Delhi District Court
Sc No. 38/14 State vs . Sunny Etc. Page No. 1/30 on 24 March, 2015
IN THE COURT OF SH. NARESH KUMAR MALHOTRA,
ADDITIONAL SESSIONS JUDGE05, WEST, TIS HAZARI
COURTS, DELHI.
IN THE MATTER OF
SESSIONS CASE NO.38/14 & OLD SC.NO. 32/11
ID No. 02401R0129372011
FIR NO. 105/09
P.S. Moti Nagar
U/S 452/307/384/120B IPC
STATE
VERSUS
1. Sunny
S/o Sh. Tarsem Lal,
R/o D1/5A, Mansa Ram Park,
Uttam Nagar, Delhi.
2. Dhiraj
S/o Sh.Uttam Chand,
R/o A42, Mansa Ram Park,
Uttam Nagar, Delhi.
3. Suresh @ Rinku
S/o Sh. Prem Singh
R/o D22, Mansa Ram Park,
Uttam Nagar, Delhi.
4. Ashutosh Kaushik @ Ashu
S/o Sh.Prem Raj
R/o Y109A, New Roshan Pura,
Najafgarh, Delhi.
DATE OF INSTITUTION : 12.07.2011
DATE OF RESERVING THE ORDER : 24.03.2015
DATE OF DECISION : 24.03.2015
SC No. 38/14 State Vs. Sunny etc. Page No. 1/30
JUDGEMENT
1. The brief facts of the case is that on 03.05.2009 at about 7 PM, Insp.Jagminder Singh received an information through wireless set regarding firing at Moti Nagar. He alongwith Ct. Vijay Pal no. 904/W on his govt motorcycle no. DL1SN5367 reached at shop no. 11/161, New Moti Nagar, Delhi. Crowd of people were gathered there. ASI Jai Hind alongwith Ct. Lachhu were already present there and they produced DD no. 26A about the incident before Insp.Jagminder Singh. At the spot, inside the shop, two empty cartridges were found and one empty cartridge was recovered outside the shop. There was sign of firing on the wooden counter as well as on the Gutter. Crime team was called.
Statement of Jagpreet was recorded to the effect that he is Partner with Sh.Chander Prakash Luthra and running shop at 11/161, Neel Kanth Auto, New Moti Nagar, Delhi. At about 06:45 PM, he was sitting in the front room of the shop and behind him, on the back side of room with open door, the nephew of Chander Prakash Luthra namely Nitin @ Sunny was standing alongwith Sh. Sushil Kumar @ Suraj. Surender was also sitting there. He has further stated that in the meantime, from the main road, from the side of Milan Cinema, one thin boy having dark complexion opened the glass door of the shop and he took out the revolver from the right side pocket of his pant and fired towards him. He pushed Nitin @ Sunny and covered himself under the wooden counter. Another boy who was stout built having fair complexion SC No. 38/14 State Vs. Sunny etc. Page No. 2/30 also entered into the shop and fired upon him. He has further stated that the first boy had fired two shots on him which hit on the wooden counter. In the meantime, third boy who was also having revolver in his pant and he pushed both the boys outside the shop. The first boy also fired in the air. It is also stated by the complainant that he alongwith his companions chased the boys and one boy who was already sitting in the Car bearing no. DL2CL6792 Esteem Grey colour at the driver seat and they all fled towards Moti Nagar Chowk via temple. It is also mentioned that he and Nitin noted the number of vehicle. All the four boys were aged about 2530 years and he had seen the boys who had fired upon him and he can identify them. It is also mentioned that the above mentioned boys had tried to kill him by firing from revolver upon him. He escaped from the fire and two empty cartridges were found at the wooden counter and between the table and two signs of the fire were found on the wooden counter and one empty cartridge was found outside the door. One idol of god damaged due to the firing and one lead was found on the wooden counter.
2. On the basis of statement of the complainant, FIR bearing no. 105/09 was registered. Thereafter investigation was carried out. For tracing of the vehicle no. DL2CL6792, a message was flashed to the control room. Spot was photographed. Two empty cartridges were taken into possession on which 7.65 KF was mentioned. One empty cartridge was also found and on the back side of it, 7.65 KF was also mentioned. One bullet lead was found SC No. 38/14 State Vs. Sunny etc. Page No. 3/30 from the wooden counter. The empty cartridge and bullet lead were taken into possession and converted into pullanda. The damaged Idol of Brass and Silver was also taken into possession. Statements of the witnesses were recorded.
