Delhi District Court
State vs (1) Salim Khan @ Soni @ Shahid on 8 October, 2018
IN THE COURT OF SH. SANJAY BANSAL:
SPECIAL JUDGE (NDPS) / ASJ / NORTH EAST:
KARKARDOOMA COURTS: SHAHDARA: DELHI.
Sessions Case No. 44388/2015
CNR No. DLNE01-000079-2012
STATE Versus (1) SALIM KHAN @ SONI @ SHAHID
S/o Shamim Khan
R/o Shiv Vatika Colony,
Village Behta, Hazipur, Loni,
Ghaziabad, UP.
(2) BADSHAH @ DILSHAD
S/o Shafiq
R/o O-200, Gali No. 3,
Sunder Nagri, Delhi.
(3) JAVED
S/o Kamruddin
R/o O-447, Gali No. 8,
Sunder Nagri, Delhi.
FIR No. : 173/2012
PS. : Khajuri Khas
U/s. : 25/27 Arms Act & 302/120-B/201/34 IPC
Chargesheet Filed On : 28.08.2012
Date Of Allocation : 12.09.2012
Judgment Reserved On : 27.09.2018
Judgment Announced On : 08.10.2018
JUDGMENT:
1. Case against accused persons is that all of them conspired to kill one Rajpal Singh, who was father-in-law of accused Salim. Accused Salim had married with Sunita against wishes of her parents. Sunita, later on, had allegedly demanded her share in the property or money from her family members. But upon refusal from their side, her husband Salim conspired with other two accused SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 1 of 37 and on 28.05.2012, reached near his in-laws house at D-6/1C, Gali No. 5, Near Jeevan Jyoti School, Sadatpur Extension, Delhi. It is alleged that accused Badshah and Javed went to the said house and rung the door bell. Rajpal came there followed by his wife Veerwati. On pretext of serving summons, accused Badshah allegedly took out pistol from his bag and shot at Rajpal. However, the bullet hit Veerwati on her face and injured her teeth from front. Both the said Badshah and Javed ran away from there. Son of Rajpal namely Kushal Pal was also there. Rajpal allegedly chased both of them but could not catch them. However, he saw them talking to accused Salim. All the three escaped from there. Rajpal came back. Police was informed.
2. PCR vehicle came there and took injured to hospital. SI Subodh also reached the spot and the hospital. He obtained MLC of Veerwati and after she was declared fit for statement, he recorded her statement. She alleged that her daughter Sunita and her husband Salim were behind attack upon her as Sunita was demanding her share and they had refused to give the same. FIR was registered u/s 307/120-B/34 IPC and 25/27 Arms Act. Investigation was taken up.
3. During investigation, various exhibits/articles were lifted from the spot. Crime team also visited the spot. Site was inspected. Photographs were taken. Site plan was prepared. Some documents/copies of complaint were also handed over to the IO by the complainant side. On 02.06.2012, accused Salim Khan @ Soni was arrested by the Crime Branch. He was arrested in the present case also. He disclosed about involvement of accused Javed and Badshah. SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 2 of 37
4. In the meantime, on 17.06.2012, injured Veerwati expired in the hospital. Sec. 302 IPC was added. Inquest proceedings were also conducted. Investigation was assigned to Insp. J.S. Mehta. Efforts were made to trace accused Javed and Badshah and weapon of offence. Postmortem was got conducted. NBWs were obtained against Javed and Badshah. Exhibits were sent to FSL. Chargesheet was filed against accused Salim u/s 307/120-B/34 IPC and 25/27 Arms Act.
5. Thereafter, a supplementary chargesheet was filed through which some more documents were placed on record.
6. Accused Badshah was found in custody in some other case. He was arrested in the present case. He confessed to his involvement. TIP of accused Badshah was got conducted. However, the TIP failed and witness Rajpal could not identify him. However, later on he explained that due to dim light and old age, he could not identify the said accused. Rajpal, however, identified him when IO brought the accused to his house during PC remand. Son of Rajpal i.e. Kushal Pal also identified him at that time.
7. Accused Javed surrendered and was arrested. TIP of Javed also failed. This time Rajpal explained that he was receiving threats from Javed and his family members and due to this he did not identify him. Accused Javed was taken on PC remand during which he got recovered SIM card of mobile phone no. 9818577393 and motorcycle used in the offence. However, weapon of offence could not be recovered. Sec. 201 IPC was added in the case. Accused Javed SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 3 of 37 was also identified by Rajpal and his son Kushal Pal during PC remand.
8. Another supplementary chargesheet was accordingly filed u/s 307/120-B/34/201 IPC and 25/27 Arms Act against accused Badshah and Javed. Later on FSL result was also filed.
9. After compliance of section 207 CrPC, learned MM committed the case to Court of Sessions as offence u/s 302 IPC was exclusively triable by it.
10. Vide order dated 27.05.2013, my learned Predecessor framed charges for offences u/s 120-B/302 IPC against all the accused and u/s 27 Arms Act against accused Badshah @ Dilshad. All the accused pleaded not guilty and claimed trial.
11. Vide order dated 03.10.2013, my learned Predecessor framed additional charge for offence u/s 201 IPC against accused Badshah @ Dilshad Accused Badshah @ Dilshad pleaded not guilty and claimed trial.
12. In order to prove the charges, the prosecution examined around 46 witnesses.
13. Statements of accused persons u/s 313 CrPC were recorded. Accused Javed examined 01 witness in his defence.
14. Evidence led by the parties may now be noted.
SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 4 of 37 MATERIAL / EYEWITNESSES
15. Prosecution presented PW-8 Kushal Pal Singh @ Rinku (son of deceased) and PW-10 Raj Pal Singh (husband of deceased) as eyewitnesses.
16. PW-10 Raj Pal Singh deposed that on 28.05.2012, he was present in his house alongwith family members. At about 2:00 pm, door bell of their house was rung. He went towards the door and his wife Veerwati followed him. He opened the door and saw two unknown persons. He deposed that one of them told that they had come from Crime Branch and were having summons for him. He deposed that the said person opened the zip of the bag and took out a pistol and fired towards him. However, the bullet hit his wife. PW-10 deposed that the bullet entered inner cavity of mouth of his wife after hitting right side of upper lip and damaging upper jaw. He stated that teeth of the wife also broke as a result of gun shot and she fell down on the floor. Blood started oozing out from the injury. He further narrated that both the said persons ran towards right side of his house towards the gali. He chased them and saw one more person was standing in the corner of the gali. The said person asked those two persons as to whether work was done to which both of them replied that it was done. PW-10 says that all the three ran towards Gali No. 5. He came back to his house.
