Delhi District Court
State vs . : 1). Kapil @ Bander on 14 September, 2018
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT, ROHINI
COURTS: DELHI
Sessions Case No: 391/18
FIR No. : 829/16
U/s : 302/307/324/120B/34 IPC
P.S. : Prashant Vihar
State Vs. : 1). Kapil @ Bander
S/o Sh. Rama Tiwari
R/o H.No.12, Pocket-2,
Rajiv Enclave, Sector-5,
Rohini, Delhi.
Offence complained of : 302/307/324/120B/34 IPC
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of committal : 02.07.2018
Date of Judgment : 14.09.2018
JUDGMENT
1. On 22.11.16 at 12.04 a.m., information was received at PS Prashant Vihar regarding a quarrel at G-2/34, near Titiksha Public School, Sector - 11, Rohini and that there is one injured. DD No.3A was recorded on this information. SI Vijay and Ct. Sunny were asked to carry out necessary proceedings. They reached the spot. They found blood lying on the chabutra and on bedding. No eye witness met them on the spot. They came to know that injured has been removed to hospital by PCR van. SI Vijay reached BSA State Vs. Kapil @ Bander SC No.391/18 :: 1 ::
Hospital, where Ashish was found admitted. No eye witness met him in the hospital. He came back on the spot and lifted the exhibits. During the day, information was received that Ashish had died. On 23.11.16, statement of injured Pankaj was recorded who was also an eye witness.
2. Pankaj told that on 21.11.16 at about 7 p.m. after taking dinner, he came to the shop of Javed. He went to sleep on the bedding lying in front of adjacent shop. After sometime, Ashish came there in the car. As Ashish was tired, therefore, Javed went away with the car. Ashish also slept on the bedding lying near his bedding. In the night, he woke up on hearing the cries and noticed three boys assaulting Ashish. Pankaj raised alarm on which those three boys assaulted Pankaj with the weapons carried by them. He also heard the sound coming from distance "jaldi aao". Out of those three boys, one was wearing cap and was of short height, one boy was having long hair wearing punjabi kurta payjama and jacket, the third boy was strong built with dark complexion. They all fled away. He noticed that Ashish was bleeding and had fallen from chabutra. His own clothes were also stained with blood. After sometime, police van came and removed him to the hospital. In the hospital, he got frightened and therefore, he came back. His bleeding was not stopping, therefore, he again went to the hospital. His State Vs. Kapil @ Bander SC No.391/18 :: 2 ::
clothes were also taken by the police.
3. During investigation, one JCL "A", Chota Salman, Raman, Sunil and Salman Khan were arrested. Kapil son of Rama Tiwari could not be arrested and therefore, he was declared proclaimed offender. Charge sheet against Chota Salman, Raman, Sunil Kumar @ Lala and Salman Khan was filed before Ld. MM but charge sheet against JCL "A" was filed before Juvenile Justice Board. The trial against accused Chota Salman, Raman, Sunil and Salman Khan was conducted wherein accused Salman Khan and Sunil @ Lala were acquitted. Accused Chota Salman and Raman were acquitted under Section 120B IPC but were held guilty and convicted for the offence punishable under Section 302 read with Section 34 IPC and 307 read with Section 34 IPC vide judgment dated 22.01.2018. They were sentenced vide order dated 30.01.2018.
4. On 19.03.2018, Kapil @ Hanuman @ Bander was arrested. He made disclosure statement and pointed out the place of occurrence. After completion of investigation, charge sheet against him was filed. Ld. MM after complying with the provisions of Section 208 Cr.P.C. committed the case to the Sessions Court as the offence punishable under Section 302/307 IPC are exclusively triable by the Sessions Court. Accused was charged for the offence punishable State Vs. Kapil @ Bander SC No.391/18 :: 3 ::
under Section 120B, 302 read with 120B, 307 read with 120B IPC and also under Section 174A IPC. He pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
5. Dr. Satyaranjan Panda was examined as PW-1. He deposed that on 22.04.2016 one patient Ashish was brought by PCR with alleged history of stab injury as told by patient himself and HC Jagbir. Smell of alcohol was present in the breathe. The patient was advised surgery and ortho for opinion and further management. The blood sample of patient and the clothes were seized and handed over to the IO. Patient was unfit. He proved the MLC of the patient as Ex.PW25/A.
