No. 39/21/12 copy of which is Ex.PW2/F and FSL Receipt which is Ex.PW2/G. He has been crossexamined by the Ld. Defence Counsel but nothing has come out of the same and the witness stood by his version.

(59) PW4 W/Ct. Bhoomika is also a formal witness being the PCR official who has been examined by way of affidavit which is Ex.PW4/1 (as per the provisions of Section 296 Cr.P.C.) wherein she has proved the PCR Form which is Ex.PW4/A. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard. (60) PW5 Ct. Ajay Kumar is a formal witness who has been examined by way of affidavit which is Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that during investigations on St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 39 of 117 07.07.2012 he along with Investigating Officer, HC Sudarsnan and accused Satish Kumar @ Pawan reached the Main Road Budh Vihar where the accused pointed towards the office of Shree Radhey property dealer, A40, Budh Vihar and disclosed that he had started following the Accent car No. 4796 from this point and thereafter they all reached at Budh Vihar Kanjhawala Road where the accused pointed towards the road near the community center and disclosed that he and his associates Vikram and Sabu fired on the Accent Car No. 4796 at this point. He has stated that on 08.07.2012 Investigating Officer further interrogated the accused Satish Kumar @ Pawan and recorded his supplementary confessional statement and on 14.07.2012 Investigating Officer also interrogated the accused Satish Kumar @ Pawan who further disclosed that he was not telling the truth to save his associates and the weapon and vehicle used in the murder were taken by Vikram. He has proved the disclosure statement of accused dated 07.07.12 which is Ex.PW5/A, supplementary disclosure statement of accused dated 08.07.2012 which is Ex.PW5/B, another supplementary disclosure statement of accused dated 14.07.2012 which is Ex.PW5/C and pointing out memos which are Ex.PW5/D and Ex.PW5/E. (61) In his cross examination by Ld. Defence counsel, witness has deposed that they had reached main road Budh Vihar in the private vehicle of Inspector Akshay Kumar. He is not aware if Investigating Officer was already knowing about the office of Sh. Radhey Property dealer at A40, Budh Vihar. Witness has admitted that there were no public person at the St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 40 of 117 time when they went to the office of Sh. Radhey Property dealer. According to the witness, Investigating Officer had asked some passerbyes to join the police party at Budh Vihar but they refused and in his presence Investigating Officer did not give any notice to those public persons for not joining the investigating team. He has testified that when they went to the road near the community center, even there no public person was joined in the investigations. Witness has admitted that the pointing out memo does not bears the signatures of any public person. He has also admitted that the public persons were available at community center and has voluntarily explained that they were passerbys. He is unable to tell if there is any school near the community center. According to him, on 08.07.2012 supplementary disclosure statement of the accused Satish @ Pawan was recorded in the crime branch office and at that time no public person was present. Witness has denied the suggestion that the accused did not point out any place of incident nor he made any disclosure statements on 08.07.2012 and on 14.07.2012. He has also denied the suggestion that the signatures of the accused were taken on blank papers by the Investigating Officer which were later on converted into disclosure statements and both the pointing out memos to falsely implicate the accused in the present case. (62) PW6 Ct. Hari Om is a formal witness being the Special Messenger who has been examined by way of affidavit which is Ex.PW6/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having delivered the copy of FIRs at the residence of Ld. MM, Joint CP/NR St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 41 of 117 and DCP (Outer District) on government motorcycle No. DL1SN4050. He has not been cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard.

(63) PW7 HC Vishesh Kumar is a formal witness being the PCR Van Incharge who has been examined by way of which is Ex.PW7/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 21.04.2012 at 0013 hrs a call was received from control room (Libra1) that an accident had taken place at Karala main road near government school, Begumpur and the injured was on the spot pursuant to which he along with staff and PCR van reached at the spot, where an Ascent Car bearing No. DL8CT4796 of white color had collided with a tree and an injured person was lying in the driver seat and there were three bullet marks on the car. Witness has further deposed that he immediately shifted the injured to Sanjay Gandhi Memorial hospital Mangolpuri where the doctor declared him brought dead. On search of the body of deceased in front of doctor and duty constable the following items were recovered :

a) Rs.15,770/

b) One Tebeej

c) One golden chain

d) One bronze ring

e) DL and RC

f) Three ICICI Bank, two HDFC bank and one Axis Bank debit card St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 42 of 117

g) One Nokia and one Samsung mobile phone

h) One Identity card of Delhi police was also recovered from the body of the deceased and the deceased was identified as constable Rajender.

(64) Witness has further deposed that he conveyed the facts to control room at 01:14 AM on 21.04.2012 and on 28.09.2012 he handed over the certified copy of the log book to the Investigating Officer which is Ex.PW7/A (running into three pages).

(65) In his cross examination by Ld. Defence counsel, witness has deposed that they reached the spot within four minutes of receiving the call and when they reached the spot, there were 45 public persons present at the spot. Witness has further deposed that the person who had made a call was also present at the spot but he did not make any inquiry from the public persons including from the person who had made the PCR call with regard to the incident and whether any one was present as eye witness and has voluntarily explained that he only picked up the injured and put him into PCR vehicle and took him to SGM hospital. According to the witness when they left the spot along with the injured no body was left behind to preserve the spot of the incident. He has admitted that nobody from the local police had reached the spot by that time. According to him, it took them about 20 minutes to reach the SGM hospital and they came to know about the identity of the injured/ deceased when they reached the hospital and after his search was conducted . He has also deposed that they remained in the St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 43 of 117 hospital for about 1½ hours and by that time the father of the deceased also reached the hospital and the personal search articles of the deceased were handed over by the hospital authorities to the father of the deceased. Witness has further deposed that SHO had made a call from the mobile phone of the deceased recovered from his body to confirm his identity but he cannot tell the details of the same. Witness has denied the suggestion that the details in the log book has been fabricated at the instance of senior officers only to create evidence in the present case. (66) PW8 Ex. ASI Devender Kumar is a formal witness being he Mechanical Expert who has been examined by way of affidavit which is Ex.PW8/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having inspected the vehicle No. DL8CT4796 Ascent car white color and prepared the mechanical inspection report which is Ex.PW8/A. He has been crossexamined by the Ld. Defence Counsel but nothing has the witness stood by his version.

(67) PW9 Inspector Mahesh Kumar is again a formal witness who has been examined by way of affidavit which is Ex.PW9/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having visited the spot of incident and after examination the same he prepared the scaled site plan which is Ex.PW9/A. He has been crossexamined by the Ld. Defence Counsel but and the witness stood by his version.

St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 44 of 117 (68) PW10 HC Sudarsanan is a formal witness who has been examined by way of affidavit which is Ex.PW10/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the arrest memo of accused Satish which is Ex.PW10/A, disclosure statement of accused Satish dated 06.07.2012 which is Ex.PW10/B, disclosure statement of accused dated 07.07.12 which is Ex.PW5/A, supplementary disclosure statement of accused dated 08.07.2012 which is Ex.PW5/B, another supplementary disclosure statement of accused dated 14.07.2012 which is Ex.PW5/C, pointing out memos which are Ex.PW5/D and Ex.PW5/E. He has also proved the entry in register no. 21 vide RC No. 80/21/12 copy of which is Ex.PW2/D and receipt of FSL vide receipt No. FSL2012/B5767 dated 03.08.2012, copy of which is Ex.PW2/E. (69) In his cross examination by Ld. Defence counsel, witness has deposed that he reached Rohini courts at about 12 noon and Investigating Officer met him in front of thecourt room whose number he does not recollect. Witness has further deposed that the accused was produced late during the day but he does not recollect the time. According to the witness the accused was produced before the Ld. Illaka Magistrate and the accused was interrogated outside the court room. He has admitted that large number of public persons, lawyers, litigants were present in the corridor outside the court but he does not recollect if Investigating Officer had asked some litigants, public persons, lawyers or court staff to join in the St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 45 of 117 interrogation of the accused. He has testified that on 07.07.2012 he had left the crime branch office with the Investigating Officer in the vehicle of the Investigating Officer and after leaving the office they went to Budh Vihar and did not stop on the way. According to him, on the way they had asked for the directions from twothree public persons but did not stop anywhere and only stopped at Shri Radhey property dealers where they stayed at Shri Radhey properties, Budh Vihar for about 3045 minutes. Witness has further deposed that there were two to three boys present in Radhey properties and in his presence Investigating Officer had requested some public persons including the boys present at Radhey properties to join the proceedings but said persons refused to join the proceedings. He has stated that the Investigating Officer did not give any notice in writing to any of the public persons for their refusal. According to the witness from Budh Vihar Kanjahawala road, they came back to their office at about 8 PM but he is unable to tell the time when the accused was interrogated on 08.07.2012. Witness has further deposed that on 08.07.2012 the disclosure statement of the accused might have been reduced in writing on a single page and after the interrogation of the accused on 08.07.2012 he did not remain with the accused. He has denied the suggestion that he did not join the investigations as claimed by him or that no disclosure statement was made by accused Satish @ Pawan in his presence or that he did not point out any place of occurrence either in front of the office of the property dealer or in front of the community center as claimed by him. Witness has further denied the St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 46 of 117 suggestion that all documentations was done while sitting in the Police Station and he merely signed the same on the asking of the senior officers or that it is for this reason that he is unable to give the details with regard to the time, place etc. Witness has denied the suggestion that the accused was compelled to sign the blank papers which the Investigating Officer converted into various memos later on.

(70) PW11 Ct. Anil is also a formal witness being the DD Writer who has been examined by way of affidavit which is Ex.PW11/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having recorded DD No.6A and DD No.7A copy of which are Ex.PW11/A and Ex.PW11/B. He has been crossexamined by the Ld. Defence Counsel but the witness stood by his version.

(71) PW12 Ct. Hans Ram is a formal witness being the Crime Team Photographer who has been examined by way of affidavit which is Ex.PW12/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having visited the scene of crime and having taken the photographs of the same which are Ex.PW12/A1 to Ex.PW12/A24, negatives of which photographs are collectively Ex.PW12/B. He has been cross examined by the Ld. Defence Counsel but the witness stood by his version. (72) PW13 SI Anil Kumar is also a formal witness being the Crime Team Incharge who has been examined by way of affidavit which is Ex.PW13/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 47 of 117 proved having inspected the spot of incident and having prepared the Crime Team Report which is Ex.PW13/A. He has been crossexamined by the Ld. Defence Counsel but the witness stood by his version. (73) PW33 Inspector Sanjay Kumar Gaur has deposed that on 21.04.2012 he was posted at Police Station Kanjhawala and on that day he was posted as ATO in the Police Station and was on duty when at around 12:17 AM (midnight), he received the call vide DD No. 2A which is Ex.PW1/A. Witness has further deposed that on receipt of the DD he reached fakar ka dhaba, Karala Kanjhawala Road, where he found a car make Hundai Ascent of white color bearing No. DL8CT4796 in an accidental condition having hit a tree. According to the witness he came to know that the injured had been shifted to the hospital by the PCR. Witness has further deposed that before he reached the spot, SI Parmod Kumar had already reached the spot along with the SHO Inspector Mahesh and he also came to know that the condition of the injured was serious. Witness has further deposed that SI Parmod was asked to go to the hospital to find out the condition of the injured and after some time they got the information from SI Parmod that injured had been declared as brought dead. He has testified that SI Parmod called the Crime Team and got the inspection of the scene of crime conducted and SI Parmod then prepared a rukka by making his endorsement on the DD entry and handed over the same to Ct. Satish with the directions to take the same to the Police Station for getting the FIR registered. Witness has further deposed that after getting the FIR St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 48 of 117 registered from the Police Station the further investigations were handed over to him and Ct. Satish handed over to him the original rukka and copy of the FIR after which he prepared the site plan which is Ex.PW33/A. Witness has further deposed that he also took the Ascent car into possession and seized the same vide memo Ex.PW33/B. According to the witness, on the same day i.e. 21.04.2012 he got the body of the deceased from his relatives vide memo Ex.PW20/A and Ex.PW20/B. He has proved having prepared the inquest papers vide Ex.PW33/C (running into nine pages) after which he moved an application before CMO Mortuary for getting the postmortem on the dead body of the deceased which application is Ex.PW33/D. He has also deposed that after the postmortem was conducted his body was handed over to his father vide memo Ex.PW20/C and doctor then handed over to him three sealed pullandas duly sealed with the seal of the hospital and one sample seal which he took into possession and seized vide memo Ex.PW3/B. Witness has further deposed that the doctor also handed over to him one sandal in open condition which he then seized in the open condition vide memo Ex.PW3/A. He has testified that he then returned to the Police Station, deposited the case property in the Malkhana and the damaged car was also brought to the Police Station and deposited in the Malkhana.

