Delhi District Court
State vs . (1) Mukesh @ Bhola on 16 July, 2012
IN THE COURT OF Dr. KAMINI L;AU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 1133/2009
Unique Case ID No.: 02404R0182412009
State Vs. (1) Mukesh @ Bhola
S/o Sh. Om Prakash
R/o H1/252, Jahangir Puri,
Delhi
(Acquitted)
(2) Vijay @ Munna
S/o Sh. Ram Singh
R/o House No. 887,
VPO Karala, Delhi
(Acquitted)
(3) Vishal @ Monu
S/o Sh. Gyan Singh
R/o House No. 885/A,
VPO Karala,
PS Kanjhawla, Delhi
(Acquitted)
(4) Sanjeev @ Baba
S/o Sh. Harpal Singh
R/o 423, Balmiki Basti,
Khera Kalan, Delhi
(Acquitted)
St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 1 of 113
(5) Sushil @ Sushi
S/o Sh. Gyan Chand
R/o 579, Sanjay Enclave,
GTK Road, Jahangir Puri,
Delhi
(Acquitted)
FIR No.: 181/2009
Police Station: Jahangir Puri
Under Section: 364/365/302/34 Indian penal Code
Date of committal to sessions court: 3.8.2009
Date on which orders were reserved: 31.5.2012
Date on which judgment pronounced:16.7.2012
JUDGMENT:
(1) As per allegations, on 25.3.2009 at about 6:00 PM near H Block School, Jahangir Puri, Delhi all the accused namely Mukesh @ Bhola, Vijay @ Munna, Vishal @ Monu, Sanjeev @ Baba and Sushil @ Sushi in furtherance of their common intention abducted one Amjad with intent to commit his murder and thereafter committed the murder of Amjad in an Alto car bearing No. DL3CA3120 by shooting him down from a desi katta. It is also alleged that after committed the murder of Amjad all the accused in furtherance of their common intention threw the dead body of Amjad in a well in the fields on the way from village Khera Kalan to village Holambi Kalan with an intent St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 2 of 113 to cause disappearance of the evidence of commission of offence of murder. Further, as per allegations on 4.4.2009 at House No.422, Balmiki Basti, Village Khera Kalan the accused Sanjeev @ Baba got recovered one desi katta which was found in his possession without any valid license and it was the same desi katta which he used in the commission of murder of Amjad.
BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 25.3.2009 at about 8:26 PM information was received at Police Station Jahangir Puri regarding kidnapping of a boy from H770, Jahangir Puri, Delhi pursuant to which DD No. 51 A was lodged which was marked to ASI Ram Kishan. ASI Ram Kishan made efforts to trace the complainant but could not trace him on the same day and the DD was kept pending.
During inquiry it was revealed that Amjad S/o Bateru Beg had been kidnapped by one Bhola and his friends. On 26.3.2009 at 1:20 PM ASI Ram Kishan prepared the rukka on the basis of DD No. 51A pursuant to which initially an FIR under Section 365 IPC was registered. On 26.3.2009 at 8:30 PM an information vide DD No. 74B was received to the effect that the dead body of Amjad S/o Bateru Beg was found in a well on Kher Kalan - Narela Road. On receiving this information ASI Ram Kishan along with the complainant Ismail reached the well in the fields of Khera Village where Ismail identified the dead body of his brother Amjad. Thereafter investigations of this case was transferred to St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 3 of 113 Inspector Vipin Bhatia and the dead body of Amjad was kept in the Mortuary of BJRM Hospital wherein the postmortem examination on the dead body was got conducted.
(3) On 27.3.2009 an information was received at Police Station Jahangir Puri from Police Station Paschim Vihar vide DD No. 25A that three accused persons involved in this case namely Sanjeev @ Baba, Vishal @ Monu and Vijay @ Munna were arrested. Thereafter, the above three accused persons were formally arrested in the present case. On the same date i.e. 27.3.2009 at night the accused Mukesh @ Bhola was arrested pursuant to a secret information and during interrogation the accused disclosed that he along with Vishal, Vijay, Sanjeev and one Sushil @ Sushi kidnapped Amjad on 25.3.2009 evening in an Alto Car No. DL3CAG3120 and thereafter committed his murder in the same car by firing through a desi katta.
(4) On 4.4.2009 all the accused Sanjeev @ Baba, Vishal @ Monu and Vijay @ Munna were interrogated and their disclosure statements were recorded. Pursuant to his disclosure statement the accused Sanjeev @ Baba got recovered the desi katta with which he had fired upon the deceased.
(5) Initially the charge sheet was filed against the accused Mukesh @ Bhola, Vijay @ Munna, Vishal @ Monu and Sanjeev @ Baba. The accused Sushil Kumar @ Sushi could not be arrested and he was declared Proclaimed Offender vide by the Ld. MM on 6.7.2009. St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 4 of 113 However, on 10.11.2011 the accused Sushil Kumar @ Sushi was arrested after which a supplementary charge sheet was filed against him. CHARGE:
(6) Charges under Sections 364/302/201/34 Indian Penal Code were settled against all the accused Mukesh @ Bhola, Vijay @ Munna, Vishal @ Monu, Sanjeev @ Baba and Sushil @ Sushi to which they pleaded not guilty and claimed trial. A charge under Section 25 Arms Act was also settled against the accused Sanjeev @ Baba to which he pleaded not guilty and claimed trial.
EVIDENCE:
(7) In order to prove its case the prosecution has examined as many as Forty Four witnesses:
Eye witnesses/ public witnesses:
(8) PW1 Jaspreet Singh has deposed that he is a food vendor and his parents used to reside in Cuttak Orissa. According to him, on 25.03.2009 he along with his maternal uncle and their children started for NDLS for going to Cuttak as his mother was ill and his brotherin law (Sala) Sachin Parkash dropped him at NDLS in his Alto Car No. DL3CAG3120. The witness has further deposed that his brotherin law Sachin took the car from railway station after leaving them there.
He has further deposed that he did not know as to who had taken his car from his brotherinlaw Sachin. This witness has further deposed that St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 5 of 113 he did not know as to what happened with his car but later on he came to know that some murder had taken place. He has identified his signatures on the document Ex.PW1/A and Ex.PW1/B at point A. he does not remember the day when he returned from Cuttak and has deposed that he obtained his car on Superdari vide Superdarinama Ex.PW1/C. He has further deposed that he was interrogated by the police in this regard.
(9) This witness was declared hostile by Ld. Addl. PP as he was resiling from his previous statement and during cross examination by Ld. Addl. PP, the witness has deposed that he does not remember whether his statement was recorded by the police or not nor does he remember if a phone of Bhola had come to him at around 4 PM on 25.03.2009. He has admitted that he knew Mukesh @ Bhola from the assembly election and that there was a telephonic conversation between him and Bhola at about 5 PM on 25.03.2009 when Bhola demanded his vehicle as he had to take his wife to the hospital but he does not remember whether he had made a call or had received the same. According to him, he does not remember whether he had stated that the clutch of his vehicle was out of order. This witness has admitted that Sachin had informed him that Bhola along with Sunil had taken his aforesaid vehicle and that on 26.03.2009 he received a telephonic call from his friend Ajay Sharma, who informed him that some person was murdered in his car and after about 15 days he came back to Delhi but St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 6 of 113 he does not remember the exact date of his arrival to Delhi and states that after coming back he along with Sachin went to Police Station and Sachin handed over the key of the motorcycle to the Investigating Officer. According to the witness, RC of the said motorcycle and motorcycle were also not handed over by Sachin to the Investigating Officer. He has denied that the motorcycle bearing No. DL8S AP3721 and its RC was handed over to the police by Sachin and a memo in this respect was prepared which is Ex.PW1/A, however, this witness had identified his signatures on Ex.PW1/A. He has admitted that he had handed over his railway tickets to the Investigating Officer which were taken into possession by the Investigating Officer which tickets are marked as X2 and X3. He does not remember whether he had given the telephone Number of Sachin to Bhola when his phone had come and he has admitted that his mobile phone was having No. 9899029072 and he did not make call on mobile phone No.9711081170. He has further deposed that he is not aware of the mobile phone number of Bhola and states that the mobile number No 9338547575 was the number of his father's phone. He has denied that in order to save the accused persons he was not telling the facts that Mukesh along with Sushil had taken his aforesaid car from his cousin Sachin deliberately or that Sachin had also made telephonic call on 25.03.2009 who informed him that his car had not come back. The witness has also denied the suggestion that Sachin St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 7 of 113 had handed over the motorcycle and RC of the motorcycle to the Investigating Officer in his presence or that he was not telling this fact deliberately in order to give the benefit to the accused persons. He has produced the said Car in the Court which car is Ex.P1. (10) In his cross examination by the Ld. Defence Counsel the witness has deposed that he along with his Mama, Mami, their two children and one brother had gone to Cuttak on 25.03.2009. He is unable to tell the exact distance between New Delhi Railway Station and his house at Jahangirpuri and has voluntarily stated that it is one hour journey on road. According to him, they reached at Cuttak on 26.03.2009 in the evening and he did not hand over the traveling ticket to the TT at the time of their exit from Cuttak Railway Station and their traveling ticket were checked by the TT just after crossing the Ghaziabad Railway Station. He has denied the suggestion that Mark X2 was not the travel ticket which he used on said date. He has admitted that ticket mark X3 bear the signature of the TT and that ticket marked X3 was also not surrendered at the time of arrival back to Delhi. He is not aware who made the writing at point X on mark X2. According to the witness, he has no idea as to who made the writing at point X4 on the reverse of ticket mark X2. He is not aware who had made overwriting on digit 7 at point X5 and states that the ticket mark X2 was not purchased from ticket window but from a broker. The witness has also deposed that his Mama namely Rajender Singh had brought the said St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 8 of 113 ticket and was in the possession of his Mama Rajender Singh during traveling. He has also deposed that he had gone to the police station after three to four days after their arrival from Cuttak and he got scared because of this case and that is why he came back in emergency by Tatkal as the position of his mother was better at that time. He has testified that his mobile phone was not demanded by any police officials and that is why he did not hand over the same to the Investigating Officer. He has testified that his mobile phone was of prepaid connection and states that the Investigating Officer did not ask him about the details of his connection. According to the witness, he did not recollect how many times Sachin must have called on his father's mobile and has voluntarily stated that he thought he had not even called on the said mobile. He has further deposed that Sachin was doing a private job at Lajpat Nagar and stayed at Swaroop Nagar which is about two to three kms from his house at Jahangirpuri. He has admitted that he did not know what happened to his car after he left it at the railway station. He has denied that he did not receive any call from Sachin, but has admitted that he had not received any call from Bhola during travel. He has also admitted that he did not have any telephonic conversation with Bhola either during travel or after reaching Cuttak. He has denied that he did not make any statement to the police or that the police never met him and has voluntarily stated that the police met him after three to four days of his return but he cannot tell the date. He has admitted that he returned St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 9 of 113 because Sachin who was his brotherinlaw was very upset. (11) This witness was recalled for reexamination on 02.12.10 on the point of duplicate key of his car wherein he has deposed that he obtained the key which had been got prepared by the police official along with the Alto Car No. DL3CAG3120 on superdari and the said key had been lost therefore he had to obtain another duplicate key from the agency from where he had purchased the vehicle. He has produced the same key in the Court which is Ex.P4. In his further cross examination this witness has denied that he had not produced the key got prepared by the police official which was received by him on superdari along with the car in the court deliberately. (12) PW1 Jaspreet Singh was recalled for reexamination on 23.03.2012 after the arrest of accused Sushil who was earlier Proclaimed Offender and the witness has corroborated his earlier testimony in toto. (13) PW3 Mohd. Ismail is the brother of the deceased who has deposed that on 25.03.2009 he was going to Azadpur Mandi and at around 5:306:00 PM when he reached near Milk Dairy he saw the accused Bhola and his four others associates were taking his brother Amjad while one of the accused persons pointed the revolver on the back of his brother. He has further deposed that his brother Amzad was pushed in an Alto Car of silver colour on which he (witness) raised an alarm but they (the accused) succeeded in taking away his brother in the said car. According to the witness, on 26.03.2009 he had seen the dead St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 10 of 113 body of his brother in a tempo parked at Police Station Samaypur Badli and he had identified the body of his brother Amjad. He has testified that there was no enmity between his brother Amjad and accused Bhola and his four associates. The witness has also deposed that on 05.04.2009 he went to Police Station Jahangirpuri where the three accused persons except Bhola were present in the police station. He has deposed that he had identified all three persons as the same person who had taken away his brother and their names are Bhola, Vishal, Sanjeev and Vijay. According to the witness the name of absconding accused was Susheel. He has also deposed that on 27.03.2009 he had identified the dead body of his brother at BJRM hospital after the postmortem and his statement was recorded by the Investigating Officer which is Ex.PW3/A. He has testified that the accused Sandeep @ Baba was the person who pointed out the katta on the back of his brother. (14) In his crossexamination by the Ld. Defence Counsels the witness has deposed that he along with many persons of the area went to the Police Station Samaypur Badli where he saw the dead body of his brother Amjad in a Tempo on 26.03.2009. He has further deposed that first of all a police officer of Police Station Samaypur Badli recorded his identification statement Ex.PW3/A. According to him, from Police Station Samaypur Badli the police of Police Station Samaypur Badli sent the dead body to mortuary for postmortem. He has further deposed that he went to Police Station Jahangirpuri on 25.03.2009 where ASI Ram St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 11 of 113 Kishan met him and after 25.03.2009 ASI Ram Kishan never met him and only Insp. Vipin Bhatia met him after the identification of dead body of his brother Amjad in Police Station Samaypur Badli. He has testified that his brotherinlaw (sala) Rajan informed him that dead body of his brother was found lying in a well at village Khera Kalan. According to him, he did not give information to Police Station Jahangirpuri after receiving information of the dead body through his brotherinlaw. He has further deposed that the case was registered upon his statement at Police Station Samaypur Badli after the recovery of dead body of his brother. The witness has also deposed that police at Police Station Jahangirpuri never recorded his statement and only recorded the FIR after recovery of dead body of his brother and it was on the next day that police of Police Station Jahangirpuri obtained his signatures on some papers at police Station Jahangirpuri. He has further deposed that police did not record his statement on 25.03.2009 and did not hear them before the recovery of dead body of his brother. He has also deposed that on 25.03.2009 he was not having a mobile and he did not approach any senior police officer when the police of Police Station Jahangirpuri refused to record his statement. This witness has further deposed that on 26.03.2009 they received a telephone call regarding the recovery of dead body at 12 noon and the police of Police Station Jahangirpuri did not take any action prior to recovery of dead body of his brother. He has also deposed that whatever action the police of St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 12 of 113 Jahangirpuri took, it was taken after the recovery of dead body when there was a mass protest. According to the witness he did not make any telephone call on 25.03.2009 and his mother gave a telephone call at number 100 after which the PCR reached at their residence at around 7 PM on 25.03.2009 and recorded statement of his mother. This witness has further deposed that all the accused persons had surrendered in Ashok Vihar police station on 26.03.2009 in the evening and when all the accused persons surrendered before ACP Prem Nath on 26.03.2009 he along with his mother and twothree other boys were present in the office of ACP Prem Nath at Police Station Ashok Vihar. According to him, he is not aware where the accused persons were sent by ACP Prem Nath on 26.03.2009 from Police Station Ashok Vihar. He has also deposed that they left Police Station Ashok Vihar after some time of the surrender of accused persons. According to the witness, he and his neighbour Nasir were again summoned by Police Station Jahangirpuri on 05.04.2009 and on that day also accused persons were in the custody of Police at Police Station Jahangirpuri. He has testified that after 05.04.2009 police asked him to join Test Identification Parade of the accused persons. He has also deposed that he went to Central Jail Tihar for participating in Judicial Test Identification Parade after 05.04.2009 and then the accused persons refused to take part in Test Identification Parade.
St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 13 of 113 (15) According to the witness Mohd. Ismail, Alto Car was stationed in H Block near Government School in which his brother was abducted. He has further deposed that the area where the Alto Car was stationed is a crowded one surrounded by many residential houses, shops and the local transport of rickshaws, three wheelers etc. He has also deposed that spot was five minutes walking distance from his house. He has further deposed that by profession he was commission agent in the vegetable market at "Thia" No. 10. The witness has further deposed that he was an illiterate and no case was pending or registered against him. He has admitted that his deceased brother was arrested in one case of quarrel which quarrel had taken place with Paya. He has also admitted that Sanjeev @ Baba was not known to him prior to 25.03.2009. He is unable to tell as to who was the Driver of said Alto Car as the mirror of the car were of black colour and states that one of them was already sitting in the car and four accused persons entered in the car along with his brother in his presence. He is also unable to tell as to who was sitting on the front seat on the driver seat in the car. The witness has deposed that he had given the descriptions of four accused persons to the Investigating Officer initially and that he knew accused Bhola at that time. He has also deposed that he had seen the accused Sanjeev @ Bava at the spot on that day and thereafter he had seen him in the Court. The witness has denied the suggestion that name of accused Sanjeev Bawa was told to him in the Court itself by the St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 14 of 113 Investigating Officer. He has admitted that after the day of incident and before deposing in the Court neither Sanjeev @ Bawa met him nor he had seen him. According to him, he had seen Sanjeev @ Bawa in the police station also. He has denied that accused Sanjeev @ Bawa was not present among the other accused persons who were present in the Court on the day of kidnapping. He has denied that he had identified the accused Sanjeev @ Bawa at the instance of the Investigating Officer and it took about hardly five minutes in taking his brother into the car and chasing the car by him. He is unable to tell the colour and description of the clothes worn by accused Sanjeev @ Bawa at the time of kidnapping of his brother.