6. He also deposed that on that day patient Pankaj was brought by Ct. Bhagirath of PCR at 12:13 am. The patient left from the casualty. The patient came back at 3:45 am with alleged history of stab injury approximately 4 hours back as told by the patient. Patient was conscious and oriented. Smell of alcohol was present. Sharp incised wound approximately 2x1x1 cm over right hip and multiple abrasion on chest and abdomen were found. Patient was referred to surgery and ortho for further management. He proved the MLC as Ex.PW6/A. The testimony of the witness has gone unchallenged and uncontroverted.
State Vs. Kapil @ Bander SC No.391/18 :: 4 ::
7. Sh. Jagdish was examined as PW-2. He deposed that on 22.11.2016 he along with his other relatives went to mortuary of Dr. BSA hospital. Where he identified dead body of his nephew Ashish vide memo Ex.PW4/A. After post mortem he and Rohtash received the dead body vide memo Ex.PW4/B. The testimony of the witness has gone unchallenged and uncontroverted.
8. Lakshit Gaur was examined as PW-3. He deposed that on 21.11.2016 at about 11:00 /11:15 pm he was present at his house. After hearing noise he came out of his house. His neighbour Sh. Ramesh Vashwani and Jatin also came out. They went to the corner of street and noticed a boy lying in injured condition in front of the shop in sector-11, Rohini, Delhi. He made a call at 100 number from his mobile phone No.9650044092. PCR van came there and removed the injured to the hospital. The testimony of the witness remained unchallenged and uncontroverted.
9. Govinda was examined as PW-4. He stated that he does not know anything about this case. Earlier also he appeared in this court. He does not know Chhota Salman. He never used any mobile phone. He was cross-examined by Ld. APP as he resiled from his earlier statement.
10. During cross-examination by Ld. APP he stated that he never used mobile phone No.9711794509. He denied the State Vs. Kapil @ Bander SC No.391/18 :: 5 ::
suggestion that he knows accused Chhota Salman who used the mobile phone No.7053025701 or that he used to talk with him on the said mobile phone. He denied the suggestion that Chhota Salman talked with him on 15.11.2016. He was confronted with his statement Ex.PW28/A. The testimony of the witness has gone unchallenged and uncontroverted.
11. HC Anil was examined as PW-5. He deposed that he was working as MHC(M) in the police station Prashant Vihar. On 22.11.2016 SI Vijay deposited seven pullandas duly sealed and one sample seal with him. Inspector Hans Raj deposited three plastic jars duly sealed and two sample seals. He made entry in register No.19, same is Ex.PW26/A.
12. On 24.11.2016 Inspector Hans Raj deposited with him one cardboard box duly sealed and pendrive with certificate u/s 65B Evidence Act. He proved the entry in register No.19 as Ex.PW26/B.
13. On 25.11.2016 Inspector Hans Raj deposited with him one mobile phone and the personal search of the accused. He made entry in register No.19 and proved the same as Ex.PW26/C.
14. On 28.11.20916 Inspector Hans Raj deposited with him one Samsung mobile phone and personal search of accused. He made entry at sl. no.4166 in register No.19 and proved the same as Ex.PW26/D. State Vs. Kapil @ Bander SC No.391/18 :: 6 ::
15. On 29.11.2016 Inspector Hans Raj deposited with him one mobile phone and personal search of accused, he made entry at sl. No.4170 in register No.19 and proved the entry as Ex.PW26/E.
16. On 10.12.16 Inspector Hans Raj deposited with him one sealed parcel and he made entry at sl. no.4185 in register No.19 and proved the same as Ex.PW26/F.
17. On 15.12.2016 Inspector Hans Raj deposited with him car No. HR 10J 3159. He made entry at sl.no.4195 in register No.19 and proved the same as Ex.PW26/G.
18. On 27.12.2016 he handed over three plastic jars and sample seal to Ct. Vijay Pal for depositing the same in FSL vide road certificate No.169/21/16 Ex.PW26/H. After depositing the exhibits in FSL Ct. Vijay returned and handed over the acknowledgement Ex.PW26/I to him.
