Delhi District Court
S.C. No. 51918/2016 State vs . Sanjay @ Billu & Ors. Page No. 1 Of 34 on 19 November, 2022
DLNW010004792014
Presented on : 24-12-2014
Registered on : 19-06-2014
Decided on : 19-11-2022
Duration : 7 years, 10 months, 26 days
IN THE COURT OF
ASJ/SPECIAL.JUDGE(NDPS)
AT NORTH WEST, ROHINI COURTS, DELHI
(Presided Over by Sh. Vikram)
SC-51918/2016
FIR No. : 257/12
Police Station : Kanjhawala
Under Sections : 302/201/120B IPC
STATE
Vs.
1. SANJAY @ BILLU
S/o Sh. Jai Lal
R/o H.No. 82, Main Road,
Bijwasan, Delhi.
2. MANJEET
S/o Sh. Hardwari Lal
R/o H.No. 102, VPO Bijwasan,
Delhi.
3. SHRI KISHAN ROHILLA
S/o Sh. Kishori Lal
R/o VPO Bijwasan, Delhi.
4. RAM KUMAR
S/o Sh. Rai Singh
R/o Village Sevli, P.O Jakholi,
District Sonipat, Haryana.
S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 1 of 34
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APP for State : Sh. Kumar Sanjay.
Advocate for accused persons Sh. Pradeep Rana
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Offence punishable under : 302,34,201,120B of Indian Penal
Code.
JUDGMENT
(Delivered on 19-11-2022)
1. The brief facts of the case are that on 25.12.2011 at 11.45 p.m, on receipt of a call at control room, vide DD No. 35 A, regarding firing and murder in a barat at Firni road Rani Khera near Devi Mandir, SI Naresh Kumar and HC Naresh Kumar reached the spot where they found blood spread in gali which was already washed with water and there was a piece of human flesh lying on the spot. Near that flesh a used cartridge of 12 bore and an empty cardboard packet of 10 blank fire cartridge, having description "A quality product of aris Gun House Kanpur (India) 10 fox wood extra long high charged", were also lying. Most of the blood had already been washed out prior to reaching of police at the spot and no body was willing to tell anything from the spot therefore it could not be ascertained as who fired and who was injured. SI Naresh called Crime team at the spot and crime scene was inspected. After getting the spot photographed the exhibits i.e. empty cartridges of 12 bore, the empty box of cartridge and the piece of human flesh along with sample of blood in gauze piece, blood stained earth control and plan earth control were seized. After that SI Naresh prepared Rukka and got the FIR registered for offence u/S 336 IPC and 25/27 Arms Act S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 2 of 34
2. After registration of FIR, IO prepared the site plan and recorded statements of members of crime team and discharged them. IO tried to contact the caller of 100 number but his phone was switched off. IO also tried to find out the injured by calling the hospitals nearby but failed to locate the injured. However one secret informer informed that there was marriage of Pooja D/O Satbir in which Barat had come from Bijwasan in which two persons were firing in celebration, with pistol and rifle, and some unknown person was shot at his head after which 2-3 persons from that Barat took that injured to somewhere in a vehicle. On this information IO met and interrogated Satbir Singh i.e. the father of bride, but he claimed ignorance to the incident as he was busy in Barat Ghar making preparation for welcome of Barat. IO also inquired from guests from the Groom side but they also claimed ignorance stating that there were fire cracker bursting in the Barat therefore they never though about any firing. However, IO bound some important guests from Barat by giving notice u/S 160 Cr.P.C and returned to PS and deposited the seized articles in Malkhana.
3. While investigation in this case was going, on 28 th Nov. 2012 one Sh. Rajinder Kumar filed a missing report of his son Sunil Kumar stating that on 25.11.2012 his son had went to Rasulpur to attend marriage and contribute Kanyadan and has not returned since then. Sh Rajender had no suspicion on anyone at that time. Later on 29.12.2.12 FIR no. 262/12 u/S 363 IPC was registered. On the same date i.e. 29.11.2012, IO sent the Exhibits, collected at spot, to FSL.
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4. On 01.12.2012 when IO was investigating the matter at the spot he got a secret information that the persons who had fired the bullet in the barat on 25.11.2012 are either, Sanjay who is uncle of Groom, or Manjit who is relative of groom, both from Bijwasan, or Ram Kumar of Sevali Distt. Panipat. Secret informer also disclosed that the victim of the incident is one Sunil resident of Ranikhera, who is missing since the date of incident. Secret informer also told IO that those three persons took Sunil to some place in Innova car of Ram Kumar. IO shared this information with SHO and on instruction a raiding team was prepared and they visited house of Manjit at Bijwasan where IO met one Kuldeep who told that Manjit, who is his younger brother, had gone in Barat of Aman at Rani Khera on 25.11.2012 and have not returned since then. When insisted by IO Kuldeep told that he has heard about firing incident in Rani Khera which happened due to accidental firing while loading the gun of his uncle Sanjay @ Billu. On this IO went to house of Sanjay but he was not there. After that the team went to the house of Ram Kumar at Sevali village where they met his wife Sunita who told that his husband had gone to attend marriage at Bijwasan in his Innova car and has not returned since then.
