Delhi District Court
State vs . Anil Kr. Sharma @ Pandit, on 28 February, 2018
1
IN THE COURT OF SHRI VIVEK KUMAR GULIA
ASJ03 & SPECIAL JUDGE (COMPANIES ACT)
DWARKA DISTRICT COURTS, DELHI.
In the matter of:
State Vs. Anil Kr. Sharma @ Pandit,
S/o Late Sh. Mahavir Prasad Sharma,
R/o Village & Post Office Guani,
District Mahendergarh, Haryana.
● CNR No. : DLSW010000462011.
● Registration No. of the Case : 440653/2016.
● SC Number : 02/2014.
● FIR Number : 153/2011.
● PS : Dwarka North.
● Under Sections : 302/201 IPC and
25/27 Arms Act.
● Date of Institution : 12.10.2011.
● Case Committed to the Court of
Sessions for : 02.11.2011.
● Case Received by this Court by
way of Transfer on : 16.01.2014.
● Case Reserved for Judgment on : 09.02.2018.
● Judgment Announced on : 28.02.2018.
Page No. 1 of 39. State Vs. Anil Kr. Sharma @ Pandit;
FIR No. 153/11 of PS Dwarka North.
2
JUDGMENT
FACTUAL BACKGROUND:
1. The following is a brief account of prosecution case and other relevant facts:
1.1 The FIR was registered on the complaint of Amit Kumar (PW3), who mentioned that on the date of incident i.e. 14.07.2011, at about 4.30 pm, his cousin brother (son of mausi) namely Deepak (since deceased) called him from his mobile and asked him to come to his office as he has arranged whiskey and chicken for party and he also told that his friend Anil (accused herein) is also with him. After few calls, he reached at his office at Sector12 and found that there was no one in the office and the articles were lying scattered in the cabin. Further, he noticed that Deepak was lying on the floor and blood was coming from below his left ear. Thereafter, he called police at phone no. 100.
In the meanwhile, one Chandan (PW2) came from the adjoining office and told him that there was a quarrel in that office and then he had heard some noise like of tyre bursting. Further, Chandan also told him that he had seen one boy running away and when he asked him as to what had happened, that boy told Page No. 2 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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3 him that he had shot dead one person and he would kill him also if he would speak anything.
1.2 During investigation, the injured was shifted to hospital, where he was declared "brought dead". Further, his medical documents were collected. Further, the accused was arrested next day and at his instance, his blood stained clothes, firearm used in the incident and his burnt mobile phone were recovered.
2. After culmination of investigation, the accused was chargesheeted and produced before the Court of Ld. Area MM. After complying with the provisions of Section 207 CrPC, the case was committed to the Court of Sessions u/s 209 CrPC.
TRIAL PROCEEDINGS:
3. In light of the above stated facts and proceedings, vide order dated 03.04.2012, Ld. ASJ framed charges under Sections 302/201 IPC and 25/27 Arms Act against the accused, to which he pleaded not guilty and claimed trial.
4. For proving its case, prosecution has examined 53 Page No. 3 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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4 witnesses.
4.1 PW3, Amit Kumar (complainant), was examined to show that he had reached at the spot immediately after the incident and before that the deceased had called him and asked him to come there to join him and the accused for a party. 4.2 PW2, Chandan, is another material witness to show that he had seen the accused running away from the spot with a firmarm and he had disclosed that he had shot dead one person inside the office and further threatened him to meet the same fate, in case he opens his mouth.
4.3 PW7 Ram Bandhu Mishra @ Ganga Mishra and PW20 Bharat Lal were examined as witnesses to prove the last seen theory.
4.4 PW1 Ashwani and PW37 Manik Chand are witnesses to show that the accused had forcibly used their phone (after the incident) to call PW12 Anuj Chhikara and PW11 Amit Chhikara respectively.
4.5 PW13, Gajender Yadav, was examined to show that after the incident, the accused had called him and confessed about killing the deceased.
4.6 PW27 Dr. Manoj Kr. Singh and PW35 Dr. B.N. Mishra Page No. 4 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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5 proved MLC Ex.PW27/A and postmortem report Ex.PW35/A respectively of the deceased.
4.7 PW28 Shishir Malhotra, Nodal Officer of Aircel Ltd., PW29 Vinod Kumar, Nodal Officer of MTNL, PW31 Pawan Singh, Nodal Officer of Idea Cellular Company, PW32 Rajeev Ranjan, Nodal Officer of Tata Tele Services Ltd. and PW33 R.K. Singh, Nodal Officer of Bharti Airtel Ltd. were examined to prove CAFs, CDRs, Cell ID charts and certificates u/s 65B of Indian Evidence Act in respect of mobile phones of accused, deceased and witnesses.
4.8 PW48 Sh. Kaushal Kumar, PW49 Sh. Puneet Puri, PW50 Sh. Suresh Kr. Singhla and PW51 Sh. V.B. Ramteke were examined to prove different FSL reports.
