Delhi District Court
State vs Satpal Singh Etc on 7 October, 2023
IN THE COURT OF SH. PANKAJ ARORA-04:
ADDL. SESSIONS JUDGE-04: NORTH-EAST:
KARKARDOOMA:DELHI
SESSIONS CASE NO. 44229/2015
CNR No. DLNE01-000007-2013
FIR No. 173/2013
P.S. New Usman Pur
U/s : 302/201/34 IPC &
25/27/54/59 Arms Act
STATE
Versus
(1) SATPAL SINGH
S/o Late Sh. Balbir Singh
R/o H.No. I-35/7, Gali No.10,
Brahampuri, Delhi
(2) SUSHIL
S/o Sh. Satpal Singh
R/o H.No. I-35/7, Gali No.10,
Brahampuri, Delhi
(3) RAM NIWAS (proceedings abated vide order
S/o Sh. Bhim Singh dated 07-10-2023)
R/o CPJ-116,
New Seelampur, Delhi
Date of Institution : 13-09-2013
Date of Argument : 31-08-2023
Date of Judgment : 07-10-2023
JUDGMENT
1. Brief facts of this case are that on 02-06-2013 at about 1:20 am, an information was received at PS New Usman Pur that at gali No. 10 near Dr. Pankaj Goyal Clinic and Muskan Beauty FIR No. 173/2013 State Vs. Satpal & Ors. Page 1 of 55 Parlour, one dead body of a man aged about 40-45 years is lying in a pool of blood and besides the body, one Fazer Motorcycle bearing No. DL-5SAJ-6527 is stationed. The information was reduced into writing vide DD No. 4A Ex.PW12/A and the same was marked to IO/SI Inderveer. Thereafter, SI Inderveer along with Ct. Tapan had reached the spot and noticed the above-stated dead body and the motorcycle. Senior police officials were informed and request was made for sending crime team. After sometime, crime team arrived at the spot and took photographs from all possible angles. Four empty cartridges of 7.65 mm KF, out of which one was blood-stained, one blood-stained bullet lead, and one broken part of bullet lead were found near the dead body, which were seized by the IO. One blood-stained car cover, blood-stained plastic mat, pair of Redchief slippers and one Fazer motorcycle bearing No. DL5SAJ-6527 were also seized. On inspection of dead body, it was found that there was one injury mark above the left eye and one injury mark on the right thigh. One leather purse, one mobile phone and one golden ring from the dead body were taken into possession and the pullanda thereof was prepared. Earth control and bloodstains were also lifted from the spot and pullanda thereof was prepared. One Umesh Kumar Kashyap was found present at the spot who got his statement recorded before the IO. He stated that he is running a mobile repairing shop in front of Shop No. 78 at Lajpat Nagar Market, Chandni Chowk. His brother Sanjay Kashyap aged about 40 years is running shop of property dealing and money lending at house No. 10/15, gali no. 10 in the name of Omji Associates. For the last six months, in order to expand the business, the deceased Sanjay has opened one shop at 4½ Pusta, Sonia Vihar in FIR No. 173/2013 State Vs. Satpal & Ors. Page 2 of 55 the name of Om Ji Property, due to which one Sushil, who is residing in the neighborhood and who is already carrying out the work of property dealing at Sonia Vihar, had suffered business losses and his customers have also started approaching deceased Sanjay. Due to which, Sushil had already picked quarrel with the deceased Sanjay on two occasions in the last six months. However, the matter was sorted out amicably without informing the police/ Court. At about 1:00 am, he along with one Yogesh, while sitting on the motorcycle of deceased Sanjay, was going to his home. Yogesh is working on the office of Sanjay for the last six months. When they were passing in front of house of Sushil situated at Gali No. 10, Brahmpuri, they saw accused Sushil, his father Satpal and one another person Ram Niwas, resident of Seelampur, standing in the gali. They all signaled his brother to stop the motorcycle and his brother accordingly, stopped the motorcycle. Then, accused Satpal caught hold of his brother Sanjay from his shoulder and got him down from the motorcycle. The accused Ram Niwas caught both arms of his brother Sanjay and then all started uttering, "tu aise nahi mane ga, aaj tera kaam tamaam kar dete hain, nahi to hamara sara kaam Sonia Vihar chaupat kar dega". While saying so, accused Sushil fired a gunshot in the head of his brother Sanjay and due to gunshot injury, his brother Sanjay fell down. The accused Sushil also fired 2-3 rounds on the legs of his brother Sanjay and was saying "saala aaj nahi bachna chahiye". Thereafter, all three accused persons started running towards them and due to fear, he alongwith Yogesh ran in the gali. Accused Sushil, Ram Niwas and Satpal had together murdered his brother. Action be taken against them. On the basis of statement of Umesh Kumar FIR No. 173/2013 State Vs. Satpal & Ors. Page 3 of 55 Kashyap, present FIR came to be registered. Thereafter, investigation of the present case was assigned to Insp. Virender Singh, who had inspected the spot alongwith the crime team, prepared the site plan and started searching the accused persons. The accused Satpal Singh was apprehended from his residence situated at H. No. I-35/7, gali No. 10, Brahampuri, who confessed after his involvement in the alleged murder of Sanjay Kashyap @ Sanjay and therefore, he was arrested. The postmortem of the deceased was got conducted. Thereafter, upon the transfer of Insp. Virender Singh, the investigation was assigned to Insp. Mahaveer Singh. The exhibits were sent to FSL/ CFSL. IO got prepared scaled site plan through official draftsman. PM report was received wherein the cause of death was opined as shock as a result of ante-mortem injury to head and long bones produced by projectile of a firearm. Injury No. 1 and 4 are sufficient to cause death independently and collectively in ordinary course of nature.
Since the accused Sushil and Ram Niwas were not traceable, IO obtained their NBWs from the concerned court. On 06.08.2013, accused Sushil has surrendered himself in the Court and therefore, he was arrested by the IO with the permission of the Court. The accused Sushil has also confessed about his involvement in the alleged murder of Sanjay Kashyap @ Sanjay. Police Custody remand of accused Sushil was obtained wherein he pointed out one place i.e. office of Sh. Vishwakarma Property and got recovered one pistol from his office which was used in the commission of alleged offence. The pistol was found containing two live cartridges. The site plan of place of recovery of weapon of offence was prepared. Pointing out memo of place FIR No. 173/2013 State Vs. Satpal & Ors. Page 4 of 55 of offence was prepared at the instance of accused. On 20.08.2013, an information was received that the 3rd accused Ram Niwas s/o Bhim Singh was arrested by Special Cell, Lodhi Colony u/s 41.1 (A) Cr.P.C., who was produced on 21.08.2013 in the concerned Court. With the permission of the concerned Court, he was arrested and he also confessed about his involvement in the alleged murder. Accused Ram Niwas claimed that pistol and bullets were brought by him and he handed over the same to accused Sushil. Two days PC remand of accused Ram Niwas was obtained wherein efforts were made to arrest one Taiyab, who had supplied pistol and bullets to accused Ram Niwas, but he was not traceable. The accused Ram Niwas and Sushil had claimed that they had thrown their clothes which they were wearing on the date of incident in flowing Yamuna River. COMMITTAL
2. After completion of necessary formalities, chargesheet was filed in the Court of Ld. Ilaqa MM. After taking cognizance, compliance of section 207 of Cr.P.C., the present case was committed to the Court of Sessions vide order dated 13.09.2013. The same was allocated by the then Ld. District and Sessions Judge to the Ld. Predecessor of this Court.
CHARGE
3. After hearing the arguments and finding that prima facie case was made out against all the accused persons for the offence punishable u/s 302/34 IPC, and for the offence punishable u/s 25 and 27 Arms Act against accused Sushil. Charges were framed by ld. Predecessor against accused persons, to which accused persons pleaded not guilty and claimed trial. Thereafter, prosecution got examined as many as 29 witnesses.
FIR No. 173/2013 State Vs. Satpal & Ors. Page 5 of 55PROSECUTION EVIDENCE (I) PUBLIC WITNESSES:
4. (i) PW-2 Yogesh Kashyap deposed that at the time of incident of this case he was privately employed with Sanjay Bhai. Sanjay was carrying business in property dealing as well in finance and that business was situated in gali no.10, Brahampuri, Delhi. He was employed for about six months with Sanjay, prior to the incident. He was originally resident of village Masarka Nagar, Kher Ka Adda, Bhangi Ka Chowrah, Aligarh, UP. On the date of incident that is 01.06.2013 by around 10.30 pm, he closed the office premises of Sanjay and proceeded for his house. On next day morning, he came to know that Sanjay was killed by causing a firearm bullet injury. He was not a witness to that incident wherein Sanjay had sustained bullet injury. He did not know where that incident had occurred and who caused that bullet injury to Sanjay. He further stated that he had continued to live and work in Delhi even after that incident and police never met him. He again stated that next day of the incident, he had been called in Police Station and police inquired from him about the incident and he informed police that he had not witnessed the incident. He further stated that no such incident was witnessed by him where he was accompanying Umesh Kashyap and Sanjay Kashyap that is Sanjay Bhai or that they were while riding a motorbike stopped on the way or that accused persons present in Court that day caught hold of Sanjay or that one of the accused then caused firearm bullet injury in the head of Sanjay. He was not present on the scene of crime as appearing in photographs wherein Sanjay was lying with bullet injury.
The witness was cross-examined by Id. Addl. PP for State FIR No. 173/2013 State Vs. Satpal & Ors. Page 6 of 55 as he was resilling from his earlier statement u/s 161 Cr.P.C.
