Delhi District Court
State vs . 1. Naresh Garg on 24 August, 2018
IN THE COURT OF MS. POONAM CHAUDHRY ADDITIONAL SESSIONS JUDGE02 CENTRAL, THC, DELHI SC No. 28003/2016 FIR No. 379/2010. U/s 302/307/34 IPC & 25/27 Arms Act. PS Sarai Rohilla. State Vs. 1. Naresh Garg S/o. Sh. Jai Bhagwan Garg, R/o. E 21/23, Sec. 3, Rohini, Delhi. 2. Rajesh Garg S/o. Sh. Jai Bhagwan Garg, R/o. E 21/23, Sec. 3, Rohini, Delhi. 3. Ravinder Singh S/o. Sh. Raj Pal Singh, R/o. Lakshmi Nagar, Rohtak Road, IInd, Haryana. 4. Jai Bhagwan Garg S/o Late Sh. Punna Lal Garg, R/o E 21/23, Sec. 3, Rohini, Delhi. 5. Devender Garg S/o. Sh. Jai Bhagwan Garg, R/o. E 21/23, Sec. 3, Rohini, Delhi. FIR No.379/2010 State Vs Naresh Garg Etc.. 1 Date of Institution : 26.02.2011. Judgment reserved : 18.08.2018. Judgment delivered : 24.08.2018. JUDGMENT 1.
The case of the prosecution is that the accused Naresh Garg, Rajesh Garg, Ravinder Singh, Jai Bhagwan Garg and Devender Garg in furtherance of their common intention committed the murder of deceased Jasminder and thereby committed offence punishable u/s. 302/34 IPC and caused injury on the person of PW 1/Ranjeet Singh with such intention and in such circumstances that if by that act death of said Ranjeet Singh was caused they would have been guilty of murder and committed offence u/s. 307/34 IPC. It is also the case of prosecution that all the accused in furtherance of their common intention used the firearm illegally and thereby committed offence punishable u/s. 27 of the Arms Act. It is also the case of prosecution that accused Jai Bhagwan and Devender Garg had absconded and did not appear even despite execution of proclamation u/s. 82 Cr.P.C. in national Daily and execution of process u/s. 83 Cr.P.C. and were declared Proclaimed Offenders vide order dated 03.03.2012 and thereby committed offence u/s. FIR No.379/2010 State Vs Naresh Garg Etc.. 2 174A IPC.
2. According to the prosecution information was received in Police Control Room at about 11.03 am on 17.11.2010, the informant Mohan Singh gave information about quarrel at 'Inderlok Gurge ki shop Chowki wali gali ke samne'. As per the information it was a 'Padosodio ki kahasuni'. The said information was recorded in PCR form by Lady/Ct. Suman Devi/PW21 posted in the Police Control Room, PHQ. PW21 then forwarded it to Net to concerned area. PW20 Ct. Ashok Kumar stated that he was posted at PP Inderlok and he had recorded the information received from Control Room at 11.15 am regarding quarrel near shop of Murli vide DD No. 13 Ex.PW20/A. The said DD was assigned to PW16/ASI Ram Niwas who alongwith PW19/Ct. Rishal Singh reached the spot. According to the prosecution, PW24/SI Satya Prakash who was in the area of Inderlok in connection with Eid arrangements at the time of receipt of information in PP Inderlok immediately reached the shop/spot in front of Prachi Sales no.313/10 B block, Inderlok, Delhi where he met PW16/ASI Ram Niwas, PW19/Ct. Rishal, HC Rang Lal and PW17/Ct. Mahesh. In FIR No.379/2010 State Vs Naresh Garg Etc.. 3 the meantime, IO PW22 also reached the spot. On enquiry it was revealed that injured Ranjit Singh and deceased had been taken by the PCR van to Jeevan Mala Hospital.
3. According to the prosecution accused Devender Garg, Jai Bhagwan Garg and Ravinder Singh had exhorted accused Naresh Garg and Rajesh Garg to kill the deceased Jasminder Singh and PW1/ Ranjeet Singh Further, according to the prosecution accused Naresh Garg and Rajesh Garg were armed with pistol and had fired at the victims indiscriminately one of the bullet hit deceased Jasminder and another bullet hit PW1 on his thigh, Jasminder succumbed to the injuries.
4. On the basis of the statement of injured PW1 a case was registered u/s. 302/307/34 IPC and section 25/27 of the Arms Act vide FIR no. 379/2010, PS Sarai Rohilla against the accused persons. The investigation was entrusted to PW22/IO Inspector Jai Bhagwan and thereafter to IO/PW26 Inspector Ashok Tyagi, PW 29/IO ACP Naresh Kumar, PW31/IO/Inspector Sajjan Singh, PW 33/IO/Inspector Dinesh Kumar, PW34/Inspector Sukhbir Malik and PW35/Rohtash Kumar. After completion of investigation, FIR No.379/2010 State Vs Naresh Garg Etc.. 4 chargesheet was filed in the Court of Ld. MM who committed the case for trial before the Court of Sessions. Charges were framed against all accused u/s. 302/307/34 IPC and Section 27 of the Arms Act. Charge u/s. 174A IPC was also framed against absconding accused Jai Bhagwan Garg and Devender Garg. All the accused pleaded not guilty and claimed trial.
5. Prosecution examined 36 witnesses to bring home the guilt of accused.
6. PW1 Ranjeet Singh injured the eye witness.
7. PW2 Harish Sharma also an eye witness.
8. PW3 Dr. Jaspreet Singh, Consultant Surgeon, Jeevan Mala Hospital proved MLC of deceased Ex.PW3/A.
9. PW4 Dr. Pradeep Singh, CMO, Jeevan Mala Hospital proved MLC of PW1/ the injured eye witness Ex.PW4/A.
10. PW5 Dr. Ajay Kumar, Consultant Surgeon, Jeevan Mala Hospital, Delhi stated he had examined injured PW1 and described the injuries on the reverse of MLC of PW1 Ex.PW4/A.
11. PW6 Ms. Poonam Sr. Scientific Officer, Biology FSL proved FSL result Ex.PW6/A and Ex.PW6/B. FIR No.379/2010 State Vs Naresh Garg Etc.. 5
12. PW7 Sh. Parshuram Sr. Secientific Officer FSL proved FSL result of the paint samples Ex.PW7/A.
13. PW8 Sh. Jitender Singh stated that accused Naresh Garg had purchased a revolver of .32 bore and 25 cartridges from him on 08.10.2011.
14. PW9 HC Om Dutt from the office of Licensing Uuit Delhi stated that license was issued to the accused Naresh Garg in respect of pistol / revolver on 17.02.2010 for Union Territory of Delhi, which was valid till 12.11.2012.
15. PW10 SI Dheeraj Incharge of Mobile Crime Team proved the report of crime team Ex.PW10/A.
16. PW11 SI Mahesh Kumar the Draftsman proved the scaled site plan Ex.PW11/A.
17. PW12 Inder Pal the Photographer in the Mobile Crime Team proved the photographs Ex. PW 12/A1 to A9 and negatives Ex.PWB1 to B9.
18. PW 13 and PW14 are also eye witnesses.
19. PW15 Sh. Pradeep Kumar stated that he produced accused Ravinder Singh in PS and he was arrested in his presence and his FIR No.379/2010 State Vs Naresh Garg Etc.. 6 personal search was taken in his presence.
20. PW16 SI Ram Niwas stated that on receipt of DD No. 13/P of call regarding the quarrel at about 11.45 am he alongwith Ct. Rishal Singh/PW19 reached the spot and joined investigation.
21. PW17 Ct. Mahesh Kumar stated that on receipt of DD No. 14 P Inderlok regarding a quarrel he alongwith HC Rang Lal went to the spot/shop no.313/49B, Inderlok, where PW16 and PW19 were already present. He further stated that he had accompanied PW24 and PW19 to the hospital and he took the rukka to PS for registration of the case.
22. PW18 Satbir stated he had accompanied with IO/PW22 for investigation and accused accused Naresh Garg and Rajesh Garg were arrested in his presence, they had made disclosure statements and accused Naresh Garg got a pistol and arms licence and a arms holster.
23. PW19 Ct. Rishal Singh stated that he had accompanied PW 16/ASI Ram Niwas to the spot.
24. PW20 Ct. Ashok stated that he was DD writer at PS Inderlok at the relevant time and had recorded DD no. 13 FIR No.379/2010 State Vs Naresh Garg Etc.. 7 Ex.PW20/A regarding the incident.
25. Lady/Ct. Suman stated that on 17.11.10 she was posted at control room, PHQ and her duty hours were from 8.00 am to 8.00 pm. She further stated that at about 11.00 am one Mohan Singh gave information to PCR from phone number 65418554 that quarrel had taken place at Inderlok Garg shop Chowkiwali Gali. The said information was recorded by her in PCR form Ex.PW21/A.
26. PW22 Jai Bhagwan is IO of the case who investigated the case after registration of FIR.
27. PW23 is the Autopsy Surgeon who proved the postmortem report Ex.PW23/A.
28. PW24 SI Satya Prakash had stated on 17.11.10 he was posted at PP Inderlok when information was received in PP Inderlok vide DD 13 regarding quarrel at Shop of Murli Chowkiwali Gali Inderlok PW24 stated he was on the area of Inderlok regarding Eid arrangements and he immediately reached the spot. He further stated that he found PW16 ASI Ram Niwas/PW17, Ct. Mahesh, HC Rishal/PW19 were already FIR No.379/2010 State Vs Naresh Garg Etc.. 8 present. He also stated in meantime SHO, PS Sarai Rohilla IO/PW 22 also reached the spot. He further stated that on reaching spot he came to know injured were removed to the Jeevan Mala hospital, he accordingly went to the hospital with PW17 and PW19 leaving the other staff at the spot. He further stated that he recorded the statement of complainant PW1 and sent PW17 for registration of the case. He further stated the clothes of deceased as well as of injured were given to him by the doctor in a sealed pullanda alongwith two sample seals. He further stated that he then went back to the spot.
29. PW25 Sh. Sidharth Sharma, Ld. ADJ, proved test identification proceeding of the accused Ravinder Singh Ex.PW25/A.
30. PW26 IO Inspector Ashok Tyagi deposed that on 22.12.2010, he was posted as Inspector Special Staff North District, Delhi when further investigation of the present case was handed over to him. He further stated that the exhibits of the case were got deposited by him at FSL. He also stated that on 29.12.2010, he alongwith ASI Ranbir Singh met Pradeep and who informed him FIR No.379/2010 State Vs Naresh Garg Etc.. 9 that he was in contact with the absconding accused and at the instance of Pradeep Kumar he apprehended accused Ravinder Singh. He further stated that accused Ravinder Singh made disclosure statement and he had arrested him. He further stated that he had moved an application for TIP proceedings of accused Ravinder Singh but accused refused to participate in TIP. He also stated that he took PW11 SI Mahesh Kumar Draftsman to the spot who inspected the site and prepared scaled site plan. He also stated he obtained process u/s 82 and 83 CrPC for remaining accused and after completion of investigation he filed chargesheet.
31. PW27 Sh. V.R. Anand, Assistant Director (Ballistic) FSL, Rohini proved report of ballastic division Ex.27/A.
32. PW28 Dr. Pankaj Srivastava, Deputy Director (Operation), Jeevan Mala hospital, Delhi was called to prove MLC Ex.PW3/A of deceased and MLC Ex.PW4/A of PW1 pursuant to filing of supplementary chargesheet.