4.9 Rest of the witnesses were formal or related to the investigation of the case.
5. Statement of the accused was recorded u/s 313 CrPC. When the accused was briefed on all the incriminating evidence and documents, he denied the allegations and mentioned that he was present with the deceased and PW20 at the spot at about 2.00 pm when PW7 delivered some eatables and at about 2.30 Page No. 5 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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6 pm, Gajender Yadav (PW13), Tinku Hasanpuria and one more person came there and thereafter, the deceased asked him to leave office and come at about 5.00 pm when his cousin Amit Kumar would come and then they would go to take RO machine. Further, he mentioned that he alongwith PW20 left the office thereafter and when he again went to the place of incident at about 6.00 pm, police took him to PS for interrogation. Further, he mentioned that he has been falsely implicated under the pressure of gangsters and influential persons i.e. Tinku Hasanpuria and Gajender Yadav. Further, he mentioned that in the PS, he was shown the CCTV footage and he had identified Gajender Yadav, Tinku Hasanpuria and one more person coming out of the said office at the time of incident.
6. The accused opted to lead evidence in his defence and produced one witness. DW1, Sanjay Das, deposed that he was running shop no. 211, Plot No. 10, Vardhman GD Plaza, Sector 12, Dwarka, New Delhi, and in 2011, one person was murdered in nearby shop no. 203. Further, he mentioned that in the evening, police officials came and made inquiries from him and his employee Chandan Singh and both of them have informed Page No. 6 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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7 that they had neither seen nor heard anything relating to the said murder.
APPRECIATION OF EVIDENCE:
7. I have heard the State through Sh. Girish Kumar, ld. Additional PP and the accused through ld. counsel Sh. Aseem Bhardwaj. Case record is also gone through.
8. Ld. Additional PP summed up that the prosecution has been able to bring on record sufficient circumstantial evidence to prove the culpability of the accused. It is mentioned that the presence of the accused with the deceased just before the incident has been proved by PW7 and PW20 and moreover, the accused was seen running from the spot with firearm in his hand immediately after the incident by PW2. Further, it is mentioned that the post incident conduct of the accused has been proved by PW37, PW12 and PW13 as they mentioned that at the relevant time, the accused was under the influence of liquor and he had called them to inform that he had murdered the deceased. Moreover, it was pointed out that the recovery of wallet of the accused from the spot, recovery of blood stained clothes, burnt Page No. 7 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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8 mobile phone and firearm at the instance of the accused further strengthen the prosecution case against the accused. On the other hand, ld. defence counsel argued that the testimony of material witness PW2 Chandan has been demolished by DW1 and the prosecution has not been able to furnish any explanation as to why CCTV footage of number of CCTV cameras installed in the adjoining or in the nearby shops were not taken to find out the real culprit. It was also argued that the chance print report and FSL (Ballistic) report also give clean chit to the accused. Further, it was argued that the recovery of wallet and blood stained clothes have been planted upon the accused as he was arrested within few hours of the incident and then was shown to different persons/witnesses to falsely implicate him.
9. In this case, there are following important points of determination:
(A) Whether accused Anil Kr. Sharma @ Pandit had fired at Deepak at the place of incident with an intention to kill him;
(B) Whether the accused destroyed the evidence i.e. his mobile phone; and Page No. 8 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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9 (C) Whether the accused used a country made pistol at the time of incident and further got it recovered next day.
Presence of the Accused with the Deceased Till Time of Incident:
10. It is the prosecution case that the accused remained with deceased Deepak till his murder at about 5.00 pm on 14.07.2011 and ran away with the used firearm immediately thereafter. On the other hand, it is the defence of the accused, as revealed in statement u/s 313 CrPC, that he left the place of incident at about 2.30 pm leaving behind the deceased with Gajender Yadav (PW13), Tinku Hasanpuria and one more person.
11. To prove its case, the prosecution has examined cousin brother of the deceased Amit Kumar (PW3), who testified that on 14.07.2011, at about 4.30 pm, he received a call from the mobile phone of Deepak (8570XXXXXX), who asked him to come to his office at Sector12 to enjoy whiskey and chicken. Further, he deposed that on inquiry, Deepak also told him that Anil bhai is with him and he is his friend and a very good man. Further, PW3 mentioned that he received two more calls from Deepak Page No. 9 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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10 before he reached office and when he reached there, he did not find anyone there. This witness was cross examined in detail by the defence side and it is noteworthy that the defence side has not tried to challenge the fact of making calls by the deceased to PW3 at the relevant time. Further, no suggestion was given to PW3 that the accused was not present with the deceased between 4.30 pm and 5.00 pm, when three calls were made by the deceased to PW3. Furthermore, the PCR Form Ex.PW8/A also confirms the fact that Amit Kumar had reached at the spot immediately after the murder and he informed the police from the spot from his mobile phone no. 9911229001 at 5.10 pm.
