Delhi District Court
State vs . 1. Sandeep @ Kale on 29 March, 2010
1
IN THE COURT OF SH. SANJEEV AGGARWAL LD. ADDL.
SESSIONS JUDGE: ROHINI COURTS: DELHI
SC No.20/08
FIR No. 133/07
P.S. Kanjhawla
U/s 302/307/34 IPC
State Vs. 1. Sandeep @ Kale
S/o Sh. Ramesh Kumar
R/o Chhawala,
Delhi.
2. Parmit @ Pehlwan
S/o Sh. Jagbir Singh
R/o Village Kanjhawla,
Delhi.
Date of Institution in Sessions Court: 21.2.08
Date of transfer to this Court: 15.11.08.
Date of Judgment: 29.3.10
JUDGMENT
1. In brief the prosecution story is that on 17.7.07, a DD No. 37B was received at P.S. Kanjhawla that near Kanjhawla Water Tank near the office of J.M.D Property Dealer, one Maruti Car was standing and some persons had ran away after shooting some one. On the receipt of said DD, the same was marked to ASI Satyabir Singh for action who alongwith constable Kanwar Singh reached 2 the spot. The said information was also passed on to Inspector Sandeep Bayala SHO P.S. Kanjhawla, who also reached the spot.
2. On reaching the spot, SHO found one Santro Car bearing No. DL4CS 9633 of white colour parked and inside the said car one deadbody was lying, which was splattered with blood, whose head was lying on the steering wheel of the said car, name of the deceased was revealed as Ranbir Singh S/o Ram Phal, village Kumal Pur, Distt. Sonepat(H).
3. Near the said car one Anil Kumar was also present, who got recorded the following statement to the ASI Satyabir Singh. In the said statement Anil Kumar stated that he was resident of Sector 8, Rohini and was doing the business of building material supply and his friend Ranbir S/o Ram Phal was belonging to the same village and today at around 11a.m he came to him and he alongwith his friend Ranbir drove the Santro Car belonging to his brother in law Ramesh and went to meet the friend of Ranbir at Rohtak. They came back at around 4 p.m from Rohtak and when they had reached Mundka CNG Gas Centre and they were filling the CNG 3 Gas in their vehicle, at that time Ranbir received a phone call from his friend Kale, and thereafter Ranbir turned the car towards Kanjhawla and told him that he had to get money from a friend at Kanjhawla. When they reached Kanjhawla chowk at that time another call was received by Ranbir from Kale, who told him that he was standing near Vatika, when they reached Vatika one person was standing there who was made to sit in the car by Ranbir.
4. Thereafter, they drove away their Santro Car and started awaiting for one Pehlwan who had been called by Kale, they awaited for the said Kale for 15 minutes, but he did not turn up and Sandeep @ Kale also made a call to Pehlwan in this regard.
5. Thereafter, after leaving Kale, they again drove towards Rohini and when they had reached Rama Vihar, Kale made another call to Ranbir that Pehlwan had come. Ranbir turned back his vehicle towards Kanjhawla and both Kale and Pehlwan sat in the Santro Car and thereafter Kale told Ranbir that he should drive the vehicle towards Phirni Wala Road. After the vehicle had been driven for some distance Pehlwan took out a pistol and fired upon Ranbir, 4 who became dead on the steering wheel of the said vehicle.
6. Thereafter, Pehlwan placed a pistol on his temple and tried to fire but he could not fire. Thereafter, both of them alighted from the car and ran away. The complainant Anil Kumar also raised an alarm, but nobody dared to stop them. Somebody had also made a call at 100 number.
7. On the said statement of Anil Kumar, a rukka was written by ASI Satyavir Singh, who sent constable Kanwar Singh to P.S. Kanjhawla for registration of the FIR.
8. On the said rukka, an FIR U/s 302/307/34 IPC read with Section 27 Arms Act was registered at P.S. Kanjhawla. The said constable came back to the spot and handed over the copy of FIR to Inspector Sandeep Bayala, who carried out further investigation(s) in the present case.
9. Thereafter, crime team was also called to the spot. The IO Inspector Sandeep Bayala got prepared the siteplan of the spot and on the search of the car blood, two empty cartridges and one bullet alongwith seat cover and the blood stained clothes of the deceased 5 were seized, and during the search of the deceased two mobile phones, one purse, driving licence were also recovered, which were also seized by the police.
10. The deadbody was sent to mortuary of SGM Hospital from ASI Satyavir Singh. The Santro car was also seized. From the mobile phone of the deceased, it was observed he had called at No. 9212513406 many a times before the incident regarding which the call details were obtained.
11. On 18.7.07 the ASI Satyavir Singh got conducted the postmortem on the body of the deceased, and on the basis of the call details accused Sandeep @ Kale was searched and on the identification of the complainant Sandeep @ Kale was arrested, who made a disclosure statement regarding his involvement in the present case and he got recovered one motorcycle Pulsar make bearing No. DL8S AF 7367, which was used in the crime and he also got recovered the blood stained shirt from a liquor godown at Bahadur Garh on 23.7.07. Thereafter, the accused Sandeep @ Kale made another disclosure statement on 24.7.07. In pursuance 6 to the said disclosure statement, he got recovered one country made pistol containing two live cartridges from Sawda Road Kanjhawla near Samadhi of one Jage Ram underneath the bushes of Shehtoot tree. The said country made pistol and live cartridges were also seized by the police.
12. The other accused Parmeet @ Pehlwan was also arrested at the instance of accused Sandeep @ Kale, who also made a disclosure statement and pursuant to his disclosure statement he also got recovered one T-shirt, which he was wearing at the time of incident from a plot of Sanjay R/o Mundka which was also seized.
13. Further, the mobile phone of the accused Sandeep @ Kale could not be recovered, which he stated that he had thrown away at some secluded place at the G.T Road. The relevant exhibits were sent to FSL Rohini for their Forensic Evaluation. The chance prints lifted from the spot were sent to Finger Prints Bureau Malviya Nagar alongwith subsequent finger prints of the accused persons.
14. After completion of investigation(s) an charge-sheet U/s 307/302/34 IPC read with Section 25/27 Arms Act was filed in the 7 court.
15. Upon committal of the case to the court of Sessions, a charge U/s 302/34 IPC read with Sec. 307/34 IPC was framed against both the accused persons vide order dt. 1.5.08 and an additional charge U/s 25 Arms Act was framed against the accused Sandeep @ Kale, whereas an additional charge U/s 27 Arms Act was framed against the accused Parmeet @ Pehlwan, to which both of them pleaded not guilty and claimed trial.
16. Thereafter, the prosecution in support of its case, has examined 22 witnesses.
PW1 is Sh. Anil Kumar, the complainant, who has turned hostile.
PW2 is ASI Satyabeer Singh, the initial IO, who on receipt of DD No. 37B had gone to the spot.
PW3 is Constable Ram Niwas, who alongwith ASI Satyabir Singh had reached first of all at the spot on receipt of DD No. 37B. PW4 is Sh. Ramesh Kumar, the brother in law of the complainant Anil Kumar, from whom the complainant Anil Kumar 8 had borrowed his Santro Car on 17.7.07.
PW5 is Sh. Ranjit, the brother of the deceased, who had identified the deadbody of the deceased at SGM Hospital. PW6 is constable Kuldeep, who had deposited the sealed pullandas with FSL Rohini on 31.8.07.
PW7 is Sh. Aman Kumar Yadav Finger Print Expert, who has proved his report Ex.PW7/A. PW8 is Sh. M.L. Vijayan, Nodal Officer from Tata Tele Services Ltd., who has proved the call details alongwith Cell I.D Chart pertaining to mobile No. 9212513406 in the name of Sandeep S/o Ramesh Kumar.