33. PW29 IO ACP Naresh Kumar stated that on 02.10.2013 further investigation of the case was marked to him and he had issued notices to the absconding accused Jai Bhagwan and FIR No.379/2010 State Vs Naresh Garg Etc.. 10 Devender Garg to join investigation.
34. PW30 ASI Yogender stated that on 25.6.2015 he was posted in Spl. Staff, North District, Maurice Nagar Delhi and joined the investigation with SI Sukhbir Malik. He further stated that on the said date accused Devender Garg and Jai Bhagwan Garg came to office of Spl. Staff and were interrogated by SI Sukhbir Malik and they were formally arrested and released on bail as they had been granted anticipatory bail .
35. PW31 Inspector Sajjan Singh stated that in November, 2012 he was entrusted further investigation of the present case and he found that two accused were absconding and were declared Proclaimed Offenders. He further stated that the absconding accused Jai Bhagwan and Devender Garg were granted anticipatory bail.
36. PW32 Inspector Dheeraj Singh stated that investigation of this case was entrusted to him in June, 2015 and after completion of the investigation he filed supplementary chargesheet against the absconding accused.
37. PW33 Inspector Dinesh Kumar stated that on 26.07.2011 FIR No.379/2010 State Vs Naresh Garg Etc.. 11 further investigation was entrusted to him he made efforts to arrest the accused persons but in vain.
38. PW34 Inspector Sukhbir Malik he stated that on 27.05.2015, further investigation was entrusted to him. He further stated that on 25.06.2015 accused Devender Garg and Jai Bhagwan Garg were formally arrested and their personal search was conducted and their disclosure statement were recorded. Both the abovesaid accused persons pointed out the place of occurrence vide memos Ex.PW34/C. He further stated that accused were released on bail. Thereafter he was transferred.
39. PW35 Inspector Rohtash Kumar stated that on 18.07.2012 further investigation was handed over to him and he made efforts to arrest the proclaimed offender but he could not get any clue about them and handed over the file to Inspector Sajjan Kumar as he was transferred.
40. PW36 HC Ramesh Chand stated that on 17.11.2010 he was posted as Duty Officer at PS Sarai Rohilla and was on duty from 9.00 am to 5.00 pm and on the said date PW17/Ct. Mahesh brought a rukka sent by PW24 on the basis of which he got the FIR No.379/2010 State Vs Naresh Garg Etc.. 12 FIR registered which was Ex.PW36/B.
41. The prosecution thereafter closed its evidence. The statements of all accused were thereafter recorded u/s. 313 Cr.P.C. The accused persons denied all the allegations of prosecution witnesses and stated that they were innocent and had been falsely implicated in this case.
42. It is the case of prosecution that on the receipt of a complaint Ex.PW1/A rukka was prepared, a case was registered u/s. 302/307/34 IPC and Section 25/27 Arms Act. The prosecution case is that all the accused in furtherance of their common intention committed the murder of deceased Jasminder Singh and injured PW1.
43. PW23/ Autopsy Surgeon Dr. L.C. Gupta who conducted the postmortem on the body of deceased found the following injuries on external examination;
1. bruise of size 9 cm X 5 cm X irregular shape, redish in color was present at right side tebial shin (lower limb) in its upper half. On incision underneath, bright red haematomma was found collected.
2. abraded bruise of size of 10 cm X 3 cm X irregular FIR No.379/2010 State Vs Naresh Garg Etc.. 13 shape, redish in colour was present at dorsal aspect of left foream at its distal 1/3 part, on incision underneath tissue found contained bright red colour haematomma,.
3. entry woundoval shaped entry wound of size 1.5 cm X 0.5 cm redish in colour of bruise, burning present horizontally in anterior triangel of neck (left anterior triagne, it was place 3 cm above the medial end of the clavical (sterno clavicular left) tattooing were present in an area of 4 cm X 6 cm around it. A track wa found communicating between injury no. 3 and injury No.5 obliquely downward and backward by pearsing and making rent (oval shaped) in all intervening tissues structure and organs ie. neck muscles sixth rib (which found fractured with a irregular shape hole at fractured end which is pearsing out).
4. abraded bruise of size 1 cm X 1 cm X irregular shape, redish in colour was present at dorsum of right side elbow.
5. Oval shaped dark redish two blue colour massive haematooma collection present at right side chest laterally between and anterior and posterior axiallary line in a area of 8 cm X 10 cm on incision and dissection and further elaboration of the bruise a massive collection of blood found in the underneath soft tissue and a metallic bullet of size 1.5 xm X 2 cm in lenth and 0.6 xm in diameter was recovered. This haematomma was collected between fourth to eight inter coastal space.
FIR No.379/2010 State Vs Naresh Garg Etc.. 14
6. multiple irregular shape gradged version of varying size between 1/2 cm X 1 cm to 3 cm X 2 cm were present at both side knee joints and right side ankle which were red in colour.
On Internal Examination, following findings were revealed:
Head : Scalp tissue and scalp bones were NAD (no abnormailty detected), brain matter was pale and cerebral vessels were emtpy, base of scalp was NAD.
Neck : Oesophagus found filed with blood, hyoid bone, thyroid cartilage, cartilage were NAD and rest is already described above.
Chest : 1.5 cm liter blood was recovered collected from the right side of chest, left lungs was NAD and pale, trachea was filled with liquid blood.
Abdomen and Pelvis : All viscera were pale and NAD, stomach was healthy and it contains 1.5 liter food material admixed with unidentifiable contents and blood, it was darkish black in colour. Intestines loop were dilated and filled with gasage and feacel matter, rest was NAD.
Spincal Column was NAD.
According to PW23 :
A. Cause of death was due shock resulting from projectile fie arm injury which was sufficient to cause death in ordinary course of nature about which mentined at injury no. 3 and 5. B. All injuries were antemortem in nature and fresh prior to FIR No.379/2010 State Vs Naresh Garg Etc.. 15 death in duration.
From the medical evidence it is evident that death of deceased was homicidal.
44. The prosecution primarily relied upon the testimony of PW1 Ranjeet Singh the injured eye witness and the other eye witnesses PW2 Harish Sharma, PW13/Mohan Singh and PW14/Manender Singh as well as circumstantial evidence.
45. Culpable Homicide is defined in section 299 IPC as follows : Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Section 300 IPC defines murder as under :
Section 300 provides that culpable homicide is murder except in cases coming under Exception.
Section 300 IPC is as under: Section 300 CrPC Murder. Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly. If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly. If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be FIR No.379/2010 State Vs Naresh Garg Etc.. 16 inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly. If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1. When culpable homicide is not murder - Culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provision; First That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly - That the provocation is not given by anything done in the done in the lawful exercise of the right of private defence.
Explanation - Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Section 307 IPC : relates to Attempt to murder and provides; whoever does any act with such intention or knowledge, and under such circumstances that , if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused FIR No.379/2010 State Vs Naresh Garg Etc.. 17 to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
Section 34 IPC defines common intention as follows; When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
Section 27 Arms Act provides: Punishment for using arms or ammunition illegally.
46. Thus in view of section 299 IPC the offence of culpable homicide consists in the doing of an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that accused is likely by such act to cause death.
47. What distinguishes culpable homicide from murder is special mensrea which consists in one of the four mental state mentioned in Section 300 of IPC. When the injury is intentional and sufficient to cause death in ordinary course of nature and the death follows the offence as murder. Hence, culpable homicide will be murder if FIR No.379/2010 State Vs Naresh Garg Etc.. 18 the injuries inflicted is not merely one likely to cause death but is so grave that it is sufficient in ordinary course of nature to cause death.
If the facts of the case come within the definition of murder, then the court has to see whether the facts come within any exception of Section 300 IPC.
48. According to prosecution the statement of injured/eyewitness PW1/Ranjeet Singh was recorded in the hospital who stated therein that he and his deceased brother Jasminder Singh were carrying on business under the name of Anmol Traders from shop no.313/2B, Inderlok, Delhi, his uncle Mohan Singh PW13 was also engaged in the business of footwears in Inderlok. He also stated that about one year prior to the date of incident accused the owners of the Garg Traders namely Naresh Garg, Rajesh Garg and others whose shop was situated behind their shop had came to their shop and had beaten them. The said matter was compromised with the intervention of office bearers of Footwear Market Association Inderlok. The complainant further stated that accused Naresh Garg, Rajesh Garg and others however nurtured a grudge against them. He also stated that on 17.11.2010 at about 11.00 am complainant FIR No.379/2010 State Vs Naresh Garg Etc.. 19 PW1 was informed by his friend (PW2) Harish Sharma that he had seen accused Naresh Garg with 2 aslas/weapons wrapped around his waist on 16.11.2010. Accused Naresh Garg had told PW2 that he had procured the weapons for eliminating deceased Jasminder Singh and complainant because "Wo bahut Chore Hote Hai". He also stated on 17.11.2010 that complainant was called to the shop of Garg Traders by accused Jai Bhagwan he accordingly went there and he found accused Naresh Garg, Rajesh Garg, Devender Garg and Jai Bhagwan Garg present alongwith one unknown person aged about 3540 years (identified as accused Ravinder). PW1 also stated that accused Naresh Garg without any reason fired at him by putting the pistol on his temple but it somehow missed and he managed to escape. He also stated that he heard all accused exhorting Naresh Garg to fire again at him. He further stated that though all accused tried to catch hold of him but he somehow managed to escape and after coming out of the shop of Garg Traders he shouted "Garg Trader Wale Mujhe Marna Chahte Hai, Mere Chacha Mohan Singh Ko Phone Karo". PW1 also stated that he got a call made to his uncle PW13 Mohan Singh FIR No.379/2010 State Vs Naresh Garg Etc.. 20 alongwith his uncle (PW13) Mohan Singh and his son (PW14) Manender Singh and his brother deceased Jasminder Singh and his friend (PW2) Harish Sharma reached. After seeing them the accused pulled down the shutter of their shop. Thereafter all the accused went to the first floor of their shop and said "aaj nahi chodenge in salo sardaro ko and on the exhortion of accused Jai Bhagwan Garg, Devender Garg, Ravinder Singh accused Naresh Garg and Rajesh Garg fired at them, indiscriminately one of the shots fired by Naresh Garg hit deceased Jasminder Singh who fell on the ground the and another shot fired by accused Naresh Garg hit PW1 on his right thigh. Thereafter, all accused fled from the back door of the shop of Garg Traders. PCR Van came and took deceased to the Jeevam Mala hospital where he was declared brought dead. PW1 correctly identified all the accused.
49. The complainant PW1 Ranjeet Singh in his deposition in court proved his complaint Ex.PW1/A reiterating therein the averments made in the complaint Ex.PW1/A and also stated that he and deceased were taken in PCR van to the hospital and that they reached the hospital at 12 Noon. He also testified that his cousin FIR No.379/2010 State Vs Naresh Garg Etc.. 21 brother Harmeet Singh accompanied them in PCR to the hospital. PW1 also deposed that the doctors examined him (PW1) at about 11.15 pm and doctors took into possession his pants which were blood stained and had bullet marks. PW1 also stated that he was discharged on the same day and he then went to the spot at about 6 6.30 pm where he found many police personnels present. PW1 further testified that blood was found lying in front of shop M/s. Prachi Sales and there was a mark of bullet and one bullet hole on the shutter of M/s Prachi Sales. PW1 further deposed that a piece of bullet was found lying in front of M/s.Prachi Sales and another bullet was found lying at a distance from the said shop. PW1 further stated that on 18.11.2010, he went to the mortuary of Subzi Mandi and identified the dead body of the deceased. PW1 correctly identified his jeans Ex.P1.