12. Another important independent prosecution witness PW7, Ram Bandhu Mishra @ Ganga Mishra, deposed that on 14.07.2011, at about 3.15 pm, on the directions of his Manager, he had gone to shop no. 203 to deliver eatables and there he saw three persons and one of them was the accused. Though ld. defence counsel has rightly pointed out that this witness has not been able to furnish any document/bill to show as to who placed the order and at what time, but it is worth noticing that no suggestion was given to this witness that the accused was not Page No. 10 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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11 present in the said shop at 3.15 pm or that more than three persons were present there. Thus, the testimony of this independent witness falsifies the defence of the accused to some extent.
13. Another important witness proving presence of the accused with the deceased sometime before the incident is PW20 Bharat Lal. He has deposed that on the day of incident, he reached at the office of the deceased at about 2.30 pm and there he found accused and the deceased already sitting there. He further mentioned that he had consumed beer at the shop, whereas, the accused and the deceased consumed whiskey. During cross examination conducted by ld. Additional PP, he mentioned that he left the shop at about 3.45 pm leaving behind the accused and the deceased. During cross examination conducted by ld. defence counsel, the witness has mentioned that as long as he remained there, only one waiter (PW7) had visited there. Further, he deposed that within 15 minutes of his reaching there, the accused and the deceased had gone to fetch whiskey and they returned after 15 minutes. It is noteworthy that though a suggestion was given to this witness that he had Page No. 11 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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12 not visited the office the deceased and he did not see the accused there, but in his statement u/s 313 CrPC, the accused replied that PW20 had come to office of the deceased at about 2.00 pm and he alongwith PW20 left the shop after about 15 minutes. Furthermore, it is pertinent to mention here that no suggestion was put to this witness that three other persons visited the place of incident or that accused too came down with him at about 2.15 pm, as disclosed by the accused in his statement u/s 313 CrPC. In view of this Court, the testimony of this witness further corroborates the prosecution case regarding presence of the accused with the deceased till about 4.00 pm at the place of incident and at the same time, it demolishes the defence that the accused left the place at about 2.30 pm.
14. The prosecution side has examined one more witness Gajender Yadav (PW13) to show the presence of the accused with the deceased at the time of incident. He has testified that on 14.07.2011, at about 3.00 pm, the accused called him on his phone no. 9868897247, which was issued in favour of his father Ramesh Chander Yadav (PW14), from the mobile phone of the deceased and he told him that he had killed Deepak and further Page No. 12 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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13 he threatened to kill him also. He further deposed that after about 10 minutes, he called the deceased on his mobile phone and then the deceased told him that the accused was joking with him. This witness has also mentioned that both Deepak and the accused were under influence of liquor.
15. PW14 Ramesh Chander Yadav had also deposed that the mobile phone no. 9868897247 was being used by his son Gajender Yadav and on 14.07.2011, the said mobile phone was with his son. Further, PW29 Vinod Kumar, Nodal Officer of MTNL, produced the record of said mobile phone. The CDR of the said mobile phone Ex.PW29/B, makes it quite clear that the calls were made from mobile no. 8750471625 (of deceased) to the said mobile phone of Gajender Yadav at 3.28 pm, at 3.56 pm, at 3.58 pm and at 4.01 pm. PW19 Sanjeev has deposed that he has given his mobile phone no. 8750471625 to the deceased and he got it issued in the name of his neighbour Jitender Gulia. Further, it is also evident that calls were made from the mobile phone of accused i.e. 9212134817 on the said phone of Gajender Yadav at 3.26 pm, at 3.43 and at 4.05 pm. Thus, the testimony of PW13 also corroborates the prosecution case regarding presence Page No. 13 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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14 of the accused with the deceased at the time of incident.
16. It is important to observe that no suggestion was given to this witness that he had gone to place of incident alongwith Tinku Hasanpuria and one more person at 2.15 pm. Moreover, the said defence of the accused is completely demolished by the CDR and cell ID chart of the mobile phone no. 9868897247 of Gajender Yadav Ex.PW29/B and Ex.PW29/C respectively as these indicate that the said mobile phone number was used between 3.20 pm to 7.35 pm in the area of Najafgarh and village Mitrau, which are far from place of incident at Sector12, Dwarka.