(74) Witness has further deposed that in the Police Station he came to know that deceased was a Constable and was posted at Police Station St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 49 of 117 Rithala Metro and was on one day leave after which he interrogated the staff of the Police Station and the SHO and came to know that the deceased was on general duty. He has testified that from some of the constables posted in the Police Station he came to know that often Rajender used to sit in Radhey properties, Budh Vihar main road where he met some boys, i.e. Ashish @ Chacha, Sarabjeet, Naveen, Kuldeep, Sandeep who disclosed that they frequently sat at Radhey Properties where they used to eat and drink and out of them one Kuldeep of Ladpur was also involved into betting of cricket matches. Witness has further deposed that he also came to know that Kuldeep did not know how to drive the vehicle and Rajender used to leave him in the morning and pick him up in the evening and that Kuldeep had been threatened by one person by the name of Satish @ Pawan, resident Y1126, Mangolpuri who made a demand of Rs. Five Lacs. Witness has further deposed that he also came to know that Kuldeep had disclosed about this to Rajender and Rajender had then pulled up Satish. He has stated that he also interrogated Kuldeep who informed him that he had not gone to the office of property dealer on 20.04.2012 and Rajender had gone back alone and that Satish had previously threatened Rajender to see him. He has deposed that they tried to search for Satish but could not locate him. (75) The witness has further testified that on 24.04.2012 he got the accidental vehicle inspected from the FSL and the FSL experts handed over eight exhibits to him which he converted into different pullandas and sealed the same with the seal of RSY and seized the same vide memo St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 50 of 117 Ex.PW33/E. Witness has also deposed that the seal after use and seized articles were deposited in the malkhana. According to him, on 09.05.2012 he got the mechanical inspection of the vehicle conducted and on 17.05.2012 the vehicle was released on superdari to the wife of the deceased. He has also testified that on 18.06.2012 the investigations was transferred to the crime branch and on 18.08.2012 on his pointing out Inspector Akshay Kumar got the scaled site plan prepared by draftsman SI Mahesh Kumar.

(76) The witness has identified the case property i.e. Ascent car of white color bearing No. DL8CT4796 which car is Ex.P1; one bullet as the same which was lifted from the vehicle No. DL8CT4796 by the FSL expert which bullet is Ex.P2; swab H1 as the same which was lifted from the vehicle No. DL8CT4796 by the FSL expert; which swab is Ex.P3; swab H2 as the same which was lifted from the vehicle No. DL8CT4796 by the FSL expert which swab is Ex.P4; swab H3 as the same which was lifted from the vehicle No. DL8CT4796 by the FSL expert which is Ex.P5; swab H4 as the same which was lifted from the vehicle No. DL8CT4796 by the FSL expert which swab is Ex.P6; control C1 as the same which was lifted from the vehicle No. DL8CT4796 by the FSL expert which is Ex.P7; control C2 as the same which was lifted from the vehicle No. DL8CT4796 by the FSL expert which is Ex.P8 and one sandal of black and brown color as the same which was handed over by St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 51 of 117 doctor in the hospital which is Ex.P9.

(77) In his cross examination by Ld. Defence counsel, witness has deposed that he reached the spot at about 12:3012:40 AM (midnight) and at that time SI Parmod was already present at the spot and SHO Police Station Kanjhawala arrived at spot later on and he came to know about the identity of deceased through SI Parmod telephonically. He has stated that he had send the rukka to Police Station at 3:40 AM through SI Parmod. Witness has further deposed that he did not go to the hospital and had visited the Radhey Properties Budh Vihar on 21.04.2012 in the evening hours where he met three to four persons. He has deposed that he did not record their statements but only orally interrogated them. Witness has further testified that on 21.04.2012 Ashish, Sarabjeet, Naveen and Sandeep were called to Police Station by issuing notice U/s 160 Cr.P.C. He is unable to tell whether the official copies of said notices were kept on the records of police file. He has also deposed that no statement of the above mentioned persons was recorded at Police Station. He does not remember on what day/ date the statements of witnesses were recorded by him. He has deposed that he did not take any legal action upon coming to know that Kuldeep etc. were running betting of cricket nor he recommended any legal action against them to the department. Witness has further deposed that he came to know about the involvement of accused after about two days of incident through Kuldeep. According to him, statement of Kuldeep might have been recorded on 22nd or on 23.04.2012 and states that the statement recorded by St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 52 of 117 him on 22/23.04.2012 was kept on file. According to the witness till the investigations remained with him he did not file any application before the court seeking non bailable warrants. He has denied the suggestion that the witnesses has not made any statement or that he has recorded the statements in the name of witnesses at his own. Witness has denied the suggestion that Kuldeep or any other witnesses had never informed him about the involvement of accused in commission of present offence. He has also denied the suggestion that investigations conducted by him were faulty and aimed at falsely implicating the accused in the present case only to solve blind murder case.

(78) PW34 SI Pawan Dahiya has deposed that on 02.07.12 he was posted as Special Cell, Lodhi Colony and on that day specific information was received from reliable sources that one desperate criminal namely Satish @ Pawan a resident of Avas Vikash Rishikesh who was wanted in the murder cases of Rajinder Kumar Khatri, Police Personnel Delhi Police would come near Shiva/ Bharat Mandir, Bharat Vihar, Rishikesh. According to the witness the information was forwarded to Senior Officer, ACP Special Cell, Lodhi Colony and after the permission he along with Inspector Ramesh Chand Lamba, SubInspector Vidhadhar, SI Vinay and other staff members proceeded from the office of special cell and went outstation and reached at Rishikesh, Uttarakhand in the afternoon of 02.07.2012. Witness has further deposed that at Rishikesh they went to Police Station Raiwala and made their arrival entry at Police Station St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 53 of 117 Raiwala from where one Constable accompanied them and they conducted a raid near Bharat Mandir Rishikesh from where one person was apprehended on the pointing out of ASI Ram Kishan, who disclosed his name as Satish @ Pawan after interrogation. Witness has further deposed that the accused was arrested under Section 41.1 (a) Cr.PC and he prepared kalandra and during the interrogation accused made his confessional statement regarding his involvement in the present case FIR No. 83/12 of Police Station Kanjhawala. Witness has further deposed that after the arrest of accused they came back to Delhi and he sent information regarding the arrest of accused to Police Station Kanjhawala as well as Police Station Begumpur where the accused was also wanted in other cases. According to him, the accused was produced in Rohini Courts from where officers of Police Station Begumpur arrested the accused after the permission from the court. Witness has further deposed that later, the Investigating Officer Inspector Akshay came to him and he handed over the copy of Kalandra and disclosure statement. He has proved the Kalandra under Section 41.1(a) Cr.PC which is Ex.PW34/A and disclosure statement of accused Satish @ Pawan which is Ex.PW34/B. Witness has further deposed that later on Investigating Officer inquired from him and recorded his statement in this regard.

(79) In his cross examination by Ld. Defence counsel, witness has deposed that the information regarding whereabouts of the accused was received by Inspector Ramesh Chand Lamba but the said information was St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 54 of 117 not reduced in writing before their departure. Witness has further deposed that they left for Rishikesh on 02.07.12 at about 8:00 AM and DD entry regarding departure was made however he does not remember the number of the said DD. According to him, they left in a Government Vehicle but he does not remember the registration number of the said vehicle. He has testified that the permission to use Government Vehicle was sought but the same has not been filed on the record of the file. Witness has further deposed that they reached Rishikesh at about 2:00 PM. He is unable to tell the number of the DD entry which was got recorded at Police Station Raiwala about their arrival. According to him, the accused was apprehended at about 7:00 PM on 02.07.2012 and the place from where accused was apprehended was public place and public persons were present. Witness has further deposed that the disclosure statement of the accused was recorded at the Special Cell Office, Lodhi Colony but has clarified that brief interrogation was done at the place the apprehension where he confessed about the involvement in present case. According to the witness no written proceedings were done at Rishikesh, Dehradun. He has denied the suggestion that accused has not made any disclosure statement or that same was written by him on the instructions of Sr. Police Officials and same was got signed forcibly by the accused. He has also denied the suggestion that accused has been falsely named in the present case in order to get reward and promotion.