PW9 is constable Kanwar Singh, who had taken rukka to the P.S for the registration of the FIR.
PW10 is Sh. Rajesh Kumar Goel, Ld. M.M, who had got conducted the TIP of accused Parmeet @ Pehlwan on 25.7.07, wherein the said accused had refused to undergo TIP proceedings despite warning.
PW11 is constable Dalbir Singh, the photographer of the crime 9 team, who has proved the photographs of the spot as Ex.PW11/1 to Ex.PW11/19 and the negatives as Ex.PW11/1A to Ex.PW11/19A. PW12 is H.C. Surender Kumar, the MHC(M), with whom the relevant pullandas were deposited by the investigating officer between 17.7.07 to 24.7.07 and from whom on 31.8.07 sealed pullandas were taken back by constable Kuldeep for depositing with the FSL Rohini.
PW13 is Dr. V.K. Jha, the Autopsy Surgeon, who had carried out the postmortem on the body of the deceased vide his postmortem report Ex.PW13/A. PW14 is SI Satpal Singh of the crime team, who had visited the spot on 17.7.07 and has proved his crime team report Ex.PW14/A. PW15 is Constable Parveen Kumar, who was working as DD writer at P.S. Kanjhawla on 17.7.07, and has proved the DD No. 37B vide Ex.PW15/A. PW16 is H.C. Ram Singh, the duty officer, who has proved the copy of FIR as Ex.PW16/A, and who has also proved the DD No. 26A as Ex.PW16/B and DD No. 27A as Ex.PW16/C. 10 PW17 is constable Suresh Chand, who was also the part of the crime team.
PW18 is ASI Shiv Narain, who alongwith constable Anil and constable Ramesh at the instructions of the SHO on 22.7.07 had arrested the accused Sandeep and in whose presence, the accused had also made a disclosure statement and had got recovered the blood stained shirt and motorcycle Pulsar make from Liquor godown at Bahadur Garh and in whose presence the accused Sandeep had made another disclosure statement and had got recovered one country made pistol alongwith two cartridges near the bushes of Sawda Road Kanjhawla. Accordingly, he is a material recovery witness.
PW19 is IO Sandeep Bayala, who has deposed regarding the investigation(s) as was carried out by him during the course of the present case.
PW20 is Sh. Pawan Singh, Nodal Officer Idea Cellular Ltd., who has proved the call details regarding the mobile No. 9911565257 in the name of Ramesh Kumar S/o Randhir Singh i.e. 11 father of accused Sandeep @ Kale, and who has proved the application form regarding the said mobile phone and the identity proof submitted alongwith the application form Ex.PW20/A and Ex.PW20/B. He has also proved the Cell I.D. Chart vide Ex.PW20/C. PW21 is Sh. B.K. Singh Addl. DCP, who has proved the sanction U/s 39 of the Arms Act qua the accused Parmeet @ Pehlwan as Ex.PW21/A and he has also proved the sanction qua the other accused Sandeep @ Kale as Ex.PW21/B. PW22 is Dr. K.C. Varshney, Ballistic Expert, who has proved his ballistic report as Ex.PW22/A and his gun shot residue particles test vide report Ex.PW22/B.
17. Thereafter, the separate statements of the accused persons U/s 313 Cr.P.C were recorded, in which the defence of both the accused persons was that they had been falsely implicated in this case and all the witnesses were false and interested witnesses and only the police witnesses had deposed against them and the only independent witness PW1 Anil Kumar had not deposed anything 12 against them. They further stated that they were innocent and had been falsely implicated in this case. However, they chose not to lead any defence evidence.
18. I have heard Sh. R.S. Malik, Ld. Counsel for the accused Sandeep @ Kale and Sh. L.S. Saini, Ld. Counsel for the accused Parmeet @ Pehlwan and Ld. Addl. PP for State Sh. G.S. Guraya.
19. Ld. Defence counsel for the accused Sandeep @ Kale, Sh. R.S. Malik has argued that the prosecution in the present case has miserably failed to make out a case against the accused, as there is no direct evidence against the accused Sandeep @ Kale, as the star witness of the prosecution PW1 Anil has turned hostile and has not supported the prosecution story at all, and the prosecution is only relying upon the circumstantial evidence in this case, and he has argued that the said circumstances upon which the prosecution relies in this case, has not been proved by the prosecution, as the alleged recovery of motorcycle and blood stained shirt allegedly pursuant to the first disclosure statement of the accused Sandeep @ Kale is highly doubtful as admittedly in this case, the IO had not 13 joined any independent witness in the said recovery, nor any efforts were made to join them, nor the IO had joined any witness from the liquor godown from where the alleged recoveries were made. Further, the said blood stained shirt can not be said to be belonging to the accused Sandeep @ Kale as the same was not made to put on to the said witness at any time during the trial or before that. Further, the blood sample of the accused Sandeep @ Kale was also not taken, therefore, it can not be said conclusively that the said blood stained shirt belonged to him.
20. He has further argued that the recovery of pistol and two live cartridges allegedly recovered on the second disclosure statement of the accused Sandeep @ Kale on 24.7.07 is also highly doubtful, as the same has not been proved by the prosecution, as admittedly, the said recoveries had been made from a public place accessible to public at large and the IO despite availability of the public witnesses never made any serious efforts to join them in the investigation(s) and the said pistol and live cartridges were admittedly not recovered from the house of the accused person. He 14 has further argued that the call details pertaining to the mobile phone of accused Sandeep and his father Ramesh Kumar does not prove anything against the accused Sandeep @ Kale, as the testimonies of PW8 Sh.M.L. Vijayan and PW20 Sh. Pawan Singh, who are the witnesses from the mobile company, are not reliable due to the answers given by them in their cross-examination, from which it is evident that they were not at all acquainted with the scientific aspects of the call details nor they were trained to give such depositions as expert witnesses and their testimony also show that there are chances of interpolation or manipulation in the said call details records. He has further argued that even otherwise the said call details only proves that the accused Sandeep @ Kale had made some calls to the deceased Ranbir Singh, but the prosecution has not lead any evidence to show what the said accused had talked with the deceased and the prosecution had also failed to prove that the accused Sandeep @ Kale was at the place of occurrence and he has also argued that as per the deposition of PW8 and PW20 in their cross-examination, they have stated that 15 the range of cell towers varies from 1-6 km. And therefore, he has argued that in such a wide range area the presence of the accused Sandeep @ Kale means nothing and can not connect him with the commission of offence, for which he has been charged.
21. He has also argued that the testimony of Autopsy Surgeon PW13 Dr. V.K. Jha, is not reliable, as he has no where opined that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death, further the said Autopsy Surgeon was never shown the weapon of offence, as per the settled law and the said Autopsy Surgeon in his cross-examination has also stated that the injury sustained by the deceased were also possible by Sua Jelly or similar weapon. He has also argued that the report of finger print also goes against the prosecution, as no finger prints of the accused were found from the spot or could be lifted by the IO, which also shows their innocence. He has further argued that the prosecution has not examined the person, who had reported regarding the incident to the PCR, who was the most important witness namely one Sudhir. He has also argued that the 16 prosecution had failed to examine the recovery witnesses constable Anil and constable Ramesh.
22. Relying upon the aforesaid arguments, he has argued that it is well settled law, that when there are two views available, then the view which favours the accused has to be preferred. He has further argued that the sanction U/s 39 Arms Act has not been validly proved by the prosecution as PW21 Sh. B.K. Singh Addl. DCP had accorded the sanction in a mechanical manner without application of mind and further the said Addl. DCP had no power to accord the sanction, as the said power had only been conferred U/s 39 of the Arms Act to the Distt. Magistrate, which in this case was DCP and not the Addl. DCP. Consequently, he has argued that in view of the aforesaid arguments addressed by him, the accused Sandeep @ Kale deserves to be acquitted.
