Delhi District Court
State vs . : 1) Umesh on 15 September, 2018
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT, ROHINI
COURTS: DELHI
Sessions Case No:473/17
FIR No. :629/16
U/s : 302/120B/174A IPC & 27Arms Act
P.S. : Mukherjee Nagar
State Vs. : 1) Umesh
S/o Sh. Surajmal
R/o Village Dubbal Dhan
PS: Beri Distt. Jhajjar, Haryana.
2) Sombir @ Cheli
S/o Sh. Ramesh
R/o Village Dubbal Dhan
PS: Beri Distt. Jhajjar, Haryana.
Offence complained of : 302/120B/174A IPC
& 27Arms Act
Plea of accused : Pleaded not guilty
Final Order : Accused Umesh Convicted
Accused Sombir Acquitted
Date of committal : 05.08.2017
Date of Judgment : 15.09.2018
JUDGMENT
1. On 26.07.16 at about 8.45 PM Anil Kumar was standing out side the shop situated in house no.138 Munshi Ram Colony. He noticed his brother-in-law Amit coming towards his shop from the side of Indira Vikas Colony. In the mean while two boys came to the corner of the street and fired on Amit. He ran towards Amit to save him. Those two State Vs. Umesh SC NO:473/17 1 boys fled away after firing on Amit. Amit fell down on the ground. He was bleeding from his back and became unconscious. He removed Amit to the hospital with the help of neighbor, where Amit was declared dead. Anil told to the police that he suspect that Umesh and Sombir, both sons of Kalu killed Amit. He can identify those persons. FIR was registered. Investigation was carried out. Initially Bhupender, Sanjay and Sameer were arrested. Bhupender was charged for the offence punishable under Sec.302 IPC. Sanjay and Sameer was discharged. Trial continued against accused Bhupender only. The other accused Umesh and Sombir could not be arrested. Bhupender was held guilty and convicted vide order dt.22.08.2017 and has been sentenced vide order dt.29.08.2017. Accused Umesh and Sombir were lateron arrested. After completion of investigation charge sheet against them was filed before the court of Ld.MM. Ld.MM after complying with the provisions of Sec.208 Cr.PC committed the case to the Sessions court as the offence punishable under Sec.302 IPC is exclusively triable by the Sessions Court. Both the accused were charged for the offence punishable under Sec.302 read with Sec.34 IPC and also under Sec.174A IPC. Both the accused persons pleaded not guilty and claimed trial.
2. Ms. Richa Manchanda Ld. MM was examined as State Vs. Umesh SC NO:473/17 2 PW1. The application for TIP of accused Sombir @ Cheli was assigned to her vide application Ex.PW1/A. The accused refused to join the TIP. She warned the accused that an adverse inference may be drawn against him at the stage of trial. The accused still insisted not to participate in the TIP. His statement Ex.PW1/B was recorded. The TIP proceedings are proved as Ex.PW1/C. The certificate appended at the end of the proceedings is proved as Ex.PW1/D. The copy of the TIP was provided to the IO on application Ex.PW1/E. The testimony of the witness has gone unchallenged and uncontroverted.
3. Sh. Bhagirath Shah was examined as PW-2. He brought the record of case file FIR No.33/17 dt.08.05.2017 u/s 186/353 IPC and 25/27 Arms Act, Special Cell Lodhi Colony against accused Sombir @ Cheli. He compared the photocopies of the file available on this case file i.e. the copy of FIR as Ex.PW2/A1 the seizure memo of the pistol, magazine and live cartridges Ex.PW2/A2, sketch of pistol, magazine and live cartridges Ex.PW2/A3, site plan Ex.PW2/A4, the arrest memo Ex.PW2/A5. The case file of FIR No.:27/17 dt. 15.04.2017 u/s 186/353/307 IPC and 25/27 Arms Act PS: Special Cell Lodhi Colony against accused Umesh S/o Surajmal could not be produced. He deposed that the said file has already been committed to the court of State Vs. Umesh SC NO:473/17 3 Ld. Sessions Judge Sh. Sidharth Dass, Ld. ASJ/District New Delhi. The testimony of the witness has gone unchallenged and uncontroverted.
4. Smt. Anita was examined as PW-3. She deposed that on 08.01.2011 her husband had a quarrel with Chand i.e. uncle of her husband. In that quarrel chand expired. Her husband was arrested in the case and presently he is on bail. Due to the death of Chand the family members of Chand namely Umesh, Sameer, Surajmal and their friends namely Sombir had inimical terms with them. Whenever, she used to drop her children at village Dubbal Dhan accused persons Umesh, Sombir and Bhupender used to stop her way on the motorcycle and hurled filthy abuses on her. She had also lodged complaint against those persons in the local police station of village Dubbal Dhan. They also extend threats to her and her family members. He filed complaint to that effect in the local police station. Due to this rivalry she along with her family members including her mother-in-law and brother- in-law Amit shifted to Delhi at Munshi Ram colony in the house of Anil who is her Nandoi (husband of her sister-in- law). For the last 2-3 years she along with her above mentioned family members was residing in Munshi Ram Colony.
5. Her brother-in-law Amit along with her nephew State Vs. Umesh SC NO:473/17 4 (Bhanja) namely Vashu went to Kohlapur for wrestling. Umesh, Sombir and Bhupender were already in Kohlapur. They had seen Amit and Vashu. Umesh, Sombir and Bhupender returned to their village Dubbal Dhan. Amit told him that the accused persons had reached Kohlapur. She advised Amit and Vasu to returned Delhi immediately. On 09.07.2016 Amit and Vasu return to Delhi. After some days she saw Sameer roaming in the gali where she along with her family members were residing at Munshi Ram colony. She informed her family members including Amit and her mother-in-law that she had seen Sameer.
6. On 26.07.2016 at about 7:45 pm she along with Amit went to the market of Indira Vikas Colony for purchasing vegetables. After purchasing vegetables they were returning to their house situated in Munshi Ram Colony. At about 8:30/8:45 pm Amit reached near the Iron gate of the street in which the house is situated. She was 10 ft. behind Amit. At the same time accused Umesh and Bhupender (already convicted), who were present there tried upon Amit. Accused Sanjay (already discharged) and Sombir were also present there at certain distance from Bhupender and Umesh. Amit fell down on the ground after sustaining firing shots. Sombir and Sanjay came to the place where Amit was lying, they shook and kick Amit to ensure that Amit had died. Thereafter, State Vs. Umesh SC NO:473/17 5 Bhupender and Umesh ran towards Indira Vikas Colony. Sombir and Sanjay ran towards mandir of Munshi Ram colony. She reached the place where Amit was lying. After seeing his condition she became unconscious. She regained her consciousness early in the morning on the next day. At about 6:00 am Sumit who is her Devar made a call on her mobile phone and informed that firing incident had taken place in the village and shots had been fired by Sombir, Umesh, Sameer and their other family members and other associates. In that incident Sudhir who is brother of Sumit sustained gun shot injuries. On 27.07.2016 police recorded her statement. On 22.09.2016 she along with her brother-in- law Amit went to PS:Mukherjee Nagar where she identified Bhupender (already convicted). On 05.10.2016 she and Anil identified Sanjay in Mukherjee Nagar (already discharged). She identified Umesh in the police station on 27.04.2017 along with Anil. On 14.05.2017 she identified accused Sombir @ Cheli who shook and kicked Amit when he was lying on the ground. She stated that she cannot identify the clothes of deceased Amit which he was wearing at the time of incident. During cross-examination on behalf of defence she stated that she was not taken to any hospital after she lost her consciousness. It is not within her knowledge if any private doctor was called at their house to attend her. She State Vs. Umesh SC NO:473/17 6 was not given any medicine. It is not within her knowledge as to who brought her to the house from the place of occurrence. She regained her consciousness at 6:00/6:30 am. She had not received any injury on her body in the process of falling down at the time of occurrence. She was carrying her mobile phone with her. She had not made any call at 100 number. When she regained her consciousness at her house she found her mobile lying besides her. She checked her mobile phone after regaining consciousness but she does not notice if there was any missed call. She received the call in between 6:30 to 6:45 am of her brother- inlaw Sumit.
7. She was not present in the court when her husband was sentenced. Her family members attended the said date of hearing and informed her that her husband has been convicted. She is not suffering from any ailment. She denied the suggestion that she was not present at the place of occurrence at the time of occurrence or that she had not witnessed the incident. Police did not seize her mobile phone. Earlier she along with her children and mother-in-law was residing at village Dubbal Dhan Distt. Jhajjar Haryana. She along with children and mother-in-law shifted to Delhi 2- 3 years prior to the incident, but she does not remember the exact date of shifting to Delhi. So far as she remember she State Vs. Umesh SC NO:473/17 7 got her children admitted in school in Delhi in the year 2016. Prior to that her children were studying in school of the village at Dubbal Dhan. The complaint she filed before the local police station were against Umesh, Sombir, Bhupender and their family members. Witness has produced the attested copies of the complaints that is the complaint dt.09.03.2011, lodged by Samar Sain, complaint dt.28.07.2011, complaint dt.09.08.2011 and the same are now Ex.PW3/D1, Ex.PW3/D2 and ExPW3/D3. She denied the suggestion that she is deposing falsely that due to threats and enmity they had shifted to Delhi. She denied the suggestion that they had not shifted to Delhi even in the year 2016 due to animosity.
8. She had not seen any chappal or shoe lying on the scene of crime till she was conscious. She was confronted with her statement where it was not found mentioned that accused Sombir @ Cheli kicked Amit lying on the ground to find out if he was alive or not.
9. When her brother-in-law Amit and Vashu were away to Kohlapur her brother-in-law Amit made a call from Kohlapur. Amit used to talk to her daily from Kohlapur. They went to Kohlapur to learn wrestling but she is not knowing as to which Akhara he joined. When Amit informed her that accused persons had reached Kohlapur while tracking them State Vs. Umesh SC NO:473/17 8 she adviced him to return to Delhi. She adviced them to return to Delhi 2-3 days prior to the date when they returned to Delhi. In the month of June - July 2016 she was residing in Munshi Ram Colony, Mukherjee Nagar. She made call to her relatives in the village to track the movement of the accused persons and accordingly informed Amit.
10. House of Umesh is situated opposite their house in the same street in the village Dubbal Dhan. Amit and Vasu returned to Delhi from Kohlapur by train. She had not handed over any train ticket to the police. She does not know if any family member had handed over the said tickets to the police. She had not lodged any report after she had seen Sameer roaming in the street.
11. She denied the suggestion that accused Sombir had been falsely implicated as she used to have grudge against him. At the time of occurrence she was about 10-12 feet behind Amit. She had not received any injury in the occurrence. Her first statement was recorded by the police on the next day of occurrence between 11 am to 12:00 noon. On the day when police recorded her statement she met Anil first time between 2:00 to 3:00 p.m. She denied the suggestion that she had met Anil prior to her making statement before the police.
12. On 14.05.2017 as well as 27.04.2017 firstly police State Vs. Umesh SC NO:473/17 9 recorded her supplementary statement and thereafter the statement of Anil. She had not noticed any CCTV camera installed in the street outside their house or in the nearby street in Munshi Ram colony. The relations between her family and family of Anil were cordial since beginning. Whenever Anil used to visit their native village Dubbal Dhan he used to stay at their home. Anil and his family members also used to attend marriage in their relation.