St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 55 of 117 (80) PW35 SI Prabhanshu has deposed that on 26.09.2012 he was posted at Anti Homicide Section, Crime Branch and on that day on the directions of the Investigating Officer Inspector Akshay Kumar, he reached Village Qutubpur, District Alwar, Rajasthan where he met W/Ct. Bhumika of PCR as she was on maternity leave and he recorded her statement U/s 161 Cr. P. C. and thereafter he came back to Delhi and handed over the statement to the Investigating Officer. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard. (81) PW36 SI Pramod Kumar has deposed that on 21.04.2012 he was posted at Police Station Kanjhawala and on that day on receiving of DD No.2A which is Ex.PW1/A, he alongwith Ct. Satish Kumar reached at the spot i.e. opposite Fakkar Dhaba where one Accent car bearing Registration No. DL 8C T 4796 was found in an accidental condition with a tree. Witness has further deposed that on checking the vehicle there were three bullet shots on the right side windscreen and one bullet hole was on front windscreen. According to the witness there was blood stains on the driver seat of the vehicle and they came to know that the injured was removed to SGM Hospital by the PCR. He has testified that in the meanwhile ATO and SHO of Police Station Kanjhawala also reached the spot and Ct. Satish left at the spot for protection of the scene of crime while he himself went to Sanjay Gandhi Memorial Hospital where he obtained the MLC bearing number 6292 of an unknown person aged about 35 years who was declared brought dead by the doctor. Witness has further deposed St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 56 of 117 that on inquiry the name of deceased was revealed as Rajender but no eye witness met him in the hospital. According to him, thereafter he came back at the spot where the SHO had already called the crime team who were inspecting the spot and on checking the vehicle one lead of the bullet was found inside the vehicle which was lifted and kept in a match box and then converted into pullanda and sealed with the seal of PK. Witness has further deposed that he also lifted the blood with the help of cotton from the seat of vehicle and kept in a small plastic box and converted into pullanda sealed with the seal of PK and one yellow coloured envelop was found inside the vehicle with blood stains and it was also sealed with the seal of PK. He has also deposed that one sandle was also found lying inside the vehicle which was also kept in a pullanda and sealed with the seal of PK and seal after use was handed over to Ct. Satish. He has proved all these aforesaid articles were taken into possession vide seizure memo Ex.PW36/A. He has also proved having prepared the rukka Ex.PW36/B which he handed over to Ct. Satish Kumar for registration of the FIR with a request that after the registration of the FIR, the further investigation be handed over to Inspector Sanjay Kumar Gaur as per the direction of the SHO. Witness has further deposed that Ct. Satish went to Police Station for the registration of FIR and after registration of the FIR Ct. Satish came at the spot with the copy of FIR and original rukka and the same were handed over to Inspector Sanjay Kumar Gaur for further investigation. He has testified that he also handed over the exhibits to the Investigating Officer and thereafter Investigating St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 57 of 117 Officer prepared the site plan. According to the witness the vehicle no. DL 8CT 4796 was taken into possession vide seizure memo Ex.PW33/B and thereafter he was relieved from the investigation. He has further deposed that on 24.04.2012 the ascent vehicle was got inspected by the penal of experts of FSL and they lifted eight exhibits and handed over the same to Investigating Officer which were separately sealed and seized vide memo Ex.PW33/E and Investigating Officer recorded his statement. (82) He has identified the case property i.e. Ascent car of white color bearing No. DL8CT4796 which car is Ex.P1; one bullet as the same which was lifted from the vehicle No. DL8CT4796 by the FSL expert which bullet is Ex.P2; swab H1 as the same which was lifted from the vehicle No. DL8CT4796 by the FSL expert; which swab is Ex.P3; swab H2 as the same which was lifted from the vehicle No. DL8CT4796 by the FSL expert which swab is Ex.P4; swab H3 as the same which was lifted from the vehicle No. DL8CT4796 by the FSL expert which is Ex.P5; swab H4 as the same which was lifted from the vehicle No. DL8CT4796 by the FSL expert which swab is Ex.P6; control C1 as the same which was lifted from the vehicle No. DL8CT4796 by the FSL expert which is Ex.P7; control C2 as the same which was lifted from the vehicle No. DL8CT4796 by the FSL expert which is Ex.P8 and one sandal of black and brown color as the same which was handed over by doctor in the hospital which is Ex.P9.

St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 58 of 117 (83) In his cross examination by Ld. Defence counsel, witness has deposed that he reached at the spot at about 12.30 midnight and at the spot he found three to four public persons present. He has stated that before they reached the spot no police person was present at the spot. Witness has denied the suggestion that he did not visit the spot or that no such exhibits were lifted by him or that no rukka was send by him or that the rukka was prepared while sitting at the Police Station. Witness has admitted that there are some residential houses near the spot.

(84) PW38 SI Sahab Singh has deposed that on 03.07.2012 he was posted at Police Station Begumpur and on that day he received information from Special Cell, Lodhi colony regarding one Satish Kumar @ Pawan who was wanted in case FIR No.67/12, U/s 307/387/34 IPC, Police Station Begumpur had been apprehended and would be produced before the court of Sh. M.K. Sethi, Ld. MM. Witness has further deposed that on 03.07.2012 he came to the Rohini Court Complex and after seeking permission from Ld. MM he formally arrested accused Satish @ Pawan in the case. According to the witness thereafter he obtained his three days custody remand and interrogated him on which he disclosed his involvement in the present case on which he recorded his disclosure statement vide Ex.PW38/A. He has testified that in his disclosure the accused disclosed that his wife was ill and he requested Kuldeep, resident of village Ladpur who runs a cricket betting racket, to lend him some money on which Kuldeep refused to pay after which he made a plan and he along with his St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 59 of 117 associates Vikram and Sabhu collected information regarding Kuldeep and came to know that Kuldeep used to return home in a white color Ascent car bearing No. DL8CT4796 and pursuance to the plan on 20.04.2012 he came to Delhi where Vikram and Sabhu met him and brought a Wagon R car and they reached the office of the property dealer where the Ascent car was parked and thereafter followed this car and when the car reached the road before the Karala village, they over took the car and fired four shots on which three shots hit the car and one shot hit the person sitting inside the car.

(85) In his cross examination by Ld. Defence counsel, witness has admitted that he was aware before the arrest of Satish that the victim in the present case namely Rajender was a Constable in Delhi police. Witness has admitted that pursuant to the above disclosure Ex.PW38/A no recovery relating to the present case has been effected. Witness has further deposed that he had recorded the above disclosure statement of the accused while sitting in the Begumpur Police Station on 04.07.2012 at about 11:30 AM. He has also admitted that during the day large number of public persons visit the Police Station to made complaints or to follow their cases or other job but he did not join them in the investigations. Witness has admitted that the disclosure statement of the accused Ex.PW38/A does not bear the signatures of any public person. He has denied the suggestion that the accused did not made any disclosure or that he recorded the alleged disclosure Ex.PW38/A of his own on the directions of the senior officers St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 60 of 117 only to solve the blind case.

(86) PW39 Ct. Satish has deposed that on 21.04.2012 he was posted at Police Station Kanjhawala and on that day on receiving of DD No.2A which is Ex.PW1/A, he alongwith SI Pramod Kumar reached at the spot i.e. opposite Fakkar Dhaba where one Accent car bearing Registration No. DL8CT4796 was found in an accidental condition having hit a tree. Witness has further deposed that on checking the vehicle there were three bullet shots on the right side windscreen and one bullet hole was on front windscreen and there was blood stains on the driver seat of the vehicle. According to the witness they came to know that the injured was removed to SGM Hospital by the PCR and in the meanwhile ATO and SHO of Police Station Kanjhawala also reached the spot. He has testified that he remained at the spot for the safeguard of the scene of crime and SI Pramod went to Sanjay Gandhi Memorial Hospital and after some time SI Pramod came back at the spot and SHO had already called the crime team and they (Crime team members) were inspecting the spot. According to the witness, on checking of the vehicle one lead of the bullet was found inside the vehicle which was lifted and kept in a match box and further converted into pullanda and sealed the same with the seal of PK. He has testified that SI Pramod lifted the blood with the help of cotton from the seat of vehicle and kept in a small plastic box and converted into pullanda sealed with the seal of PK. Witness has further deposed that one yellow coloured envelop was found inside the vehicle with blood stains and it was also sealed with the St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 61 of 117 seal of PK and one sandle was found lying inside the vehicle which was also kept in a pullanda and sealed with the seal of PK and seal after use was handed over to him. He has proved that all these aforesaid articles were taken into possession vide seizure memo Ex.PW36/A and thereafter SI Pramod prepared rukka Ex.PW36/B which was handed over to him for registration of FIR with the request after registration of FIR, further investigation be handed over to Inspector Sanjay Kumar Gaur as per the direction of the SHO. Witness has further deposed that he went to Police Station for the registration of FIR and got registered the FIR from the Duty officer SI Ashwani Kumar and received the computer generated copy of FIR and original rukka and came back at the spot and handed over the same to Inspector Sanjay Kumar Gaur for further investigation and thereafter Investigating Officer recorded his statement in this regard. (87) In his cross examination by Ld. Defence counsel, witness has deposed that he reached at the spot at about 12.30 AM i.e. midnight and at the spot he found three to four public persons present and before they reached at the spot no police person was present at the spot. Witness has denied the suggestion that he did not visit the spot or that no such exhibits were lifted by SI Pramod or that no rukka was handed over to him or that the rukka was prepared by SI Pramod while sitting at the Police Station. (88) PW40 Inspector Akshay Kumar has deposed that on 02.07.2012 the investigations of the present case were handed over to him by the order of the ACP Anti Homicide Section and on receiving the case St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 62 of 117 file he had gone through it. Witness has further deposed that on 03.07.2012 he received an information from Special Cell regarding arrest of the accused Satish @ Pawan on which he reached at the office of the Special Cell, Lodhi colony and collected the copy of Kalandara and disclosure statement from SI Pawan Dhaiya. According to the witness on that day the accused Satish @ Pawan was produced in the court and was formally arrested by the Investigating Officer of Police Station Begumpur and the said Investigating Officer took the accused on three days Police Custody. He has testified that on 06.07.2012 the accused was again produced before the court from where he i.e. accused was formally arrested by him vide memo Ex.PW10/A and accused was remanded for three days police custody. The witness has testified that he interrogated the accused Satish who made his confessional/ disclosure statement which was reduced into writing which disclosure statement is Ex.PW10/B. According to the witness on 07.07.2012 accused pointed out place of occurrence and office of Shri Radhey properties and he prepared pointing out memos which are Ex.PW5/D and Ex.PW5/E and the accused also made subsequent disclosure statement which is Ex.PW5/A. He has testified that on 08.07.2012 accused was again interrogated and he also made disclosure which is Ex.PW5/B and accused was further remanded for police custody for five days. Witness has further deposed that on 14.07.2012 accused was further interrogated and made disclosure, which is Ex.PW5/C and thereafter he was produced before concerned court after his medical St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 63 of 117 examination and he was sent to Judicial Custody. According to him, on 18.08.2012 he got prepared the scaled site plan from Draftsman SI Mahesh and exhibits were sent to FSL for examination in a sealed condition through HC Sudershan. According to the witness he collected the CDRs from the concerned service providers and SI Prabhanshu was sent to village of L/Ct. Bhumika in District Alwar, Rajasthan for recording her statement. Witness has further deposed that he recorded the statements of witness from time to time during investigations after which he prepared the charge sheet and filed the same in the court. Witness has further deposed that during the pendency of trial FSL results were received and same were filed in the court through supplementary charge sheet and he also filed the supplementary charge sheet in respect of co accused who is PO in this case.

(89) In his cross examination by Ld. Defence counsel, witness has deposed that he did not visit the place of occurrence and office of Radhey properties prior to the arrest of the accused Satish. Witness has denied the suggestion that he was deposing falsely in this regard as he visited the aforesaid places prior to the arrest of the accused. He has also deposed that he visited the office of Special Cell Lodhi Colony at about 11:0012:00 PM and remained there for about 1½ hours. Witness has admitted that the disclosure statements of the accused recorded by him did not bear the signatures of any public witnesses. He has however admitted that there was no recovery pursuant to the alleged disclosure of the accused. He has also St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 64 of 117 admitted that the spot of incident had already been disclosed in the FIR and he was aware of the said spot. He has denied the suggestion that accused did not make any disclosure statement or that he recorded the same of his own only to work out the blind murder case. Witness has further admitted that during the period of Police Custody Remand of the accused he was on leave for three days but he does not recollect the dates. Witness has denied the suggestion that on the date the alleged disclosures statements of the accused is shown have been recorded, he was on leave or that the accused did not lead the police party to the spot of the incident or that he had created all these documents to work out the blind case. STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:

(90) After completion of prosecution evidence the statement of the accused was recorded under Section 313 Cr.P.C. wherein all incriminating evidence was put to the accused who denied the same. According to the accused, he is innocent and has been falsely implicated in the present case.

He has further stated that his signatures were forcefully taken by the police officials on some blank papers which were later on converted into the various documents and memos against him.