3. During investigation, the vehicle was found in the ownership of Sh. Kundan Singh S/o Sh. Sunil Pal. During investigation, it was found that the said vehicle was sold to Bunti Motor Rajapuri and again sold to Sh.Saurabh Malhotra, who again sold this vehicle to Sh.Pawan Kumar S/o Sh. Ram Sewak and during investigation, he had again sold this vehicle to Sh. Ashutosh Kaushik for a sum of Rs.60,000/ through Sunny. On 06.05.2009, accused Sunny S/o Sh.Tarsem was arrested. He was medically examined. He refused to participate in the TIP proceedings.
4. On 17.05.2009, Insp. Jagminder Singh received information from Crime Branch that vide DD no. 19B in case FIR no. 71/09, dt. 16.03.2009 U/s 25/54/59 A.Act, accused Dhiraj S/o Sh.Uttam Chand, Ashutosh Kaushik @ Ashu and Suresh @ Rinku have been arrested and they have confessed regarding their involvement in the present case and from their possession, pistol and Esteem Car were recovered. Confessional statement of accused Ashutosh, Suresh and Dhiraj were recorded and they disclosed that they had fired on the complainant to extract a sum of Rs.1 lac on the asking of Pankaj Baba. Accused Pankaj Baba was not arrested during investigation. FSL result was obtained and as per result of FSL, Ex.EC1 to Ex.EC3 have not been fired from the pistol 7.65 mm bore.
SC No. 38/14 State Vs. Sunny etc. Page No. 4/305. Thereafter, the trial was committed before the court of Sessions. Charges for the offences punishable U/s 120B IPC r/w Section 307/384 IPC; 384 IPC r/w Section 120B IPC; 307 IPC r/w Section 120B IPC and 452 IPC r/w Section 307/120B IPC were framed against all the accused persons and a separate charge for the offence U/s 25/27 A.Act was also framed against accused Dhiraj on 07.10.2013 by my Ld.Predecessor, to which they pleaded not guilty and claimed trial.
6. To prove its case, prosecution has examined as many as 10 witnesses i.e. PW1 Sh.Subhash Chander Malhotra; PW2 Sh.Kundan Singh Rathod; PW3 Sh.Jagpreet Singh; PW4 Sh.Chander Prakash Luthra; PW5 Sh. Surender Kumar; PW6 Sh.Nitin Luthra; PW7 Sh.Sushil Kumar; PW8 Retired ASI Jai Hind Singh; PW9 Sh.Rishi Pal and PW10 Sh.Mohinder Virat.
7. PW1 Sh.Subhash Chander Malhotra has produced before the court the photocopies of documents of Car no. DL2CL6792, which are Mark PW1/A1 and Mark PW1/A2. He has further stated that the aforesaid vehicle was lateron sold to one Pawan Gupta R/o DDA Flat no.5, Sector13, PocektA, PhII, Dwarka, New Delhi on 31.12.2008 by his son and photocopies of cash memo and delivery receipt are marked as Mark PW1/B1 and Mark PW1/B2.
This witness was again appeared on 30.07.2014 and produced the original documents of abovesaid marked documents and proved the same as Ex.PW1/A (earlier marked as Mark SC No. 38/14 State Vs. Sunny etc. Page No. 5/30 PW1/A.1); Ex.PW1/B (earlier marked as Mark PW1/A.2); Ex. PW1/C (earlier marked as Mark PW1/B.1) and Ex.PW1/D (earlier marked as Ex. PW1/B.2).