During cross-examination by Ld. Addl. PP for State, PW1 has affirmed that brother of deceased Sanjay is Umesh Kashyap. He could not confirm or deny that office of deceased Sanjay was in a premises at X-10/15, Brahampuri. He denied that on the intervening night of 1st/2nd June, 2013 he accompanied Sanjay and Umesh Kashyap on a motorbike bearing no. DL-5SAJ-6527 or that it was around 1 am midnight that they were proceeding towards house of Sanjay. He denied that as office premises of Sanjay was opened till late hours in night on that date that they left the office and it was around 1 am midnight that they were proceedings on a motorbike. He further stated that he had not given any such statement before police. He claimed that he was residing in gali no. 10, Brahampuri. He deposed that he does not know accused Sushil present in Court or that he was residing in gali no.10, Brahampuri. He did not know accused Satpal or that he was father of Sushil and he also resided in gali no.10, Brahampuri. He denied that while they were riding motorcycle on the date of incident that they reached in front of house of accused Sushil or that Sushil also used to carry a business in property dealing. PW2 denied that he knew accused Sushil for the reasons that he was resident of gali no.10 or that he was in the property dealing business as deceased Sanjay was also in property dealing, there had been uncordial relations between them due to their business rivalries. He denied that there had been one or two instances of a quarrel between accused Sushil and deceased Sanjay in his presence. He denied that on the date of incident accused Satpal, his son Sushil and accused Ram Niwas were standing outside the house of accused Sushil and FIR No. 173/2013 State Vs. Satpal & Ors. Page 7 of 55 Satpal in gali or that accused Satpal got their motorbike stopped or that Sanjay was driving the bike and Umesh was sitting behind Sanjay and he was sitting behind Umesh. He denied that as soon as their bike stopped, accused Satpal got Sanjay off the motorbike or that accused Ram Niwas caught Sanjay by both hands and all three accused uttered "tu esse nahi mane ga, tera kaam tamam kar dete hain, nahi to hamara sara kaam Sonia Vihar chaupat kar dega". He denied that accused Sushil then caused a firearm bullet injury into the head of Sanjay and due to that injury Sanjay fell down and accused Sushil then further caused 2-3 bullet injuries into the leg of Sanjay and Sushil uttered "sala aaj bachna nahi chahiye". He denied that all three accused then ran towards him and Umesh or that himself and Umesh then ran towards gali to save ourselves. He denied that because of this incident, he got terrorized and went to his native village in Aligarh. He denied that he narrated all above facts of this incident to the police as witnessed by him. He deposed that he was not in fear of anybody. He denied that he had colluded with accused persons or that for that reason he was resiling and not deposing truth. He identified motorcycle appearing in photograph mark X1, X2 and X3 as belonging to Sanjay. He denied that he was accompanying Sanjay and Umesh on this motorbike when this incident took place. He denied that he had suppressed true facts by giving a false statement before court in order to save accused persons by colluding with them.
The witness was not cross-examined by Ld. Defence counsel despite having given the opportunity.
(ii) PW3 Umesh Kumar Kashyap is the complainant in the present case. He deposed that he was in profession of FIR No. 173/2013 State Vs. Satpal & Ors. Page 8 of 55 repairing of mobile phones. Sanjay Kashyap was his elder brother. His brother Sanjay Kashyap was a property dealer and he was running a property dealing shop in the name and style of Omji Associates in Gali no. 10, Brahampuri. He also opened a other shop in the name and style of Omji Associates in Sonia Vihar. On 31.07.2013, PW3 received a phone call at about 1- 1.30am from one unknown person and he informed him that dead body of his brother Sushil was lying in front of Vashishth Medical Store in gali no. 10, Brahampuri. He reached in front of Vashishth Medical store in gali no.10, Brahampuri at about 1.30am and there he saw the dead body of his brother Sushil was lying on the road and police officials were present there. Thereafter, the police officials took away the dead body of his brother.
The witness was cross-examined by Id. Addl. PP for State as he was resilling from his earlier statement u/s 161 Cr.P.C.
During cross-examination by Ld. Addl. PP for State, he stated that he had studied upto 12th standard. He deposed that complaint Ex. PW3/A bears his signature at point A and he signed the complaint Ex. PW3/A in the police station. He had not gone through the complaint before signing the same. Generally he signs the papers after reading the same. But in this case, he signed the same without going through the same. PW3 has affirmed that at the relevant time, he was working in front of shop no.798, Lajpat Rai Market, Chandni Chowk. He knows all the accused persons present in court. Accused Sushil was residing in his neighborhood. He did not know if accused Sushil was doing the business of property dealing at the time of incident. He did not know if on account of opening of shop of FIR No. 173/2013 State Vs. Satpal & Ors. Page 9 of 55 property dealing by his brother, the business of Sushil suffered. He did not know if the customers of Sushil went to his brother as a result Sushil was annoyed. He did not know if Sushil earlier quarrelled with his brother twice on this account prior to six months of this incident. He did not know if matter regarding those quarrels was settled.
He deposed that to the best of his knowledge, the incident took place on the night of 31st May, 2013. PW3 denied that incident took place on the intervening night of 1st and 2nd June, 2013. He denied that at about 1 a.m. on the intervening night of 1st and 2nd June, 2013, he along with his brother Sanjay and one Yogesh were going on motorcycle bearing no. DL-5SAJ-6527 to their house. PW3 denied that Yogesh used to work with his brother Sanjay. He denied that when they were passing in front of house of accused Sushil situated in gali no.10, Brahampuri, they saw accused Sushil, his father Satpal and one other person Ram Niwas i.e all the accused persons present in Court were standing in the gali. He denied that all the aforesaid persons signalled his brother to stop the motorcycle. His brother stopped the motorcycle. PW3 denied that accused Satpal caught hold of his brother Sanjay from his shoulder and got him down from the motorcycle. PW3 denied that accused Ram Niwas caught arms of his brother Sanjay or that all the persons were uttering the words "tu se nahi mane ga, aaj tera kaam tamaam kar dete hain, nahi to hamara sara kaam Sonia Vihar chaupat kar dega". PW3 further denied that accused Sushil fired a gunshot in the head of his brother Sanjay or that due to gun shot injury his brother Sanjay fell down there. PW3 denied that accused Sushil fired 2-3 shots on the legs of his brother Sanjay and was uttering the words FIR No. 173/2013 State Vs. Satpal & Ors. Page 10 of 55 "sala aaj nahi bachna chahi ye". PW3 further denied that that all the aforesaid accused persons ran towards them or that due to fear they ran away in the gali. PW3 denied that accused Sushil, Ram Niwas and Satpal murdered his brother Sanjay. He denied that he had stated all these facts in his complaint Ex.PW3/A. He denied that he was deposing falsely because he had been won over by the accused persons. PW3 denied that he was suppressing the true facts of the present case in order to save the accused persons as his family members have compromised the matter with the accused persons. PW3 denied that site plan was prepared by the police official on his directions. He has affirmed that site plan Ex.PW3/B bears his signature at point A. He affirmed that personal search of his deceased brother was taken vide memo Ex. PW3/C and the articles recovered were detailed in Ex. PW3/C. PW3 affirmed that motorcycle of his brother was seized from the spot vide memo Ex. PW3/D and it bears his signature at point A. PW3 affirmed that the blood which was scattered at the spot was lifted through cotton swab and it was kept in a paper envelope and it was sealed with the seal of IVS. PW3 further affirmed that blood stained earth control and normal earth control was also lifted from the spot and same were kept in two different containers and same were sealed with the seal of IVS. PW3 affirmed that one pair of slipper belonging to his deceased brother Sanjay were also lifted from the spot and same were converted into a cloth pulanda and same was sealed with the seal of IVS. PW3 further affirmed that aforesaid articles were taken into possession vide memo Ex. PW3/E which bears his signatures at point A. He affirmed that in his presence police had lifted one blood-stained car cover and one blood-stained plastic FIR No. 173/2013 State Vs. Satpal & Ors. Page 11 of 55 mat from the spot and same were kept in a plastic bag and same was sealed with the seal of IVS and it was taken into possession vide memo Ex. PW3/F. He affirmed that four empty cartridges and one blood-stained bullet led were lying at the spot.
PW3 has affirmed that the aforesaid articles were kept in a plastic container and plastic container was converted into a cloth pulanda and same was sealed with the seal of IVS and was taken into possession vide memo Ex. PW3/G. Prior to seizing the same, police officials had prepared sketch of empty cartridges and bullet lead vide Ex. PW3/H. PW3 denied that accused Satpal was arrested in his presence vide memo Ex. PW3/I, however he affirmed that memo bears his signature at point A. He denied that personal search of accused Satpal was taken in his presence, however, he affirmed that personal search memo Ex. PW3/J bears his signature at point A. PW3 denied that accused Satpal made a disclosure statement in his presence regarding the committing of murder of his brother along with two accused persons present in Court. However, he affirmed that disclosure statement bears his signature. PW3 denied that all the proceedings were conducted in his presence or that he was deliberately deposing falsely in order to save the accused persons.
The witness was not cross-examined by ld. Defence counsel despite having given opportunity.
(iii) PW-4 Ram Kumar deposed that he had been working as a property dealer at Brahampuri, Delhi, in the name of Omji Associates. His friend Umesh @ Kukku, was also sitting with him in his office. He was doing his business alone. The deceased Sanjay was his partner earlier. Some other persons used to visit FIR No. 173/2013 State Vs. Satpal & Ors. Page 12 of 55 his office. On the night of 31.05.2013, he received a telephone call at his house from a person residing in his street regarding a quarrel of Sanjay and he was lying in the street in injured condition, but he was not informed regarding the name of the persons with whom the quarrel of Sanjay had taken place. He knew the accused Sushil, present in the Court that day, who was residing 4/5 streets away from his house. His statements was not recorded by the police. He had not seen Sanjay thereafter.
The witness was cross-examined by Id. Addl. PP for State as he was resiling from his earlier statement u/s 161 Cr.P.C.
During cross-examination by Ld. Addl. PP for State, PW4 denied that his statement was recorded by the police on 09.08.2013. He volunteered that he was called at the PS on that day. He did not state before the police that on 30.05.2013 at about 9.30-10 pm a quarrel had taken place in front of his office between Sushil and his friend Ram Niwas. He did not state before the police that Sanjay @ Sanju had brought hockey but the matter was resolved his intervention or that Sanju had given 2/3 slaps to Ram Niwas. Meanwhile, the brother of Sushil reached there and thereafter, they left that place or that on the next day a quarrel had taken place between Sanjay @ Sanju and Sushil and it was pacified by Pappan and Vinod. PW4 denied that the accused Sushil, present in the Court, had a quarrel with Sanjay @ Sanju twice i.e on 30.05.2013 and on 31.05.2013. PW4 denied that due to any fear or compromise with the accused Sushil and Ram Niwas, he had not identified Ram Niwas. PW4 denied that he was deposing falsely as he has been won over by the accused persons.