FINDINGS:

(91) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written memorandum of arguments filed by the parties and the St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 65 of 117 evidence on record. My findings are as under:

Medical Evidence:

(92) The case of the prosecution is that the death of the deceased Ct.

Rajender was caused on account of firearm injures. In this regard the prosecution has placed its reliance on the testimony of Dr. Munish Wadhawan (PW26) and the postmortem report of the deceased. (93) Dr. Munish Wadhawan (PW26) has proved that on 21.04.2012 he along with Dr. Manoj Dhingra conducted the postmortem examination on the body of Rajender S/o Azad Singh vide postmortem report which is Ex.PW26/A. He has proved that on postmortem examination following injury was found:

1. Firearm entry wound oval, inverted margins 1.1 x .8cm surrounded by abrasion collar and grease collar on anterior aspect of right arm 8 cm below the shoulder joint and 4cm lateral to right axilla. On exploration there was bruising under neath projectile pass through under lying skin, sub cutaneous tissues muscles, right axilla, inter coastal space between first and second right ribs, piercing upper lobes of right and left lung, fracturing fourth and fifth left rib posteriorly and then fracturing left scapula and bullet found embedded in left scapular back muscles. There was about 1.5 meter of fluid and clotted blood in pleural cavity. Injury track was running from right to left and anterior posteriorly. St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 66 of 117 (94) The Autopsy Surgeon has further proved that the cause of death was Haemorrahagic shock due to riffled fire arm injury to lungs, ante mortem in nature which was sufficient to cause death in ordinary course of nature and time since death was about 12 hours. (95) I have gone through the postmortem report of the deceased which is Ex.PW26/A and there is no reason to doubt the same. The above report confirms a close range firing by a rifled firearm on the vital part of the body i.e. Chest. The direction of the injury (i.e. from right to left) is compatible to the prosecution version that the deceased was sitting on the driver seat when shot from the driver's side i.e. right. Forensic Evidence:

(96) The case of the prosecution is that pursuant to the information when he PCR Van reached the spot, they found the car i.e. Hundai Accent Car bearing No. DL 8C T4796 in accidental condition and thereafter they removed the injured Ct. Rajender to Hospital where he was declared dead.

Thereafter various exhibits were lifted from the spot and the car was taken to Police Station Kanjhawla where it was then examined by the FSL Experts. The exhibits were then lifted by the FSL team which were sent for expert forensic opinion. Further, it is the case of the prosecution that after the postmortem the Autopsy Surgeon preserved the viscera of the deceased which was then sent to FSL for expert opinion. In this regard the prosecution is placing its reliance on the testimonies of Dr. N.P. Wahmare St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 67 of 117 (PW14), Dr. Kanaklata (PW15), Ms. Seema Nain (PW23) and Sh. V.R. Anand (PW24).

Ballistic Report:

(97) Coming first to the Ballistic Reports. Dr. N.P. Waghmare (PW14) and also Sh. V.R. Anand (PW24) have proved these reports. They have proved that on 24.4.2012 a team of experts comprising of Sh. V.R. Anand (PW24) examined the Hundai Accent Car bearing No. DL 8C T4796 standing at Police Station Kanjhawala and following observations were made:

1. One hole was found present on the right side of front wind screen glass marked as 'H1", swabs around the hole and control swab have been taken.

2. One hole was found present on the right hand door glass (driver side door) marked as 'H2' swab around the hole and control swab have been taken.

3. One hole was found present on the back right hand door glass marked as 'H3' swab around the whole has been taken.

4. One hole was found present on the back right hand quarter glass marked as 'H4' swab around the hole has been taken.

5. One small fragment of bullet was found from the front left hand side seat.

6. One small hole was found present on the inside covering of black left St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 68 of 117 hand door.

7. After removing the inside door covering of black left hand door, one lead piece and two fragment of bullet were taken out.

(98) He has also proved that the swabs 'H1' to 'H2', two control swabs, one lead piece and three pieces of fragment of bullet were lifted and handed over to Investigating Officer who was advised to send the exhibits in FSL for detailed examination. He has proved the report prepared by Sh. V. R. Anand in this regard which is Ex.PW14/A. The above report confirm an indiscriminate firing from the right side while the window of the door was close. The fact that the holes were present not only on the glass of right hand side front door, right hand side back door but also on the glass of right side of front windscreen, confirms that the firing was made when the vehicle of the assailants was in motion. This is the reason why the firing holes marks were found present on the right side back door as well as front door and also on the right side front windscreen.

(99) The witnesses have proved that on 26.10.2012 eleven sealed parcels nos. (5) to (15) pertaining to present case were received in the Ballistics Division from Biology Division, which were examined by Sh. V. R. Anand (PW24), Assistant Director (Ballistics). The report Ex.PW14/B confirms the following:

1. The two deformed bullets marked exhibits 'EB1' & 'EB2' correspond to the bullet of 9 mm cartridge.

2. The fragment of jacket of bullets marked exhibits 'EBR1' & 'EBR3' St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 69 of 117 are fired through the rifled firearm.

3. The fragment of bullet marked exhibits 'EBR2' is fired through the rifled firearm.

4. No opinion can be given on the metallic piece marked exhibit 'M1'.

5. The individual characteristic of rifling marks present on bullet marked exhibit 'EB1', 'EB2' and 'ERB1' were compared and examined under comparison microscope Leica DMC and were found identical. Hence exhibits bullets 'EB1', EB2' and 'EBR1' have been discharged through the same firearm.

6. The swabs marked as C1 and S1 and C2 and S2 to S4 were analyzed in the Atomic Absorption Spectrophotometer for the detection of Gun Shot Residue (GSR) particles. As a result of Atomic Absorption Spectrophotometer, no opinion can be given on the swabs marked exhibits S1 to S4 due to Insufficient Data.

7. The swab HS1 taken at and around the hole along with control swab were analyzed in the Atomic Absorption Spectrophotometer (AAS) for the detection of Gun Shot Residue (GSR) particles. As a result of Atomic Absorption Spectrophotometer (AAS), the element copper and lead were detected in the swab marked as HS1.

8. The exhibits EB1 and EB2, ERB1 to ERB3 are the ammunition as defined in the Arms Act, 1959.

St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 70 of 117 (100) The above report confirms the indiscriminate firing done on Hundai Accent Car bearing No. DL 8C T4796. It also stands established that the deformed bullet marked exhibit EB2 (recovered from the body of the deceased), the deformed bullet marked exhibit EB1 (lifted from the spot of incident) and part of a jacket of bullet marked exhibit EBR1 were discharged through the same firearm but since no firearm has been recovered from the possession of the accused or at his instance, hence these report do not incriminate the accused Satish Kumar. Serological/ Biological Reports:

(101) In so far as the serological and biological reports are concerned, Ms. Seema Nain (PW23) has proved that on 3.8.2012, fifteen sealed parcels containing exhibits of present case were received in the FSL Rohini, Biology Division which were marked to her for biological and serological examination. She has proved that after examining the various exhibits she prepared the detail reports which are Ex.PW23/A and Ex.PW23/B. As per the report Ex.PW23/A, Blood was detected on exhibits 1 (cotton wool swab), 2 (blood lifted from the spot), 3 (sandle of the deceased), 4 (blood gauze of the deceased), 5a (pants of the deceased), 5b (shirt of the deceased), 5c (baniyan of the deceased) and 5d (underwear of the deceased). Further, as per the Serological Report Ex.PW23/B Human Blood of A Group was detected on exhibits 1 (cotton wool swab), 2 (blood lifted from the spot), 4 (blood gauze of the deceased), 5a (pants of St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 71 of 117 the deceased), 5b (shirt of the deceased), 5c (baniyan of the deceased) and 5d (underwear of the deceased).

(102) The above Biological and Serological reports establish that the blood group of the deceased Rajender was 'A' which was detected on his clothes. These reports also confirm the Scene of Crime but does not incriminate the accused Satish Kumar in any manner.

Chemical Analysis Report:

(103) Now coming to the chemical analysis/ viscera report, Dr. Kanaklata Verma (PW15) has proved that on 25.5.2012 one plastic yellow box duly sealed with the seal of SGMH Mortuary Mangolpuri, Delhi consisting of four exhibits i.e. 1A to 1D were marked to her and on chemical, microscopic and TLC examination metallic poison, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides could not be detected in Ex. 1A, 1B, 1C and 1D. She has proved her detailed report in this regard which is Ex.PW15/A. This Chemical Analysis Report rules out any poisoning of the deceased. (104) In view of the above discussion, I hereby hold that the Forensic Evidence on record in the form of Ballistic Report, Serological & Biological Report and the Chemical Analysis Reports do not incriminate the accused Satish Kumar in any manner.

St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 72 of 117 Electronic Evidence:

(105) The case of the prosecution that the accused Satish Kumar is an Extortionist/ Supari Killer and he used to made threatening calls to Kuldeep asking him to give the protection money. In this regard the prosecution is placing its reliance on the testimonies of Nodal Officers and also on the testimony of Ashish Chikara (PW22). (106) I have gone through the testimony of Ashish Chikara (PW22) who has proved that previously he was residing at B51, Anand Nagar, Village Nithari, Delhi and Parveen Rathi is his friend for the last about ten years and about three years ago, he was introduced by Parveen to his Jeeja Naveen Solanki @ Sonu. He has further proved that Naveen was already having a mobile No. 9911542222 while at that time he was using a mobile number 9213622222 and Naveen requested him to give him his number so that both his mobile numbers have a similar sequence and hence on asking of his friend Parveen Rathi he gave him his SIM card bearing Number 9213622222 to Naveen @ Sonu who is using the said number. (107) Further, Sh. M.N. Vijayan (PW16) Nodal Officer from Tata Teleservices Ltd. has proved that mobile No. 9213622222 (used by Naveen @ Sonu) has been issued in the name of Ashish Chikkara S/o Sh.