5. Meanwhile on 14.12.2012 Sh. Rajender Kumar the father of missing boy Sunil came to the police station and gave an application stating that on 25.11.2012 at about 8.00 pm he had called his son Sunil on phone an Sunil had told him that he is in Ranikhera. When he did not return Rajender went in search of his son and when he was going on the way, where Barat was coming, he saw three persons firing celebrity shots and one bullet S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 4 of 34 hit on the head of a young boy. Sh. Rajender Could not see and identify that boy due to heavy crowd but witnessed that those three persons picked that boy and shifted in an Innova Car and took him somewhere. Sh. Rajender also stated that he witnessed a lot of blood and a piece of human flesh at the spot. He tried to find his son but could not and as he was frieghtned because of firing incident he went back home. Sh. Rajender also stated in application that due to fear he did not tell about the firing incident to anyone and also did not mention in his first complaint but now he is sure that the boy who suffered bullet injury was his son who has been taken to some unknown place in unconscious state. Sh. Rajender also stated that he had seen the face of those persons and can identify them if they are produced before him.
6. Since the missing report and firing incident were connected, this complaint dated 14.12.22 was marked to IO SI Naresh Kumar and the FIR of kidnapping was clubbed with this investigation and at this moment section 307 IPC was added. On next day i.e. 15.12.2012 IO interrogated the videographer Bhupesh who confirmed the IO that Sanjay, Ramkumar and Manjit were firing celebrity shots and one bullet hit the head of one boy and three of them immediately put that boy in an innova car after which Sanjay Called someone by saying Doctor, after which one man came and joined them in innova car and they left. Bupesh also told IO that one more person had come to him and took away the memory card and video cassette from his camera and threatened hims not to disclose about the incident. Thereafter, on 16.12.2012, accused Shir Kishan was arrested and his disclosure statement was recorded wherein he disclosed that S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 5 of 34 he runs a chemist shop on rent in the building of Manjit and on 25.11.2012 at about 10.15.-10.30 pm when he had separated from barat or drinking water, Sanjay Manjt and Ramkumar carried one boy in their hand and put him in the boot of Innova car and they told him that this boy had accidentally got shot in celebrity firing therefore he sat with them in the car. ShriKishan also disclosed that they told him that boy has died as bullet had hit on forehead therefore they planned to cremate the boy to save themselves from criminal prosecution and then they went towards Badaut and burned the body of boy with petrol at a field. Thereafter section 302 was added and investigation was taken over by ACP Bhawana. However, on the same date accused Shree Kishan made supplementary disclosure that after seeing the dead body he had fainted and when he regained consciousness he was told by Sanjay and Manjit that they have burnt the body in fields. At the time of production before Ld. MM IO moved application for TIP which accused refused to participate. Subsequently, on 22.12.2012, accused Sanjay @ Billu and Manjeet were also arrested. In their disclosure they stated that they threw the dead body of victim in a canal near Kandhla Market and burned the blood stained clothes and mat of car. They were produced before Ld. MM and when IO moved application for TIP both refused to participate. During police remand IO seized a 12 bore breech loaded gun double barrel licensed rifle and a revolver from house of accused Sanjay. After that IO tried to find out if any dead body was recovered but got no positive information. Thereafter IO along with accused persons went to house of accused Ram Kumar at village Devali where a brown Innova car was parked which was pointed out by S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 6 of 34 accused Sanjay that it is the same innova in which they had taken the boy and disposed. Wife of accused Ram Kumar was also there who told that innova car belongs to her husband Ram Kumar but he is not there. The IO, then, seized the innova car. Ram Kumar could not be arrested despite various raids.
7. On 05.01.2013, accused Ram Kumar moved an application for anticipatory bail which was granted to him by Ld. Sessions Court and on 10.01.2013, he was formally arrested in the present case. All the four accused persons were asked to present themselves for TIP for which all of them refused. Sh. Rajinder, father of deceased Sanjay identified the Innova car of Ram Kumar parked in P.S as the same in which the accused persons had fled away with dead body. The seized rifle/gun and recovered empty cartridge were sent/deposited with FSL on 04.01.2013. After completion of investigation, charge sheet under Sections 302/201/120B IPC and Section 30 Arms Act was filed against the accused persons in the present case.
8. After compliance of Section 207 Cr.P.C, the charge-sheet was committed to this Court by Ld. MM. At that time as complainant had raised objections in the investigations citing some lapses further investigation was carried and supplementary challan was filed and committed to this court.
9. Vide order dated 25.07.2016 of my Ld. Predecessor, charge under Sections 302/34 IPC was framed against accused Sanjay @ Billu, Manjeet and Ram Kumar and a separate charge under Section 201/120B IPC was framed S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 7 of 34 against all the accused persons to which they pleaded not guilty and claimed trial.
10. In order to prove its case, the prosecution has examined in total 20 witnesses.
POLICE WITNESSES 10.1. PW-1 Sh. Krishan Chandra Varshney, the Deputy Director cum Incharge from Regional Forensic Science Laboratory, Chanakyapuri, New Delhi, had examined the exhibits i.e. the recovered 12 bore cartridge and double barrel gun of accused Sanjay. He proved the report Ex PW 1/A as per which the recovered cartridge from spot was fired from gun of accused.