13. Ashok Kumar was examined as PW-4. He deposed that on 15.04.2017 one secret informer came to his office and informed that one person namely Umesh S/o Sh. Suraj Mal involved in number of criminal cases and wanted in Mukherjee Nagar case on whom reward of Rs.50,000/- has been declared would come at Ghevra mor, Rohtak Road between at about 3:15 - 3:30 am. He conveyed this information to Inspector Rajbir and other police official who directed him to take necessary action. He along with HC Vijay Kumar, Ct. Jai Kishan and other staff left the office vide DD No.25 and 26. After recording DD No.25 and 26 at about 3:15 am they reached Ghevra mor, Rohtak Road with secret informer and with the staff. At about 3:20 am the accused was pointed out by the secret informer. They went towards the accused to apprehend him but he fired on the police party. The police party escaped unhurt. The accused was State Vs. Umesh SC NO:473/17 10 over powered and his pistol was snatched by Ct. Jai Kishan and HC Vijay. Accused was found in possession of pistol having 5 live cartridges and one Empty cartridge. The sketch of the same is Ex.PW4/A. The same were put in a plastic container, sealed with the seal of NDR Spl. Cell-22. Accused was also found in possession of country made pistol and three live cartridges. The sketch of the same is ExPW4/B. All the above articles were taken in possession after sealing the same with the seal of NDR-Spl. Cell -22 vide seizure memo Ex.PW4/C. He prepared the rukka and handed over the same to Ct. Jai Kishan for registration of FIR. After registration of the case investigation was handed over to SI Ramesh Kumar. The witness correctly identified Umesh.
14. During cross-examination by the Ld. Defence counsel he stated that he did not obtain any written order of any senior officials. It was verbally directed to take action. Accused was found sitting on the stone bench. The wagonR vehicle of police team was parked near point E as shown in the site plan Ex.PW4/DX. Another Govt. Vehicle of raiding team was parked near point D as shown in the site plan Ex.PW4/DX. No person was passing at the place where accused was sitting on the bench near point E as shown in the site plan Ex.PW4/DX. The wagonR was stopped at a distance of 50 meters from the place where accused was State Vs. Umesh SC NO:473/17 11 sitting. First of all he got down from the WagonR car followed by Ct. Jai Kishan and ASI Ajay Kumar. After seeing the police party accused stood up and pulled out pistol. The police officials sitting in another vehicle Innova also got down and approached the bench. He warned the accused that they are the police personals. The other members of the raiding team were at a distance of 10-12 steps from the accused. He sustained no injury. The empty cartridge found on the spot was handed over to him by Ct. Vijay. No photograph was taken of the empty cartridge. He had not taken any photograph of the place of apprehension. They did not pull out their service revolvers. He denied the suggestion that accused was not apprehended at the time, place and manner as deposed by him or that accused was lifted from his native house or the weapons were planted upon him. He denied the suggestion that weapons was planted upon the accused in connivance with the IO of this case.
15. Sh. Naresh Kumar, Sr. Scientific Officer Biology FSL, Rohini was examined as PW-5. He conducted the biological and DNA finger printing examination of the exhibits and he proved his report running into three pages as Ex.PW5/A. The testimony of the witness has gone unchallenged and uncontroverted.
16. Inspector Suraj Bhan was examined as PW-5. On State Vs. Umesh SC NO:473/17 12 26.07.2016 he was posted as Incharge Mobile Crime Team. On that day he along with Ct. Sandeep finger print proficient and HC Monu Yadav photographer reached near H.No.138 and 3/1 Indira Vikas Colony and 114A Munshi Ram colony, Mukherjee Nagar. Local police officials including SI Manoj met them there. He inspected the scene of crime. HC Monu Yadav took the photographs from different angles. Blood, live cartridges, empty cartridges and front part of the bullet were found on the spot. They remained on the spot from 9:50pm to 10:50 pm. He adviced the IO to lift the exhibits and seize the same. He prepared the mobile crime team report ExPW6/A.
17. During cross-examination by the defence counsel he stated that he received the information at about 9:25 pm in his office. He did not meet any relative of the deceased. He has no knowledge if one of the relative Anita became unconscious on the spot. He did not notice any chappal lying on the spot. In his presence local police did not make any inquiry from the public persons present there. He denied the suggestion that he did not visit the scene of crime or that he prepared report while sitting in office.
18. ASI Sanjay Kumar was examined as PW-7. He was working as MHC(M) as ASI Sangram was on leave on 14.12.2016. On that day he had sent 12 sealed exhibits and State Vs. Umesh SC NO:473/17 13 two sample seals to FSL through Ct. Kuldeep vide RC No.109/21/16 on the instructions of IO. He proved the copy of the same as Ex.PW7/A. On the same day Ct. Kuldeep returned to the police station and handed over acknowledgement of FSL to him copy of which is Ex.PW7/B. The testimony of the witness has gone unchallenged and uncontroverted.
19. ASI Sangram Singh was examined as PW-8. He was working as MHC(M) at PS:Mukherjee Nagar. He proved the entries in register No.19 as ExPW8/A to Ex.PW8/E. He deposed that on 14.12.2016. He was on leave and ASI Sanjay looked after his work. ASI Sanjay sent 12 sealed parcels to FSL Rohini vide RC NO.109/21/16 through Ct. Kuldeep. On 13.04.2017 he handed over one sealed parcel having seal of SB along with sample seal to Ct. Sachin vide RC No.37/21/17 for depositing the same in FSL Rohini. He proved the copy of the RC as Ex.PW8/F. Ct. Sachin returned back to the police station and handed over acknowledgement ExPW8/G to him. During the period exhibits remained in his possession no one tampered with the same in any manner. The testimony of the witness has gone unchallenged and uncontroverted.
20. Anil Kumar was examined as PW-9. He stated that he is running a general merchant /grocery shop at his house State Vs. Umesh SC NO:473/17 14 No.138 Munshi Ram Colony, Mukherjee Nagar, Delhi. He is residing at H.No.3/4 Indira Vikas Colony. His wife Smt. Kavita is from village Dubbal Dhan, Distt. Jhajjar Haryana. Kavita was having three brothers, Sandeep, Satyawan and the youngest was Amit. There was enmity between Satyawan and his cousin brother namely Chand. Chand was murdered and in that case three persons including Satyawan were convicted. Due to aforesaid reason the relations between his in-laws and family of Chand were strained. Surajmal @ Kalu is elder brother of Chand. Surajmal is having two sons and they starting threatening his in-laws and threatened to kill them. Due to said threats his brother-in-law namely Amit started residing with him in Munshi Ram Colony. Amit was residing with them since 2½ - 3 years prior to the occurrence.
21. His elder son Piyush was interested in wrestling and on 17.06.2016 Amit took his son Piyush to Kohlapur, Maharashtra as there was good scope for wrestling. After 10- 12 days Amit made a call to him and informed that Umesh, Sameer and few of their friends had chased them upto Kohlapur in order to kill him. After coming to know about the said fact he immediately requested Amit and his son to come back to Delhi and they returned Delhi on 09.07.2016.
22. On 26.07.2016 in between 8:30/8:45 pm he was State Vs. Umesh SC NO:473/17 15 standing outside his shop. He saw Amit coming from the side of Indira Vikas Colony towards his shop. He heard the voice of bullet being fired at a distance of about 15 to 20 ft from his shop. He saw Bhupender @ Joker as well as accused Umesh and Sombir @ cheli and one more boy Sanjay present at the place where Amit had been fired at. Witness identified Umesh as well as Sombir @ Cheli correctly. Initially Bhupender fired towards his brother-in-law Amit and thereafter accused Umesh fired. Due to the gun shot injuries Amit fell down in the street. When Amit was lying on the ground Sombir @ Cheli kicked Amit in order to check if he was alive or not. In the meantime a dog came in the street and started barking towards the accused persons. Due to fear of that dog accused persons started running. While running one of the offender left his chappal on the spot. He ran towards Amit and saw him lying in pool of blood. Amit was unconscious and unable to speak. He immediately took Amit to a nearby private hospital with the help of his neighbour Mahesh and one more person in his car. From the private hospital the concerned doctor referred Amit to Trauma centre. They immediately took Amit to trauma centre where he was declared dead. In the trauma centre police met him and recorded his statement Ex.PW9/A. From the trauma centre he accompanied the police to the place of occurrence. State Vs. Umesh SC NO:473/17 16 Police prepared site plan at his instance. He identified the dead body of Amit in the mortuary and made statement. After committing the offence accused Umesh and Sombir ran towards the temple situated in the Munshi Ram Colony where as other accused persons ran towards Indira Vikas Colony. On 27.04.2017 he along with his sister-in-law Anita went to Mukherjee Nagar police station where they identified Umesh. On 14.05.2017 he along with his sister-in-law again went to PS: Mukherjee Nagar where they identified accused Sombir @ Cheli.
23. Duirng cross-examination by the Ld. Defence counsel he stated that he got married some where in the year 1998. He is on visiting terms with his in-laws. He also used to stay some time at his in-laws house during night in village Dubbal Dhan. His inlaws and family of Surajmal were on visiting terms before 2011. The house of his In-laws and house of accused Umesh are opposite to each other in the same street. His brother is not married in village Dubbal Dhan. He never attended the court while Satyawan was facing trial. He denied the suggestion that he was knowing Sameer and Umesh both sons of Surajmal well before the commission of the offence. He denied the suggestion that he falsely stated before the police that he was not knowing Umesh and Sombir prior to the incident. Since he was not knowing the State Vs. Umesh SC NO:473/17 17 name of accused Sombir @ Cheli he had not stated his name while making statement Ex.PW9/A. He denied the suggestion that he did not name Sombir in Ex.PW9/A as he was not involved in the incident. He was confronted with his statement where it was not found mentioned that offenders were four. His statement Ex.PW9/A was read over to him before he put his signatures. He was also confronted with his statement where it was not found mentioned as to in which directions offenders ran away. He was also confronted with his statement where it was not found mentioned that in the mean time a dog came in the street and started barking towards the accused persons and due to fear accused persons started running and one of the offender left his chappal on the spot. He was also confronted with the statement where it was not found mentioned that one of the offender kicked Amit in order to check if he was alive or not.
24. His 4-5 statements were recorded. His first statement was recorded in trauma centre. His second statement was recorded on 27.07.2016 at his residence between 1:00 to 2:00 pm. Prior to making statement on 27.07.2016 he had not met Anita. He denied the suggestion that he and Anita conspired for making false statement before the police in order to falsely implicate the accused persons. The investigating officer had not requested him for joining the State Vs. Umesh SC NO:473/17 18 raiding team for the search of accused persons.
25. He was carrying his mobile no.8860002080 at the time of occurrence. He had not made any call at 100 number from his mobile phone. His neighbour made a call at 100 number in his presence. He had also not made any call to the relative of Amit. He had not attended any call made by relatives of Amit on his mobile phone. While taking Amit to the hospital he handed over his mobile phone to the family members. Police had not seized his mobile phone for the purposes of investigation. He denied the suggestion that he did not make any call at 100 number as he was not present on the spot at the time of occurrence. So far as he remember he handed over his wearing clothes to the pllice. In his presence police had not conducted any investigation in respect of the car in which he took Amit to the hospital. Police also did not took photograph of his car in which he took Amit to the hospital. In his presence police did not make any inquiry from Mahesh and had also not seen the clothes worn by Mahesh.
26. There is a shop of gas repairing in the street in which occurrence took place. One tiffin packing unit was also running in the street at that time. It is correct that the said gali is a public prone area. Police prepared site plan at his instance but does not remember the date when the rough site plan was prepared. It might be prepared after 10-12 days State Vs. Umesh SC NO:473/17 19 of the occurrence. He had not pointed out towards the said gas repair shop and tiffing packing unit at the time of preparation of rough site plan.
27. Police did not record the statement of any neighbour in his presence or of Mahesh or any other person who accompanied him to the hospital. No CCTV Camera was found installed near place of occurrence at the time of occurrence.