(16) PW3 Mohd. Ismail was recalled for reexamination on 21.03.2012 after arrest of accused Sushil who was earlier Proclaimed Offender and in addition to what he has earlier stated the witness has deposed that on 16.11.2011 he was called at Tihar Jail for identification of the accused Sushil and during the proceedings of the Judicial Test Identification Parade of the accused Sushil which is Ex.PW3/B, he could not identify him. The witness refused to identify the accused Sushil as the driver of the Alto Car. The accused Sushil was specifically put to the witness despite which he did not identify him. (17) The witness was crossexamined by the Ld. Addl. PP for the State wherein he has denied the suggestion that the accused Sushil was the same person who had taken away his brother along with other St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 15 of 113 accused persons in the Alto Car. He has also denied that he has intentionally not identified the accused Sushil as he has been won over by him.
(18) PW10 Sachin Prakash who is the brother in law (Sala) of PW1, has deposed that it was 25th day in the year 2009 when he took Jaspreet Singh, his Maami, her two children and brother of Jaspreet to New Delhi Railway Station in an Alto Car bearing no. 3120 complete number he does not remember which car belong to Jaspreet who is his Jija. He has further deposed that they (his Jija) had to go to Cuttak as mother of Jaspreet was ill and accordingly he left the aforesaid persons at New Delhi Railway Station after which he came at Sanjay Enclave to park the said vehicle. He has testified that while he was coming out from Sanjay Enclave, accused Bhola (correctly identified by the witness) met him who told him that his wife was ill and he had to take her to hospital and requested him to give him the aforesaid car. According to the witness, he handed over the key of said car to Bhola who handed over the keys of his bike to him, but he (witness) was having his own bike still Bhola had given the key of his bike to him. The witness has also deposed that the bike of Bhola was not required by him due to which reason he did not take his bike and left the same where it was standing. According to the witness, he went to Rohini with his friend Ajay on his own bike bearing no. DL7ST6972 and Bhola was alone when he handed over the key of car to him, thereafter he tried to contact St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 16 of 113 Bhola on his mobile phone but his mobile phone was not reachable. He has also deposed that on the same night he came back to his house and tried to contact his Jijaji but phone could not be connected. According to him, since the accused Bhola had taken the aforesaid car earlier also from his Jija so he did not take it seriously. He has further deposed that on the next day at about 1212:30 noon he contacted his Jijaji on phone and narrated about handing over the car to Bhola. The witness has testified that thereafter he got information that some murder had taken place in the aforesaid car and after about ten to fifteen days his Jijaji Jaspreet Singh came back to Delhi from Cuttak and on arrival of his Jija he produced the motorcycle and key and RC given by Bhola to the police. He has proved that the Investigating Officer took the same into possession vide seizure memo Ex.PW1/A. He has also deposed that Jaspreet had also handed over the railway journey ticket to the Investigating Officer which was seized vide memo Ex.PW1/B and copy of the RC is Mark PX.
(19) With the permission of the Court leading questions were put to the witness by the Ld. Addl. PP for the State during which he has deposed that he does not remember whether phone of his Jija Jaspreet Singh had come on the same evening from the Railway Station who asked him to handover the car to Bhola. He has denied the suggestion that the phone of his Jija Jaspreet Singh had come who asked him to handover the car to Bhola and asked him to go with him as Bhola does St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 17 of 113 not know driving. The witness has also deposed that he was having mobile no. 9711081170 which was not in working condition. He has denied the suggestion that at about 5:45 PM phone of Bhola had come on his mobile phone no. 9711081170 who asked him to come at the gate of Sanjay Enclave and he was also reaching there. The witness has admitted that Bhola had come on his yellow motorcycle and Bhola had come on his bike alone. He has denied the suggestion that Bhola had come on his motorcycle along with another persons who was introduced by Bhola to him as Sushil. The witness has admitted that Bhola had given the RC and the motorcycle to him and has denied the suggestion that Sushil who had come with accused Bhola drove the aforesaid car from there and he had seen him while driving. He has admitted that when he handed over the car to Bhola the key of the car was inside the car. He has denied the suggestion that he had informed his Jija Jaspreet on telephone that Bhola and Sushil had taken the aforesaid car from him. According to the witness, he is not known to Sushil. He has denied the suggestion that he has deliberately suppressed the facts mentioned at points A to A, B to B, C to C and D to D in his statement Mark X7. He has denied the suggestion that in order to save the accused persons he was not telling the facts mentioned in his statement or that he had been won over by the accused persons.
(20) In his cross examination, the witness has deposed that he started from Sanjay Enclave on Outer Ring Road with Jaspreet, his St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 18 of 113 brother, Maami and her two children. He has also deposed that he did not recollect exactly but he thought they were carrying two bags. He is unable to tell the exact age of the children but one of them was studying in class 3rd or 4th and other in class 6th. According to him, it was not confirmed but there may be 23 bags in all loaded in the car. He has testified that they reached at the Railway Station at about 4 4:30 PM and that he resided at Swaroop Nagar. He has also deposed that the distance between Sanjay Enclave and Swaroop Nagar was hardly two and a half to three kms and that after handing over the car to Bhola at Sanjay Enclave, he alongwith his friend Ajay left for Rohini. According to PW10 Sachin Prakash he was working at Uttam Nagar on the relevant date and the distance between Sanjay Enclave and Uttam Nagar is about 12 - 15 kms via Ring Road. He has testified that he did not meet Bhola before handing over the car to him and states that he only spoke to Bhola when he had come on the gate of Sanjay Enclave personally. He has also deposed that he did not have any other conversation with him apart from this. He does not remember which day of the week it was. He has further deposed that he had not gone on his job on that day and has voluntarily stated that he had taken an off to drop his Jija to Railway Station. He has also deposed that nobody told him to give the car to Bhola. This witness has also deposed that he is not aware where Bhola resides or what he does for his earning and states that he was only acquainted to Bhola through his brother in law (Jija) and he had no other St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 19 of 113 relation with him. He is not aware if Bhola was married and which was the nearest hospital from the house of Bhola and has voluntarily stated that he did not even know where he resided. According to the witness, he is not aware if Bhola does not know how to drive. He has admitted that he had never seen Bhola driving the vehicle even prior to this date. According to him, the only efforts he made to trace Bhola was to make a telephone call on his mobile phone. He has testified that he did not inform any authority that Bhola had taken his Jija's car and had switched off his mobile phone since even on previous occasions he had been taking his vehicle. The witness has testified that his Jija is a fruit agent in the Mandi and the distance between Azadpur Mandi and Swaroop Nagar is about five kms. He is aware the distance between Azadpur Mandi and Uttam Nagar where he was working and states that he was not working with his Jijaji. He has also deposed that he was not aware about the details of the business of his Jija including his stall number. The witness Sachin Prakash has further deposed that he did not inform his sister that Bhola was taking the vehicle and has voluntarily stated that she was already in Cuttak at that time. According to the witness, there was no caretaker and he had taken the keys of his house. He has also deposed that during this period when his Jija was in Cuttak he must have spoken to him on telephone on seven to eight occasions. He has also deposed that he cannot confirm on which mobile he had been contacting him and has voluntarily stated that he had two - three St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 20 of 113 mobiles at that time. He has also deposed that he had never spoken to his sister during this period when she was in Cuttak. According to the witness, he did not go to the police station or to any other authority between 26.3.2009 to 15.4.2009 that the vehicle had been taken by Bhola and has voluntarily stated that he was terrified. He has denied the suggestion that on 26.3.2009 when he came to know that the vehicle was involved in the crime, he went into a hiding to avoid the police and has voluntarily stated that he did not go into hiding but because he was terrified hence he did not go to the police station. He has also deposed that after having come to know of the crime, the first time he told his Jija was in the evening as he had become mentally upset. The witness has further deposed that he did not visit Sanjay Enclave during these fifteen days. According to him, he did not inform the police before 15.4.2009 that the motorcycle of Bhola was with him and that the said motorcycle was at Sanjay Enclave. He has also deposed that there was no entry book being maintained at Sanjay Enclave and therefore, there was no question of making any entry of taking motorcycle of Bhola to the police station on 15.4.2009. He has further testified that he did not physically point out the motorcycle of Bhola parked at Sanjay Enclave to the police and has voluntarily stated that he only surrendered the keys and RC of the motorcycle to the police and gave them the details of the place where it was parked. This witness has deposed that Ajay met him at Sanjay Enclave and when Bhola took the vehicle Ajay was not present St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 21 of 113 and there was no other person present when the vehicle was handed over to Bhola. He has denied the suggestion that on 25.3.2009 he had taken the car along with him to park the same at his place which he did not do so. He has denied the suggestion that he was a partner in the crime and the crime was committed by him in the car which was abandoned by him at some unknown place or that he had running away from the police as he had no clue how to save himself. The witness has denied the suggestion that he did not phone his Jija till the time police pursuit on him became hot or that Bhola did not take the impugned car from him on 25.3.2009. He has denied the suggestion that he was deliberately withholding the facts to save himself from the prosecution or that Bhola was a soft target for him and he falsely implicated him in the present case and created a false story of his having taken the car on 25.3.2009. (21) PW10 Sachin Prakash was recalled on 21.03.2012 for re examination after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony in toto. However, when the accused Sushil was put to the accused, he has identified him.
(22) In his crossexamination by the Ld. Counsel for the accused Sushil, this witness has admitted that Sushil was not known to him previously and that Sushil was not with accused Bhola who had come alone. He has also admitted that he did not see Sushil going away with Bhola and has voluntarily stated that he had his back to that side. St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 22 of 113 (23) PW31 Rajan has deposed that he had been residing in Jahangir Puri area and had shifted from there to Holambi Kalan about Seven Years back (from the date of his initial testimony). According to the witness, he was running a meat shop and knew Amzad being a resident of Jahangir Puri who was his friend and the son of his Bua Vishal has informed him that Amzad was killed by some person. He has testified that on the next day i.e. on 26.03.2009 he came to know that the dead body of a young boy was lying in the field near the road, leading to Narela, Khera Kalan Village after which he went there and identified the dead body as of Amzad. He has proved that his statement was recorded regarding identification of the boy which is Ex.PW21/A. (24) In his cross examination by the Ld. Defence Counsels, the witness has deposed that Mohd. Ismail (PW3) is his brother in law (Jija) who is the real brother of deceased Amzad. He has further deposed that he did not know if Mohd. Ismail had also reached at the spot. (25) PW31 Rajan was recalled on 21.03.2012 for reexamination after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony in toto.
(26) PW33 Vimal Mann has deposed that he was having a business of fruit in fruit mandi and was having office at 27B Kewal Park Extension, Second Floor, Adarsh Nagar. According to the witness, on 25.03.2009 accused Sushil who was his tenant came to him along with St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 23 of 113 another person who was being addressed as Bhola who was not known to him prior to that. He has also deposed that he is not aware as to how or in which vehicle they had come and that they stayed with him for some time. The witness has testified that Sushil asked him for a loan of Rs.15,000/ for a period of one month but he (witness) did not pay him as he was not having the same and thereafter they consumed Biri, Cigarette, cold drink and left. He has also deposed that police officials came to him and he had given his statement to the police. The witness was unable to identify the accused Bhola.
(27) This witness was found resiling from his earlier statement and with the permission of the Court, Ld. Addl. PP for the State cross examined the witnesses wherein he has deposed that he had cooperated with the police and had given his statement to the police which is Ex.PW33/X1. He has further deposed that he had stated in his statement that his tenant Sushil had come with his friend Bhola but he had not stated that they had come in Alto car. According to him, he had not stated in his said statement that three other boys had also come with them and that he had not given the number of persons as Five who sat in his office, in his aforesaid statement. He has also deposed that he is not known to any any Rinku, resident of Khera Kalan, Delhi. He has further deposed that he had not stated in his statement that the aforesaid Sushil along with Bhola and three other persons smoked and that Bhola has received phone calls but he did not know as to who made the call. He is St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 24 of 113 not aware if they had gone immediately in the said Alto car. The witness has admitted that he had gone to the police station on the asking of the Investigating Officer. He has deposed that he had not stated in his statement to the police that he had identified the remaining three persons also while sitting in the police station whose name was told to him by the Investigating Officer as Sanjeev, Vishal and Vijay. He denied the suggestion that he was not telling the fact of three other persons of having visited his office along with Sushil and Bhola deliberately in order to give the benefit to the accused persons.. He has also denied the suggestion that he had stated in his said statement that the aforesaid two person along with the remaining other three persons had come to his office in Alto Car and left his office in the same car. The witness has denied having stated the portion A to A, B to B and C to C to the Investigating Officer in his statement Ex.PW33/X1. He has denied the suggestion that he was under pressure from the side of accused persons that is why he was not identifying the accused Bhola in the Court.
(28) The witness Maan Singh has been duly explained by the court about the legal consequence of making an incorrect and false deposition on oath in order to help the accused persons. When the accused Bhola was put to the witness, he has explained that at that time the accused Bhola was a boy, slim with long hair and since had seen Bhola only once at the time of incident, he could identify accused if the St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 25 of 113 photograph of the accused of that time is shown to him. He has identified the accused Bhola from the photocopy of the photograph of the accused Bhola Ex.PW33/X2 available on the custody warrant as the boy who had come with the other boys. During the examination of the witness, this Court has observed that the accused Bhola was physically present in the court and photocopy of photograph present on the warrant was taken at the time of his detention on 30.03.2009 vide PID No. 1010077 and original photograph would be present in the jail record. Further, the witness could not identify the remaining three accused persons in the Court namely Sanjeev @ Bawa, Vishal and Vijay despite the specific pointing out towards them by the Ld. Addl. PP. He has denied the suggestion that he was not identifying these three accused persons deliberately in order to save them or that he had seen the said three accused persons in the police station and had identified them and their names were told by the Investigating Officer to him and he was not giving their names and not identifying these three accused persons intentionally.
(29) In his cross examination, by the Ld. Defence Counsels the witness has deposed that his statement was recorded in the police station only once and that he was called to the police station by the then Addl. SHO known as Bhatia ji. According to the witness, he did not give the description of the accused Bhola to the police and was never called to the police station for identification of Bhola nor he went to jail for St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 26 of 113 identification of accused Bhola. He has admitted that Ex.PW33/X2 does not show long hairs, the slim profile or the dusky colour of the accused as pointed out by him and has voluntarily explained that the photocopy of the photographs shown to him on the custody warrants was much more clear. He has denied the suggestion that due to hype created by the Ld. Addl. PP he wrongly identified the accused on the basis of photocopy of the facsimile shown to him.
(30) PW33 Sh. Vimal Mann was recalled on 21.03.2012 for re examination after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony in toto. In his crossexamination by the Ld. Counsel for the accused Sushil, this witness has deposed that he was not a money lender and prior to 25.03.2009 accused Bhola and Sushil never come to him for loan. According to him, no rent receipt was ever issued by him to accused Sushil. He does not remember the exact date when he was called by the police in the police station and has stated that police inquired about the date i.e. 25.03.2009 on which he told the police that accused Sushil and Bhola called him to his office on 25.03.2009 for loan. He has denied the suggestion that accused Bhola and Sushil never visited his office on 25.03.2009 or that he was giving the date 25.03.2009 at the instance of the Investigating Officer. He is unable to tell as to how many persons had visited his office on 25.03.2009 as no record has been maintained by him in this regard. He has also deposed that he was also not St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 27 of 113 maintaining the record of any transaction pertaining to his business. (31) PW34 Nasir Khan deposed that he is a junk seller by profession and on 25.03.2009 at about 8.00 or 8.30PM he had come in G Block, Jahangir puri and found public persons gathered on the street. According to the witness, he also found one Ismile whom he knew from childhood and Ismaile informed him that his brother Amzad was taken away by some person in a car and asked him to inform the police after which he (witness) made telephonic call on 100 number from his mobile bearing no. 9210991157. He has further deposed that the aforesaid connection was in the name of his mother Wahida which was being used by him and after some time police came to the spot and he narrated to the police whatever he had seen, in his statement. This witness was not crossexamined by Ld. Counsel for the accused and hence, his testimony has gone controverted.