10.2. PW-2 Ms. L. Babyto Devi is the Assistant Director (Biology) from FSL, Rohini, Delhi. She had examined the exhibits of this case and proved the detailed report prepared by her as Ex.PW-2/A, the genotype analysis of allelic data as Ex.PW-2/B and the detailed report dated 16.01.2013 prepared by her as Ex.PW-2/C. 10.3. PW-3 Mr. Indersh Kumar Mishra is the Assistant Director (Biology) from FSL, Rohini, Delhi. He had examined the exhibits of this case and proved the detailed report prepared by him in this regard as Ex.PW-3/A and the detailed report pertaining to serological examination of exhibits dated 25.02.2013 as Ex.PW-3/B. He further deposed that after examination, the remnants of exhibits were sealed with the seal of IKM, FSL, Delhi and were sent to DNA unit for FSL for S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 8 of 34 further examination.
10.4. PW-4 Mr. Manish Khurana is the then Ld. ACMM who proved TIP proceedings and record thereof as Ex PW 4/A to Ex PW 4/J. PW-4 deposed that accused persons had refused to participate.
10.5. PW-5 ASI Rajender Kumar is the duty officer. He received DD No. 35 A regarding firing and murder in a barat at Rani Khera Near Devi Mandir. He proved the copy of DD No. 35A as Ex.PW-5/A. He had also recorded the FIR of the present case on receipt of rukka brought by Ct. Naresh on the same night at 1.40 a.m and proved the computerized copy of present case FIR as Ex.PW-5/B. He proved his endorsement on the said rukka as Ex.PW-5/C. He had also recorded the FIR bearing No. 262/12 under Section 363 IPC on receipt of a rukka brought by SI Naresh Kumar on 29.12.20212 at 8.35 p.m and proved the computerized copy of the said FIR as Ex.PW-5/D. He proved his endorsement on the said rukka as Ex.PW-5/E. 10.6. PW-6 Inspector Mahesh Kumar is the Draftsman from P.S. Crime Branch. He had prepared the scaled site plan on the basis of rough notes taken by him on 25.02.2013. He proved the scaled site plan as Ex.PW-6/A. 10.7. PW-7 SI Somna is the duty officer. PW-7 deposed that on 28.11.2012 he recorded the mising report of Master Sunil as informed by Mr. Rajender vide DD No. 13A and proved the attested copy of DD No. 13A as Ex.PW-7/A and the relevant S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 9 of 34 entry in DD register as Ex.PW-7/B. 10.8. PW-8 Ct. Raj Kumar had joined investigation of the case with IO SI Naresh Kumar. He proved the pointing out memo memo prepared by IO qua disposing of the dead body by accused Shree Kishan along with four other associates as Ex.PW-8/A. He also proved the arrest and personal search memos of accused Shree Kishan as Ex.PW-8/B and Ex.PW-8/C respectively. He further proved the disclosure statement of accused Shree Kishan as Ex.PW-8/D. 10.9. PW-9 Sh. Bhupesh Kumar is the photographer. He deposed that on 25.11.2012 he was called to shoot the photographs and videograph of the marriage function of Mr. Aman Rana in vilage Bijwasan. He deposed that on that day between 9.00 p.m to 10.00 p.m, the barat of Aman Rana was proceeding towards the venue in village Bijwasan. He was busy in shooting photographs and recording videos of the function. When the barat of Aaman Rana was in the street, another barat came in the same street from opposite side. The people were dancing in that barat coming from opposite direction and some people were firing in that barat. He did not know the persons who were firing with their firearms in that barat. He also saw that 4-5 persons of that barat were beating one boy aged 16-17 years and that boy fell down in the street in unconscious state. When he reached at the place where injured was lying, one person came all of sudden and snatched his camera with which he was taking the photographs. He did not know the person who had snatched his camera. The people started running here and there and there was S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 10 of 34 situation of chaos due to incident of firing and beating of that boy. He also ran away from the spot.
He further deposed that he knew all the accused persons as they reside and work in the same area where he reside. He identified the accused Sanjay @ Billu and Shri Kishan being known to him and deposed that he did not know the names of other two accused persons although he knew them by their faces.
He identified the accused Sanjay @ Billu, Shri Kishan, Manjeet and Ram Kumar present in the court and deposed that none of the accused persons who were present in the Court on that day are the culprits who had fired while participating in the barat.
He was cross-examined by Ld. Addl. PP for the State as he was resiling from his previous statement. However nothing incriminating came in his cross examination by state except the fact that accused Sanjay and Manjeet are relatives of groom Aman.
10.10. PW-10 HC Naresh Kumar had accompanied the IO SI Naresh during investigation. He proved the seizure memos of the exhibits list from the spot as Ex.PW-10/A and Ex.PW-10/B and sketch of the cartridge as Ex.PW-10/C. He further deposed that he had got the FIR registered and handed over the copy of FIR and original rukka to the IO.
He also correctly identified the case property produced in S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 11 of 34 the Court and proved the same as Ex.P-1 to P-3 being the small cemented material i.e. earth control, fired empty cartridge and empty packet of cartridge respectively.
10.11. PW-11 Ct. Hansraj is the photographer of Crime Team, Outer District, Delhi. He had clicked 12 photographs of the spot and proved the same as Ex.PW-11/A1 to Ex.PW-11/A12 and negatives of the said photographs as Ex.PW-11/B1 to Ex.PW-11/B12.