50. PW2/Harish Sharma who is also cited eyewitness deposed that he was running the business of footwear by the name of IRA Enterprises from premises no. 4B, Inderlok, Delhi. That Garg traders owned by accused Jai Bhagwan Garg and his three sons were running business from a shop situated in his gali. He further FIR No.379/2010 State Vs Naresh Garg Etc.. 22 stated that about one year ago he heard that a quarrel had taken place between the accused and complainant which was compromised. PW2 further stated that on 16.11.2010, he saw accused Naresh Garg, (correctly identified), carrying two pistols to both sides of his waist and he asked accused Naresh Garg why he was carrying the weapon upon which accused Naresh Garg told him that he had procured the weapons for eliminate the sardars i.e. PW1/Ranjeet @ Babloo and deceased Jasminder @ Jassi because stating "vo bahut chore hote hai, mera koi kuch nahin bigar sakta, dekh loonga salo ko." PW2 further stated that on 17.11.2010, he met PW1 in the market and apprised him of the said fact and after sometime he saw PW1 passing by his shop, he (PW1) told him he was going to the shop of Garg Traders. PW2 further stated that he then heard sound of gunshot and came out of his shop, and saw PW1 running towards his shop and the shutter of Garg Traders pulled down. PW2 also stated that thereafter PW1, deceased, PW 13 and PW14 came and went towards the shop of accused Garg Traders and he followed them and saw accused Naresh Garg, Rajesh Garg firing on PW1, PW13, PW14 and deceased. All the FIR No.379/2010 State Vs Naresh Garg Etc.. 23 accused were standing in the balcony of their shop and were heard shouting 'maaro sardaro ko'. PW2 further testified that shots fired by accused Rajesh Garg and Naresh Garg hit on the neck of deceased and thigh of PW1. PW2 correctly identified all the accused.
51. Another eyewitness PW13 Mohan Singh the uncle of deceased and PW1 stated that about 11/2 year prior to the date of incident a quarrel took place between them and accused Naresh Garg and complainant with regard to some business transaction. The matter was compromised with the intervention of some respectable persons of the market association. PW13 further stated that on the date of incident at about 10.30, his son PW14 Maninder Singh called him on his mobile, at that time he was at home and informed him that Naresh Garg had fired on PW1 PW13 further testified that he then went to his shop at Inderlok and thereafter he alongwith deceased, PW1, PW14 and PW2 went to the shop of accused/Garg Traders and stood outside their shop and saw the shutter of their shop was closed. PW13 further stated that he then saw that accused Naresh Garg standing in the balcony of his shop FIR No.379/2010 State Vs Naresh Garg Etc.. 24 and he started firing at them indiscriminately, one shot fired by him (accused Naresh Garg) hit the deceased, another shot fired by accused Naresh Garg hit PW1 on his thigh. In the meantime, PCR Van reached and both injured were removed to the hospital in the PCR Van. Accused Naresh Garg ran away from the back door of his shop. PW13 also stated that his son Maninder Singh/PW14 and Harmeet had accompanied the injured to the hospital in the PCR Van and he also went to the hospital. PW13 also stated that accused Naresh Garg had a grudge against them because of an earlier quarrel. PW13 correctly identified all the accused.
52. Another eye witness PW14 Maninder Singh Walia stated that the quarrel took place a year ago between PW1, deceased and accused Naresh Garg, Rajesh Garg and Devender Garg. Accused had beaten the complainant and deceased. The matter was settled with the intervention of respectables of the association. He further stated that on 17.11.2010 an employee of Garg Traders came to the shop of PW1 and told him that accused Jai Bhagwan Garg had called him. PW1 then accompanied the said employee of Garg Traders to their shop. After a few minute PW1 came running to FIR No.379/2010 State Vs Naresh Garg Etc.. 25 his shop and told him that Garg Traders owners had fired at him. PW14 stated that he informed his father PW13 telephonically about the said incident and within 10 minutes, the deceased, his father/PW13 came to their shop and he alongwith PW1, PW2, deceased and PW13 went to the shop of Garg Traders and found all accused present. On seeing them the accused closed the shutter of their shop and all of them went to the first floor balcony of their shop. All accused then stood in the balcony and accused Naresh Garg fired at them indiscriminately and 2/3 shots hit the shutter in front of shop of accused. PW14 further stated one shot fired by Naresh Garg hit deceased on his neck and another shot fired by him hit PW1 on his thigh. He further stated that PCR van came and he and his friend Harmeet took the deceased to Jeevan Mala Hospital. PW1 was lying on the ground in front of the shop of Garg Traders when they left. PW14 had correctly identified all accused.
53. Ld. Defence Counsels Sh. Rajesh Khanna and Sh. R.N. Sharma contented that none of the cited eyewitness were infact witnesses to the incident. It was alleged that PW1 did not sustain gunshot injury and the injuries on his thigh were self FIR No.379/2010 State Vs Naresh Garg Etc.. 26 inflicted/manufactured. It was further alleged that PW1 was not taken to the hospital by PCR van which took deceased as was evident from his MLC Ex.PW4/A according to which he (PW1) was examined at 1.15 pm. It was also alleged that PW1 had stated in this regard in his complaint Ex.PW1/A that PCR van had taken deceased to the hospital. It was contented that the deposition of PW1 in Court that he was taken to the hospital by the same PCR van which took the deceased was a material improvement and such his version was not safe to be relied upon. Ld. defence counsels further contented that PW13 stated in his examinationinchief that he also went to the hospital and PW14 stated in examinationin chief that he accompanied deceased in PCR Van to the hospital., he was however confronted with his statement Ex.PW14/DA wherein it is not so recorded. Ld. Counsels also contended that in the MLC of deceased Ex.PW3/A it was stated that he was brought to the hospital by police and an attendant Harmeet Singh. The name of PW14 having accompanied the deceased was not mentioned in the MLC of deceased. PW14 stated that he had not stated before the police that PW1 was lying on the ground in front of shop of Garg FIR No.379/2010 State Vs Naresh Garg Etc.. 27 Traders when he left the spot with deceased in PCR. It was contended by Ld. defence counsels that the deposition of PW14 was not credible as PCR Van would not have left an injured lying at the spot. It was also submitted that PW13 had also deposed in his examination in chief that he had also reached the hospital. It was argued that PW14 admitted in his cross examination that he had not stated before the police that he took deceased to Jeevan Mala Hospital with the help of Harmeet Singh. It was also argued by Ld. defence counsel that PW24/SI Satya Prakash who had gone to the hospital in connection with the investigation of this case had deposed that he met the injured (PW1) in the hospital and recorded his statement. Ld. defence counsels argued that PW24 did not meet PW13, 14 or Harmeet Singh in the hospital and had he met them in the hospital he would have recorded their statement. It was also argued by Ld. defence counsels that PW14 had stated in his cross examination that he had helped in lifting the deceased from the spot and putting him in PCR Van and his clothes became blood stained, and the police might have seen his blood stained clothes in the hospital but did not ask him to handover the same nor did he do FIR No.379/2010 State Vs Naresh Garg Etc.. 28 so. In my view the same is a lapse in the investigation. The defence counsels further contended that as per the endorsement on MLC of deceased Ex.PW3/A the belongings of deceased were given to Kamaljeet Singh but PW24 stated in his cross examination that no person by the name of Kamaljeet met him in the hospital nor did he record the statement of Kamaljeet Singh during investigation. PW 24 also stated that he also did not meet attendant Harmeet Singh whose name was recorded in the MLC of deceased in the hospital. The above deposition of PW24 shows that investigation was faulty. It was also alleged that PW24 did not produce any departure entry of DD register to show that he was in the area of Inderlok at the time of incident. In his cross examination he stated that he left PP at about 7.30 am on Government Motor cycle driven by a rider and did not remember if he signed the log book of the motor cycle . PW24 also stated that he left the spot at about 11.40 am for Jeevan Mala Hospital. He also stated that he had not met complainant at the spot. It is to be noted that PW1 had stated in his complaint Ex.PW1/A that only deceased was removed to the hospital by PCR Van. In my view thereof, the version of FIR No.379/2010 State Vs Naresh Garg Etc.. 29 prosecution in this regard is doubtful.
54. The contention of Ld. defence counsels was that all the proceedings were conducted in PS. It was alleged that PW24 could not produce any DD entry to show that he was in the area of Inderlok at the time of incident. It is also pertinent to note that PW 20 the DD Writer at PP Inderlok on the date of incident stated that at about 11.15 am information was received from Control Room regarding quarrel near Murli Ki Dukan, Chowkiwali Gali Ke Samne, he had recorded the said information vide DD No. 13. In his cross examination he stated that it was written in DD No. 17 dated 17.11.2010 that he took over duties at 12.30 pm. Prior to 12.30 pm HC Kishan Kumar was the DD Writer. He also admitted that there was overwriting on the timing of DD No.14 dated 17.11.2010 and he had done the overwriting. From the statement of PW20, it is evident that DD entries were manipulated to bring the same in line with the prosecution case.
55. Ld. counsels further contended that reliance on deposition of a witness who has made material improvements in his version is wholly unsafe without corroboration.
FIR No.379/2010 State Vs Naresh Garg Etc.. 30
56. Ld. defence counsels also contented that had PW1 sustained gunshot injury in the incident he would have also been removed to the hospital by the same PCR van which took the deceased but PCR van only removed deceased to the hospital. Ld. counsel also urged that no explanation has been given by prosecution why the injured and deceased were not taken to Hindu Rao Government Hospital but were taken to a private hospital. It was further urged that PW 24 stated in his cross examination in this regard that Jeevan Mala Hospital was situated at a distance of about 56 kms. from the place of incident and Hindu Rao Hospital was equally situated from the spot. PW24 also stated in his cross examination that he was not aware who had removed the complainant to the hospital. PW24 also stated that he did not make enquiry from PCR official or any other police officials as to why complainant was taken to Jeevan Mala Hospital. IO/PW22 also stated that he did not interrogate the PCR officials as no PCR official was present at the spot when he reached there. Ld. defence counsels contended that deceased was taken to Jeevan Mala Hospital as the doctor in the said hospital were known to the complainant side. However, Ld. Addl. PP FIR No.379/2010 State Vs Naresh Garg Etc.. 31 contended that nothing was brought on record to substantiate the said contention.
57. Ld. defence counsel further contented that there were contradiction in the version of PW1, PW13 and PW14 regarding their relationship with the attendant Harmeet Singh who had accompanied the deceased and PW1 to the hospital. It was pointed out PW1 stated in his crossexamination that Harmeet Singh was his cousin brother, whereas PW13 stated in his cross examination that Harmeet Singh was not related to them but was residing on the top floor of their house. PW14 stated that Harmeet Singh was not his brother, he was a resident of Azadpur. It may he noted hat PW 24/SI Satya Prakash deposed in his crossexamination that Harmeet Singh whose name is mentioned in MLC Ex.PW3/A as attendant did not meet him in the hospital. It was also pointed out by Ld. defence counsels that IO/PW22 stated in this regard that he he did not record the statement of Harmeet Singh till investigation remained with him which was a lacuna in the case of prosecution and the benefit of faulty investigation ought to go to the accused and not to the prosecution. In my view although Harmeet Singh FIR No.379/2010 State Vs Naresh Garg Etc.. 32 was a material witness but he was not the only witness competent to depose about the incident thus his nonexamination cannot destroy the version of the prosecution.