The witness was not cross-examined by Ld. Deffence FIR No. 173/2013 State Vs. Satpal & Ors. Page 13 of 55 counsel despite having given the opportunity.
(iv) PW5 Devender deposed that in the year 2013, he was working in gali no.10 at the shop of Gas Stove. Sanjay @ Sanju, was working as a property dealer in gali no. 10, Brahampuri. PW5 knew the accused Sushil Kumar, present in the Court, who was also doing his own work in the same street. About two years back, he came to know regarding some quarrel and death of Sanju. No quarrel had taken place in his presence ever with Sanjay @ Sanju. His statement was not recorded by the police. he did not know Ram Niwas.
The witness was cross-examined by Id. Addl. PP for State as he was resilling from his earlier statement u/s 161 Cr.P.C.
During cross-examination by Ld. Addl. PP for State, PW5 affirmed that his statement was recorded by the police on 09.08.2013. PW5 did not state before the police that on 30.05.2013 at about 9.30-10 pm a quarrel had taken place in front of his office between Sushil and his friend Ram Niwas. He did not state before the police that Sanjay @ Sanju had brought hockey but the matter was resolved with his intervention or that Sanju had given 2/3 slaps to Ram Niwas. Meanwhile, the brother of Sushil reached there and thereafter, they left that place or that on the next day a quarrel had taken place between Sanjay @ Sanju and Sushil and it was pacified by Pappan and Vinod. PW5 denied that the accused Sushil, present in the Court, had a quarrel with Sanjay @ Sanju twice i.e on 30.05.2013 and on 31.05.2013. PW5 denied that due to any fear or compromise with the accused Sushil and Ram Niwas, he had not identified Ram Niwas. PW5 has affirmed that he was working as a property dealer on commission basis in the name of Omji Associates in gali no. 10.
FIR No. 173/2013 State Vs. Satpal & Ors. Page 14 of 55He denied that accused Sushil was working in Chaman Vihar as property dealer. He denied that he did not intentionally identify the accused Ram Niwas though he was present in the Court as won over by him. PW5 denied that he was deposing falsely as he had been won over by the accused persons.
When he reached at the PS, a number of persons i.e Vinod, Ram Kumar, Pappan @ tea vendor, Vinod Jain and Suresh, were already there. He had gone to the PS along with Jai Bhagwan and Ram Kumar. One Vinod, Pappan, Suresh and he or 2 other persons, whose name he did not know, were already there. He had made a statement in his handwriting at the PS because he was asked by the police officials to disclose whatever he knew about the incident. The statement of PW5 was supplied to Ld. Defence counsel vide Ex. PW5/B on which he identified his handwriting and signatures at point A. Thereafter, he had left the PS for his house. He had visited the PS on 09.08.2013 in the morning as well as in the afternoon. He did not remember what proceedings were conducted in the morning, but in the afternoon in his second visit he had made the statement in his own hand. He had made inquiries from the other persons present at the PS as to what they were writing and he had also gaiven in writing what other had done. The IO or any other police officer did not make any oral inquiries from him on that day. He never went to the PS regarding this matter thereafter.
During cross-examination, PW5 affirmed that no quarrel had taken place in his presence between Sanju, Sushil and Ram Niwas on 30.05.2013 or 31.05.2013. I had given Ex.PW5/B in his handwriting after asking the same from other people who were writing their statements at the same time. He did not receive FIR No. 173/2013 State Vs. Satpal & Ors. Page 15 of 55 any notice from the PS to appear there on 09.08.2013.
(v) PW6 Pawan Kumar was residing at H. No. X-10, Gali no. 10, Brahmpuri since birth. PW6 was working in a factory as labour. Nothing happened in his presence and he did not know anything about the present matter in which he had been summoned.
The witness was cross-examined by Id. Addl. PP for State as he was resilling from his earlier statement u/s 161 Cr.P.C.
During cross-examination by Ld. Addl. PP for State, PW6 stated that he was 9th pass. PW6 along with his wife and daughter were residing at the ground floor of the above mentioned house. He knew that Sanjay was murdered. Next day evening he came to know that Sanjay was murdered. However, he did not know the date when he came to know the said fact. Once police called him in the PS after about 2½ months. On that day Police inquired from him regarding the quarrel but he informed them that no quarrel took place in his presence. Police never recorded his statement, but obtained his signatures and thereafter he was set free.
The statement under Section 161 Cr.P.C mark PW6/A was shown and read over to the witness in toto but the witness denied the same having made such statement to the Police at any point of time.
PW6 affirmed that one CDs shop is situated in their gali. PW6 has affirmed that Sanjay was running a office of Property Dealing in their gali. He knew accused Sushil, who was present in the Court, residing near Mauni Baba Mandir. PW6 denied that on 31.05.2013 at about 9 pm, when he was standing at the main gate, he noticed that Sanjay arrived at the CD shop and thereafter, FIR No. 173/2013 State Vs. Satpal & Ors. Page 16 of 55 he also reached there and they started talking with each other. PW6 denied that he had stated to the Police that when he along with Sanjay was standing there, in the meantime Sushil also reached there and at that time deceased Sanjay was under the influence of liquor and accused Sushil offered regard to deceased Sanjay by saying "Ram Ram", on which Sanjay lost his temper and also started using filthy language against accused Sushil by saying "kis baat ki ram ram behen ke dine tu kya cheez hain tera baap to kal tak buggi chalata tha, tu ab jada paise wala ho gaya aur jada bada ho gaya, kya tu aap mere samna kaise bhi kar le, weh bhadi bhadi galia dene laga". PW6 denied that he had stated to Police that in his presence accused Sushil tendered his apology but deceased Sanjay told him "abhi talwar leke aata huin aur Sushil ko bataoun ga", thereafter, he went towards his office where Devender, Raj Kumar and Vinoda were standing there. He denied that he had stated to the police that they tried to pacify the quarrel, but deceased Sanjay did not pay attention and brought one "talwar" from his office, they stopped Sanjay and taken the "talwar" from his hand and pacified the matter, thereafter Sushil went to his house. PW6 denied that he was deliberately not deposing correct facts before the Court in order to save the accused Sushil as he is a resident of same locality. PW6 denied that he had deposed falsely.
The witness was not cross-examined by ld. Defence counsel despite having given the opportunity.
(vi) PW7 Vinod Kumar deposed that he was residing at H. No. E-73, Gali no. 10, near Mauni Baba Mandir, Brahmnpuri, Delhi since birth. He was working in BSNL as labour. Nothing happened in his presence and he did not know anything about the FIR No. 173/2013 State Vs. Satpal & Ors. Page 17 of 55 present matter in which he had been summoned.
The witness was cross-examined by Id. Addl. PP for State as he was resilling from his earlier statement u/s 161 Cr.P.C.
During cross-examination by Ld. Addl. PP for State, PW7 stated that he was 7th pass. PW7 along with his wife and three children were residing at the ground floor of the above mentioned house. PW7 did not know Sanjay. PW7 never came to know that Sanjay was murdered. Once police called him in the PS. However, he did not remember the date when the Police called him. On that day, police inquired from him regarding the quarrel but he informed them that no quarrel took place in his presence. Police never recorded his statement but obtained his signatures and thereafter, he was set free. The statement recorded under Section 161 Cr.P.C mark PW7/A was shown and read over to the witness in toto, but the witness denied the same having made such statement to the Police at any point of time.
PW7 knew accused Sushil, who is residing near Mauni Baba Mandir and used to come there to install generator at Maun Baba Mandir in functions. PW7 denied that he had stated to the Police that on 31.05.2013 at about 9 pm, when he was returning from his work place, he noticed that Pawan was standing at the CDs shop and on seeing him he stopped his scooter and started talking with Pawan. PW7 denied that he had stated to the Police that Sanjay was also standing there, in the meantime accused Sushil also reached there and accused Sushil offered regard to deceased Sanjay by saying "Ram Ram", on which Sanjay lost his temper and also started using filthy language against accused Sushil by saying "tu ab jada bada ho gaya hain tujhe aaj dekhta huin". PW7 denied that he had stated to Police that in his FIR No. 173/2013 State Vs. Satpal & Ors. Page 18 of 55 presence accused Sushil asked about his mistake, thereafter, deceased Sanjay went towards his office where Devender and Raj Kumar were standing. PW7 denied that he had stated to the Police they tried to pacify the quarrel, but deceased Sanjay did not pay attention and brought one "talwar" from his office, they stopped Sanjay and took the "talwar" from his hand and pacified the matter, thereafter Sushil went to his house. PW7 denied that he was deliberately not deposing correct facts before the Court in order to save the accused Sushil as he was a resident of same locality.
The witness was not cross-examined by ld. Defence counsel despite having given the opportunity.
(vii) PW9 Dwarka Prakash is the father of deceased. He stated that he had identified the dead body of deceased on 03/06/2013. He proved his statement recorded by the IO as Ex.PW9/A. He has also proved the receipt with regard to receiving the dead body as Ex. PW9/B. He was not cross-examined by Ld. Defence counsel despite having given the opportunity.
(viii) PW14 Yatainder Rana is the owner of property no. X-10/17, Gali no. 10, Brahmpuri, Delhi. He has proved the original rent agreement with regard to aforesaid property as Ex. PW14/A. He claimed that said document was seized by the police vide seizure memo Ex. PW14/B. He was not cross-examined by Ld. Defence counsel despite having given the opportunity.
(II) FORMAL/ EXPERT/ MEDICAL WITNESSES
(i) PW-1 Dr. Neha Gupta, Sr. Demonstrator, Department of Forensic Medicine, GTB Hospital is the doctor who conducted FIR No. 173/2013 State Vs. Satpal & Ors. Page 19 of 55 postmortem on the body of deceased. She proved her detailed report as Ex. PW1/A wherein she gave cause of death of as shock as a result of ante-mortem injury to head and long bones produced by projectile of a firearm. Injury no. 1 and 4 (i.e. firearm entry wound on right thigh and on left frontal region, below eyebrow) are sufficient to cause death independently and collectively in ordinary course of nature. She had also examined the blood in gauze of disease, blood stains on clothes of disease and blood on the bullet recovered from the body of disease.