19. On 10.01.2017 he handed over 9 sealed parcels and one sample seal to Ct. Sunny for depositing the same in FSL vide RC No.5/21/17 Ex.PW26/J. Ct. Sunny deposited the exhibits in FSL and obtained the acknowledgement Ex.PW26/K which he handed over to him on return to the police station.
20. On 10.01.2017 he handed over one plastic jar containing pendrive to Ct. Sunny vide road certificate No.6/21/16 Ex.PW26/L. On the same day Ct. Sunny came State Vs. Kapil @ Bander SC No.391/18 :: 7 ::
back and handed over the acknowledgement Ex.PW26/M to him regarding deposit of case property in the FSL. Nobody tampered with the case property till the same remained in his possession. The testimony of the witness has gone unchallenged and uncontroverted.
21. ASI Jagbir was examined as PW-6. He deposed that on the intervening night of 21/22 of November 2016 he was posted at PCR Van, Libra 71 being Incharge from 8 pm to 8 am. At about 11:30 pm an information was received from control room regarding quarrel near Titiksha Public School. H.No. G-2/34 Sector-11, Rohini Delhi. He along with driver reached the above said address in the van. They found one injured person namely Ashish S/o Rohtash. On the way to the hospital injured informed that 3-4 unknown male persons gave beatings to him and stabbed him thereafter they ran away. He also told that there is one more injured. He informed the control room that there may be another injured on the spot and requested that another PCR van be sent. They got admitted the injured in the BSA hospital. The testimony of the witness has gone unchallenged and uncontroverted.
22. Ct. Sunny was examined as PW-7. He deposed that on the intervening night of 21-22.11.2016 on receipt of DD No.3A he along with SI Vijay reached at G-2/34 Sector-11, State Vs. Kapil @ Bander SC No.391/18 :: 8 ::
Rohini near Titiksha public school. They came to know that injured had been removed to BSA hospital. On the spot blood was lying on the ground and on the bedding also in front of shop on the chabutra. SI Vijay went to the hospital. At about 1:30 am SI Vijay came back on the spot. Crime team also reached the spot and inspected the scene of crime. Photographer took the photographs. IO prepared the rukka and handed over to him at 2:30 am. He went to the police station and got the FIR registered. After getting the FIR registered he came back on the spot and handed over original rukka and copy of FIR to SI Vijay Kumar for further investigation.
23. The pieces of bedding which were blood stained were cut and put in plastic containers. The blood stained concrete pieces were broken and put in plastic containers. The same were sealed and seized vide memo Ex.PW23/A.
24. On 10.01.2017 on the directions of IO he received 9 sealed parcels from MHC(M) for depositing the same in FSL vide road certificate No.5/21/17. On the same day another sealed pullanda duly sealed was received by him from the MHC(M) vide RC No.6/21/17 for depositing the same at FSL. He deposited the pullandas in FSL and obtained the acknowledgements. He came back to the police station and handed over the acknowledgements to the MHC(M). During State Vs. Kapil @ Bander SC No.391/18 :: 9 ::
the period exhibits remained in his possession no one tampered with the same. He also identified case property. The testimony of witness has gone unchallenged and uncontroverted.
25. Ct. Bhagirath was examined as PW-8. He deposed that on the intervening night of 21/22 November 2016 he was posted on PCR Van Libra 77 being Incharge. At about 11:45 pm an information was received from control room to reach H.No.G-2/34, Sector-11, Rohini. He along with driver in the PCR van reached there. They found one injured namely Pankaj. They removed Pankaj from the spot to BSA Hospital. The other injured had already been removed to BSA Hospital by PCR Van Libra 71. The testimony of witness has gone unchallenged and uncontroverted.
26. SI Rajneesh was examined as PW9. He deposed about arrest of Chhota Salman and Lala @ Sunil. The case regarding hem had already been decided, therefore, the witness is not discussed. The Ld. APP had also dropped Ct. Kiran Pal who is of the repetitive nature and is regarding the arrest of Chhota Salman and Sunil. The statement of Ld. APP was recorded to this effect on 26.07.2018.
27. Sh. Santosh Tripathi from FSL was examined as PW10. He conducted the chemical examination on the viscera and found that the blood is containing ethyle alcohol State Vs. Kapil @ Bander SC No.391/18 :: 10 ::
81.8 mg /per 100 ml of blood. He proved his report as Ex.PW35/Q.