8. PW2 Sh.Kundan Singh has produced before the court the copies of the documents of Car No. DL2CL 6792 and stated that he had purchased Maruti Esteem Car No. DL2CL 6792 from Kapoor Fair Deal Car place, B2/14, Safdarjung Enclave, New Delhi on 06.06.2006 for a consideration of Rs. 1,65,000/ and it was a second hand car. He has further stated that he had further sold this car on 01.11.2007 to Bunty Motors, J33/34, Main Rajapuri Road, Uttam Nagar for a consideration of Rs. 70,000/ and he proved the photocopy of cash receipt dated 06.06.2006 as Ex. PW2/A1, photocopy of earnest money receipt i.e. with regard to the previous ownership of the vehicle as Ex.PW2/A2, payment receipt dated 22.11.2007 and 01.11.2007 issued by HDFC Bank and letter dated 01.11.2007 of HDFC Bank are Ex.PW2/A3, Ex. PW2/A4 & Ex.PW2/A5. This witness has further produced the photocopy of RC of above mentioned car which is in his name and the same is marked as MarkPW2/A, photocopy of insurance of previous owner which is marked as MarkPW2/B. The witness has also produced the photostate copy of Special Power of Attorney executed by him in favour of Mr. Pawan Gupta S/o Sh. R.S. Gupta, r/o Flat No. 5, PocketA, Sector13, DDA Flats, Dwarka, New Delhi for the purpose of releasing the vehicle on superdari to Pawan Gupta and the photostate copy of same is Mark PW2/C; the photostate copy of cash receipt regarding SC No. 38/14 State Vs. Sunny etc. Page No. 6/30 clearance of dues of the above car is Mark PW2/D, which is witnessed by the subsequent owner of the car Sh. Saurabh Malhotra and Sh. Pawan Gupta also signed the same.
The witness has also proved his signatures at point A on each page on Form35 (two sets), Form29 and Form30 (two sets), which are Ex.PW2/B, Ex.PW2/B1 and at point A & B on each page on Ex.PW2/C, Ex.PW2/C1, Ex.PW2/D & Ex. PW2/D1.
9. PW3 Sh.Jagpreet Singh has deposed that he knows Sh. Chander Prakash Luthra as he is his employer and he used to work at his shop of Auto sale purchase situated at 11/161, New Moti Nagar, Delhi. He did not remember date and month of the incident but it was year 2009 and those were winter days. He has further stated that his office is comprising one Hall and one partitioned room on the back side of the Hall and on that day, he was sitting on the front seat in his office and Nitin Luthra, nephew of Sh. Chander Prakash Luthra was standing in front of him and he was talking to Nitin Luthra, when suddenly, the main entrance door of office was opened and firing started in the office. He pushed Nitin Luthra @ Sunny as a result, he fell inside the other cabin. He has further stated that he saved himself while hiding himself under the table. Thereafter firing stopped within seconds and he came out from under the table but he could not see persons who were firing in the office. He could see only one Car going towards Moti Nagar Flyover. This witness has further stated that he did not remember the number and colour of the car. Many public SC No. 38/14 State Vs. Sunny etc. Page No. 7/30 persons were collected there at the spot and someone made call to 100 number. Crime team reached at the spot and spot was photographed. Local police officials met him and he told them the above mentioned facts, however, his statement was not recorded at the spot.
This witness has further stated that on the same day in the evening, he was called by the police and he told them that he cannot tell the descriptions of the persons who fired in the office. It is also stated by him that his statement was not recorded at the PS. He has further stated that after the abovesaid incident, he was called by the police on many times. Even on the subsequent meetings with the police, the police did not record his statement. However, his statement regarding the identifications of some of the persons who were apprehended by the police, was recorded. The witness has clearly stated that he cannot identify those persons whom he saw at the PS. This witness was declared hostile and crossexamined by the Ld.Addl. P.P.for the State and stated that he did not know what contents are mentioned in Ex.PW3/A. He has also denied the suggestion put by the Ld.Addl. P.P.for the State that he has stated before the IO in his statement that he was Sale Purchase partner of Sh.Chander Prakash Luthra and on 03.05.2009, at about 6.45 PM, when he was sitting in front room and Nitin @ Sunny, nephew of Chander Prakash Luthra was standing near to me, while Sunil Kumar @ Suraj and one Surenderji were sitting in rear room, when one boy of thin physique, Sanwla colour SC No. 38/14 State Vs. Sunny etc. Page No. 8/30 entered into their office from the side of Milan Cinema after opening the glass door and he took out revolver from right side of his pant and opened fire upon him. He has also denied the suggestion put by the Ld.Addl. P.P.for the State that he has stated before the IO in his statement that he pushed Nitin @ Sunny and took side of the wooden counter and another boy followed the first boy and the said boy was of good built and height and of fair complexion and he also took out a revolver and fired upon him, while the first boy made two fire upon him, which hit the wooden counter. He has also denied the suggestion put by the Ld.Addl. P.P.for the State that he has stated before the IO in his statement that third boy came behind of them and he was also putting one revolver in his pant, which was visible and he took both of them outside and while going outside, the first boy made fire in air and thereafter, he and his companions ran after them while raising alram. He has also denied the suggestion put by the Ld.Addl. P.P.for the State that he has stated before the IO in his statement that one boy was already sitting on staring in vehicle no. DL2CL6792 Esteem grey colour and they drove the vehicle towards Moti Nagar Chowk via Mandir side and the number of the vehicle was noted down by him and all the four boys were aged about 2530 years and they were also seen by him and his colleagues, who saw them through glass making firing. He has also denied the suggestion put by the Ld.Addl. P.P.for the State that he has stated before the IO in his statement that he and his colleagues identified them and on checking one bullet found hit SC No. 38/14 State Vs. Sunny etc. Page No. 9/30 the Mandir and those boys attempted to kill him while making fire with the revolver and legal action be taken against them. He has also denied the suggestion put by the Ld.Addl. P.P.for the State that he has stated before the IO in his statement that he somehow saved in this incident and two blank cartridges were found from between body of counter and table and two bullet marks on wooden counter and one bullet mark on the shutter and the cartridge case and one lead found and in this incident, the statue on right side of Mandir was damaged and those persons with the intention to kill him, made fire upon him.