The witness was cross-examined by ld. Defence counsel but nothing material came out in cross-examination.
(ii) PW28 Ms. Babita Gulia, Senior Scientific Officer-I, Ballistics, CFSL, CBI, New Delhi deposed that on 18.07.2013, three sealed parcels, out of which parcel No.1B sealed with the seal BKM SSO-I(BIO.)CFSL CBI N.D. and parcel No.2B and No.2C sealed with the seal of NG, were received through messenger in the office of CFSL, CBI, CGO complex Lodhi Road Delhi as sent by SHO PS New Usman Pur, Delhi under case FIR No.173/2013 u/s 302/34 IPC and 27 Arms Act dated 02.06.2013.
The above exhibits were marked to her for examination and opinion. She tallied the seal of the parcels with the sample seal which were received along with the parcels and opened the respective parcels. On opening, the parcel No.1B, parcel No. 2B and parcel No. 2C, the exhibits as detailed in her report dated 12.08.2013 bearing No. CFSL-2013/F853, were taken out. She examined the exhibits as under:
i) Four 7.65 mm fired cartridge cases (marked as 1B (I) to 1B (IV) contained in the parcel No. 1B have been fired from one FIR No. 173/2013 State Vs. Satpal & Ors. Page 20 of 55 and the same firearm.
ii) Four 7.65 mm fired cartridge cases (marked as 1B (I) to 1B (IV), the 7.65mm fired bullet (marked 1B (V)), jacket piece of a 7.65 mm fired bullet (marked 1B (VI)) contained in parcel No. 1B, the 7.65 mm fired bullet (marked 2B) contained in parcel No. 2B and the 7.65 mm fired bullet contained in parcel no. 2C are 'Ammunition' as defined in Arms Act 1959.
iii) The 7.65 mm fired bullet (marked as 1B(V) and the jacket piece of a 7.65 fired bullet (marked 1B(VI)) contained in parcel No. 1B and the 7.65 mm fired bullets (marked as 2B and 2C) contained in parcel No. 2B and 2C respectively have been fired from one and the same firearm.
The parcel No. 1B was first examined in the biology division of CFSL, CBI and then examined by her.
She proved her detailed report as Ex. PW26/H. On 14.08.2013, one sealed parcel No. Ex-1 sealed with the seal MS along with sample seal were received through messenger in the office of CFSL, CBI, CGO complex Lodhi Road Delhi as sent by SHO PS New Usman Pur, Delhi under case FIR No.173/2013 u/s 302/34 IPC and 27 Arms Act dated 02.06.2013.
The above exhibit was marked to her for examination and opinion. She tallied the seal of the parcel with the sample seal and opened the parcel. On opening, the parcel, the exhibits as detailed in her report dated 26.08.2013 bearing No. CFSL- 2013/F-1095, linked with CFSL/13/F-853 were taken out. She examined the exhibits as under:
i) The country made pistol (chambered for 7.65 mm/.32" Pistol cartridges) (marked W/1) contained in parcel No. Ex-1 is a firearm as defined in Arms Act 1959 and it was not found in FIR No. 173/2013 State Vs. Satpal & Ors. Page 21 of 55 working order in its present condition due to its improper firing pin which was unable to create sufficient pressure to initiate firing.
ii) The country made pistol (chambered for 7.65 mm/.32" Pistol cartridges) (marked W/1) contained in parcel No. Ex-1 had been fired through.
iii) Two 7.65mm cartridges (Marked C/1 and C/2) also contained in parcel No. Ex-1 are "Ammunition" as defined in the Arms Act, 1959 and were live ones.
iv) Four 7.65mm fired cartridge cases (marked as 1B (I) to 1B (IV)) contained in parcel No. 1B received in the CFSL/CBI/N. Delhi in case no. CFSL/2013/F-853 have been fired from one and the same firearm. However, no opinion could be formed regarding their linkage in respect of country made pistol (chambered for 7.65mm/.32" Pistol cartridges) (marked W/1) contained in parcel No. Ex-1 as it was not found in working order in its present condition and the marks obtained on the lead specimen were not having sufficient comparable marks for comparison/linkage.
v) The 7.65mm fired bullet (marked as 1B(V) and the jacket piece of a 7.65mm fired bullet (marked 1B(VI)) contained in parcel No. 1B an the 7.65mm fired bullet (marked as 2B and 2C) contained in parcel No. 2B and 2C respectively received in the CFSL/CBI/N. Delhi in case no. CFSL/2013/F-853 have been fired from one and the same firearm. However, no opinion could be formed regarding their linkage in respect of country made pistol (chambered for 7.65mm/.32" Pistol cartridges) (marked W/1) contained in parcel No. Ex-1 as the weapon is not found in working order in its present condition, so it was not possible to FIR No. 173/2013 State Vs. Satpal & Ors. Page 22 of 55 fire cartridge from it.
Two 7.65mm cartridge case (Marked C/1 and C/2) contained in the above mentioned parcel No. Ex-1 were live ones in case No. CFSL/2013/F-1095 and has been consumed during attempts of test firing in the Laboratory and the two misfired cartridges cases are being returned in the same parcel.
After examination, the above-mentioned four parcels were resealed with the seal of "BG SSO - II CFSL CBI, NEW DELHI" and returned to the forwarding authority.
She proved her detailed report as Ex. PW26/G. On 03.09.2013, four sealed parcels sealed with the seal of BG SSO-II CFSL/CBI/NEW DELHI along with forwarding document were received through messenger in the office of CFSL, CBI, CGO complex Lodhi Road Delhi as sent by SHO PS New Usman Pur, Delhi under case FIR No.173/2013 u/s 302/34 IPC and 27 Arms Act dated 02.06.2013.
The above exhibits were marked to her for examination and opinion. She found that the seals were intact on the parcels and opened the parcel. On opening, the parcel, the exhibits as detailed in her report dated 12.09.2013 bearing No. CFSL- 2013/F-1248, were taken out. She examined the exhibits as under:
i) The fired bullet (marked 2B) contained in Parcel No.2B, the fired bullet (marked 2C) contained in Parcel No. 2C, four cartridge cases (marked 1B(I) to 1B(IV)), the fired bullet (marked 1B(V)), jacket piece (marked 1B(VI)) were of same caliber/bore i.e., 7.65mm and the country made pistol (marked W/1) contained in Parcel No. Ex.1 is also designed to fire 7.65mm cartridges. Therefore, the bore/caliber of cartridge cases FIR No. 173/2013 State Vs. Satpal & Ors. Page 23 of 55 (marked 1B (I) to 1B (IV)), bullets (marked 1B(V), 2B, 2C), jacket piece (marked 1B(VI)) and the caliber of weapon was same i.e. 7.65 mm.
ii) On the basis of Physical and Microscopic examination, it was opined that the firing pin of the country made pistol (marked W/1) (chambered for 7.65mm cartridges) contained in Parcel No. Ex.1 appeared to have been in Deshaped/deformed condition at present.
iii) Two 7.65mm cartridge case (Marked C/1 and C/2 earlier) contained in the above mentioned parcel No. Ex-1 were live ones in case No. CFSL/2013/F-1095 and has been consumed during attempts of test firing in the Laboratory in the same case and the two misfired cartridges cases were returned in the same parcel.
After examination, the above-mentioned four parcels were resealed with the seal of "BG SSO - II CFSL CBI, NEW DELHI" and returned to the forwarding authority.
She proved her report as Ex.PW26/F. She identified the exhibits examined by her in the laboratory in the following manner:-
(a) pistol as Ex.PW10/P1;
(b) Magazine as Ex.PW10/P2;
(c) cartridge cases as Ex. PW10/P3, which were examined by her; (d) four envelopes containing one cartridge case each along with CFSL Tag as Ex.P8 (colly);
(e) fifth envelope containing one bullet as Ex.P9;
(f) sixth envelope containing one jacket piece of bullet as Ex.P10, which was examined by her in the laboratory;
(g) one bullet as Ex.PW28/1 which was examined by her; and
(h) one bullet as Ex. PW28/2 which was examined by her.FIR No. 173/2013 State Vs. Satpal & Ors. Page 24 of 55
The witness was cross-examined by ld. Defence counsel but nothing material came out in cross-examination.
(iii) PW11 ASI Raj Kumar is the MHC(M) of PS New Usmanpur. He has proved the entries of register no. 19 with regard to deposit and dispatch of case property in PS New Usmanpur. The relevant extract of register no. 19 was proved by him as Ex. PW11/A and the Road Certificate with regard to dispatch of case property was proved by him as Ex. PW11/B (colly).
He was cross-examined by Ld. Defence counsel but nothing material came out on his cross-examination.
(iv) PW17 Ct. Sanjay is the photographer of Mobile Crime Team. He has proved the photographs which were clicked by him on 02-06-2013 as Ex. PW17/A1 to A-33 and the negatives thereof were proved as Ex. PW17/B1 to B-33.
He was not cross-examined by Ld. Defence counsel despite having given the opportunity.
(v) PW18 Ct. Sanjay is the police official who was deputed to forward copy of FIR to Sr. police official and Ld. ACMM on 02-06-2013.
He was cross-examined by ld. Defence counsel but nothing material came out in his cross-examination.
(vi) PW19 HC Rakesh is the DD Writer at the relevant time. He has proved DD no. 25B with regard to performing of patrolling duty by Ct. Sanjay and Ct. Manoj as Ex. PW19/A. He was not cross-examined by Ld. Defence counsel despite having given the opportunity.
(vii) PW20 ASI Prem Singh is also the DD Writer at the relevant time. He has proved DD no. 75B with regard to arrival FIR No. 173/2013 State Vs. Satpal & Ors. Page 25 of 55 of HC Manoj from patrolling duty and departure of ASI Virpal and Ct. Naresh for patrolling duty as Ex. PW20/A. He was not cross-examined by Ld. Defence counsel despite having given the opportunity.
(viii) PW21 ASI Yashvir Singh is the Duty Officer posted at PS on 21-08-2013. He has proved the information received regarding arrest of accused Ram Niwas from Special Cell, Lodhi Colony, which was reduced into writing vide DD no. 18A (Ex.PW21/A).