58. Ld. counsels next contented that PW1, PW2, PW13 and PW14 had deposed about their presence at th scene of offence at the time of incident but their testimonies were not inconsistent regarding the firing incident PW1 deposed in this regard in his examinationinchief that gunshots were fired at him and deceased by accused Naresh Garg and Rajesh Garg from the 1 st Floor balcony of their shop, on the exhortations of accused Jai Bhagwan, Devender Garg, Ravinder Singh. The shots fired by accused Naresh Garg hit him on his thigh and the deceased on his neck, the accused then fled away from the back door of their shop. It is to be noted that PW1 in his crossexamination by Ld. Addl. PP with the leave of court dated 02.07.2012 regarding the roles of accused Rajesh Garg and Ravinder Singh denied the suggestion that accused Rajesh Garg and Ravinder Singh exhorted accused Naresh Garg to fire on him and deceased or that accused Rajesh Garg had fired at them. He also denied that when accused Naresh Garg fired at him and FIR No.379/2010 State Vs Naresh Garg Etc.. 33 deceased accused Rajesh Garg and Ravinder were standing with him and exhorting him. PW1 stated in is cross examination by accused Ravinder and Rajesh Garg that he was told by IO to name accused Ravinder Singh and Rajesh Garg as persons present at the place of occurrence. It is to be noted that PW1 was recalled for further examination after filing of supplementary chargesheet wherein he stated that only Naresh Garg had fired at them from the 1st floor balcony of his shop and he shouted 'aaj nahin chodenge saale sardaro ko' one of the bullet hit deceased and the other bullet hit him. Accused Naresh Garg then fled away from the balcony. PW1 was again cross examined by Ld. Addl. PP with the leave of court wherein he stated that he did not remember if he stated before the police that accused Ravinder Singh, Rajesh Garg, Devender Garg, Jai Bhagwan came to the balcony of their shop and gave exhortations to kill them, he was confronted with his statement Ex.PW1/A wherein it was so recorded. PW1 also stated that police did not read over his statement to him and he never received the copy of FIR.
59. It is pertinent to note that it has been held in Satpaul v. Delhi FIR No.379/2010 State Vs Naresh Garg Etc.. 34 Admn., AIR 1976 SC 294 that when a prosecution witness is cross examined, his entire evidence cannot be treated as washed off but so much of his testimony which is found reliable can be believed. Thus from the testimony of PW1 it is evident that he was not desirous of telling the truth as he contradicted substantially his previous statements.
60. It is to be noted that the testimony of PW1 was substantially improved at the trial. PW1 had made complaint to the police Ex.PW1/A and in that statement he had not stated the facts which he stated for the first time in court which raise doubt as to the veracity of the said facts. Thus in my view the evidence of PW1 thus does not pass the test of credibility. As on a careful perusal of the evidence of PW1 eyewitness/ injured witness it is evident it is replete with inherent improbabilities and contradiction.
61. As regards the incident of firing PW2 stated that he had followed PW13/Mohan Singh, the deceased and PW14/Manender Singh to the shop of accused Garg Traders and saw that accused Naresh Garg and Rajesh Garg suddenly started firing at PW1, deceased, PW13 and PW14 from the balcony of their shop. He FIR No.379/2010 State Vs Naresh Garg Etc.. 35 further stated that shots fired by the Rajesh and Naresh Garg hit the deceased on his neck and also on his thigh of PW1. PW2 also deposed that all the accused were heard shouting "maaro salo ko". PW2 correctly identified all the accused.
62. Ld. counsel for accused contented that there were material contradictions in the testimony of PW2 as he stated in his cross examination that he did not witness the incident of firing and was informed about it when he reached the spot. PW2 also stated that his statement was not recorded by the police nor was he called for enquiry. He further stated that he reached the spot at 11.30 to 12 Noon and saw a number of independent public person present. PW 2 further stated that he had not seen any of the accused at the spot. PW2 also deposed that the deposition in his examination in chief was made that at the instance of complainant and he was a close friend of complainant side. PW2 also stated that he had not stated before the police that on the date of incident he saw PW1 passing by his shop or that PW1 told him that he was going to the shop of Garg Traders or that after sometime he had heard the sound of gunshot. PW2 further stated that he had not stated before the FIR No.379/2010 State Vs Naresh Garg Etc.. 36 police that he followed the complainant side or that he saw accused Naresh Garg and Rajesh Garg firing shots at deceased, PW1, PW 13, PW14 from the balcony of M/s Garg Traders. PW2 further stated that he had not told the police that shots fired by Naresh Garg and Rajesh Garg hit on the neck of Jasminder Singh and on the thigh of PW1 or that he had heard any of the accused making exhortation. PW2 also stated that accused Ravinder Singh was not known by him and he had seen him outside court. He also stated PW13 told him to name him (accused Ravinder Singh). Ld. counsels further contented that PW2 in his cross examination by Ld. Addl. PP denied that he reached the place of occurrence when accused were firing on PW1 and deceased. He also denied that he had witnessed the firing incident or that he saw accused at spot. He also denied that he had seen the accused at the spot. PW2 further denied that accused fired on PW1 and deceased on the exhortation of accused Ravinder Singh. He denied that his deposition in his examination in chief dated 07.05.2011 was correct. Ld. defence counsels contended that PW2 in his further examination after filing supplementary chargesheet against the Devender Garg and Jai FIR No.379/2010 State Vs Naresh Garg Etc.. 37 Bhagwan Garg made further improvements in his version and stated that he had seen accused Naresh Garg, Rajesh Garg and 23 more persons standing in the balcony of their shop. Accused Naresh Garg was holding pistol in his had and he heard someone saying "Maro Sardaro Ko". He also stated that accused Naresh Garg started firing indiscriminately from his pistol and the shots fired by accused Naresh Garg hit deceased and PW1. PW2 also stated that he did not know the other persons standing in the balcony. PW2 further stated that accused Devender Garg, Jai Bhagwan Garg, Ravinder Singh were standing below outside their shop. PW2 also stated no body else except deceased sustained injuries in the occurrence. He also stated that he went to the hospital. PW2 in his cross examination by Ld. Addl. PP with the leave of court denied that he had intentionally improved and contradicted the version given in his examination in chief regarding the roles of accused Jai Bhagwan Garg, Devender and Ravinder and Rajesh Garg. From the deposition of PW2 it is clear that he contradicted his statement given in examination in chief dated 07.05.2011 Ex.PW2/A and his statement u/s. 161 Cr.P.C. FIR No.379/2010 State Vs Naresh Garg Etc.. 38 Ex.PW2/B. The statement of PW2 was replete with contradictions and improbable versions thus as PW2 contradicted substantially his previous statements, his credit was wholly shaken. I therefore do not deem it proper to pick out a sentence or so from his evidence and use it in support of the prosecution version.
63. Ld. counsels contended that as regards the scene of offence PW13 stated that he saw accused Naresh Garg firing at them from the balcony of his shop, the shots fired by accused Naresh Garg hit the deceased and PW1. Ld. counsels contended that PW13 denied in his cross examination by Ld. Addl. PP that he stated before the police that accused Rajesh Garg, Devender Garg, Jai Bhagwan and one more person went to 1 st Floor balcony of their shop and exhorted Rajesh Garg to fire at them or that Rajesh Garg fired at them indiscriminately or that all accused ran away from the back door of their shop. PW13 was confronted with his statement Ex.PW13/A wherein it was so recorded. PW13 also denied that accused Rajesh and Ravinder also participated in the incident.
64. It is to be noted that PW13 in his cross examination by Ld. Addl. PP after filing of supplementary chargesheet denied that he FIR No.379/2010 State Vs Naresh Garg Etc.. 39 stated before the police that accused Rajesh Garg, Devender Garg, Jai Bhagwan Garg and one other person (identified as accused Ravinder Singh) went to 1st floor of the balcony of their shop and exhorted Rajesh Garg and Naresh Garg who were holding weapons to fire at them or that accused Rajesh Garg also fired at them indiscriminately and all accused ran away from the back door of their shop. PW13 was confronted with his statement wherein it was so recorded.
65. Ld. Addl. PP contended that a witness cannot reveal the exact version of the incident giving every minute detail, as such it is the duty of the court to sift the evidence carefully to decide which part of it is true and which is not. It is to be noted that it has been held in Bheg Singh Vs. State of Punjab 1997 (7) SCC 712 that testimony of a witness should be viewed from broad angles.
66. As regards the occurrence on the date of incident PW14 who is also an eyewitness deposed in his examination in chief that PW1 came running to his shop and informed him that Garg Traders owners had fired at him. PW14 further stated that he made a telephonic call to his father/PW13 informing him about the same FIR No.379/2010 State Vs Naresh Garg Etc.. 40 and within 10 minutes his father PW13/deceased PW1 reached his shop and thereafter he alongwith PW1, 2, 13 and deceased went to the shop of Garg Traders and found all the accused present. On seeing them accused had closed the shutter of their shop and went to the 1st floor balcony of their shop and accused Naresh Garg fired at them indiscriminately and the shot fired by accused Naresh Garg hit the deceased on his neck and PW1 on his thigh.
67. Ld. defence counsels contended that the statement of eyewitnesses were inconsistent regarding the second incident of firing at the scene of offence. All the eyewitnesses made material improvements in their versions and were contradicted with their previous statements. The testimony of PW1 was substantially improved at the trial and he exonerated accused Devender Garg, Jai Bhagwan, Rajesh Garg and Ravinder Singh PW1 stated in his cross examination by Ld. Addl. PP that he could not remember if he stated before the police that accused Devender Garg, Rajesh Garg, Jai Bhagwan and Ravinder had come in the balcony and exhorted accused Naresh Garg to shoot at him and deceased. He also stated that accused Rajesh Garg did not fire at them and that FIR No.379/2010 State Vs Naresh Garg Etc.. 41 when accused Naresh Garg was firing at them no other accused was standing with him. He further stated that police did not read over his statement Ex.PW1/A to him and that he had also stated that he had not heard any accused making exhortations to accused to fire and he heard about it from public persons.
68. It was further contended by Ld. defence counsels that motive for the crime was not proved and everything was in the air. It is to be noted that it was the case of prosecution that the accused nurtured grudge against the complainant due to a quarrel which took place one year prior to the incident. In this regard PW1 stated that a dispute had occurred about one year ago between the parties with regard to money transaction as he owed money to accused. PW1 deposed in his examination in chief that matter was settled with the intervention of persons of their Market Association in PP Inderlok. Ld. defence counsels contended that PW1 stated that he had not told the police in his statement Ex.PW1/A regarding the aforesaid money transaction. It was further contended that IO/PW 22 stated in his cross examination that he had made enquiry regarding the previous dispute between the complainant and FIR No.379/2010 State Vs Naresh Garg Etc.. 42 accused but no record was found in the Police Station in this regard. IO also stated that complainant did not handover to him the previous complaint lodged by him one year ago or any MLC. Ld. defence counsels contended that prosecution thus had failed to establish motive.