10.12. PW-12 Inspector Anil Kumar is the Incharge, Crime Team. He deposed that on receipt of information from control room, he had inspected the spot alongwith Ct. Hansraj, photographer and HC Ram Kumar, finger print proficient and he found blood was lying on the road and one piece of flesh was lying there. Ct. Hansraj took 12 photographs of the spot. He also found one empty cartridge and packet of empty cartridge at the spot. He had prepared the report of crime scene and proved the same as Ex.PW-12/A. 10.13. PW-13 ASI Anoop Singh is the MHC(M) from P.S. Kanjhawala. He had proved the relevant entries made by him in register No. 19 qua deposit of case property and exhibits/parcels of the present case with him as Ex.PW-13/A to Ex.PW-13/H. He deposed that during the period exhibits remained in his custody, same were not tampered with by anyone and that on 10.01.2013, the Innova car bearing No. HR 99 NK 5622 was released on superdari to its registered owner.
S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 12 of 34 10.14. PW-14 Ct. Manoj had accompanied the IO during investigation. He correctly identified the accused Sanjay @ Billu and Manjeet present in the Court on that day.
This witness was cross-examined by Ld. Addl. PP for the State as he was resiling from his previous statement. During cross-examination by Ld Addl PP for the State, he admitted that his statement was recorded by IO under Section 161 Cr.P.C and that at the time of recording the statement by IO, he had stated that the accused Sanjay @ Billu and Manjeet were produced in the Court of Ld. MM in muffled face. He also admitted that accused Sanjay @ Billu and Manjeet were also arrested in his presence and he had put his signatures on the arrest memos of accused Sanjay @ Billu and Manjeet proved the same as Ex.PW- 14/A and Ex.PW-14/B respectively. He also proved the personal search memos of accused Sanjay @ Billu and Manjeet as Ex.PW- 14/C and Ex.PW-4/D respectively. He also proved the disclosure statement of accused Manjeet as Ex.PW-14/F. 10.15. PW-15 HC Ashok had witnessed the arrest of accused Ram Kumar and proved the arrest memo and disclosure statement of accused Ram Kumar as Ex.PW-15/A and Ex.Pw- 15/B respectively.
10.16. PW-16 Inspector Neeraj Kumar had prepared the charge sheet on being marked to him by ACP Bawana on 08.01.2014 and filed the same before the Court of Ld. MM.
10.17. PW-17 ASI Kailash Chand had joined the S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 13 of 34 investigation with IO. However, as he was resiling from his previous statement, he was cross-examined by Ld. Addl. PP for the State.
During cross-examination by Ld. Addl. PP for the State, he deposed that he could not say if the house from where Innova car was taken in possession at village Sewali belonged to Ram Kumar. He admitted that the temporary registration number of Innova car was HR 99 NK 5622 and that the said car was in working condition and was brought to P.S Kanjhawala and deposited. He also admitted that seizure memo was prepared and he had signed the same. He proved the seizure memo as Ex.PW- 17/A and admitted that pointing out memo of the canal was got affected at the instance of Sanjay and Manjeet vide memos Ex.PW-17/C and Ex.PW-17/C. This witness correctly identified the accused Sanjay, Ram Kumar and Manjeet present in the Court on that day.
10.18. PW-18 Mr. Pradeep is the public witness. He deposed that during November, 2012, he was dealing in real estate and was also running a Dharamkanta at Tikri Industrial Area. He further deposed that it was 25th November of 2014 or 2015 when there was marriage of daughter of Satbir @ Satte and that the said marriage had come from Bijwasan and barat had arrived in the late night at about 10.00 p.m. They were seeing the barat from roof of their house. Some one had suffered bullet injury, the person who had suffered bullet injury was dancing in the marriage and he was aged about 24-25 years. He further deposed that the firing was done by barati. The injured was taken S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 14 of 34 in a motor vehicle perhaps Innova by the baratis who were dancing in the barat. The person who had suffered bullet injury belonged to his village and blood of the injured spread in front of his house, then 2-3 persons threw water on the said blood to clean the same in front of his house. Then he went inside his house and dialed number 100 to call the police. The police came promptly within 30 minutes and recorded his statement. He further deposed that he was inquired by the police near Heritage School, Begumpur after a gap of about 7-8 months.
On leading question by ld. Addl. PP qua the date of occurrence the witness admitted that the incident had taken place on 25.11.2012.
10.19. PW-19 SI Naresh Kumar is the investigating officer. He had prepared all the documents. Besides other documents proved by PW-10 HC Naresh, PW-19 proved rukka EX PW 19A, site plan Ex PW 19B, statement of Rajender in FIR no. 262/2012 as EX PW 19/C and the rukka of that case Ex PW 19/D. PW-19 on secret information traced the photographer and examined him through which initially accused Shri Kishan was arrested. PW-19 proved the arrest memo of accused Shri Kishan as Ex PW 19/E and on the basis of his disclosure statement PW- 19 got the information about other accused persons. PW-19 deposed that on 22.12.2012 he went to village Sewali, District Sonepat Haryana where he arrested accused Sanjay @ Billu and Manjeet vide memos Ex PW 14/A & PW 14/B. PW-19 had S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 15 of 34 recorded the disclosure statement of accused Sanjay @ Billu and Manjeet Ex PW 14/E & PW 14/F and after taking accused Sanju on police remand seized the DBBG from house of accused Sanjay vide seizure memo Ex PW 19/G. The accused persons had refused to participate in TIP, therefore, accused persons through disclosure statement led PW-19 to the spots where body was disposed and the blood stained clothes and mats were burned and proved those pointing out memos Ex PW 19 H & Ex PW 19/I. PW-19 had deposed that he recovered a 12 bore used cartridge from the spot on 25.11.2012. However, in seizure memo the size of cartridge was mentioned as 32 bore, therefore, the State considered the testimony of PW-19 as hostile to the case of prosecution and cross examined PW-19 on this point and in cross examination, PW-19 admitted that he had recovered empty cartridge of 32 bore and not of 12 bore. PW-19 identified the case properties Ex P-1, Ex MO-1, Ex P-2 & Ex P-3. He also identified the seized innova car as Ex MO-2.