17. Deposing further, PW-10 stated that his son Kushal Pal made call to 100 number. PCR van came there and took his wife to GTB Hospital where treatment was provided to her. He deposed that statement of his wife was recorded by the police which is Ex.PW2/B-8. His statement was also recorded. SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 5 of 37 Giving the backdrop of the offence, PW-10 deposed that four years prior to the incident i.e. on 13.05.2008, his daughter Sunita had run away from the house on pretext of going to stitching class. It was discovered by them that Sunita had written a letter in which she wrote that she would not come back. Photocopy of the said letter is Ex.PW8/1. Photocopy of missing report lodged by PW-10 is Mark PW10/1. PW-10 deposed that he had severed all relationship with his daughter Sunita. However, in February 2012, he started receiving messages from Sunita regarding demand of money. Messages were sent from mobile no. 9891506062 to mobile no. 9910412836. He deposed that on 16.05.2012, Sunita came to his house but she was not allowed to enter by his wife. He told that Sunita was demanding Rupees One Lakh from them. Sunita made call to 100 number. Police came and took Sunita and his son Kushal Pal to police station and released them on the next day. He further deposed that on 17.05.2012, a threatening call was received on phone of his nephew Rakender Kumar in which they demanded money or else to loose life. He deposed that his son made complaint in this regard which is Ex.PW8/A but no action was taken. PW-10 alleges that Sunita and her husband Shahid Khan had given threats. PW-10 identified accused Shahid Khan in the court. He pointed out towards accused Badshah @ Dilshad as the person who had fired upon him and his wife. He identified accused Javed as the person who had accompanied accused Badshah. He identified accused Shahid @ Salim as the person who was standing in the corner of the gali and asked about whether work was done or not.
18. He deposed that his wife was discharged from hospital on SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 6 of 37 08.06.2012 against his wishes. He deposed that on 10.06.2012, he had gone to police station and identified accused Salim there. He further stated that on 11.06.2012, condition of his wife deteriorated and she was again hospitalized. She died on 17.06.2012. He deposed about identifying the dead body vide statement Ex.PW10/A. He deposed about conducting postmortem on body of his wife and after the postmortem, he received the dead body vide Ex.PW10/B. He deposed about visit of draftsman regarding preparation of scaled site plan.
19. He also deposed about joining TIP proceedings of accused Badshah on 21.12.2012. He tried to explain that due to improper light in the room, he could not identify the accused in the TIP. However, he identified accused Badshah on 23.12.2012 when the accused was brought to his house. He also deposed that on 11.01.2013, when he had come to Karkardooma Court to know progress of his case, 4-5 boys had surrounded him and threatened not to identify accused Javed in the TIP. He could not identify Javed in TIP dated 14.01.2013. However, he identified him later on 20.01.2013, when accused Javed was brought to his house by the IO.
20. In cross-examination, he told that on 26.05.2012, it was his rest day. On 27.05.2012 and 28.05.2012, his duty hours were from 12:00 midnight to 8:00 am. He denied the suggestion that he was not present in the house at the time of incident on 28.05.2012. He denied that Sunita and Shahid had come to him after marriage to take his blessings but he turned them away on 12.05.2008. He denied that he was falsely implicating the accused persons. SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 7 of 37
21. PW-8 is Kushal Pal Singh. He is son of deceased and PW-10. He also deposed about the incident of 28.05.2012. He says that he was present in the house at the relevant time. He has deposed on similar lines as PW-10 and says that two persons had come to his house and one of them fired upon his father but bullet hit his mother. He deposed about making call to 100 number. He identified accused Badshah as the person who had fired the bullet and Javed as the person who had accompanied Badshah. He too put the blame on his sister Sunita and her husband Salim @ Shahid. He says that Salim used to call them through mobile no. 9891506062, 9910156864 and one other number and used to give threats to give money or to kill them. He says that threats were given on 17.05.2012 and 18.05.2012. He deposed about identifying accused Badshah on 23.12.2012 when he was brought to his house and Javed on 20.01.2013. He identified cartridge case as Ex.P-1 and pieces of bangles as Ex.P-2.
22. In cross-examination, PW-8 stated that his statement was recorded by the police five times. He stated that after door bell was rung, his father had firstly gone to the door followed by his mother. He stated that initially he had not accompanied his parents. He stated that he had made call to the police from mobile no. 9910412836 and not from his mobile phone. He stated that he had also reached the door after his parents. He could not tell description and colour of the clothes of accused persons but stated that they were wearing pant shirt. He denied that he was not present at the spot. It had come that after firing incident, he did not raise any alarm. He had not chased the assailants. He had not helped PCR officials in lifting his mother.
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23. PW-19 is Jai Prakash. He is relative of PW-10. He deposed that on 16.05.2012, he had come to house of PW-10. During intervening night of 16/17.05.2012, Sunita i.e. daughter of PW-10 had come to the said house and demanded Rs. 1 Lakh and share in the property. He deposed that PW-10 refused to pay any money or give any share. PW-19 stated that some altercation took place between PW-10 and Sunita and she made call to 100 number. After arrival of police, she and PW-10 were being taken to police station, and at that time, Sunita gave threats to kill all the family members. He deposed that his mobile no. 9582047432 was also taken by Sunita and thereafter, he received call from Sunita and Sunita asked for arranging meeting with her father which PW-19 arranged. He deposed that on 18.05.2012, he again received call from Sunita and her husband and they threatened him to kill him if their demands were not met. He informed the police. He also deposed that on 11.01.2013, he had come to KKD Courts as he was called by Raj Pal (PW-1). He deposed that when they were returning from the courts, 4-5 boys restrained them in the staircase and threatened to harm them in anything wrong happened with accused persons.
24. In cross-examination, it has come that mobile no. 9582047432 had been lost and he had not made any complaint in that regard. He denied the suggestion that no such threats were given to him.
25. PW-23 is Rakender Kumar. He is brother of the deceased. He deposed that after murder of his sister Smt. Veerwati, he had started residing with his brother-in-law (PW-10) Sh. Raj Pal Singh in Delhi. He also deposed about SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 9 of 37 incident of KKD Court on 11.01.2013 and threats given by 4-5 boys. He also deposed that on 12.01.2013, a call was received on mobile from mobile no. 9871249088 and the caller gave threats to them not to identify accused Javed in the TIP for else to kill Raj Pal. On 14.01.2013, when Raj Pal went for TIP, he was perplexed and therefore, PW-23 informed police at 100 number. INVESTIGATION WITNESSES
26. PW-1 is SI E.S. Yadav. He was Incharge, Crime Team. He deposed about visiting the spot i.e. D-6/1C, Gali no.5, Shadatpur Extension, Delhi. He deposed about inspecting the said spot and prepared Scene Of Crime Report Ex.PW1/A.
27. PW-5 is Insp. Mukesh Kumar Jain. He had prepared scaled site plan of the scene of crime. The scaled site plan is Ex.PW5/A.