17. Further, ld. defence counsel had argued that the accused was not present at the place of incident from 2.30 pm onwards and this fact has been proved by PW17 and PW22. It can be seen that both these witnesses were examined to show that the accused was working with them on commission basis and they had given him a mobile phone no. 9212134817 for business purpose. However, it is evident that PW17 has deposed in his cross examination that the accused had remained in his office at Page No. 14 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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15 Janak Puri from 3.30 pm to 5.30 pm, whereas, PW22 mentioned that he remained there from 2.30 to 5.30 pm. Regarding presence of the accused in the office at Janak Puri and not at the spot at the time of incident, ld. Additional PP has rightly argued that CDR and cell ID chart of aforesaid mobile number of the accused Ex.PW32/B and Ex.PW32/C respectively make it quite clear that his mobile phone was used in Sector12, Dwarka, from 3.24 pm to 4.13 pm. Further, it also becomes clear that between 5.03 pm to 5.07 pm, the said mobile phone was used at Roshan Garden, Najafgarh, which is not very far from the spot. Further, it is rightly stated by ld. Additional PP that there was no reason with the accused to stay in the said office at Janak Puri continuously for three hours as he was the commission agent. Moreover, as per defence of accused he was supposed to go there with deceased at 5 pm and further none of these two witnesses have mentioned that the accused had come there to purchase RO machine, as disclosed by the accused in his statement u/s 313 CrPC. In view of this Court, the aforesaid scientific evidence qua mobile phone location is sufficient enough to reject the testimony of PW17 and PW22 and the defence of the accused that the accused was at Janak Puri from 2.30 pm to 5.00 pm and rather, Page No. 15 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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16 it confirms the presence of the accused at Dwarka, where place of incident is situated, at the relevant time.
Post Incident Events and Extra Judicial Confession:
18. Now this Court would deal with the statement of most crucial witness PW2 Chandan. He has testified that on 14.07.2011, at about 5.00 pm, when he was sitting on the stairs outside his shop no. 211, he noticed that from the shop no. 203 situated in front of stairs, voice of abuses was coming and then he also heard a sound of like tyre burst from that shop. Further, he deposed that at the same time, the accused came out of that shop and when he inquired from him as to what had happened, he replied that "banda thok diya" (a person has been shot dead).
Chandan further deposed that the accused had also showed him the katta, which was stuck in his pants and then he took it out and threatened him by saying that if he would disclose anything to anyone, he would kill him. Further, he mentioned that he narrated all the said facts to the police when it came there and he had given the physical description of the accused in his statement. He further deposed that on 20.07.2011, at about 9.00 am, when he went to PS Dwarka North for some work, he told Page No. 16 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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17 police officials that the person in their custody is the same person, who met him outside shop no. 203 on the date of incident and then he came to know the name of the accused as Anil Kr. Sharma @ Pandit.
19. The defence side has challenged testimony of PW2 Chandan mainly on the basis of testimony of his employer Sanjay Das (DW1). DW1 has testified that on the date of incident, he alongwith Chandan informed the police that they do not know anything about the said murder. In view of this Court, the testimony of DW1 makes it quite clear that PW2 Chandan was present on his duty near the place of incident on the date of occurrence. He had also admitted in his cross examination that Chandan had asked him for leave to attend the Court for leading evidence and that Chandan had also told him that police had recorded his statement. Further, he had also mentioned that Chandan had also gone out of shop for tea break around 4.00 pm and he returned after about 15 minutes and further, he clarified that he does not remember the exact time when Chandan went for a break. He also replied that he does not know whether Chandan had any enmity with the accused or that he had Page No. 17 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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18 identified the accused during investigation. In view of this Court, the testimony of DW1 is not sufficient to raise reasonable doubt on the truthfulness of PW2 regarding his presence at the stairs at the time of incident or about fact of his going to police station few days after the incident and identification of the accused there. On this issue, not even a suggestion was given to PW2 that he alongwith his employer Sanjay Das (DW1) had informed the police during inquiry that they do not know anything about this murder case. Rather, PW2 has replied in his cross examination that police did not make inquiry from Sanjay Das and no efforts was made by defence side to challenge that fact. All it indicates that DW1 has been introduced as an afterthought to create a defence and to nullify the incriminating evidence of PW2. Moreover, it has been rightly contended by the prosecution side that since DW1 had admitted in his cross examination that Chandan (PW2) had started dealing with his clients directly and he was not working on his shop properly, that may be a reason why DW1 agreed to depose in favour of the accused to rebut the testimony of his previous employee (PW2).
20. Further, the facts of presence of Chandan near the spot Page No. 18 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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19 and his encounter with the accused immediately after the incident, are also confirmed by the first statement of complainant Amit Kumar Ex.PW3/A, which was recorded within few hours of the incident. In that statement, which resulted into FIR, it has been clearly mentioned that Chandan had disclosed him that after a quarrel, he had heard sound of tyre burst and then a boy came out and told him that he had shot dead one person and he would kill him also if he would tell about it to anyone. In view of this Court, the testimony of Chandan remains unimpeached despite detailed cross examination and moreover, the defence side has not been able to impute any motive to him for false implication of accused.