28. Ms. Bharti Bhardwaj was examined as PW-11. She conducted the biological examination on the exhibits and proved her report as Ex.PW35/R. The testimony of witness has gone unchallenged and uncotnroverted.
29. Sh. Hanuman Singh was examined as PW-12. He deposed that on 10.12.2014 Asha Rani w/o Sh. S.S. Arora let out shop No.A-3/109 Sector-11, Rohini. That is shop No.42 to Israil Malik. He proved the photocopy of the rent agreement as Ex.PW20/A. Israil Malik was running a Kabari shop from that shop. The photocopy of the rent agreement was seized as Ex.PW20/B. The testimony of the witness has gone unchallenged and uncontroverted.
30. Yashbir Singh was examined as PW-13. He deposed that on 09.04.2013 he let out shop No:G-2/34 Sector-11 Rohini to Rashid Malik vide rent agreement photocopy of which is Ex.PW19/A. The said shop is in the name of his wife Smt. Sanju Sirohi. The photocopy of the rent agreement was seized by the police vide memo Ex.PW19/A. The testimony of the witness has gone unchallenged and uncontroverted.
31. Sh. Chander Shekhar Nodal Officer Bharti Airtel was examined as PW-14. He brought the record of mobile Phone No.9717825490 as per the customer application form this State Vs. Kapil @ Bander SC No.391/18 :: 11 ::
phone number was issued in the name of Salman Khan S/o Sh. Ismail Khan. The photocopy of the customer application form is proved as Ex.PW18/A. The copy of the driving license annexed with customer application form is proved as Ex.PW18/B. The call detail record of this number is proved as Ex.PW18/C for the period 15.11.2016 to 30.11.2016. He has also brought the record of mobile phone No. 8130105442. As per record this number was issued in the name of Mahender S/o Sh. Shravan. The photocopy of the customer application form is Ex.PW18/D. The copy of driving license annexed with customer application form is Ex.PW18/E. Copy of PAN card is proved as Ex.PW18/F. The call detail record of this mobile phone number for the period 15.11.2016 to 30.11.20216 is proved as Ex.PW18/G.
32. He has also brought the record of mobile phone No:9560493470. As per record this mobile number was issued in the name of Shahrukh Malik S/o Sh. Israil Malik. The photocopy of the customer application form is proved as Ex.PW18/H. The photocopy of the voter ID card annexed with the customer application form is proved as Ex.PW18/I. The call detail record of this number for the period 15.11.2016 to 30.11.2016 is proved as Ex.PW18/J. The cell ID chart is proved as Ex.PW18/K. The certificate u/s 65B Evidence Act with respect to the aforesaid CDR is proved as State Vs. Kapil @ Bander SC No.391/18 :: 12 ::
Ex.PW18/L.
33. Sh. Israr babu Alternate Nodal Officer Vodafone Private Limited was examined as PW-15. He proved the record of mobile phone no;8377072632. As per record this number was issued in the name of Sunil Kumar S/o SH. Ram Lal. Photocopy of customer application form is proved as Ex.PW17/A. The copy of the Aadhar card annexed with the customer application form is proved as Ex.PW17/B. The call detail record of this number for the period 15.11.16 to 30.11.16 is proved as Ex.PW17/C. The certificate u/s 65B Evidence Act is proved as Exc.PW17/D. The documents were handed over to the police with covering letter Ex.PW17/E. The mobile phone No.9643220762 has been ported out to Idea Cellular on 12.10.2015 the report in this regard is proved as Ex.PW17/F. The testimony of witness has gone uncontroverted.
34. Sh. Geetesh Pastel was examined as PW-16. On 11.04.2017 he conducted the examination of DVD of writex make and proved his report as ExPW35/T. The testimony of witness has gone unchallenged and unconverted.