28. They reached trauma centre at around 9:30 pm. He remained in the hospital upto 12 night. From the hospital he came to his house in his car. He was accompanied by Mahesh and few other persons. When he returned back to the place he found police officials over there and were conducting investigation. Police had guarded the said area. He denied the suggestion that he had not taken Amit to the hospital or that he was present somewhere else or that on receiving the news of occurrence he straight away went to the hospital. He does not remember the exact date when he requested Amit and Vasu to return back to Delhi. He stated that it was one or two days prior to the date when they returned back to Delhi. He is not having any certificate showing participation of his son Vasu in the wrestling. He himself, Anita or any other family member had not lodged any complaint before the police when Amit informed him on State Vs. Umesh SC NO:473/17 20 phone from Kohlapur that accused persons had chased them upto Kohlapur.
29. He had not received any threat from any of the accused or any family member when he used to visit village Dubbal Dhan and also in Delhi. He is not aware about the members in the family of deceased Chand. It is within his knowledge that house of accused Umesh was in same street in which his in-laws have been residing in village Dubbal Dhan. Chand, Umesh and Satyawan are members of the same family. He denied the suggestion that he had met Chand, his family members, Umesh and his family members during attending marriage at village Dubbal Dhan. He denied the suggestion that he has falsely named Umesh and Sameer at the instance of his in-laws or due to animosity of his in-laws with the accused persons.
30. Virender Singh Ld. MM-02 was examined as PW-10. He deposed that on 25.04.2017 IO Bhanu Parkash moved application for TIP of accused Umesh which was assigned to him. The application is exhibit PW10/A. Accused refused to join the TIP. He was warned that an adverse inference may be drawn against him at the stage of trial but he still insisted not to join the TIP. His statement Ex.PW10/B was recorded. The TIP proceedings are proved as Ex.PW10/C. The certificate of correctness of proceedings is Ex.PW10/D. The State Vs. Umesh SC NO:473/17 21 testimony of the witness has gone unchallenged and uncontroverted.
31. ASI Dhruv Raj was examined as PW-11. On 26.07.2017 he was working as duty officer. He deposed that at about 8:57 pm information was received from wireless operator that "firing hui hai aur ek aadmi ko goli lag gaye hai at 138 Shiv Mandir ke paas, Munshi Ram colony". He recorded information in DD No.24A and proved the copy of the same as Ex.PW11/A.
32. On 14.03.2017 he went to District Jhajjar to bring the case property. He appeared in the court of Ld. ACJM where he moved application for transfer of case property of PS: Beri of District Jhajjar to PS: Mukherjee Nagar. Ld. ACJM passed the order. He went to PS: Beri and collected one sealed parcel from the MHC(M), having seal of SB 5 vide RC No.37 dt. 14.03.2017. He returned to police station Mukherjee Nagar and handed over the same to MHC(M). No one tampered with the case property till the same remained in his possession.
33. During cross-examination by the defence he denied the suggestion that he tampered with the case property or that he did not visit District Jhajjar to bring the case property.
34. SI Suresh Chand was examined as PW-12. He deposed that on 15.04.2017 he along with SI Ramesh left the State Vs. Umesh SC NO:473/17 22 office of special cell North Region Rohini at 4:15 am and reached Ghevra Mor near Rohtak Road. At about 5:05 am. ASI Ashok and other staff met them. They produced two sealed parcels and copy of seizure memo along with sketch of pistol and country made pistol to SI Ramesh. SI Ramesh prepared site plan at the instance of SI Ashok. SI Ramesh recorded the statement of SI Ashok u/s 161 Cr.PC accused Umesh was arrested by ASI Ramesh vide arrest memo Ex.PW12/A having his signature at point A in case FIR No.27/17 u/s 186/353/307 IPC & 25/27 Arms Act. Thereafter, they went to PS: Special Cell Lodhi Colony where the case property was deposited. Accused was taken to the office of special cell North region. Accused Umesh made the disclosure statement Ex.PW12/B. He correctly identified the accused.
35. On 08.05.2017 he went to PVC Market Tikri Kalan, Vikas Pradhikaran Board near Electricity pole where he met SI Ramesh with staff. SI Ramesh handed over to him one sealed pullanda, seizure memo and sketch of country made pistol and cartridges along with accused Sombir @ Cheli. He prepared site plan at the instance of SI Ramesh. He interrogated and arrested accused Sombir @ Cheli vide arrest memo Ex.PW2/A5 in case FIR No.33/17 u/s 186/353 IPC and section 25/27 Arms Act. Personal search of accused State Vs. Umesh SC NO:473/17 23 was conducted. The case property was deposited at PS:
Special cell Lodhi Colony. Accused made the disclosure statement in the office of special cell during interrogation. He confessed that he is involved in the murder of Amit caused on 26.08.2016 in Munshi Ram Colony.
36. During cross-examination by the defence counsel he stated that he did not make any departure entry. No public person was present at Ghevra Mor due to odd hours. He denied the suggestion that he did not visit the place of arrest of accused Umesh or that accused Umesh was not arrested at the time, place and manner as deposed by him. He denied the suggestion that accused Umesh was lifted from his native village or falsely implicated in case FIR No.27/17. He denied the suggestion that accused did not make any disclosure statement. He denied the suggestion that all the sketch and pullandas were already prepared by SI Ashok in the office of special cell. He stated that the disclosure statement was recorded in the office of special cell. He denied the suggestion that accused was lifted from his native village to get the reward or that the accused was implicated in case FIR No.27/17.
37. He denied the suggestion that he did not go to Tikri Kalan PVC Market on 08.05.2017 or that accused was already in the office of special cell North region. He denied State Vs. Umesh SC NO:473/17 24 the suggestion that all the documents were prepared in the office or that accused did not make any disclosure statement. He denied the suggestion that Sombir was lifted from his native village in order to get reward and falsely implicated in the present case.
38. Ct. Hazari Lal was examined as PW-13. On 15.04.2017 he was posted at PS: Mukherjee Nagar as DD writer. On that day at 7:45 am SI Ramesh Kumar of special cell Rohini informed that accused Umesh S/o Surajmal arrested in case FIR No.27/17 u/s 186/353/307 IPC and 25/27 Arms Act is wanted in case FIR No.629/16 PS:Mukherjee Nagar. It was also informed that the accused will be produced today in the Patiala House Court before Ld. CMM. He conveyed this information to the IO and also the SHO. He recorded DD No.19B and proved the copy of the same as Ex.PW13/A. Nothing material came to discredit the witness during cross-examination by the Ld. Defence counsel.
39. SI Ramesh Kumar was examined as PW-14. He corroborated the testimony of PW-12 regarding the arrest of accused Umesh and preparation of documents and disclosure statement of accused Umesh on 15.04.2017. He also deposed that on 07.05.2017 when he was present in his office, one secret informer came to his office and informed State Vs. Umesh SC NO:473/17 25 about Sombir @ Cheli involved in number of criminal cases in Delhi and Haryana. He conveyed the information to the senior police officers who directed him to take necessary action. He along with Inspector Ramesh Sharma, SI Ashok, ASI Surender Pal, ASI Suresh, ASI Ajay, HC Vijay, Ct. Jai Kishan and secret informer left the office in Govt. Vehicle and reached at PVC Market gate No.6 Village Tikri Kalan at about 10:30 pm. Public persons were requested to join but none agreed. The secret informer pointed towards one person standing under the electric pole as Sombir @ Cheli. They conducted the raid and Ct. Jai Kishan reached near him and stopped his motorcycle. Accused pulled out a pistol from his right dub of pant and pointed towards Ct. Jai Kishan. He along with other staff and Ct. Jai Singh caught hold the hands of accused and snatched the pistol from his hand. Pistol was opened and 5 live cartridges were found in its magazine. The sketch of the same were prepared which is Ex.PW2/A3. The country made pistol along with the magazine was put in a container, sealed with the seal of Spl. Cell NR 12. FSL form was filled. The container was seized vide memo Ex.PW2/A2. He prepared the rukka and sent the same through Ct. Jai Kishan. SI Suresh Chand came on the spot. He handed over the sealed parcel, seizure memo and sketch to SI Suresh Chand. SI Suresh Chand prepared site State Vs. Umesh SC NO:473/17 26 plan Ex.PW2/A4 at his instance. He handed over the custody of accused to SI Suresh Chand.
40. During cross examination by the defence counsel he stated that on 15.04.2017 at about 4:15 am he along with SI Subhash left the office for Ghevra Mor. He made departure vide DD No.27. No public person was present at Ghevra Mor. There were shops on the right side of the place from where accused was apprehended. He denied the suggestion that he did not visit the place of arrest of accused Umesh. He denied the suggestion that accused was lifted from his native village or falsely implicated in FIR No.27/17 or accused did not make any disclosure statement. He had not taken any photograph of the empty cartridge. He stated that empty cartridge was already in sealed pullanda. He did not notice any mark on the wall near the bench. He denied the suggestion that accused was lifted from his native village in order to get the reward and falsely implicated in this case.
41. He did not obtain any written direction for conducting raid. They were in govt. gypsy and private motorcycle. The driver might have made entry in the log book. They left the office at 9:30 pm and reached the spot at 10:30 pm. He was in Gypsy. There was a distance of about 15 to 20 ft in between the gypsy and the place where accused was standing. The distance between the motorcycle and the State Vs. Umesh SC NO:473/17 27 gypsy was only 5-7 steps. He admitted that Ct. Jai Kishan stopped the motorcycle near the accused at a distance of about 5-7 steps. HC Vijay was also with Ct. Jai Kishan on the motorcycle. Accused did not try to run away when motorcycle stopped near him. He denied the suggestion that no weapon was recovered from the accused or that the weapon was planted upon the accused. He denied the suggestion that he prepared all the documents in the office of special cell or that accused has been falsely implicated.
42. Sh. Bhagirath Asst. Ahlmad from the court of Sh. Deepak Sehrawat, Ld. CMM, Patiala House was examined as PW-15. He brought the record of case FIR No.33/17u/s 186/353 IPC and 25/27 Arms Act. PS: Special Cell, Lodhi Colony, He proved the copy of FIR Ex.PW2/A1, Sketch Ex.PW2A3, seizure memo Ex.PW2/A2, site plan Ex.PW2/A4, arrest memo Ex.PW2/A5, Personal search memo Ex.PW15/A, disclosure statement Ex.PW15/B and rukka Ex.PW15/C, after comparing with the originals available in the file. The testimony of witness has gone unchallenged and uncontroverted.
43. HC Vijay Kumar was examined as PW-16. He deposed that on 15.04.2017 at about 2:15 am one secret informer met SI Ashok and informed that Umesh involved in murder cases and wanted in murder case of Mukherjee State Vs. Umesh SC NO:473/17 28 Nagar would come at Ghevra mor Rohtak road, Delhi at about 3:15 or 3:30 am. He corroborated the testimony of PW- 4 regarding the apprehension of the accused and recovery of pistol etc. from him. He also disclosed that SI Ramesh Kumar recorded the disclosure statement of the accused and corroborated the testimony of PW-12 in this regard.
44. He further deposed that on 07.05.2017 one secret informer came to the office of special cell and informed SI Ramesh about Sombir @ Cheli and corroborated the testimony of PW15 regarding the apprehension of Sombir @ Cheli. His arrest and the disclosure statement.
45. During cross-examination by the defence counsel he stated that there was no written order by senior officials for conducting the raid for both the accused. It took them around 40 to 45 minutes to reach Ghevra Mor from the office. They left their office at about 2:30 am on 15.04.2017 for going to Ghevra Mor. He was sitting on the rear seat of WagonR car with Ct. Jai Kishan. Accused did not try to run away when the WagonR car passed ahead of him. SI Ashok and Ct. Jai Kishan were the first persons to got down from the car. After firing the shot the accused ran upto 6-7 steps towards Rohtak road. No photography of the scene of crime was conducted. They did not go to the nearby building asking public persons to join the investigation. He denied the State Vs. Umesh SC NO:473/17 29 suggestion that accused was not arrested at the time, place and manner deposed by him. He denied the suggestion that accused was lifted from his native village or falsely implicated in the present case in order to take the reward.