(32) PW34 Nasir Khan was recalled on 21.03.2012 for re examination after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony in toto. (33) PW37 Sardar Raj Kumar has deposed that he belonged to village Pina, District Muzaffar Nagar, UP and earlier he was doing the work of preparing duplicate keys of the lock, but presently he was doing the same work in Ahamdabad. He has also deposed that he was illiterate, so he could not tell the exact date but states that about 1½ to 2 St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 28 of 113 years back two boys came to him, who were not known to him and took him to Jyonti village since they asked him that he had to make the duplicate key of the car. According to the witness, the said boys took him to village Jyonti on a motorcycle where he found a Alto car parked in the field and the villagers collected there who asked him not to prepare the key of the car since they had already lodged a report regarding that car. The witness has testified that the police official of Police Station Kanjhawala reached there and got the key of the car prepared from him. According to the witness, on hearing the talk of the villagers the two persons who took him on motorcycle ran away from there on the same motorcycle and he was also relieved from there. He has further deposed that some police officials came to his thaiya later on who made inquires from him.
(34) This witness was declared hostile by Ld. Addl. PP for the State regarding identity of one accused and during his crossexamination by the Ld. Addl. PP for the State the statement Ex.PW37/A was read over to the witness on which he denied having made the portion A to A before the Investigating Officer. He has denied the suggestion that he had stated to the Investigating Officer that one of the two boys who came on the motorcycle was known to him or that he was not giving this fact deliberately to favour the accused persons. The witness was not crossexamined by Ld. Defence Counsels for the accused and hence, his testimony has gone uncontroverted.
St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 29 of 113 (35) PW37 Sardar Raj Kumar was recalled on 21.03.2012 for re examination after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony in toto. Medical witnesses:
(36) PW5 Dr. K. Goel, CMO, BJRM Hospital has deposed that on 27.3.2009 he conducted the postmortem on the dead body of one Amjad S/o Bateru Beg, aged about 24 years Male with alleged history of found dead by the police after receiving a call vide DD No.10 A vide postmortem report Ex.PW5/A. He has proved that the cause of death was cranio cerebral damage as a result of fire arm injury which was ante mortem in nature and was sufficient to cause death in ordinary course of nature. According to the witness, the range of fire arm was close range and time since death was 4445 hours. He has also deposed that the clothes of the deceased and blood sample in gauze piece, one bullet recovered from the head of the deceased were sealed by him and handed over to police officials. He has identified the clothes of the deceased i.e. one black Tshirt, one black hosiery pyajama, brownish underwear which are collectively Ex. P2 and one sandal of right foot of the deceased which is Ex.P3. He has not been crossexamined by the Ld. Defence counsels and therefore, his testimony has gone uncontroverted.
St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 30 of 113 (37) PW5 Dr. K. Goel was recalled on 21.03.2012 for re examination after arrest of accused Sushil who was earlier a Proclaimed Offender wherein he has corroborated his earlier testimony in toto. Forensic Witnesses:
(38) PW4 Sh. V. Shankaranarayanan, Sr. Scientific Officer (Biology), FSL Rohini has deposed that on 31.03.2009 he along with Ms Manisha Upadaya inspected the vehicle maruti Alto LXI Car bearing registration No. DL3C AG3120 at the FSL campus and he submitted his report in this connection on 24.04.2009 which report is Ex.PW4/A. This witness was not crossexamined by the Ld. Defence Counsels despite opportunity and hence his testimony has gone uncontroverted. (39) PW36 Sh. V. Shankarnarayanan Senior Scientific Officer (Biology) has deposed that on 21.04.2009, fourteen sealed parcels were received in the office of FSL, Rohini, Delhi in connection with case FIR No.181/09, Police Station Jahangirpuri under Sections 365/364/302/34 IPC and 25/54 Arms Act. According to the witness, he opened the above said parcels and examined the exhibits biologically during which blood was detected on exhibits 1, 2, 3, 5, 6, 7(a), 7(b), 7(c), 7(d), 10(a), 10(b), 10(c), 10(d), 11 and 12(a), but blood could not be detected on exhibits 4, 8(a), 8(b), 9, 12(b), 13(a), 13(b), 14(a) and 14(b) and his detailed biological report in this regard is Ex.PW36/A. The witness has testified that the above said exhibits were also examined by St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 31 of 113 him serologically and on serological examination exhibit 1, 5, 10(c) and 11 showed reaction for human blood Group A; exhibits 2, 3, 6, 7(a) to 7(d), 10(a), 10(b), 10(d) and 12(a) showed reaction for human origin blood only whereas the exhibit 4 showed no reaction with respect to human origin of blood. He has proved his detailed serological report in this regard which is Ex.PW36/B. According to him, the remnants of the above exhibits after examination were resealed with the seal of VSN, FSL, Delhi. This witness was not crossexamined by Ld. Counsel for the accused persons and hence, his testimony remained unassailed.
(40) PW39 Sh. K.C. Varshney Assistant Director (Ballistic), FSL, Rohini has deposed that on 4.5.2009 three sealed parcels bearing No. 1, 2 and 4 were received in FSL in the present case along with forwarding letter which were marked to him for examination and opinion. According to the witness, the seals on the parcels were intact and on opening the parcels, parcel no.1 was found containing one country made pistol of .315 inch bore which was marked as Ex.F1; parcel no. 2 was found containing one deformed bullet which was marked as Ex.EB1 and Parcel no.4 was containing three cartridges of 8 mm/ .315 inch for test firing. The witness has testified that on examination of aforesaid exhibits he found that the country made pistol marked F1 was in working order and test fire conducted successfully and that the deformed bullet marked EB1 corresponded to the bullet of 8 St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 32 of 113 mm/ .315 inch cartridge. He has further proved that one cartridge sent for test firing was test fired through the country made pistol marked F1 and test fired cartridge case was marked as TC1 and the recovered test fired bullet was marked as TB1. The witness has also deposed that the individual characteristics of striations present on deformed bullets market EB1 were insufficient to find whether it has been discharged through the country made pistol marked F1 or not. He has also deposed that the country made pistol marked F1 is firearm and the deformed bullet marked EB1 was part of a ammunition as defined under Arms Act. He has proved his detailed report dated 12.11.2009 in this regard which is Ex.PW35/B. According to him, the exhibits were sent back with the seal of KCV, FSL Delhi after examination. He has correctly identified the Country Made Pistol which is Ex.P5, the deformed bullet which is Ex.P6; the test fired cartridge which is Ex.P7 and two live cartridges which are collectively Ex.P8. (41) In his crossexamination, by the Ld. Defence Counsels, this witness has admitted that he had not given the description of the seal and has voluntarily added that the description has been given in the table provided in the report Ex.PW35/B. He has further admitted that he had mentioned about parcel no. 1, 2 and 4 and not about parcel no.3 and has voluntarily added that only Parcel no. 1, 2 and 4 were sent to the Ballistic Department for examination. According to him, the test fire in St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 33 of 113 the present case was conducted by him on surgical cotton i.e. soft tissue. He has admitted that the test bullet Ex.P7 was not deformed at the tip. He has further deposed that he was not a biological person and therefore he is unable to tell if human body/ flesh is a soft tissue. According to him, the distance between the muzzle and the target in case of test fire in their laboratory is about four feet in normal cases and has voluntarily added that this distance was increased or decreased depending upon the facts of the case. The witness has further deposed that in the present case the distance of test firing was four feet and has admitted that in case of complete penetration and exit of the bullet from the human body it would carry with it the human fluid. He has also admitted that he was not asked to detect human fluid on the deformed bullet Ex.P6 and that the marks on the desi katta, deformed bullet, the test fired cartridge and unused cartridges have been put by him and has voluntarily added that the parcel numbers have been mentioned by a Marker for purposes of identification. The witness has also admitted that the used test fired cartridge and the unused cartridges are 8 mm cartridges. According to the witness, 8 mm is the diameter of the projectile of cartridge and in case of the present projectile it may or may not get deformed if fired on human body and has voluntarily added that it depends upon the trajectory of the bullet, the distance from which it is fired and the portion of the body which is targeted. He has testified that he did not St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 34 of 113 clean the bore of the barrel of the desi katta Ex.P5 before test firing and the deformed bullet Ex.P6 had sediments, striations which were insufficient to opine whether it has been discharged through the country made pistol Ex.P5 or not.
(42) PW39 Sh. K.C. Varshney was recalled on 21.03.2012 for reexamination after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony in toto.
Police/ Official witnesses:
(43) PW2 ASI Ram Kishan Mor has deposed that on 25.03.2009 he was posted at Police Station Jahangirpuri and on that day he received a call vide DD No.51A after which investigations of this case was handed over to him. He has further deposed that he made efforts to trace out the complainant but he could not be traced on the same day. He has also deposed that on 26.03.2009 he received an information that a dead body was lying in a well at Khera Road, Delhi on which he conveyed the information to SHO through Duty Officer and a DD regarding the said information was lodged vide DD No.74 B. According to him, he along with the complainant Ismail went to Samaypur Badli where the dead body was stated to have been found. He has further deposed that Ismail had identified the dead body of his brother and Insp. Vipin Bhatia was called there. The witness has proved St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 35 of 113 that he recorded the statement of Ismail and prepared rukka Ex.PW2/A and produced the rukka before the Duty Officer who recorded the FIR of this case and that further investigation of this case was handed over to Insp. Vipin Bhatia. The witness has also proved the DD No.51 A which is Ex.PW2/B and DD No.74 B which is Ex.PW2/C. (44) In his crossexamination by the Ld. Defence Counsels the witness has deposed that Ex.PW2/B and Ex.PW2/C were not in his hand. He has admitted that the document Ex.PW2/C was handed over to him for investigation and that rukka Ex.PW2/B was not in his hand but on the same sheet Ex.PW2/A was in his hand. He has deposed that Ex.PW2/B was the original and was handed over to him for investigation. He has also deposed that Ex.PW2/B i.e. DD No.51 A was in the handwriting of then Duty Officer but he does not remember whether Duty Officer who recorded the DD No 51 A was the same Duty Officer who had recorded DD No.74 B. He has further admitted that the name, identity or contact number and the address of the complainant was given by the police station nor was the part of the DD. He has further deposed that the area of colony Jahangirpuri was about 1½ to 2 kms and the distance between Swaroop Nagar and Jahangirpuri was about half km on foot. According to him, police had received the call from the source H770, Jahangirpuri and when he visited H770 it came to his knowledge that there was no such call made from this source as St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 36 of 113 stated by the residents of that house that they had made no such call and they were not aware of such call or having made by whom. He has further deposed that he made inquiries from the nearby houses in the same block to ascertain the sources of the call but no source could come at that time. He has denied that he was concealing the true facts of the case during the period of his investigation. The witness has testified that after the receipt of the information of dead body from police station Samaypur Badli through SI Ashok he first reached to G770, Jahangirpuri and took only Ismail from his house to show him the dead body which was in the well at village Khera in the area of Samaypur Badli. According to the witness, he along with Ismail reached to police station Samaypur Badli where SI Ashok met him who thereafter sent the dead body to mortuary for postmortem. He has also deposed that he recorded the statement of Ismail after he had identified the dead body of his brother Amjad. The witness has further deposed that he left Ismail in Police Station Samaypur Badli with Insp. Vipin Bhatia and thereafter he came to Police Station Jahangirpuri from Police Station Samaypur Badli and made endorsement on DD No.51 A at Police Station Jahangirpuri and got recorded FIR after which he handed over the rukka to Insp. Vipin Bhatia and voluntarily stated that after coming from Police Station Samaypur Badli he got the FIR registered and handed over to Insp. Vipin Bhatia.
St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 37 of 113 (45) PW2 ASI Ram Kishan Mor was recalled for re
examination on 21.03.2012 after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony in toto. In his crossexamination the witness has deposed that on 25.03.2009 when he reached at the spot i.e. G770, Jahangir Puri after receiving the call no eye witness met him there. He has admitted that no case was registered before 26.03.2009 and prior to 26.03.2009 i.e. prior to registration of this case he had not recorded the statement of mother, father, brother or any other relative of deceased Amjad in any form. He has further deposed that he did not collect the photograph of the deceased in the present case before 26.03.2009. According to him, neither Bateru Beg nor Mohd. Ismail had met him prior to 26.03.2009 so there was no question of recording their statement that they could identify any of the accused.
(46) PW6 Ct. Saurabh Kumar has deposed that on 31.3.2009 he was posted in Mobile Crime Team as Photographer Police Station Maury Enclave and on that day he alongwith the Incharge Crime Team reached at Police Station Kanjhawla wherein on the directions of the Incharge Crime Team he took ten photographs of the Alto Car no. DL3CAG3120 in the police station from different angles which photographs are Ex.PW6/A1 to Ex.PW6/A10 and negatives of the same are Ex.PW6/B (collectively). This witness was not cross St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 38 of 113 examined by the Ld. Defence Counsels and his testimony has gone uncontroverted.
(47) PW6 Ct. Saurabh Kumar was recalled on 21.03.2012 for re examination after arrest of accused Sushil who was earlier a Proclaimed Offender wherein he has corroborated his earlier testimony in toto. (48) PW7 HC Sushil Kumar has deposed that on 26.3.2009 he was posted at PS Kanjhawla and on that day DD No. 12A regarding abandoning of vehicle was handed over to him pursuant to which he went to village Jyonti and found the Maruti Alto Car bearing no. DL3CAG3120 of silver colour and he towed the same and brought to the police station Kanjhawla. According to him, he made inquiries regarding ownership of the car but the same could not be ascertained and thereafter he deposited the same in the Malkhana of Police Station Kanjhawla under Section 66 of DP Act and he conveyed the message on 100 number. He has also deposed that later on he came to know that the said car was involved in a case of Police Station Jahangir Puri and Crime Team came to Police Station Kanjhawla. He has testified that on the request of Incharge Crime Team he called a private mechanic and got prepared a duplicate key of the car after which the same was opened. He has also deposed that he handed over DD No.12A and 34 A to the staff of Police Station Jahangir Puri and the memo to that effect was prepared which is Ex.PW7/A. He has identified the car which is Ex.P1. St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 39 of 113 (49) In his crossexamination the witness has admitted that the fact that he called on 100 number was not mentioned in his statement X6. According to him, he does not remember the name of the PCR official to whom he had given the information on 100 number nor does he remember the DD number in which his information was recorded by the PCR official. He has denied that he did not make any call on 100 number and did not give that fact to the Investigating Officer in his statement that is why same was not mentioned in his statement mark X6 and that is why he was unable to tell the name of the writer of that DD and the number of the DD. According to the witness, the signatures of any public person of the area or any other person was not obtained on the memo Ex.PW7/A. He has further deposed that he did not prepare any site plan at the place from where he lifted the said car and that before lifting the said car, no official from the FSL was called there. He does not remember from where the crane was brought by which the aforesaid car was towed. He is unable to tell the name of the owner of the crane and its number and states that he had not paid any charges for hiring the crane. He has further deposed that the entry of the crane was not lodged in police station Kanjhawla. The witness has testified that the distance between the place of lifting the car and Police Station Kanjhawla is about seven to eight kms. He has also deposed that his statement Mark X6 was recorded by the Investigating Officer on the St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 40 of 113 next day. He has denied the suggestion that neither he towed the aforesaid car nor he had given his statement to the Investigating Oofficer on 27.3.2009 or 31.3.2009.
(50) PW7 HC Sushil Kumar was recalled on 21.03.2012 for re examination after arrest of accused Sushil who was earlier a Proclaimed Offender wherein he has corroborated his earlier testimony in toto. (51) PW8 SI Manohar Lal is the Draftsman who has deposed that on 23.4.2009 he was posted at NorthWest District and on that day on the request of Insp. Vipin Kumar, he along with one Constable and Insp. Vipin Kumar reached near Well in the field of Badlu Ram, village Khera Kalan, Delhi. According to the witness, he prepared the rough measurements there at the instance of Inspt. Vipin Kumar and thereafter, on 24.4.2009 he prepared the scaled site plan which is Ex.PW8/A. He has further deposed that after the scaled site plan was prepared, he destroyed the rough notes.
(52) In his crossexamination by the Ld. Defence Counsels, the witness has admitted that Ex.PW8/A was a computer generated and not drawn by his hand and that he used the Auto Cad software in preparing the said scaled site plan. He has admitted that he had not attached any certificate or mentioned on the aforesaid exhibit showing that the Auto Cad software was not erroneous. He has further deposed that he was told later on that a body was recovered from the well and states that he St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 41 of 113 had not given any certificate that he had prepared the rough notes or the details that he had taken and fed into the computer for taking out Ex.PW8/A, however, he had destroyed the said notes. According to the witness, he had not affixed a note to that effect in Ex.PW8/A. He has denied that he had not visited the place.
(53) PW8 SI Manohar Lal was recalled on 21.03.2012 for re examination after arrest of accused Sushil who was earlier a Proclaimed Offender wherein he has corroborated his earlier testimony in toto. (54) PW9 Jyotish Chandra Moharana Nodal Officer Vodafone has placed on record the customer agreement form of mobile bearing no. 9999882911 which was in the name of Vishal S/o Gian Singh which form is Ex.PW9/A and the supporting document i.e copy of D.L is Ex.PW9/B. This witness had also produced the prepaid application form of mobile no.9899029072 which was in the name of Jaspreet Singh, S/o Sh. Gurcharan Singh which form is Ex.PW9/C and the supporting document i.e copy of DL which is Ex.PW9/D. According to him, he had seen the call details of mobile no. 9953697636 from 20.3.2009 to 26.3.2009 (running into seven pages including the covering note) and the same are Ex.PW9/E. (55) In his crossexaminations by Ld. Defence counsel, the witness has admitted that Ex.PW9/E running into seven pages was not certified and that Ex.PW9/E did not bear the authentication certificate. St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 42 of 113 He has voluntarily stated that it was an Email copy which was sent to ACP Shalimar Bagh and the said fact finds a mention in the covering note and the Email was only an attachment. He has also admitted that Ex.PW9/E running into seven pages did not bear the name and address of the subscriber.