35. Ct. Naveen was examined as PW-17 and he proved the scaled site plan of the scene of crime as Ex.PW33/A.
36. Lady Ct. Babita was examined as PW-18. On 21.11.2016 he was posted in CPCR PHQ and was working State Vs. Kapil @ Bander SC No.391/18 :: 13 ::
on channel No.115. On that day at 23:27:16 hrs a call was received from mobile No.9650044092. The caller informed about quarrel near Sector-11, Rohini H.No.G-2/34 Titiksha School and injured. She flashed this message. She proved the computer generated copy of PCR form as Ex.PW15/A. The testimony of witness has gone unchallenged and uncontroverted.
37. Harish Chander Pathak was examined as PW-19. He was working in the CPCR as Nodal Officer and he took the print out of the information received on 21.11.2016 at 23:27:16 hrs. He proved the certificate issued u/s 65B Evidence Act with respect to the print out taken of the PCR form as Ex.PW32/A. The testimony of the witness has gone unchallenged and unconverted.
38. Faizal Raza was examined as PW-20. During the course of investigation he handed over the CCTV footage from the CCTV installed at his house No.G-2/307 Sector-11, Rohini. On 21.11.2016 for the time between 11 to 12 pm in a pendrive. The pendrive was handed over to the IO on 24.11.2016. He also gave the certificate u/s 65B Indian Evidence Act already Ex.PW29/A having his signature at point A. The original DVR is still with him. He identified the pendrive as Ex.PW29/Article1. He has seen the footage and stated that this footage contained in the pendrive is the same State Vs. Kapil @ Bander SC No.391/18 :: 14 ::
footage which he handed over to the police and is of the out side his house. The testimony of the witness has gone unchallenged and un-controverted.
39. SI Manvender was examined as PW-21. He deposed that on 08.03.2018 SI Vikram apprehended two persons Salman Khan and Sahil @ Sagar in case FIR No.109/18 PS:
Karaval Nagar u/s 411/34 IPC and 25 Arms Act. He conducted further investigation. Both Salman Khan and Sahil @ Sagar led them to Javed in Rohini, Delhi. He arrested Javed and one scooty and one car battery were recovered from his possession. Scooty was found stolen from the area of PS: Rani Bagh. Javed disclosed that he received stolen battery from Kapil @ Hanuman @ Bandar R/o H.No:13, Pocket-11, Rajiv Enclave, Sec-5 Rohini.
40. On 09.03.2018 he along with Ct. Sachin Rana reached Rohini. One secret informer met them and told that Kapil @ Bandar is present at his house. They reached his house which was pointed out by the secret informer. Accused was called and apprehended. Accused got recovered one battery of car and bundle of wire. Accused Kapil was arrested. He made the disclosure statement Ex.PW21/1. He also disclosed that he is involved in murder case of PS:
Prashant Vihar. He accordingly, informed PS: Prashant Vihar that accused had made a disclosure statement with respect State Vs. Kapil @ Bander SC No.391/18 :: 15 ::
to case FIR No.829/16. The witness identified the accused.
41. During cross-examination he denied the suggestion that accused was not arrested from the place, time and manner as deposed by him. No public person was joined at the time of arrest. He denied the suggestion that signature of accused were obtained on blank papers on which the incriminating evidence including the disclosure statement was recorded. He denied the suggestion that accused did not make any disclosure statement.
42. Ct. Sachin Rana was examined as PW-22. He deposed that on 08.03.2018 he was posted at PS: Karawal Nagar. He also corroborated the testimony of PW-21 with respect to arrest of accused Kapil @ Bandar and his making disclosure statement. Nothing material came in the cross-
examination by the Ld. Defence counsel to discredit the witness.
43. SI Vikram was examined as PW-23. He also corroborated the testimony of PW-21 and PW-22. He apprehended both accused Salman Khan and Sahil Sagar, got registered the FIR and thereafter the further investigation was carried out by PW-21 SI Manvender. He also apprehended Kapil @ Bandar and informed PS: Prashant Vihar regarding the disclosure made by Kapil @ Bandar. Nothing material came to discredit the witness during cross- State Vs. Kapil @ Bander SC No.391/18 :: 16 ::
examination by the defence counsel.
44. HC Karamvir was examined as PW-24. He was working as duty officer at PS: Karawal Nagar on 08.03.2018. He proved the FIR as Ex.PW24/1 registered on the basis of rukka sent by SI Vikram PW-23. The testimony of witness has gone unchallenged and uncontroverted.