28. PW-11 is HC Samay Singh. He deposed about arrest of accused Salim Khan @ Soni by the officials of Crime Branch. He deposed that on 02.06.2012 at about 6:00 am, he received an information from a secret informer that Saleem @ Soni @ Sahil R/o Behta, Hazipur, District Ghaziabad, U.P. wanted in a case pertaining to Khajoori Khas was roaming in the area of Nand Nagari. He gave the information to Inspector Manoj Pant who instructed him to conduct raid. PW-11 recorded the information in the Rojnamcha Register vide DD No. 5 at 6.25 a.m, copy of the same is Ex.PW11/A. He constituted a raiding party comprising HC Pawan, HC Jugnu, Ct. Rambir and Ct. Sunil. They all alongwith informer SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 10 of 37 reached at Gagan Cinema, Nand Nagri, Delhi in Govt. Vehicle bearing registration No. DL 1CM 4230. He briefed the raiding party and positioned them.
29. He deposed that around 9.30 a.m. one person was seen coming from the side of Sunder Nagri and secret informer pointed out him as Salim @ Soni and he was relieved. He deposed that he alerted the raiding party and they apprehended accused Salim Khan while he was passing through the main road just in front of Gate No. 2, Gagan Cinema, Nand Nagari. PW-11 made enquiries from him (accused Salim). He disclosed his name and address and that he was wanted in a case pertaining to PS-Khajoori Khas. PW-11 arrested him vide arrest memo is Ex.PW11/B. He conducted personal search of accused Saleem vide memo Ex.PW11/C. He also recorded his disclosure statement vide Ex.PW11/D. PW-11 deposed that accused Saleem also pointed out the place of offence vide pointing out memo Ex.PW11/E. He also informed PS Khajuri Khas. SI Subhodh came to him and he handed over the documents to him. He also made DD no.12 regarding proceedings conducted by him, copy of which is Ex.PW11/F. PW-11 also filed Kalandara in the court which is Ex.PW11/G.
30. In cross-examination, he denied the suggestion of the defence that accused Saleem was not apprehended as deposed by him.
31. PW-15 is Ct. Shiv Dutt. In his presence, on 10.06.2012, IO had recorded disclosure statement of accused Salim Khan which is Ex.PW12/A.
32. PW-36 is ASI Yashbir Singh. On 14.01.2013, on instructions of IO, SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 11 of 37 he had gone to Meerut to verify mobile no. 9910156864 which was in the name of Famida. He went there and found that Famida had shifted to Delhi. He recorded her statement which is Ex.PW36/A and collected voter ID card which is Ex.PW36/B. Famida disclosed to him that the said mobile number had been obtained by her and she had given the same to her brother-in-law namely Salim Khan. Ex.PW36/C is copy of arrival entry at PS Delhi Gate, Meerut made vide DD No. 20.
33. PW-41 SI Subodh Panwar, PW-32 Ct. Gajender Singh, PW-33 Ct. Subodh, PW-42 Insp. J.S. Mehta have deposed in detail about investigation.
34. PW-41 is SI Subodh Panwar. He deposed that on 28.05.2012, he was on emergency duty. At about 2.25 p.m., DD No. 25-A was received by him. Thereafter, he alongwith Ct. Richhpal (PW-14) had reached at D-6/1-C, Gali No. 5, near Jeevan Jyoti Public School, Sadatpur Extension, Delhi. There blood was lying after just entering the gate of the house. One empty cartridge, broken pieces of the bangles and broken pieces of teeth were also lying there. Caller Kushal Pal @ Rinku met him who informed him that his mother Smt. Veerwati was shot and was taken to GTB Hospital by PCR. He had called crime team to the spot. He had left Ct. Richhpal at the spot and had gone to GTB Hospital and obtained MLC of injured Veerwati. He made enquiries from Smt. Veerwati as she was endorsed 'fit for statement' by the doctors. He recorded her statement and obtained her right hand thumb impression. Smt. Veerwati had narrated the facts about the occurrence in her statement. He deposed about making endorsement on the SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 12 of 37 statement of Smt. Veerwati and prepared rukka Ex.PW41/A. He sent Ct. Richh Pal to get the case registered.
35. He deposed about making enquiries from Kushal Pal. He deposed about visit of crime team. Ct. Richh Pal also returned to the spot alongwith copy of FIR. He prepared site plan Ex.PW41/B. He seized broken teeth pieces, empty cartridge, broken pieces of bangles, blood and earth control from the spot after preparing parcels with the seal of 'SP' vide seizure memos Ex.PW14/B, Ex.PW14/C, Ex.PW14/D, Ex.PW14/E and Ex.PW14/F respectively.
36. He stated that Kushal Pal had produced copy of missing report of his sister Sunita and other documents before him which were also seized vide seizure memo Ex.PW14/A. He deposed that Sh. Rajpal i.e. husband of Smt. Veerwati gave him mobile numbers of Soni Khan. He obtained PCR call form.
37. He deposed that on 02.06.2012 at about 2.00 p.m., he received information from Duty Officer that an intimation was received vide DD No. 33-B about the arrest of accused Salim Khan @ Soni by HC Samay Singh of Anti Robbery Cell, Crime Branch, Shakarpur, Delhi. PW-41 alongwith Ct. Laxman (PW-13) had reached at the office of Anti Robbery Cell and arrested accused Salim Khan @ Soni Khan vide arrest memo Ex.PW41/C. Disclosure statement of the accused was recorded which is Ex.PW41/D. He deposed that accused Salim Khan was produced before the court in muffled face. He also filed application for TIP of accused Salim Khan (Ex.PW41/E) but accused Salim Khan refused to join the TIP. Thereafter, PW-41 obtained police custody remand for tracing co- SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 13 of 37 accused Ravi. However, after enquiries it was found that Ravi was innocent. He deposed that accused Salim Khan made further disclosure statement Ex.PW15/A and revealed names of Badshah and Javed.
38. He deposed that on 17.06.2012, he received information through DD No. 54-B about death of injured Smt. Veerwati in the hospital. He had reached at GTB Hospital and made enquiries from Ct. Mahesh who was Duty Constable at GTB Hospital. He prepared inquest papers which are Ex.PW41/F (colly.). Dead body was handed over to the relatives after postmortem. He deposed that Dr. Meghali produced one glass bottle containing bullet recovered from the dead body. She also handed over one envelope having seal of MK. These were seized vide memo Ex.PW41/G.
39. He deposed about joining investigation on 13.08.2012 alongwith Insp. Yudhvinder Singh Maan. He deposed that on his pointing out as well as on pointing out of Rajpal, SI Mukesh Jain prepared rough notes for preparing scaled site plan. He deposed about arrest of accused Javed in the court on 11.01.2013 upon his surrender. Accused Javed made disclosure statement as well.