He was not cross-examined by Ld. Defence counsel despite having given the opportunity.
(ix) PW22 Ct. Sachin is the police official deputed by the IO to deposit the exhibits at CFSL, Lodhi Colony on 18-07-2013.
He was cross-examined by ld. Defence counsel but nothing material came out in his cross-examination.
(x) PW23 Inspector Mukesh Kumar Jain is the draftsman, who has proved the scaled site plan as Ex. PW23/A, which was prepared by him on 26-07-2023 at the request of IO.
He was not cross-examined by Ld. Defence counsel despite having given the opportunity.
(xi) PW24 ASI Devender Kumar is the Duty Officer posted at PS New Usmanpur on the date of incident. He has proved the factum of registration of present case FIR as Ex. PW24/A, endorsement on the rukka made by him was proved by him as Ex. PW24/B and certificate u/s 65B of Indian Evidence Act with regard to electronic print out of FIR as Ex. PW24/C. The witness was cross-examined by ld. Defence counsel but nothing material came out in his cross-examination.
Vide statement dated 04-07-2019, Ld. Chief Public FIR No. 173/2013 State Vs. Satpal & Ors. Page 26 of 55 Prosecutor, ASI Pradeep was dropped from the list of witnesses.
(xii) PW29 Rajender Singh Sagar, SP. Dibang Valley deposed that on 05-10-2013, he was posted as Additional DCP-1, North-East District. He has proved the sanction u/s 39 of Arms Act accorded by him with regard to prosecution of accused Sushil u/s 25 of Arms Act as Ex. PW29/A. He was cross-examined by Ld. Defence counsel but nothing material came out in his cross-examination. (III) POLICE OFFICIALS
(i) PW8 HC Rajesh Kumar is the police official who was performing emergency duty at the relevant time around the spot. He deposed that on the intervening night of 01/02-06-2013, he was posted at PS New Usmanpur. On that day, he was on emergency night duty from 8 pm to 8 am. SI Indervir called him to Brahmpuri Pankaj Hospital near Mauni Baba Mandir. He went there and saw blood on the ground and came to know that one Sanjay Kashyap had been shot at and he has died. The dead body was not there. SI Indervir gave him a rukka and he took the same to PS New Usmanpur and got the case registered and thereafter, took original rukka and copy of FIR and handed over the same to Inspector Virender Mor and thereafter, he along with Inspector Virender Mor came to the spot. Thereafter, he went back to PS. The witness was cross-examined but nothing material came out in his cross-examination.
(ii) PW10 Ct. Mukesh is the investigating police official who had accompanied the SHO SI Inderveer Singh, HC Pradeep with regard to investigation conducted against the accused Sushil. He deposed on the same lines on which SI Inderveer FIR No. 173/2013 State Vs. Satpal & Ors. Page 27 of 55 Singh (PW12) has deposed.
The witness was cross-examined by ld. Defence counsel but nothing material came out in his cross-examination.
(iii) PW12 SI Inderveer Singh is the first IO of the present case. He deposed that on 01.06.2013, he was posted at PS New Usmanpur and was deputed on emergency duty from 8.00 p.m. to 8.00 a.m. of 02.06.2013 with Ct. Tapan. On 02.06.2013 at 1.20 a.m., DD No. 4A Ex. PW12/A was received in police station and same was assigned to him for action in the matter. Accordingly, he along with Ct. Tapan reached at informed place i.e. Gali No. 10, Brahmpuri near Dr. Pankaj Goel Clinic. He noticed that one dead body of a male facing downwards was lying at a place in between Dr. Pankaj Goel Clinic and Muskan Beauty Parlour. A lot of blood was lying near the dead body. One motorcycle make Fazer bearing no. DL-5SAJ-6527 was found stationed near the dead body. He informed crime team and ATO PS New Usmanpur. They reached the spot. The photographer Ct. Sanjay took photographs of the spot from different angles. SI Suman Kumar, Crime Team In-charge inspected the site. On the dead body, he noticed injury mark above left eye and right thigh. A pair of brown slipper were lying on the spot. A covered car was also stationed by the side of the dead body. Blood spots were visible on the cover of the car. A plastic mat was lying near the car. Some blood spots were also visible on the mat. Four empty cartridges were lying nearby the dead body and one such cartridge was blood stained. One bullet led with blood stained was also lying near the dead body. One broken piece of metal appears to be part of bullet was also lying near the dead body. He conducted cursory search of the clothes worn by the dead body.
FIR No. 173/2013 State Vs. Satpal & Ors. Page 28 of 55One leather purse was recovered from pocket of capri worn by the dead body. The purse was containing Rs. 6,200/-, 13 visiting cards and one PAN Card in the name of Sanjay. One mobile phone make TATA DOCOMO was also recovered from dead body. Two rings of yellow metal were worn by deceased. He seized the items recovered from dead body after converting the same into three separate parcels and affixed seal of IVS and took the same in possession vide seizure memo Ex. PW3/C in the presence of Umesh Kumar. He seized motorcycle no. DL-5SAJ 6527 vide seizure memo Ex. PW3/D. He lifted blood samples and earth control samples from the spot and also lifted the pair of slippers lying there and converted the same in separate parcels sealed with the seal of IVS and took the same in possession vide seizure memo Ex. PW3/E. He seized blood stained car cover and plastic mat vide seizure memo Ex.PW3/F. He prepared sketch of empty cells, bullet led and bullet piece vide seizure memo Ex.PW3/H and converted them into a sealed parcel with seal IVS and seized the same vide seizure memo Ex.PW3/G. The dead body was transported to mortuary, GTB Hospital through Ct. Tapan. He recorded statement of complainant Sh. Umesh Kumar Kashyap Ex.PW3/A and thereafter, he prepared rukka Ex.PW12/B and gave HC Rajesh who had come at the spot, for registration of the case. HC Rajesh left the spot with rukka at about 4.30 a.m. The investigation of this case was taken up by Insp. Virender Mor. He handed over the exhibits and seizure memos to him at the spot. IO prepared site plan of the spot. They made efforts to trace the named accused but they were not found at their suspected places.
He further deposed that in the meantime, he along with IO FIR No. 173/2013 State Vs. Satpal & Ors. Page 29 of 55 and other staff reached the spot. House of accused Satpal and Sushil was just near the place where dead body of Sanjay was lying. Accused Satpal was found present there. He made enquiries from accused and accused Satpal was arrested vide arrest memo Ex.PW3/1. Personal search was conducted vide Ex.PW3/J. By that time, complainant had also reached there and he had joined the investigation. Disclosure statement of the accused Satpal was recorded by IO Ex. PW3/K. Nothing was recovered in pursuance of disclosure statement of Satpal. Accused was brought to police station. After medical examination, accused was sent to lockup. IO recorded his statement and he was set free from the investigation of that day.
Again, he joined the investigation of this case on 17.07.2013. He accompanied Ct. Tapan to FSL, Rohini. Exhibits were deposited by Ct. Tapan in laboratory except some parcels. On 26.07.2013, he again joined the investigation of this case with IO Insp. Mahavir and SI Mukesh Jain, Draftsman. They reached the spot. At his instance, draftsman took rough notes and measurements of the spot. On 06.08.2013, again he joined the investigation of this case with IO Insp. Mahavir and other staff. On that day, accused Sushil had surrendered at Karkardooma Court. He was formally arrested by IO in this case vide arrest memo Ex. PW12/C. He conducted his personal search vide memo Ex.PW12/D. Accused Sushil was interrogated and his disclosure statement was recorded. He had disclosed the name of co-accused and stated that he can get the weapon of offence recovered. His disclosure statement to this effect was recorded vide Ex. PW12/E. Accused was taken on 5 days' police custody remand. Then, he led the police party to a office located at FIR No. 173/2013 State Vs. Satpal & Ors. Page 30 of 55 Chaman Vihar, 20 foota Road, Loni on Vishkarma Property. The office was locked. By the side of the said office, there was a staircase. Then accused Sushil led the police party via that staircase which led to a place surrounded by boundary walls. Then, accused led the police party on a vacant plot after crossing the boundary wall where two generator sets and a trolley were lying. One generator set was covered with a light green polythene. Accused Sushil pointed out that he had kept country made pistol in that generator set. IO removed the polythene from generator set. A plate was fixed under the generator set. The same was opened with the help of pliar. After opening the said plate, accused Sushil put his hand in the hole and took out a polythene wherein a country made pistol was lying and handed over the same to IO who checked the magazine of the pistol. Two live cartridges of 7.65 KF were found in the magazine. A firing pin of the pistol was found broken. IO prepared sketch of recovered pistol and cartridges vide Ex.PW12/F. Thereafter, the pistol and two live cartridges were converted into a cloth parcel. Parcel was sealed with the seal of MS. Seal after use was handed over to HC Pradeep and the parcel was taken into possession vide seizure memo Ex. PW10/A. The polythene sheet by which generator was covered was also taken into possession vide seizure memo Ex.PW12/G. IO prepared site plan of place of recovery of pistol vide Ex. PW12/H. Seizure memo of handing over the seal to HC Pradeep was prepared vide Ex.PW12/3. Accused and case property was brought to police station and accused was kept in lockup.
He further deposed that on the following day i.e. on 07.08.2013, again he joined the investigation of this case.
FIR No. 173/2013 State Vs. Satpal & Ors. Page 31 of 55Accused led the police party to the place of occurrence i.e. Gali no. 10, Brahmpuri where dead body of Sanjay was lying and pointed out of the place of occurrence was prepared vide Ex. PW12/K to this effect. They returned to police station. On 21.08.2013, again he joined the investigation of this case. On that day, accused Ram Niwas, present before the Court, had surrendered before the Court. He was formally arrested in this case by IO. He was taken on police custody remand. Accused had led to the place of occurrence vide pointing out memo Ex.PW12/L prepared by 10 in this regard. Thereafter, he was set free from the investigation.
He further deposed that he can identify the case property if shown to him.