69. Ld. counsels for accused contented that another circumstance which raises a doubt on the case of prosecution is that PW1 did not make any complaint to the police regarding the information given by PW2 to him on 16.10.2011 that accused Naresh Garg had procured weapons to eliminate him and deceased nor did he (PW1) inform any family members about it. It was contended that PW2 stated that PP Inderlok was situated within walking distance from his shop. Ld. counsel contented that the conduct of PW1 was unnatural as in such a case anyone is bound to inform his family members and police about it. Ld. defence Counsels also contented that deposition of PW1 that one employee of Garg Traders came to his shop on the date of incident to call him pursuant to which he went there was also not reliable as the identity of the said employee of Garg Traders was not established during trial. FIR No.379/2010 State Vs Naresh Garg Etc.. 43
70. It was next contented by Ld defence counsels that the fact that PW1 was not injured in the incident was evident from the fact though he stated in his cross examination that he had told the police that he was operated at Jeevan Mala Hospital but he was confronted with the complaint Ex.PW1/A wherein it was not so recorded. In my view the same was a material omission. Ld. counsels also contented that PW1 also stated that after discharge from the hospital he did not visit the hospital again for checkup which was unusual as he had sustained gunshot injuries. I find force in the said contention of Ld. counsels. It was further alleged by Ld. defence counsels that IO PW22 stated in his crossexamination that he could not remember whether he collected the Xray plates or Xray report of PW1 from Jeevan Mala Hospital and admitted that the same were not on the record. Ld. defence counsels further alleged that IO/PW22 also stated in his cross examination that he had not obtained opinion regarding the injuries on the person PW1 from any Govt. hospital till the investigation remained with him. Ld. counsels contended that from the deposition of IO, it was evident that PW1 was not operated or treated at Jeevan Mala Hospital as FIR No.379/2010 State Vs Naresh Garg Etc.. 44 he did not sustain gun shot injury, the injuries on PW1 were self inflicted/manufactured.
71. As regards the testimony of an injured witness. It has been held by Hon'ble SC in 2010 (10) SCC 259 Adbul Sayeed State of M.P. 2010 (10) SCC 259 that "where witness to the occurrence was himself injured in the incident the testimony of such witness is generally considered to be very reliable as he is a witness that comes with an inbuilt guarantee of his presence at the scene of crime and is unlikely to spare his actual assailant in order to falsely implicate someone else. Further held "Thus deposition of injured witness could be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
72. Ld. counsels for accused strenuously argued that injuries on PW1 could not have been caused by gunshot as alleged and the accused were entitled to benefit of doubt as there was contradiction between ocular and medical evidence. It was also alleged that medical evidence made the ocular testimony improbable that becomes a relevant factor in the process of evaluation of evidence. FIR No.379/2010 State Vs Naresh Garg Etc.. 45 In this regard Ld. defence counsels placed reliance on decision of Hon'ble Supreme Court in Mani Ram & Others V. State of UP, 1994 Cri.L.J. 3848.
73. Ld. defence counsels further argued that the non mentioning of names of assailants before the doctor is another circumstance against the prosecution and in this regard reliance was placed on decision of Rajeevan and Another Vs. State of Kerela, AIR 2003 SC 1813. Ld. counsels contended that the assailant's name was not disclosed before doctor at Jeevan Mala Hospital as such the assailant was unidentified. Ld. defence counsels further contended that according to MLC of PW1 he was conscious and oriented and he stated in his cross examination that he had not named the assailants before the doctor. It was also alleged that had the accused been the preparators of crime, PW1 would have named them before the doctor but he did not do so as such the possibility of false implication of accused due to enmity as a result of after thought could not be ruled out. It was also alleged that PW1 also stated that deceased sustained gunshot injury on the right side of his neck but he came to know the said fact later on. It was alleged that FIR No.379/2010 State Vs Naresh Garg Etc.. 46 as PW1 was not present at the spot he was not aware of the same. Ld. Counsels also contented that the version of PW1 could not be relied upon as he was a partisan witness being a close relative of deceased and was interested in falsely implicating the accused persons. It was also alleged that the evidence of PW1 was inconsistent with the allegations in the complaint Ex.PW1/A.
74. On the other hand Ld. Addl. PP contented that PW1 was an injured eyewitness and not a chance witness and his presence at the time and place of incident was natural and properly explained.
75. Ld. defence counsel also contended that another circumstance against the prosecution was that there was no provocation, no sudden fight or quarrel, no heated arguments between PW1 and accused when he went to their shop. PW1 had stated in his cross examination that after he reached to the shop Grag Traders he had an amicable discussion with accused Rajesh Garg, Devender Garg and Jai Bhagwan Garg. Thus, there was no occasion for a quarrel particularly since the earlier incident as alleged by prosecution was not proved. Thus deposition of PW1 that after coming out of the shop of Garg Traders he shouted that FIR No.379/2010 State Vs Naresh Garg Etc.. 47 "Garg Traderwale Mujhe Maarne Chahte Hai could not be believed. It is to be noted that the same was an improvement and PW1 was confronted with his statement Ex.PW1/A whenever it was not so recorded. It is also to be noted that PW1 was examined by PW24 and in his statement Ex.PW1/A he had not stated the above facts. PW1 in his evidence in court makes out new case to bring his evidence in line with the prosecution version. Thus it raises serious doubt as to the veracity of the said facts.
76. Ld. counsel for accused further contented that the version of PW1 elicited in his crossexamination raises a doubt as to whether he was attacked by accused in the manner as alleged by prosecution. It was contented that the medical evidence also did not corroborate the version of PW1 that he had sustained gunshot injury.
77. Ld. Counsel contented that the version of PW1 was contradictory to the medical evidence as such prosecution failed to prove that incident as narrated by prosecution had taken place involving the accused persons. Ld. defence Counsels further contented that as PW1, PW2, PW13 and PW14 were interested FIR No.379/2010 State Vs Naresh Garg Etc.. 48 witnesses and their testimonies were largely shaken in their cross examinations and should not be relied upon unless corroborated in material particulars. It is to be noted that the evidence of witness has to be read as it is available on record. In this regard it has been held in Govida Raju @ Govida V. State and Another 2012 (4) JCC 722 "it is settled Carmon of appreciation of evidence that a presumption cannot be raised against the accused either of fact or in evidence. Equally true is the rule that evidence must be read as it is available on record.
78. Ld. counsel further contented that there were inconsistencies in the prosecution evidence and allegations in the FIR regarding manner of the attack on PW1 and the injuries alleged to be sustained by him. It was submitted that the medical evidence indicated that PW1 did not sustain bullet injury but the injuries were superficial. It was argued that PW4 Dr. Pradeep Singh CMO, Jeevan Mala Hospital Delhi who examined PW1 stated that Ranjeet Singh (PW1) was brought in the casualty at about 1.15 pm. PW4 further stated that PW1 was brought by his cousin Harmeet Singh with alleged history of gunshot injury, the patient FIR No.379/2010 State Vs Naresh Garg Etc.. 49 was oriented. He further stated on local examination it was found he had abrasion around 2 cm right inner thigh, small skin deep lacerated wound of 2 cm, no neuro vascular deficient was seen. PW4 also stated that the MLC of PW1 Ex.PW4/A was prepared by him. In his crossexamination he stated that patient was accompanied with a family person Harmeet Singh but he did not disclose the name of assailants. He further stated that the patient might have suffered bruising injuries on his body due of scuffle or fall on hard surface. PW4 also stated he did not describe the depth or length of injury observed on patient as this was the duty of surgeon. PW4 further stated that observations from C to C on Ex.PW4/A were not in his handwriting and were in different pen. It is to be noted that the noting from point C to C were regarding the abrasion and skin deep wound. PW4 also stated that Dr. Ajay Chauhan had described the injuries at point C to C after he (PW4) had prepared the MLC. PW4 further stated that he had examined the patient thoroughly at the time of preparing MLC Ex.PW4/A despite the same he did not describe the injuries mentioned at point C to C, PW4 denied that injuries at point C to C were not observed FIR No.379/2010 State Vs Naresh Garg Etc.. 50 on Ranjeet Singh (PW1) and were falsely added subsequently. PW4 further stated that in skin deep injuries there can be an entry and exit wound. PW4 further deposed that he had not mentioned the dimension of entry or exit wound in Ex.PW4/A. He also stated that he had observed abrasion on right thigh but he did not mention the same Ex.PW4/A. PW4 denied that portion D to D were recorded later for manipulation.. It is to be noted that notings at portion D to D was regarding the entry wound and exit wound on the right thigh. Ld. counsels contended that there was tampering of endorsement on MLC of PW1 to falsely implicate the accused.
79. Ld. defence counsels further contented that PW5 Dr. Ajay Kumar consultant Surgeon Jeevan Mala Hospital deposed that patient Ranjeet Singh (PW1) was brought to the hospital by his cousin Harmeet Singh with alleged history of gunshot. The patient was oriented. He further stated that on local examination it was found that patient had abrasion of about 2 cms right inner thigh, small skin deep lacerated wound of 2 cms, no Neruo vascular deficit was seen. The injuries were shown on the sketch on the reverse of MLC sheet Ex.PW4/A. In his crossexamination PW5 FIR No.379/2010 State Vs Naresh Garg Etc.. 51 stated that the observations at point C to C on MLC Ex.PW4/A were made by him. He further stated that it was not mentioned in his observations that injury was gunshot. The injury was only small skin deep lacerated wound 2 cms in length. There was another wound of 2 cms on right inner thigh of injured there was no sign of blackening or signing on this wound. Ld. counsel contented that from the deposition of PW4 and PW5 it was evident that PW 1 did not sustain gunshot injury as there was no blackening or signing on the wound and the prosecution had concocted a false case.
80. Ld. counsels further contended that another circumstance that throws a doubt on the case of prosecution is that PW1 went to the spot with deceased, PW13 and PW14 even though he had a narrow escape in the first incident of firing as alleged, and he did not go to the PP which was walking distance from his shop and did not ask police officials to accompany them particularly when an attempt to kill him had been made by accused Naresh Garg and the other accused had exhorted him. It is to be noted that such an unnatural conduct can only be consistent with the fact that no incident of FIR No.379/2010 State Vs Naresh Garg Etc.. 52 firing took place inside the shop of Garg Traders prior to the incident in which the deceased died.
81. According to the prosecution the information of the incident was given by PW13/Mohan Singh from phone no.69418554. However, PW13 stated in this regard in his cross examination that he had not made call to PCR from telephone no.69418554 at 11 am on 17.11.2010, he further stated that his residential number was 69418554, he also stated that he was at home he came to know about the incident of firing.
82. The PW1/complainant stated in his crossexamination in this regard that he did not know who made call to PCR and he further stated that he did not know if PW13 made a call to police from his shop and that the telephone no. 69418554 was installed in the shop of PW13 and not in his house. PW1 also stated that he had not stated in his complaint that he got a call made to PW13, he was however confronted with his complaint Ex.PW1/A wherein it was so recorded. It is significant to note that from the PCR form Ex.PW21/A it is evident that call was made to PCR by PW13 form the telephone no. 69418554 at 11.00 am. Thus version of PW13 FIR No.379/2010 State Vs Naresh Garg Etc.. 53 that he did not make call to PCR at 11.03 am on 17.11.2010 from his shop was not reliable.
83. Another circumstance which is unusual is that PW13 stated that on the date of incident his son PW14 informed him on telephone that PW1 was fired upon by accused/Garg Traders owners but he did not immediately inform the police. In my view, it is difficult to believe that although such a serious occurrence had taken place resulting in gunshot firing yet no steps were taken to inform the police immediately. PW13 did not give any explanation about the same.