40. Deposing further, PW-41 stated that on 19.01.2013, accused Javed while under police remand, took them to his house bearing no. O-447, Gali No. 8, Sunder Nagri but weapon of offence could not be recovered. However, accused got recovered one SIM card and told that he used to talk with co-accused Salim Khan from that number. The SIM card was seized vide seizure memo Ex.PW32/A. Bill/receipt of the SIM card was also seized vide memo Ex.PW41/A. He deposed SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 14 of 37 that accused also produced one motorcycle no. DL 5SW 7955 from in front of his house which he had used in the commission of the offence. It was also seized by the IO vide Ex.PW32/B. Thereafter, accused pointed out the place of incident i.e. Idgah Park.
41. He deposed that Javed pointed out place of incident on 20.01.2013 and he was identified by witnesses Rajpal and Kushal Pal. Ct. Gajendra Singh (PW-32) was with the police team during investigation conducted on 19.01.2013 and 20.01.2013. Photographs of the motorcycle are Ex.PW41/B-1 to B-4.
42. PW-41 further identified other case properties also, such as, mobile SIM of Vodafone bearing EH 217000991682 as Ex.PX, the cartridge case as seized from the spot as Ex.P-1, pieces of bangles as Ex.P-2, broken teeth as seized from the spot as Ex.P-3 (colly.), blood stained earth control as seized from the spot as Ex.P-4, soil as seized from the spot as Ex.P-5, blood on gauze as seized from the spot as Ex.P-6. He identified the accused also.
43. In cross-examination, he denied the suggestion that Kushal Pal was not present at the spot when he reached there on the day of incident. He told that teeth were broken into many pieces and, therefore, he could not tell how many teeth were broken. He saw blood on the clothes of Veerwati. He stated that he obtained opinion of doctor regarding fitness of Smt. Veerwati but it was not recorded separately. It has come that statement of Veerwati was not recorded in presence of any doctor.
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44. PW-32 was also cross-examined with purpose to show that no recovery was effected at instance of accused Javed. PW-32 denied all the suggestions.
45. PW-42 is Insp. J.S. Mehta. He had conducted part/further investigation. He deposed about moving applications for obtaining Call Details Record (CDR) of mobile numbers 9891506062, 9990688026, 9910412836, 9910156864 and 9818577393 from service providers. He also made search for accused Javed and Badshah who were wanted in the case but they were not found. He received an information that accused Badshah was arrested in a case of PS Shahibabad U.P. He deposed that on 16.12.2012, he had sent HC Rahisuddin to Dasna Jail for collecting information about accused Badshah. After returning from there, HC Rahisuddin informed him that accused Badshah was lodged in Dasna Jail in case FIR No. 1208/12 and 1209/12 of PS Sahibabad. On 17.12.2012, he had moved an application before the concerned Court for issuance of production warrant of accused Badshah. Copy of said application is Ex.PW42/A. Production warrant was issued for 19.12.2012 against accused Badshah. On 19.12.2012, he alongwith Ct. Subodh (PW-33) had reached at Karkardooma Courts, Delhi where accused Badshah was produced before the Court of Sh. R. L. Meena, Ld. MM, Karkardooma Courts, Delhi.
46. He deposed that he moved an application for interrogation of accused Badshah (Ex.PW42/B). After obtaining permission from the Court, he interrogated accused Badshah and formally arrested him in this case vide arrest SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 16 of 37 memo Ex.PW33/A and conducted his personal search vide memo Ex.PW33/B. Accused was kept in muffled face. Accused made disclosure statement Ex.PW33/C. He moved an application Ex.PW35/A for fixing the date for TIP of accused Badshah.
47. He deposed that on 21.12.2012, he alongwith PW Raj Pal had reached at Tihar Jail. There, TIP of accused Badshah was conducted by Link MM Sh. Ankur Jain. But Raj Pal could not identify the accused. He deposed that after TIP proceeding, witness Raj Pal had stated to him that due to lack of light and his age, he could not identify accused Badshah. He had obtained copy of TIP proceeding through his application Ex.PW35/G.
48. He deposed that on 23.12.2012, he obtained police remand of accused Badshah for one day through his application Ex.PW42/C. He deposed that he alongwith accused Badshah and Ct. Subodh and SI Subodh Panwar had gone to GTB Hospital. Accused was got medically examined. Thereafter, they had gone to Sunder Nagri and made search for accused Javed but he was not found. Thereafter, accused Badshah took them to place of occurrence and pointed out the spot. He prepared pointing out memo Ex.PW33/D. There, Raj Pal and his son Kushal Pal had identified the accused as the culprit who had shot the deceased Veerwati. Thereafter, they had returned PS.
49. He deposed that on 24.12.2012, accused Badshah was interrogated and he had disclosed that he had given the weapon of offence to Javed. He recorded his supplementary disclosure statement Ex.PW42/D. SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 17 of 37
50. He deposed that on 03.01.2013, he made enquiry about mobile numbers. He recorded statement of Mohd. Ayub who had identified mobile No. 9910156864 as in use of Salim Khan. This number was found to be in the name of Famida who was bhabhi of accused Salim Khan.
51. He deposed that on 08.01.2013, he recorded statement of Jai Prakash who was fufa of complainant Raj Pal. Jai Prakash had informed about receiving of threats from Sunita (wife of Soni Khan/Salim Khan) and making of PCR call in this regard.
52. He deposed that on 11.01.2013, he had attended anticipatory bail application of wanted accused Javed. Accused Javed had surrendered before the Court. He moved an application Ex.PW42/E for interrogation and formal arrest of accused Javed. After interrogation accused Javed was arrested vide memo Ex.PW42/F and his personal search was effected vide memo Ex.PW42/G. He was kept muffled face. He deposed that he recorded disclosure statement of Javed vide Ex.PW42/H. He had moved an application Ex.PW34/A for conducting TIP of accused Javed. Thereafter, he alongwith SI Subodh had returned to PS.
53. He deposed that on 14.01.2013, complainant Raj Pal was taken to Tihar Jail No. 8 for TIP Proceedings. After TIP complainant Raj Pal informed him that he did not identify the accused Javed because he had been receiving threats from the accused party since 11.01.2013 personally and telephonically. He deposed that complainant also stated that on 11.01.2013, he had made PCR call about the threats received to him from the Karkardooma Courts itself. SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 18 of 37
54. He deposed that on 14.01.2013, he had sent HC Yashbir (PW-36) to Meerut for verification regarding Famida (Bhabi of Salim Khan) on whose ID, the mobile phone was got issued and used by the accused Salim Khan. He deposed about recovery made at instance of accused Javed on 19.01.2013. He deposed that he had collected PCR form from Control Room and collected record of call details and place the same on record. Scaled site plan was also collected. Copies of TIP Proceeding was obtained and placed on record. Ownership proof of Motorcycle was also collected. Copy of RC is Ex.PW26/A. After completing the investigation, chargesheet was submitted before the Court. He identified accused Badshah and Javed. He also identified photographs of motorcycle No. DL 5S W- 7955 as Ex. PW41/B1 to B4. He also identified case property, such as, mobile SIM of Vodafone bearing No. EH 217000991682 as the same as got recovered by accused Javed. The SIM card is Ex. PX.