46. It took them 40 to 45 minutes to reach PVC market from the office of special cell. They left the office on 07.05.2017 at 10:30 pm. There was no other person in the said area at that time except the accused. He was driving the bike and Ct. Jai Kishan was pillion rider. When they stopped the motorcycle near him he pull out his pistol and pointed on them. He was not having his service revolver. He does not know if Ct. Jai Kishan was carrying his service revolver or any other arm. No photography of scene of crime was conducted. There is a distance of about 2-3 steps in between the place where accused was standing and where they stopped the motorcycle. The Govt. gyspy was parked near gate No.6 of PVC Market. At distance of about 10 meter from the place where accused was standing. He denied the suggestion that accused was not arrested at the time, place and manner as deposed by him. He denied the suggestion that accused was lifted from his native village and falsely implicated in the present case.
47. Ct. Hawa Singh was examined as PW-17. On 19.04.2017 he along with IO reached court Room No.117, State Vs. Umesh SC NO:473/17 30 Rohini Courts Complex where accused Umesh was produced. IO interrogated the accused with the permission of the court and arrested him vide arrest memo Ex.PW17/A. His personal search was conducted vide memo Ex.PW17/B. Accused made the disclosure statement Ex.PW17/C. Police custody remand of accused was taken. Witness correctly identified the accused.
48. Nothing material came to discredit the witness during cross-examination by Ld. Defence Counsel.
49. ASI Yograj Sharma was examined as PW-18. He deposed that on 08.05.17 SI Suresh of Spl.Cell NR telephonically informed that Sombir @ Cheli arrested by Spl.Cell would be produced in the court of Ld.CMM Patiala House at 2 PM. He accordingly informed the IO, MHC(R), ATO and SHO. He recorded DD no.27A and proved the copy of the same as Ex.PW-18/A. Nothing material came on record to discredit the witness during cross examination.
50. Ct. Sachin Tomar was examined as PW-19. He deposed that on 13.04.17 on the direction of SHO and IO, he collected one sealed parcel along with sample seal from MHC(M) vide RC no.37/21/17 for depositing the same in FSL. He deposited the exhibits in the FSL along with sample seal and obtained the acknowledgment. On return to the PS, he handed over the acknowledgement to the MHC(M). No State Vs. Umesh SC NO:473/17 31 one tampered with the case property till the same remained in his possession. Nothing material came on record to discredit the witness during cross examination.
51. Inspector C.P.Bhardwaj was examined as PW-20. He deposed that on 14.07.17 he received the file for investigation. He perused the same and prepared supplementary charge sheet against accused Umesh and Sombir @ Cheli. The testimony of witness has gone unchallenged and uncontroverted.
52. Ct. Rajender was examined as PW-21. He deposed that on 12.05.17 he joined the investigation with Inspector Bhanu Pratap. They reached the court of Ld.MM at Rohini Court complex where accused Sombir @ Cheli was produced. IO interrogated the accused with the permission of the court. Accused was arrested vide arrest memo Ex.PW- 21/A. His personal search was conducted vide memo Ex.PW-21/B. Accused made the disclosure statement Ex.PW-21/C. Police custody remand of the accused was taken. The accused pointed out the scene of crime vide pointing out memo Ex.PW-21/D. The witness has correctly identified the accused. Nothing material came during cross examination of the witness by Ld. Defence Counsel to discredit him.
53. Pankaj Bharti, Ahlmad was examined as PW-22. He State Vs. Umesh SC NO:473/17 32 brought the file of case FIR No.26/17 PS: Special Cell u/s 186/353/307 IPC and 25/27 Arms Act titled State Vs. Umesh. He proved the photocopy of the FIR as Ex.PW22/A. The sketch of pistol magazine with five live cartridges and one empty shell Ex.PW4/A. The sketch of country made pistol with three cartridges is Ex.PW4/B. The seizure memo of the pistol, magazine, five live cartridges, empty shall and one country made pistol and three live cartridges is proved as Ex.PW4/C. The site plan is Ex.PW4/DX. The photocopy of the arrest memo of Umesh is Ex.PW12/A and the other arrest memo is Ex.PW12/B. The testimony of the witness has gone unchallenged and uncontroverted.
54. Inspector Bhanu Parkash was examined as PW-23. He deposed that on the intervening night of 26/27.07.2016. On receipt of DD No.24 A, Ex.PW7/A with regard to firing in Munshi Ram colony near Shiv Mandir 138 and that one person had sustained fire shot injury SI Manoj was sent to the spot. The investigation was handed over to him after registration of FIR. He along with Ct. Sukhleshwar reached the spot. SI Manoj and other staff met him there. The crime team had already inspected the spot. SI Manoj had already lifted the exhibits from the spot and seized the same. He prepared site plan Ex.PW23/A at the instance of Anil. SI Manoj handed over to him the seizure memos along with the State Vs. Umesh SC NO:473/17 33 exhibits. He returned to the police station and deposited the exhibits in the malkhana.
55. On 27.07.2016 he moved application Ex.PW23/B for post mortem. He prepared inquest papers i.e. brief facts Ex.PW23/C, form 25.35 Ex.PW23/D. The dead body was identified by Sandeep Kumar and Anil vide statements Ex.PW23/E and Ex.PW14/A. After the post mortem the dead body was handed over to the relatives vide memo Ex.PW5/A. The autopsy surgeon handed over to him one sealed envelope duly sealed with the seal of ASFMT BJRM Hospital, which he seized vide memo Ex.PW10/B. He collected the post mortem report Ex.PW4/A.
56. On 23.08.2016 he called Manohar Lal draftsman and visited the spot along with him. Inspector Manohar Lal took the measurements and prepared rough notes on the spot. On 24.08.2016 Inspector Manohar Lal gave him the scaled site plan Ex.PW3/A.
57. On 12.09.2016 police officials of Jhajjar, Inspector Lalit informed him about the arrest of Bhupender @ Jokhar. (As the case regarding Bhupender had already been decided therefore it is not discussed here.)
58. On 14.12.2016 he sent the exhibits to FSL through Ct. Kuldeep Singh. He filed the FSL result Ex.PW23/G running into three pages prepared by Sh. Naresh Kumar Sr. Scientific State Vs. Umesh SC NO:473/17 34 Officer biology and also the biological examination report Ex.PW19/A. He collected the customer application form and the call detail record of the mobile numbers vide application Ex.PW23/H. On 15.03.2017 accused Umesh and Sombir @ Cheli were declared proclaimed offenders vide order dt.Ex.PW23/X.
59. On 15.04.2017 DD No.19B exhibit PW13/A was assigned to him with respect to the arrest of accused Umesh by special branch of Delhi. On his application accused Umesh was produced before the court on 19.04.2017 with the permission of the court he interrogated Umesh and arrested him vide arrest memo Ex.PW17/A. His personal search was conducted vide memo Ex.PW17/B. Accused made the disclosure statement Ex. PW18/C.
60. On 25.04.2017 he moved application Ex.PW10/A for the test identification parade of accused Umesh. Accused was produced in the court but he refused to join the TIP. The proceedings are ExPW10/B, Ex.PW10/C and Ex.PW10/D. On 26.04.2017 accused Umesh made the supplementary disclosure statement Ex.PW23/X1.
61. On 27.04.2017 Anil and Anita came to the police station and they identified Umesh as one of the assailant. Accused Umesh pointed out the place of occurrence vide memo Ex.PW23/X2.
State Vs. Umesh SC NO:473/17 35
62. On 08.05.2017 DD No.27A Ex.PW18/A was given to him regarding arrest of accused Sombir and that he has confessed about the offence. On 12.05.2017 accused was produced in the court. He interrogated the accused with the permission of the court and arrested him vide arrest memo Ex.PW21/A. His personal search was conducted vide memo Ex.PW21/C. Accused made the disclosure statement Ex.PW21/C. He moved application Ex.PW1/A for TIP of accused. Accused was produced in muffled face but he refused to join the TIP. The TIP proceedings are proved as Ex.PW1/B, Ex.PW1/C and Ex.PW1/D. He collected the copy of the TIP vide application Ex.PW1/E. He obtained two days police custody remand of accused. Accused pointed out the place of occurrence vide memo Ex.PW21/D. Accused Sombir made supplementary disclosure statement on 13.05.2017 Ex.PW23/X3.
63. On 14.05.2017 Anil and Anita identified accused Sombir in the police station and he recorded their statements. The witness has identified both the accused persons.
64. During cross-examination by the defence counsel he deposed that he did not call Mahesh Sharma who made the call at 100 number. Mahesh Sharma did not meet him on the spot when he reached there. He read over the statement of State Vs. Umesh SC NO:473/17 36 Anil to him. Anil in his statement did not disclose to him that he had accompanied Mahesh Sharma while shifting Amit from the spot. He reached the spot at 2:00 am and Anil was present there. He did not observe blood stains on the clothes of Anil.
65. He along with Ct. Sukhleshwar reached the house of Anita at about 10 am and she was conscious at that time. He did not ask her as to when she regained consciousness. When she visited the spot at 2:00 am she was unconscious and he recorded her statement at 10:00 am without any considerable delay. At the time of recording of statement of Anita, Anil was also present at the house, but not at the place where he was recording her statement. He recorded five statements of Anil and five statements of Anita. Anil did not tell in any of his statements that a dog started barking and due to fear of dog the accused persons fled away leaving one slipper on the spot. He did not seize any chappal from the spot. Anita stated in her statement recorded on 14.05.2017 that Sombir kicked the injured to find out if he is dead or alive. Anil had not told in any of his statement that Sombir kicked the injured to find if he is dead or alive. He cannot tell how many houses are there in the gali in which house of Anil is situated. There are only 3-4 houses between the shop of Anil and the place where the gate has been State Vs. Umesh SC NO:473/17 37 installed. There is no shop from the gate till the shop of Anil. He denied the suggestion that there is shop of gas filing within 2 meters from the place of incident. He stated that the shop may be in the bifurcating streets on the left side or the right side from the main street. He had not shown the position of eye witness in the site plan prepared by him. He did not notice any vehicle of Anil at the place of occurrence when he reached there. He did not get the vehicle inspected in which Anil removed the injured to the hospital. He did not examine the persons who accompanied Anil and injured to the hospital. He did not obtain the call detail record of the mobile phones of Anil & Anita.
66. He visited village Dubbal Dhan 2-4 times in search of accused persons besides the other team which were deputed by the SHO to search the accused persons. He does not remember the date of his visit to village Dubbal Dhan. He admitted that the place of incident is situated in a thickly populated area. People pass through that street. No other independent witness met him during investigation. He denied the suggestion that Anil and Anita were not present on the spot or that they have been made false witness in this case.
67. Inspector Manohar Lal was examined as PW-24. He deposed that on 23.08.2016 he was called by Inspector State Vs. Umesh SC NO:473/17 38 Bhanu Parkash at PS: Mkhurjee Nagar. He reached there and from there he along with IO visited the spot situated near H.No.138 Munshi Ram colony. On the pointing out of IO he prepared the rough notes and took measurements.
68. On 24.08.2016 on the basis of the rough notes and measurements he prepared the scaled site plan Ex.PW2/A. Nothing material came on record to discredit the witness during his cross-examination.