The witness has further denied that the document i.e. site plan Mark PW3/A and seizure memo of cartridge case and bullet lead Mark PW3/B and pointing out memo Mark PW3/C, did not bear his signatures at point A, however he has admitted that the seizure memo of the parts of the Mandir Ex.PW3/B and pointing memo regarding accused Neeraj Ex.PW3/C, bears his signatures at point A respectively.
This witness has also denied the contents of his statement U/s 161 Cr.P.C. dt. 03.05.2009 Mark PW3/PX1 , wherein the facts regarding inspection of the spot, preparation of site plan, taking of photographs by Crime team and sealing the cartridge cases, bullet lead and parts of broken statue are mentioned.
This witness has also denied the contents of his statement U/s 161 Cr.P.C. dt. 11.05.2009 Mark PW3/PX2, wherein the facts regarding visiting the place of incident by the SC No. 38/14 State Vs. Sunny etc. Page No. 10/30 IO, other police officials and accused Sunny S/o Sh.Tarsem Lal R/o D1/5A, Mansa Ram Park, whose name was revealed to the witness on enquiry and accused Sunny made pointing out of the place of incident and pointing out memo prepared by the IO, which was signed by the witness and HC Lokender and it is also mentioned in the statement that witness correctly identified Sunny having curly hairs as the boy who was standing on second number and was firing upon witness and Nitin with mouser with his coaccused persons, are mentioned.
This witness has also denied the contents of his statement U/s 161 Cr.P.C. dt. 15.05.2009 Mark PW3/PX3, wherein the facts that on the day of incident when four boys were escaping in car no. DL2CL6792 after making the firing, one another boy of Sanwla Colour of height about 5/7 feet and some of front hairs were missing, was present there in Maruti Car no. 8545 or 8445 of green colour and he was watching the incident carefully and he left with his car with the boys who made firing and he suspect that that boy was also companion of those four boys and further it has been claimed by the witness that he can identify the said boys on seeing him, are mentioned.
He has also denied the suggestion put by the Ld.Addl. P.P.for the State that he has stated before the IO in his statement that on 19.05.2009, he made a statement to the police that the police officials alongwith accused Dheeraj S/o Sh.Uttam Chand R/o A42, Mansa Ram Park, Suresh @ Rinku S/o Sh.Prem Singh R/o D15, Mansa Ram Park, Uttam Nagar, Delhi, Ashutosh SC No. 38/14 State Vs. Sunny etc. Page No. 11/30 Kaushik @ Ashu S/o Prem Raj R/o Y109A, Prem Nagar, Roshan Pura, Delhi and their names were known to him on enquiry and he, Nitin, Sushil and Surender identified them that they were the persons who made fire upon them on 03.05.2009 and Dheeraj was ahead, who was followed by Sunny and Suresh @ Rinku and Dheeraj made fire upon him twice but he saved myself by the side of wood and one fire was made by Sunny and Suresh @ Rinku was also carrying one gun which was visible and the said gun was air gun and Ashutosh Kaushik @ Ashu was on the staring on DL2CL6792 and their one another companion was present in the said green colour Maruti Car and the above mentioned accused persons namely Dheeraj, Suresh @ Rinku and Ashutosh Kaushik @ Ashu made pointing out, with regard to which pointing out memos were prepared by the IO, which were signed by him as well as by Nitin. This witness has further denied the suggestion put by the Ld.Addl. P.P.for the State that the accused persons present in court today i.e. Sunny, Dheeraj, Suresh @ Rinku and Ashutosh Kaushik are the persons who came to their shop and made fire upon him and his friends with intention to kill them. This witness has further denied the suggestion put by the Ld.Addl. P.P.for the State that he has been won over by the accused persons and because of that, he is deliberately suppressing their identity and true facts of the case. This witness has further denied the suggestion put by the Ld.Addl. P.P.for the State that with intention to mis lead the court, deliberately he made statement that he did not see any of the accused persons.