55. In cross-examination, he denied suggestions of the defence. It has come that he did not inform learned MM about lack of light as was told to him by witness Raj Pal after TIP. It has come that he did not make any application also in this regard. It has also come that on 14.01.2013, before holding TIP of Javed, Raj Pal had made PCR call regarding receiving threats but no case was registered in that regard nor there was name of any person disclosed therein who had allegedly made the threats. Again, he did not inform learned MM about fact of receiving threats by the witness. He denied that he had chargesheeted accused persons in connivance with the complainant.
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56. PW-43 is Insp. Yudhvinder. He had conducted further investigation on 13.08.2012. He brought draftsman SI Mukesh to inspect the site for purpose of preparation of scaled site plan. He had obtained NBW of accused Javed and Badshah Khan. He took steps u/s 82 CrPC against both of them. MEDICAL / EXPERT WITNESSES
57. PW-2 is Dr. Meghali Kelkar. She had conducted postmortem on the dead body of Smt. Veerwati on 18.06.2012. Postmortem report is Ex.PW2/A. Inquest papers are Ex.PW2/B-1 to B-9. Cause of death was, "respiratory failure as a result of antemortem injury to cervical vertebrae and spinal cord produced by projectile of a firearm". PW-2 further opined that injury to cervical spinal cord was sufficient to cause death in the ordinary course of nature. She had preserved blood of deceased on gauze as well as bullet recovered from her body.
58. PW-40 is Dr. Parmeshwar Ram. He proved the MLC of Smt. Veerwati prepared by Dr. Anupam Priyadarshi on 28.05.2012. The MLC is Ex.PW40/A. On examination, a 0.8 X 0.8 cm, wound with peripheral blackening above upper lip right side was noticed.
59. After providing necessary treatment, patient was referred to dental, neuro-trauma and ENT for further management.
60. PW-44 is Sh. N.B. Bardhan. He had examined cartridge case and fired bullet. After examination, he found that the cartridge and the bullet had been fired from 7.65 mm caliber countrymade firearm. His report is Ex.PW44/A. SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 20 of 37 Cartridge case is Ex.P-1, bullet is Ex.PW44/MO1.
FORMAL WITNESSES
61. PW-3 is HC Jagbir Singh. He was Duty Officer on 02.06.2012. He deposed that at about 2:15 pm, one information was received in the police station through HC Samay Singh regarding arrest of accused Saleem Khan @ Soni u/s 41.1(a) CrPC. The said information was recorded in DD register vide DD No. 33- B. True copy of DD No. 33-B is Ex.PW3/A and photocopy of the same is Ex.PW3/A1.
62. PW-4 is ASI Jagbir Singh. He was Duty Officer on 28.05.2012. He recorded FIR No. 173/12 through computer operator. He also lodged kayami DD and made endorsement Ex.PW4/A. Copy of the FIR is Ex.PW2/B-9. He also deposed about receiving information regarding death of Smt. Veermati on 17.06.2012. Copy of the concerned record is Ex.PW4/B. (It is found that PW-3 and PW-4 is the same person and mistakenly different PW numbers were mentioned.)
63. PW-6 is Lady HC Jag Roshni. She had recorded DD No. 25-A which was regarding firing incident. True copy of the DD is Ex.PW2/D-3. The photocopy of the DD Register containing DD No. 25-A dated 28.05.2012 is Ex.PW6/A.
64. PW-7 is Ct. Vijay Veer. He deposed that on 28.05.2012 at about 14:19 hours, he received a call regarding firing at B-6/1C, Sadat Pur Extension, SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 21 of 37 Delhi and about an injured. He recorded the call put the same under the head "attempt to murder" and the same was taken up on high priority bases. He proved computer generated copy of the call. Same is Ex.PW7/A.
65. PW-9 is Ct. Shyam Lal. He deposed that on 28.05.2012 at about 3:30 pm, one call was received from Police Control Room and he alongwith SI E.S. Yadav and other staff reached at D-6/1-C, Gali No. 5, Shadatpur Extension, Delhi. He had taken 10 photographs of the spot on the directions of the IO and later on after developing, the same were handed over to the IO. The photographs are Ex.PW9/A-1 to Ex.PW9/A-10. The negatives are Ex.PW9/B-1 to Ex.PW9/B-
10.
66. PW-12 is Ct. Mahesh Yadav. He deposed about admission of Smt. Veerwati in GTB Hospital with bullet injury. He deposed that she was discharged on 08.06.2012 but again admitted in hospital on 11.06.2012. During treatment she died on 17.06.2013.
67. PW-16 is Sh. Amitabh Rawat. He was learned MM at the relevant time. He deposed about conducting judicial TIP of accused Salim Khan. Record of TIP is Ex.PW16/A to D.
68. PW-17 is Amar Nath Singh, Nodal Officer from Idea Cellular Ltd. He produced original Customer Application Forms (CAFs) of mobile no. 9990479198 and 8750543756. He deposed that the mobile numbers were issued to Rokender Kumar S/o Chandra Singh R/o H.No. 210, Gali No. 5, Shiv Vihar, SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 22 of 37 Delhi and Avalendra Kumar S/o Vasudev Singh R/o Village & Post Office Khansa, Gurgaon, Haryana. The copy of CAF alongwith their respective ID are Ex.PW17/A and Ex.PW17/B. Call details of the aforesaid mobile connection for the period of 11.01.2013 to 18.01.2013 is Ex.PW17/C and Ex.PW17/D respectively. Certificate u/s 65-B of Indian Evidence Act in respect of both the mobile connections is Ex.PW17/E.
69. PW-18 is Chander Shekhar, Nodal Officer from Bharti Airtel Ltd. He had seen certificate u/s 65-B of Indian Evidence Act in respect of mobile no. 9971441491 which was in the name of Abid S/o Kamruddin R/o 447, Block-O, Sunder Nagri, Delhi and mobile no. 9871249088 which was in the name of Anisha Begum W/o Shakeel R/o 23, Block-J, Sunder Nagri, Delhi. The certificate is Ex.PW18/A. CAF alongwith ID proof of both the customers are Ex.PW18/B and Ex.PW18/C respectively. CDRs of the aforesaid mobile numbers for the period from 09.01.2013 to 18.01.2013 are Ex.PW18/D and Ex.PW18/E respectively.