69. SI Manoj Kumar was examined as PW-25. He deposed that on 26.07.2016 on receipt of information regarding DD No.24A on telephone he along with Ct. Sukhleshwar reached the spot. On the spot there was an iron gate. At the corner of the street, there was a pool of blood. Live and empty cartridges and pallets were found lying there. On inquiry he came to know that injured had been taken to trauma center by his relatives. No eye witness was found on the spot. In the mean while beat staff I.e Ct. Madan and Ct. Pawan also reached there. He deputed Ct. Madan and Ct. Sukhleshwar on the spot. He along with Ct. Pawan reached Trauma centre and obtained the MLC of the deceased Anil who was declared dead by the doctor. Doctor handed over sealed parcel to him containing clothes of the deceased which he seized vide memo Ex.PW10/A. Anil brother-in-law of deceased met him in the hospital who claimed to be eye State Vs. Umesh SC NO:473/17 39 witness. He recorded statement of Anil Ex.PW13/A. He got the dead body preserved in the mortuary vide application Ex.PW13/B. Thereafter, he came back on the spot. The spot was examined by crime team. He lifted the exhibits lying on the spot. He kept those exhibits in different plastic containers sealed with the seal of MK and seized vide memo Ex.PW13/C. He made endorsement Ex.PW11/B on the statement of Anil. He handed over the rukka to Ct. Sukhleshwar for getting the case registered.
70. After some time Inspector Bhanu Parkash along with Ct. Sukhleshwar came on the spot to whom the investigation was entrusted. He handed over the sealed parcels and seizure memos to Inspector Bhanu Parkash. Complainant had also reached on the spot. IO prepared the site plan at the instance of complainant and recorded his statement. He along with IO and the staff came back to police station. The case property was deposited in the malkhana.
71. On 27.07.2016 he along with IO reached the mortuary of BJRM hospital where post mortem on the dead body was conducted. IO seized the exhibits vide memo Ex.PW10/B. After post mortem the dead body was handed over to the relatives. The witness has identified the exhibits lifted from the scene of crime.
72. During cross-examination by the defence counsel for State Vs. Umesh SC NO:473/17 40 accused Sombir he stated that the persons present on the spot told him that the injured had been taken to trauma center by his relatives. Those persons did not tell him the name of the injured or the names of those persons who witnessed the incident. Those persons had not told him that any person became unconscious on the spot. Anil told him in his statement that before taking the injured to the trauma centre, he took him to New Life Hospital, Mukherjee Nagar. He did not make any inquiry at New Life Hospital as Anil told him that injured was not admitted there and from the out itself they told them to take the injured to some big hospital. He did not record the statement of the person who went along with Anil to the hospital. He does not remember if there were any blood stains on the clothes and hands of Anil when he met him. He admitted that he did not seize the clothes of Anil. He recorded the statement of Anil near emergency ward Trauma Centre. There were few persons with Anil but he recorded the statement of Anil only. Anil did not tell him that any person became unconscious on the spot.
73. During cross-examination for accused Umesh he stated that he received the information at about 8:50 or 8:55 pm. It took him 10 minutes to reach the spot. He did not enter any house including the house of Victim. No family member of victim met him when he reached there. About 15 to 20 State Vs. Umesh SC NO:473/17 41 public persons were present on the spot. He did not make any inquiry about the person who made call at 100 number. He also did not meet the person who made call at 100 number. He does not remember if Anil told him as to who made call at 100 number. There were 4-5 persons with Anil when he met him at Trauma Centre. He did not make any inquiry from those persons. He came back on the spot at about 11pm. He did not visit the house of deceased after reaching the spot again. He did not check or seize the mobile phone of Anil. Anil did not tell him that Anita is an eye witness. He did not seize any chappal from the spot. It took him about 40 to 45 minutes in sealing and seizing the exhibits. Crime team photographer took the photographs of the scene of crime. He denied the suggestion that Anil did not meet him in trauma center.
74. ASI Hawa Singh was examined as PW-26. On 27.07.2016 he was working as duty officer. He proved the copy of FIR as Ex.PW11/A. His endorsement on the rukka regarding registration of FIR as Ex.PW11/B. He proved the certificate issued under Indian Evidence Act as Ex.PW11/C.
75. During cross-examination on behalf of accused Sombir he admitted that full facts mentioned in the rukka are not written in DD No.3A. He admitted that name of deceased and witnesses are also not mentioned in DD No.3A. He State Vs. Umesh SC NO:473/17 42 denied the suggestion that DD No.3A is fabricated and false document.
76. During cross-examination for accused Umesh he stated that the computer in which the FIR was typed is under his control. It took 1 hour 10 minutes to get the contents fed in the computer. He admitted that the contents of rukka were fed by the computer operator between 1:10 am to 2:20 am.
77. HC Monu Yadav was examined as PW-27. On 26.07.2016 he was member of the mobile crime team which visited the scene of crime. He took 19 photographs of the spot with digital camera and proved the photographs as Ex.PW8/1 to Ex.PW8/19. He proved the certificate u/s 65B Evidence Act as Ex.PW8/20.
78. During cross-examination for accused Sombir he denied the suggestion that he did not accompany the crime team to the spot. He denied the suggestion that the photographs Ex.PW8/A to Ex.PW8/19 are false and fabricated photographs. He admitted that in the certificate the full address and description of the scene of crime is not mentioned. No question was put to the witness on behalf of accused Umesh.
79. Sandeep Kumar was examined as PW-28. He identified the dead body of his younger brother Amit vide memo Ex.PW23/E. Nothing material came during cross- State Vs. Umesh SC NO:473/17 43 examination to discredit the witness.
80. Sh. Avinash Srivastava was examined as PW-29. He conducted the ballistic examination on the exhibits and proved his report as ExPW19/A and also identified the case property.
81. During cross-examination he stated that today he had not seen the pistol F1 which is referred in his report. That pistol was not supplied to him in this case. He has also not reported in his report that pistol F1 was in working condition. He stated that as the bullet was successfully fired from F1 that itself shows that it was in working condition. He has not annexed any document of case FIR No.690/16 PS: Hauz Khas with his report.
82. Ashwani Kumar was examined as PW-30. He was working as Ahlmad and brought the summoned record of case FIR No:253/16 dt. 27.07.2016 u/s 307/452/506/120B IPC and 216 IPC as well as 25 Arms Act PS: Beri Haryana. He proved the copy of FIR as Ex.PW30/A and copy of charge sheet as ExPW30/B. No question was put to the witness during cross-examination by the defence.
83. Ct. Kuldeep was examined as PW-31. He deposed that on 14.12.2016 he took 12 exhibits to FSL vide RC no.109/21/16 and deposited the same in FSL. He obtained the receiving from FSL and on return to the police station State Vs. Umesh SC NO:473/17 44 handed over the same along with copy of RC to the MHC(M). Nobody tampered with the case property till it remained in his custody.
84. During cross-examination for accused Umesh he stated that he left the police station vide DD entry but does not remember the number of the same. He left the police station at around 10 or 10:15 am. He reached FSL after half an hour. He was in uniform. The same cross-examination was adopted on behalf of accused Sombir.
85. Ct. Pawan was examined as PW-32. He deposed that on 26.07.2016 he along with SI Manoj reached the spot. Injured had already been removed from the spot. He along with SI Manoj reached Trauma Centre. There they came to know that Amit S/o Sh. Veer Sain had expired. The doctor handed over sealed parcel containing clothes of the deceased which was seized by the IO vide memo Ex.PW10/A. Anil met them there. SI Manoj recorded his statement. He shifted the dead body of deceased Amit to the mortuary of BJRM Hospital and deposited the same. On 27.07.2016 the relatives of the deceased reached mortuary of BJRM Hospital. IO prepared inquest papers and the post mortem was conducted. After post mortem, dead body was handed over to the relatives of the deceased. The doctor handed over sealed envelopes containing the exhibits to the State Vs. Umesh SC NO:473/17 45 IO who seized the same vide memo Ex.PW10/B.
86. During cross-examination for accused Umesh he stated that he was present at Hudson lane when he received the information. There is a distance of about 2 km in between police station and scene of crime. There was no crowd or congestion of traffic at Hudson lane at that time. There is a distance of about 300 meters between Hudson lane and PS Mukherjee Nagar. He along with SI Manoj reached the spot on Govt. motorcycle. He admitted that the scene of crime is situated in congested residential area. Many public persons were present at the scene of crime. The staff of police station Mukherjee Nagar was already there and protecting the scene of crime. SI Manoj made inquiries from the public persons present there. He does not know if there is any shop and tiffin supply centre near the scene of crime. SI Manoj inquired from the public persons as to who made the call at 100 number. There is a distance of about 5 to 7 km in between Trauma centre and PS: Mukherjee Nagar. They remained on the spot for about 5 to 7 minutes. They reached Trauma Centre at 9:30 pm. 2-3 other persons were present when Anil met SI Manoj. He does not remember if clothes of Anil were stained with blood. SI Manoj did not make any inquiry from the other persons present with Anil. In his presence SI Manoj did not inspect any vehicle in trauma centre. It is not in his State Vs. Umesh SC NO:473/17 46 knowledge if the Bhabhi of deceased became unconscious on the scene of crime and fell down on the spot. He denied the suggestion that he directly reached Trauma centre from Hudson lane. He denied the suggestion that statement of Anil was recorded by SI Manoj of his own in the police station.
87. During cross-examination for accused Sombir he stated that he does not know if Amit was taken to some other hospital before Trauma centre. The post mortem on the body was conducted in the morning hours after 9:00/9:30 am on 27.07.2016. He does not know the time when dead body was handed over to the relatives.
88. HC Sukhleshwar was examined as PW-33. He deposed that on 26.07.2016 after receiving information he along with SI Manoj Kumar reached the spot. They found the blood lying on the ground, two empty cartridges, two live cartridges were lying on the spot. He along with SI Manoj reached the spot along with two more constables namely Ct. Madan and Ct. Pawan. Inspector Bhanu Parkash also reached there and prepared site plan. The blood was lifted with cotton and put in a plastic container. Crime team reached the spot along with photographer and inspected the scene of crime. Injured had already been removed to the hospital. No eye witness was found on the spot. The witness was cross-examined by Ld. APP as he was resiling from his State Vs. Umesh SC NO:473/17 47 earlier statement.
89. During cross-examination by Ld. Addl. PP, he admitted that he was on emergency duty along with SI Manoj. He admitted that SI Manoj received DD No.24A regarding the firing near Bada Shiv Mandir 138 Munshi Ram Colony. He admitted that he along with Ct. Madan left for the spot for guarding the scene of crime and SI Manoj along with Ct. Pawan left for Trauma centre. He admitted that SHO and other staff also reached the spot at about 11:00 pm SI Manoj reached the spot and lifted the blood stained concrete, earth control, two live cartridges, two empty cartridges, two small pallets, one big pallet put the same in plastic containers, sealed with the seal of MK and seized vide memo Ex.PW13/C. He admitted that SI Manoj prepared the rukka handed over to him at 12:55 am on 27.07.2016. At 1:10 am he handed over the rukka to duty officer, who registered the FIR and handed over the copy of FIR and original rukka to him to hand over the same to Inspector Bhanu Parkash. He admitted that Inspector Bhanu Parkash prepared the site plan.
90. During cross-examination by defence counsel, he deposed that he reached the spot along with SI Manoj. Ct. Pawan was not present on the spot when they reached there. Inspector Bhanu Parkash reached the spot at 9:45 pm. State Vs. Umesh SC NO:473/17 48 Eye witness came lateron and met Inspector Bhanu Parkash. He along with SI Manoj and IO met Anil at about 9:45 pm. There was crowd of 100 to 150 persons on the spot. Initially no relative of deceased met them on the spot. But lateron they met them on the spot, but later on he came to know that Bhabhi of deceased fell down on the ground as she became unconscious. He does not know the name of the person who told this fact to him, but he was relative of Anil. After about 10-15 minutes he came to know that Bhabhi of deceased fell down on ground and became unconscious. He admitted that statement of Anil was recorded in the police station. After 12 midnight he received rukka from the spot.