10.20. PW-20 Sh. K.P.S. Malhotra is the then Additional DCP, Cyber. He deposed that on 17.12.2012, he was posted at ACP Sub-Division Bawana and had taken up the investigation of present case from the earlier IO SI Naresh Kumar. He deposed that on the same day, accused Shri Kishan Rohilla was in custody of SI Naresh and his statement had already been recorded and other co-accused names had already surfaced in investigation and efforts for arrest of other accused persons were made.
He further deposed that on 22.12.2012, SI Naresh had S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 16 of 34 arrested the co-accused namely Sanjay @ Billu and Manjeet from Sewali, Haryana and efforts were made to trace the dead body. After their arrest and disclosure, SI Naresh was sent to Shamli for search of dead body and local inquiry regarding the whereabouts of dead body. Further, the weapon of offence and the vehicle used in the offence were seized by SI Naresh Kumar and were sent for FSL examination.
11. With the examination of this witness, the prosecution evidence was closed.
12. Thereafter, the statements of accused persons under Section 313 Cr.P.C were recorded wherein when all the incriminating evidence was put against them, they pleaded their innocence and stated that they had not committed any offence and took the defence that nothing incriminating was recovered from their possession or at their instance and the alleged recovery has been planted upon them by the police and that they had been falsely implicated in the present case and that during custody, their signatures were obtained on various blank/printed proforma and subsequently, the same were converted into various incriminating memos. They never made any disclosure statement at any point of time and the same was recorded by IO as per his choice and convenience and they never pointed out any place of incident. However, they did not lead any evidence in their defence.
13. I have heard arguments from both the sides and have carefully gone through the entire record.
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14. Ld. Addl. PP for the State argued that although the eye witness in this case have turned hostile but there are sufficient circumstances which lead to the conclusion that the accused Sanjay, Shrikishan and Manjeet were firing celebrity shots in the barat and they were careless in such firing and their act was imminently dangerous to their knowledge that in all probabilities any person in that barat (where there was a huge crowd) could get fataly injured and infact boy Sunil received a fatal bullet shot on his forehead. Ld. Addl. PP further points to the circumstances that recovered used shell of 12 bore cartridge was found to be fired from double barrle 12 bore licenced gun of Sanjay. Ld. Addl. PP further points to the fact that the blood sample collected on the gauze and on earth, on DNA analysis matched with the mother of deceased which confirms that the boy who suffered bullet injury was the son of Rajender Kumar, who had filed missing complaint of his son which later on investigated with the present FIR. Ld. Addl. PP further points to the circumstance that initially when IO got the information regarding the persons who were firing celebrity shots in barat the raids were conducted by IO in the house of accused Sanjay, Manjeet and Ram Kumar and all three of them were missing since the date of marriage i.e. 25.11.2012 which shows that accused persons had made their best to destroy all the evidence of the boy from the spot as well as from Innova car of accused Ram Kumar. Therefore, the circumstances sufficiently proved that the accused Sanjay, Ram Kumar and Manjeet are guilty for offence under Section 302 IPC as it was a murder under Section 300 fourthly and to save themselves they have destroyed the evidence i.e. the dead body S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 18 of 34 and the blood stains in the Innova car. Ld. Addl. PP further submitted that so far as the minor variations/contradictions are concerned that may not be very much material in the overall circumstances of the case and the same may not be deemed to be fatal for the prosecution case. Ld. Addl. PP stressed that the defence would try to take advantage of one mistake in the seizure memo of the cartridge as IO has inadvertently written it as .32 bore in place of .12 bore but the other documents i.e. the rukka, MHCR register, FSL Form and all other documents show that the seized cartridge was of .12 gauze.
15. Ld. Defence Counsel has argued that the dead body was not recovered in this case and all the accused persons are facing charges under Section 302/34 IPC except accused Shri Kishan. Further, all the accused persons are also facing charges under Section 120B/201 IPC and the factum of death in this case has not been proved by prosecution. Further, that the case of prosecution was holding its axis on the very basis of the statement of sole eye witness PW-9 Sh. Bhupesh Kumar (photographer), however, he did not support the case of prosecution.
16. He further argued that all the accused persons refused for conducting the TIP proceedings on the ground that their faces had already been shown to 3-4 persons and their pictures had already been shown earlier.
17. He further argued that as per FSL (Biology) report Ex.PW- 2/C, no traces of blood were found in the Innova car bearing No. S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 19 of 34 Temp HR 99 NK 5622.
18. It is further argued that how a 12 bore gun that was seized came to came to match with empty cartridge of 32bore that has been seized by the police official from the spot. Further, PW-19 deposed in his examination that he seized 32 bore cartridge from the spot and not 12 bore which clearly casts doubt as to how cartridge of 12 bore was sent to FSL for analysis.