70. PW-20 is Israr Babau, Nodal Officer, Vodafone Mobile Service Ltd. He produced original CAF of mobile no. 9582047432. The said mobile no. was registered in the name of Jai Prakash S/o Vasudev Singh. Copy of CAF alongwith ID proof is Ex.PW20/A (colly.). He also produced CDR of the said mobile number for the period from 01.05.2012 to 29.05.2012. The same is Ex.PW20/B (colly.). He also produced certificate u/s 65-B of Indian Evidence Act which is Ex.PW20/C. Location chart is Ex.PW20/D.
71. PW-21 is Ct. Billu Singh. He deposed about receiving a call from SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 23 of 37 mobile no. 9891506062 of a lady that "Ghar ka darwaza nahi khole rahe main ghar ke bhar baithi hu". He recorded the information in PCR form and passed on the information on the net. Copy of the form is Ex.PW21/A.
72. PW-22 is Ct. Anil Kumar. He deposed about receiving a call from mobile no. 9891506062 of a lady namely Sunita that "Mere mummy or papa mere ko ghar mein nahi ghusne de rhe hai". The informant had given the address of H.No. D-6/1C, Karawal Nagar, Gali No. 5, Jivan Jyoti School Ke Pas. He recorded the information in PCR form and passed on the information on the net. Copy of the form is Ex.PW22/A.
73. PW-24 is HC Ramavtar. He deposed that on 17.05.2012 at about 12:20 am, he received an information about a quarrel near Jeevan Jyoti Public School. He recorded this information vide DD No. 6-A (Ex.PW24/A) and handed over copy of the same to ASI Sahab Singh. He deposed that on the same day at about 1:20 am, the same information was again received and he recorded this information vide DD No. 8-A (Ex.PW24/B) and handed over copy of the same to ASI Sahab Singh.
74. PW-25 is Lady Ct. Bhateri. She deposed that on 14.01.2013 at about 11:54:12 hours she received a call that "PAPA KO JAIL ME TIP KARNE KE LIYE JAIL JANA HAI PH NO. 9871249088 SE DAMKI AATAHI HAI KI TIP NAHI KARNI HAI". The information was given by Raj Pal Singh through mobile no. 9910412836. She recorded the information in form I which is Ex.PW25/A and passed on the information on the net.
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75. PW-26 is Mohd. Ali Raja. He produced original file pertaining to registration of motorcycle no. DL-5SW-7955 make Bajaj Discover Black. True copy of the same is Ex.PW26/A. He deposed that as per record, the said vehicle was registered in the name of Sh. Kamruddin S/o Mohd. Latif R/o H.No. O-447, Sunder Nagri on 14.09.2007. Photocopy of receipt of purchase of motorcycle is Ex.PW26/C and Sale Certificate is Ex.PW26/D.
76. PW-27 is W/Ct. Sonu. She deposed that on 12.01.2013 at about 20:33:21 hours an information was received from phone no. 9990479198 that "9871249088 es number se caller ke pass dhamki aa rahi hai". She recorded the information in PCR form and passed on the information on the net. The computer generated PCR form is Ex.PW27/A
77. PW-28 is SI Baldev Raj. He deposed that on 12.01.2013 at about 8:45 pm, he received a call about receiving threatening calls through telephone. He recorded the information vide DD No. 37-A which is Ex.PW28/A.
78. PW-29 is HC Sarwan Kumar. He produced original rojnamcha register containing DD No. 21-A dated 11.01.2013. He deposed that as per record, an information was received at police station regarding quarrel in Karkardooma Courts near Court No. 52. Copy of DD No. 21-A is Ex.PW29/A.
79. PW-30 is ASI Ami Chand. He deposed that on 11.01.2013, DD No. 21-A about quarrel at Karkardooma Courts was assigned to him. He reached at Karkardooma Courts and made search for the concerned person but no one met SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 25 of 37 him. Thereafter he called the caller who told his name as Jai Prakash S/o Vasu Dev. He informed him that there was some dispute with someone in the court. Copy of DD No. 35-B is Ex.PW30/A. Copy of DD No. 13-B is Ex.PW30/B.
80. PW-31 is HC Karori Lal. He produced information sheet of accused Javed S/o Kamruddin and of Badshah S/o Safiq Ahmed from PS Nand Nagri. Copy of information sheet of Javed is Ex.PW31/A and of accused Badshah is Ex.PW31/B.
81. PW-34 is Ms. Harleen Singh, learned MM. She had conducted judicial TIP of accused Javed. Record of TIP is Ex.PW34/A to D. Witness could not identify the accused during the TIP.
82. PW-35 is Sh. Ankur Jain, learned ASCJ. He was also learned MM at the relevant time. He deposed about conducting judicial TIP of accused Badshah @ Dilshad. Record of TIP proceedings is Ex.PW35/A to D. Witness had failed to identify the accused during the TIP.
83. PW-37 is W/HC Pravesh. She deposed that on 11.01.2013 at about 4:25 pm, a call was received from phone no. 8750543756 that "Karkardooma Court No. 52 ke samne jhagra". She filled Form 1 and passed on the information on the net. The Form 1 is Ex.PW37/A.
84. PW-38 is Ct. Arvind Kumar. He deposed that on 18.05.2012 at about 21:42 hours he received a call from phone no. 9582047432 that "caller ko mobile number 9910156864 se dhamki mil rahi hai". He filled Form 1 in this regard SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 26 of 37 and passed on the information on the net. The form 1 is Ex.PW38/A.
85. PW-39 is ASI Kanchhi Singh. He was MHC(M) at PS Khajuri Khas. He had sent eight sealed parcels for depositing in CFSL, CBI Delhi through Ct. Chander Shekhar vide RC No. 110/21 and 111/21. After depositing the exhibits, Ct. Chander Shekhar had produced copy of RC to him. Copy of RC No. 110/21 is Ex.PW39/A and copy of RC No. 111/21 is Ex.PW39/B.
86. PW-45 is Sarvesh Kumar, Nodal Officer from Idea Cellular Ltd. He produced Cell ID chart of Delhi Service Area. Cell ID chart is Ex.PW45/A. He also produced CAF of mobile no. 9990688026 in name of Parvez s/o Banne alongwith copy of ID Proof. Same is Ex.PW45/B. (colly). The CDR of mobile no.9990688026 from 01.02.2012 to 10.06.2012 is Ex.PW45/BB. He also produced CAF of Mobile no. 9891506062 in name of Soni s/o Shamim Khan alongwith copy of ID proof. Same is Ex.PW45/C (colly). The CDR of mobile no.9891506062 from 01.02.2012 to 10.06.2012 is Ex.PW45/D (colly). The certificate u/s 65-B of Indian Evidence Act relating to the aforesaid CDRs is Ex.PW45/E.