91. SI Harish Chand Pathak was examined as PW-34. He deposed that on 26.07.2016 at about 20:56:52 hrs a call was received at PCR Control room by Ct. Jitender that "firing hui hai ek aadmi ko goli lagi hai". The Place of incident was informed as 138 near Shiv Mandir, Munshi Ram Colony area Mukherjee Nagar. Ct. Jitender fed this information in the computer. The PCR form is proved as Ex.PW16/A. He had taken out the print out of the PCR form and proved the certificate u/s 65B Evidence Act as Ex.PW16/B. The testimony of witness has gone unchallenged and uncontroverted.
92. SI Pawan Kumar was examined as PW-35. He State Vs. Umesh SC NO:473/17 49 deposed that he along with HC Jile Singh on 27.07.2016 were in the area of PS :Beri and received information that complainant Sudhir is admitted in the hospital with fire shot injury. They reached PGI MS hospital Rohtak where Sudhir was found admitted. Doctor gave the certificate that Sudhir is fit for statement. He recorded statement of Sudhir and prepared rukka. FIR number 253/16 was registered in PS:
Beri Jhajjar. He proved the copy of FIR as Ex.PW30/A.
93. During cross-examination by the Ld. Defence counsel he stated that accused Sameer was also in case FIR No.253/16. He denied the suggestion that FIR 253/16 is a false and fabricated document.
94. ASI Jagbir was examined as PW-36. On 27.07.2016 he was working as duty officer in PS: Beri. He recorded the FIR number 253/16 u/s 307/120 IPC and 25 Arms Act on the basis of rukka sent by ASI Pawan Kumar. Copy of FIR is Ex.PW30/A. Nothing material came on record to discredit the witness during cross-examination.
95. Dr. Anshul Saxena was examined as PW-37. On 27.07.2016 he conducted the post mortem on the dead body of Amit. The dead body was sent by Inspector Bhanu Parkash in the mortuary with the alleged history of gun shot injury he proved the post mortem report as Ex.PW4/A.
96. During cross-examination the defence counsel put the State Vs. Umesh SC NO:473/17 50 following:-
Q: Is it correct that Injury No.2 is caused by pointing penetrating weapon like sua, pierce-ring concrete or the pointed grill?
Answer: Injury No.2 can be caused by a concrete of dimension 1.5x1 cm but not by the above 2 weapons.
97. He admitted that injury No.1 mentioned in his report is result of single fire. He admitted that there is no external injury except mentioned in his post mortem report Ex.PW4/A.
98. Thereafter the prosecution evidence was closed. Statement of accused persons were recorded u/s 313 Cr.PC wherein t hey denied the entire evidence. They did not wish to lead evidence in defence and thereafter, the case was fixed for final arguments.
99. I have heard. ld. APP for the State, Ld. Defence counsels for accused persons and perused the record.
100. Ld. APP submitted that the present case is based upon the ocular evidence. There are two eye witnesses namely Anil examined as PW-9 and Anita PW-3. Both the eye witnesses supported and corroborated each other in all material aspects. They deposed that on 26.07.2016 Anil was coming from Indira Vikas colony. PW-9 was standing outside his shop at that time and PW-3 was following Amit as they both had gone to purchase vegetables etc and were coming State Vs. Umesh SC NO:473/17 51 back. When Amit reached at the iron gate installed in the street the assailants along with their associates were already there and fired on Amit. Amit fell down after sustaining fire arm injuries and the accused persons fled away. Amit was taken to hospital by Anil PW-9 where he was declared dead. Ld. APP submitted that the PCR form itself shows that Anil was firstly taken to New Life Hospital and then to Trauma Centre as mentioned in the PCR form. The police witnesses Ct. Pawan PW32 and SI Manoj PW25 also deposed that Anil met them in the hospital and his statement was recorded. Anil also stated that police met him in the hospital and recorded his statement. Both the witnesses have correctly identified the accused persons i.e. Umesh and Sombir @ Cheli. Umesh fired upon Amit along with his associates Bhupender, (already convicted), Sombir @ Cheli kicked Amit when he was lying on the ground after sustaining fire arm injury to find out if he is alive or dead. The testimony of PW-3 and PW-9 finds corroboration from the medical evidence. According to the post mortem report Ex.PW4/A Amit died due to fire arm injury. The doctor who conducted post mortem found two penetrating fire arm injuries on the back of Amit. The doctor opined that the deceased died due to hemorrhage secondary to the injury to the spleen and liver. The injury no.1 is sufficient to cause death in ordinary course State Vs. Umesh SC NO:473/17 52 of nature.
101. Ld. APP further submitted that the prosecution has also been able to prove the motive behind commission of offence as there was enmity between family of Chand and the deceased. The evidence is there that Satyawan elder brother of Amit was convicted in murder case of Chand. Chand was younger brother of Kalu @ Surajmal. Umesh is son of Surajmal and Sombir is his friend that establishes that there was animosity between the two families and due to that reason offence has been committed. Ld. APP submitted that both the witnesses are reliable, trustworthy. They are not interested witness. They will not depose falsely against them to let off the actual culprits. There are only minor variations in the statements of both the witnesses which does not go to the root of the case. The onus which was on the prosecution has been fully discharged. It is prayed that accused persons be held guilty as both the eye witnesses have proved their guilt beyond doubt.
102. Ld. Defence counsel for Umesh submitted that he is not named in FIR though it was registered on the statement of Anil PW-9. Anil used to visit village Dubbal Dhan her in- laws house and house of Umesh is situated just opposite the house of his in-laws. He also used to stay there and join the family functions. He was already knowing them. His name is State Vs. Umesh SC NO:473/17 53 not appearing in the FIR clearly show that he has now implicated the present accused against whom there is not a single averment in the FIR. Ld. Counsel in support of his arguments has relied upon the judgment cited as State of Punjab v Ajaib Singh and Others, AIR 2004 SC 2466, wherein it was held that:
"16. The High Court has noticed many inconsistencies between the evidence of P.Ws. 4 and 5. It is not necessary to notice all of them but we find from the evidence on record that according to P.W. 4 he raised an alarm after the occurrence but no one came in response to the same. Thereafter the village Chowkidar came at about 7.00 a.m. and leaving him to guard the dead bodies he went to police station to lodge a report.
17. On the other hand, according to P.W. 5 he became unconscious on seeing the occurrence and he regained consciousness only in the morning where he saw his great grand father Jeon Singh to whom he narrated the incident. He has also mentioned the presence of Bogha Singh along with Jeon Singh when he regained consciousness. P.W. 4 has not even whispered about P.W. 5 becoming unconscious after seeing the occurrence and remaining at such till 7.00 a.m. in the morning. If both of them slept on adjacent cots and had seen the occurrence and one of them had become unconscious after seeing the occurrence, P.W. 4 would have certainly mentioned these facts. It is surprising that he has not said a word about P.W. 4 becoming unconscious after witnessing the occurrence. This creates a serious doubt about the presence of the alleged eye-witnesses at the time of occurrence and it appears from the evidence on record that they may have come to the place of occurrence in the morning after hearing about the ghastly crime. The crime was committed in the dead of night and was not witnessed by anyone. Only much later, after State Vs. Umesh SC NO:473/17 54 word was sent to the relatives, they assembled at the house of Jeon Singh at about 7.00 a.m. in the morning which included P.Ws. 4 and 5. This was the plea of defence and this has been accepted by the High Court. We find evidence on record to support this conclusion. Firstly we find it difficult to believe that though the occurrence took place in the village in the night which was witnessed by P.Ws. 4 and 5, no one came to the house after they raised alarm, and only at 7.00 a.m. in the morning the village Chowkidar could be contacted. However, even if we do not attach much importance to this fact the evidence on record clearly indicates that village Chudhuwala where P.W. 4 resided is connected by a metalled road with village Adamke. P.W. 4 denied this fact, but the evidence of the Investigating Officer P.W. 7 establishes beyond doubt that there is a metalled road connecting Adamke with Chudhuwala and the same can be covered in 7-8 minutes by car and 1 to 1= hours on bicycle. P.W. 5 was residing at village Jhunir where Surjit Kaur resided with Bogha Singh. According to the evidence on record village Jhunir is also connected with Adamke by a metalled road and the evidence is that its distance is 5 kms. less than the distance to village Chudhuwala. The evidence on record further discloses that at 7.00 a.m. Jeon Singh, Bogha Singh, P.W. 4 Gurjant Singh, P.W. 5 Gurcharan Singh and Jagjit Singh, another brother of P.W. 4, were present in village Adamke. It was thereafter that Gurjant Singh (P.W. 4) left for the police station to lodge a report. If we are to believe Gurjant Singh (P.W.
4) that the whole night they could do nothing since no one came to the house even on raising alarm, it is difficult to explain how all these persons from different villages assembled there at 7.00 a.m. in the morning at about the time when the Chowkidar came there.
Obviously, therefore, word must have been sent to relatives in different villages nearby in the night itself, so that they could reach the place of occurrence at about 7.00 a.m. The explanation of P.Ws. 4 and 5 that no one from the village State Vs. Umesh SC NO:473/17 55 came in spite of their raising alarm and that they kept sitting in the house till 7 O'clock in the morning appears to be untrue".
103. Ld. Counsel has also relied upon the Judgment titled as Pohlu v State of Haryana, (2005) 10 SCC 196, wherein it was held that:
"13. From the deposition of this witness it appears that in the course of the investigation he had stated that his father had been assaulted only by Ishwar, and not by others. In the course of deposition he sought to involve all the accused persons. Having considered the evidence of this witness in its entirety, we are satisfied that he is also not a reliable witness on whom implicit reliance can be placed and his credibility has been sufficiently impeached in his cross-examination. In fact so far as this witness is concerned, he named Raj Kumar and Prem Singh for the first time in the course of his deposition, and it appears that he had not even mentioned their names in the course of the investigation."
104. Ld. Counsel further submitted that even otherwise there was animosity between the two families. The brother- in-law of PW-9 was convicted for murder of Chand brother of Kalu. Under the circumstances it is not expected that PW-9 had not seen the suspects before and all these facts clearly show that he is telling a lie. PW-9 has also deposed that family members of Kalu extended threats and also chased the victim and son of PW-9 even in Kohlapur but this is only an after thought as no complaint in this regard was made and no evidence is there that they visited Kohlapur has been State Vs. Umesh SC NO:473/17 56 placed on record.