SC No. 38/14 State Vs. Sunny etc. Page No. 12/30This witness has further denied the suggestion put by the Ld.Addl. P.P.for the State that in order to save the accused persons, he has deposed false and concocted facts before the court. This witness has further denied the suggestion put by the Ld.Addl. P.P.for the State that the contents of statement Ex. PW3/A, Mark PW3/PX1 to Mark PW3/PX4 were correctly recorded by the police on his dictation. This witness has further denied the suggestion put by the Ld.Addl. P.P.for the State that the writing on Ex.PW3/A was made in his presence, however he admitted the fact that when he put his signatures on Ex. PW3/A, it was having writing. He has further stated that he did not make any complaint in writing to any Sr.officers or any court of Law to the effect that the IO had taken his signatures on already written paper. The witness has further denied that he was not asked to sign on a already written paper i.e. Ex.PW3/A or that he put his signatures on it at point A only after the same was written by the IO on his dictation and contents thereof were read out to him. The witness has further denied that deliberately he was giving evasive replies to screen the accused persons.
10.PW4 Sh.Chander Prakash Luthra has stated that he is acquainted with Pankaj Baba @ Kaka @ Pandit as he gave evidence against him in a case in the year 2004. The said Pankaj Baba @ Kaka @ Pandit is a criminal. He had threatened him that he should not have deposed against him in that case and it would not be good for him. He never raised any kind of demands from him. He has further stated that he is the owner of office situated at 11/161, New Moti Nagar, Delhi. With SC No. 38/14 State Vs. Sunny etc. Page No. 13/30 regard to the incident of firing on 03.05.2009, Sh.Preet had made complaint to the police. On that day, he was out of Delhi. He did not come to know as to who was having hand in the incident of firing on 03.05.2009. Police recorded his statement and in that statement, he suspected over the said Pankaj.
This witness has turned hostile and crossexamined by the Ld.Addl. P.P.for the State, wherein he admitted that he had told to the IO in his statement that Pankaj Baba used to extort money from the businessmen and for extorting money he used to indulge in activities of firing bullets so as to enable him to get money from the businessmen. The witness has voluntarily stated that in the said 2004's case, Pankaj Baba demanded money from Sh. Rajeev Chawla and he stood witness in that case. He has also admitted in the cross examination done by Ld.Addl. P.P.for the State that he had stated to the IO in his statement that Pankaj Baba many times attempted to extort money from him after giving threats.
This witness denied the suggestion put by Ld.Addl. P.P.for the State that he has stated before the IO in his statement that on 03.05.2009 Pankaj Baba made firing at his office at 11/161, New Moti Nagar, Delhi alongwith other boys so that he would pay him money due to fear. He has also denied the suggestion put by Ld.Addl.P.P.for the state that he has not deposed the abovementioned fact due to fear of Pankaj Baba @ Kaka and his associates.
11. PW5 Sh.Surender Kumar has stated that he was doing a job at Neelkanth Auto and the name of the owner is Jagpreet Singh. Besides him, Jagpreet, Sushil Kumar and Sunny used to work at the said shop. He had worked at Neelkanth Auto for about 10 SC No. 38/14 State Vs. Sunny etc. Page No. 14/30 years and left his job about 34 years back. Presently, he is a sales executive in Ashok Leyland Company.