21. Further, it is the prosecution case that after committing the murder, the accused had forcibly used the mobile phone of PW1 Ashwani and PW37 Manik Chand and had called PW12 Anuj Chhikara and PW11 Amit Chhikara respectively to inform about the murder and for arranging a lawyer. PW1 has deposed that about 6.00 pm, near Najafgarh pul, one motorcyclist came from behind and asked him to give his mobile phone (8527340418) and then he made two calls from it. He further Page No. 19 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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20 deposed that though he cannot identify that motorcyclist, but he saw his face through the helmet on that day and he had even identified him in police custody 45 days thereafter. PW12 Anuj Chhikara has deposed that on 14.07.2011, at about 6.30 pm, the accused called on his mobile phone no. 9891699902 and told him that he would kill him and he is coming to him within 15 minutes. Further, he deposed that the accused was drunk at that time and that is why he asked him to talk on next day. The CDR of mobile phone no. 9891699902 Ex.PW31/E corroborates the testimony of PW12 as it shows that a call was made on the said mobile phone number from mobile phone no. 8527340418 at 6.52 pm on 14.07.2011. It is noteworthy that the defence side has not made attempt to challenge the aforesaid fact of threat extended by the accused under influence of liquor while making call on the mobile phone of PW12. Moreover, ld. Additional PP has rightly pointed out that though the accused mentioned in his statement u/s 313 CrPC that no such call was made by him and that Anuj Chhikara was having difficulty in vision and hearing, but no such suggestion was put to PW12 Anuj Chhikara.
22. Further, PW37 Manik Chand deposed that on Page No. 20 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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21 14.07.2011, at about 6.45 pm, the accused took his mobile phone (8802288866) forcibly and called one Chhikara. Further, he stated that the accused told said Chhikara that he had committed murder of Deepak and asked him to arrange a sum of Rs.2.50 lacs. Further, he mentioned that then the accused deleted the said called mobile phone number from his phone and after giving his mobile phone back, he went away on his motorcycle. PW11 Amit Chhikara deposed that on 14.07.2011, he received a telephonic call on his mobile number 9990906100 from an unknown mobile phone number and though he had attended the said call, but no one talked from other side. The witness was declared hostile by ld. Additional PP and during cross examination conducted by ld. Additional PP, he denied the suggestion that the accused had called on his mobile phone from another mobile phone and informed him about committing of murder of the deceased and for arranging the money and a lawyer. However, to corroborate the testimony of PW37, the prosecution has examined PW28 Shishir Malhotra, Nodal Officer of Aircel Ltd., who produced record of mobile phone of PW37. The CDR Ex.PW28/D, makes it quite clear that a call was made from the mobile number 8802288866 to the mobile phone number Page No. 21 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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22 9990906100 at 6.48 pm. PW13 had made it clear that he had got issued the mobile phone no. 9990906100 for the use of PW11 Amit Chhikara. Further, the said mobile record makes it quite evident that the aforesaid call was made for 45 seconds and thus, it falsifies the testimony of PW11 that no one talked from other side when he received the said call. Moreover, ld. Additional PP rightly mentioned that no suggestion was given to PW37 by the defence side that the accused used the mobile phone of PW37 while wearing helmet and thus, he was not in a position to identify the accused at that time. In view of this Court, despite cross examination, the testimony of PW37 remains unrebutted even though he had replied that he did not call the police at phone number 100 or raise any alarm after snatching of his mobile phone by the accused. Further, the defence side has not been able to furnish any ground as to why he, being an independent witness, would falsely depose against the accused.
23. Further, PW13 has also testified that on the same day, at about 5.30 pm, the accused had called on his mobile phone and told him that he had killed Deepak, but surprisingly, apart from giving a suggestion, defence side has not rebutted it.
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23 Post Incident Recoveries:
24. Other important incriminating evidence pointing towards involvement of the accused has been brought on record in the form of recovery of his wallet from the spot, recovery of blood stained clothes, firearm and partially burnt mobile phone battery at his instance. PW3 Amit Kumar has deposed that one purse was found lying at the place of incident and the same was seized vide memo Ex.PW3/A. He further deposed that the said purse was having one identity card of the accused, his 8 passport size photographs, one metro yatri card and one ATM card of PNB bank. Though he identified the said purse in the Court during his testimony, however, ld. defence counsel laid stress on his admission during cross examination that he had never seen the exhibits of this case prior to same being shown to him in the Court and argued that the purse was planted after arrest of the accused. In view of this Court, the said argument of ld. defence counsel has no basis as not even a suggestion was given to the witness that the purse was not lying at the spot when he called the police.