45. SI Deepak was examined as PW-25. He deposed that on 09.03.2018 on the direction of Inspector Vikram Chauhan he went to Rohini Court Complex pursuant to DD No.50B. He moved application for issuance of production warrant of accused Kapil @ Hanuman @ Bandar. On 19.03.2018 he along with Inspector Vikram reached the court of Ld. MM in Rohini Court Complex where accused was produced. IO interrogated the accused with the permission of the court and arrested him vide memo Ex.PW25/1 accused made the disclosure statement Ex.PW25/2. Police custody remand of accused was taken. Accused pointed out the scene of crime vide pointing out memo Ex.PW25/3. Witness correctly identified the accused.
46. During cross-examination by defence counsel, he denied the suggestion that accused was arrested in connivance with the police officials of PS: Karawal Nagar or that accused did not make any disclosure statement to the police officials of PS: Karawal Nagar. He denied the State Vs. Kapil @ Bander SC No.391/18 :: 17 ::
suggestion that accused was forced to sign the papers. He denied the suggestion that accused did not point out any scene of crime or that the same was already in the knowledge of police.
47. SI Aakash Deep was examined as PW-26. He was the Incharge of the Mobile crime team, Rohini District. On the intervening night of 21/22 November 2016 at about 1:20 am he received information from control room to reach the area of PS: Prashant Vihar. He along with ASI Karambir photographer , Ct. Chhotey Khan finger print proficient reached G-2/34-35 sector-11, Rohini at about 1:40 am. SI Vijay along with staff met them on the spot. The photographer took the photographs of the scene of crime from different angles. He inspected the scene of crime and prepared his report Ex.PW2/A. The blood was lying on the spot and also on the mattress. The testimony of the witness has gone unchallenged and uncontroverted.
48. Javed was examined as PW27. He deposed that he and his brother Rashid Malik @ Rahul are engaged in the business of scrap at shop No.G-2/34 Sector-11, Rohini. They own two vehicles Ecco having registration No:DL 1Y C 5 694 and the Santro No: DL 4C 0207. Both these vehicles are attached with NDPL. The Santro vehicle is driven by Shahrukh who is brother in law or his elder brother Rashid State Vs. Kapil @ Bander SC No.391/18 :: 18 ::
Malik. Ecco was driven by Ashish and him turn by turn. Whenever Ashish used to drive the Ecco Vehicle he used to sleep outside shop No.G-2/34 Sector-11, Rohini and when he used to drive Ecco Vehicle Ashish used to sleep outside the shop.
49. On 21.11.2016 at about 8:00 pm he left with Ecco vehicle from his shop to the office of NDPL Sector-15 Rohini for driving the vehicle. When he left the shop Ashish and Pankaj were present there. At about 11:45 pm he receved telephone call of Abrar, whose father is having a shop of cotton in front of their shop, who informed that Ashish and Pankaj have been stabbed with knife and assailants had run away. He immediately returned to his shop and came to know that police had already taken Ashish and Pankaj to BSA hospital. He reached BSA Hospital. Both Ashish and Pankaj were under treatement. Later on he came to know that Ashish had expired. He suspect that Ashish and Pankaj have been stabbed by Salman and his brothers as there was money dispute in between him and accused Salman, his brothers and family members.
50. Earlier accused Salman used to collect waste articles from FSS Flat Apartments. The resident welfare association had given permission for Salman to collect waste from the society. Thereafter, the said contract of collecting waste State Vs. Kapil @ Bander SC No.391/18 :: 19 ::
articles was given to them i.e. him and his family members. Accused Kapil Bandar is present in the court. He had seen him along with accused Salman on number of occasions prior to the incident. Before the incident Salman had threatened to kill him and at that time Kapil Bandar and other boys were also with Salman.
51. During cross-examination he denied the suggestion that Kapil @ Bandar was never with accused Salman at any point of time. He did not make any complaint to police officials regarding the threat given to him by accused Salman.