87. PW-46 is Surender Kumar, Nodal Officer, Bharti Airtel Ltd. He produced CDR of mobile no. 9818577393 for the period 15.05.2012 to 10.06.2012. The same is Ex.PW46/A. He produced CAF of the said number which was in the name of Javed S/o Kamruddin. Copy of ID proof was also filed. The record bears seal of the company and is Ex.PW46/B. SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 27 of 37
88. He further produced CAF of the mobile no. 9910412836 which was in the name of Rajpal Singh S/o Latoori Singh. Copy of ID proof was also filed. The record bears seal of the company and is Ex.PW46/C. He further produced CDR of said mobile number for the period from 01.02.2012 to 05.02.2012 and from 15.05.2012 to 10.06.2012. The same are Ex.PW46/D and E.
89. He further produced CDR of mobile no. 9910156864 for the period 15.05.2012 to 10.06.2012. The same is Ex.PW46/F. He produced CAF of the said number which was in the name of Famida W/o Naseem. Copy of ID proof was also filed. The record bears seal of the company and is Ex.PW46/G.
90. Certificate u/s 65-B of Indian Evidence Act in respect of CDRs is Ex.PW46/H. Cell ID Chart is Ex.PW46/I. He also produced Cell ID Chart again which is Ex.PW46/J.
91. In cross-examination, it has come that location of mobile phone no. 9818577393 was of Sunder Nagri, Shahdara at about 1:06 pm and till 2:56 pm of 28.05.2012.
STATEMENTS OF ACCUSED PERSONS
92. Incriminating circumstances appearing in evidence against accused persons were put to them as required u/s 313 CrPC. Accused persons stated that they were innocent and were falsely implicated.
SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 28 of 37 DEFENCE EVIDENCE
93. Accused Javed examined one defence witness. He examined DW-1 Smt. Guddi, his acquaintance. She stated that on 28.05.2012, Javed was suffering from Typhoid and she saw that his father was taking him to doctor in his TSR. She went to the house of Javed and Javed came back from doctor.
94. She was cross-examined generally. She denied all the suggestions of the prosecution.
SUBMISSIONS OF THE PARTIES
95. I have heard Sh. D.K. Singh, learned Addl. PP for the State and Sh. Abdul Sattar, learned Amicus Curiae for accused Salim Khan and Badshah @ Dilshad and Sh. Javed Ali, learned Counsel for accused Javed.
96. Learned Addl. PP argued that prosecution has been able to bring sufficient material on record to prove the guilt of the accused persons. He referred to testimony of PW-10 Rajpal as well as his son PW-8 Kushal Pal. He emphasized that both these witnesses have identified the accused persons in the court. He also pointed out that prosecution has also proved the motive for the crime. He stressed that wife of accused Salim namely Sunita had married him against wishes of the family and the family had severed all the ties with her. However, later on Sunita started demanding her share in the family property which they refused and due to this, accused persons planned attack upon Sh. Rajpal but incidentally killed Veerwati. He prayed for conviction. SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 29 of 37
97. Learned Amicus Curiae for accused Salim and Badshah and Ld. Counsel for accused Javed repelled all these submissions. They argued that prosecution case was demolished at the investigation stage itself when PW-10 Rajpal failed to identify Badshah and Javed. They submitted that Rajpal was giving fake reasons to hide his inability to identify the accused persons. They also pointed out that evidence of PW-8 Kushal Pal was not reliable and he is a planted witness. Regarding motive, learned Counsels contended that prosecution could not establish any motive for the crime. They expressed grave suspicion on the statement of Veerwati Ex.PW2/B8 and submitted that prosecution did not show that Veerwati was in fit condition to give statement. They prayed for acquittal.
98. Learned Counsel for accused Javed has relied upon 2013 [3] JCC 1561 titled Tejinder Singh @ Kaka v. State of Punjab [SC]; AIR 1984 SC 1622 titled Sharad Birdhichand Sarda v. State of Maharashtra; AIR 1952 SC 159 titled Kashmira singh v. State of Madhya Pradesh.
99. I have considered the submissions.
FINDINGS
100. The prosecution was required to prove the ingredients of the offences. On the basis of the submissions of the parties, the following points for determination arise in the present case:
a). Whether accused Badshah and Javed were with accused Salim on the relevant date?
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b). Whether there was any conspiracy between the accused persons?
c). Whether accused Badshah and Javed had gone to the house of the deceased on 28.05.2012 at about 2:00 pm?
d). Whether accused Badshah fired upon PW-10 Rajpal Singh but ultimately hit Smt. Veerwati?
101. All the points for determination are taken up together.
102. As far as death of Smt. Veerwati is concerned, prosecution has proved that it was due to firing incident. Prosecution has proved that her death was homicidal. PM report confirms the said fact. As per the said report, following were the observations:
External antemortem injuries:
The fire arm entry wound could not be commented upon due to signs of partial healing and surgical intervention in oral cavity, however, the track of the wound was discerned. Signs of partial healing were seen as right angle of mouth with blue green contusion around the healed scar, extravasation of blood seen in the inner surface of right side of buccal cavity, labial surfaces and gingival surfaces. Teeth on right side were absent with gingival surface showing extravasation of blood, margins swollen and bony margins feathered. Clot seen in the cavities. Laceration of the left posterior pharyngeal wall, posterior left border of tongue. Multiple petechial haemorrhages seen on the pharyngeal wall, posterior aspect of tongue and epiglottis. Extravasation of blood seen in sterno cleiomastoid muscle on inner aspect with hematoma formation of size 4X3 cm. A bullet measuring 1.3 x [0.9x0.4 cm] base found lodged on left paravertebral muscle at cervical vertebrae 3[C-3] level with under lying fracture of C-2 cervical vertebrae body. The direction of the track of the wound SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 31 of 37 downwards, backwards and towards left side.
Internal examination:
Scalp, skull were NAD, brain was 1232 grams congested and edematous. Neck as mentioned in the injuries with laceration of neck muscle, pharyngeal soft tissues with bullet found lodge with fracture of C-2 vertebrae. On dissection of spinal cord edema and haemorrhagic contusion seen.
103. Thus homicidal death has been proved beyond doubt. Now the task of the prosecution was to prove that it were the accused persons who caused death of Veerwati.
104. Prosecution produced PW-10 Rajpal Singh and his son PW-8 Kushal Pal Singh as eyewitnesses.
105. PW-10 has claimed that two persons had come to his house and wanted to serve some summons upon him but took out pistol from the bag and fired on him. However, the bullet hit his wife Veerwati who was behind him. PW-8 Kushal Pal Singh also claims to have witnessed the incident. He stated that he had also followed his mother.
106. PW-10 claims that he had chased those two persons and saw them talking to third person and, thereafter, all of them fled away. However, PW-8 did not chase any of them. He remained in the house. It has come in cross- examination that he did not lift his mother who was having bullet injuries. It has come that he had not made call to 100 number from his mobile phone. Rather, it was mobile phone of some neighbour. Conduct of PW-8 was not natural. PW-8 SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 32 of 37 was son of PW-10 and he was more physically fit to chase the attackers. The fact that PW-8 did not do so puts his claim of being eyewitness into field of doubt. It appears that he has been made a witness later on. It was also strange that he did not lift his mother and take her to hospital. This conduct is also suspicious.