Surender Chikkara, R/o B51, Anand Nagar, Village Nithari, Delhi vide Customer Application Form which is Ex.PW16/A, copy of driving licence in support of ID proof is Ex.PW16/B. He has proved the call details from St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 73 of 117 01.04.2012 till 21.04.2012 which are Ex.PW16/C (running into 42 pages); the cell ID chart is Ex.PW16/D (running into four pages) and the certificate U/s 65 B of Indian Evidence Act which is Ex.PW16/E. (108) Sh. Hussain M. Zaidi (PW17) Nodal Officer from Idea Cellular Ltd. has proved that mobile No.7351480636 (allegedly being used by the accused Satish) has been issued in the name of Saroj W/o Sh. Ravinder, R/o 193, Maniram Dass, Nagina Ruller Bijnor, UP vide Customer Application Form which is Ex.PW17/A and copy of voter ID card in support of ID proof is Ex.PW17/B. He has further proved the call details from 01.03.2012 till 30.04.2012 which are Ex.PW17/C; Cell ID Chart which is Ex.PW17/D (running into single page) and certificate U/s 65 B of Indian Evidence Act which is Ex.PW17/E. (109) Sh. Anuj Bhatia (PW18) Nodal Officer from Vodafone has proved that mobile No. 9711834567 has been issued in the name of Sandeep S/o Sh. Jagbir Singh, R/o VPO Ladpur, Delhi81 vide Customer Application From which is Ex.PW18/A and copy of driving licence in support of ID proof which is Ex.PW18/B. He has also proved the call details from 14.03.2012 till 15.03.2012 which are Ex.PW18/C (running into six pages); Cell ID Chart which is Ex.PW18/D (running into 118 pages) and the certificate U/s 65 B of Indian Evidence Act which is Ex.PW18/E. St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 74 of 117 (110) Sh. Vishal Gaurav (PW19) Nodal Officer from Bharti Airtel Ltd. has proved that the mobile No. 9971794645 (used by the deceased Rajender) has been issued in the name of Rajender Singh Khatri (deceased) S/o Sh. Azad Singh, R/o 147, VPO Punjab Khore, Delhi vide Customer Application Form which is Ex.PW19/A and copy of driving licence in support of ID proof which is Ex.PW19/B and call details from 10.04.2012 till 25.04.2012 which are Ex.PW19/C (running into eight pages). He has further proved that mobile No. 9760993997 has been issued in the name of Roshni Devi (allegedly used by accused Satish) W/o Sh. Rajendera, R/o 139, Mohalla Bapugram, Rishikesh, Dehradun vide Customer Application Form which is Ex.PW19/D; copy of voter ID card in support of ID proof which is Ex.PW19/E; call details from 01.03.2012 till 30.04.2012 of UP circle which are Ex.PW19/F (running into 26 pages) and call details from 01.03.2012 till 30.04.2012 of Delhi Circle which are Ex.PW19/G (running into one page). He has further proved the cell ID chart both of UP and Delhi circles which are Ex.PW19/H (running into four pages) and Ex.PW19/I (running into four pages) respectively and certificate U/s 65 B of Indian Evidence Act which is Ex.PW19/J. (111) I have gone through the call detail records of the above mobile phones. The Call Detail Records of the mobile phone used by deceased Rajender bearing No 9971794645 which are Ex.PW19/D which confirm the movements of the deceased Rajender and it stands established that on St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 75 of 117 the date of incident i.e. on 20.4.2014 at 7:37 PM the deceased was in the area covered by the tower installed at Hotel Crown Plaza, Rithala Metro Station i.e. the place where he was posted. Thereafter at 8:11 PM the deceased was in the area of Sector - 24, Rohini; at 10:10 PM he was in the area of Shahzada Bagh; at 10:25 PM he was in the area of Pitampura Village and at 12:40 AM (midnight) he was in the area of Mangolpuri. Here, I may observe that two mobile phones i.e. one of Nokia and another of Samsung were recovered from the personal search of the deceased Rajender, a fact which is evident from the PCR Form Ex.PW4/A. The location of the mobile at Mangol Puri at 12:40 AM confirms that after the PCR Call was made he was shifted to SGM Hospital at Manogl Puri. At that time the mobile was in the pocket of the deceased and was discovered when his personal search was made by the PCR officials. (112) Further, as per the prosecution version the accused Satish Kumar was using the mobile No. 7351480636 and was making threat calls to Kuldeep. However, Sh. Hussain M. Zaidi (PW17) Nodal Officer from Idea Cellular Ltd. has proved that mobile No.7351480636 has been issued in the name of Saroj W/o Sh. Ravinder, R/o 193, Maniram Dass, Nagina Ruller Bijnor, UP vide Customer Application Form which is Ex.PW17/A. The prosecution has not examined any witness to prove that Satish was the user of this mobile phone. It was open to the prosecution to have examined the family members of the accused or produced their ID's if so reflected in St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 76 of 117 the Call Detail Records to prove his user, which has not been done. In so far as Kuldeep is concerned, he is totally unreliable and has turned hostile on the aspect of the threatening call made by the accused Satish or any threats having been issued by the accused and it was only on a leading question put to him that he has confirmed the number but these calls are relating to the month of March i.e. almost one month prior to the date of incident.

(113) I may further observe that in the case of Anvar P.V. Vs. P.K. Basheer & Ors. in Civil Appeal No. 4226/2012 decided by the Three Judges Bench of the Supreme Court of India comprising of Hon'ble the then Chief Justice of India R.M. Lodha, Hon'ble Mr. Justice Kurian Joseph and Hon'ble Mr. Justice Rohinton Fali Nariman, the Hon'ble Supreme Court has clearly laid down the manner in which the Electronic Record is required to be proved and I quote:

"........ The evidence consisted of three parts - (i) electronic records, (ii) documentary evidence other than electronic records, and (iii) oral evidence. As the major thrust in the arguments was on electronic records, we shall first deal with the same.

6. Electronic record produced for the inspection of the court is documentary evidence under Section 3 of The Indian Evidence Act, 1872 (hereinafter referred to as 'Evidence Act').

The Evidence Act underwent a major amendment by Act 21 of 2000 [The Information Technology Act, 2000 (hereinafter referred to as 'IT Act')]. Corresponding amendments were also introduced in St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 77 of 117 The Indian Penal Code (45 of 1860), The Bankers Books Evidence Act, 1891, etc.

7. Section 22A of the Evidence Act reads as follows:

"22A. When oral admission as to contents of electronic records are relevant Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question."

8. Section 45A of the Evidence Act reads as follows:

"45A. Opinion of Examiner of Electronic Evidence. When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000(21 of 2000)., is a relevant fact.

Explanation.For the purposes of this section, an Examiner of Electronic Evidence shall be an expert."

9. Section 59 under Part II of the Evidence Act dealing with proof, reads as follows:

"59. Proof of facts by oral evidence.--All facts, except the contents of documents or electronic records, may be proved by oral evidence."

10. Section 65A reads as follows:

"65A. Special provisions as to evidence relating to electronic record: The contents of electronic records may be proved in accordance with the provisions of section 65B."

11. Section 65B reads as follows:

"65B. Admissibility of electronic records:

(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 78 of 117 printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in subsection (1) in respect of a computer output shall be the following, namely:

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 79 of 117

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of subsection (2) was regularly performed by computers, whether -

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 80 of 117

(c) dealing with any of the matters to which the conditions mentioned in subsection (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation: For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process."

St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 81 of 117 These are the provisions under the Evidence Act relevant to the issue under discussion.

12. In the Statement of Objects and Reasons to the IT Act, it is stated thus:

"New communication systems and digital technology have made drastic changes in the way we live. A revolution is occurring in the way people transact business."

In fact, there is a revolution in the way the evidence is produced before the court. Properly guided, it makes the systems function faster and more effective. The guidance relevant to the issue before us is reflected in the statutory provisions extracted above.

13. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:

St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 82 of 117

(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;

(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;

(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and

(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.

14. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:

(a) There must be a certificate which identifies the electronic record containing the statement;

(b) The certificate must describe the manner in which the electronic record was produced;

(c) The certificate must furnish the particulars of the device involved in the production of that record;

(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 83 of 117

(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

15. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.

16. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence.

17. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India.

18. It is relevant to note that Section 69 of the Police and Criminal Evidence Act, 1984 (PACE) dealing with evidence on computer records in the United Kingdom was repealed by Section 60 of the Youth Justice and Criminal Evidence Act, 1999. Computer evidence hence must follow the common law rule, where a presumption exists that the computer producing the evidential output St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 84 of 117 was recording properly at the material time. The presumption can be rebutted if evidence to the contrary is adduced. In the United States of America, under Federal Rule of Evidence, reliability of records normally go to the weight of evidence and not to admissibility.

19. Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield....."

(114) In the above case the Hon'ble Supreme Court had also made a reference to the observations made on the aspect of Section 65B of Evidence Act in the earlier case of State (NCT of Delhi) Vs. Navjot Sandhu alias Afsan Guru, reported in (2005) 11 SCC 600 and distinguished the same as under:

"....... 20. In State (NCT of Delhi) Vs. Navjot Sandhu alias Afsan Guru, reported in (2005) 11 SCC 600 a twoJudge Bench of this Court had an occasion to consider an issue on production of electronic record as evidence. While considering the printouts of the computerized records of the calls pertaining to the cellphones, it was held at Paragraph150 as follows:

"150. According to Section 63, secondary evidence means and includes, among other things, "copies made St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 85 of 117 from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies".

Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service providing company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of Section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in subsection (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65."......

21. It may be seen that it was a case where a responsible official had duly certified the document at the time of production itself. The signatures in the certificate were also identified. That is apparently in compliance with the procedure prescribed under Section 65B of the Evidence Act. However, it was held that irrespective of the compliance with the St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 86 of 117 requirements of Section 65B, which is a special provision dealing with admissibility of the electronic record, there is no bar in adducing secondary evidence, under Sections 63 and 65, of an electronic record.

22. The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

23. The appellant admittedly has not produced any certificate in terms of Section 65B in respect of the CDs, ExhibitsP4, P8, P9, P10, P12, P13, P15, P20 and P22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice using songs, announcements and St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 87 of 117 speeches fall to the ground.

24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to Section 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act......" (115) Applying these settled principles of law to the facts of the present case, it is writ large that the record relating to mobile No. 7351480636 which according to the prosecution was being used by the accused Satish Kumar has not been proved as aforesaid and is hence inadmissible in evidence.

St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 88 of 117 (116) However, assuming for the sake of argument that the accused Satish was the user of Mobile No. 7351480636, the electronic evidence so relied upon as aforesaid does not help the prosecution in any manner since the Call Detail Record Ex.PW17/C does not show that at the relevant point of time the location of the accused Satish was in the area where the offence had been committed and hence this evidence does not incriminate the accused Satish.

(117) However, in so far as the location chart of the mobile details of mobile phone used by Naveen @ Sonu (PW30) is concerned, not only is the user proved but this witness does not dispute the use of the above mobile number i.e. 9213622222. The electronic evidence in the form of Call Detail Records confirm the presence of Naveen and Sandeep in the area of Budh Vihar in the late evening hours of 20.4.2012 (date of incident) where the office of Naveen @ Sonu is situated and this electronic evidence lends independent confirmation to the oral testimony of Ashish Solanki (PW31) to the extent that the deceased Ct. Rajender had dropped them (i.e. Sandeep, Naveen and himself) on the way, after they had their dinner in the office of Naveen @ Sonu.

(118) Here, I may specifically observe that in his oral testimony Ashish Solanki (PW31) has affirmed that after seeing the IPL match they left the office at Budh Vihar and Sarabjeet Singh who was under the influence of alcohol had left for his house on his own vehicle whereas he i.e. Naveen and Sandeep had gone with Rajender (deceased) in his vehicle. St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 89 of 117 According to him, first Naveen was dropped at Pooth Kalan and he (Ashish) was dropped at Mange Ram Park which is across the road and then Sandeep was dropped at Sardar Jheel and the electronic evidence as above lends confirmation to the said testimony of Ashish and proves the route taken by the deceased Rajender i.e. from Budh Vihar to Pooth Kalan, Mange Ram Park, Sardar Jheel and then to Budh Vihar - Kanjhawla Road where the firing incident took place.

Motive of the Crime:

(119) The case of the prosecution is that the deceased Rajender was a Constable in Delhi Police posted at Police Station Rithala Metro. He was a friend of one Kuldeep a bookie and involved into betting during the IPL matches. According to the prosecution, the accused Satish Kumar @ Pawan is a known extortionist and Kuldeep had been receiving threats from the accused Satish that in case if he (Kuldeep) did not give him (Satish) the protection money of Rs. 5 lacs, he i.e. Kuldeep would be killed. It is also alleged that Kuldeep had shared this information to Sarabjeet Singh, Sandeep, Ashish and Naveen and also the deceased Rajneder who was a Constable in Delhi Police posted at Police Station Rithala Metro at the given point of time. As per the prosecution version, since the deceased Ct.