(56) The Alternate Nodal Officer Vodafone was recalled for re examination after arrest of accused Sushil who was earlier a Proclaimed Offender pursuant to which on 21.03.2012 PW9(A) Sh. Deepak Alternate Nodal Officer has appeared and apart from the documents proved by PW9 Sh. Jyotish Chandra Mohrana, he has proved the call details of phone bearing No. 9999882911 from 1.3.2009 to 25.3.2009 which is Ex.PW9/B1 and certificate under Section 65B of Evidence Act regarding the correctness of the same which is Ex.PW9/B2. The witness has also placed on record the certificate under Section 65B of Evidence Act in respect of mobile phone bearing No. 9953697636 in the name of Farookh S/o Jamal Mohd. which is Ex.PW9/E1 and attested photocopy of the Election I Card which was submitted with the application by Farookh which is Ex.PW9/E2. According to the witness, the call details of the mobile phone No. 9899029072 are not available as the same has already been destroyed as per the license agreement and condition set by Department of Telecommunications copy of which agreement is Ex.PW9/E3. He has not been cross St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 43 of 113 examined by the Ld. Defence Counsels.
(57) PW9(A) Deepak was recalled for further examination pursuant to an application under Section 311 Cr.PC. wherein he has has deposed that mobile No. 9711081170 is in the name of Surender Kaur Jain D/o Gurdayal Singh R/o J215, Kh. No. 304, Khada Colony, Swaroop Nagar, Delhi and the copy of the application form is Ex.PW9(A)/A. He has further placed on record the copy of the election card in support of address which is Ex. PW9(A)/B and the call detail record of mobile No. 9711081170 for the period 20.03.2009 to 27.03.2009 which are Ex. PW9(A)/C. The witness has also placed on record the certificate under section 65 B of the Evidence Act in respect of the aforesaid mobile numbers which is Ex.PW9(A)/D. He has not been crossexamined by the Ld. Defence Counsels despite opportunity in this regard.
(58) PW11 Ajay Kumar Assistant Nodal Officer, Bharti Airtel Ltd. has placed on record the Airtel Prepaid Enrollment Form pertaining to mobile number 9910846445 which form is Ex. PW11/A. According to him, the name of the customer is Anil Kumar S/o Nand Ram R/o D241, Sector1, Rohini, Delhi and along with this form Ex.PW11/A the customer had also attached the photocopy of his identity card which is Ex.PW11/B and copy of his driving license which is Ex.PW11/C. He has also deposed that after verifying the facts in the application the St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 44 of 113 customer form of Anil Kumar was allotted the connection and the check sheet is Ex.PW11/D. This witness was not crossexamined by Ld. Defence Counsel for the accused and hence, his testimony has gone uncontroverted.
(59) The Nodal Officer from Bharti Airtel was was recalled on 21.03.2012 for reexamination after arrest of accused Sushil who was earlier Proclaimed Offender, pursuant to which Sh. Tarun Khurana, Nodal Officer has appeared who has been examined as PW11(A) who has proved the record pertaining to mobile number 9910846445 which record has earlier been proved by PW11 Ajay Kumar. In his cross examination by Ld. Counsel for the accused Sushil, this witness admitted that at the time of activation of the above said mobile number he was not in the service.
(60) PW12 SI Satpal has deposed that on 31.03.2009, he was working as Incharge Crime Team and on that day he received a message from Control Room to reach at Police Station Jahangirpuri pursuant to which he along with Inspector Vipin Kumar reached at Police Station Kanjhawala where on the instructions of the Investigating Officer, he inspected one Maruti Car No. DL3CAG3120 in the premises of Police Station Kanjhawala. He has testified that he found blood on the rear seat, music system and on the window from inside. According to him, Ct. Saurabh took the photographs of the car after which he (witness) St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 45 of 113 submitted his detailed report which is Ex.PW12/A. The said witness has not been crossexamined by the Ld. Defence Counsels and hence, his testimony has gone uncontroverted.
(61) PW12 SI Satpal was recalled on 21.03.2012 for re examination after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony in toto.
(62) PW13 ASI Narender Singh has deposed that on 31.03.2009, he was working as Finger Print expert, Crime Investigation Team North west District Delhi and on that day on the request of the Investigating Officer he along with his team reached at Police Station Kanjhawala where one Maruti Alto car was found parked. According to the witness, he examined the said car and developed five chance print from the rear view inside the car after which he he prepared the finger print expert report which is Ex.PW13/A. He has not been cross examined by the Ld. Defence Counsels and hence his testimony has gone uncontroverted.
(63) PW13 ASI Narender Singh was recalled on 21.03.2012 for reexamination after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony in toto.
(64) PW14 HC Anil Kumar has deposed that on 25.03.2009 he was posted at Police Station Mahendra Park and he knew accused St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 46 of 113 Mukesh @ Bhola as he was their secret informer. He has further deposed that he made telephonic call to Mukesh on his mobile at 6:456:50 PM to call him for some official work, to which he has stated that he was busy near Kushal cinema. According to the witness, after this conversation he (Mukesh) disconnected the phone and his statement was recorded to this effect. He has not been crossexamined by the Ld. Defence Counsels and his testimony has gone controverted. (65) PW14 HC Anil Kumar was recalled on 21.03.2012 for re examination after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony in toto. (66) PW15 Ct. Som Bir has deposed that on 31.03.2009, he was posted at Police station Jahangirpuri and on that day he along with Insp. Vipin Kumar and Crime Team reached Police Station Kanjhawala, where HC Susheel Kumar had received the maruti car bearing No. DL3AG3120 which was parked in the premises of Police Station Kanjahwala. He has further deposed that the Crime Team inspected the same and has submitted its report after which he took the said car from MHC(M) vide RC No.15/21 and took the same to FSL Rohini. According to the witness, the inner inspection of the said car was got done as FSL Rohini and thereafter the FSL Official handed over two parcels sealed with the seal of VKB after which he went to Police Station Jahangirpuri in the same car. The witness has testified that pullanda in serial No.1 was sealed in the white cloth and pullanda No. 2 St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 47 of 113 was sealed in khaki envelope with the seal of VKB and he got deposited the said vehicle in the malkhana of Police Station Jahangirpuri vide same RC. In his cross examination, he has denied the suggestion that he did not join the investigation of this case with the Investigating Officer. (67) PW15 Ct. Som Bir was recalled on 21.03.2012 for re examination after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony in toto. (68) PW16 HC Surender has deposed that on 26.03.2009, he was working as MHC(M) at Police Station Kanjahwala and on that day HC Susheel Kumar had deposited one Maruti Alto Car No. DL3C AG3120 of silver color. According to the said witness, it was not having number plate on the back side and he took the said car vide entry No.1376 of Register No.19 copy of which is Ex.PW16/A. He has further deposed that on 31.03.09 he released the said car to Ct. Somvir vide RC No.15/21 copy of which RC is Ex.PW16/B. He has not been cross examined by the Ld. Defence Counsels and hence his testimony has gone uncontroverted.
(69) PW17 HC Madan Singh has deposed that on 11.04.2009, he was working as MHC(R) at Police Station Samaypur Badli and on that day he handed over the inquest documents to Insp. Vipin vide RC No.94/21 copy of which is Ex.PW17/A. He has not been cross examined by the Ld. Defence Counsels and his testimony has gone St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 48 of 113 uncontroverted.
(70) PW17 HC Madan Singh was recalled on 21.03.2012 for re examination after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony in toto. (71) PW18 Ct. Sandeep has deposed that on 26.03.2009 he was working as Photographer in the Mobile Crime Team, Outer District, Delhi. He has further deposed that SI Sanjay Gada, Incharge of crime Team received information from Control Room on which he along with SI Sanjay Gada, HC Ishwar along with Driver reached the road leading to Narela from Khera Kalan village near well opposite the field of Badlu Ram. According to the witness, on the request of Investigating Officer he took fifteen photographs of the spot and the dead body which photographs are Ex.PW18/A1 to Ex.PW18/A15 and negatives of the said photographs are Ex.PW18/B collectively.
(72) In his cross examination by Ld. Counsel for the accused, this witness has deposed that he is not aware whether the staff present at the spot belonging to Police Station Jahangirpuri or not but states that the police staff of Alipur and Samaypur Badli were present. (73) PW18 Ct. Sandeep was recalled on 21.03.2012 for re examination after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony in toto. St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 49 of 113 (74) PW19 SI Sanjay Gada has deposed that on 26.03.2009 he was working as Incharge in Mobile Crime Team and on that day he received the message at about 10:20 AM from PCR regarding lying a dead body in the field near the well leading towards the Khera Kalan. According to the witness, he along with Ct. Sandeep, photographer; HC Ishwar, proficient expert and Driver Ct. Surender reached the spot where he and his team inspected the spot and they remained at the spot from 11 AM to 12:30PM. He has proved having prepared the report which is Ex.PW19/A and he advised the Investigating Officer to seize the blood stains from wall of well, earth control and blood stained hankey. According to the witness, he also advised the Investigating Officer to send the dead body for postmortem.
(75) In his cross examination, the witness has deposed that he handed over the crime team report which is Ex.PW19/A to SI Ashok of Police Station Samaypur Badli at 12:30 PM on 26.03.2009. He has further deposed that he had seen chappal behind the berri tree but he did not take the chappal into possession for any analysis since this chappal was lying across the road near the tree. According to him, there were fields on both the sides of the road and the body was excreted/ removed from the well by the fire brigade in his presence. He has further deposed that the well was secured by the police within 1112 feet radius. He has admitted that the chappal was lying beyond 12 feet radius across St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 50 of 113 the road where the public was stopped.
(76) PW19 SI Sanjay Gada was recalled on 21.03.2012 for re examination after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony in toto. (77) PW20 SI Surender Sandhu has deposed that on 27.03.09 he was posted at Police Station Paschim Vihar and that on that day he received information from HC Rishi Raj, posted at Police Station Paschim Vihar that he received information from secret informer who knew the accused persons of a kidnapping case happened in the area of Police Station Jahangirpuri two days earlier. According to the witness, he conveyed this information to SHO Police Station Paschim Vihar after which he formed a raiding party comprising himself, Ct. Ravinder, Ct. Desh Raj, HC Rishi Raj and the secret informer and they reached in the open park in front of SS Mota Singh School which place is known as Mianwali Nagar. The witness has also deposed that the secret informer pointed out towards three persons involved in the case of kidnapping happened in the area of Police Station Jahangirpuri two days earlier after which they apprehended those three persons and they were interrogated during which their names were known as Vijay, Vishal and Sanjeev @ Baba. He has proved that the said accused were arrested in this case vide memos Ex.PW20/A to Ex.PW20/C and their personal search were conducted vide memos Ex.PW20/D to Ex.PW20/F. He has further St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 51 of 113 deposed that all the three accused persons made their disclosure statements which are Ex.PW20/G to Ex.PW20/I and when the information was given to Police Station Jahangir Puri it was confirmed that they were wanted in the case of Police Station Jahangir Puri. He has proved having prepared the kalandra vide Ex.PW20/J and the DD entry regarding his investigation is Ex.PW20/K. According to him, the accused were produced before the concerned Court. He has correctly identified the accused Vijay, Vishal and Sanjeev @ Baba in the Court. (78) In his cross examination, the witness has admitted that no recovery was effected in consequence of the disclosure statement Ex.PW20/G and Ex.PW20/I. He has also deposed that no public witness was joined at the time of interrogation of accused Vijay and Vishal. He has denied the suggestion that accused Vijay and accused Vishal did not make any disclosure statement or that he obtained the signatures of accused persons on the fabricated disclosure statement. (79) PW20 SI Surender Sandhu was recalled on 21.03.2012 for reexamination after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony in toto.
(80) PW21 SI Ashok Kumar has deposed that on 26.03.2009 he was posted at Police Station Samaypur Badli and on that day on receipt of DD No.10A he along with HC Kiran Pal, Ct. Karam Singh St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 52 of 113 reached the place where dead body was found lying. According to him, there was well near the road and the dead body was found lying in the well. According to him, the eyes of the dead body were covered with a cloth and some blood stains were there on the brinks of the well. He has further deposed that the information to this effect was given to the Control Room and senior officers after which the Fire Brigade and Crime Team were also called who reached the spot. The witness has testified that the photographer of the Crime Team took the photographs of the dead body and the spot and the fire brigade took out the dead body from the well which was inspected by them. He has also deposed that after the inspection crime team handed over its report which is Ex.PW19/A. The witness has further deposed that there was a deep wound on the head of the deceased and the dead body was wearing half sleeves Tshirt of black color and black color trouser. According to him, the cloth was untied/ removed from the eyes of the deceased and the dead body was kept for identification at the spot. He has also deposed that one public person namely Rajan S/o Shyam Lal had identified the dead body as of Amjad and he recorded the statement of Rajan which is Ex.PW21/A attested by him. He has proved having lifted the blood stained hankey and sealed the same with the seal of AK after which he took into possession the same vide memo Ex.PW21/B; having taken the earth control and blood from brink (munder) and sealed the same with St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 53 of 113 the same seal after which seized it vide seizure memo Ex.PW21/C; having lifted from the spot with the help of cotton and kept the same in the plastic dibbi and sealed the same with the same seal and taken into possession vide the same memo which is Ex.PW21/C. According to him, he prepared site plan where the dead body was found lying vide Ex.PW21/D and thereafter he sent the dead body to mortuary BJRM hospital for postmortem. He has also deposed that during the investigation he came to know that the deceased was kidnapped from the area of Jahangirpuri on 25.03.09 from Rajan after which he got this information confirmed form Police Station Jahangirpuri and got an information lodged to this effect in Police Station Jahangirpuri vide DD No.74B on 26.03.2009. The witness has further deposed that he deposited the exhibits in the malkhana of Police Station Samaypur Badli and thereafter he prepared the brief facts which are Ex.PW21/E and Death report which is Ex.PW21/F. According to him, on 27.03.09 dead body was duly identified by brother and maternal uncle of the deceased and he recorded their statements which are Ex.PW3/A and Ex.PW21/G. He has testified that he collected the sealed parcels containing gauze piece, bottle containing bullet and clothes of the deceased duly sealed with the seal of KG BJRM Hospital and he seized the same vide seizure memo Ex.PW21/H to Ex.PW21/J respectively. The witness SI Ashok Kumar has also deposed that after getting the St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 54 of 113 postmortem conducted the same was handed over to the relative of the deceased vide receipt. According to him, SI Manohar Lal visited the spot and took the measurements at the spot at his instance and thereafter further investigation of this case was handed over to Insp. V.K. Bhatia on 11.04.03 and he handed over the inquest documents to him. (81) In his cross examination the witness has deposed that immediately after receiving information regarding a dead body in a well vide DD No.10A dated 26.03.2009 he straightaway reached to that place and Rajan S/o Shyam Lal met him at the well where dead body was recovered. He has admitted that from the information received vide DD No.10A and from the statement of Rajan cognizable offence was disclosed and that just after receiving information of a cognizable offence the SHO and his subordinate was bound to register the FIR. According to him, no FIR was registered at Police Station Samaypur Badli after receiving the aforesaid information and after recording the statement of aforesaid Rajan. He has deposed that he also recorded the inquest statement of Ismail S/o Bateru Deen which is Ex.PW3/A and inquest statement of Akil S/o Saheed Beg which is Ex.PW21/G. He has further admitted that ASI Ram Kishan from Police Station Jahangirpuri came to Police Station Samaypur Badli and by that time the dead body was brought to Police Station Samaypur Badli. He has again said that the dead body after its recovery from well was directly sent to mortuary St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 55 of 113 BJRM Hospital. He has denied the suggestion that ASI Ram Kishan of Police Station Jahangirpuri came to Police Station Samaypur Badli along with Ismail or that from Police Station Samaypur Badli ASI Ram Kishan gave information to SHO Jahangirpuri and the ACP concerned who also reached to Police Station Samaypur Badli. The witness has further deposed that Insp. Vipin Bhatia was also posted at Police Station Jahangirpuri on 26.03.2009 who also reached at Police Station Samaypur Badli but he does not remember the time of his reaching at the police station. The witness is unable to tell if ASI Ram Kishan had made endorsement on the rukka vide Ex.PW2/B after the recovery of dead body and after its identification in Police Station Samaypur Badli by Akhil and Ismail and has voluntarily added that no such proceedings had taken place in his presence. He has admitted that the inquest papers were deposited in mortuary BJRM at 4:30 PM on 26.03.2009 along with the dead body. He has denied the suggestion that after conducting the aforesaid proceedings he knowingly gave wrong information to Police Station Jahangirpuri upon which DD No.74B Ex.PW2/C was fabricated with a view to support the fabricated prosecution case. (82) The witness SI Ashok Kumar has further deposed that when he confirmed the fact of kidnapping from Police Station Jahangirpuri, he learnt the FIR No.181/09, under Section 365 IPC. He has further deposed that he was not informed nor did he inquire as to who had got FIR No. 181/09 registered. He has admitted that St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 56 of 113 Ex.PW21/D was the first impression which he had gathered at the place where the dead body was found lying and has deposed that Ex.PW8/A was drawn on information that he had recorded in Ex.PW21/D and Insp. V.K. Bhatia collectively. He has further deposed that he visited the spot of recovery of dead body on the date when Ex.PW8/A was got prepared by him. According to the witness. he had gone to the spot along with Insp. V.K. Bhatia only on one date i.e. 11.04.2009 and Ex.PW21/D1 was drawn by Insp. V.K. Bhatia at his instance on 11.04.2009. According to the witness, there was no injury mark on the body of deceased and the body was taken out of well by the fire brigade staff. He has deposed that he did not record the statement of any official of fire brigade who took out the dead body. According to him, the dandas lying inside the well were already there. He has testified that he did not try to measure the depth of the water inside the well, however he measured the level of the water from the brink of the well. He has also deposed that when he ordered the photograph of the body in the well the eyes were not covered. He has denied the suggestion that mark X shown in photograph Ex.PW18/A13 is not blood. He has testified that he had taken the blood control earth as shown in Ex.PW18/A12 and control earth from point X as shown in Ex.PW15/A14. He has admitted that on reaching the spot from where the dead body was recovered which he had proceeded to with DD No.10A he had not sent any rukka for the registration of the St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 57 of 113 FIR. According to the witness, he did not do so even after summoning the Crime Team and that he informed Police Station Jahangirpuri on phone nor did he sent the details of the recovery of dead body from the well. He has that he was given by Police Station Jahangirpuri the number of his telephonic message as DD 74. The witness has admitted that he did not inform Police Station Samaypur Badli for registration of FIR and has deposed that he started the investigation in DD No.10A under the instructions of Duty Officer Police Station Samaypur Badli. He has admitted that even on 27.03.2009 he did not get the FIR of DD No. 10A registered and that he did not get the postmortem of the dead body done under any FIR number and has voluntarily added that he got the postmortem done under DD No.10A. He has testified that he had received a blood gauze (blood sample from the throat) from the hospital and also received a bullet extricated from the body of the deceased and all the proceeding were done by him under DD No. 10A. According to this witness, there was nobody at the tube well so he did not ask any body to join the investigations. He has admitted that there is no railway line shown in Ex.PW8/A which he had shown in Ex.PW21/D. He has also admitted that open cemented nali which appears in Ex.PW8/A is not shown in Ex.PW21/D. He has explained that the expression 'Road to Narela to him' as shown in Ex.PW21/D means the same as to Narela Road point X 1 to point X2 mentioned in Ex.PW8/A. According to St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 58 of 113 him, point X1 to X2 does not have any bend or curve as shown in Ex.PW21/D. He has admitted that Ex.PW8/A does not show the tube well as he had drawn in Ex.PW21/D. The witness has denied the suggestion that he did not visit the spot nor did he conduct any proceedings at the spot.