23. Ld. Defence counsel Sh. L.S. Saini for accused Parmeet @ Pehlwan had argued that he was adopting the aforesaid arguments addressed by Sh. R.S. Malik, Ld. Counsel for the accused Sandeep @ Kale, and in addition to that he has argued that there is nothing 17 against the accused Parmeet @ Pehlwan, as there is only a disclosure statement against the said accused and pursuant to said disclosure statement, the accused parmeet @ Pehlwan had got recovered one blood stained T-shirt from an open plot of land which was accessible to public at large. He has also argued that the said recovery from the said open place of plot is highly doubtful and further the owner of the said plot or the public persons available in the vicinity were never joined by the IO in the recovery proceedings and further no blood samples of the accused Parmeet @ Pehlwan were taken nor he was made to wear T-shirt, therefore, it can not be said by any stretch of imagination that the said blood stains were of deceased only. He has further argued that there is no direct evidence in this case, as the star witness of the prosecution PW1 Anil Kumar has turned hostile.
24. On the other hand Ld. Addl. PP for the State, Sh. G.S. Guraya, has refuted the arguments of both the defence counsels and has strongly argued that the prosecution in this case has been able to make out a case U/s 302/34 IPC against both the accused persons, 18 as well as the prosecution has been able to make out a case U/s 25/27 Arms Act. Though, Ld. Public Prosecutor has admitted that in the present case, the star witness of the prosecution namely PW1 Sh. Anil Kumar has turned hostile, but he has stated that the prosecution had been able to prove its case by circumstantial evidence lead on the record that the accused persons were the persons responsible for the murder of accused Ranbir and no one else and the prosecution had also been able to prove the entire chain of evidence thereby not leaving any ground for the conclusion consistent with the innocence of the accused persons in this case and all the chain of evidence lead by the prosecution lead to the inference that it was only the accused persons who had committed the offence in question. He has argued that the recovery of blood stained shirt by the accused Sandeep @ Kale and the motorcycle used in offence has been satisfactorily proved and the prosecution had also been able to prove beyond any doubt, the recovery of pistol used in the offence which contained two live cartridges. He has further argued that the report of Ballistic Expert Dr. K.C. 19 Varshney also corroborates the prosecution story that the cartridges found from the Santro Car were discharged from the same pistol which was got recovered by the accused Sandeep @ Kale. He has further argued that the blood stained shirt of the accused Sandeep @ Kale was found to contain the blood stains of the accused, which also goes against the accused, for which he has not given any reasonable explanation. He has also argued that the call details proved by PW8 and PW20 on record duly corroborate the prosecution story that immediately prior to the incident there were hectic parleys between the deceased and the accused Sandeep @ Kale and he has argued that both the mobile phones have been proved to be belonging to the accused Sandeep @ Kale. One mobile phone was in the name of said accused and one was in the name of his father Ramesh Chand. He has further argued that the sanction in this case have been validly given by the concerned Ld. Addl. DCP, as he was discharging the delegated powers conferred upon him by the Commissioner of Police, Delhi. He has also argued that the recovery of blood stained shirt 20 pursuant to the disclosure statement of accused Parmeet @ Pehlwan has also been validly proved by the prosecution, and there is no doubt regarding the said recovery, and he has argued that it is common knowledge these days that no public person wants to join the investigation for various reasons and merely because public witnesses have not been joined in the investigation does not mean that the entire case of the prosecution is false.
25. I have considered the rival contentions of the Ld. Defence counsel and ld. Addl. PP for the State.
26. Ld. Defence Counsel(s) for the accused persons have also relied upon the following judgments and both the Ld. Defence Counsel(s) have also filed written submissions in support of their case.
1. 1984 AIR SC 1622, SHARAD Vs. STATE OF MAHARASHTRA
2. AIR 1990 SC 2140, KISHORE CHAND Vs. STATE OF H.P
3. SC 1976 (1) 172, KARTAREY & OR. Vs. STATE OF U.P
4. CCC 1995(2) 503, HARISH CHANDER @ BILLA Vs. STATE
5. 1995 JCC 470, GULAB SINGH Vs. STATE
6. 1988 CCC 456, RAN SINGH Vs. STATE
7. 1995(3) CCC 252, SATISH KUMAR Vs. STATE
8. 1998(1) AD DELHI 468, PREETAM SINGH Vs. STATE 21
9. 1997(2) AD DELHI 157, SITA RAM Vs. STASTE (DELHI ADMINISTRATION)
10. AIR 1974 sc 1193, DATAR SINGH Vs. THE STATE OF PUNJAB
11. 1995 Cri.L.J. 470, TARSEEM KUMAR Vs. THE DELHI ADMINISTRATION
12. 1988(2) RCR 421, PAWAN KUMAR Vs. DELHI ADMINISTRATION
13. 1989 Cri. L.J 1585, STATE OF MADHYA PRADESH Vs. RAM PRAKASH
14. 2003(2) JCC 827, ASLAM PABWEZ ETC. Vs. GOVT. OF NCT DELHI
15. 1977 SCC (Cri.) 404, STATE OF KARNATAKA Vs. l.
MUNISWAMY & ORT.
16. 36(1988) DLT 8, LALA RAM & ANR. Vs. STATE
17. 1971 CAR 323(SC), STATE OF U.P & ANR. Vs. JAGGO AWAS JAGDISH
18. 1978 Cri. L.J. 1001, NANHEY Vs. STATE
19. 1997 VI AD (DELHI) 18, KARAMBIR Vs. STATE
20. AIR 1965 Pb. 443, ARJAN SINGH Vs. STATE
21. 1997(2) RCR 256, VIJENDER Vs. STATE OF DELHI
22. AIR 1979 SC 1782, DHAN KUMAR Vs. MUNICIPAL CORPORATION OF DELHI
23. AIR 1977 SC 1213, J.H. BHARUCHA Vs. STATE OF MAHARASHTRA
24. AIR 1976 SC 975, BHAGIRATH Vs. STATE OF M.P
25. AIR 1973 SC 2773, KALI RAM Vs. STATE OF H.P
26. PAWAN KUMAR Vs. DELHI ADMINISTRATION, 1987
27. Admittedly, in the present case, there is no direct evidence and the entire case of the prosecution is based upon circumstantial evidence. In the case of Mohmood Vs. State of U.P. (1976) 1 22 SCC 542, it has been held that "in a case dependent wholly on circumstantial evidence the court must be satisfied-
(a) that the circumstances from which the inference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt:-
(b) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and
(c) that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save t hat of the guilt sought to be proved against him".
28.However, in case Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, the Supreme; Court referred to and relied upon Hanumant Vs. State of Madhya Pradesh, 1952 SCR 1091- AIR 11952 SC 343 and stated the five golden principles constituting the panchsheel of the proof of a case based on circumstantial evidence as follows:
29. (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that ....... the circumstances concerned 'must or should' and knot 'may be' established. There is not only a grammatical but a legal distinction between may be proved' arid 'must be or should be proved'..... 23
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they; should exclude every possible hypothesis except the one to the proved, and (5)there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
30. The following circumstances were pressed into service by the prosecution for establishing the guilt of the accused persons:-
1. First disclosure statement made by the accused Sandeep @ Kale on 22.7.07 and recovery of Pulsar motorcycle bearing no.
DL8SF 7367 and blood stained shirt belonging to above accused from the L1 liquor godown at Bahadurgarh.
2. Second disclosure statement of accused Sandeep @ Kale 24 made on 24.7.07 and recovery of one pistol and two live cartridges pursuant to said disclosure statement of the aforesaid accused on 24.7.07 from Sawda Road Kanjhawla from the Samadhi of one Jage Ram, beneath the bushes of Shehtoot tree.