52. Inspector Hans Raj Thakran was examined as PW-28. He deposed that on 22.11.2016 on the directions of SHO investigation was assigned to him. On receipt of information that Ashish had expired he reached the hospital where SI Vijay, SHO other staff met him. SI Vijay handed over the case file to him. The body was got preserved. The body was identified by Rohtash and Jagdish vide statements Ex.PW35/A and Ex.PW4/A. He prepared inquest papers, form 25.35 Ex.PW35/B. Post mortem was conducted and the report is Ex.PW8/A. After post mortem the body was handed over to the relatives vide memo Ex.PW4/B. After post mortem doctor handed over three plastic jars, two envelopes containing blood sample and sample seal of the hospital State Vs. Kapil @ Bander SC No.391/18 :: 20 ::
which is seized vide memo Ex.PW34/D. He along with SI Vijay reached the scene of crime. He searched if any CCTV is installed at or near SOC.
53. During investigation he found one CCTV installed at G-2/30 sector-11 Rohini at the house of Faizal Raza. He saw the CCTV footage and found three boys coming to the spot and also seen running from the spot. He served notice u/s 91 Cr.PC on Faizal Raja for providing the CCTV footage. Thereafter, they returned to the police station and he deposited the case property in the malkhana.
54. On 23.11.2016 SI Rajneesh produced Javed before him and he recorded his statement. He along with SI Rajneesh went to BSA Hospital where injured Pankaj Gupta was found admitted. He recorded the statement of Pankaj Gupta.
55. On 24.11.2016 Pankaj Gupta came to the police station and produced his clothes worn by him at the time of incident which he put in a carton box sealed with the seal of HR and seized vide memo Ex.PW7/A. Thereafter, he along with SI Vijay reached the house of Faizal Raza who provided the CCTV footage on the pendrive along with certificate u/s 65B Evidence Act. He put the pendrive in a plastic container, sealed it with the seal of HR and seized vide memo Ex.PW35/C. State Vs. Kapil @ Bander SC No.391/18 :: 21 ::
56. He also deposed regarding the arrest of JCL 'A' on 25.11.2016. JCL led them to the house of accused Sunil @ Lala, Chhota Salman and Kapil but they were not found at their houses.
57. On 28.11.2016 he deposed that on 28.11.2016 Chhota Salman was arrested on 29.11.2016. Application for TIP of Chhota Salman was moved but he refused to join TIP. Thereafter, Lala @ Sunil was arrested. He also deposed about the arrest of accused Raman and the investigation conducted regarding him but all these are not discussed as the case regarding those persons had already been decided. He also deposed regarding arrest of Salman Khan. He collected the PCR form and placed the same on record. Viscera of the deceased was sent to FSL through Ct. Vinay. He got prepared the scaled site plan Ex.PW32/A through Ct. Naveen. On 10.01.2017 he also sent the exhibits through Ct. Sunny to FSL. He obtained the opinion of the doctor on the MLC of the Pankaj. He collected the photographs of scene of crime, collected the FSL result and placed it on record. The accused Kapil @ Bandar was absconding. He received the process u/s 82 Cr.PC against the accused Kapil S/o Sh. Rama R/o Village Jhama Toli PS: Bameta, Distt. Chhatarpur, M.P and A-3/109 Sector-11, Rohini which were marked to HC Vijender Singh for execution. The process u/s 82 Cr.PC State Vs. Kapil @ Bander SC No.391/18 :: 22 ::
is Ex.PW28/A. HC Vijender executed the process and gave his report as Ex.PW28/B. The publication against accused Kapil was published in the leading news paper vide cutting of newspaper Ex.PW28/C. Statement of HC Bijender was recorded in the court on 12.07.2017 and Kapil was declared Proclaimed Offender. He filed the supplementary charge sheet against accused Kapil as P.O and also added section 174A IPC. He identified the case property.
58. During cross-examination he denied the suggestion that Salman and other accused persons did not make any disclosure statement and they never disclosed about Kapil @ Bandar. He denied the suggestion that he concocted a false story after obtaining signatures of Salman and other persons on blank papers.
59. Inspector Vikram Singh was examined as PW-29. He deposed that on 09.03.2018 pursuant to DD No.50B regarding accused Kapil @ Hanuman @ Bandar SI Deepak was directed to reach the Rohini Court Complex to move application for production of accused. On 19.03.2018 he along with SI Deepak reached the court of Ld. MM Ms. Kadambari Awasthi. With the permission of the court he interrogated accused Kapil @ Bandar and arrested him vide arrest memo Ex.PW25/1. Accused made the disclosure statement Ex.PW25/2. His police custody remand was taken. State Vs. Kapil @ Bander SC No.391/18 :: 23 ::
Accused pointed out the place of crime vide memo Ex.PW25/3. He identified the accused. The efforts were made to find out co-accused Kalu and screw driver but no clue was found. He prepared supplementary charge sheet against accused Kapil @ Bandar @ Hanuman.