Rajender and Kuldeep were good friends and remain together and since Kuldeep did not know how to drive, it was Ct. Rajender who used to carry Kuldeep to and fro from his house to the office of Naveen @ Sonu at Budh St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 90 of 117 Vihar in his car make Accent of white colour bearing No. DL8CT4796. It is alleged by the prosecution that Kuldeep was known to accused Satish previously and about a month prior to the incident the accused Satish had made calls to Kuldeep and demanded Rs. 5 lacs as Protection Money and had also threatened him on his refusal to pay the same. According to the prosecution, Kuldeep had shared this fact regarding Satish having given threatening calls to him with his friends Sarabjit Singh, Naveen @ Sonu, Ashish, Sandeep and also with Ct. Rajender but he was assured that there was nothing to fear since Ct. Rajender who was his good friend used to remain with him. It is alleged by the prosecution that irked by the refusal of Kuldeep to pay the Protection Money despite the threat, the accused Satish Kumar along with his associates namely Vikram and Sabu then hatched a conspiracy to kill Kuldeep. In pursuance to the same they kept a watch on Kuldeep and had information that Kuldeep was using a white coloured Accent car bearing No. 4796 in which vehicle he used to come and go from the office of Naveen @ Sonu at Budh Vihar. In fact this was the vehicle of Ct. Rajender in which he and Kuldeep used to go to the office of Naveen. As per the prosecution version, the accused Satish and his associates being unaware that on 20.4.2012 Kuldeep had not gone to the office of Naveen @ Sonu at Budh Vihar and only Ct. Rajender had gone there alone where he had met the other friends and had dinner with them after which he was going back home in the same car, the accused Satish and his associates followed the Accent car of white colour bearing No. 4796 and St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 91 of 117 at Budh Vihar - Kanjhawla Road, they overtook the said Accent car by their WagonR car which was being driven by Sabu with Vikram sitting besides him and accused Satish was sitting on the back seat after which Satish Kumar & Vikram fired at the Accent car on a mistaken belief that it was Kuldeep who was present inside the said Accent Car. After the firing this Accent Car which was being driven by Ct. Rajender slowed down and hit the three on the side of Budh ViharKanjhawla road. Being totally unaware that it was Rajender in the Accent car and not Kuldeep, the accused and his associates then fled from the spot. This is the case/ version putforth by the prosecution and I now proceed to analyse the material brought on record by the prosecution to ascertain if the motive so alleged stands established or not. According to the prosecution the motive of the crime was in fact to finish/ kill Kuldeep, a bookie in the IPL matches and for his failure to pay the Protection Money to the accused Satish and his associates but instead Constable Rajender was shot dead by the accused Satish and his associates mistaking him for Kuldeep.

(120) I may observe that the Motive has to be gathered from the surrounding circumstances and such evidence should form one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is best known to the perpetrator of the crime and not to St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 92 of 117 others. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.

(121) Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence. (122) Existence of motive for committing a crime is not an absolute requirement of law but it is always relevant fact, which will be taken into consideration by Courts as it will render assistance to Courts while analysing prosecution evidence and determining guilt of accused. [Ref.: IV (2012) SLT 257].

(123) Moreover, in a case where there is clear proof of motive for the commission of a crime, it affords added support to the finding of the court that the accused is guilty of the offence charged with. However, at the same time the absence of proof of motive does not render the evidence St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 93 of 117 bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone, who knows as to what circumstances prompted him to certain course of action leading to the commission of the crime [Ref.: State of U.P. Vs. Bahu Ram reported in 2000 (4) SCC 515 and Ujjagal Singh Vs. State of Punjab reported in 2007 (14) SCALE 428].

(124) Applying the settled principles of law to the facts of the present case, I may observe that in order to prove the Motive the prosecution is placing its reliance on the testimonies of Kuldeep (PW25), Sarabjit Singh (PW28), Naveen (PW30), Ashish Solanki (PW31), Sandeep Solanki (PW32). However, unfortunately all these witnesses have turned hostile in the Court and have resiled from their earlier statements made to the police. Not one of them have proved that any call relating to threat had been received by Kuldeep or that Kuldeep had disclosed about this threat given by accused Satish. Though Kuldeep (PW25) has admitted that accused Satish Kumar who was known to him previously made a call on his mobile number from the mobile No. 7351480636 four times, but has stated that there were no threats from Satish Kumar nor he told any one to his friends in this regard. Similarly the other witnesses i.e. Sarabjit Singh (PW28), Naveen (PW30), Ashish Solanki (PW31) and Sandeep Solanki (PW32) have not supported the version of the prosecution that Kuldeep had disclosed about the threats being received by him from Satish or that they had told him not to worry since the official of Delhi Police namely Ct. St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 94 of 117 Rajender was his friend and used to remain with him most of the time. (125) This being the background, I hereby hold that the prosecution has not been able to prove and establish the Motive of Crime. No Direct Ocular Evidence: Entire Case is based upon Circumstantial Evidence:

(126) Ocular evidence/eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. The eye witness account requires a careful independent assessment and evaluation for its credibility, it should not be adversely prejudged on the basis of other evidence. The ocular evidence has to be tested for its inherent consistency and inherent probability of the story, consistency of the account given by one witness with that given by the other witness held to be creditworthy, consistency with the undisputed facts, the 'credit' of the witnesses who performed in the witnessbox, their power of observation and it is only then that the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.

(127) Unfortunately in the present case there is no eye witness to the incident and the entire case of prosecution is based upon circumstantial evidence. The prosecution is placing its reliance on the testimony of Kuldeep (PW25) who according to the prosecution was a bookie involved in Satta/ betting during IPL matches and had been allegedly received St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 95 of 117 threats from the accused Satish Kumar @ Pawan a habitual criminal and an extortionist/ Supari Killer involved in number of cases of murder etc. and also on the testimonies of his friends i.e. Sarabjit Singh (PW28), Naveen (PW30), Ashish Solanki (PW31), Sandeep Solanki (PW32). As per allegations Kuldeep had been receiving threats from the accused Satish a hardened criminal who about a month prior to the incident had threatened Kuldeep to pay him Rupees Five Lacs as Protection Money, which information was shared by Kuldeep with his friends as above including the deceased Rajender a Constable in Delhi Police on which Kuldeep did not take the same seriously since Ct. Rajender used to remain with him most of time and also used to drive him to the office of Naveen at Budh Vihar and drop him back home in his Accent Car of while colour bearing No. DL8CT4796. On the date of the incident i.e. on 20.4.2012 Kuldeep did not go to the office of Naveen at Budh Vihar and was at home whereas all his other friends including Ct. Rajender, as usual gathered at Budh Vihar Office of Naveen @ Sonu where they watched the IPL match which was going on and also had dinner and drinks after which Sarabjeet went home in his own vehicle whereas Ashish, Naveen and Sandeep were dropped on the way by Rajender in his Accent car of white colour bearing No. DL8CT4796 as he was going home in the same direction. It is the case of the prosecution that the accused Satish and his associates had the information that Kuldeep was present in the said vehicle and hence they followed this vehicle and fired at it on the isolated road and instead killed St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 96 of 117 Ct. Rajender under this misconception and therefore the killing of Ct.

Rajender was a case of mistaken identity.

(128) I have gone through the testimonies of all these witnesses i.e. Kuldeep (PW25), Sarabjeet (PW28), Naveen @ Sonu (PW30), Ashish (PW31) and Sandeep (PW32) have turned hostile and have not supported their earlier version given to the police qua the allegations and the role attributed to the accused Satish.

(129) Coming first to the testimony of Kuldeep (PW25), the perusal of his testimony shows that he has confirmed the case of the prosecution to the extent that the deceased Rajender was a Constable in Delhi Police but has denied that he was well known to him and also to Sarabjit Singh, Naveen, Ashish Solanki and Sandeep Solanki and has also admitted that he was known to accused Satish Kumar but has turned hostile on the aspect of having received any threat calls from Satish on his mobile which he had communicated to his friends including the deceased Ct. Rajender. The relevant portion of his testimony is as under:

"........ I am residing on the above said address with my family. I am working as property dealer in the village. I do not know anything about the present case however I met deceased Rajinder twothree days prior to his death at Sri Radhey Property, Budh Vihar and where we have formal talk. Occasionally I visited Radhey Property to play badminton matches.

On 21/21.4.12 in the morning i.e. on the next day, I came to know that Rajinder was shot dead in the night while he was driving the vehicle by some unknown St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 97 of 117 person. I also participated in the last rites i.e. funeral. I know accused Satish who is present in the court today as he had met me five six years back at office in Mongol Puri. Police had made enquiries from me but I do not know anything about the present case......."

(130) I now reproduce the relevant portion of the crossexamination of this witness Kuldeep by the Ld. Addl. PP for the State, which is as under:

"........ The mobile number 9711834567 belongs to me. It is correct that accused Satish made a call on my aforesaid mobile number from the telephone number 7351480636 for four times. First time he made a call on 15.03.12 at about 8:30 and second time at 9:00 PM. Thereafter he again made me a call on 17.03.12 in the afternoon at about 1:30 and thereafter 2:00 pm. I had not stated in my statement mark B to the police that during the conversation with the accused Satish he was demanding a sum of Rs. 5 lacs and he further told me that thereafter I would not be pressurized in the area or that when I told him that I was not having a sum of Rs. 5 lac at that time so he threatened me and told me "Jyada hoshiar banane ki koshish na kar agar paise ni pauche to mujhe or mere himayati ko goli se bhoon dunga" (confronted with the statement mark B portion A to A where it is so recorded). I had also not stated in my statement Mark B that after receiving the threat I was very frightened and I disclosed this fact before the deceased Rajinder and other persons namely Naveen @ Sonu, Sarabjeet, Sandeep @ Chacha and Ashish who used to sit at Budh Vihar office and they told me not to worry as someone else is threatening or that "phir tere sath to Delhi Police ka sipahi Rajinder aksar St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 98 of 117 aata jata hai" or that on 20.04.12 deceased Rajinder told me that he had taken long leave so I had not come in my office at Budh Vihar on 20.04.12 (confronted with the statement mark B portion C to C where it is so recorded).

It is wrong to suggest that I was involved in Satta or that due to this reason I was having a friendship with accused Satish. It is further wrong to suggest that accused Satish demanded a sum of Rs. 5 lac from me from the earning of Satta game or that when I show my inability to pay sum of Rs. 5 lac to accused Satish he threatened me with dire consequences and also threatened to kill me along with my well wishers. It is further wrong to suggest that I had narrated this demand of Rs.5 lac from accused Satish before deceased Rajinder and my friends Naveen, Sarabjeet, Sandeep and Ashish. It is further wrong to suggest that police had recorded my correct version whichever I told to them. It is further wrong to suggest that I have been won over by the accused and his family members or that I am deposing falsely in order to save him from penal consequences...."

(131) It is evident that the above testimony of Kuldeep (PW25) does not help the prosecution in any manner as he does not incriminate the accused Satish at all.