3. Call details of the mobile phone of the accused Sandeep bearing no. 9911565267 in the name of Ramesh Chand father of accused Sandeep and call details of mobile no. 9212513406 in the name of accused Sandeep S/o Ramesh Chand alongwith the cell ID Chart of the said mobile phone on the date of incident i.e. 17.7.07 and the corresponding calls on the mobile number of deceased Ranbir bearing number 9212643926.
4. Disclosure statement of accused Parmeet @ Pehlwan and pursuant to said disclosure statement recovery of blood stained T- shirt of the accused Parmeet from one plot of land at Mundka.
31. After appreciation of the evidence, it has to be seen whether the prosecution has been able to prove the various circumstances beyond reasonable doubt, as enumerated above. Circumstance No. 1 & 2 25
32. The Circumstance no.1 & 2 are taken up together as they are interconnected with each other.
PW19 IO Inspector Sandeep Bayala has stated in his deposition that on 22.7.07 complainant Anil Kumar was called to Police Station by him on certain enquiries. In the mean while he received a secret information that accused Sandeep @ Kale may come near petrol pump, Bawana. Thereafter, he alongwith his staff consisting of ASI Shiv Narain, Constable Anil, Constable Ramesh and complainant Anil Kumar reached near Petrol Pump, Bawana at about 5.30p.m., there accused Sandeep @ Kale was already present and on the identification of the complainant he was apprehended and interrogated and after interrogation he made a disclosure statement regarding his involvement in this case, and he was arrested. Thereafter, his disclosure statement Ex.PW1/C was recorded. Pursuant to his disclosure statement accused Sandeep@ Kale lead the police party to L1 Liquor godown Bahadur Garh and from there he got one Pulsar motorcycle bearing registration No. DL8S AF 7367 recovered, which was used in the commission of 26 offence, which was also seized vide memo Ex.PW18/B. He also got recovered one shirt of gray colour, having blood stains and on the pocket of which words "Waves Cargo" was written, which had been kept in the space between speedometer and console of the motorcycle and the same was also seized.
33. He further deposed that on 24.7.07 accused Sandeep made a further disclosure statement which is Ex.PW18/D and thereafter pursuant to the said disclosure statement, he got recovered the pistol which was used in the commission of the offence and pursuant to his second disclosure statement accused Sandeep lead the police party at Sawada Road Kanjhawla and there was a Samadhi of Jage Ram and there was a Shehtoot tree near the said Samadhi and on the pointing out of accused one pistol(country made) was recovered from the step(Tana) of the said Shehtoot tree. On checking the megazine of said pistol, it was found to contain two live cartridges and the same was seized and the sketch(s) of the pistol and the cartridges were also prepared and the same were seized.
27
34. PW18 ASI Shiv Charan has corroborated the testimony of PW19 IO Inspector Sandeep Bayala. Regarding the first disclosure statement made by the accused Sandeep on 22.7.07 and pursuant to the said disclosure statement, the recovery of Pulsar motorcycle and one blood stained shirt belonging to the accused Sandeep from a liquor godown at Bahadur Garh, was affected. The testimony of PW18 ASI Shiv Charan converges with the testimony of PW19 IO Inspector Sandeep Bayala on the aspect of disclosure statement and the recovery of motorcycle and blood stained shirt at the instance of accused Sandeep on 22.7.07.
35. The testimony of PW18 also converges with the testimony of PW19 regarding the recovery of one country made pistol and two live cartridges at the instance of accused Sandeep @ Kale pursuant to his second disclosure statement made on 24.7.07 from the Samadhi of one Jage Ram Sawda Road Kanjhawla. The other recovery witnesses namely constable Anil and constable Ramesh were not examined by the prosecution to avoid repetition.
36. In the cross-examination PW19 has admitted that he had 28 visited the scene of crime and had minutely observed the same but he did not notice any tyre mark of the motorcycle around the spot and the crime team had also not lifted nor found any tyre mark of the motorcycle at the spot. He also admitted in his cross- examination that he does not remember the time when they left Bahadur Garh on 22.7.07 and that they did not make any arrival entry at P.S. Bahadur Garh and he had gone in Govt. Gypsy to Bahadur Garh.
37. The log book was maintained but he had not placed the same on record and he does not know, whether the L1 liquor godown at Bahadur Garh is owned by the Govt. nor he can say that it is under the Excise Department, and he can not say whether there was a guard posted at the said godown always and he had not sought any permission from the Excise Department for going inside the godown. He had also not called any public person or any official of the Excise Department before affecting the recovery of motorcycle and the shirt from the godown and he can not tell the postal address of the said godown. He admitted as correct that said 29 godown is surrounded by number of shops and house and that nobody was called from those houses and shops to join investigation and that after affecting the recovery no local police man from P.S. Bahadurgarh was called and that they had not tried to put on the said shirt of accused Sandeep after recovery of the same. He also admitted that it was correct that the shirt was found kept on the wiser of the Helmet and was visible as well as accessible to all.
38. PW18 in his cross-examination has also stated that he does not know whether L1 liquor godown was a Govt. or private. No permission was sought for going to the said godown from the concerned Department. He does not know who was the incharge of the said godown. No entry was made at the gate for going inside the godown. He can not tell the postal address of the godown and he also admitted that there were number of shops and residence on the Jhajjar Road near the godown. Nobody was joined before going to the godown. He also admitted that P.S. Bahadur Garh is near the godown and no departure entry was made at P.S. Bawana before 30 going to the godown and he also admitted that the shirt Ex.P14 was not made to be worn by the accused and no siteplan or recovery was made by the IO in his presence.
39. PW19 IO Inspector Sandeep Bayala in his cross-examination has also stated that he had not made any request to the court during the police custody remand of accused Sandeep that they may be allowed to take the blood sample of the said accused, as they had recovered a blood stained shirt, and he also admitted that the said shirt was neither recovered from the house of the accused nor from his body.
40. In the present case, both the PW18 and PW19 in their cross- examination have admitted that no public person was joined at the time of recovery of the motorcycle and blood stained shirt belonging to the accused Sandeep from L1 liquor godown at Bahadur Garh. Even no official of the Excise Department was joined in the investigation nor any log book or the register was produced by the IO, which could conclusively show that they had indeed gone to the said place for affecting the recovery of the motorcycle and shirt. 31
41. Further the IO PW19 and PW18 had never tried to put the said shirt on the accused Sandeep, so as to find out whether the said shirt fitted him as per his size. Neither the blood samples of the accused Sandeep were taken by the IO and it can be possible that the blood stains found on the said shirt, could be that of the said accused itself and PW19 has also admitted that the shirt was kept in the wiser of the Helmet and it was visible as well accessible to all. Further the, IO had not verified how the accused Sandeep could park his motorcycle inside the liquor godown which is a Govt. property belonging to the Excise Department and who were the persons who had allowed him to park such motorcycle in the said godown.
42. PW18 ASI Shiv Narain has also admitted in his cross- examination that P.S. Bahadurgarh was nearby the godown, but no official of P.S. Bahadurgarh was associated with the recovery proceedings for the reasons best known to the IO. Further PW19 and PW18 both have admitted in their cross examinations that there are number of shops and houses surrounding near the said 32 liquor godown, bot no public person was joined in the investigation(s) to lead credibility to their recovery. Ld. Defence counsel for the accused Sandeep has relied upon a judgment 1998(I) A.D. Delhi, 468 (Supra) in which also there were no efforts made by the IO to join independent witnesses to the recovery and no action was taken against those persons who refused to join the recovery which was not appreciated by the Hon'ble Court in the said judgment. Further the Ld. Defence Counsel has relied upon the judgment 1988(2) RCR page 421 (Supra) wherein it was held that where large number of persons were present at the time of recovery, yet no independent witnesses were produced and no attempt was made to join independent witnesses. The statement of official witnesses could not be relied upon in these circumstances. Ld. Defence counsel has also relied upon the judgment 1988(CC) Cases 456 Delhi High Court (Supra), wherein it was held in para 23 & 24 as under:
23. The only piece of evidence which can be read against the accused is that when arrested on 33 30th of April 1983, he was found wearing blood stained clothes (kurta Ex.P3 and pyjama Ex.P4). On analysis of the blood found on the clothes it matched with the blood group "B" of the deceased.