This witness has further stated that on 03.05.2009, he was working at Neelkanth Auto, Moti Nagar, Delhi and on that day, he and Sushil were sitting in the office and were playing game on laptop in back cabin. In the meanwhile, he heard shouting "Goli chali, Goli chali". He ducked down and after one or two minutes, when they came out, some public persons were saying Goli Chali. He did not see any person while making fire. There were bullet marks on the table, wall and Mandir (Temple) in the office. Police came there. Police started recording statements. This witness has further stated that his statement was not recorded by the police, however he had told his name, parentage and address to the police. He did not know what was being recorded by the police as he was in perplexed state of mind.
This witness was declared hostile and crossexamined by the Ld.Addl. P.P.for the State wherein he has stated that Jagpreet Singh used to lookafter the business and he used to do the writings in course of business and he used to distribute the salary to us. He has further stated in his crossexamination done by Ld.Addl. P.P.for the State that he did not know the accused persons who were standing in the court today. The witness has denied the suggestion put by the Ld.Addl. P.P.for the State that his statement was recorded by the police on his dictation and contents thereof were read out to him. This witness has denied SC No. 38/14 State Vs. Sunny etc. Page No. 15/30 the suggestion put by Ld.Addl. P.P.for the State in the cross examination that he has told the IO in his statement that on 03.05.2009 at about 06.45 PM, he was talking with Sushil Kumar and they were facing to the entry gate of the office as there was a glass partition and Nitin Luthra was standing behind the Jagpreet and the door of the room was opened and Jagpreet was sitting on the chair behind the counter, when one boy of thin physique, Sanwla Rang, height of about 5'6", cleaned shave and partition hair style (Beech ki maang), opened the main glass gate of the office and took out revolver from left side of his pant and fired towards Jagpreet Singh. This witness has denied the suggestion put by Ld.Addl. P.P.for the State in the crossexamination that he has told the IO in his statement that Nitin who was standing behind Jagpreet Singh while opening the door and Jagpreet Singh pushed Nitin back and took side of the counter and other boy of good built, fair complexion, curly hair of height about 5'5"
entered into the shop and he took out revolver and fired upon Jagpreet, while the first boy made two fires. This witness has denied the suggestion put by Ld.Addl. P.P.for the State in the crossexamination that he has told the IO in his statement that third boy of healthy built, sanwla colour of height about 5'5", holding revolver on his right side pant and he took both the boys outside and thereafter, the boy, who entered first made one another fire outside of the shop and after that he, Nitin, Sushil Kumar @ Suraj and Jagpreet ran outside, while shouting and one boy of healthy built of height about 5'6", who was sitting on SC No. 38/14 State Vs. Sunny etc. Page No. 16/30 steering grey colour esteem car bearing No. DL2CL6792 and they all saw the number and description of the person very well and that they can identify them, if produced before them. This witness has denied the suggestion put by Ld.Addl. P.P.for the State in the crossexamination that he has told the IO in his statement that all four boys ran away in the Maruti Esteem car towards Moti Nagar Chowk and all the boys in furtherance of their common intention made fire upon Jagpreet and Nitin with intention to kill them and that in this regard a PCR call was made, in response to which the IO and other police staff reached at the spot, inspected the spot and prepared site plan and got the spot photographed. This witness has denied the suggestion put by Ld.Addl. P.P.for the State in the crossexamination that the IO lifted three cartridge cases i.e. two from inside the shop and one from in front of the counter and all brass like were found outside the shop, adjacent to main glass gate on floor and some particles of the Mandir from the floor from left side wooden counter and one bullet lead was found from the wooden counter and seized by the IO after sealing the same and got the documents signed by Jagpreet.