PW12 has proved following case properties:
(a) pistol as Ex.PW10/P1,
(b) magazine as Ex. PW10/P2;
(c) two empty shells of 7.65 KF attached with pistol as Ex.PW10/P3. The cartridges were live at the time of recovery;
(d) a pair of brown slippers as Ex. P-4 to be the same which were found at the spot;
(e) a car cover as Ex. P-5 which was lying on car near the dead body;
(f) one piece of plastic sack (stated to be a mat) as Ex. P-6 which was lifted from the spot;
(g) one green colour polythene sheet as Ex. P-7 to be same by which the generator set was covered from where pistol was recovered;
(h) six small envelopes bearing FSL No. and signature of some official marked as IB-(1) to (VI) as Ex. P-8 containing one empty FIR No. 173/2013 State Vs. Satpal & Ors. Page 32 of 55 shell in each four such small envelopes (colly. four empty shells);
(i) one lead as Ex. P-9 which was recovered from the spot; and
(j) one broken piece of metal as Ex. P-10 which was recovered.
During cross-examination, he deposed that they left court at about 2:30 pm. IO took 20-25 minutes in recording disclosure statement of accused Sushil. The property office of the accused was situated in Loni area, Ghaziabad. IO was not having any permission to go out of station for investigation. No intimation was given to local police station about purpose of visit of Delhi Police team in their area. There was no municipal number of said property as it was an unauthorized colony. Nobody came forward from the neighborhood to give the statement regarding ownership of Sushil with regard to property allegedly visited or joining the investigation. Nobody came out from the neighbouring house despite knocking by them and they went inside the property in question without waiting of the neighbouring house. It was not a thoroughfare. The property in question was facing South which was measuring about 150-200 sq. yards. No photographs of the said plot was taken by the IO. He again said that photographs were taken from one mobile phone by the IO probably. He did not sign the cloth pulanda of the recovered articles. The screw driver was lying near the generator. The pistol was taken out with bare hands and no cloth was used for safeguarding the finger prints if were available on the recovered weapon. They remained at said plot for about 2- 2½ hours. They came out of the said property by using the adjoining house. He denied that accused did not take the police party to any such house in Loni area on 06-08-2013 at any point of time or that no such articles were got recovered by him. He FIR No. 173/2013 State Vs. Satpal & Ors. Page 33 of 55 denied that recovered articles were planted upon the accused. He denied that no such parcel were taken by him to FSL. His statement was recorded by the IO in his own handwriting. He did not remember whether signature of Ct. Rajesh were taken on the documents or not. He did not remember who inscribed sketch and seizure memo of recovered articles. He denied that no such articles were recovered in his presence.
(iv) PW13 Ct. Tapan is the police official who accompanied the first IO SI Inderveer at the spot. He deposed on the same lines as deposed by PW12.
He was cross-examined by ld. Defence counsel but nothing material came out in his cross-examination.
(v) PW15 SI Birpal Singh is the police official who was performing patrolling duty at the relevant time. He deposed that in the intervening night of 01/02-06-2013, he was deputed on motorcycle M-22 for patrolling from 8 pm to 8 am. At about 1:20 am, when he reached gali no. 10, Brahmpuri, near Dr. Pankaj Goel's Clinic, he saw that one person was lying smeared with blood and dead near Muskan Beauty Parlour. One motorcycle no. DL5SAJ-6527 was also parked there. He immediately informed the police on phone. IO recorded his statement.
He was not cross-examined by Ld. Defence counsel despite having given the opportunity.
(vi) PW16 SI Suman Kumar is the in-charge of Mobile Crime Team who had inspected the spot on the date of incident. He deposed that on 02.06.2013, he was posted as In-charge, Mobile Crime Team, North-East District. On that day at about 2.00 a.m., he received a call from control room to reach Gali No. FIR No. 173/2013 State Vs. Satpal & Ors. Page 34 of 55 10, Brahm Puri near Moni Baba Mandir. Accordingly, he alongwith crime team officials i.e. ASI Rajender Singh and Ct. Sanjay reached the informed place around 2.30 a.m. SI Inderveer and other police officials were found present. He saw that dead body of a male aged about 40 years was lying in the street facing downwards smeared with blood. Four empty shells were lying near the dead body. One fired bullet lead and broken part of bullet lead were also found nearby the dead body. One motorcycle Fazer bearing no. 6527 was found stationed. Near the spot, one car covered with car cover was also lying. The blood spots were visible on the cover. One brown colour slipper was found near the motorcycle. He had noticed bullet injury mark on the face, thigh and shoulder of the dead body. The photographer took photographs of the spot. On cursory search by IO, one mobile phone and a purse were found from the pant pocket of the deceased. The deceased was wearing a golden ring in his right hand. He prepared scene of crime visiting report as Ex. PW16/A to this effect and submitted the same with IO. Thereafter, they left the spot around 3.45 a.m. He was not cross-examined by Ld. Defence counsel despite having given the opportunity.
(vii) PW25 Ct. Devender Kumar deposed that on 08-06- 2013, he was posted as constable at PS New Usmanpur. On that day, he along with HC Pradeep, HC Pradeep, HC Rameshwar and Ct. Umed went to Laksar situated in Uttarakhand in search of accused Sushil but he was not found there. On 07-08-2013, he along with SI Indervir and HC Pradeep along with accused Sushil went to Mayapuri in search of other accused Ram Niwas but the place where Ram Niwas was working could not be FIR No. 173/2013 State Vs. Satpal & Ors. Page 35 of 55 located in Mayapuri and they came back to PS. The witness was cross-examined by ld. Defence counsel but nothing material came out in his cross-examination.
(viii) PW27 ACP Virender Mor is the second IO and he deposed that on 02.06.2013, he was posted as SHO PS New Usman Pur. On that day, at about 4 am, the duty officer gave him copy of FIR of the present case along with original rukka for investigation purpose. Thereafter, he reached at the spot i.e. gali No. 10, Bharanpuri, Delhi near Muskan Beauty Parlor where SI Inderveer, ATO Insp. Ratan Pal and other police staff of PS New Usman Pur were present. The complainant namely Umesh Kumar Kashyap was also present at the place of incident. SI Inderveer thereafter, produced before him sealed pullandas which stated to have contain the exhibits lifted from the place of incident and personal search of deceased namely Sanjay Kashyap @ Sanju along with seizure memo. SI Inderveer had also produced one motorcycle which was also seized by him from the spot along with seizure memo. He also produced the SOC report to him and he perused the documents. The initial proceedings of the case were carried out by SI Inderveer Singh and the investigation was taken up by him after registration of the FIR u/s 302 IPC. Before his reaching the spot, the dead body was already shifted to the mortuary.
The complainant had pointed out the place of incident to him. He inspected the spot and prepared site plan vide Ex.PW3/B. After completing the investigation, he returned back to PS and deposited the exhibits in the malkhana. He went to mortuary for getting the postmortem of the body conducted, however, due to the half day, the doctor was not available and FIR No. 173/2013 State Vs. Satpal & Ors. Page 36 of 55 therefore, post-mortem could not be conducted. During investigation, he made search for the named accused persons and one of the accused namely Satpal was arrested from his house at the pointing out and identification of complainant. He interrogated the accused, arrested him and his personal search was conducted. Disclosure statement of the accused was recorded by him. The accused Satpal confessed to commit the murder of deceased along with his associates namely Sushil and one another person. The arrest memo of accused Satpal is Ex.PW3/I, his personal search memo is Ex.PW3/J and his disclosure statement Ex.PW3/K. During investigation, accused Satpal also pointed out the place of incident. He recorded statement of police officials who remained associated with the investigation of the present case and supplementary statement of complainant was also recorded by me.
On the next day, i.e. 03.06.2013, he made request to the autopsy surgeon to conduct autopsy on the body of deceased vide his request for post-mortem Ex.PW27/A. The dead body of the deceased was identified by his father and brother of the deceased. He recorded their statements and statement of father of deceased Sh. Dwarika Prasad vide Ex.PW9/A and that of complainant is Ex.PW27/B. At the time of making request for post-mortem, he prepared inquest papers (8 in number). The Form 25.25(1)(B) is Ex.PW27/C, brief facts sheet prepared by him is Ex. PW1/DA. After the post-mortem, dead body was handed over to the family member of deceased vide dead body handing over memo Ex.PW9/B. The autopsy surgeon also gave him blood sample pullanda, pullanda containing bullets retrieved from the dead body and clothes pullanda, which were sealed with the seal of FIR No. 173/2013 State Vs. Satpal & Ors. Page 37 of 55 'NG' and sample seal. He seized the same by preparing seizure memo vide Ex.PW13/A. After completing the proceedings, they returned to PS and deposited case property in malkhana. The accused Satpal was produced before concerned court and he was sent to J/C. During investigation, he recorded statement of police officials who were associated in the investigation of the case with him, statements of crime team staff and complainant were recorded by him. He had also recorded statement of Ct. Sanjay, Special Messenger and statement of Ct. Tapan. He had also recorded the statement of MHC(M).
He further deposed that during investigation, he made search for the remaining accused persons Sushil and Ram Niwas but in vain. On 17.06.2013, J/C of accused Satpal got extended by him. On 03.07.2013, he was transferred from PS New Usman Pur to Crime Branch, therefore, he handed over case file to MHC(R). He identified accused Satpal in the court.
(ix) PW-26 Insp. Mahavir Singh is the third IO and he deposed that on 05.07.2013, he was posted as SHO at PS New Usmanpur and case file of this case was marked to him for further investigation. He perused the file. Thereafter, he conducted search for the accused persons Sushil and Ram Niwas who were found absconded from their respective houses. On 17.07.2013, he got deposited the exhibits through Ct. Tapan at FSL Rohini. On 18.07.2013, he got deposited the exhibits through Ct. Sachin with CFSL, Lodhi Colony. Delhi. On 20.07.2013, he recorded statement of Yogesh Kashyap u/s 164 CrPC. On 26.07.2013, he got inspected the place of occurrence by sending SI Indervir with Draftsman SI Mukesh Jain. On 30.07.2013, he obtained NBWs of both the said accused persons FIR No. 173/2013 State Vs. Satpal & Ors. Page 38 of 55 from the court. On 06.08.2013, accused Sushil Kumar surrendered before the concerned court and he along with SI Indervir, HC Pardeep, Ct. Mukesh and Ct. Rajesh came in the court and obtained permission for the interrogation of accused Sushil Kumar from the court. Accused Sushil Kumar was interrogated and he confessed his guilt regarding his involvement in this case and disclosed that he had concealed the weapon of offence at Chaman Vihar, Loni. Accused Sushil Kumar was arrested vide arrest memo Ex. PW12/C and his personal search was conducted vide memo Ex. PW12/D. The accused made disclosure statement vide Ex. FW12/E. He identified accused Sushil in the court.