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24
25. Furthermore, PW6 Rajbir Singh, who reached at the spot within 15 minutes from receiving call from PW3, had also deposed that the wallet was lying at the spot. Moreover, in the tehrir/rukka Ex.PW53/A prepared by IO Inspector Naresh Kumar (PW53), it was clearly mentioned that the wallet/purse was lying at the place of incident. Moreover, it is noteworthy that no suggestion was given to Crime Team members i.e. PW39 HC Satpal and PW23 ASI Attar Singh that no purse was lying at the spot. It is pertinent to mention here that in Crime Team report Ex.PW23/A, it has been clearly mentioned that one purse containing the aforesaid documents of the accused was also found lying apart from several other things at the spot and no effort was made by the defence side to challenge the said report. Furthermore, IO (PW53) and his assistance (PW46), who reached at the spot immediately after the incident, have also mentioned about the recovery of brown colour wallet from the spot. Though ld. defence counsel drew the attention of this Court on the reply of PW47 that the said wallet is not visible in the photographs Ex.PW39/A (colly) taken by the Crime Team, but this Court finds that a wallet like object can be seen lying between the table and the wall in at least aforesaid two photographs, most of which are Page No. 24 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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25 hazy. Thus, it stands established on record that the wallet having documents of the accused was lying at the spot when PW3 and the police officials reached there immediately after the incident. This fact of recovery of wallet also falsifies the defence of the accused that he left the place of incident at 2.30 pm as in that case, he could have realized in some time that he had left his wallet at the spot and could have come back at the spot to collect it. In other words, it implies that the accused had left his wallet at the spot while leaving in hurry.
26. Further, PW53 IO Inspector Naresh Kumar and PW46 SI (Retired) Nirmaljeet Singh have deposed that after arrest of the accused on 15.07.2011, he took them to his house no. B104, NangloiNajafgarh Road, Nirmal Vihar, Najafgarh, New Delhi, and got recovered a green shirt and blue jean having some blood stains and informed that he was wearing these clothes at the time of incident. It is mentioned that said clothes were seized vide memo Ex.PW46/F. The biological examination report Ex.PW48/A makes it clear that the half sleeve tshirt and blue jean pants belonging to the deceased and full sleeve shirt and jean pants of the accused were found having stains of human Page No. 25 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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26 blood of group "B". The accused has also admitted about recovery of said clothes from him in statement u/s 313 CrPC. Thus, said evidence corroborates the prosecution case that the clothes of the accused were stained with the blood of the deceased or in other words, that the accused was with the deceased at the time of his murder.
27. Further, IO (PW53) and SI (PW46) have testified that pursuant to disclosure statement of the accused Ex.PW48/D, he took them to ganda nala (PalamNajafgarh drain) and got recovered one black polythene containing one country made pistol having one used cartridge and one live cartridge. They also deposed that the sketch of said pistol and cartridges Ex.PW46/J was prepared and those were seized vide memo Ex.PW46/K. Further, they stated that the site plan of place of recovery of said firearm Ex.PW46/L was also made. Though ld. defence counsel has rightly argued that no public witness was joined at the time of said recovery, but considering the time of recovery, which is under dark, and the reply of IO that there was no frequent movement of public persons and traffic on the thoroughfare near the place of recovery, this Court is of the view Page No. 26 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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27 that the nonjoining of public witness does not cast any doubt on the recovery proceedings and there is no reason to disbelieve the testimony of police officials on this aspect. Further, PW52 DCP Parmaditya has proved the accord of sanction u/s 39 of the Arms Act by him vide letter Ex.PW52/A.
28. As far as use of said firearm in committing the murder of Deepak is concerned, ld. defence counsel has rightly submitted that the FSL (Ballistics Division) report Ex.PW49/A does not help the prosecution case. It is evident that the report clarified that the individual characteristics of striations present on the deformed bullet (recovered from dead body) are insufficient for comparison with the fired cartridge case and test fired cartridge cases and, therefore, it cannot be opined whether the deformed bullet was discharged through the country made pistol recovered at the instance of the accused. In view of this Court, though the said report cannot be considered as incriminating piece of evidence against the accused as far as use of recovered firearm in the incident is concerned, but at the same time, it cannot be ignored that no definite opinion could be given because of deformed shape of the bullet and further that the report did not Page No. 27 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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28 give clean chit to the accused by finding that the said weapon was not used in the incident. It is pertinent to mention here that the said report had confirmed that the deformed bullet recovered from the body of the deceased corresponds to the bullet of 8 mm/.315" cartridge and that the country made pistol recovered from the accused was also designed to fire standard 8 mm/.315 cartridge and that it was in the working order. Thus, it cannot be said with certainty that the said firearm was not used in committing the murder of Deepak. Be that as it may, there remains no doubt on the basis of evidence discussed above that accused had used a firearm in the incident.