19. He further argued that the whole prosecution story had its very own basis on the much delayed statement of PW-9 Sh. Bhupesh who was claimed to be eye-witness by investigating agency but he has given altogether different deposition before the Court and has not supported the case of prosecution which itself casts doubt on the basic firmness of the prosecution case. Further, that there is nothing on record to connect that the seized bullet is a bullet that was fired from the gun that has been seized from the possession of accused. There is no nexus or any kind of link that can be established in order to connect the alleged weapon of offence with the alleged seized empty cartridge. Further, DNA could not be generated from the sticky material i.e. piece of flesh that was seized from the crime spot. Also, the father of the deceased expired before his examination-in-chief could be recorded in the Court.
20. Further, it is submitted that the cardinal principle of criminal law for the offence of murder is that to prove the case against the accused, the prime ingredient which is required to be proved by investigating agency is that they have to establish the S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 20 of 34 'motive' for committing he offence. However, in the present case, there is no motive available on record against the accused for committing the offence as alleged by the prosecution agency.
21. In support of his arguments, Ld. Defence Counsel relied upon the following case laws :
(i) Surender Pal Jain v. Delhi Administrator 1999 (Suppl3) SCC 681;
(ii) Jaharlal Das Vs. State of Orissa MANU/SC/0586/1991;
(iii) Tika Vs. State of U.P. AIR 1974 SC 155
(iv) Jaswant Singh v. Haryana 2000 1 JCC SC 140
(v) Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan MANU/SC/0468/2012 21.
22. It is, therefore, plead by ld. Defence counsel that keeping in view the aforesaid submissions as well as material contradictions in the testimonies of prosecution witnesses in the present case, the accused persons are liable to be acquitted of all charges as the prosecution has failed to prove its case beyond all reasonable doubts.
FINDING
23. When the matter was investigated and even when the charge sheet was filed, it was a case based on the statements of the eye witnesses i.e. photographer Bhupesh Kumar who is examined as PW-9 and on the statement of Rajender the father of victim. During investigation both of them had stated that they had seen three persons firing celebrity shots in the barat in which S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 21 of 34 one boy had injured and both of them had claimed that they can identify those persons who were firing. It is for this reason after arrest of accused persons, the IO applied for TIP of all the accused persons to which all the accused refused to participate. Unfortunately Sh. Rajender, father of deceased, expired before he could be examined and PW-9 Bhupesh turned hostile. PW-9 in his examination rather brought a new story that there was one more barat going at the spot and the firing incident had occurred in that barat and some persons from that other barat came to him and forcibly took away the memory card and the cassette from his video camera and threatened him not to disclose about the incident. The cross examination of this witness by State has not lead any where. All the persons were known to him as they are relatives of Aman Rana , the groom, PW-9 refused that he had seen accused Sanjay, Ram Kumar and Manjeet in that barat. Therefore, with PW-9 turning hostile the case rests on the circumstantial evidence.
24. The circumstances relied by prosecution could be summed as follows:
(a) It was marriage of Aman Rana and accused Sanjay, Manjeet and Ram Kumar, being relatives of Aman Rana, were present in barat.
(b) There were celebrity fire going at the spot and empty cartridge box of .12 gauze shows that at least ten rounds were fired and one used shell of .12 gauze was lying at the spot.
(c) There was blood spread all over which was tried to be washed away and alongwith one used cartridge and empty cartridge box, a piece of human flesh was lying on the spot which S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 22 of 34 itself is conclusive enough to prove that some person had suffered fatal gunshot during that celebrity firing.
(d) The recovered .12 gauze used cartridge, after forensic analysis, was found to have been shot from the licensed double barrel breech gun of accused Sanjay.
(e) Accused Sanjay, Ram Kumar and Manjeet were missing since the date of incident.
(f) The DNA analysis proved that the piece of human flesh recovered from the spot was of son of complainant Rajender as the DNA matched with his wife namely Sunita Devi.
(g) The victim i.e. sone of Rajender and Sunita was never found out after 25.11.2012.
LEGAL POSITION AS TO THE CASES BASED ON CIRCUMSTANTIAL EVIDENCE
25. In Sunder @ Lala and Ors. Vs. State 2009 VII AD (Delhi) 615 it was held as under:
" 29. It is settled law that circumstances play very important role in the appreciation of evidence. The conduct of witnesses is a very important facet to determine their creditworthiness. "
As evidence, there is no difference between direct and circumstantial evidence. The only difference is in that as proof, the former directly establishes the commission of the offence whereas the latter does so by placing circumstances which lead to irresistible inference of guilt. (Dalpat Singh Versus State of Rajasthan 2005 Cr LJ 749 (Raj) (DB)). The evidence has not to be considered merely as a number of bits of evidence, but the whole of it together and the cumulative effect of it has to be S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 23 of 34 weighed. (Dukhram Nath Vs. Commercial Credit Corpn Ltd. AIR 1940 Oudh 35, (1939) OWN 1114). No distinction has, therefore, to be made between circumstantial and direct evidence. (Miran Baksh Vs. Emperor AIR 1931 Lah 529, 32 PLR 461; Thimma Vs. State of Mysore (1970) SCC (Cr) 320). The court must satisfy itself that the cumulative effect of the evidence, led by the prosecution, establishes the guilt of the accused beyond reasonable doubt. (Shanker Bhaka Narsale Vs. State of Maharashtra AIR 1972 SC 1171, (1972) UJ 811 (SC); Chanan Singh Vs. State of Haryana AIR 1971 SC 1554).