105. Ld. Counsel further submitted that PW-9 was not present on the spot. There is nothing on record that he removed injured to the hospital and then to the Trauma Centre. None of the neighbours who accompanied PW-9 to the hospital has been examined. Even Mahesh who made the call at 100 number has not been examined. In the site plan also his position has not been shown. So far as PW-3 is concerned there is no mention in the testimony of PW-9 that PW-3 was there. None of the other witness stated that any person became unconscious on the spot. PW-3 deposed that she was following Amit from a distance of about 8 to 10 steps. If PW-3 would have been there PW-9 must have noticed her and stated in his statement that PW-3 was also there who became unconscious but he is silent about this aspect and her presence. Even her location has not been shown in the site plan by the IO. IO had not seized the clothes of PW-9. Ld. Counsel submitted that PW-3 is not believable at all. Infact she was not present in Delhi on that day. Even otherwise, she was not got medically examined. According to her she regained consciousness next day in the morning. No doctor was called to take care of her. It is something unbelievable that the two persons were there and our of them one became unconscious and the other one has State Vs. Umesh SC NO:473/17 57 not come to know about that person or presence of that person. Ld. Counsel submitted that infact they both have made improvements in their deposition. They are not reliable. Even the car has not been examined by the IO to find out if there were any blood stains. Even the motive has not been established infact due to that animosity accused has been named falsely. There is no recovery from the accused or at his instance. The investigation is also shoddy. The benefit of the same be given to the accused Umesh and he be acquitted. Ld. Counsel for Umesh relied upon the judgment cited as State of U.P. v. Madan Mohan, AIR 1989 SC 1519 wherein it was held that:
"8. The locality where the incident occurred was a thickly populated one. There were several residential quarters as well as shops and dispensaries nearby. At the time of the occurrence, there were several a persons who had come out to purchase vegetables from the nearby lane. The halwai shop as well as the dispensaries of two medical practitioners near the place of occurrence were open. On bearing the commotion several persons had come out of their houses. Even though statements of a few including one of the medical practitioners were recorded none was called to the witness box. Both P.W. 1 and P. W. 2 cannot be said to he residents of the locality where the crime was committed as their residence were at some distance from the place of occurrence. The High Court was, therefore, of the opinion that their presence at the scene of occurrence at the relevant point of time cannot be said to be natural and was therefore doubtful. In the case of P.W. 1, the High Court opined that he was an interested witness being the brother of State Vs. Umesh SC NO:473/17 58 deceased Ram Shanker and his claim that he closed his shop early and was, therefore, the scene of occurrence when the incident occurred was difficult to accept. The High Court also took note of the fact that while P.W. 1 and P.W. 2 stated that the incident occurred at about 7.30 p.m., the deceased Satya Narain in his dying declaration gave the time of the incident as 6.00 p.m. The version regarding the incident given by P.W. 1 and P.W. 2 also materially differs from the version found in the dying declaration. The names of the accused disclosed in the dying declaration are also different. There is no mention about the participation of respondent Chander Mohan in the incident in the dying declaration. The dying declaration discloses that only respondent Madan Mohan caused knife injuries to deceased Satya Narain whereas deceased Ram Shanker was attacked by Kamla Tiwari, Rama and two others who were never prosecuted. Thus, respondent Chander Mohan and respondent Daya Shanker alias Munna have not been assigned any role by Satya Narain in his dying declaration. There is no mention about P.W. 1 and P.W. 2 having witnessed the occurrence even though the names of other witnesses are mentioned in the dying declaration. The High Court was, therefore, right in coming to the conclusion that the prosecution version regarding the incident as stated by P.W. 1 and P.W. 2 materially differs from the version unfolded by the dying declaration. The High Court was also right in observing that not a single witness from the locality was examined even though the statements of some of the residents including Sneh Lata were admittedly recorded. Sneh Lata was not examined on the ground that her whereabouts were not known. For the non- examination of the other prosecution witnesses no explanation is forthcoming. The relations of the deceased Satya Narain who removed the injured from the place of incident have also not been examined. Thus not a single person from the locality has been brought before the Court to unfold the actual occurrence and instead State Vs. Umesh SC NO:473/17 59 strong reliance is placed on the evidence of P. W. 1 and P.W. 2 whose presence is doubtful."
106. Ld. Defence Counsel has also relied upon the judgment cited as State of Punjab v. Sucha Singh, AIR 2003 SC 1471 wherein it was held that:
"10. PW-4 in his testimony before the Court stated that the accused also caused more injuries with their respective weapons on Sarabjit Singh. This witness was confronted with his statement recorded under Section 161 Criminal Procedure Code where he had not stated. Apart from discrepancy between ocular and medical evidence with regard to the injuries sustained by the deceased Sarabjit Singh on his body, the fact that the deceased suffered as many as 24 bodily injuries makes all the more doubtful the presence of PWs 4 and 5 at the place of occurrence. Inflicting 24 injuries on the body of deceased by the three accused persons would require a considerable amount of time. This itself suggests that the accused had sufficient time at their disposal to commit the crime. Any father, worth the name, would not remain a mute spectator when his son is being inflicted as many as 24 injuries at his very nose."
107. Ld. Counsel for Sombir @ Cheli besides supporting the arguments forwarded by Ld. Counsel for Umesh submitted that PW9 in his first statement did not mention that there were four assailants. He only stated that there were two assailants who fired upon Amit and after firing they both fled away. Later on he came up with a new story that instead of two persons there were four persons. Two fired and the other two kicked Amit who was lying on the ground to find out State Vs. Umesh SC NO:473/17 60 if he is alive or dead. Ld. Counsel submitted that same is the position of Anita. This is material improvement made by Anil as well as Anita. Ld. Counsel submitted that if there would have been four persons as now deposed by PW-9 Anil and PW-3 Anita, Anil would have mentioned this fact in the first complaint i.e. Statement Ex.PW9/A on the basis of which FIR was registered. Ld. Counsel submitted that infact Anil and Anita were not there. Anita was residing in village Dubbal Dhan only and i.e. why Anil does not state in his statement that Anita was also residing with them in his house though he stated that Amit was residing with them in the same house. This fact itself creates doubt regarding the presence of Anita. So far as Anil is concerned he is clearly making improvement which is material improvement and hence cannot be relied upon. Ld. Counsel prayed that as witness is not reliable so far as the presence of Sombir or anything done by him is concerned therefore, the benefit be given to the accused and he be acquitted. Ld. Defence Counsel in support of his arguments relied upon the judgment cited as Bhimappa Jinnappa Naganur v. State of Karnataka, AIR 1993 SC 1469 wherein it was held that:
"6. It may be noticed that the complaint Ext.P1 on the basis of which the FIR was registered was as written document prepared before being submitted to the Police Station yet it did not mention Ajith (PW2) or Jinnappa (PW3) as eye-State Vs. Umesh SC NO:473/17 61
witnesses and the trial Court had, therefore, disbelieved the presence of PWs. 2 and 3 as eye-witnesses. On the facts of the case it cannot be said that the reasons are far fetched."
108. Ld. Counsel has further placed reliance on the judgment cited as Harchand Singh v. State of Haryana, AIR 1974 SC 344 wherein it was held that:
"9. It cannot be disputed that a murderous assault was made on Ajaib Singh on the day of occurrence as a result of which he died. The evidence of Dr. Shamsher Singh, who examined Ajaib Singh when he was taken to Khanna hospital as well as the evidence of Dr. Gurbhachan Singh Randhawa who performed post mortem examination on the dead body, shows that as many as eighteen injuries were inflicted upon Ajaib Singh deceased. Out of them, seven had been caused by sharp-edged weapons. Death, in the opinion of Dr. Randhawa, was due to shock and haemorrhage as a result of the cumulative effect of the injuries. According to the case of the prosecution the two appellants joined in the assault on the deceased as a result of which the latter died. The prosecution in support of its case examined two sets of eye witnesses. The evidence of one set consists of the testimony of Amarjit Singh. Mal Singh and Teja Singh. So far as these witnesses are concerned the trial court came to the conclusion that they were not present near the scene of occurrence and had not witnessed the occurrence. The trial court in support of this conclusion gave reasons which appear to be cogent and weighty and we find no particular ground to take a different view. The evidence of Ram Asra, who according to the prosecution case was with Ajaib Singh deceased at the time of the occurrence, shows that Amarjit Singh, Mal Singh and Teja Singh were not present at the time of the occurrence. If Amarjit Singh, Mal Singh and Teja Singh had been present at or about the place of State Vs. Umesh SC NO:473/17 62 occurrence and had actually seen the occurrence, it is difficult to believe that Ram Asra would have remained unaware of their presence. According to Amarjit Singh, Mal Singh and Teja Singh, they saw the occurrence while they were coming from their house. They were at a distance of about 60 karams from the place of occurrence when they heard alarm being raised and on coming nearer they saw the six accused inflicting injuries upon Ajaib Singh deceased. As against that the version of Ajaib Singh deceased in the dying declaration was that the above mentioned three witnesses were working in the field nearby when he was assaulted by the accused. Amarjit Singh, Mal Singh and Teja Singh claimed that they were proceeding from their house to the well with Tokras and Kahis for the purpose of consolidating the new channel with earth filling. If that was the purpose for which they were going to the well, they would have gone there before and in any case not after Ajaib Singh deceased so that they might prepare the channel before Ajaib Singh started operation of the Persian wheel at the well. We thus find that not only the explanation given by Amarjit Singh, Mal Singh and Teja Singh regarding their arrival at that time is not convincing, there is material discrepancy in the version of Ajaib Singh deceased in his dying declaration and the testimony of Amarjit Singh, Mal Singh and Teja Singh PWs regarding the presence of these witnesses at or about the place of occurrence. On the top all this we find that the evidence of Ram Asra upon which reliance has been placed by the prosecution shows that Amarjit Singh, Mal Singh and Teja Singh were not there and had not witnessed the occurrence."
109. Ld. Counsel has also relied upon the judgment cited as Nasib Hussain (Md.) v. State of Assam (Gauhati), 2015 (3) GLT 89, wherein Gauhati High Court has held that:
"It is a settled law that when two different views appears in a case, one of which, leans in favour State Vs. Umesh SC NO:473/17 63 of the accused, is normally to be accepted(reliance placed on a case reported in AIR 2011 SC(SUPP) 573; State of U.P. v. Munni Ram & ors.). It is a cardinal principle of criminal law that prosecution is to prove the charges beyond all reasonable doubt by producing credible evidence against the accused and the prosecution is to stand on its own legs, not on the lapse of the defence story. In the given case, though one of the accused has stated that victim went to them voluntarily but the prosecution also could not brought substantive evidence to prove the ingredients of the offence charged. The statement of the victim given under section 164 of the Code of Criminal Procedure, 1973, bears much value as it is given on oath immediately after the occurrence and the victim herself contradicted her statement which cannot be allowed to prevail to prove the guilt of the accused to the hilt. The prosecution case being clouded with shadow of doubt, has lost its authenticity as regards the charge and situated thus, I am constrained to hold that the learned Court below has arrived at the guilt of the accused in a wrong application of evidence/materials on record."
110. Ld. Defence Counsel has also relied upon the judgment cited as Kuna @ Sanjaya Behera v. State of Odisha, AIR 2017 SC 5364 wherein the Supreme Court has held that:
"21. The quintessence of the enunciation is that the expression "proved", "disproved" and "not proved", lays down the standard of proof, namely, about the existence or non-existence of the circumstances from the point of view of a prudent man, so much so that while adopting the said requirement, as an appropriate concrete standard to measure "proof", full effect has to be given to the circumstances or conditions of probability or improbability. It has been expounded that it is this degree of State Vs. Umesh SC NO:473/17 64 certainty, existence of which should be arrived at from the attendant circumstances, before a fact can be said to be proved."
111. Ld. Defence Counsel further placed reliance on the judgment cited as Sujoy Sen v. State of West Bengal, (2007) 3 SCC 32 wherein the Apex Court has held that:
"13. No doubt a minor discrepancy in a FIR will not be fatal to the prosecution case. But the discrepancy in the FIR in the present case is not a minor discrepancy, but a major one. Had the first informant seen the accused entering into the house at the time of the incident he would have definitely mentioned the fact in the FIR."
112. Ld. Defence Counsel further placed reliance upon judgment cited as State, represented by Inspector of Police, Tamil Nadu v. Sait @ Krishnakumar, (2008) 15 SCC 440, wherein it was held that:
"4. The High Court found that it was an accepted position, as conceded by PWs 1 and 2 that they had seen the photographs and read the names of the accused in the newspaper prior to the test identification parade. On that - ground, the High Court disbelieved the evidence of PWs 1 and 2. So far as PW-3 is concerned, the High Court found that his version to have only read the name of the accused in the newspaper and not to have seen the photographs, was not believable. Accordingly, PWs 1 to 3 were disbelieved. The residual question was the reliability of the evidence tendered by PW-8. Here again, the High Court found that his version lacked credence. He claimed to be a person who had seen the accused after some time of the incident with a blood stained knife. But his conduct was found to be unnatural. If he was the only person to have seen the accused from State Vs. Umesh SC NO:473/17 65 close quarters, it was not explained why he did not say so during investigation. Such a version for the first time in Court has been rightly discarded by the High Court. Therefore, the High Court directed acquittal, as noted above."