There is no doubt that this fact by itself raises a strong suspicion against him. However, it cannot be made the basis of conviction as the prosecution has failed to prove that the blood groups of the accused is not "B" as well. The probability of two human beings having the same blood group cannot be ruled out, especially, as his blood sample was not got analysed. The possibility that a labourer or an agriculturist like the accused having his own blood stains on his clothes cannot be ruled out. We have examined the clothes Ex.P3 and Ex.P4. Those are not blood splattered. It seems from the cut marks that kurta had two or three stains and pyjama about four. We are of the view that the onus to disprove the charge framed against him did not shift only because of the presence of a few blood stains on his clothes.
24. In the present case a false witness, the only eye-witness, has been introduced by the 34 prosecuting agency. We have discarded his testimony from consideration. The second circumstance, i.e., the circumstance of recovery of the spade at the instance of the appellant has also been held to be doubtful for the reasons discussed above. The strong suspicion on account of matching of the blood group by itself cannot be considered in the facts of this case to establish the charge.
43. I am of the considered opinion that the aforesaid judgments are also applicable to the facts and circumstances of the present case, as regarding the recovery of motorcycle and blood stained shirt from Bahadurgarh, IO had made no worthwhile efforts to join any independent recovery witnesses despite their availability in abundance nor any official of P.S. Bahadur Garh was involved in the said recovery, nor any official of the Excise Department was joined in the recovery proceedings, nor the record from the liquor godown was produced to show that the police party had indeed visited the said liquor godown on 22.7.07. Further PW19 IO Inspector Sandeep Bayala has admitted that the shirt was found 35 kept inside the Wiser of the Helmet and it was visible and accessible to all and he has also admitted that no blood sample of the accused Sandeep was obtained or that he was not made to wear the said shirt. In these circumstances, the recovery of motorcycle and blood stained shirt from the liquor godown at Bahadur Garh is highly doubtful, and the statement of PW18 and PW19 in this regard can not be relied upon, therefore, the prosecution has failed to prove the circumstance no.1. Circumstance No.2
44. Regarding the circumstance no.2 IO PW19 Inspector Sandeep Bayala in his cross-examination has stated that accused Sandeep was in their lock-up on 23.7.07 in the morning, and that it was correct that whenever any accused was taken from the lock-up for somewhere else for investigation(s) outside the police station, then a DD entry is recorded regarding the said fact and on 23.7.07 they had made a DD entry regarding the fact that accused Sandeep was taken from the police station for investigation, but he can not tell the DD number nor he can tell the name of the duty officer and he also 36 admitted that it was correct that in the present case file no such DD entry had been placed. He also admitted that he can not tell at what time on 24.7.07 accused Sandeep was taken out from the lock up for taking outside the police station, nor he can tell the name of the duty officer, though, he had made a departure entry, nor he had placed the same on the case file, and they had left in the Govt. vehicle on the same day and they had reached the Samadhi at about 4.30p.m, and it was broad day light and the Samadhi was at a little bit secluded place from the road.
45. Though, it was on the main road, but it was not a very busy one. Some public persons were passing by at that time. He had not served any notice on the descendants of Jage Ram before leaving the police station. He had also admitted as correct that he knew regarding the place where the said Samadhi was situated before leaving the P.S. He also admitted that they had not given any notice U/s 187 IPC to any public persons, who refused to join the investigation nor they had called the Pardhan of the village or the family of Jage Ram before affecting the recovery and he also 37 admitted that he had not called the crime team or the FSL Expert at the time of recovery from Samadhi and he did not notice any finger prints on the said pistol and he had not called any expert after reaching the Police Station to develop or observe any finger prints on the same. He admitted that no finger prints of the accused Sandeep were found on the pistol and that the postmortem report was obtained lateron after the recovery of pistol, but the pistol was not shown to the Autopsy Surgeon, though, he stated that the same was sent to FSL.
46. PW18 ASI Shiv Narain regarding the recovery of pistol has admitted in his cross-examination that no person from the family of Jage Ram was called prior to the recovery of country made pistol and cartridge and no person from the village was called to join the investigation, as he stated that the village was far off and he also admitted that they had not called any FSL or Finger Prints Expert for the recovery of country made pistol and cartridges and SHO/IO had not called any finger prints expert to develop the chance prints.
47. From the aforesaid deposition of PW18 and PW19 in their 38 cross-examination wherein both of them have admitted that no public witness was joined in the recovery of said pistol and cartridges allegedly at the instance of accused Sandeep, pursuant to his second disclosure statement on 24.7.07. In view of the aforesaid judgment relied upon by the Ld. Defence Counsel Pawan Kumar Vs. State (Supra), the prosecution version regarding the recovery of the pistol and live cartridges from the Samadhi of Jage Ram becomes doubtful, though, there was no need on the part of the police officials to join the descendants of Jage Ram in the recovery proceedings, but it was imperative on their part to join some independent public witnesses in the said recovery to lead assurance to their versions.
48. Ld. Defence Counsel has also relied upon the judgment 2003(2) JCC 827 (Supra) in which it was held in Para 12 & 13 as under:
12. The inference to be drawn where as incriminating articles is recovered at the pointing out of an accused from an open place accessible 39 to all was considered by us in Crl. A./No./685 of 2001 Salim Akhtar @ Mota v. State of Uttar Pradesh decided on 9.4.2003 and it was observed as under:-
"In Sanjay Dutt v. State through C.B.I., Bombay, 1994(5) SC 540 it has been held by a Constitution Bench that with a view to hold an accused guilty of an offence under Section 5 of TADA, the prosecution is required to prove satisfactorily that the accused was in conscious possession, unauthorisedly in a notified area of any arm or ammunition of the specified description. In Trimbak v. State of MP, AIR 1954 SC 39 recovery of certain stolen articles was made at the pointing out of the accused and on that basis he was convicted under Section 411 IPC by the High Court. Reversing the judgment it was held by this Court that when the field from which the ornaments were recovered was an open one and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these articles. It was further held that the fact of recovery by the accused is 40 compatible with the circumstance of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their whereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession of these articles. In Raosaheb Halu Killedar v. State of Maharashtra (1995) 3 Crl. Law Journal 2632 the accused had made3 a disclosure statement and had led the police party to a place behind a mill, pointed out the place and himself removed the earth and from a pit about 6 inches deep recovered a revolver loaded with a live cartridge wrapped in a polythene bag. It was held by this Court that the statement made by the accused was capable of an interpretation that the appellant had the knowledge about the concealment of the revolver at the particular place from where it was got recovered and not that he had concealed the same and therefore it was not possible to say conclusively and beyond a reasonable doubt that the appellant had conscious possession of the revolver and the cartridge. This principle was 41 reiterated in Khudeswar Dutta v. State of Assam (1998) 4 SCC 492 and it was held that mere knowledge of the accused that incriminating articles were kept at certain place does not amount to conscious possession and conviction under Section 5 of TADA was set aside."
13. In our opinion the principle laid down above is clearly applicable here and accordingly it is not possible to hold that A-4 was in possession of the revolver and cartridges which were recovered on 3.5.1988. His conviction, therefore, deserves to be set aside.