107. From PCR call record (Ex. PW7/A), it transpires that PW-8 was on the roof at the time of the incident. Thus his claim of having seen the incident gets falsified from the said record. Evidence of PW-8 is not trustworthy.
108. PW-10 could not identify either accused Badshah or Javed in judicial TIP. He has tried to give reasons for not identifying them. However, his cross- examination has exposed the hollowness of his claims. Perusal of cross- examination demonstrates that those reasons are not acceptable. PW-10 did not complain to learned MM about lack of light at the time of TIP of accused Badshah or about receiving threats at the time of TIP of accused Javed. Silence of PW-10 speaks for itself. It shows that these reasons have been stated as afterthought and to cover up his own failure to identify the accused.
109. There is no reason forthcoming as to why TIP was not got done through PW-8 as well. PW-8 has been claiming himself to be an eyewitness. As such, nothing prevented the investigating officer from getting accused persons identified through PW-8 also. This omission is also relevant and goes against prosecution case.
110. When PW-10 had failed to identify both these accused in judicial TIP SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 33 of 37 but later on has identified them in court, value of this identification is not very high. This is particularly so because PW-10 has failed to give any justified reason for not identifying the accused persons in TIP.
111. There is serious doubt about genuineness of statement Ex.PW2/B8 which is statement of Veerwati. The said statement has been purportedly recorded in the hospital by SI Subodh. Prosecution claims that Veerwati was in fit condition at that time to make statement. Prosecution has not examined any doctor to prove the said fact. Nor it is mentioned in the statement anywhere that there was any such declaration by any doctor. It is to be kept in mind that Veerwati had received bullet injury to her mouth. Her teeth were broken. She had injury on the upper lip and inner cavity. Her mouth was badly injured. In these circumstances, it is highly suspicious that she was fit to make statement. There is endorsement of 'fit' in the MLC Ex.PW40/A. However, there is no signature on this endorsement. It has come in cross-examination that when statement was recorded, no doctor was present. Thus, there is considerable amount of doubt about fitness of Smt. Veerwati to make statement. The statement Ex.PW2/B8 is a doubtful document.
112. Even otherwise, if the said statement is considered, still it is not known on what basis Smt. Veerwati stated that accused Shahid @ Soni Khan (apparently referring to accused Salim Khan @ Soni) was behind the assault. She had not seen Salim at the spot. As per prosecution, only Rajpal had chased those two persons and on the way, they talked to the third person who was the so-called SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 34 of 37 Salim. Thus, Veerwati had no basis to allege that Salim was behind the assault. She made reference to some threats given by Salim on telephone to them. These threats were not enough to give impression that he was behind the said attack.
113. Learned Addl. PP referred to some CDRs and submitted that some calls were made to complainant side by the accused Salim and his wife. He also pointed out that some calls were made to PW-10 before he joined the TIP and threats were given to him not to identify accused Javed.
114. As per PW-8, accused Salim used to give threats through mobile phone nos. 9891506062, 9910156864 and one more number. Mobile no. 9891506062 is in the name of Soni S/o Shamim Khan i.e. accused Salim. Mobile no. 9910156864 is in the name of Famida who is relative of accused Salim.
115. As per PW-10, he received threatening messages on his mobile no. 9910412836. This number existed in the name of PW-10 himself. These messages were allegedly received in February 2012. As per PW-10, Sunita came to his house on 16.05.2012 but she was not allowed to enter. She created scene there and called police at 100 number. Sunita and her brother Kushal Pal were taken away by the police officials. PW-10 further says that his relative/nephew Rakender received threats on phone on 17.05.2012 about giving money or else to loose life. PW-8 had given a complaint Ex.PW8/A to the police authorities on 18.05.2012. Various CDRs of various numbers were obtained to show making of calls. Prosecution alleges that threats were given through those calls. SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 35 of 37
116. There is no call recording of any call which would have thrown light on the allegations. Merely from the CDRs, it cannot be said that any threats were given. CDRs only show making of calls. The contents of the calls cannot be proved through CDRs. As far as oral testimony of witnesses regarding threats is concerned, it is to be kept in mind that relations between accused Salim and complainant side were not cordial. It cannot be ruled out that witnesses did not exaggerate.
117. Moreover, it has come in cross-examination of PW-46 that location of mobile phone of accused Javed was of Sunder Nagri, Shahdara at about 1:06 pm to 2:56 pm on 28.05.2012. As per prosecution, incident happened at shortly after 2:00 pm on that day at house of complainant at Sagarpur Extension, Delhi. Both are different places. This also weakens the prosecution case.
118. Weapon of offence has not been recovered. This was serious shortcoming on the part of investigating agency.
119. The entire case of prosecution is based upon identification of accused persons by PW-10 and PW-8. As already noted above, PW-10 had failed to identify accused Badshah and Javed in judicial TIP. He identified them during PC remand and later on in the court. However, such identification is of no value. As already discussed, the reasons given by PW-10 for not identifying accused persons in judicial TIP are not acceptable reasons, therefore, the identification of these two accused in the court is rendered a weak type of evidence. This identification alone is not sufficient to bring home the guilt. SC No. 44388/2015 State Vs. Salim Khan @ Soni @ Shahid & Ors. Page 36 of 37
120. It is an admitted position that PW-10 and PW-8 were having enmity with accused Salim due to his marriage with Sunita against their wishes. Thus, it cannot be ruled out that PW-10 and PW-8 gave evidence with ulterior motives of taking revenge from accused Salim. They being interested witnesses are not above suspicion and their testimonies do not inspire confidence.
121. It is held that prosecution has failed to prove the charges beyond reasonable doubt. Benefit of doubt is given to the accused persons.
122. In view of the above, all the accused persons are hereby acquitted of all the charges. Accused Badshah @ Dilshad be released from JC, if not wanted in any other case. Accused persons are required to furnish bail bonds as per Sec. 437-A CrPC. At request of the accused persons, bonds already furnished by them are accepted further for a period of six months for the purposes of Sec. 437-A CrPC.
123. This court acknowledges assistance rendered by Sh. Abdul Sattar, learned Amicus Curiae for accused Salim Khan and Badshah.
124. Case property is confiscated. It be destroyed as per rules.
125. File be consigned to Record Room.
Digitally signed by SANJAY BANSAL
Announced in open court SANJAY Location:
on 8th day of October, 2018. BANSAL Karkardooma Court
Date: 2018.10.10
15:43:08 +0530
(Sanjay Bansal)
Special Judge (NDPS) / ASJ /
NE / KKD Courts / Delhi.
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