PC remand of accused Sushil was obtained and he led them to Budh Bazar road, Chamar Vihar, Loni where he requested 6-7 passersby to join the police proceedings but they refused and went away from there. Thereafter, accused took them to a plot surrounded by four walls and inside that place there were two rooms. On the gate of the said plot, "Vishwakarma property office" was found written. Accused told that it was his office and he used to deal in property business as well as in old generators. The gate of the said office was found locked. Accused was not having the key and the police party and the accused scaled the well and they went inside. There was a generator inside that plot and in the said generator there was a cavity and accused had told that the weapon was in the cavity of the generator. Generator was found covered with a polythene. The polythene was removed and it was seized vide seizure memo Ex. PW12/G. One pistol was recovered from the cavity of generator at the instance of accused and it was checked. No finger print FIR No. 173/2013 State Vs. Satpal & Ors. Page 39 of 55 was found on the pistol. Its magazine was found containing two live cartridges. The sketch of the pistol and cartridges was prepared on a paper vide Ex. PW12/F. The pistol and the cartridges were kept in a cloth pulanda and were sealed with the seal of MS and seized vide seizure memo Ex. PW10/A. Seal after use was handed over to HC Pardeep vide handing over memo Ex.PW12/J. A site plan of the place of recovery of the pistol and cartridges was prepared vide Ex. PW12/H. Thereafter, they came back at the PS. The case property was deposited on the Malkhana. Accused was put in lock up. Statement of witnesses was recorded.
On the next day, accused was taken out from the lock up and he took them to the spot and identified the place of occurrence vide identification memo Ex. PW12/K. Thereafter, accused led them to some places for search of co-accused Ram Niwas but at those places accused Ram Niwas was not found and accused told that he had thrown his clothes in Yamuna River which he was wearing at the time of offence. Clothes could not be recovered. After PC period was over, accused was got sent to JC. On 08.08.2013, he recorded statement of ASI Veerpal u/s 161 CrPC. On 09.08.2013, he recorded statement of public person namely Ram Kumar, Devender, Pawan and Vinod u/s 161 CrPC. On 14.08.2013, the exhibits were got sent through Ct. Mukesh to CFSL, Lodhi Colony, Delhi. On 21.08.2013, an information was received from ASI Mukesh of Special Cell that he has arrested Ram Niwas who was one of the wanted accused in the present FIR No.172/13, PS New Usmanpur. He further told that he will produce the said accused on that day i.e. 21.08.2013. Thereafter, he alongwith other police staff including FIR No. 173/2013 State Vs. Satpal & Ors. Page 40 of 55 Indervir, HC Pardeep went to concerned court at Karkardooma Complex where accused Ram Niwas was produced by Special Cell Police. In that court, he moved an application for interrogation of accused Ram Niwas and by the permission of the court, he interrogated accused Ram Niwas who confessed his guilt in his case. Then, he was arrested vide arrest memo Ex.PW26/A and his personal search was conducted vide Ex.PW26/B. Accused made a disclosure statement vide Ex.PW26/C. He identified accused Ram Niwas in the court.
He further stated that PC remand of accused Ram Niwas was obtained. Thereafter, accused took them to the place of occurrence and pointed out the same vide pointing out memo Ex. PW12/L. Accused told that he had purchased the weapon from one person at Village Jola, Muzaffarnagar. Thereafter, a police team was sent in search of that person but he could not be traced. After the PC of accused Ram Niwas was over, he was got sent to JC.
He further claimed that on 22.08.2013, he collected Rent Agreement Ex. PW14/A from Yatender Rana and seized the same vide seizure memo Ex.PW14/B. On 25.08.2013, Umesh Kumar handed over to him photocopy of RC of Motorcycle No. DL- SSA-J6527 and he seized the same vide seizure memo Ex. PW26/D and copy of RC is Ex. PW26/E. He recorded statement of witnesses u/s 161 CrPC. The draftsman handed over the scaled site plan to him vide Ex.PW3/A. Postmortem report was collected. The reports from FSL and CFSL were also collected. He obtained sanction u/s 39 of Arms Act. The report of CFSL (CBI) Lodhi Road, New Delhi dated 12.09.2013 is Ex.PW26/F and the report of CFSL (CBI) Lodhi Road, New Delhi dated FIR No. 173/2013 State Vs. Satpal & Ors. Page 41 of 55 26.08.2013 is Ex.PW26/G and the report of CFSL (CBI) Lodhi Road, New Delhi dated 12.08.2013 is Ex.PW26/H. The report of FSL Rohini dated 31.08.2016 is Ex.PW26/1. After completion of investigation, he filed the charge-sheet before the concerned court. He identified the case property i.e. one light green colour polythene as Ex. P-7 as the same by which the generator was found covered and which was seized in this case; a pistol as Ex.PW10/P1, magazine as Ex.PW10/P2 and two fired cartridges as Ex.PW10/P3 as the same which were recovered at the instance of accused Sushil from the cavity of generator and the witness states that cartridges were live when they were recovered.
During cross-examination, he affirmed that points A to G as shown in site plan Ex. PW23/A were not just in front of Muskan Beauty Parlour as shown at point X on this site plan. He affirmed that points A to F on site plan Ex. PW3/B were shown just in front of Muskan Beauty Parlour at point G. He did not seek any clarification from Inspector Virender Singh about this disparity. He affirmed that DD no. 4A Ex. PW12/A was the first information received in the PS regarding the present case. ASI Veer Pal of PS New Usmanpur was the first informant of the intimation mentioned in Ex. PW12/A. He did not file any PCR call record regarding this case on the file received by him. He affirmed that place of occurrence was already known to the investigating agency before pointing out by accused Sushil on 07-08-2013 and accused Ram Niwas on 21-08-2013. No still photography or videography of the recovery proceedings of katta was got done by him. The plot where generators were lying was situated outside the jurisdiction of their police station. He did not inform the local police of said area about arrival of Delhi police FIR No. 173/2013 State Vs. Satpal & Ors. Page 42 of 55 team. He deposed that he did not conduct any independent inquiry so as to verify the accused Sushil was in fact the owner of the plot in Loni, Chaman Vihar area or as to what was the Municipal number of said plot. He volunteered that accused had disclosed to him that he was the owner of said plot. He denied the suggestion that no such statement was ever given by accused Sushil. He did not record statement of any other inhabitant of said area in this regard. He had requested the locality persons to join the proceedings of search and recovery but they refused and did not join any such proceedings. He deposed that they entered inside the plot in question from the neighbouring houses' side as the adjoining wall was in broken condition. They did not enquire about the owner of the said house nor made him witness on any document, prepared there. He affirmed that he had not collected and placed on record the copies of those DD entries. He affirmed that DD entry is required to be made by the IO regarding deposit of case property in the malkhana. No precaution was taken by using any cloth piece while recovery of pistol beneath from the generator. The pistol was inspected by him but no finger prints were visible. He did not produce the pistol before District Crime Team officials for detecting chance prints from the pistol. He denied the suggestion that he did not visit any area in Chaman Vihar, Loni on 06-08-2013 with police officials and accused Sushil nor any proceedings were conducted by him in a plot inside area. He affirmed that he did not take the photograph of signboard of Vishkarma Properties office so as to prove the any such office was running there.
STATEMENT OF ACCUSED
5. After completion of prosecution evidence, the statement of FIR No. 173/2013 State Vs. Satpal & Ors. Page 43 of 55 accused persons were recorded under Section 313 Cr.P.C. wherein incriminating facts were put to the accused, which were denied by them. They stated that they are innocent and have been falsely implicated in this case. The accused persons did not opt to lead evidence in defence.
FINAL ARGUMENTS
6. This court has heard the arguments and perused the record. Ld. Addl. PP for the State submits that the testimony of all the prosecution witnesses is sufficient to bring home the guilt for the offences punishable u/s 302/201/34 of IPC and 25/27/54/59 Arms Act of accused persons beyond reasonable doubts. It is submitted that there is no major contradiction or discrepancy in the testimony of prosecution witnesses.
On the other hand, it is submitted by Sh. Sanjay Gupta, Ld. Counsel on behalf of accused persons Satpal Singh and Sushil that there are major contradiction and discrepancies in the case of the prosecution. All the eyewitnesses have failed to support the case of the prosecution. The first informant of the present case as per DD No. 4A Ex.PW12/A has not been examined. Prosecution has failed to prove the PCR form. No intimation was given to the local police at the time of effecting recovery of country-made pistol from the possession of accused Sushil. No public witness was joined at the time effecting recovery of country-made pistol. No DD entry with regard to the movement of police official at the time of effecting the said recovery. No chance prints were lifted from the spot. HC Pratap, who made site plan of place of recovery has not been sited as witness. The FSL reports Ex.PW26/F, Ex.PW26/G and Ex.PW26/H are of no help to the prosecution. Since as per the report, both recovered firearms FIR No. 173/2013 State Vs. Satpal & Ors. Page 44 of 55 were not found in the working condition and there is no evidence that the empty shells recovered from the spot have been fired from the recovered fired arms. The prosecution has also failed to proved the motive of the accused persons in committing the alleged offences.
FINDINGS OF THE COURT
7. Before analyzing the evidence led by the Prosecution in the present case, this court deems it proper to refer to some provisions of law and citations of Superior courts, which are found to be applicable to the facts of the present case.
300. Murder--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or - Secondly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-- Fourthly--If the person committing the act knows that it is so imminently dangerous that is must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
302. Punishment for murder--Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.
25. [(1AAA)] of Arms Act--Whoever has in contravention of a notification issued under section 24A in his possession or in contravention of a notification issued under section 24B carries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than [three years, but which may extend to seven years] shall also be liable to fine.