The said judgment to my mind is squarely applicable to the facts and circumstances of the present case, as the fact of recovery of the said pistol and live cartridges from the said place allegedly at the instance of the accused is also compatible with the circumstance of somebody else having placed the said articles there and the accused somehow acquiring about the whereabouts of the said articles having been kept at the said place, and therefore the said fact of discovery cannot be regarded as conclusive proof 42 that the accused was in possession of those articles.
49. In any case, as discussed above in the present case, the IO had not made any conscious efforts to join any independent witnesses to lead assurance to the version of the prosecution, therefore, the recovery in any case is vitiated and is doubtful. Further, the IO made no conscious efforts to call any FSL expert at the spot or the Finger Prints Expert to the spot who could have taken the finger prints lying on the said pistol, so as to connect the accused with the possession of the said pistol and the live cartridges. Further the IO made no efforts to show the said pistol to the Autopsy Surgeon during the evidence of the Autopsy Surgeon in the court or before that, as the same could have facilitated the Autopsy Surgeon in giving his opinion regarding the nature of injuries sustained by the deceased having caused from the said weapon of offence. In any case, the testimony of PW13 Autopsy Surgeon Dr. V.K. Jha is shocking to say the least, as on the one hand the said witness in his examination in chief had found following injuries on the body of deceased:
43
1. lacerated wound on left chin just below lateral angle of mouth on left side, circular in shape 1cm.x .5cm, abraded collar present all around (entry wound of firearm),
2. lacerated wound on left temporal region 1cm.x 0.5cm. Margin everted no burning singing or tattoing present(exit wound of firearm injury no.1)
3. lacerated wound on back of chest right side 8cm lateral to midline 1cm.x 1cm. Abraded collar present (entry wound of firearm)
4. lacerated wound present on front of chest right side placed below right nipple. (exit wound of injury no.3). Margin are everted.
50. The Autopsy Surgeon in his opinion regarding the cause of death has stated that the cause of death was due to combined effect of Coma and hemorrhagic shock consequent to fire arm injuries, but in his cross-examination he had stated that it was possible that the hole on the front side of the T-shirt was possible with Sua and Jelly and possibility of the hole on the back of the T- shirt can not be ruled out from iron rod or like same dimensions of any pointed weapon. This deposition of this witness of PW13 in his 44 cross-examination shows that either the said Autopsy Surgeon does not come prepared to the court, or he was totally deficient in the knowledge of Forensic Medicine. In both the cases, if such kinds of Forensic Experts are allowed to conduct the postmortem(s) then the fate of those cases can be well imagined, as it may impair the wheels of justice. The manner in which Dr. V.K. Jha has deposed in the court in this case leads to bad impression on his competency as an Expert Forensic witness.
51. Though PW22 Dr. K.C. Varshney has deposed in his examination that he found that the improvised pistol mark F1 which was sent to him was in working order and the test fire was conducted successfully. The cartridges sent to him mark A1 and A2 were live and one cartridge mark A1 was test fired through the improvised pistol mark F1 and the test fired cartridge case was marked as TC1. The cartridge cases marked EC1 and EC2 were fired empty cartridges. The individual characteristics of firing pin marks present on EC1 and EC2 and on test fired cartridge case TC1 were examined and compared under the comparison 45 microscope and were found identical. Hence, he was of the opinion that EC1 and EC2 had been fired through the improvised pistol mark F1 and nothing has come out in his cross-examination which could lead to any doubt on his testimony or his competency to depose as a Ballistic Expert. However, as discussed above, since the recovery of pistol and two live cartridges pursuant to the disclosure statement of accused Sandeep has been held to be not proved for the reasons discussed above. The report of the Ballistic Expert does not improve the case of the prosecution, as the recovery itself has not been satisfactorily proved by the prosecution. In these circumstances, there is nothing to connect the accused Sandeep with the said weapon of offence i.e. pistol.
52. In any case, even if for the sake of arguments it is believed that the said pistol and live cartridges were validly recovered at the instance of the accused Sandeep pursuant to his disclosure statement, even then it has not been proved by the prosecution by any bit of evidence that it was accused Sandeep @ Kale, who had used the pistol and had caused fatal injuries on the body of 46 deceased Ranbir. Though, the prosecution has been able to prove by the testimony of PW2 ASI Satyavir Singh and the IO PW19 Inspector Sandeep Bayala that the IO PW19 had recovered one empty cartridge from the back seat of the car and one empty cartridge near the feet of deceased Ranbir and one Sikka/bullet, which were also seized by the IO. Despite the fact that PW2 ASI Satyavir Singh had been declared hostile by the Ld. Public Prosecutor on the factum of recovery, but it does not in any way whittle down the case of the prosecution, as the said recovery of empty cartridge(s) and bullet has also been corroborated by the testimony of PW3 Constable Ram Niwas.
53. However, it is equally true that since these two police officials i.e. PW2 ASI Satyavir Singh and PW3 Ct. Ram Niwas alongwith the IO had reached the spot immediately after the incident of firing, wherein one person had been killed, therefore, the reluctant of public persons to join themselves in the recovery proceedings on 17.7.07, in these circumstances can well be imagined and no fault can be attributed to the IO for non joining the public persons at the 47 time of initial recovery of empty cartridge and bullet from the Satro car of the deceased, as the said incident of firing and death would have shocked everyone in the vicinity.
54. However, as discussed above, since the prosecution has failed to satisfactorily prove the recovery of the pistol and two live cartridges at the instance of accused Sandeep from the Samadhi of one Jage Ram, therefore, the circumstance no.2 is also held not proved by the prosecution.
Circumstance No.3
55. Regarding the circumstance no.3, the prosecution has examined PW8 Sh. M.L. Vijayan Nodal Officer Tata Tele Services and PW20 Sh. Pawan Singh Nodal Officer Idea Cellular Services.
PW8 has proved the records pertaining to the mobile No. 9212513406 which he has stated as per the records is in the name of Sandeep S/o Ramesh Kumar R/o Village Chhawla Mohalla Khurd, New Delhi, and he has also proved the call details dt. 17.7.07 which are Ex.PW8/A and he has also proved the Cell I.D Chart Ex.PW8/B and he has stated that as per their record Cell I.D 48 26610 was located at Najafgarh Gurgaon Road, Cell ID 28913 was located at Kanjhawla, Cell ID 28914 was also located at Kanjhawla and Cell ID 28915 was also located at Kanjhawla. PW20 Sh. Pawan Singh has proved the records pertaining to Mobile No. 9911565267 in the name of Ramesh Kumar S/o Randhir Singh and he has also proved the photocopy of the application form Ex.PW20/A and the identity proof regarding said mobile number is Ex.PW20/A and Ex.PW20/B. He has also proved the call details regarding the said mobile no. dt. 17.7.07 as Ex.PW20/B. He further proved the Cell I.D. Chart regarding the locations of their Cell Tower in Delhi as Ex.PW20/C.
56. From the aforesaid documents proved by PW20, it is clear that the mobile no. 9911565267 was in the name of Ramesh Kumar, the father of the accused Sandeep and as per the testimony of PW8, the mobile no. 9212513406 has been proved to be in the name of accused Sandeep. Both the aforesaid witnesses have been subjected to extensive cross-examination by the Ld. Defence Counsel, but nothing material has come out in their cross- 49 examination.
57. In any case, the evidence lead by the aforesaid witnesses PW8 and PW20 is scientific evidence based on the record kept by the Cellular companies in the regular course of their official business and the chances of manipulation/interpolation are almost next to impossible.