113. Ld. Counsel has also relied upon the judgment cited as State of Rajasthan v. Rajendra Singh, AIR 1998 SC 2554 wherein it was held that:
"7. It was submitted by the learned counsel for the State that as many as six witnesses were found injured and that would establish their presence at the place of the incident. In our opinion this contention is of no help to the appellant because their evidence has not been discarded on the ground that they were not present. Their evidence was discarded because they were found not telling the truth before the Court. It was also submitted by the learned counsel that the evidence of PWs 1 to 4 stood corroborated by two independent witnesses, namely Ramjilal and Jeevan Singh. P.W. 8 Ramjilal had stated that he had gone to the spot on hearing sound of a gun shot and tried to snatch away the gun from the respondent. But he was contradicted by his police statement wherein he had not stated anything regarding snatching of the gun. This omission on such a vital point has to be regarded as a contradiction and it creates a serious doubt about the truthfulness of his version. P.W. 9 Jeevan Singh had stated that he had also rushed to the spot on hearing the sound of a gun shot. He further stated that he had made an attempt to save Harveer and in doing so he had received an injury. He had not so stated before the police. This also shows that this witness had made a material improvement before the Court in order to make his evidence acceptable."
114. Ld. Defence Counsel also relied upon the judgment cited as Sujit Biswas v. State of Assam, AIR 2013 SC 3817 State Vs. Umesh SC NO:473/17 66 wherein it was held that:
"6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved, and something that 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between 'may be' and 'must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide:
Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, 2011(1) R.C.R.(Criminal) 706 : 2011(1) Recent Apex Judgments (R.A.J.) 389 ; and Ramesh Harijan v. State of U.P., 2012(3) R.C.R.(Criminal) 998 : 2012(4) Recent Apex Judgments (R.A.J.) 218 )."
115. Ld. Counsel further placed reliance on the judgment State Vs. Umesh SC NO:473/17 67 cited as Ram Kumar Pandey v. State of M.P, AIR 1975 SC 1026 wherein it was held that:
"9. No doubt an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9.15 p.m. on 23-3-1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the F.I.R. We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case."
116. Ld. Counsel has also relied upon the judgment cited as Ramashish Yadav v. State of Bihar, AIR 1999 SC 3830 wherein it was held that:
"Section 34 lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of Section 34 is the element of participation in action. The common intention implies acting in concert, existence of a pre- arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a pre-arranged plan and it pre-supposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be pre- arrangement or premeditated concert. This State Vs. Umesh SC NO:473/17 68 being the requirement of law for applicability of section 34 Indian Penal Code, from the mere fact that accused Ram Pravesh Yadav and Ramanand Yadav came and caught hold of Tapeshwar, whereafter Samundar Yadav and Sheo Layak Yadav came with gandasa in their hands and gave blows by means of gandasa, it cannot be said that the accused Ram Pravesh Yadav and Ramanand Yadav shared the common intention with accused Samundar Yadav and Sheo Layak Yadav. Consequently, accused Ram Pravesh Yadav and Sheo Layak Yadav."
117. Ld. Defence Counsel has also relied upon the judgment cited as Nirmal Singh v. State of Bihar, AIR 2005 SC 1265 wherein it was held that:
"20. So far as the case of appellant Ranjan Singh is concerned, the allegation against him is that he exhorted PW-1 to fire at the deceased. It is not the case of the prosecution that though carrying a weapon, he fired at anyone. Moreover, if all the four accused had come determined to kill the deceased and three of them were armed with country made pistols, there was no need for appellant Ranjan Singh to exhort his companion to fire at the deceased. Without casting any reflection on the evidence of the eye-witnesses, and only by way of abundant caution, we are inclined to extend the benefit of doubt to appellant Ranjay Singh @ Ranjan Singh appellant in Criminal Appeal No. 171/2004."
118. After hearing the arguments and going through the record I found that there are only two eye witnesses in this case namely Anil PW-9 and Anita PW-3. PW-3 deposed that she along with Amit (deceased) had gone to the market for making purchases. While they were returning Amit was State Vs. Umesh SC NO:473/17 69 moving ahead of her. Accused Umesh and Sombir @ Cheli along with their co-accused came from the side street and fired upon Amit. It was Umesh and Bhupender who fired upon Amit and the other two accused kicked Amit to find out if he is alive or not. PW-9 also corroborated the testimony of PW-3 that when Amit entered the gate two accused persons fired upon Amit. He stated that he can identify them and he identified Umesh as the person who fired upon Amit. Sombir @ Cheli kicked Amit to find out if he is alive or not. No doubt blood stained clothes of Anil were not seized and even the location of PW-3 and PW-9 is not shown by the IO in site plan. But as both the witnesses are reliable and trustworthy merely due to this lapse on the part of the IO no benefit can be given to the accused persons. Ld. Defence counsel has also raised the plea that PW-9 was not there but I found that PCR form itself shows that Amit was removed firstly to New Lifte Hospital by Anil as also deposed by Manoj PW-25 also and both Ct. Pawan PW32 and SI Manoj PW25 also deposed that Anil met them in the hospital which supports the contention that it was he who removed the injured to the hospital. No other person was there in the street at that time as deposed by PW-9. Therefore, non examination of any other witness does not impact the case even otherwise it is the quality of evidence and not the quantity which is material. State Vs. Umesh SC NO:473/17 70 When those two witnesses are fully supporting the prosecution case examination of more witnesses does not mean anything and on this ground no benefit can be given to accused. Ld . Counsel has also raised the plea that Mahesh who made the call at 100 number has not been examined. But in my opinion that also does not make any difference as there are two other eye witnesses who have been examined who have fully supported and corroborated each other. The testimony of PW3 and PW9 also founds corroboration from the medical evidence i.e. the post mortem report Ex.PW4/A wherein the doctor also found two penetrating wounds on the back of the deceased and thus the scientific evidence corroborates the ocular evidence.
119. So far as the presence of PW-3 is concerned. She stated that she was at a distance of 7 - 8 steps following the deceased. The defence taken was that she had not sustained any pallet injury but it is to be noticed that Amit was going ahead of PW3 and the firing was done on the back of Amit. It is not the case that Amit was coming towards her. Under the circumstances there was no chance of her suffering any pallet injury when the firing is done at the back of Amit as the fire arms were not pointed in the direction in which PW-3 was present.
120. It is also important to note that one HC Sukhleshwar State Vs. Umesh SC NO:473/17 71 was examined as PW33 and he stated that he came to know on the spot that Bhabhi of the deceased became unconscious on the spot. PW3 has also name the accused Umesh in her statement and it is quite natural she being residing in village Dubbal Dhan and Umesh was residing just opposite there house & there were also family relations between two families. So far as the non mentioning of name in the FIR is concerned it is clear that the accused persons were not known to PW-9 and hence, his not naming the accused persons and that does not make a difference when he has specifically stated that he can identify them. Keeping in view this evidence and the testimonies of the witnesses, I found that both the witnesses are reliable and trustworthy with minor variations and contradictions which are natural. So far as PW3 not seeking any medical help is concerned, I do not find any reason to discard the testimony of PW-3 merely on this ground because when she had seen her brother-in-law (Devar) being fired it is quite natural that she got a shock and then it is quite natural and probable that she lost her consciousness. She had deposed that she regained consciousness only on the following morning which is also quite natural and probable and it does not detract her from truth of her version. There were no upper external injuries suffered by her. She had lost her consciousness and the State Vs. Umesh SC NO:473/17 72 failure to call a doctor at that point in time cannot be said to unusual. Keeping in view the testimony of PW-3 and PW-9 it is apparent that they are reliable trustworthy and credible witnesses. PW9 is also a natural witness, as his shop is situated only two feet away from the spot & this fact is not disputed. They have with stand the cross-examination. The IO did not find it necessary to corroborate and investigate and record the statements of further witnesses as he found that both the witnesses are reliable and infact those both witnesses have stood firm through the intensive cross examination.
121. So far as the testimony of PW-3 and PW-9 with respect to Sombir @ Cheli is concerned record shows that Anil in his statement Ex.PW9/A stated that two boys came at the corner of the street and fired on Amit. He ran to save Amit and both those boys ran away in two different streets. He also stated that murder of Amit has been committed by sons of Kalu i.e. Umesh and Sameer however he had not seen them earlier but can identify them. Here it is important to note that Anita PW-3 told the names of boys as Bhupender and Umesh who fired on Amit. Bhupender had already been held guilty and convicted vide Judgment dt. 22.08.2017 and sentenced vide order dt. 29.08.2017. Umesh is son of Surajmal and is identified by Anita and Anil as the same State Vs. Umesh SC NO:473/17 73 person who fired on Amit along with his co-accused. Anil in his statement does not say that there were four persons. He was confronted with his statement when he stated that there were four persons and that Sombir @ Cheli was also among them. He also deposed that after Amit fell down Sombir @ Cheli kicked Amit to find out if he is alive or dead and thereafter ran away. Anil was also confronted with his statement with respect to this fact as it was not mentioned in his first statement Ex.PW9/A on the basis of which FIR was registered. In my opinion if there would have been four persons Anil would have certainly noticed them and also mentioned this fact in his statement Ex.PW9/A. Non mentioning of this fact in exhibit PW9/A clearly shows that it is an after thought and has been introduced lateron only to make out a case against accused Sombir @ Cheli. In my opinion this is a material improvement and no reliance on the same can be placed.
122. Similarly, so far as Anita PW-3 is concerned, she has not assigned any role to any other person except that Bhupender and Umesh fired on Amit though he stated that Sombir Cheli was also present but according to her Sombir Cheli fled away immediately when firing started. Merely because Sombir Cheli had fled away from the spot when firing started does not mean that he was involved in the State Vs. Umesh SC NO:473/17 74 commission of crime or having common intention to kill with the other accused persons. A new fact has been introduced by Anita that Sombir Cheli kicked Amit while he was lying on the ground in order to find out whether he is alive or dead. She was confronted with her statement where this fact was not found mentioned. This is a material improvement and hence cannot be relied upon. In my opinion PW-3 and PW-9 do not inspire confidence so far as role of accused Sombir @ Cheli is concerned.
123. As discussed above PW-3 and PW-6 are reliable, trust worthy and inspires confidence so far as accused Umesh is concerned. The defence has failed to breach the veracity of both these witnesses during intensive cross-examination. Both the witnesses have testified that the accused Umesh along with his co-accused Bhupender @ Joker (already convict) fired on Amit resulting into his death. Keeping in view the testimony of these eye witnesses I am of the opinion that prosecution has proved and established the guilt of accused Umesh beyond doubt. He is therefore held guilty and convicted u/s 302 IPC.
124. Accused persons were also charged for the offence punishable u/s 174A IPC as they failed to appear before the court even after execution of process u/s 82 Cr.PC. The onus was upon the prosecution to prove and establish the fact that State Vs. Umesh SC NO:473/17 75 the processes u/s 82 Cr.PC were executed against accused Umesh and Sombir but no such witness has been examined. The order declaring Umesh and Sombir as P.O has been proved but in my opinion that does not discharge the onus. As the prosecution has failed to prove the execution of process u/s 82 Cr.PC hence, both the accused are acquitted u/s 174A IPC. Accused Sombir @ Cheli also stands acquitted for the offence u/s 302 IPC. He be released on furnishing Personal bond in the sum of Rs.25,000/- with one Surety of like amount u/s 437(A) Cr.PC for a period of six months.
Now to come up for quantum of sentence qua convict Umesh on 18.09.2018.
VIRENDER Digitally
VIRENDER
signed by
KUMAR KUMAR BANSAL
Date: 2018.09.15
Announced in the open court BANSAL 16:21:33 +0530
today i.e. on 15.09.2018 (VIRENDER KUMAR BANSAL)
ASJ/Pilot Court/North District
Rohini Courts/New Delhi.
State Vs. Umesh SC NO:473/17 76