60. During cross-examination he denied the suggestion that accused has been falsely implicated or that accused Salman and other accused did not disclosed about the name of accused Kapil @ Bandar. He denied the suggestion that accused did not make any disclosure statement or that he did not point out the place of occurrence.
61. Thereafter, the prosecution evidence was closed. Statement of accused was recorded u/s 313 Cr.PC wherein he denied the entire evidence. He did not wish to lead evidence in defence. Thereafter, the case was fixed for final arguments.
62. I have heard Ld. APP for the State, Ld. Defence counsel for the accused and perused the record.
63. The present case is based upon eye witness account i.e. Pankaj Gupta. According to prosecution case, Pankaj Gupta not only witnessed the incident but also sustained injuries in the incident. Pankaj had not been examined by the prosecution. Summons were ordered to be served through IO and DCP but still he could not be traced. There is State Vs. Kapil @ Bander SC No.391/18 :: 24 ::
no other eye witness in this case. Therefore, in my opinion, the prosecution has failed to link the accused with commissions of offence so far as, ocular evidence is concerned.
64. In this case, accused was arrested on 19.03.18. According to the story of prosecution, he confessed about commission of crime by disclosure statement Ex.PW25/2 and also pointed out the place of occurrence vide memo Ex.PW25/3. There is no other evidence against him except this pointing out of the place of occurrence by the accused. At the time of pointing out, no public witness was joined though, the place which is pointed out is situated in the market and there were many public persons. This non joining of public witness itself create doubt regarding truthfulness of the story of prosecution. Even if for the sake of arguments, it is believed that accused pointed out the place of occurrence, still that does not point towards the guilt of the accused, as the incident is of 21.11.16, whereas this pointing is of 19.03.18. There is also no evidence to show that he was in touch with Salman Khan and other accused and agreed to commit this offence. No doubt Javed stated that he had seen the present accused in the company of Salman but no date or time is mentioned. Javed also deposed that once Salman threatened him and at that time State Vs. Kapil @ Bander SC No.391/18 :: 25 ::
Kapil and other boys with Salman but again firstly no date is mentioned and secondly, there is no such earlier statement or complaint made to the police in this regard.
65. In view of the above discussion, as the only eye witness could not be examined as he was not traceable, the chain of circumstance is also not complete. In my opinion, prosecution has failed to prove the guilt of the accused beyond doubt.
66. In the present case, accused was also charged for the offence punishable under Section 174A Cr.P.C. The allegations are that despite execution of process U/s 82 Cr.P.C., the accused failed to put appearance before the court of Ld. MM and consequently, accused was declared proclaimed offender. The copy of the order passed by Ld. MM dated 12.07.17 has been placed on record. However, the onus was on the prosecution to prove and establish the process U/s 82 Cr.P.C. had been executed against the accused. As per the statement of PW28, the process U/s 82 Cr.P.C was assigned to HC Vijender to be executed the same but HC Vijender had not been examined. Therefore, in my opinion, the onus is not discharged.
67. Keeping in view the above discussion, in my opinion, prosecution has failed to prove the guilt of the accused beyond reasonable doubt. The accused is, therefore, State Vs. Kapil @ Bander SC No.391/18 :: 26 ::
acquitted. He be released on furnishing personal bond in the sum of Rs.15,000/- with one surety of the like amount U/s 437A Cr.P.C. for a period of six months.
File be consigned to the Record Room.
Digitally signed by
VIRENDER VIRENDER KUMAR
KUMAR BANSAL
Announced in the open court BANSAL
Date: 2018.09.14
15:25:15 +0530
today on 14.09.2018 (VIRENDER KUMAR BANSAL)
ASJ/Pilot Court/North District
Rohini Courts/New Delhi.
State Vs. Kapil @ Bander SC No.391/18 :: 27 ::