29. Further, the recovery witnesses (PW46 and PW53) have deposed that pursuant to his disclosure statement, the accused took them in an open plot near his house and pointed out the place where he had burnt the mobile phone and its battery. Further, they deposed that partially burnt mobile battery and ash were kept in a polythene and after sealing the same with the seal of "NK", the same were seized vide memo Ex.PW46/G and further the site plan of place of recovery Ex.PW46/H was also prepared. Ld. defence counsel has challenged the recovery Page No. 28 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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29 proceedings on the ground that the recovery was effected from an open plot accessible to public at large and no public witness was joined during recovery proceedings. The CDR Ex.PW32/B of mobile phone no. 9212134817 of accused makes it clear that the same was used by the accused till 12.09 pm on 15.07.2011. It implies that the accused had destroyed the mobile phone after 12.09 pm. As per record, the recovery of the remnants has been effected immediately after his arrest at 6.30 pm. Thus, the said challenge of defence side fails as the IO had replied that no public witness had come forward to join the recovery proceedings and because the burnt remnants of the mobile phone were recovered within few hours after the mobile phone was destroyed by the accused.
30. Though it may be argued that it cannot be said conclusively that the said remnants were of the mobile phone of the accused, but considering that it has not been disputed that the remnants were of a mobile phone, further that same were recovered from a plot situated near the house of the accused immediately after his arrest and that the accused has not been able to produce the mobile phone used by him at any time during Page No. 29 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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30 investigation or subsequently, there remains no doubt that the accused had destroyed his mobile phone at the aforesaid place with the intention to make the information regarding calls made therefrom disappear. The strange act of accused to destroy his mobile phone was certainly influenced by the murder of Deepak and it appears to have been done by accused with the intention to hide his involvement in the incident.
Motive:
31. In a case based on circumstantial evidence, motive to commit the offence attains significance. Regarding motive, PW13 has deposed that there was some money transaction between the accused and the deceased and about 2½ months prior to the incident, he alongwith Deepak (deceased) had taken Anil Kr. Sharma @ Pandit (accused) towards village Mitrau, where the deceased abused and slapped the accused for money and on the same day, the accused had returned some money to the deceased. It is noteworthy that the defence side has not tried to rebut the testimony regarding money dispute as even no suggestion was put in this regard. Thus, it appears that the accused had strong motive to murder the deceased.
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31 Cause of Death:
32. According to postmortem report Ex.PW35/A, the cause of death was due to neurogenic shock caused by pierced projectile (bullet) into the cervical part of spinal cord and the nature of injury is suggestive of contact gun shot injury. These findings have not been challenged by the defence side in any manner and thus, it stands proved on record that the death of Deepak occurred because of the injury caused by the bullet fired through country made pistol of the same description, which was recovered at the instance of the accused.
Other Pleas of Defence Side:
33. Further, ld. defence counsel emphasized that the accused was arrested immediately after the incident when he came at the spot after coming to know about the murder of the deceased and thus, the prosecution story about his arrest on the next day, on the basis of information provided by secret informer, is false and manipulated. It is pointed out that PW3 and PW11 have clearly replied during cross examination that the accused was shown to them in police custody on 14.07.2011 itself. As per Page No. 31 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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32 prosecution case, the accused was arrested by PW53 and PW46 on 15.07.2011 at 6.30 pm at Sector12, Dwarka Market. The testimony of police officials regarding date, time and place of arrest remain unimpeached. Furthermore, PW6 Rajbir Singh has also replied in his cross examination that the accused was shown to him for the first time in the PS in the night of 15.07.2011. However, PW3, who is brotherinlaw of PW6, has mentioned that he had seen the accused for the first time in the PS at about 9.3010.00 pm on the date of incident. The IO (PW53) has mentioned that Amit Kumar (PW3) has left the spot at about 10.00 pm on the date of incident. PW3 has also mentioned that he remained with the police till 10.00 pm on the date of incident. Further, both PW3 and PW6 have mentioned that they had taken the deceased to Ayushman Hospital and thereafter, they came back to the spot with the police officials and their statement was recorded. It is noteworthy that no suggestion was given to any witness that PW3 was taken to PS from spot after registration of FIR. Thus, it appears that the statement of PW3 that he saw accused in the PS at about 9.30 10.00 pm in the night of incident itself, was given under some confusion and is contradictory to other convincing evidence. As Page No. 32 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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33 far as testimony of PW11 is concerned, it is evident that he has not supported the prosecution case on any aspect and, therefore, his reply given in cross examination that the accused was brought to his house by police late in the night of 14.07.2011 has no significance. Further, ld. Additional PP rightly pointed out that no such suggestion was put to his brother PW12 Anuj Chhikara because he had supported the prosecution case on few material aspects. Furthermore, it has been rightly argued by ld. Additional PP that arrest memo Ex.PW46/A clearly mentions that the information regarding arrest of the accused was given to his wife namely Pushpa Sharma and since the accused did not opt to produce her in his defence to rebut the issue of time of arrest, it implies that there is no ground to doubt the arrest proceedings of the accused.