26. In Padala Veera Reddy v State of AP, AIR 1990 SC 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Shivu & Anr. v R. G., High Court of Karnataka, 2007 Cr LJ 1806 (SC)) S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 24 of 34
27. In Raju Vs. The State by Inspector of Police - AIR 2009 SC 2171, as regards circumstantial evidence, the Hon'ble Apex Court observed as under:
"7. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.
28. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
29. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 25 of 34
30. A reference may be made to a later decision in Sharda Birdichand Sharda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that, "onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must' or 'should' and not 'may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
31. In Anil Kumar Singh Vs. State of Bihar (2003) 9 Supreme Court Cases 67 it was held as under:
"8. It is well settled that in order to base a conviction on circumstantial evidence, each and every piece of incriminating circumstance must be clearly established by reliable and clinching S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 26 of 34 evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than the one of guilt of the accused and the circumstances cannot be explained on any hypothesis other than the guilt of the accused. The court has to be cautious and avoid the risk of allowing mere suspicion, howsoever strong, to take the place of proof. A mere moral conviction or a suspicion howsoever grave it may be cannot take the place of proof "
32. In the back drop of the legal position as to criminal cases based on circumstantial evidence the different important aspects of the case/incriminating circumstances appearing against the accused are being examined as follows:
Presence of accused persons at Barat.
33. Although Pw9 has been declared hostile as he did not deposed about incident in the way prosecution wanted to, but his testimony proves that he was hired to cover the marriage of Aman Rana of village Bijwasan whose barat has was at the spot at the time of firing incident. Testimony of Pw9 also proves accused Sanjay @ Billu and Shri Kishan are known to him and in his cross examination by State Pw9 revealed that Aman Rana, the groom, is nephew of accused Sanjay @ Billu and accused Ram Kumar is brother in law of accused Sanjay @ Billu. Pw9 has, however, claimed that there was another barat coming and firing incident occurred in that barat. The defence chose not to put any question to Pw9 therefore even if Pw9 has been declared hostile, from his employment for covering the barat, knowledge of relation and acquaintances with accused Sanjay and Shri Kishan, the facts brought on record that it was marriage of Aman Rana and accused Sanjay @ Billu is uncle of Aman Rana become S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 27 of 34 relevant evidence and admissible. Pw9 has however shown his ignorance about the presence of accused persons in the Barat.
34. The deposition of Pw9 about the occurrence of incident in another barat, however, appears to be his desperate attempt to mislead the prosecution because Pw18 Mr. Pradeep who had made call at 100 no. did not depose about any other barat nor the defence brought any such fact in the cross examination of Pw18.
35. There is no direct evidence on record to prove that accused Sanjay @ Billu or the other accused persons were present in the Barat of Aman Rana. However, accused Sanjay @ Billu owned a licenced 12 bore double barrel breech loading gun which was seized during investigation. This gun was sent to FSL for examining if the 12 bore cartridge recovered from the spot was fired from the same i.e. the gun of accused Sanjay. The FSL report Ex.Pw1/A proves that the cartridge recovered from the spot was fired from the DBBL gun of accused Sanjay.
36. This report is attacked by the defence on the the ground that the IO had not seized 12 bore cartridge but 32 bore as it is mentioned in seizure memo Ex.Pw 10/B. Ex. Pw10/B is the seizure memo of the empty cartridge recovered from the spot and the description of the cartridge mentioned in memo is "32 bore empty cartridge in which HGH (encircled) blank fire, A quality product KF (in square) India, fore wood." This cartridge was seized by IO Pw19 which at the time of seizure was witnessed by S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 28 of 34 Pw10. Therefore the seizure memo was proved by Pw10 and Pw10 as per the memo deposed that IO had seized cartridge of 32 bore. When Pw19 was examined he deposed about seizing cartridge of 12 bore but did not refer to the seizure memo as it was, alongwith some other documents, already proved by Pw10. Because there was difference in testimony of IO with respect to bore size of cartridge in evidence and seizure memo, Ld Addl PP cross examined the IO and IO admitted that from the spot he had seized cartridge of 32 bore not 12 bore.
37. There is a problem in accepting this testimony of IO that he had seized the cartridge of 32 bore and not 12 bore. As per record except seizure memo, in all other documents prepared at the spot, where the cartridge is mentioned, it is 12 bore not 32 bore. It is 12 bore in Rukka Ex.Pw19/A prepared on 26.11.2012 before 1.10 AM when it was sent for registration of FIR. It is 12 bore in PCR Form no.1 (an admitted document wide statement dated 21.10.2016) which records that at the spot "KHOON KE DHULE HUE NISHAN MILA HAI. 1 KHALI KHOL 12 BORE KA MILA HAI YE PATA NAHI GOLI KISKO LAGI HAI ACP AND CRIME TEAM BHEE MOKA PAR HAI 26/11/2012 02:12:26 MAUKA SE SABHI STAFF JA CHUKA HAI". This is the record of closure of call by PCR.
38. In scene of crime visit report Ex.Pw12/A also Pw12 has mentioned about cartridge of 12 bore not 32 bore.
S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 29 of 34
39. All the exhibits were deposited in the malkhana on 26.11.2012 itself. Few Exhibits i.e. Gauge piece, blood stained earth control and the piece of human flesh were sent to FSL on 29.11.2012 itself and as per entry Ex.Pw13/C the seized cartridge and the recovered DBBL were sent to FSL on 07.01.2013 vide road certificate Ex.Pw13/G which were deposited in the FSL vide acknowledgment Ex. Pw13/H. Since it was written in seizure memo as 32 bore the register no. 19 at entry Ex.Pw13/A the record of seized cartridge is also of 32 bore as it reproduces the contents of seizure memo. However, in the FSL report the cartridge which was examined was of 12 bore.