27. Punishment for using arms, etc. of Arms Act--(1) FIR No. 173/2013 State Vs. Satpal & Ors. Page 45 of 55 Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
8. It is pertinent to mention here that it has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 by the Hon'ble Punjab & Haryana High Court that:-
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
9. In Harendera Narain Singh vs. State of Bihar, AIR 1991 S.C. 1842, their Lordships of the Hon'ble Supreme Court had reiterated the well-known principle of the criminal jurisprudence as:
"....... The basic rule of criminal jurisprudence is that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the latter view favourable to the accused....."
10. In Data Xiva Naique Desai and Another vs. The State, AIR 1967 Goa, Daman and Diu 4, the Hon'ble Supreme Court reiterated the well-known principles of the criminal jurisprudence which are reproduced as under:
"The learned Judge would be advised to observe the following general rules when he is dealing with the serious question of the guilt or innocence of persons charged with crime: (i) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecution; (ii) The evidence must be such as to exclude to a moral certainty every reasonable doubt of the guilt of the accused; (iii) In matter of doubt it is safer to acquit than to condemn; for it is between several guilty persons should escape than that one innocent person suffer; and (iv) the hypothesis of delinquency should be FIR No. 173/2013 State Vs. Satpal & Ors. Page 46 of 55 consistent with all the facts proved."
11. In Swarn Singh Ratan Singh vs. State of Punjab, AIR 1957 SC 637, it was held by the Hon'ble Apex Court that, "in criminal cases mere suspicion, however, strong, cannot take the place of proof. The Court must also take into consideration that an accused is presumed to be innocent till charges against him are proved beyond reasonable doubt. Mere suspicion, however, strong it may be, cannot take the place of legal proof."
12. Moreover, in Kali Ram vs. State of Himachal Pradesh, AIR 1973 SC 2773, the Apex Court had observed as follows:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable: it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex-facie trustworthy on grounds which are fanciful or in the nature of conjectures.
The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this respect, in our opinion, is more apparent than real.
It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much FIR No. 173/2013 State Vs. Satpal & Ors. Page 47 of 55 worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilized society. All this highlights the importance of ensuring as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimized but not ruled out altogether."
13. At this stage, it is appropriate to refer the case of Rai Sandeep Vs. State of NCT of Delhi, Crl. Appeal no. 2486/09 decided on 07-08-2012, wherein it was held by Hon'ble Supreme Court of India that:
"In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. In can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such test to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant FIR No. 173/2013 State Vs. Satpal & Ors. Page 48 of 55 materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
14. It is observed that entire police machinery was set into motion by one Umesh Kumar Kashyap (PW3), who claimed to have witnessed the incident of murder of his brother Sanjay Kashyap. On his statement Ex. PW3/A, present FIR was registered. During his examination in the court on 03-06-2014, even though he claimed to have signed the complaint Ex. PW3/A, however, he claimed that he had not gone through the complaint before signing the same. He denied having seen the incident, as reported by him in his complaint Ex. PW3/A. He denied having stated all the incriminating facts mentioned in his statement Ex. PW3/A. Similarly, PW2 Yogesh has also claimed that he had not seen the incident of murder of his brother in his deposition dated 11-02-2014. Other independent witnesses cited in the chargesheet namely PW4 Ram Kumar, PW5 Yogender, PW6 Pawan Kumar, PW7 Vinod Kumar @ Vinoda have also failed to support the case of the prosecution. They have also denied all the leading questions pertaining to the incident put by Ld. Addl. PP for State on the basis of their respective statement u/s 161 Cr.P.C. viz. Ex. PW4/A, Ex. PW5/B, Ex. PW6/A, Ex. PW7/A.
15. As per the prosecution case, the Crime Team had lifted four empty shells near the dead body, one fired bullet lead and one broken part of bullet lead from the place of incident where the dead body was lying. The investigating team had also lifted one pair of brown slipper belonging to the deceased, blood FIR No. 173/2013 State Vs. Satpal & Ors. Page 49 of 55 stained cover of one car which was stationed near the dead body, blood stained plastic mat lying near the said car. The investigating team had also lifted blood samples and earth control from the spot. Clothes of the deceased and blood in gauze of the deceased, which was collected by the doctor who conducted the PM examination, were also seized by the IO. One country made pistol was also recovered from the possession of accused Sushil. All the above-stated exhibits were sent to FSL on different dates. However, all the FSL reports Ex. PW26/F to Ex. PW26/I are also not going to support the case of the prosecution. As per report Ex. PW26/G, no opinion was given with regard to linkage of recovered 7.65 mm fired bullets (four in number) and recovered 7.65 mm jacket piece with the recovered country made pistol as the pistol was not found to be in working order. As per report Ex. PW26/F, firing pin of the recovered country made pistol is appeared to have been deshaped / deformed.
16. Recovery of the country made pistol from the possession of accused Sushil is also doubtful as no public witnesses have been joined in the investigation by the IO, despite their availability at the time of effecting the said recovery. With regard to investigation conducted qua accused Sushil, PW26 Inspector Mahavir Singh has stated in his cross-examination dated 27-02-2020 that he did not record statement of any other inhabitant of area where accused Sushil was apprehended. He further claimed that he requested locality persons to join the proceedings of search and recovery but they refused and did not join such proceedings. Thus, it is manifest that independent public witnesses were available at the spot but no sincere efforts have been made by the IO to join them in the investigation of the FIR No. 173/2013 State Vs. Satpal & Ors. Page 50 of 55 present case.
17. No cogent explanation is furnished as to why no independent public person was joined in the investigation despite their availability. In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
''18. It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.
18. In Roop Chand V/s The State of Haryana,1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:-
"It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful''.FIR No. 173/2013 State Vs. Satpal & Ors. Page 51 of 55
19. It has been held by Hon'ble Supreme Court of India in case of Sans Pal Singh Vs. State of Delhi, AIR 1999 SC 49 that, "It would have been a different matter altogether had there been no public witness available or none was willing to associate. Here, as said before, public witnesses were available but no explanation on these lines is forthcoming. Thus, we got to the view that it would be unsafe to maintain the conviction of the appellant for the offences charged. We, therefore, order his acquittal"
20. As per chapter 22 rule 49 of the Punjab Police Rules it is necessary to record DD Entry of arrival and departure of the police official. Chapter 22 Rule 49 of Punjab Police Rules, 1934, is reproduced as under:-
''22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered :-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
21. In the present case, the above said provision appears to have not been complied with by prosecution. The relevant entry regarding departure of police official at 'Vishwakarma Property Office' from where it is claimed that weapon of offence was recovered at the instance of accused Sushil, and departure of police official at the time of preparation of pointing out memo of place of occurrence at the instance of accused Suhil during the investigation of the present case has not been proved on record.
FIR No. 173/2013 State Vs. Satpal & Ors. Page 52 of 55IO Inspector Mahavir Singh has admitted in his cross- examination dated 27-02-2020 that he has not collected and placed on record the copies of the relevant DD entries. Even the DD Writer was not examined and no explanation is given as to why the said DD Writer is not made the witness in the present case. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court "wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
In the present case, the above said provision appears to have not been complied with by prosecution.
22. Further, no cogent explanation is offered as to why no effort has been made to lift the chance prints from the weapon of offence, which was seized vide seizure memo Ex. PW10/A. Nor the IO has placed on record photographs of the place from where the weapon of offence was recovered.
23. Apart from the testimony of prosecution witnesses, the prosecution has also laid emphasis on the factum of pointing out of place of incident at the instance of accused persons, in this regard, it is pertinent to note that IOs of the present case were well aware of the place of incident prior to conducting investigation with regard to preparation of pointing out memo of place of incident at the instance of accused persons. The said fact is also admitted by PW26 Inspector Mahavir Singh in his cross-
FIR No. 173/2013 State Vs. Satpal & Ors. Page 53 of 55examination dated 27-02-2020.
24. At this stage, it is pertinent to note that it has been observed by Hon'ble High Court of Delhi in the case of Rajeev Ohlam Vs. State, 2016 (4) LRC 362 (Del) while upholding the decision of trial court that, "Since police was already aware of the spot where the dead body was found, it cannot be said that place of occurrence was pointed out by the appellant".
25. It is further pertinent to note that the place where the recovery of country made pistol from the possession of accused Sushil is shown to have been effected is situated outside the jurisdiction of PS New Usmanpur. However, no cogent explanation is offered as to why no reporting was done in the police station having jurisdiction over the plot at Budh Bazar Road, Chaman Vihar, Loni. On this aspect, it has been observed by the Hon'ble High Court of Delhi in the case of Riaz Ali Vs. State, 2012 (2) JCC 1092 Delhi (DB), while setting aside the judgment of trial court that:-
"No explanation is also forthcoming from the record as to how the officials from the police station from Timarpur effected the investigation as well as recoveries and seizures at Sriniwas Puri which is way beyond their territorial jurisdiction. The prosecution does not disclose as to why the officials at the police station, Sriniwas Puri were not joined the investigation".
26. It has been held by the Hon'ble High Court of Delhi in case of State Vs. Saqib Rehman, 2012 (10) LRC 104 Delhi (DB) that, "No local police officer from the concerned area was joined in the investigation. They were not even FIR No. 173/2013 State Vs. Satpal & Ors. Page 54 of 55 intimated about the visit of Delhi police to the said places. Again no public witness or the family members in the house from where the recoveries were effected were associated in the investigation".
DECISION OF THE COURT
27. It is well settled that it is the duty of the prosecution to prove the guilt of the accused persons beyond reasonable doubt. Therefore, on the basis of the material available on the record, the case of the prosecution becomes doubtful and the benefit of doubt certainly goes in favor of the accused persons. The prosecution has failed to prove its case beyond all reasonable doubts against the accused persons. Accordingly, taking into consideration the facts and circumstances of the case, accused persons Sushil and Satpal are hereby acquitted of the charges punishable u/s 302/34 of IPC and u/s 25/27 of Arms Act. File be consigned to record room after compliance of section 437A of Cr.P.C ANNOUNCED IN THE OPEN COURT ON 07-10-2023 PANKAJ Digitally signed by PANKAJ ARORA ARORA Date: 2023.10.09 15:03:02 +0530 (PANKAJ ARORA) ADDL. SESSIONS JUDGE-04: NORTH-EAST/ KARKARDOOMA/07102023 FIR No. 173/2013 State Vs. Satpal & Ors. Page 55 of 55