84. It was next contented that it was not the case of prosecution that accused had scuffle with complainant side. The contention of Ld. counsels for accused was that the external injuries on the deceased were not explained which also casts a doubt on the case of prosecution. It was alleged that PW23 the autopsy surgeon deposed that antemortem injuries were also found on the external examination of deceased. Thus, in view of the deposition of PW23 the version of prosecution that deceased had not sustained any other external injuries was in consistent with medical evidences. FIR No.379/2010 State Vs Naresh Garg Etc.. 54
85. Ld. counsel further contented that there was no independent eye witness to the incident though incident occurred in market and shops were opened at that time by them, IO had stated in this regard that Market in Inderlok open at 10.00 am and Market had opened at the time of incident. Ld. counsel further argued that PW1 had stated in his examinationinchief that all shops of the market were open and a number of shopkeepers were present. Thus nonjoining of independent witnesses casts a doubt on the case of prosecution.
86. Ld. Addl. PP however contended that the intention of accused could be gathered from the fact that accused Naresh Garg had purchased one revolver .32 bore of make Smith & Wesson and 25 cartridges of .32 bore revolver, PW8 had proved the bill Ex.PW8/A.
87. Ld. defence counsels, on the other hand, contented that no investigation was made with regard to the fact that accused Naresh Garg was roaming with weapons/revolver in the market on 16.11.2010. IO deposed in this regard in his crossexamination that he did not conduct investigation regarding the facts that PW2 had seen accused Naresh Garg on 16.11.2010 in the market with two FIR No.379/2010 State Vs Naresh Garg Etc.. 55 revolvers. IO also stated that he did make enquiries from the neighbours of PW2 to find out any such incident had taken place. It was contented by Ld. defence counsels that prosecution witnesses had concealed the true version of occurrence and even if the statements of the eyewitnesses are taken at their face value they are totally inconsistent with the other evidence.
88. Ld. defence counsels also alleged that the site plan was not a mere formality but a vital part in the investigation. It was also alleged that IO stated that he did not show the place where PW1 was initially threatened and shot at on 17.11.10 inside the shop of Garg Traders by accused Naresh Garg in the site plan Ex.PW22/A nor he did conduct investigation to find out if firing had taken place inside the shop of Garg Traders and where the bullet had hit. I find force in the contentions of Ld. defence counsels that prosecution had failed to explain this important circumstance. IO stated in his cross examination that he could not tell why he omitted to do so. There was no explanation what happened to the misfired bullet inside the shop of accused in the earlier incident, nobody knows about it. In my view this is a very strong circumstance which FIR No.379/2010 State Vs Naresh Garg Etc.. 56 indicates that no firing took place inside the shop of accused, as alleged. It has been held in State v. Sunil Kumar @ Sagar @ Rahul & Others 2015 (3) LCR 380 Delhi DB that site plan is a vital part of investigation and it should give a clear picture/description of the spot.
89. According to the prosecution IO prepared the site plan Ex.PW22/A at the instance of PW1 at about 2.303.00 pm but PW 1 stated in his cross examination that he had reached the spot at about 66.30 pm from the hospital. IO did not obtain the signature of PW1 on the same. Ld. counsels contended that the abovesaid contradiction was with regard to material fact. Ld. defence counsels also contended that PW11 the draughtsman stated that he met PW1 when he went to the spot and took rough notes at the instance of PW1, but stated in his cross examination that he did not obtain the signatures of PW1 on the site plan Ex.PW11/A. PW1 admitted that site plan did not bear his signatures. The said facts also raise a doubt on the case of prosecution.
90. Another circumstance relied upon by the prosecution was that gunshots were fired indiscriminately by accused Naresh Garg FIR No.379/2010 State Vs Naresh Garg Etc.. 57 and Rajesh Garg and except two shots the remaining had misfired. PW10 the crime team expert stated in his cross examination that IO did not lift the pellets in his presence. IO/PW22 stated in his examination in chief that he found bullet marks and bullet hole on the shutter of Prachi Sales situated in front of Garg Traders and also found two pellet outside the shutter of Prachi Sales, IO further stated that he found blood scattered at the spot outside Prachi Sales in front of shop of accused. IO further stated that he lifted blood, blood stained earth control from two places from the spot. IO also stated that he lifted pellet from outside Prachi Sales, another pellet from road outside Prachi Sales, one misfired cartridge from the road outside Prachi Sales. One bullet/pellet was lifted on glass table of Prachi Sales, another pellet from road outside Prachi Sales. He also lifted paint control from the shutter near bullet mark, red colour paid from the table.
91. Ld. defence counsels contended that IO stated in his cross examination that he did not show the position of cartridges in the rough site plan. IO also stated that in the rough site plan there was also no mention of the blood found at the spot. IO also did not show FIR No.379/2010 State Vs Naresh Garg Etc.. 58 the place where firing took place in the earlier incident inside the shop of Garg Traders and the position of misfired cartridge. These omissions in my view throw a doubt on the case of prosecution.
92. It was further contended by Ld. defence counsels that as regards the misfired bullets/pellets PW1 stated that he told the police that a piece of bullet was lying in front of Prachi Sales and another piece was lying at a distance from the Prachi Sales, but he was confronted with his statement Ex.PW1/A wherein it was not so recorded. Thus, there was contradictions in the version and PW1 regarding the said fact as it was conspicuously absent in the complaint Ex.PW1/A. PW1 admitted that there were cartons lying outside Prachi Sales. Moreover, IO did not give explanation as to why the position of pellets found lying at the spot or inside Prachi Sales were not shown in the rough site plan Ex.PW22/A. It is also to be noted that IO/PW22 stated in his examination in chief that all the misfired bullet lids/pellets were sealed and seized by him and exhibits were deposited in the Malkhana. IO further stated that parcels were not sent to FSL by him during the period 17.11.2010 to 22.12.2010. The delay in sending the exhibits had not been FIR No.379/2010 State Vs Naresh Garg Etc.. 59 explained. IO also stated that his seal was not used after 20.12.2010. IO did not state whether he had kept the seal himself or handed over to some one else after use.
93. It was the case of prosecution that gunshots were fired from 1st floor the balcony of the shop of Garg Traders. Ld. defence counsels contended that IO stated that he had inspected the 1st Floor balcony of Garg Traders but did not find anything unusual. PW10 stated in his cross examination that he had inspected the 1 st Floor of Garg Traders but did not mention it in his report. PW11 the draughtsman stated in his cross examination that he did not mention the height of roof of Garg Traders in the scaled site plan Ex.PW11/A. IO stated that spot was about 15 feet from the balcony. Ld. counsel contented that IO was asked in his cross examination as to whether tattooing, burning marks and bruising was possible on entry wound only if firing takes place from close range. IO gave evasive reply stating that ballistic expert could tell about it. It was further alleged by Ld. defence counsels that IO was asked whether opinion of autopsy surgeon was taken regarding the range of firing as the postmortem report was not consistent with the FIR No.379/2010 State Vs Naresh Garg Etc.. 60 version of eyewitness, but IO replied that he did not do so. Ld. counsels further contended that the conflict between the prosecution case and medical evidence regarding the range of firing remained unexplained. It was also argued that IO stated in his cross examination that he did not remember if it was mentioned in the postmortem report Ex.PW23/A that tattooing, burning and bruising marks were found at entry wound. IO also stated that postmortem report was given after 1520 days. Ld. counsels contended that postmortem was conducted on the following day of incident. Ld. counsels further contended that postmortem report was collected on the date of postmortem by IO. It is to be noted that postmortem report is dated 18.11.2010. No explanation was given by the IO why the postmortem report was not collected expeditiously or why he had not written to the concerned doctor to handover the same expeditiously. It is also to be noted that PW24 stated that the form for postmortem report was filled by him which was Ex.PW22/E. PW24/SI Satya Prakash stated that postmortem report was not handed over to him but IO might have received it. PW24 further stated that he did not peruse the postmortem report nor IO/PW FIR No.379/2010 State Vs Naresh Garg Etc.. 61 2/SHO consulted the doctor after perusing the postmortem report in his presence, the said deposition of PW24 belies the deposition of IO that postmortem report was not handed over to him on the day when postmortem was conducted.
94. Thus as the evidence of eyewitness was totally inconsistent with the medical evidence and report of ballistic expert, it is a fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. Ld. counsel contented that the autopsy surgeon on being asked about the distance of firing as tattooing, burning and bruising marks were present on the entry wound, stated that firing was within the range of blast. Autopsy Surgeon further stated that the fire arm from which bullet was fired was not shown to him nor his opinion was sought in this regard.
95. Ld. defence counsels further contented that IO stated in his cross examination that ballistic expert had been called to examine the spot. Ld. counsels also contented that according to the projectile of the bullet it was fired from the close range and not from the balcony of first floor of the shop of accused and for this reason te FIR No.379/2010 State Vs Naresh Garg Etc.. 62 IO had suppressed the ballistic experts report.
96. The defence counsels further argued that prosecution witnesses had concealed the genesis of the incident. It was alleged that the complainant had a quarrel with his neighbours at about 11.05 am in front of Prachi Sales, where cartons were lying, with some other persons and he was shot by his rivals. Ld. defence counsels further contented that bullet of 0.6 cm diameter and 1.2 cm length which was recovered from the body of deceased was not sent to FSL. It was contended by Ld. defence counsels that IO was asked in his cross examination whether bullet of 0.6 diameter and 1.2 cm length was sent to FSL. In reply IO stated that he had received the sealed parcels from autopsy Surgeon after postmortem but the same were sent to FSL by the subsequent IO and the investigation remained with him from 17.11.2010 to 20.12.2010. Ld. defence counsels further contended that IO also stated that he did not remember if in the postmortem report the measurement of bullet was mentioned, the postmortem report was shown to the IO upon which he stated that he autopsy surgeon could tell whether the size of bullet was mentioned at point X on Ex.PW23/A. It is FIR No.379/2010 State Vs Naresh Garg Etc.. 63 difficult to believe that said deposition of IO as the size of bullet is stated therein being 1.2 cm length and 0.6 cm diameter. The prosecution also did not explain why the bullet recovered from the body of deceased was not sent for analysis. It is to be noted PW24 had stated that the doctor who conducted the postmortem handed over to him a bullet in a sealed pullanda bearing the seal of mortuary and he handed over the same to PW22/IO vide handing over memo Ex.PW22/F. It was further contented that PW27 stated in his crossexamination that in case police states in its forwarding letter that bullet recovered from the body be sent for analysis to the concerned branch for analysis only then it is sent to the biological branch. Ld. defence counsels contented that these circumstances shows that accused Naresh Garg had not fired at deceased as cartridge of more than .32 inch diameter could not be fired from .32 inch revolver. Ld. counsels contended that the prosecution failed to prove that deceased died due to the bullet fired by accused Naresh Garg from his licenced revolver.
97. Ld. Addl. PP contented that PW27 had stated that revolver recovered from accused Naresh Garg Ex.F1 and pistol Ex. Ex.F2 FIR No.379/2010 State Vs Naresh Garg Etc.. 64 were found to be in working order and 9 mm blank cartridges Ex. A1 to A3 were live ones, cartridge cases EC1 to EC6 were fired empty cartridges. The deformed bullets Ex. EB1 to EB4 corresponded to bullet of .32 cartridge.