58. Regarding the argument of Ld. Defence Counsel that the prosecution has failed to prove that the mobile no. 9212643926 was in the name of deceased, as no evidence has been proved by the prosecution in this regard, this argument of Ld. Defence Counsel is without any substance, as IO PW19 Inspector Sandeep Bayala has categorically deposed in his examination in chief that when he had visited the spot on 17.7.10 he had seized certain articles from the Santro Car alongwith that he had conducted the personal search of the dead body of Ranbir and from the personal search one brown colour purse was found in the back pocket of his pant alongwith two mobile phones make Nokia, which were found in the front pocket of his pant and prior to the sealing of two mobile phones which were 50 found in the front pocket of the pant of the deceased, the said phones were inspected by him and he noted down the frequent calling and call numbers. On the basis of the said inspection, he had requested the service providers through e-mail for furnishing the ownership pertaining to mobile No. 9212513406 and also that of 9911565267 and he also collected the call details of mobile no. 9212513406. Nothing has come out in the cross-examination of the IO on this aspect. As the recovery memos regarding the mobile phones were prepared on 17.7.07, therefore the chances of any manipulation are completely ruled out.
59. From the said statement of the IO it is clear that two mobile phones were recovered from the front pocket pant of deceased Ranbir Singh and one of the mobile phone was having no. 9212643926 and the IO before sealing the said mobile phones had noted down the frequent calling and call numbers from the said mobile phone, which gave him crucial leads in arresting the accused persons in the present case, therefore, whether the said mobile phone was in the name of the deceased is not relevant to 51 the controversy in question. From the said testimony, it is clear that said mobile no. 9212643926 was found in possession of the deceased at the time of his death. Therefore, the said mobile phone can be said to be belonging to the deceased as none else had claimed or stated any claim over it. Since, the possession of the said mobile phone was found in the body of the deceased and from the call details of the mobile no. 9212513406 in the name of the accused vide call details Ex.PW8/A, it is clear that the accused Sandeep had made a number of calls on the telephone of the deceased between 5.24p.m on 17.7.07 till 7.20p.m on said date and the said calls also showed the location of the nearest cell tower, through which calls were facilitated to be located at Kanjhawla, which is admittedly near the place of occurrence or around the place where the incident took place.
60. The call details of mobile No. 9911565267 which has been proved to be in the name of the father of the accused Sandeep also shows that many calls had been made on both the mobile numbers i.e. 9212513406 in the name of the accused and the said mobile 52 no. 9911565267 between 7.01p.m and 7.02p.m and the cell I.D of the said mobile phone was also as that of Kanjhawla bearing cell I.D No. 2037 which also matches with the places where the incident took place or the place of occurrence, as the cell I.D is also of Kanjhawla and the incident also took place at Kanjhawla. However, the said evidence lead by the prosecution though, scientific in nature does not conclusively proves that the accused persons were present at the spot of occurrence as PW8 Sh. M.L. Vijayan in his cross-examination has stated that the radius of a particular cell tower can be maximum upto 5-6km and similarly, PW20 Sh. Pawan Singh in his cross-examination has stated that the range/radios of the particular tower depends upon the site where it is located, it may be 1km. or upto 3 km.
61. In view of the aforesaid cross-examination of both the Nodal Officers who have proved the call details and the Cell I.D(s), it is clear that radius of a particular tower varies from 1-6 km. Therefore, in such a large radius or area covered by the particular cell Tower, it can not be conclusively said or pin pointed that the accused 53 persons were indeed present at the spot or intimately close to it, at the time of incident on 17.7.07. Though, the aforesaid scientific evidence suggests and leads to strong suspicion that the accused Sandeep @ Kale might be involved in the incident in question, however, the aforesaid call details does not conclusively lead to the conclusion that it was the said accused, who had killed the deceased Ranbir. Though, this circumstance has been proved by the prosecution beyond doubt, consequently, this circumstance no.3 is decided in favour of the prosecution and against the accused persons Sandeep @ Kale.
Circumstance No.4
62. Regarding the circumstance no. 4, the testimony of PW12 H.C. Surender Kumar and IO PW19 Inspector Sandeep Bayala is relevant. PW19 IO Inspector Sandeep Bayala in his deposition has stated that on 23.7.07 the accused Parmeet @ Pehlwan was arrested from main bus stand of village Dariya Pur, Delhi and thereafter he was arrested and he made a disclosure statement vide memo Ex.PW12/J and he was also kept in muffled face and 54 thereafter he lead the police party to vacant plot of Sanjay at Mundka and there he pointed out towards polythene which was lying by the side of the wall. The said polythene was containing T- shirt having blood stains, which as per the disclosure statement of the accused he was wearing at the time of commission of offence and the same was seized vide seizure memo Ex.PW12/K. Same is the testimony of PW12 H.C. Surender Kumar, who has also deposed on the same lines as has been deposed by PW19 IO Inspector Sandeep Bayala, regarding the arrest of the accused Parmeet @ Pehlwan who had been arrested at th instance of accused Sandeep and he has also deposed regarding the making of disclosure statement by accused Parmeet and the said accused having leading the police party to village Mundka and getting recovery of blood stained T-shirt from a plot which was seized.
63. However, the said PW12 HC Surender in his cross-examination has admitted as correct that place of recovery was an open place, no public person reached there and it was correct that there was a road adjacent to the plot, no public person was called to join the 55 investigation(s), though he stated that no public person was present near the spot and he also stated that it was correct that there are residential areas between their way from Dariyapur to Mundka. He also admitted that the plot was vacant one and anybody can have access to the same. Similarly, PW19 in his cross-examination regarding the accused Parmeet @ Pehlwan has stated that it was correct that public persons and vehicles were coming and going on the way and that it was correct that plot was vacant and was easily accessible to all. Sanjay the owner of the plot was not called to join the investigation(s), nor he was cited as a witness and they remained there for about 45 minutes.
64. He also admitted that he had not tried to put on the shirt to accused Parmeet and the shirt was not recovered from the house of accused Parmeet and that the shirt was not taken off from the person of accused Parmeet. He also admitted that blood sample of accused Parmeet was not collected by him. From the above discussion, it is the admitted case of PW12 and PW19 that no public person was joined in the investigation(s) during the recovery 56 of said T-shirt and as per Section 100 of the Criminal Procedure Code, no public person was joined or was any notice on his failure to join the investigation(s) and it is settled law that in such cases public persons or independent witnesses should be joined, so as to lead assurance to the recoveries made by the police.
65. It has been held in judgment Anter Singh Vs. State (2004) SCC 657, that recovery from an open space would not always render it vulnerable. It was further held in this case that information leading to discovery of fact is one link in the chain of proof and other links must be forged in legally permissible manner. There was recovery of a pistol from an open space. Held, on facts, that the discrepancies and shortcomings in evidence considerably corrode the credibility of prosecution version.
66. It has also been admitted by PW12 and PW19 that the said place of recovery was accessible to all, therefore, such kind of recovery can not said to be a reliable one. Further, admittedly, the IO in this case had not sought for the blood sample of the accused Parmeet @ Pehlwan, nor he was made to put on the shirt, 57 therefore, it can not be conclusively said in these circumstances that the blood stains found on the said T-shirt were belonging to the deceased, and it is quite possible that the said blood stains may be of the accused only and since the recovery of the said T-shirt had been made from a public place, the possibility of access of other public persons to such place can not be ruled out and it can not be said that it is only the accused and the accused alone, who had placed the said T-shirt in the said plot of land from where it is stated to have been recovered by the accused and produced before the IO, as admittedly, the said T-shirt was not concealed below the surface of the land or underneath some article. In these circumstances, the recovery of alleged blood stained T-shirt at the instance of accused Parmeet @ Pehlwan has also not been satisfactorily proved by the prosecution. In these circumstances, circumstance no.4 has also not been proved by the prosecution.
67. From the aforesaid detailed analysis of evidence lead by the prosecution, only the following circumstance has been clearly established:-
58
3. Call details of the mobile phone of the accused Sandeep bearing no. 9911565267 in the name of Ramesh Chand father of accused Sandeep and call details of mobile no. 9212513406 in the name of accused Sandeep S/o Ramesh Chand alongwith the cell ID Chart of the said mobile phone on the date of incident i.e. 17.7.07 and the corresponding calls on the mobile number of deceased Ranbir bearing number 9212643926.