(83) PW21 SI Ashok Kumar was recalled on 21.03.2012 for re examination after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony in toto. (84) PW22 ASI Kusum Lata has deposed that on 26.03.2009 she was working as Duty Officer at Police Station Jahangirpuri from 9AM to 5PM and that on that day at about 1:20 PM she received a rukka brought by ASI Ram Kishan on the basis of which she recorded FIR No. 181/09, computerized copy of which is Ex.PW22/A. She has proved having made an endorsement on the rukka which is Ex.PW22/B and has deposed that he handed over the copy of FIR and original rukka to Ct. Prabhu for further handing over the same to the Investigating Officer. According to the witness, on 27.03.2009 ASI Geeta Rani was working as Duty Officer who recorded DD No.25A at about 2:30 PM which is Ex.PW22/C. She was not crossexamined by Ld. Counsels and hence her testimony has gone uncontroverted.
(85) PW22 ASI Kusum Lata was recalled on 21.03.2012 for re examination after arrest of accused Sushil who was earlier Proclaimed St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 59 of 113 Offender wherein he has corroborated his earlier testimony in toto. (86) PW23 Ct. Prabhu Sah has deposed that on 26.03.09 he was posted at Police Station Jahangirpuri and on that day DD writer Ct. Santosh Kapoor handed over DD No.74 B which he took to BJRM hospital and handed over the same to ASI Ram Kishan in the hospital. This witness was not crossexamined by Ld. Counsel for the accused and hence, his testimony has gone uncontroverted.
(87) PW23 Ct. Prabhu Sah was recalled on 21.03.2012 for re examination after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony in toto. (88) PW24 HC Suresh Kumar has deposed that on 26.03.09 he was working as MHC(M) at Police Station Samaypur Badli and on that day SI Ashok Kumar had deposited four sealed parcels duly sealed with the seal of AK and another parcel containing blood stained hankey duly sealed with the same seal. According to the witness, he received the said parcels vide entry No. 6531/09 of register No.19. This witness has further deposed that on 27.03.09 he was posted as MHC(M) at Police Station Samaypur Badli and that on that day SI Ashok Kumar had deposited three parcels duly sealed with the seal of KG BJRM Hospital mortuary and he received the same vide entry No. 6532. He has placed on record the copy of both entries which are Ex.PW24/A running into four pages collectively. According to him, on 11.04.09 he send all the St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 60 of 113 case property to Police Station Jahangirpuri through Insp. Vipin Bhatia vide RC No.216/21 and the copy of RC which is Ex.PW24/B. This witness was not crossexamined by Ld. Counsel for the accused persons and hence, his testimony has gone uncontroverted.
(89) PW24 HC Suresh Kumar was recalled on 21.03.2012 for re examination after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony in toto. (90) PW25 Ct. Santosh Kapoor has deposed that on 26.03.09, he was working as DD writer in Police Station Jahangirpuri from 5:00 PM to 1:00 AM and at about 8:30 PM SI Ashok Kumar informed regarding lying of dead body in the well on the road leading to Khera Kalan, Narela road pursuant to which information he (witness) lodged DD No.74B which is Ex.PW2/C. According to the witness, he handed over the said DD to Ct. Prabhu for further handing over the same to ASI Ram Kishan. This witness was not crossexamined by Ld. Counsel for the accused persons and hence, his testimony remained unassailed. (91) PW25 Ct. Santosh Kapoor was recalled on 21.03.2012 for reexamination after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony in toto.
(92) PW26 HC Jitender Kumar has deposed that on 27.03.2009 he was working as MHC(M) at Police Station Jahangirpuri St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 61 of 113 and on that day Insp. Vipin Kumar Bhatia had deposited Rs.100/ as recovered from the personal search of accused Mukesh @ Bhola and he received the same vide entry No.3566 of register No.19. He has also deposed that on 28.03.09 he was working as MHC(M) at Police Station Jahangirpuri and on that day Insp. Vipin Kumar Bhatia had deposited one sealed parcel containing clothes of accused Mukesh @ Bhola duly sealed with the seal of VKG, one mobile phone make Nokia duly sealed with the same seal which he received vide entry No.3568 of register No.
19. According to him, 29.03.2009 Insp. Vipin Kumar Bhatia had deposited one sealed parcel containing chappal sealed with the seal of VKG which he received vide entry No.3570 of register No. 19. he has testified that on 31.03.2009 Ct. Sombir had deposited one maruti car Alto having number DL3CAG3120 without having any number on the back side and on the same day Inspector Vipin Kumar Bhatia had deposited one cloth parcel containing yellow envelope having three blood stained cutting and one khakhi envelope containing blood gauze, sample seal duly sealed with the seal of VKB which he received vide entry No.3575 of register No.19. He has also deposed that on 04.04.2009 Insp. Vipin Kumar Bhatia had deposited one sealed parcel containing desi katta; sealed parcel containing clothes of accused Sanjeev @ Baba; another sealed parcel containing cloth of accused Vishal; another sealed parcel containing clothes of accused Vijay @ Munna sealed with the same seal and he received the same vide entry St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 62 of 113 No.3580 of register No. 19. The witness has testified that on 11.04.2009 Insp. Vipin Kumar Bhatia had deposited eight sealed parcels having different seals taken from Police Station Samaypur Badli vide RC No. 216/21 and he received the same vide entry No.3597 of register No. 19. He has also deposed that on 15.04.2009 Insp. Vipin Kumar Bhatia had deposited one motorcycle No. DL8SAP3721 of yellow color and he received the same vide entry No. 3603 of register No. 19. He has testified that Insp. Vipin Kumar Bhatia had deposited one sealed parcel with the seal of VKB and he received the same vide entry No.3633 of register No. 19. According to him, on 21.04.09 he sent the 14 exhibits as mentioned from serial No.1 to 14 in the RC No. 90/21 to FSL Rohini vide RC No. 90/21/09 with intact seal through Ct. Jagmohan. The witness has also deposed that on the same day Ct. Jagmohan took the parcel from serial No. 1 to 3 as mentioned in the RC No. 89/21 to FSL Rohini with intact seal but same could not be deposited in the FSL due to some objection and he (Ct. Jagmohan) took the same back. According to him, on 04.05.2009 he sent four exhibits as mentioned from serial No. 1 to 4 in RC No.99/21/09 with intact seal through HC Ashok Kumar and he received the receipt after depositing the FSL Rohini. He has placed on record the copy of all the relevant entries which are Ex.PW26/A1 to Ex.PW26/A13 running into 13 pages; copy of RC No.89/21 which is Ex.PW26/B; copy of receipt is Ex.PW26/C; St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 63 of 113 copy of RC No.90/21/09 which is Ex.PW26/C1 and C2 and receipt is Ex.PW26/C3; copy of RC No.99/21/09 which is Ex.PW26/D1 and the receipt is Ex.PW26/D2. This witness was not crossexamined by Ld. Counsel for the accused persons and hence his testimony has gone uncontroverted.
(93) PW26 HC Jitender Kumar was recalled on 21.03.2012 for reexamination after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony in toto.
(94) PW27 W/Ct. Savita has deposed that on 25.03.2009 she was working as Channel Operator at CPCR, PHQ at channel No.125 and on that day at about 20:19:05 she received information from the caller to the effect that ladke ko utha kar ley gaye hai, kai bar call kar chuke hai police nahi aye. According to her, she received the PCR form copy of which is Ex.PW27/A. In his cross examination, the witness has deposed that if the caller gives a name they used to mention his name and in the present case the caller has not given his name. (95) PW27 W/Ct. Savita was recalled on 21.03.2012 for re examination after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony in toto.
(96) PW28 HC Hari Ram has proved the copy of FIR No. 148/09 of Police Station Jahangirpuri which is Ex.PW28/A. He has not St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 64 of 113 been crossexamined by the Ld. Defence Counsels and hence, his testimony has gone uncontroverted.
(97) PW28(A) HC Praveen Kumar was examined on 21.03.2012 for examination after arrest of accused Sushil who was earlier Proclaimed Offender. He has also proved the FIR No.148/09 of Police Station Jahangir Pur copy of which FIR is Ex.PW28/A (already proved by PW28 HC Hari Ram).
(98) PW29 HC Jagmohan Singh has deposed that on 21.04.2009 he was posted at Police Station Jahangirpuri and that on that day he took parcels of this case vide two RC numbers i.e. 89/21 and 90/21 to FSL Rohini and in one RC No.90/21 he took 14 exhibits but he does not remember the number of parcels vide another RC No. 89/21 and that he had deposited the above said 14 exhibits in the FSL Rohini. According to him, the pullandas containing ballistics could not be deposited due to some objection as three live cartridges were required to be submitted. He has proved that during the period the aforesaid parcels remained in his possession he did not tamper or cause it to be tampered. This witness was not crossexamined by Ld. Defence Counsels and hence his testimony has gone controverted.
(99) PW29 HC Jagmohan Singh was recalled on 21.03.2012 for reexamination after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 65 of 113 in toto.
(100) PW30 SI Sanjeev Verma has deposed that on 27.03.2009 he was posted at Police Station Jahangirpuri and on that day the information was received in the Police Station regarding production of accused persons in the concerned Court who were already arrested under Section 41.1 Cr.P.C. He has testified that he along with Insp. Vipin Bhatia, HC Ashok Kumar after getting an information from Police Station Paschim Vihar reached at Tis Hazari Court, Court No.1 where three persons namely Sanjeev, Vishal and Vijay were produced before the Hon'ble court in muffled face. According to the witness, after permission from the Hon'ble Court the accused were arrested in this case by Investigating Officer Insp. Vipin Kumar Bhatia vide memos Ex.PW30/A to Ex.PW30/C and they were taken to Jail after taking judicial custody remand. This witness has further deposed that the accused Sanjeev @ Baba was taken to Jail No.1 and the remaining two accused persons could not be admitted in Jail due to late hours and hence they were brought back to the Police Station and were kept in the Rahadari in Police Station Ashok Vihar. He has also deposed that thereafter he along with Insp. Vipin Kumar Bhatia and HC Ashok Kumar were coming back from Police Station Ashok Kumar. According to the witness, Insp. Vipin Bhatia received information that the fourth accused wanted in this case was standing near KDR factory at Rajasthan St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 66 of 113 Udyog Nagar. He has deposed that the secret informer also met them at the T Point of fruit mandi and they took along with them and at his instance they reached at KDR factory and apprehended the accused Mukesh @ Bhola. This witness has further deposed that the accused Mukesh @ Bhola was arrested in this case vide memo Ex.PW30/D and was personally searched vide memo Ex.PW30/E after which the accused was brought to Police Station Jahangirpuri and was interrogated and thereafter his disclosure statement was recorded vide Ex.PW30/F. He has testified that the accused Mukesh @ Bhola led the police party at HBlock School and pointed out the place where he along with his co accused persons Sanjeev, Vishal, Vijay and Susheel kidnapped Amjad. and the memo of pointing out was prepared which is Ex.PW30/G. He has also deposed that the accused Mukesh @ Bhola was taken to BJRM hospital through Ct. Ashok Kumar after which the accused was kept in lock up of Police Station Ashok Vihar and on 28.03.09 the accused was produced before the Hon'ble court and the police remand of one day was taken. According to him, during police remand the accused led them to the house of his mama Sanjay at house No. I983, Mangolpuri and got recovered one Nokia mobile phone which was sealed with the seal of VKB and the sealed parcel was taken into possession vide seizure memo Ex.PW30/H. The witness has also deposed that the accused also got recovered his clothes i.e. Jeans and TShirt from another room in the St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 67 of 113 house of his mama Sanjay which was stated to have been worn by him at the time of this incident and hence the said clothes were also sealed with the same seal and the sealed parcels were taken into possession vide memo Ex.PW30/I. He has testified that the accused Mukesh took them to village Jonti where they left Maruti Alto car and pointed out the place and a memo to this affect was prepared which is Ex.PW30/J after which the accused Mukesh @ Bhola took them to the house of accused Susheel but the accused Sushil could not be traced till then as the house was found locked. He has correctly identified the accused Sanjeev, Vishal, Vijay and Mukesh @ Bhola in the Court. He has also correctly identified the case property i.e. one TShirt of white and blue color and one pant of black jeans which are collectively Ex.P2 belonging to accused Mukesh and one mobile phone make Nokia which was got recovered at the instance of accused Mukesh @ Bhola which phone is Ex.P3.
(101) In his cross examination, the witness deposed that he does not remember the DD number by which they left the Police Station for investigation. He has admitted that no public witness was sited at the time of arrest of accused persons in the Court and that the disclosure statements of accused Vijay and Vishal were not recorded on 27.03.09. (102) PW30 SI Sanjeev Verma was recalled on 21.03.2012 for reexamination after arrest of accused Sushil who was earlier St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 68 of 113 Proclaimed Offender wherein he has corroborated his earlier testimony in toto.
(103) PW32 Shishir Malhotra Nodal Officer, Aircel has placed on record the certified copies of the subscriber's form of B. Venugopal having mobile number 9710081170 which is Ex.PW32/A and copy of ration card in support of address proof of B. Venugopal which is Ex.PW32/B. Since the aforesaid documents were filled in Tamil language by the subscriber and the aforesaid number belongs to Aircel Chennai, therefore the witness has placed on record the covering letter having the details of the aforesaid subscriber translated in English which is Ex.PW32/C. (104) In his cross examination, the witness has admitted that the record brought by him pertains to B Venugopal and that as per their official record, the connection was still in function in the name of B. Venugopal from 23.01.2008.
(105) PW32 Sh. Shishir Malhotra was recalled on 21.03.2012 for reexamination after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony in toto. In his crossexamination by Ld. Counsel for the accused Sushil, this witness has denied that he was not the authorized officer to depose on behalf of the company or that the details have been provided on the instructions of the Investigating Officer after manipulation on the same. St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 69 of 113 (106) PW35 Insp. S.B. Yadav has deposed that on 04.12.2009 he was working at Police Station Jahangirpuri as SHO and that Insp. Vipin Bhatia was the initial Investigating Officer and further investigations of this case was handed over to him at the last stage. According to the witness, he perused the case file and found that sanction under Section 39 Arms Act had not been obtained and the FSL result was awaited therefore he obtained the sanction under Section 39 of Arms Act which is Ex.PW35/A bearing the signature of Sh. Vijay Singh the then Addl. DCP NW District. The witness has proved having collected the FSL result which is Ex.PW35/B along with the forwarding letter Ex.PW35/C. The witness has proved having prepared the supplementary charge sheet vide Ex.PW35/D. This witness was not crossexamined by Ld. Counsel for the accused persons and hence, his testimony has gone uncontroverted.