(132) Coming next to the testimony of Sarabjeet Singh (PW28), he too has resiled from his earlier statement made to the police and does not support the prosecution version. The relevant portion of his testimony is reproduced as under:

St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 99 of 117 "........ I am residing at the above said with my family and I used to come at the office A40, Main Budh Vihar where I met with one Rajinder @ Raju who was in Delhi police who used to come with Kuldeep as Kuldeep did not know how to drive the vehicle. They came to their office in Accent Car no. DL8CT4796. In the month of April, 2012, I came to know that somebody has committed the murder of Rajinder @ Raju but I do not know who had committed the murder and I also do not know what was the reason for the murder of Rajinder.

At this stage, APP wants to cross examine the witness as he is resiling from his earlier statement made to the police.

Heard and allowed.

XXXXXXXX By Addl. PP for the State.

It is correct that the police made inquires from me but I cannot tell whether police had recorded any statement or not. I had not stated in my statement Mark C to the police that one month prior to the death of Rajinder, Kuldeep received 23 telephone calls from one Satish who was demanding the money by threatening him or that this fact was disclosed by Kuldeep before me, Rajinder and other friends namely Naveen, Sandeep and Ashish. (confronted with the statement Mark C of portion A to A). I had also not stated in my statement mark C to the police that on 20.04.12, I along with my friends, Naveen, Sandeep, Ashish were watching IPL cricket match and at about 10:30 Naveen received a telephone call from Rajinder and he was enquiring whether some eatables were to be brought and Sandeep told Rajinder to bring Roti or that about 15 minutes later Rajinder came in the office at Budh Vihar and we all took dinner and after the IPL match we left the office or that Rajinder told us that he would drop us at our respective residences as St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 100 of 117 he is also going towards his home or that on this Naveen, Sandeep and Ashish sat in the vehicle of Rajinder and I went to my house in my vehicle (confronted with the statement mark C portion C to C where it is so recorded). I had also not stated in my statement mark C to the police that in the night at about 11:30 am I received a call from Naveen and he informed me that somebody had committed the murder of Rajinder on the way to his house or that thereafter I reached at SGM Hospital Mangolpuri where I came to know that Rajinder was declared dead. (confronted with the statement Mark C of portion D to D where it is so recorded).

It is wrong to suggest that Kuleep had disclosed before me, my friends and deceased Rajinder that he had received a threatening calls. It is further wrong to suggest that on 20.4.12 deceased Rajinder bring rotties in the office of Radhey Property Budh Vihar or that I along with deceased, Naveen, Sandeep and Ashish had a dinner in the office while watching the IPL match or that after the match Naveen, Sandeep and Ashish went to their respective houses in the vehicle of deceased Rajinder. It is wrong to suggest that I am deposing falsely in order to save the accused from penal consequences as I have been won over by accused and his family members to this extent....."

(133) The testimony of this witness Sarabjeet again does not assist the prosecution nor it incriminates the accused Satish Kumar in any manner.

(134) Coming next to the testimony of Naveen (PW30), who again does not support the prosecution case. He too has denied that deceased St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 101 of 117 Rajinder was with them before his death or that he had dropped him home on his way back. He has specifically denied that Kuldeep had ever told them and deceased Rajender of any threat from accused Satish. The relevant portion of his testimony is as under:

"........ I am residing at the above said with my family and I and working as a property dealer and running my office at A40, Main Budh Vihar where I had met with one Rajinder @ Raju who was in Delhi police who used to come with Kuldeep as Kuldeep did not know how to drive the vehicle. They used to come to my office in Accent Car no. DL8CT4796. In the month of April, 2012, I came to know that somebody has committed the murder of Rajinder @ Raju but I do not know who had committed the murder and I also do not know what was the reason for the murder of Rajinder.

At this stage, APP wants to cross examine the witness as he is resiling from his earlier statement made to the police.

Heard and allowed.

XXXXXXXX By Addl. PP for the State.

It is correct that police enquired from me but I cannot tell whether police had recorded any statement or not. I had not stated in my statement Mark D to the police that one month prior to the death of Rajinder, Kuldeep had received 23 telephone calls from one Satish who was demanding the money by threatening him or that this fact was disclosed by Kuldeep before me, Rajinder and other friends namely Sarabjit, Sandeep and Ashish. (confronted with the statement Mark D of portion A to A where it is so recorded). I had also not stated in my statement mark D to the police that on 20.04.12, I along with my friends, Sarabjit, Sandeep, Ashish were watching IPL cricket St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 102 of 117 match and at about 10:30 I received a telephone call from Rajinder and he inquired from me whether some eatables were to be brought and my friend Sandeep told Rajinder to bring Roti or that about 15 minutes later Rajinder came in the office at Budh Vihar and we all had take dinner and after the IPL match we left the office or that Rajinder told us that he would drop us at our respective residences as he is also going towards his home or that on this I, Sandeep and Ashish sat in the vehicle of Rajinder and Sarabjit went to his house in his own vehicle (confronted with the statement mark D portion C to C where it is so recorded). I had also not stated in my statement mark D to the police that in the night at about 11:30 am I received a call from Deepak Mathur who was a resident of Majri Karala and he informed me that somebody had committed the murder of Rajinder on the way to his house or that he was going to Mangol Puri hospital and thereafter I also reached at SGM Hospital Mangolpuri where I came to know that Rajinder was declared dead. (confronted with the statement Mark D of portion D to D where it is so recorded).

It is wrong to suggest that Kuleep had disclosed before me, my friends and deceased Rajinder that he had received a threatening calls. It is further wrong to suggest that on 20.4.12 deceased Rajinder brought rotties to my office at Radhey Property Budh Vihar or that I along with deceased, Naveen, Sandeep and Ashish had a dinner in the office while watching the IPL match or that after the match Naveen, Sandeep and Ashish went to their respective house in the vehicle of deceased Rajinder. It is wrong to suggest that for the some extent I am deposing falsely in order to save the accused from penal consequences as I have been won over by accused St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 103 of 117 and his family members to this extent....."

(135) Now coming to the testimony of Ashish Solanki (PW31), I may observe that he is the only witness who has supported the prosecution version to a limited extent. The relevant portion of his testimony is reproduced as under:

"........ I am residing at the aforementioned address along with my family. I am into business of transport under the name and title of Mahadev Transport situated at A25, Mange Ram Park, Budh Vihar Phase II, Delhi. Naveen, resident of Pooth Kalan is my friend who is a property dealer and is also having his business in the same area of Budh Vihar and I remain with him in the free time. Kuldeep is resident of Ladpur and is known to me and my friend Naveen @ Sonu. He is a bookie indulging into sattebazi in cricket matches. Kuldeep was a good friend of Rajender, an employee of Delhi police. Kuldeep did not know how to drive a vehicle and therefore most of the time he used to come and go along with Rajender. Rajender often used to come to the office of Naveen where they used to play badminton together.

On the date of the incident when Rajender had been shot we i.e. I, Naveen, Sarabjeet and Sandeep were sitting in the office of Naveen. Sandeep received a call from Rajender @ Raju and he asked if some eatables were to be brought. After some time Rajender brought some chicken. At that time IPL matches were going on and after seeing the match we left the office. Sarabjeet was drunk at that time and he went back to his house. I, Naveen and Sandeep went with Rajender @ Raju in his vehicle. First Naveen was dropped at St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 104 of 117 Pooth Kalan, across the road, there is Mange Ram park and I was dropped there. When I was dropped, only Sandeep and Rajender were in the vehicle and later I came to know that Sandeep was dropped at Sardar Jheel. At about 11:30 AM I received a call from Sandeep that somebody had shot Raju @ Rajender and he had expired. On this we went to the SGM hospital from where we came to know that he had been shot at Majri village and we went to the spot where we found the vehicle of Rajender had hit a tree. We also met the officials of Delhi police who took us to PS Kanjhawala where we were interrogated by the police.

At this stage, Ld. APP for the state seeks permission to put leading questions to the witness as he is not giving the complete details.

Heard, Permission granted.

It is correct that the date of incident when Rajender had been shot was 20.04.2012. It is correct that I have told the police that about a month prior the death of Rajender Kuldeep had received a threatening call but I do not know if the said call was issued by Satish or somebody else.

At this stage, Ld. APP for the state seeks permission to cross examine the witness as he is resiling from his previous statement made to the police.

Heard, Permission granted.

XXXXXXXX by Ld. APP for the state.

It is wrong to suggest that Kuldeep was my good friend and I had come to know that Satish had issued threats to Kuldeep on 23 occasions because he wanted to exhort money from him and Kuldeep had disclosed about the same to Rajender. It is wrong to suggest that Kuldeep had disclosed this fact to us and also to St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 105 of 117 Rajender while we were used to sit in his office. Confronted with statement EX PW 31/PX1 from point A to A1 where this fact is so mentioned that Kuldeep had received 23 threatening calls from one Satish as he wanted to exhort money and did was disclosed by Kuldeep to Rajender and others who used to sit in the office......"

(136) It is evident from the above that Ashish Solanki is the only witness who has confirmed that about a month prior to the incident Kuldeep had informed them about some threatening call but he does not confirm that Kuldeep told them that this call had been made by the accused Satish and hence he does not incriminate the accused Satish Kumar in any manner.

(137) Now coming to the testimony of Sandeep Solanki (PW32), he too has not supported the prosecution version and has resiled from his earlier version given to the police. He has denied that a month prior to this incident Kuldeep had disclosed about a threat issued by the accused Satish. He has also resiled on the aspect that on the date of the incident i.e. on 20.4.2012 they were together with deceased Rajender in the office of Naveen @ Sonu where they watched IPL Match. He has also denied that it was the deceased Rajender who dropped him to his house. The relevant portion of his testimony is reproduced as under:

"........ I am residing at the above said with my family and I used to come at the office of my friend Naveen @ Sony at A40, Main Budh Vihar where I used to met Rajinder St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 106 of 117 @ Raju who was working in Delhi Police. Kuldeep also used to come to above office along with Rajinder in his Accent Car no. DL8CT4796. On 21.02.2012 at about 12:30 in the noon I came to know that someone had committed the murder of Rajinder @ Raju by gun fire when he was on the way to his house. I do not know who had committed the murder and I also do not know the reason of murder of deceased Rajinder.

At this stage, Ld. Addl. PP wants to cross examine the witness as he is resiling from his earlier statement made to the police.

Heard and allowed.

XXXXXXXX By Addl. PP for the State.

It is correct that police had made inquiries from me but I cannot tell whether police had recorded my statement or not. I had not stated in my statement Mark E to the police that one month prior to the death of Rajinder, Kuldeep had received 23 telephone calls from one Satish who was demanding the money by threatening him or that this fact was disclosed by Kuldeep before me, Rajinder and other friends namely Sarabjeet, Naveen and Ashish. (confronted with the statement Mark C of portion A to A). I had also not stated in my statement mark E to the police that on 20.04.12, I along with my friends, Sarabjit, Naveen and Ashish were watching IPL cricket match and at about 10:30 we received a telephone call from Rajinder and he was enquiring whether some eatables were to be brought on which we told Rajinder to bring some Roties for us or that about 15 minutes later Rajinder came in the office of Naveen at Budh Vihar and we all had dinner and after the IPL match we left the office or that Rajinder told us that he would drop us at our respective residences as he St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 107 of 117 was also going towards his home or that on this I, Naveen and Ashish sat in the vehicle of Rajinder and Sarabjit went to his house in his own vehicle (confronted with the statement mark E portion C to C where it is so recorded). It is correct that I have received a telephone call from Naveen @ Sonu and he informed me that someone had committed the murder of Rajinder by firing the bullets while he was on the way to his house. Thereafter I reached at SGM Hospital Mangolpuri where I came to know that Rajinder was declared dead.