98. It is to be noted that the ballistic expert/PW27 had deposed that the revolver and pistol recovered from accused Naresh Garg were found in working order. PW27 the Ballistic expert had deposed that he had received one revolver .32 inch bore bearing no.H75845 Mark F1 and six cartridge cases F1 EC1 to EC6, one pistol 9 mm calibre, Mark F2 and 9 mm blank cartridges A1 to A3, deformed bullets EB1 to EB4, one misfired cartridge Mark A4, swab Mark S1, S2, S3, H1, H2, H3. PW27 the ballistic expert stated that the revolver F1 and pistol F2 were found to be in working order and test fired successfully. The cartridges A1 to A3 were live. The .32 cartridge cases EC1 to EC6 were fired cartridges. The deformed bullets EB1 to EB4 corresponded to .32 inch bullet. The individual characteristics of misfired cartridge A4 was found to have been caused/fired by pistol 9mm caliber F2. The bullet EB1 was found to be fired from .32 inch revolver. However, FIR No.379/2010 State Vs Naresh Garg Etc.. 65 Ld. counsel for accused contended that PW27 stated that the individual characteristics of EB2 to EB4 were insufficient for comparison and opinion whether it had been fired from .32 inch caliber revolver.
99. Ld. defence counsels contended that the ballistic expert/PW 27 had deposed that cartridge of more than .32 inch could not be fired from .32 inch revolver. Ld. counsels also contended that ballistic expert had also stated that they had received only .32 inch cartridge cases and 9 mm blank cartridges. Ld. counsels contented that the version of prosecution that deceased died due to firing from the licenced arm of accused Naresh Garg was inconsistent with the report of ballistic expert as cartridge having diameter of more than . 32 inch could not be fired through .32 inch revolver . The autopsy surgeon had stated that a bullet of size of 1.2 cms in length of 0.6 cm diameter was recovered from the dead body.
100. Ld. counsel for accused contented that PW27 Sh. V.R. Anand Ballistic Expert stated in his crossexamination that he had visited the spot but he had not given any report about the distance of pistol and object. He stated that for determining of the range, the FIR No.379/2010 State Vs Naresh Garg Etc.. 66 fire arm and target are required to be examined. Moreover, tattooing and bruising marks were present on the wounds of deceased. Autopsy surgeon/PW23 stated that firing was within the range of blast. Thus the version of prosecution that accused had fired from the 1st Floor balcony of their shop was not established.
101. Ld. Addl. PP also contented that IO/PW22 had deposed that on receipt of information regarding a quarrel and firing he reached the spot in front of M/s Prachi Sales where he found PW24/SI Satya Prakash, PW16/ASI Ram Niwas, HC Ranglal, PW19/Ct. Rishal and PW17/Ct. Mahesh Kumar present. On enquiry he (IO) came to know that injured were shifted to Jeevan Mala hospital by PCR and, no eye witness is found. IO further stated that he came to know about the assailants Naresh Garg and Rajesh Garg through a secret informer and left spot leaving behind PW16/ASI Ram Niwas to guard the spot. IO stated that he had apprehended Naresh Garg and Rajesh Garg at the instance of secret informer. He further stated that both accused made disclosure statements regarding their involvements in the present case. The disclosure statement of accused Naresh Garg was Ex.PW18/B and that of Rajesh Garg was FIR No.379/2010 State Vs Naresh Garg Etc.. 67 Ex.PW18/C. IO further stated that on the personal search of accused Naresh Garg one revolver was recovered which contained six empty cartridges. IO further stated that accused Naresh Garg led them to first floor of their shop at 313/41, Inderlok and got recovered a pistol from the dustbin, the pistol contained three live rounds in the magazine. Accused Naresh Garg also got recovered arms holster from the dustbin.
102. It is to be noted that accused Naresh Garg in the disclosure statement disclosed the place where the pistol was thrown by him after murder. It is to be noted that disclosure made accused Naresh Garg of relevant fact to the IO/PW22 preceded the discovery of the pistol. Thus fact disclosed by accused Naresh Garg and the discovery made at his instance was admissible in terms of Section 27 of the Evidence Act. Section 27 of the Evidence Act is an exception to Section 25 of the Act. Section 25 mandates that no confession made to a police officer while in police custody shall be proved as against a person accused of any offence - Section 27 however provides that any fact deposed to and discovered in consequence of information received from a person accused of any FIR No.379/2010 State Vs Naresh Garg Etc.. 68 offence in custody of a police officer, so much of such information whether it amounts to an confession or not, as relates distinctly to the fact thereby discovered may be proved.
103. Ld. counsel contented that the disclosure statements were inadmissible. It was also alleged that no recovery was allegedly to made at the instance of accused Rajesh Garg. However, Ld. Addl. PP contended that recovery of weapon at the instance of accused Naresh Garg was a crucial link to connect the accused persons with the offence.
104. Ld. defence counsels further argued that there was no independent witness to the recovery and the name of PW14 on the recovery memo Ex.PW14/E were in different handwriting and the signatures of PW14 on the arrest and personal search memos of accused Naresh Garg and Rajesh Garg were also in different handwritings. It is to be noted that IO/PW22 admitted in his cross examination that the name of PW14 was written with a different pen on Ex.PW14/A to Ex.PW14/E and also stated that he could not remember if he obtained the signatures of PW14 on the sketch of revolver Ex.PW18/A. Thus the presence of PW14 at the time of FIR No.379/2010 State Vs Naresh Garg Etc.. 69 arrest of accused Naresh Garg, Rajesh Garg and seizure of pistol from accused Naresh Garg is questionable.
105. Ld. defence counsels further contented that the evidence regarding discovery of pistol cannot be used against accused Naresh Garg as the same was not recovered pursuant to the disclosure statement of accused but the arm and licence were taken from his house. It was further alleged that signatures of accused were taken on blank papers and under duress and he did not make any disclosure statement. It was further alleged that accused Naresh Garg was called to PS and arrested whereas accused Rajesh Garg was arrested from his house. Ld. defence counsels also contented that IO deposed in his crossexamination that accused Naresh Garg was arrested from Sultanpur but he did not inform PS Sultanpuri about his arrest as such the same raises a doubt regarding the place of apprehension of accused Naresh Garg. It was also stated that IO stated that no public witnesses were joined at the time of arrest of accused Rajesh Garg which also raises a doubt on the place of arrest of above accused.
106. It is to be noted that the recovery of pistol was made at the FIR No.379/2010 State Vs Naresh Garg Etc.. 70 instance of accused Naresh Garg. The fact where the pistol was thrown after the crime was disclosed by accused Naresh Garg to the IO/PW22 in the presence of PW18 Ct. Satbir Singh and HC Puspender. The discovery of pistol was made only after accused Naresh Garg was taken by the police to the shop of accused where the recovery memo was prepared Ex.PW18/F. Thus the disclosure of a relevant fact by accused Naresh Garg to the IO/PW22 preceded the recovery of pistol from the disclosed spot at the instance of accused Naresh Garg. The fact disclosed by accused Naresh Garg and discovery made at his instance was admissible against accused Naresh Garg u/s 27 of the Evidence Act. The evidence of IO/ PW22 and the witness to the memo of recovery have been found to be reliable and trustworthy.
107. Ld. counsel for accused Naresh Garg contented that recovery of holster wasnot made at the instance of accused Naresh Garg as crime team Expert PW10 stated in his crossexamination that he did not mention in his report Ex.PW10/A whether holster was kept in the dustbin of Prachi Sales or Garg Traders. Ld. counsel contented that PW12 the photographer of crime team stated that FIR No.379/2010 State Vs Naresh Garg Etc.. 71 one holster was found in the dustbin of Garg Traders and he had taken photographs of the same. Thus as the place where holster was lying was already in the knowledge of police, it cannot be said to have been discovered at the instance of accused Naresh Garg. The crime team had inspected the scene of offence on 17.11.2010 at about 12.00 pm, the recovery of pistol and holster is subsequent to the visit of crime team at the spot.
108. Moreover, in this regard IO/PW22 stated that in his cross examination that he did not remember the time when he seized the holster and the accused Naresh Garg was arrested at 6.50 pm and admitted that photograph of holster in dustbin was taken by crime team prior to 6.50 pm. Thus in my view the version of IO/PW22 that holster was recovered pursuant to the disclosure statement of accused Naresh Garg is not trustworthy and the evidence regarding discovery of arms holster cannot be used against accused Naresh Garg.
109. Ld. Addl. PP contented that blood was detected on clothes of deceased and injured. Ld Addl. PP submitted from the deposition of PW6 it is evident that human blood was found on the clothes of FIR No.379/2010 State Vs Naresh Garg Etc.. 72 deceased and injured, cotton swab, earth control. Ld. defence counsels contended that there were no bullet marks on the jeans sent to FSL though PW1 deposed that his jeans had bullet marks. It was further stated that the blood samples of PW1 was not taken and sent for grouping as he was not injured. And PW24 had stated in this regard that he did not ask the doctor to handover the blood samples of PW1 for grouping nor did IO obtain the same.
110. Ld. defence counsels contented that there was tampering of exhibits. It was alleged that PW24 who stated in his examination inchief that doctor handed over the clothes of deceased and PW1 to him in a sealed pullanda and handed over the pullandas to IO/PW22 at the spot and he could not remember whether if doctor made endorsement on MLC regarding handing over of clothes to him. It was contented that PW22/IO stated that after postmortem doctor handed over to him two sealed parcels duly sealed and one sample seal which he took into possession made seizure memo Ex.PW22/F. IO also stated in his crossexamination that PW24 handed over to him the exhibits obtained from the hospital. Ld. counsels contented that sealed parcels containing the clothes of FIR No.379/2010 State Vs Naresh Garg Etc.. 73 deceased were sent to FSL with the seal of IO/PW22 as was evident from testimony of PW6 and the FSL report Ex.PW6/A. It is to be noted that the safe custody of the exhibits was to be ensured and proved by the prosecution to show that there was no tampering. In view of the deposition of PW6 and the report of FSL Biology division. The investigation appears to be tainted and raises a doubt on the case of prosecution. The benefit of faulty investigation ought to go to the accused and not to the prosecution as held by Hon'ble Supreme Court in Kailash Gaur & Others Vs. State of Assam, 2012 (1) LRC 81 SC.
111. It was further alleged by Ld. defence counsel that there was delay in registration of FIR which gives scope for improvements and exaggerated version. The time of incident was 11.00 am but rukka was prepared at 2.15 pm and FIR was registered at 2.30 pm. It was alleged that delay in registration of FIR was not explained. In this regard, it has been held in Christy Fried Gram Industry Bangalore & Another Vs. State of Karnataka & Others, 2016 Crl LJ 482 that the object of registration of FIR is to obtain an early information regarding the nature of crime names of culprits and FIR No.379/2010 State Vs Naresh Garg Etc.. 74 part played by them as well as the names of the eyewitnesses present at the time of incident. In case of delay in lodging of FIR danger creeps in of introduction of coloured version exaggerated account or concocted story as a result of deliberations.
112. It was next contended by Ld. counsel for accused that the mandatory provisions of section 157 Cr. P. C were also not complied with as there was no evidence when the copy of FIR was sent to Illaqa MM. It was submitted that section 157 mandates that on registration of FIR, a copy of same shall be sent to Illaqa Magistrate. It was contended by Ld. counsel that there was no evidence on record that the copy of FIR was sent to the Illaqa Magistrate. In this regard IO/PW24 stated in his crossexamination that he did not know when the copy of FIR was delivered to the court of Ld. CMM, Delhi and that he had not recorded the statement of any witness who may have delivered the copy of FIR to the court of Ld. CMM, Delhi. It was contended that in view of the above deposition of IO, there was no compliance of mandatory provisions of section 157 Cr. P. C as such adverse inference is liable to be drawn against the prosecution. From the deposition of FIR No.379/2010 State Vs Naresh Garg Etc.. 75 IO/PW22 it is evident there was noncompliance of Sec. 157 Cr.P.C.