34. Further, ld. defence counsel has argued that the police did not arrest the real culprits though their identity was established through CCTV footage recorded in the cameras installed near the spot. It is noteworthy that though the accused has mentioned in his statement u/s 313 CrPC that he was shown the CCTV footage in the PS on 14.07.2011 and then he identified Page No. 33 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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34 Gajender Yadav, Tinku Hasanpuria and one more person coming out of the said shop at the time of incident, however, it is evident that no suggestion was given to any of the independent witnesses or IO regarding presence of the said three presence at the spot at the time of incident. On this issue, PW53 IO Inspector Naresh Kumar has explained in his cross examination that he had checked CCTV footage of Rajmandir Store, but it was not found covering the area of staircase and further denied the suggestion that CCTV camera was also installed outside the restaurant falling on the right side of the staircase. On this issue, ld. Additional PP has also rightly pointed out that the accused had neither moved any application before the Court of Ld. MM or bail application before Sessions Court to inform about the alleged CCTV footage shown to him in PS.
35. Further ld. defence counsel argued that though it is the prosecution case that the accused and the deceased were having liquor and meal at the place of incident and the chance prints were also lifted from the spot, but the chance print report does not confirm the presence of the accused at the spot till the time of incident. It is observed that the chance print report dated Page No. 34 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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35 29.12.2011 given by the Director, Finger Print Bureau, made it clear that the chance prints are overlapped, partial or smudged and do not disclose sufficient number of ridge details in their relative position for comparison. In view of this Court, though finger and thumb impressions of the accused could not be confirmed on different articles seized from the spot because of aforesaid reason, but at the same time, the report does not give any indication that the finger/thumb impressions were of some other persons and not the accused. As discussed above, sufficient evidence has already come on record to show that the accused was with the deceased till the time of incident.
36. Moreover, the plea of defence counsel that no TIP of the accused was got conducted, is found baseless as the application for conducting TIP of the accused was moved on next day of his arrest i.e. on 16.07.2011 and he refused to participate in TIP proceedings Ex.PW34/A.
37. Another point raised by ld. defence counsel was that no opinion was given by the expert regarding the range of firearm and nature of firearm used in the incident, but in view of this Page No. 35 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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36 Court, the said facts were not important to ascertain the culpability of the accused in this case. Otherwise also, postmortem report Ex.PW35/A has made it clear that the findings of postmortem are suggestive of contact gun shot injury.
Circumstantial Evidence Proved on Record:
38. Considering the case in entirety, this Court is of the opinion that prosecution has been able to bring on record sufficient circumstances, which have been fully established and the chain of evidence formed by these circumstances is complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. To sum up, the various facts forming links in the chain of circumstantial evidence in this case are listed as under:
(a) There was a fairly strong motive for the accused to commit murder of Deepak;
(b) Only the accused and the deceased were consuming liquor at the time of incident;
(c) Immediately after gun shot sound, the accused came out with a firearm and after confessing the murder, he threatened PW2;
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37
(d) Immediately after the incident, the accused forcibly used mobile phones of PW1 and PW37 and called PW12 and PW11 respectively to confess his crime and to arrange money and lawyer;
(e) The accused destroyed his mobile phone in order to hide his involvement; and
(f) The clothes of the accused stained with the blood of the deceased were recovered at his instance.
39. These circumstances taken together advance the case against the accused very much beyond suspicion and reasonably and definitely point to the accused as the person who committed the murder. It is found that evidence of the prosecution witnesses is clinching and of sterling quality. In such a situation, the wrong answers given by the accused qua his presence at the time of incident in his statement u/s 313 CrPC, would provide another link for forming chain of incriminating circumstances.
(Refer: "Harivadan Babubhai Patel Vs. State of Gujarat", Crl. Appeal No. 1044 of 2010 decided on 01.07.2013.) Further, the following observations of the Supreme Court given in the decision of the case titled as "Deonandan Mishra Vs. Page No. 37 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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38 The State of Bihar", AIR 1955 SC 801, on the issue related to effect of absence of or false explanation of accused are worth quoting:
"It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved would afford a reasonable basis, for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain."
CONCLUSION:
40. For the reasons given above, it is held that the prosecution has proved its case beyond reasonable doubts and accordingly, accused Anil Kr. Sharma @ Pandit is pronounced guilty for offences u/s 302 and 201 IPC and u/s 25 and 27 Arms Act.
41. Before parting, this Court also deems it necessary to record appreciation for the good work done by IO Inspector Page No. 38 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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39 Naresh Kumar and his team by arresting the accused and gathering important piece of evidences without loosing any time, in absence of which it would have been difficult to prove charges and to provide justice to the victim(s).
Announced in the open Court on 28th day of February 2018.
(total 39 pages) (VIVEK KUMAR GULIA) ASJ03 & Special Judge (Companies Act) Dwarka Courts (SW), New Delhi.
Page No. 39 of 39. State Vs. Anil Kr. Sharma @ Pandit;
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