(107) PW35 Insp. S.B. Yadav was recalled on 21.03.2012 for re examination after arrest of accused Sushil who was earlier Proclaimed Offender wherein he has corroborated his earlier testimony in toto. (108) PW38 SI Ashok Kumar has deposed that on 26.11.2009 Sh. Vijay Singh was working as Addl. DCP, NW District and as per record he accorded sanction under Section 39 of Arms Act which is Ex.PW35/A bearing the signature of Sh. Vijay Singh the then Addl. DCP NW district at point A. This witness was not crossexamined by St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 70 of 113 Ld. Counsel for the accused persons and hence, his testimony has gone uncontroverted.
(109) PW40 Insp. Vipin Kumar Bhatia is the Investigating Officer of the present case who has deposed that on 25.03.2009, he was posted at Police Station Jahangirpuri as Inspector Investigations and on that day PCR call was received vide DD No. 51 which is Ex.PW2/B regarding kidnapping of one boy from H770, Jahangirpuri, Delhi which call was handed over to ASI Ram Kishan. According to him, on 26.03.2009 ASI Ram Kishan prepared the rukka which is Ex.PW2/A and got the case registered vide FIR Ex.PW22/A and on the same day another information was received vide DD No.74B regarding dead body of Amjad found in the well on Khera Kalan, Narela Road, Delhi and this information was given by SI Ashok Kumar. This witness has further deposed that after receiving this information the case was taken up by him on the instructions of SHO and the dead body of the deceased was kept in the mortuary of BJRM Hospital, Jahangirpuri by the Investigating Officer of Police Station Samaypur Badli. According to the witness, on 27.03.2009 an information was received at Police Station Jahangirpuri regarding arrest of three accused persons under Section 41.1(D) Cr. P.C. by the staff of Police Station Paschim Vihar who were involved in the present case vide DD No. 25A and their names were known as Sanjeev @ Baba, Vishal and Vijay. He has testified that on St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 71 of 113 receipt of this information he along with SI Sanjeev Verma and HC Ashok Kumar proceeded for Tis Hazari Court where the said accused persons were to be produced by staff of Police Station Paschim Vihar. This witness has also deposed that all the aforesaid accused persons were produced by SI Surender Singh in the Court of Ms. Shilpi Arora, Ld. MM Tis Hazari Courts where he moved an application for interrogation of aforesaid accused persons and after taking permission he formally arrested them vide memos Ex.PW30/A, Ex.PW30/B and Ex.PW30/C after which the accused were sent to Judicial Custody by Ld. MM. This witness has further deposed that he moved an application for getting the TIP of the aforesaid accused persons conducted but same was not allowed and he was directed to move to concerned court for the said purpose after which the accused persons were taken to Tihar Jail where the authorities had taken Sanjeev @ Baba whereas other two accused persons namely Vishal and Vijay were not taken by them being later hours. This witness has further deposed that he along with his staff took the remaining accused persons namely Vishal and Vijay to lock up (rahdari), thereafter, he left for Police Station Jahangirpuri along with staff. According to the witness, on the way he received a secret information that accused Mukesh @ Bhola was standing near KDR Factory, Rajasthan Udoyg Nagar on which they reached the said spot where on the pointing out of secret informer, the accused Mukesh@ St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 72 of 113 Bhola was arrested vide memo Ex.PW30/D and personally searched vide memo Ex.PW30/E. He has proved that the accused Mukesh @ Bhola was interrogated and whatever the accused had stated in his disclosure statement was recorded separately vide Ex.PW30/F. He has deposed that the accused Mukesh @ Bhola took them at H Block and pointed out the spot from where they had taken the deceased in Alto Car after which he prepared the memo of pointing out which is Ex.PW30/G. According to the Investigating Officer on 28.03.2009 two accused persons namely Vishal and Vijay who were already in lock up at Police Station Ashok Vihar were taken out from lock up and were produced before Ld. MM and were got sent to judicial custody. He has further deposed that he moved an application for getting their TIP conducted before Ld. MM which was fixed for 01.04.2009 (for Vishal and Vijay) and for 02.04.2009 (for accused Sanjeev @ Baba) and on the same day i.e. on 28.03.2009 in afternoon the accused Mukesh @ Bhola was produced before Ld. MM and obtained his police remand for two days. Witness has also deposed that the accused Mukesh @ Bhola took them to IBlock, Mangolpuri i.e. the residence of his mama and got recovered one mobile phone Nokia, black colored. He has proved having wrapped the same in a cloth and sealed with the seal of VKB after which he seized the parcel vide memo Ex.PW30/H. According to the witness, the accused Mukesh @ Bhola also got recovered his clothes worn by St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 73 of 113 him at the time of incident from the residence of his mama which clothes he (the witness) converted into parcel and sealed the same with the seal of VKB and took the same into possession vide seizure memo Ex.PW30/I. The witness has further testified that pursuant to his disclosure statement the accused took them to Jonti Village where they left Alto Car used in the crime and pointed out the said place and thereafter he prepared a memo to this effect vide Ex.PW30/J. He has also deposed that they all including the accused Mukesh @ Bhola went to Police Station Kanjhawala and found the said Alto Car already stationed in the police station which car was found locked and MHC(M) was not available in the malkhana and on inquiry he came to know that the said car was deposited in the malkhana under Section 66 DP Act after which they came back to the Police Station Jahangirpuri. He has further testified that prior to reaching the Police Station Jahangirpuri they reached at Sanjay Enclave i.e. at the flat of coaccused Susheel but he could not be found and thereafter they came back to the Police Station Jahangirpuri and the accused Mukesh @ Bhola was sent to the lock up.
(110) PW40 Inspector Vipin Bhatia has also deposed that on 29.03.2009 the accused Mukesh @ Bhola was taken out from the lockup and took them to the well where he along with his coaccused persons had thrown the body of deceased Amjad but the said memo was not on Judicial record. He has further deposed that one sandal was recovered St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 74 of 113 from near the well and that he sealed the same with the same seal and taken into possession vide seizure memo Ex.PW40/B. According to the witness, the accused Mukesh @ Bhola was produced before the Ld. MM and was got sent to judicial custody. The witness has testified that on 31.09.2009 he went to Police Station Kanjahawala along with crime team/ NW and got the said car inspected through incharge crime team who submitted his report vide Ex.PW13/A. According to him, the official of crime team also took the photographs of the said car which photographs are Ex.PW6/A2 to Ex.PW6/A10. He has further deposed that he took the aforesaid car bearing No. DL3CAG3120 to FSL, Rohini where the FSL officials examined the said car and prepared the report which is Ex.PW4/A and FSL official had also handed over the exhibits of the car to him which he took into possession vide seizure memo Ex.PW40/C. According to the Investigating Officer, on 01.04.2009 the accused Vishal and Vijay were put for their Test Identification Parade proceedings in which both the accused persons had refused to participate which proceedings are Ex.PW40/D and Ex.PW40/E. The witness has further deposed that on 02.04.2009 other accused namely Sanjeev @ Baba was also put for his Test Identification Parade wherein the accused Sanjeev refused to participate which proceedings are Ex.PW40/F. He has testified that on 03.04.2009 he moved an application seeking production of accused persons in the Court which St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 75 of 113 was fixed for 04.04.2009 and that on 04.04.2009 the accused Vishal, Vijay and Sanjeev @ Baba were produced before the Hon'ble court after which he obtained one day police custody remand of all the three accused persons when they were throughly interrogated and the accused made their disclosure statements which are Ex.PW40/A, Ex.PW40/G and Ex.PW40/H. He has proved that all the three said accused persons took them to well Khera Kalan where they had thrown the dead body of Amjad pursuant to which he prepared the memos of pointing out vide Ex.PW40/I, Ex.PW40/J and Ex.PW40/K. According to him, thereafter the accused persons led them to Jonti Village where they left the Alto Car and accused Sanjeev had thrown the key in the field after which he prepared a memo to this effect which is Ex.PW40/L. He has testified that all the accused persons namely Vishal, Sanjeev @ Baba and Vijay @ Munna took them to their respective houses and got recovered their clothes worn by them at the time of incident, which clothes he converted into parcels and sealed the same with the seal of VKB and took the same into possession vide seizure memos Ex.PW40/M, Ex.PW40/N and Ex.PW40/O respectively. PW40 has further deposed that the accused Sanjeev @ Baba got recovered one country made katta from his house after which he measured the same and found it to be 23 cm long. The witness has proved having prepared the sketch of katta which is Ex.PW40/P and having converted the same into parcel and taken into St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 76 of 113 possession vide seizure memo Ex.PW40/Q. He has testified that he collected the inquest documents from SI Ashok Kumar, Police Station Samaypur Badli on 11.04.2009 and the exhibits seized by SI Ashok Kumar and got the same transferred to Police Station Jahangirpuri after which all the exhibits were sent to FSL Rohini.
(111) The witness Inspector Vipin Bhatia has further deposed that on 15.04.2009 one Jaspreet Singh, owner of the said Alto Car came to the Police Station along with his brotherinlaw Sachin and had produced two railway tickets mark X2 and X3 which were seized vide memo Ex.PW1/B. According to him, on the same day Sachin Parkash had produced one motorcycle TVS, Apachi yellow color bearing No. DL8SAP3721 along with its RC belonging to Mukesh @ Bhola which motorcycle he seized vide memo Ex.PW1/A and he recorded the statements of witnesses. He has also deposed that he sent the exhibits to FSL Rohini and as per requirement he procured and seized three cartridges for the purpose of test fire vide Ex.PW40/R and receipt/cash memo which is Ex.PW40/R1. He has proved having collected the permission from the then Addl. CP (Licensing) vide Ex.PW40/R2 and submitted the same before FSL, after which he got the parcels containing bullet deposited in the office of FSL. The witness has deposed that SI Manohar Lal prepared the scaled site plan on his request which site plan is Ex.PW8/A. According to the witness, on 11.04.2009 St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 77 of 113 he prepared rough site plan of well Khera Kalan Road which is Ex.PW20/D1 and prior to that on 08.04.2009 he prepared rough sketch at H Block, school chowk which is Ex.PW40/S. He has proved having collected the PCR forms of the caller and also examined them which are Ex.PW27/A, Ex.PW40/T and Ex.PW40/U. According to him, he collected the copy of FIR No. 148/09 of Police Station Jahangirpuri regarding incident in which deceased Amjad had beaten brother of accused Mukesh @ Bhola. The witness has proved having prepared the pointing out memo in respect of accused Vijay @ Munna which is Ex.PW40/V. According to Inspector Vipin Bhatia, he obtained the process under Section 82/83 Cr.P.C. against the accused Susheel and after which he was declared Proclaimed Offender. The witness has deposed that sanction under Section 39 Arms Act was collected by subsequent Investigating Officer in this case vide supplementary charge sheet, however charge sheet in this case was filed by him. (112) The witness has correctly identified the accused in the Court. He has also identified the case property i.e. Alto Car which is Ex.P1; one TShirt of white and blue color and one pant of black jeans which are Ex.P2; one mobile phone make NOKIA which is Ex.P3; one sandal which is Ex.P4; three pieces of raxene sheet, piece of cushion having drake stains which are collectively Ex.P5; one Shirt having brown stains and one pant which are Ex.P6; one Shirt, one pant with St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 78 of 113 belt which are collectively Ex.P7; one TShirt and one pant which are Ex.P8 collectively.
(113) In his cross examination, this witness has deposed that no written complaint beyond Ex.PW2/B about the incident of kidnapping was received in Police Station up to 27.03.2009. According to him, on 26.03.2009 he had seen the body of the deceased in BJRM hospital, mortuary when he had recognized him that he was Amjad and has voluntarily added that brother of the deceased was present there at that time. He has denied the suggestion that he had recognized the body of the deceased on his own and not at the instance of his brother. The witness has also deposed that Amjad was the accused in a case of Police Station Jahangir Puri in FIR No.148/2009 but states that he had never interrogated Amjad. He has further testified that there was a specific information that Sanjeev @ Baba, Vishal and Vijay were the accused apprehended by Police Station Paschim Vihar and they are involved in case FIR No. 81/09 of Police Station Jahangirpuri. He has deposed that he had not taken the statements Ex.PW28/J, Ex.PW20/K, Ex.PW20/G, Ex.PW20/H, Ex.PW20/I, Ex.PW20/D, Ex.PW20/E, Ex.PW20/F, Ex.PW20/A, Ex.PW20/B, Ex.PW20/C on record vide a handing over memo. According to the witness, he did not meet/visit the accused apprehended from Police Station Paschim Vihar prior to their production before Ld. MM. He has denied the suggestion that when the St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 79 of 113 accused were produced before the Ld. MM they were not in muffled face and has voluntarily stated that all three of them were in muffled face and after seeing the case dairy the witness has reported that this fact finds a mention at CD dated 27.03.2009. He has also deposed that the accused did not make any disclosure statement from any of the accused arrested and that he had also moved the application for the TIP of the accused on 30.03.2009 in the court concerned. According to the witness, earlier his request for conducting Test Identification Parade on 27.03.2009 was turned down by the Ld. MM of Police Station Paschim Vihar with the directions that he should move this application before the competent illaka magistrate. This witness has further deposed that on 28.03.2009 the accused were produced before the second Link MM Ms. Samita Garg in muffled face and after their formal arrest before the MM Tis Hazari on 27.03.2009 the accused were again produced before Ms. Shilpi Arora, MM Tis Hazari who remanded them to judicial custody with the directions to produce the accused before the concerned MM on 09.04.2009. He has admitted that there were no written directions by the MM Tis Hazari permitting him to file an application for Judicial Test Identification Parade before the Ld. Illaka Magistrate. (114) The Investigating Officer has also deposed that FIR was registered on next day of receiving of the DD. 51A. He has denied the suggestion that FIR was registered after the recovery of the dead body or that DD No.74B was manipulated to support the prosecution case or that St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 80 of 113 accused Vijay and Vishal were in custody of ACP Ashok Vihar one day prior to their arrest. He has also denied the suggestion that they manipulated the arrest under Section 41 (1)(d) Cr.P.C. in collusion with police of Paschim Vihar or that accused Vijay and Vishal never gave a disclosure statement. The witness has further denied the suggestion that disclosure statement of Vijay and Vishal were fabricated or that no clothes of accused Vijay and Vishal were recovered. He has testified that accused Mukesh @ Bhola was arrested on 27.03.2009 at 10.30PM, on pointing out of some secret informer. According to the witness, no Test Identification Parade was asked for in respect of accused Mukesh @ Bhola. He has testified that PCR call was received at the police station regarding kidnapping which PCR call was made by Nasir who was not the brother of the deceased and the subscriber address of the mobile number was taken. He has further deposed that the mother of the deceased was not called for interrogation. He has denied that accused Mukesh @ Bhola never gave any disclosure statement or that the disclosure statement of Mukesh @ Bhola was fabricated. He has also denied the suggestion that all the proceedings were completed at the police station and signatures of the accused were taken on the blank papers.
(115) PW40 Insp. Vipin Kumar Bhatia was recalled for re examination on 21.03.2012 after arrest of accused Sushil who was earlier declared a Proclaimed Offender, wherein he has corroborated his earlier St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 81 of 113 testimony in toto. He could not identify the accused Sushil as he was apprehended later by the subsequent Investigating Officer after he had filed the charge sheet against four accused.