113. Section 157 Cr. P. C on which reliance has been placed is as under: "157. Procedure for investigation. - (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender:
provided that -
(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case:
Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.
(2) In each of the cases mentioned in clauses (a) and (b) of FIR No.379/2010 State Vs Naresh Garg Etc.. 76 the proviso to subsection (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements to that subsection, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated."
114. As regards the common intention of the accused, it has been held in (2013) 12 Supreme Court Cases 294 titled as Raghbir Chand and Others Vs. State of Punjab: "Common intention which is the gist of the principle of various liability enshrined by Section 34 of the Penal Code can be result of a premeditated decision between several coaccused or in a given case such common intention can very well develop on the spur of the moment or at the scene of the crime. What is of importance and, therefore, must be ascertained is the meeting of minds of the coaccused that the particular criminal act should be committed. Once the court can consider it safe to come to such a conclusion only then apportionment of liability amongst the coaccused would be permissible with the aid of Section 34 of the Penal Code. Liability of an accused under FIR No.379/2010 State Vs Naresh Garg Etc.. 77 Section 34, therefore, is a matter of inference to be drawn from the facts and circumstances of each case.
115. Ld. Addl. PP contented that the evidence of eyewitness clearly establishes that all accused were acting in concert. It was further contented that there was no way as to how the accused could escape their liability u/s 34 IPC.
116. It is to be noted that common intention can be the result of premeditation between coaccused and can also be developed on the spur of the moment at the scene of crime. Section 34 does not create a substantive offence but is only a rule of evidence. Direct poof of common intention is seldom available and such intention can only be informed from the proved circumstances.
117. In the present case as already noticed that PW1,2,13 and 14 had not support the version of prosecution regarding the roles of accused Jai Bhagwan Garg, Devender Garg, Rajesh Garg and Ravinder Singh. Thus from the version of eyewitness no over acts could be attributed to any accused except accused Naresh Garg. The evidence of eyewitness were replete with contradictions regarding the roles of accused Jai Bhagwan Garg, Rajesh Garg, FIR No.379/2010 State Vs Naresh Garg Etc.. 78 Devender Garg and Ravinder Singh, thus in my view prosecution failed to prove that accused Jai Bhagwan Garg, Devender Garg, Rajesh Garg and Ravinder Singh had shared common intention. Thus there is no basis to come to the conclusion that an inference of common intention of all accused to commit the offences could be safely made so as to hold them vicariously liable for the offences u/s 302/307/34 IPC and Section 27 of the Arms Act.
118. The question for consideration is whether the case falls u/s 302 or 304 Part I or II. The intention to cause death can be gathered from the nature of weapon used whether the weapon used by accused was picked up from the spot or carried by him whether the blow/ injury was aimed at vital part of body, whether act was a result of sudden quarrel or whether incident occurred by chance, whether there was previous enmity, whether there was provocation, whether accused acted in a cruel manner.
119. In this case as noticed above the motive was not proved as no previous enmity was proved. The version of prosecution that there was an earlier incident about 1015 minutes before when PW1 was allegedly shot at by accused Naresh Garg was not established. FIR No.379/2010 State Vs Naresh Garg Etc.. 79 There was no provocation, quarrel there was no earlier incident and there was no cause for apprehension by complainant/PW1 that accused may attack him. The description of injury and cause of death given by PW23/the autopsy surgeon was resulting from projectile firearm injury which was sufficient to cause death in the ordinary course of nature.
120. It is to be noted that form the facts proved and established at best show that commission of offence u/s 304 Part II IPA and not offence u/s 302 IPC. Apart from the gun shot injury on the neck of deceased, he also had antemortem injuries. The antemortem injuries were highlighted by Ld. counsels. Thus from antemortem injuries it is evident that deceased had a scuffle or quarrel. The said person remained unidentified. There is no doubt that the death of Jasminder Singh was occasioned by gunshot injury on his neck. A person firing on vital part of body ie neck was to be imputed with the intention to cause death or the intention of causing such bodily injury as is likely to cause death of the victim. From the evidence adduced by prosecution it cannot be concluded that in all human probability the crime was committed by accused Naresh Garg as FIR No.379/2010 State Vs Naresh Garg Etc.. 80 the bullet which was recovered from the body of deceased was not sent to FSL.
121. It is pertinent to note that PW2 had turned hostile whereas PW13 and PW14 stated that they were present at the scene of crime and had seen accused Naresh Garg firing at them. Though PW13 and PW14 were confronted with their previous statements to show that they had made improvements to being their testimonies in line with the case of prosecution but their versions that they saw accused Naresh Garg firing were consistent. It is also to be noted that PW24 did not give the DD entry vide which he was present in the area of Inderlok at the time of incident, as such the fact why PW24 did not meet any other eyewitnesses in the hospital except PW1 remained unexplained by prosecution. It is to be noted that PW20 stated that there was over writing on DD No. 14 and he did the overwriting. In my view it was done to bring the case in consonance with the evidence of witnesses. It is also pertinent to note that FSL expert PW27 stated in his cross examination that cartridge of more than .32 inch diameter could not be fired through .32 inch revolver, and they had received only .32 FIR No.379/2010 State Vs Naresh Garg Etc.. 81 inch cartridge cases. The offence of culpable homicide is an offence which may or may not be murder. It is is murder then it is culpable homicide amounting to murder punishable u/s 302 IPC. Section 304 IPC deals with cases not covered by Section 302 IPC, it divides the offences into 2 classes (a) in which death is intentionally caused and (b) those in which death is caused unintentionally but knowingly. From the facts proved by prosecution no previous animosity has been proved. The case of prosecution that accused Naresh Garg had fired indiscriminately was also doubtful as IO stated in his crossexamination that he had not shown the position of pellets in the rough site plan Ex.PW22/A. The prosecution had succeeded in proving the recovery of revolver and pistol from accused Naresh Garg and that accused Naresh Garg had fired from his licensed arm, however prosecution did not prove that genesis of the occurrence, thus prosecution failed to prove that the crime was committed by accused Naresh Garg with any premeditation as no previous entry was proved, there was thus no intention to kill.
122. Ld. Addl. PP had contented that the version of eyewitnesses FIR No.379/2010 State Vs Naresh Garg Etc.. 82 were consistent regarding the firing. It was also alleged that autopsy surgeon was not referred to make a sketch of bullet or measure it nor did he have instrument to do so.
123. The intention of accused Naresh Garg was probably to cause bodily injury, as he had fired from his licenced revolver. The court cannot overtook the fact that accused Naresh Garg had knowledge that gun shot could result on the death of deceased. It is however to be noted that as per postmortem report Ex.PW23/A a bullet of 1.2 cms length and 0.6 cm on diameter was recovered from the body of deceased. The said bullet was not sent to FSL. PW27/the ballistic expert stated that cartridge of more than .32 inch could not be fired through .32 inch revolver and they had received only .32 inch cartridge cases and 9 mm blank cartridge. The misfired cartridge A4 was found to be fired from pistol F2 and the misfired cartridge EB1 was found to be fired from .32 inch revolver recovered from accused Naresh Garg. The autopsy surgeon also stated that in his crossexamination that the firing was within the range of blast. Prosecution thus failed to prove that the bullet shot at deceased was fired from the licenced revolver/pistol of accused Naresh Garg. FIR No.379/2010 State Vs Naresh Garg Etc.. 83
124. It was also the case of prosecution that accused Jai Bhagwan Garg and Devender Garg failed to appear at the specific place and time as required under proclamation u/s 82 CrPC. The process u/s 82 CrPC was issued against both abovenamed accused vide order date 01.06.2011. The proclamation u/s 82 CrPC was also published in National Daily dated 16.06.2011. The proclamation u/s 82 CrPC was fixed at the residence of the accused and another copy of the same was affixed at the office of accused. It was also publically read at the office of accused and also published in National Daily. Thereafter process u/s 83 CrPC was issued.
125. It is to be noted that before convicting a person u/s 174 A IPC the court must hold an enquiry to find out whether an offence under the section was actually committed. The accused should be given an opportunity to explain his absence. In the present case, the process server who executed the process was not examined, thus accused had no opportunity to cross examine him.
126. It is also to be noted that pursuant to the order declaring accused Jai Bhagwan Garg and Devender Garg Proclaimed Offenders, they were released on anticipatory bail and the order FIR No.379/2010 State Vs Naresh Garg Etc.. 84 challenging their anticipatory bail order was dismissed by Hon'ble High Court as having become infructuous, as they had joined investigation, and chargesheet was filed against them.
127. According to the prosecution accused Jai Bhagwan Garg and Devender Garg had absented and concealed themselves, after process u/s 82/83 CrPC was issued against them and they were declared proclaimed offenders vide order dated 03.03.2012. PW26 Inspector Ashok Tyagi stated that he had obtained the process u/s. 82/83 Cr.P.C. against the absconding accused and got it executed. Accused Jai Bhagwan and Devinder Garg stated in their statements u/s 313 CrPC stated that no process u/s 82/83 CrPC was executed against them and a false report was submitted. The PW who executed the process u/s. 82 Cr.P.C. was not examined.
128. Section 174A provides that if a person fails to appear at the specific place and time as required under proclamation u/s 82 CrPC, he is liable to be punished for a term which may extend to three years or with fine or with both and when he has been declared proclaimed absconder with imprisonment upto 7 years and fine.
129. Thus offence u/s 174A was not proved beyond reasonable FIR No.379/2010 State Vs Naresh Garg Etc.. 85 doubt as accused did not have opportunity to explain their non appearance pursuant to the execution of process u/s 82/83 CrPC.
130. For the foregoing reasons, I am of the view that form the facts proved and established at best show that commission of offence u/s 304 Part II IPC and not offence u/s 302 IPC against accused Naresh Garg. As accused Naresh Garg had used firearm illegally, the offence u/s. 25 r/w Section 27 is also established. The eyewitness stated that weapon was used by accused Naresh Garg. Thus prosecution succeeded in proving that accused Naresh Garg committed offences punishable u/s. 304 Part II IPC and Section 27 Arms Act. The prosecution failed to prove that accused Naresh Garg committed offence punishable u/s. 307 IPC. The prosecution also failed to prove its case beyond reasonable doubt against accused Jai Bhagwan Garg, Devender Garg, Rajesh Garg and Ravinder Singh for commission of offences punishable u/s. 302/307/34 IPC and Section 25 r/w Section 27 of the Arms Act, accordingly they are given benefit of doubt and acquitted for the above offences. The prosecution also failed to prove beyond reasonable doubt that accused Jai Bhagwan Garg and Devender FIR No.379/2010 State Vs Naresh Garg Etc.. 86 Garg committed offences punishable u/s. 174A IPC. Accordingly, accused Jai Bhagwan Garg, Devender Garg, Rajesh Garg and Ravinder Singh stand acquitted and their bail bonds are cancelled, their sureties discharged.
131. Accused Naresh Garg to be heard on point of sentence on 25.08.2018.
Digitally signed by
POONAM POONAM CHAUDHRY
Announced in the open court CHAUDHRY Date: 2018.08.27
15:52:00 +0530
on this 24th day of August 2018.
(POONAM CHAUDHRY)
ASJ02(Central)/DELHI/24.08.2018
FIR No.379/2010 State Vs Naresh Garg Etc.. 87