68. Now, it has to be seen whether from the aforesaid circumstance, which has been established by the prosecution beyond any sort of doubt, whether the circumstance so established unerringly points towards the guilt of the accused Sandeep @ Kale, and whether the circumstances taken collectively are incapable of explanation of any reasonable hypothesis, save that of guilt of the accused Sandeep @ Kale, and whether the circumstances proved by the prosecution form a chain so complete, so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused Sandeep @ Kale.
69. The afore circumstance proved by the prosecution does not 59 lead to an inference, that accused Sandeep @ Kale alone had committed the offence, as there are lot of links missing in the prosecution chain of circumstances. The benefit of which must go to the accused, even at the risk of repetition. The prosecution has failed to prove the following major circumstance(s).
1. It was the primary duty of the prosecution to lead by positive evidence on the record, that the accused Sandeep pursuant to his first disclosure statement got recovered a blood stained shirt and motorcycle from godown at Bahadurgarh and that the said blood stained shirt belonged to the accused Sandeep and further that the said blood stained shirt carried the blood stains of the deceased, and not that of accused Sandeep, as no blood sample of the accused Sandeep had been taken during the trial, to rule out the possibility that the said shirt carried blood stains of the deceased only, in any case, the said recovery has not been satisfactorily proved for the detailed reasons discussed above. 60
2. The prosecution has also failed to prove by leading cogent evidence that pursuant to the second disclosure statement of the accused Sandeep, he got recovered one pistol and two live cartridges near the Samadhi of Jage Ram at Sawda Road Kanjhawla, from the stem(Tana) of Shehtoot Tree on 24.7.07, for the detailed reasons already discussed above.
Further, even if the said recovery is held to be proved for the sake of argument, even then the said recovery is only a corroborative piece of evidence and it is not a substantive piece of evidence and the substantive evidence in this case was the evidence of PW1 Anil Kumar, who has turned hostile and has not supported the prosecution story a little bit despite lengthy cross-examination. And since the substantive evidence in this case is non existing, therefore, even if, the said corroborative piece of evidence is held to be a valid one even then it is difficult to lead to an inference 61 that it was the accused Sandeep @ Kale, who had fired upon the deceased Ranbir by killing him with the said pistol.
3. Further the prosecution has also miserably failed to prove the recovery of blood stained T-shirt of accused Parmeet @ Pehlwan from an open plot of land on 23.7.07 for the detailed reasons already discussed above, and prosecution has also failed to prove that the said T-shirt contained the blood stains of the deceased, as admittedly even the blood sample of this accused one was not taken during the investigation(s) to rule out that the said blood stains were of deceased only and not of the accused, as it is quite possible that two persons may have similar blood groupings.
4. Further the prosecution has not examined one of the most material witness in this case, namely, one Sudhir, who had made a call to the PCR from his mobile No. 9971202626 on 17.7.07 that some persons near 62 Kanjhawla Water Tank near the Property Dealer office had ran away after shooting one person. The said witness was one of the most material witness of the prosecution and for the reasons best known to the IO, he was neither cited as a witness, nor his statement U/s 161 Cr.P.C was recorded. He could have been an important witness of the prosecution, who could have thrown some light on the prosecution story, and rather the IO in his cross-examination has admitted that during the investigation(s) he had not examined the said witness, which is a fatal lapse on the part of the IO.
5. The deposition of Autopsy Surgeon is below par for the detailed reasons already discussed above. On one hand, the Autopsy Surgeon Dr. V.K. Jha PW13 in his examination in chief has stated that there were two entry wound(s) of fire arm found on the body of deceased as per his deposition discussed in para 49 63 and he had also stated that the cause of death was combined effect of coma and hemorrhagic shock consequent to fire arm injuries. At the same time in his cross-examination he stated that it was possible that the hole on the front side of the T-shirt was possible with the Sua and Jelly and the possibility of the hole on the back of the T-shirt can not be ruled out from iron rod or like same dimensions of any pointed weapon, which can not be so, in the case of fire arm injury, as the said Autopsy Surgeon has himself mentioned in his Autopsy Report Ex.PW13/A that there was abraded collar present around the entry wound of fire arm and it is trite/common knowledge that abraded collar is only caused by entry wound of fire arm/bullet, it is caused by the bullet at the place, where it enters the human body and due to friction heat, and resistance of human body as well as its elasticity an abraded collar or collar is found at the entry wound of human body and such a 64 collar can not be caused by Sua/Jelly or similar like weapon, nor the exit wound in this case can be called by rod or weapon of similar dimensions. It seems that Dr. V.K. Jha is either totally deficient in his knowledge of Forensic Medicine or he needs further brushing up of his medical knowledge.
6. Further in the present case, the prosecution has only relied upon the circumstantial evidence which is in the form of recovery pursuant to the disclosure statement of both the accused persons. Substantive evidence in this case is not existing as PW1 Sh. Anil Kumar has already turned hostile as discussed above in the afore going paragraphs and the recovery/discovery evidence is not satisfactorily/conclusively proved due to the aforesaid detailed discussion and further the evidence of discovery is not reliable on the probative scale where the probability of happening of any event is measured. Though, no doubt the circumstance no.3 65 proved by the prosecution leads to strong suspicion against the accused Sandeep @ Kale might be involved in the offence in question. As umpteen number of calls had been made from his mobile phone and that of his father to the mobile of the deceased very shortly before the incident, and the Cell ID also showed that the phone calls had been made from near the Kanjhawla area which also happens to be the place of incident.
70. But, at the same time, it has been held in judgment 2004(2)C.C. Cases (SC)355, that :-
"A strong suspicion, no doubt, exists against the appellant but such suspicion cannot be the basis of conviction, going by the standard of proof required in a criminal case. The distance between 'may be true' and 'must be true' shall be fully covered by reliable evidence adduced by the prosecution. But, that has not been done in the instant case. It, coupled with the circumstance unfolded by the evidence of PW3, the evidence of PW4 had been 66 believed, it would have gone a long way in substantiating the prosecution case. But, in the instant case, apart from the fact that the appellant was at his house on the morning of 20th April, 1996, there is no other circumstance whatsoever which connects the accused to the crime, though serious suspicion looms large about his involvement. The view taken by the Trial Court that the prosecution could not establish the complete chain of circumstances incriminating the accused is a reasonably possible view and the High Court should not have disturbed the same. Having regard to the state of available evidence, the benefit of doubt given to the accused by the Trial Court warranted no interference by the High Court".
71. Which judgment to my mind is squarely applicable to the fact and circumstances of the present case, though there is some suspicion or doubt, which exists against the accused Sandeep @ Kale, that he might have committed the offence in question, in view of the call details proved on the record by the prosecution regarding his mobile number and that of his father, but such suspicion cannot 67 be made a basis for the conviction of the accused going by the standard of proof required in a criminal trial, as in a criminal trial the prosecution has to prove its case against the accused beyond all sorts of reasonable doubt and suspicion however strong cannot take the place of proof. In view of the afore going discussion, there is nothing on the record to connect the accused Parmeet @ Pehlwan with the commission of the offence under section 302/307 IPC read with Sec. 27 Arms Act. Consequently, the accused Parmeet @ Pehlwan is acquitted of the aforesaid charge(s), and further the accused Sandeep @ Kale is also acquitted of the charge(s) U/s 302/307/34 IPC read with Sec. 25 Arms Act by giving him benefit of doubt. Both the accused persons be released from judicial custody, if not required in any other case. File be consigned to record room.
Announced in the open court. (Sanjeev Aggarwal) on 29.3.2010. Addl. Sessions Judge Rohini Courts: Delhi.