(116) In his crossexamination by Ld. Counsel for the accused Sushil, the witness has admitted that the only evidence against Sushil was the disclosure statement of the coaccused and that during the investigation, Ismile had not taken the name of Sushil. He has further deposed that only Sachin and Vimal had taken the name of Sushil. He has denied the suggestion that he has falsely implicated Sushil at the instance of Vimal who had alleged that he had some loan to Sushil. The witness has further deposed that no chance print or circumstantial evidence collected from the spot pointed out towards the involvement of Sushil and has voluntarily stated that Sachin had very categorically stated that he had seen Sushil coming and going away with Bhola. (117) PW41 HC Hari Ram has deposed that on 20.11.2011 he was posted as Head Constable at Police Station Jahangir Puri and on that day he joined investigation in the present case with Inspector J.P. Meena. According to him, he alongwith Ct. Pradeep went to Village Khera Kalan along with accused Sushil @ Sushi who was on police custody remand and they went to the village in government vehicle bearing no. DL 1C J 3902. He has also deposed that accused took the police team in the fields near a well and told that he along with his associates had murdered one Amjad on 25.03.2009 and threw his dead body in the said St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 82 of 113 well. According to the witness, the accused also disclosed that one slipper of deceased which fall outside the well was thrown by him in the Nala and the said chappal was already been recovered by the police team and at the instance of the accused pointing out memo of the said well was prepared which is Ex.PW41/A. He has further deposed that thereafter the police team returned back to H2 Block Jahangir Puri near school from where the deceased was kidnapped and taken away in a Maruti Alto Car bearing no. DL 3C AG 3120, the pointing out memo of the said place is Ex.PW41/B. This witness has further deposed that thereafter the accused was brought in the court complex Rohini and produced before Ld. MM and was remanded to judicial custody. The witness has correctly identified the accused Sushil @ Sushi in the court. (118) In his crossexamination By Ld. Defence Counsel the witness has deposed that the Investigating Officer did join any public persons at the time when the accused was taken on police remand. He has denied the suggestion that no pointing out memos were prepared at his instance or that the accused did not point out any place of incident from where the deceased was kidnapped or the place from where the dead body was recovered. The witness has also denied that he did not join any investigation and only signed the documents prepared by the Investigating Officer while sitting in the police station itself. St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 83 of 113 (119) PW42 HC Yash Pal has deposed that on 10.11.2011 he was posted as Head Constable in Crime Branch, R.K. Puram Delhi and on that day when they were present in front of Rohini Jail, near CNG Pump HC Yogender received a secret information that accused Sushil @ Sushi who was wanted in the present case was residing in Sector18 Rohini. According to the witness, in the meanwhile SI Rakesh, SI Kishan Lal, HC Manoj and HC Sanjay reached there in a private vehicle and the secret information was apprised to SI Rakesh Kumar and after ascertaining the information from the secret informer, SI Rakesh made a phone call to Inspector Suresh Kumar, Incharge of Crime Team, R.K. Puram. The witness has testified that Inspector Suresh Kumar directed SI Rakesh to conduct proceeding in this regard after which a raiding party was formed under the supervision of SI Rakesh to apprehend accused Sushil @ Sushi. He has testified that four to five passers bye were requested to join the investigation but they refused to do so without telling their names. According to him, at about 1.25PM they reached at H.No. B5/52, Sector 18, Rohini, Delhi which flat was found locked from inside and SI Rakesh made efforts to got open the door of the said house but the occupant of the said flat did not open the door. The witness has also deposed that SI Rakesh warned the occupant if the door was not opened, they would break open the same and in the meanwhile one lady from the said flat opened the lock as well as the door. He has testified that when police team entered the said flat they saw a person St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 84 of 113 trying to flee from the window of bathroom but he was apprehended and the name of the said boy was revealed as Sushil @ Sushi (whom the witness has correctly identified in the Court). He has further deposed that the said boy was brought to the office of Crime Branch, R. K. Puram and inspector Crime Branch interrogated him and facts was also verified from PS Jahangir Puri. According to him, the police team came to know that the accused Sushil @ Sushi was wanted in the present case and that Inspector Suresh directed him to conduct proceedings U/s 41.1
(c) Cr. P. C. against the accused Sushil @ Sushi. He has further deposed that he prepared the kalandara U/s 41.1 (c) Cr. P. C. and the same was Ex.PW42/A and after interrogation the accused was arrested in kalandara vide memo Ex.PW42/B and his personal search memo Ex.PW42/C was also prepared. He has further deposed that the accused was got medically examined from Safdarjung Hospital and thereafter he was again brought to Crime Branch, R. K. Puram. He has further deposed that SI Rakesh Kumar informed PS Jahangir Puri with regard to the arrest of the accused and DD No.13 was recorded at about 8.40 PM regarding arrest of accused and the true copy of the said DD is Ex.PW42/D. He has also deposed that on 11.11.2011 accused was produced in muffled face before Ld. MM Sh. Bhupinder Singh, Rohini Courts, Delhi and inspector Jai Prakash moved an application before the Ld. MM for interrogation and arrest of the accused. He has further St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 85 of 113 deposed that after taking permission from the court the accused was arrested by Inspector Jai Prakash in the present case after which Inspector Jai Prakash moved an application for test Identification Parade of accused which application was marked to Ld. Link MM for further proceedings and he filed the said Kalandra in the court of Sh. Bhupinder Singh, Ld. MM. According to the witness, the accused was sent to judicial custody.
(120) In his crossexamination by Ld. Defence Counsel for the accused Sushil, this witness has deposed that the secret information was not incorporated into writing in the departure entry. According to the witness, they did not join any public persons and has voluntarily added that they requested 45 public person to join the investigation but they refused. He has further deposed that they did not give any notice to the public persons who refused to join the police party. The witness has denied the suggestion that the accused was not apprehended in the manner as deposed by him and that he had made a false statement only to justify his arrest of the accused. He has stated that he was not aware of any other criminal record of the accused Sushil @ Sushi and has voluntarily added that the accused Sushil has a case of accident at Haryana. According to the witness, the information regarding arrest of the accused Sushil was given to the wife of accused Sushil. (121) PW43 Ct. Jitender Singh has deposed that on 11.11.2011 he was posted as Constable at Police Station Jahangir Puri and on that St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 86 of 113 day he along with Ct. Jaipal (Driver) came to Rohini Court where accused Sushil @ Sushi who was Proclaimed Offender in the present case was produced in the Court by the Crime Branch Officials. He has further deposed that accused was produced by the Crime Branch in a kalandara U/s 41.1 (c) Cr.P.C. and after taking permission from Ld. MM accused Sushil @ Sushi (whom the witness has correctly identified in the Court), was interrogated by Inspector Jai Prakash after which the accused was arrested in the present case vide memo Ex.PW43/A; his personal search was conducted vide memo Ex.PW43/B and the Investigating Officer recorded the disclosure statement of the accused vide Ex.PW43/C. According to the witness, the accused was produced in the Court of Sh. Bhupender Singh, Ld. MM Rohini Courts, Delhi and was sent to Judicial Custody and thereafter the Investigating Officer moved an application for Test Identification Parade of the accused. He has testified that the Investigating Officer recorded statement of witnesses and also recorded his statement.
(122) In his crossexamination by the Ld. Defence Counsel for the accused Sushil, this witness has deposed that Inspector Jai Prakash took the accused outside the Court Room and interrogated him while sitting in the corridor. He has admitted that there were a large number of public persons in the corridor including lawyers and litigants but the Investigating Officer did not join any one of them in the proceedings in St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 87 of 113 his presence. According to him, the Investigating Officer took about ten to twelve minutes to record disclosure statement of the accused and the accused was in muffled face at that time. He has denied the suggestion that accused did not make any disclosure regarding the incident or that that he signed the disclosure statement on the instruction of the Investigating Officer despite the fact that no such disclosure was made by the accused.
(123) PW44 Inspector Jai Prakash has deposed that on 11.11.2011 he was posted as Inspector at Police Station Jahangir Puri and on that day DD No.60B was lodged in Police Station Jahangir Puri by the Crime Branch, R. K. Puram regarding arrest of accused Sushil @ Sushi who was wanted in the present case. According to the witness, the investigations of the present case was marked to him after which he along with Ct. Jitender and Ct. Jaipal reached Rohini Courts, Delhi where accused Sushil @ Sushi was produced by the Crime Branch Officials in a kalandara U/s 41.1 (C) Cr.P.C and the accused was kept in muffled face at that time. He has testified that he moved an application for interrogation of the accused Sushil @ Sushi and thereafter arrested him in the present case vide memo Ex.PW43/A and his personal search was conducted vide memo Ex.PW43/B. The witness has also deposed that he recorded the disclosure statement of the accused which is Ex.PW43/C and thereafter the accused was sent to judicial custody and St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 88 of 113 he moved an application for test Identification Parade of the accused which was marked to Ld. Second Link MM Sh. Sunil Gupta, Room No. 113, Rohini Courts, Delhi who fixed the TIP of the accused for 13.11.2011 at Tihar Jail. He has further deposed that the original kalandara prepared by the Crime Branch was handed over to him by the Court. he has proved having recorded the statements of Crime Branch officials and other witnesses. Inspector Jai Prakash (PW43) has further deposed that on 16.11.2011 he along with Mohd. Ismail (eye witness) alongwith one constable went to Tihar Jail for TIP of the accused and in the TIP proceeding the witness could not identify the accused. According to the witness, he made inquiries from Mohd. Ismail in this regard who told him that due to nervousness and as the case is of three years, he could not identify the accused after which he (witness) recorded the statement of Mohd. Ismail U/s 161 Cr.P.C. wherein he had disclosed that the accused was the same person who was involved in the murder of the deceased. The witness has testified that on 20.11.2011 he again conducted investigations of the present case and on that day accused Sushil @ Sushi was taken out from the police lock up as he was on police remand after which the accused took the police team to Village Khera Kalan and he got prepared pointing out memo of a well where they had thrown away the dead body of deceased after committing murder and the pointing out memo of the said well is Ex.PW41/A. According to him, thereafter the accused took the police St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 89 of 113 team to the place from where the deceased was kidnapped i.e. School H2 Block Jahangir Puri and the pointing out memo of the said place was prepared by him which is Ex.PW41/B. He has also deposed that the witness Ismail identified the accused Sushil @ Sushi in the police station on 20.11.2011 when he was taken to Village Khera Kalan. The witness has testified that the accused was produced in the Court on 20.11.2011 and was got sent to Judicial Custody. He has proved having prepared the supplementary challan against the accused which was filed in the court. He has further deposed that the section 174A IPC was also attracted against the accused Sushil @ Sushi as he was declared as Proclaimed Offender vide order dated 06.07.2009.
(124) In his crossexamination by the Ld. Defence Counsel for the accused Sushil, he has deposed that he had recorded the disclosure statement of the accused in the corridor outside the court room. He has admitted that large number of public persons including lawyers and litigants were present in the corridor and that he did not join any public person while interrogating the accused in the corridor outside the Court. According to him, it took him about ten to fifteen minutes in recording the disclosure statement of the accused and that the accused remained with him for about half an hour. He has also denied that accused did not make any disclosure statement to him and he recorded the same only to connect him with the present case. The witness has also admitted that pursuant to the disclosure statement of accused Sushil there was no St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 90 of 113 recovery and the recovery, if any, had been made prior to his arrest. According to the witness, he did not join any public persons at the time when the accused was taken on police remand. He has denied the suggestion that no pointing out memos were allegedly prepared at his instance or that he did not point out any place of incident from where the deceased was kidnapped or the place from where the dead body was recovered. The witness has further deposed that the Police Custody Remand was taken after the judicial TIP and the accused was produced in the Court in muffled face and while he was in the corridor the accused was also kept in muffled face. He has admitted that Ismail the brother of the deceased did not identify the accused Sushil in the Judicial TIP. He has denied the suggestion that Ismail did not identify the accused Sushil in the Police Station when he was taken on police remand and he had deliberately recorded the wrong statement of Ismail to that extent. The witness has also denied that he had not carried out a fair investigation against the accused.
STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:
(125) After completion of the prosecution evidence, the statements of all the accused were recorded under Section 313 Cr.P.C.
wherein all the incriminating evidence was put to them which they have denied. The accused Mukesh @ Bhola, Sanjeev, Vishal and Vijay have stated that they are innocent and have been falsely implicated in the St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 91 of 113 present case. According to the accused persons they refused to participate in the Test Identification Parade because they were shown to the witnesses in the office of ACP Prem Nath and also in the Police Station prior to the date of Test Identification Parade Proceedings. The accused have preferred not to examine any witness in their defence. (126) In so far as the accused Sushil @ Sushi is concerned, there no incriminating material has come on record against him and hence his statement under Section 313 Cr.P.C. has been dispensed with. FINDINGS:
(127) I have heard the arguments advanced before me by the Ld. Addl. Public Prosecutor for the State and the Ld. Defence Counsels. I have also gone through the written memorandum of arguments filed on behalf of the parties and the evidence on record. My findings are as under:
Ocular Evidence:
(128) Ocular evidence/ eye witness count is the best evidence in any case. Unfortunately in the present case there is no direct evidence and the only evidence is the last seen in the form of the testimony of Mohd. Ismail (PW3) the real brother of the deceased. The case of the prosecution is that on 25.3.2009 at about 5:30 - 6:00 PM near Milk Dairy Mohd. Ismail saw the accused Bhola and his four other associates taking his brother Amjad. According to Mohd. Ismail, he saw one of the St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 92 of 113 accused pointing the revolver on the back of his brother (deceased Amjad) and pushing him towards the Alto car of silver colour on which he raised an alarm. It is further the case of the prosecution that on the same day at about 8:00/ 8:30 PM Mohd. Ismail informed Nasir Khan (PW34) that some person had taken Amjad in a car on which Nasir Khan informed the police on 100 number through his mobile bearing no.
9210991157. It is also the case of the prosecution that on the next day one Rajan who is the brother in law (sala) of Mohd. Ismail gave an information to Mohd. Ismial regarding the dead body of his brother Amjad lying in a well at village Khera Kalan after which he identified the dead body of his brother. It is further case of the prosecution that all the accused had surrendered before the ACP on 26.3.2009 and were identified by Mohd. Ismail on 5.4.2009 as the persons who were accompanying the accused Mukesh @ Bhola and had taken his brother Amjad with them.
(129) Before coming to the evaluation of the evidence on record, I may observed that the 'Last Seen' theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It is a settled law that even in such cases the courts should look for such corroboration. (Sanjay Vs. State of U.T. Chandigarh Criminal Appeal No. 1699/2005 decided by the Hon'ble St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 93 of 113 Supreme Court on India on 5.5.2006).
(130) It is settled law that where there is no direct evidence against the accused and the prosecution rests its case on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be in compatible with the innocence of the accused or the guilt of other person. [Ref: Ved Prakash @ Bhagwan Dia Vs. State of Haryana reported in 2006 (3) RCR (Criminal) 992].
(131) Further, in the case of Mohibur Rahman Vs. State of Assam reported in AIR 2002 SC 3064 the Hon'ble Supreme Court has observed that : "....... The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own he liability for the homicide....."
(132) A similar view was taken by Supreme Court in the decision reported as Amit @ Ammu Vs. State of Maharashtra reported St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 94 of 113 in AIR 2003 SC 3131. Further, in the decision reported as State of Rajasthan Vs. Kashi Ram reported in AIR 2007 SC 144 Hon'ble Supreme Court has observed as under: "....... It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218. ..."
St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 95 of 113 (133) Hon'ble Mr. Justice Pradeep Nandrajog in the case of Sharda Jain Vs. State in Crl. Appeal No. 51/2007 decided on 27.8.2009 has on the basis of the various judicial pronouncements of the Hon'ble Supreme Court, succinctly laid down the factors on which the effect of last seen on the guilt of accused depends, which are as under:
(i) Proximity between the time of last seen and time of death of the deceased.
(ii) Proximity between the place where the deceased was last seen with the deceased and place of murder of the deceased.
(iii) Nature of place of murder of the deceased.
(iv) Attending circumstances enwombing the time and place of last seen.
(v) Reasonableness of the explanation offered by the accused.
(134) Applying these settled principles of law to the facts of the present case, at the very outset firstly coming to the testimony of Mohd. Ismail (PW3) I hold that it does not inspire confidence of the Court for a simple reason that the evidence on record shows that the deceased Amzad was a local criminal and had criminal cases against him. If Mohd. Ismail had seen the accused Mukesh @ Bhola along with four other boys only of whom was pointing a revolver on the back of Amjad and pushing him into an Alto Car from Mother Dairy, KBlock at about 5:506:00 PM, why he (Mohd. Ismail the real brother of Amjad) did not immediately raise an alarm or make a PCR call or even report the matter St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 96 of 113 to the police by going to the Police Station. During the course of arguments it was submitted that Police Station Jahangir Puri is situated at just a walking distance of about two to three minutes from Mother Dairy of KBlock which aspect the prosecution does not deny. What prevented him (Mohd. Ismail) from rushing to Police Station Jahangir Puri and reporting the matter to the police? It is strange that the first call to the PCR was made only at around 20.19 (8:19 PM). (135) Secondly if Mohd. Ismail (PW3) was aware that he had seen the accused Mukesh @ Bhola along with four other body out of whom one was pointing a revolver on the back of Amjad and pushing him towards a Alto car, why in the PCR call made at 8:19 PM he did not give the name of Mukesh @ Bhola. I may note that the PCR Form Ex.PW27/A shows that the same was only with regard to somebody taking away one boy. The information given to the PCR is reproduced as under:
Caller ne bataya ki ladke ko uthakar le gaye hai.
Kai bar call kar chuke hai. Police Nahi aayee.
(136) Assuming what Mohd. Ismail stated is correct and he been seen Bhola along with four other persons taking away his brother Amjad or noted down the number of the Alto Car, then what it is that prevented him from immediately making a call and giving these details to the police. I am sure that even at 8:19 PM when he did make a call to PCR he would have mentioned these details to the PCR and that too St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 97 of 113 when he knew that his brother Amjad was involved in a previous case of quarrel with Mukesh @ Bhola which he did not do and it was much later when PCR officials came to the spot that he named Bhola @ Mukesh. (137) Thirdly the prosecution has tried to rely upon the testimony of Nasir Khan (PW34) who according to him has confirmed the testimony of Mohd. Ismail (PW3). However, I may observe that the testimony of Nasir Khan did not assist the case of the prosecution at all.