40. It is difficult to ascertain if it was a deliberate mischief played by IO SI Naresh Kumar or a bonafide and inadvertent mistake, in recording the size of empty cartridge as 32 bore in place of 12 bore. There was an opportunity to clear this out when PW 19 was examined. However, in cross examination instead of clarifying from IO, the State insisted that the cartridge recovered at the spot was of 32 bore. IO had deposed about recovery of 12 bore cartridge but State suggested that it was of 32 bore to which IO agreed.
41. There could have been conclusiveness with respect to the used cartridge found at the spot with the ownership of the gun i.e. the accused, however, that was tampered from the very beginning when IO, either for his deliberate mischief or for stupid inadvertence, mentioned the size of cartridge seized as 32 bore in place of 12 bore. This could have been cured during examination S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 30 of 34 of IO by calling for explanation and referring to other documents viz. the rukka Ex PW 19A, crime team report Ex PW 12/A and PCR form-1 Ex PX-1. However, instead of bringing the clarification on record it was confirmed by the State that IO had seized used cartridge of 32 bore from the spot when ld. APP suggested the IO in cross examination.
42. Hence the only piece of evidence, Ex.Pw1/A, which could have connected the accused Sanjay through his DBBG with the cartridge recovered at spot was rendered useless because of the difference of seize of the cartridge in seizure memo Ex.Pw10/B. There is no other evidence on record to establish the presence of accused Sanjay @ Billu at the spot. As against other accused there was nothing, except disclosure statements, from beginning.
43. So far as other circumstances are concerned, the only fact which is proved by the prosecution is that the victim was the son of the complainant Rajender, as in the FSL result of DNA comparison, Ex PW 2/A, DNA from the blood stained gauze lifted from the spot and from blood sample of mother Sunita were found matching.
44. No incriminating material was found from the Innova car of accused Ram Kumar to establish the shifting of victim from the spot and nothing was recovered from places which were allegedly pointed out by accused persons. The circumstance as to accused were not found at their residence when police visited S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 31 of 34 looses its relevance when the initial connection of accused Sanjay @ Billu with the recovered cartridge got severed. Rest of the circumstances have no witness except the confession statements of accused persons through which nothing has been recovered during investigation to make those statements admissible in evidence.
ORDER
45. This being the background, I hereby hold that in so far as the accused accused persons are concerned, the circumstances reflected from the material on record do not stand conclusively established. The facts are also not consistent only with the hypothesis of the guilt of the accused. There is nothing on record to definitely establish the presence of accused persons in the barat. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the guilt of the accused persons. The materials brought on record by the prosecution are insufficient so as to hold that each or any of the accused was guilty beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused persons. Crucially, the material and evidence on the record do not bridge the gap between "may be true" and must be true" so essential for a court to record a finding of guilt of an accused, particularly in cases based on circumstantial evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused persons, beyond reasonable doubt and hence, benefit of doubt is being given to S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 32 of 34 them who are acquitted of the offences under section302/34 and 201/120B of Indian Penal Code, as charged.
46. Before I end, I may observe that in the cases of Dayal Singh & Ors. vs State Of Uttranchal in Criminal Appeal No.529 of 2010 decided on 3.8.2012 and in the case of State of Gujarat Vs. Kishanbhai Etc. in Criminal Appeal No. 1485/2008 decided on 7.1.2014, the Hon'ble Apex Court has obligated upon the Trial Courts to bring on record all the acts of omissions and lapses committed by the investigating officers etc. while observing that ".......Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the concerned official may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability. We also feel compelled to require the adoption of some indispensable measures, which may reduce the malady suffered by parties on both sides of criminal litigation......".
47. In terms of the aforesaid and in view of the lapses and wrongs of the Investigating Officer with respect to difference in size of bullet recovered from spot, I hereby direct that a copy of this order be placed before the Commissioner of Police, Delhi and GNCT of Delhi (Home Department) through the Director of Prosecution, Delhi for information and appropriate action in accordance with law, in terms of the directions of Hon'ble Supreme Court in the case of State of Gujarat Vs. Kishanbhai Etc. in Criminal Appeal No. 1485/2008 decided on 7.1.2014, S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 33 of 34 copies of which have already been circulated by the Hon'ble Apex Court to Home Secretaries of all the States and UTs for compliance. Digitally signed by VIKRAM VIKRAM Date: 2022.11.19 16:38:42 +0530 Date : 19-11-2022 (VIKRAM) ASJ/SPECIAL.JUDGE(NDPS) NORTH WEST DELHI Dictated on : 19.11.2022 Transcribed on : 19.11.2022 Digitally signed checked on : 19.11.2022 by VIKRAM Signed on : 19.11.2022 VIKRAM Date:
2022.11.19 16:38:50 +0530 (Vikram) ASJ-02/Spl. Judge (NDPS), North West, Rohini Courts, Delhi/19.11.2022 S.C. No. 51918/2016 State Vs. Sanjay @ Billu & Ors. Page No. 34 of 34