It is wrong to suggest that Kuleep had disclosed before me, my friends and deceased Rajinder that he had received threatening calls. It is further wrong to suggest that on 20.4.12 deceased Rajinder brought rotties in the office of Radhey Property Budh Vihar or that I along with deceased, Naveen, Sandeep and Ashish had a dinner in the office while watching the IPL match or that after the match Naveen, Sandeep and Ashish went to their respective houses in the vehicle of deceased Rajinder. It is wrong to suggest that I am deposing falsely in order to save the accused from penal consequences as I have been won over by accused and his family members to this extent....."

(138) As apparent from the above even the witness Sandeep Solanki does not support and prosecution version.

(139) From a joint reading of the testimonies of all these witnesses, the following aspects emerge:

➢ That the deceased Rajender was a Constable in Delhi Police posted at Police Station Rithala Metro.

St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 108 of 117 ➢ That Rajender was very close and a good friend of Kuldeep a resident of the same area.

➢ That Kuldeep was a bookie who mainly indulged into sattebazi/ betting during IPL matches.

➢ That Kuldeep did not know how to drive a vehicle and mostly he used to take help of Rajender who used to come to the office of Naveen where they used to play badminton together. ➢ That on the date of incident i.e. on the night of 20.4.2012 IPL match was going on and while Ashish Solanki, Sarabjeet and Sandeep were sitting in the office of Naveen, Kuldeep had not joined them as he was at his house, when a call was received from Ct. Rajender @ Raju who asked them if some eatables were to be brought and after sometime Rajender brought some chicken.

➢ That thereafter they all had dinner and drinks after which they all left the office of Naveen.

➢ That Sarabjeet was drunk and hence he left for his house in his own vehicle whereas Ashish Solanki, Naveen and Sandeep were dropped by Rajender (deceased).

➢ That first Naveen was dropped at Pooth Kalan and thereafter Ashish Solanki was dropped near Mange Ram Park which is just across the road from Pooth Kalan and thereafter only Sandeep and Rajender remained in the vehicle and after sometime Sandeep was dropped at Sardar Jheel.

St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 109 of 117 ➢ That after Sandeep was dropped, only Rajender (deceased) was left in the vehicle and while he was on the way to his house, he i.e. Ct. Rajender was shot dead.

(140) The electronic record of mobile phone bearing No. 9213622222 used by Naveen @ Sonu confirms the statement of Ashish regarding the route taken by the deceased Ct. Rajender before he was shot dead i.e. from Budh Vihar to Pooth Kalan, Mange Ram Park and then from Sardar Jheel to the road where the incident of firing took place. All these witnesses have also not supported the prosecution version that any call was received by Kuldeep from the accused Satish Kumar about a month prior to the incident regarding any demand of Rupees Five Lacs or threat. They have also not supported the prosecution case that Kuldeep had informed them and also Ct. Rajender of this threat from accused Satish on which they had told Kuldeep not to worry since the official of Delhi Police i.e. Ct.

Rajender (deceased) was his friend and normally remained with him. Ashish Solanki (PW32) is the only witness who has confirmed that about a month prior to the incident Kuldeep did discuss about some threats being issued to him but has turned hostile on the aspect that Kuldeep had also informed that it was the accused Satish who had issued him these threats. He has however confirmed and proved that it was Ct. Rajender who used to drop Kuldeep home. Hence, the testimonies of the above witnesses do not help the prosecution case and does not incriminate the accused Satish. St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 110 of 117 (141) Further, the prosecution has failed to bring on record any direct evidence against the accused Satish and even the circumstantial evidence does not confirm the presence of the accused Satish Kumar in the area. None of the witnesses have confirmed that they had seen the accused Satish Kumar previously or had seen him following the vehicle of Rajender on the date of incident or heard of any threat being extended by Satish to Kuldeep.

(142) This being the background, I hereby hold that the oral evidence of these witnesses does not assist the prosecution in any manner and it does not incriminate the accused Satish Kumar @ Pawan. No Recovery of Firearm pursuant to the arrest of accused:

(143) In so far as the arrest of the accused Satish Kumar is concerned, the same is not disputed. He has been arrested by the officials of Crime Branch from Dehradun and as per the prosecution version he thereafter made a disclosure statement wherein he disclosed about his involvement in the present case only after which information was sent to the Investigating Officer of the present case and the accused was formally arrested. Here, I may observe that in so far as the disclosure statement of the accused Satish Kumar @ Pawn is concerned, the same is inadmissible in evidence being hit by the provisions of Section 25 of Evidence Act and there being no disclosure of fact, nor any recovery to connect the accused with the crime.

St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 111 of 117 (144) Further, I may note that though the Ballistic Report confirms that the deformed bullets marked exhibits 'EB1' & 'EB2' recovered from the spot of incident correspond to the bullet of 9 mm cartridge, even after the arrest of the accused Satish Kumar there is no recovery of firearm from the accused or at his instance which could have connected him to the firing incident. There is no other evidence against the accused Satish Kumar @ Pawan either direct or circumstantial and hence the failure to recover the firearm is fatal to the case of the prosecution.

FINAL CONCLUSIONS:

(145) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ' must or should' and not 'may be' established;

2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. the circumstances should be of conclusive nature and tendency;

4. they should exclude every possible hypothesis except the one to be proved; and St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 112 of 117

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

(146) Applying the settled principles of law to the facts of the present case, it is evident that the identity of the accused Satish Kumar @ Pawan stands established. Further, it has been established that the deceased Rajender was a Constable in Delhi Police posted at Police Station Rithala Metro and was very close and a good friend of Kuldeep a resident of the same area. It also stands established that Kuldeep was a bookie who mainly indulged into sattebazi/ betting during IPL matches and did not know how to drive a vehicle and mostly he used to take help of Rajender who used to come to the office of Naveen where they used to play badminton together. It further stands established that on the date of incident i.e. on the night of 20.4.2012 IPL match was going on and while Ashish Solanki, Sarabjeet and Sandeep were sitting in the office of Naveen, Kuldeep had not joined them as he was at his house, when a call was received from Ct. Rajender @ Raju who asked them if some eatables were to be brought and after sometime Rajender brought some chicken; that thereafter they all had dinner and drinks after which they all left the office of Naveen; that Sarabjeet was drunk and hence he left for his house in his own vehicle whereas Ashish Solanki, Naveen and Sandeep were dropped by Rajender (deceased); that St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 113 of 117 first Naveen was dropped at Pooth Kalan and thereafter Ashish Solanki was dropped near Mange Ram Park which is just across the road from Pooth Kalan and thereafter only Sandeep and Rajender remained in the vehicle and after sometime Sandeep was dropped at Sardar Jheel; that after Sandeep was dropped, only Rajender (deceased) was left in the vehicle and while he was on the way to his house, he i.e. Ct. Rajender was shot dead. (147) It does not stand established that the accused Satish had demanded Rs. Five Lacs as Protection Money from Kuldeep or that on refusal of Kuldeep to pay, the accused Satish and his associates hatched a conspiracy to kill Kuldeep. It also does not stand established that in view of the same, Satish and his associates gathered information about Kuldeep and come to know that Kuldeep used to come to the office of Naveen at Budh Vihar in a Hundai Accent Car bearing No. DL8CT4796. It also does not stand established that on 20.4.2012 the accused Satish and his associates followed the white coloured Accent Car bearing No. DL8CT4796 on the Budh Vihar Kanjhawla Road on a mistaken belief that it was Kuldeep who was inside the car. It further does not stand established that accused Satish was sitting on the back seat of the Wagon-R car which was driven by Sabu with Vikram sitting on the adjoining seat and then fired indiscriminately on the driver of the Accent Car from a rifled firearm (which firearm was not recovered till date) thinking that it was Kuldeep in the said car which he did after overtaking the Accent car and then fled from the spot after which the Accent Car hit the tree. St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 114 of 117 (148) The Medical Evidence on record establishes that the cause of death was Haemorrahagic shock due to riffled fire arm injury to lungs, ante mortem in nature which was sufficient to cause death in ordinary course of nature. It also confirms a close range firing by a rifled firearm on the vital part of the body i.e. Chest. The direction of the injury (i.e. from right to left) is compatible to the prosecution version that the deceased was sitting on the driver seat when shot from the driver's side i.e. right but it does not incriminate the accused Satish in any manner (149) The Ballistic Report confirms the indiscriminate firing done on Hundai Accent Car bearing No. DL 8C T4796. It also stands established that the deformed bullet marked exhibit EB2 (recovered from the body of the deceased), the deformed bullet marked exhibit EB1 (lifted from the spot of incident) and part of a jacket of bullet marked exhibit EBR1 were discharged through the same firearm but since no firearm has been recovered from the possession of the accused or at his instance, hence these report do not incriminate the accused Satish Kumar. The Biological and Serological reports establish that the blood group of the deceased Rajender was 'A' which was detected on his clothes and these reports also confirm the Scene of Crime but does not incriminate the accused Satish Kumar in any manner.

(150) The prosecution has also not been able to establish the Motive of Crime. In so far as the Electronic Evidence on record is concerned, it also does not incriminate the accused Satish in any manner. St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 115 of 117 (151) The oral evidence on record in the form of testimonies of Kuldeep (PW25), Sarabjeet (PW28), Naveen @ Sonu (PW30), Ashish (PW31) and Sandeep (PW32) also does not assist the prosecution in any manner and does not incriminate the accused Satish Kumar @ Pawan. All these witnesses have not supported the prosecution version that any call was received by Kuldeep from the accused Satish Kumar about a month prior to the incident regarding any demand of Rupees Five Lacs or threat. They have also not supported the prosecution case that Kuldeep had informed them and also Ct. Rajender of this threat from accused Satish on which they had told Kuldeep not to worry since the official of Delhi Police i.e. Ct. Rajender (deceased) was his friend and normally remained with him. Ashish Solanki is the only witness who has confirmed that about a month prior to the incident Kuldeep did discuss about some threats being issued to him but has turned hostile on the aspect that Kuldeep had also informed that it was the accused Satish who had issued him these threats. He has however confirmed and proved that it was Ct. Rajender who used to drop Kuldeep home.

(152) Therefore, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the guilt of the accused person. The material brought on record by the prosecution is St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla Page No. 116 of 117 insufficient so as to hold that the accused Satish Kumar @ Pawan was guilty beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused Satish Kumar @ Pawan. Crucially, the material and evidence on the record do not bridge the gap between "may be true" and must be true" so essential for a court to record a finding of guilt of an accused, particularly in cases based on circumstantial evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Satish Kumar @ Pawan, beyond reasonable doubt and hence, benefit of doubt is being given to him who is acquitted of the charges under Section 302/34 Indian Penal Code and 27 of Arms Act. The accused be released if not required in any other case. (153) File be consigned to Record Room to be taken up on the arrest of accused Vikram Yadav who is a Proclaimed Offender.

Announced in the open court                              (Dr. KAMINI LAU)
Dated: 17.1.2015                                        ASJII(NW)/ ROHINI




St. Vs. Satish Kumar, FIR No. 83/2012, PS Kanjhawla                   Page No. 117 of 117

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Delhi District Court

State vs . (1) Satish Kumar @ Pawan @ Suresh @ Pappu on 17 January, 2015