Nasir Khan (PW34) only states that it was only around 8:00 - 8:30 PM that Mohd. Ismail informed him that some persons hat taken away his brother Amjad in a case. Nasir Khan (PW34) does not state that Mohd. Ismail had given the name of Mukesh @ Bhola to him. I am sure if Mohd. Ismail would have seen the accused Mukesh @ Bhola, he would have informed Nasir Khan and his family members about the same which again is not the case.
(138) Fourthly, in his entire statement the witness Mohd. Ismail did not state that he informed Nasir Khan (PW34) about the abduction of his brother Amjad on which Nasir Khan made a call to the PCR. According to Mohd. Ismail (PW3) it was his mother who made a telephone call at 100 number after which the PCR reached at their residence at around 7 PM on 25.03.2009 and recorded statement of his mother, which is contrary to the PCR form Ex.PW27/A showing that the call was in fact made from mobile No. 9210991157 (belonging to the St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 98 of 113 mother of Nasir Khan).
(139) Fifthly Mohd. Ismail (PW3) in his testimony has claimed that there was no enmity between his brother Amjad and accused Bhola and his four associates nor any motive has been attributed to the accused persons. The question which arises is, why then under the given circumstances would the accused persons lift Amjad and take him away. It is evident from the testimony of Mohd. Ismail that no answer is forthcoming to the aforesaid. However, it is from the testimony of HC Hari Ram that the things became clear on the aforesaid aspect. Mohd. Ismail (PW3) has concealed the previous criminal background of his brother Amjad. He has also concealed that Amjad was involved in a criminal case registered against him about 15 days prior to the present incident when there was an incident of quarrel between the deceased Amjad, Tota and Bharon one one side and the brother of Mukesh @ Bhola on the other side wherein they had inflicted stab injuries on him in order to threaten him and Mukesh @ Bhola and had asked him to inform his brother (Mukesh @ Bhola) that they would not permit their dadagiri in the area. Pursuant to this an FIR No. 148/09, Police Station Jahangir Puri under Section 324/34 IPC was registered (which has been proved by PW28 HC Hari Ram). This is a material fact which Mohd. Ismail (PW3) had concealed while deposing in the Court which has been proved. This shows that things are not as simple as they seen. Mohd. Ismail would have a definite reason to implicate the accused St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 99 of 113 Mukesh @ Bhola. His deceased brother Amjad in order to threaten Mukesh @ Bhola and to establish his supremacy in the area, had accosted and injured the brother of accused Mukesh @ Bhola about 15 days prior to the present incident. It is writ large that the attempt of Mohd. Ismail was to conceal the criminal background of his brother (deceased Amjad) particularly this important incident without any justification forthcoming for the same. It is this conduct of Mohd. Ismail which is liable to be read adversely against him. (140) Lastly it is strange that Mohd. Ismail (PW3) claim himself to be an eye witness and has identified the accused Mukesh, Vijay, Vishal and Sanjeev but not Sushil @ Sushi and is also unable to tell who was driving the car and who was sitting next to the driver or provide any other details. His (Mohd. Ismail) behaviour and conduct is not natural and probable. Given the background of the deceased Amjad who was a local criminal, it is not possible that his brother Mohd. Ismail (PW3) after having witnessed the incident would have kept quite. He would at least have raised an alarm and sought help of the police which he did not do. Not even a single witness from the area has been cited or examined to show that at about 5:306:00 PM the deceased was being allegedly taken away by the accused and Mohd. Ismail had raised an alarm (as claimed by him). I am sure other public persons in the vicinity would have also noticed the said incident but strangely not even a single witness has come forward to depose in this regard. The St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 100 of 113 possibility of Mohd. Ismail falsely implicating the accused Mukesh @ Bhola in view of their previous animosity, cannot be ruled out.
(141) Therefore, in the absence of any independent corroboration forthcoming in this regard, I hereby hold that firstly the prosecution has not been able to conclusively establish the presence of Mohd. Ismail at the spot at the time of the incident and had seen the accused Mukes @ Bhola taking away his brother Amjad and secondly the prosecution has failed to establish that there is a proximity between the time Mohd. Ismail saw the deceased alive and the time of death and hence the possibility of the any other person being the author of the crime, cannot be ruled out.
Ownership of Alto Car bearing No. DL3CA3120 of Silver colour:
(142) PW1 Jaspreet Singh has proved that the Alto Car bearing No. DL3CA3120 belongs to him and the mobile phone No. 9899029072 whereas the mobile no. 9338547575 belongs to his father.
He has duly proved that on 25.3.2009 he along with his maternal uncle and their children were leaving for Cuttuk as his mother was ill and his brother in law Sachin Prakash dropped them at New Delhi Railway Station in his Alto Car after which Sachin took the car back. The case of the prosecution is that it was the accused Mukesh @ Bhola who was previously acquainted with Jaspreet Singh, had borrowed the car from Jaspreet Singh and took it away. Sachin Prakash has also been examined St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 101 of 113 in the Court as PW10 who has stated that after dropping Jaspreet Singh and his other relatives at New Delhi Railway Station, he came at Sanjay Enclave to park the said car where he met the accused Mukesh @ Bhola who told him that his wife was ill and he had to take her to the hospital and requested him to give the said car. According to Sachin Prakash (PW10), he handed over the keys of the car to Mukesh @ Bhola who handed over to keys of his own bike to him (Sachin). Sachin Prakash has denied that any other person had accompanied Bhola and has stated that he did not require the motorcycle of Mukesh @ Bhola and therefore, he went away from Sanjay Enclave along with his friend Ajay (who has not been examined) on his own bike bearing No. DL7ST6972. The most material independent witnesses Ajay who could have corroborated the testimony of Sachin Prakash to the effect that he and Sachin had gone away on the bike of Sachin, has neither been cited as a witness nor examined to prove the aforesaid aspect. The Alto Car bearing No. DL3CA3120 had been recovered abandoned on 26.3.2009 and PW37 Sardar Raj Kumar has deposed that two boys had come to him and took him to Jyonti village on a motorcycle and asked him to prepare the duplicate key of the car which was parked in the field but when he reached the spot the villagers who had collected there asked him not to prepare the key of the car since they had already lodged a complaint with the police. According to Sardar Raj Kumar (PW37) on hearing this the two persons who had taken him on motorcycle ran away St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 102 of 113 from there on the same motorcycle. The various police witnesses have proved that the Alto Car had been recovered abandoned from the fields of village Jyonti and the members of the Crime Team have proved having lifted five chance prints from the said car and blood stains from the rear seat, music system and window of the said car, which rear seat shows positive result for human blood of Group 'A'. The FSL report Ex.PW36/A and Ex.PW36/B duly proved by Sh. V. Shankaranarayanan (PW36) establish that the blood stains present in the car belong to the deceased, thereby showing that the incident in fact had taken place in the said car.
(143) However, I may observe that prosecution has neither cited nor examined a single person from village Jyonti to prove that any of the accused were amongst the said boys who had come to the village in the said Alto Car nor Sardar Raj Kumar (PW37) who had come to prepare the duplicate key, has identified any of the accused and hence, I hereby hold that the prosecution has miserably failed to connect all the four accused with the abandoned car. Though the electronic evidence in the form of call detail records show that the accused Mukesh @ Bhola was known to Jaspreet (PW1) and Sachin Prakash (PW10) and that the accused Mukesh @ Bhola had even made a call to Jaspreet Singh and had taken the Alto Car from Sachin Prakash. However, the members of the Crime Team have proved having lifted five chance prints from the car in question and had also prepared a report which is Ex.PW13/A but St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 103 of 113 it does not show that it tallied with any of the accused persons thereby creating a doubt in the mind of the Court with regard to the use of the car by the accused persons at the time of the offence and the possibility of some other person being the author of crime cannot be ruled out. Medical Evidence:
(144) PW5 Dr. K. Goel has duly proved the postmortem report which is Ex.PW5/A according to which there were following injuries on the dead body:
There is irregular split lacerated punctured wound over right parietofrontal region. Surrounding scalp hairs are burnt and singed with blackening around, Size of lacerated wound is 6 x 5 cm. Margins of the wound are burnt (entry wound of firearm).
(145) He has further proved that the cause of death was cranio cerebral damage as a result of firearm injury which was antemortem in nature and was sufficient to cause death in ordinary course of nature and the range of the firearm was closed. Dr. K. Goel has also proved that the time since death was 4445 hours. The postmortem report shows that the postmortem examination started at 6:15 PM on 27.3.2009 and the time since death was 4445 hours meaning thereby that the deceased must have expired at about 10:00 PM on 25.3.2009. Therefore, it stands established that the death of Amjad was caused on account of a closed range firearm injury at about 10:00 PM on 25.3.2009.
St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 104 of 113 Forensic Evidence:
(146) PW13 ASI Narender Singh has proved having lifted five chance prints from the rear view inside the car on 31.3.2009 and having prepared the finger print expert report which is Ex.PW13/A. However, no report of the Finger Prints has been placed on record to show that the chance prints lifted from the spot tallied with any of the accused persons.
(147) Further, PW4 Sh. V. Shankaranarayanan, Senior Scientific Officer (Biology) who has also been examined as PW36 has proved that on 31.3.2009 he along with Ms. Manisha Upadhyay inspected the Maruti Alto Car bearing No. DL3CAG3120 at FSL Campus. He has also proved having examined the various exhibits biologically and serologically which reports are Ex.PW36/A and Ex.PW36/B according to which the exhibits lifted from the Alto Car showed positive result for blood of Group 'A' belonging to the deceased. The Forensic Evidence indicates that either the offence had taken place in the Car or after the offence had taken place the body of the deceased had been carried in the car to some other place and thereafter parked at the place where it was found recovered. Hence, under the given circumstances, I hereby hold that the prosecution has not been able to successfully prove the scene of crime i.e. the place of incident and the possibility of the offence having been committed at some other place and the body was ultimately thrown St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 105 of 113 in the well from where it was recovered thereafter, cannot be ruled out. (148) Further, the Ballistic Report Ex.PW35/B duly proved by Inspector S.B. Yadav (otherwise admissible in evidence as per the provisions of Section 293 Cr.P.C.) shows that the individual characteristics of striations present on deformed bullet exhibit EB1 were insufficient for opinion whether it was discharged through the Country Made Pistol .315" bore marked exhibit F1 (recovered from the accused Sanjeev @ Baba).
Apprehension and arrest of the accused and recovery of the firearm:
(149) The apprehension and arrest of the accused has not been disputed. It has been duly proved from the testimonies of the various police witnesses that on 27.3.2009 the accused Vijay, Vishal and Sanjeev @ Baba were initially apprehended by the police of Police Station Paschim Vihar after which they were interrogated when they disclosed their involvement in the present case. It was only thereafter that the information was given to Police Station Jahangir Puri and the accused Vijay, Vishal and Sanjeev @ Baba were formally arrested in this case. (150) Further, it has been established that on the same day i.e.
27.3.2009 pursuant to the secret information the accused Mukesh @ Bhola was apprehended from near KDR Factory, Rajasthan Udoyg Nagar and arrested in this case.
St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 106 of 113 (151) Pursuant to the arrest of the accused Sanjeev @ Baba on 4.4.2009 the accused Sanjeev @ Baba got recovered one country made katta from his house which was taken into possession vide seizure memo Ex.PW40/Q. The recovery of the firearm by the accused Sanjeev @ Baba has been duly proved by PW40 Inspector Vipin Kumar Bhatia. The said recovery has been disputed by the accused and I may observe that the though the prosecution has been able to prove the recovery of the firearm from the accused Sajeev @ Baba but it has not been established that the said country made pistol was used in the present case since the Ballistic Report Ex.PW35/B proves that the individual characteristics of striations present on deformed bullet exhibit EB1 were insufficient for opinion whether it was discharged through the Country Made Pistol .315" bore marked exhibit F1 recovered from the accused Sanjeev @ Baba. It is also evident from the record that there were sufficient opportunities with the Investigating Officer to join the public witnesses and it appears that the country made pistol has been planted upon the accused to work out the present case. Sequence of events not complete:
(152) The case of the prosecution is that on 25.3.2009 after Jaspreet left Delhi for Cuttak and his brother in law Sachin Prakash dropped him at New Delhi Railway Station in Alto car bearing no.
DL3CA3120, Sachin Prakash brought the Alto car back to Sanjay St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 107 of 113 Enclave at about 5:30 PM where the accused Mukesh @ Bhola met him who took the Alto car on the pretext that his wife was unwell after which Mukesh @ Bhola along with his other associates forcibly kidnapped Amjad and after committing his murder, threw his body in a well at village Khera Kalan. It is further the case of the prosecution and also an admitted case of Mohd Ismail that on 26.3.2009 his own brother in law Rajan gave him a call and informed him that the body of Amjad had been found in a well at Khera Kalan on which Mohd. Ismail went to the spot and identified the dead body of his brother. PW31 Rajan has deposed that the son of his Bua namely Vishal had informed him that Amjad was killed by some person and on 26.3.2009 he came to know that the dead body of a young boy was lying in the field near the road leading to Narela Khera Kalan village on which he went there and found the dead body of Amjad. This being the background the questions which emerge and have gone unanswered are:
➢ What was the motive for the offence when Mohd. Ismail himself admitted that there was no enmity between his brother Amjad and accused Bhola and his four associates? ➢ Why did Mohd. Ismail conceal the criminal background of his brother (Amjad) and the fact that Amjad was involved in a case FIR No. 148/09, Police Station Jahangir Puri under Section 324/34 IPC where the complainant/ victim is the brother of Mukesh @ Bhola and allegations St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 108 of 113 were that the injured want to warn Mukesh @ Bhola and establish their supremacy over the area?
➢ How Rajan came to know about killing of Amjad when
this fact was not even reported to the police?
➢ How did Rajan come to know that the dead body was
lying in the fields?
➢ Who had informed the PCR regarding the dead body lying
in the well?
➢ What was the time when the dead body was recovered?
➢ Why the officials of Fire Brigade who had removed the
body from the well, not made witnesses in the present case?
➢ Who discovered Alto Car in village Jonti and who are the villagers who first noticed the said vehicle?
➢ How did this vehicle reach village Jonti?
➢ If chance prints were lifted from the said vehicle and
accused were author of crime in the said vehicle why
these chance prints did not match with any of the
accused?
(153) I may observe that the entire case of the prosecution rests
upon the version given by Mohd. Ismail and Rajan whose conduct itself is not above board. How did Rajan come to know of the body of the deceased was in the well, which has neither been inquired into nor St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 109 of 113 investigated. There are a large number of missing links and it is writ large that the investigations were diverted to connect the accused with the offence .
(154) In view of the above, I hereby hold that the prosecution has not been able to establish the sequence of events leading to the guilt of the accused persons.
FINAL CONCLUSIONS:
(155) In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 110 of 113 except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(156) Applying the above principles of law to the present case, I hereby hold that the identity of the accused Mukesh @ Bhola stands established being previously known to the complainant Mohd. Ismail. The ownership of the Alto car bearing No. DL3CA3120 of Silver Car stands established. It also stands established that the death of Amjad was caused due to cranio cerebral damage as a result of firearm injury which injury was caused on account of a closed range firearm injury at 10:00 PM on 25.3.2009. However, the prosecution has not been able to conclusively establish the presence of Mohd. Ismail at the spot at the time of the incident and had seen the accused Mukesh @ Bhola taking away his brother Amjad. Further, the prosecution has failed to establish that there is a proximity between the time Mohd. Ismail saw the deceased alive and the time of death and hence the possibility of the any other person being the author of the crime, cannot be ruled out. The prosecution has also miserably failed to connect all the four accused St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 111 of 113 with the abandoned Alto car. There are a large number of missing links and it is writ large that the investigations were diverted to connect the accused with the offence. The prosecution has not been able to establish the sequence of events leading to the guilt of the accused persons. (157) In view of the above, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused persons. There is nothing on record to definitely establish which of the accused actually committed the offence and who did not participate in the crime. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused persons. The materials brought on record by the prosecution are insufficient so as to hold that each of the accused Mukesh @ Bhola, Vijay @ Munna, Vishal @ Monu, Sanjeev @ Baba and Sushil @ Sushi was guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused. Crucially, the material and evidence on the record do not bridge the gap between "may be true" and must be true" so essential for a court to record a finding of guilt of an accused, particularly in cases based on circumstantial evidence. Therefore, I hereby hold that the prosecution has not been able to prove and St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 112 of 113 substantiate the allegations against the accused Mukesh @ Bhola, Vijay @ Munna, Vishal @ Monu, Sanjeev @ Baba and Sushil @ Sushi, beyond reasonable doubt and hence, benefit of doubt is being given to them who are acquitted of the charges under Section 365/364/302/34 Indian Penal Code. The accused Sanjeev @ Baba is also acquitted of the charge under Section 25 of Arms Act.
(158) File be consigned to Record Room. Announced in the open Court (Dr. KAMINI LAU) Dated: 16.7.2012 ASJII(NW)/ ROHINI St. Vs. Mukesh @ Bhola Etc., FIR No. 181/2009, PS Jahangir Puri Page No. 113 of 113