This witness has denied the suggestion put by Ld.Addl. P.P.for the State in the crossexamination that on 15.05.2009, he made statement to the police that in the said maruti esteem No. DL2CL6792, one another boy other than the four boys, was of sanwla colour aged about 40 years, height about 5'7" slightly bald was present there in his green colour Maruti Car having number plate of 8545 or 8445 and he was SC No. 38/14 State Vs. Sunny etc. Page No. 17/30 keeping an eye on the circumstances and after escaping the four boys in the Maruti Esteem Car, he also fled in his Maruti Car and he can identify that boy also, who was the associates of those four boys. This witness has denied the suggestion put by Ld.Addl. P.P.for the State in the crossexamination that on 19.05.2009, he had told IO in his statement that police came alongwith three accused persons to their shop and name of the accused persons were known as (1) Dhiraj S/o Uttam Chand, R/o A42, Mansha Ram Park (2) Suresh @ Tinku S/o Prem Singh, r/o D15, Mansha Ram Park, Uttam Nagar, Delhi and (3) Ashutosh Kaushik @ Ashu S/o Prem Raj, r/o Y109A, Prem Nagar, Roshanpura, Najafgarh, Delhi and they were identified by him, Jagpreet, Nitin and Sushil. This witness has denied the suggestion put by Ld.Addl. P.P.for the State in the crossexamination that in the incident dated 03.05.2009 of firing upon Jagpreet and Nitin, inside the shop, the accused Dhiraj was ahead and he was followed by Sunny and behind him Suresh @ Rinku and the esteem car No. DL2CL6792, Ashutosh Kaushik @ Ashu was on steering and Dhiraj fired twice on Jagpreet and Nitin but they saved themselves by taking side of the wooden counter and Sunny made one fire from his pistol and Suresh @ Rinku was carrying one airgun in his pant and after going out from the shop Dhiraj made fire in the air. This witness has denied the suggestion put by Ld.Addl. P.P.for the State in the crossexamination that besides the above, one another associates of them was watching them from green colour Maruti No. 8445 or 8545 and after making fire SC No. 38/14 State Vs. Sunny etc. Page No. 18/30 they all ran away towards Moti Nagar Chowk and the police prepared documents regarding pointing out and got signatures of Jagpreet and Nitin.
This witness has denied the suggestion put by Ld.Addl. P.P.for the State in the crossexamination that the accused persons present in court i.e. Sunny, Dheeraj, Suresh @ Rinku and Ashutosh Kaushik are the persons who came to their shop and made fire upon him and his friends with intention to kill them. He has also denied that he has been won over by the accused persons and because of that, he is deliberately suppressing their identity and true facts of the case. He has also denied the suggestion put by Ld.Addl. P.P.for the State that with intention to mis lead the court, deliberately he made statement that he did not see any of the accused persons. He has also denied the suggestion put by Ld.Addl. P.P.for the State that in order to save the accused persons, he has deposed false and concocted facts before the court and contents of statement Ex.PW5/A, Ex. PW5/B & Ex.PW5/C were correctly recorded by the police on his dictation. He has also denied the suggestion put by Ld.Addl. P.P.for the State that he is deliberately giving evasive replies to screen the accused persons. He has also denied the suggestion put by Ld.Addl. P.P.for the State that he is deliberately not identifying the accused persons or that he has deposed falsely.
12. PW6 Sh.Nitin Luthra has stated that he did not remember the date, however, it was the month of May, 2009, he was present at his office situated at 11/161, New Moti Nagar, New Delhi15 SC No. 38/14 State Vs. Sunny etc. Page No. 19/30 from where he was doing business of sale purchase of commercial vehicles. On the day of incident, at about 5/6 PM, while he was present in his cabin of his office, suddenly he heard the noise of fire. After that, he came outside and saw that one of his associate Jagpreet Singh was hiding under the table and entered into his cabin and asked him to stay there. He heard 34 noise of fire. After sometime, he came outside but no one was present outside his office. Thereafter, he made call to his employer Sh. Chander Prakash Luthra and then called to the police at number 100. Police officials came there. It is noticed that sign of the fire was on the shutter as well as on the table of the office and one idol (Murti) kept in the Mandir of the office was also damaged due to the fire.
This witness was also turned hostile and crossexamined by the Ld. Addl. P.P.for the State wherein he has admitted that incident took place on 03.05.2009 and at the time of incident he was working with the Neelkanth Auto. He has also admitted that police made enquiries from him but he cannot say whether his statement was recorded or not. He has admitted that he had stated before the police that at the time of incident, Jagpreet Singh was sitting on the counter and he was standing near the door in the back room of the office. However, he has denied the suggestion put by the Ld.Addl. P.P.for the State in his cross examination that he has stated in his statement to the IO that one thin boy of 5'6" clean shave entered into their office after opening the glass gate and took out the revolver from his pant SC No. 38/14 State Vs. Sunny etc. Page No. 20/30 and made fire towards Jagpreet Singh. This witness has admitted that he bolted the door and saw that Jagpreet was hiding himself under the counter.
He has denied the suggestion put by the Ld.Addl. P.P.for the State in his crossexamination that he has stated in his statement to the IO that one another boy of height 5'5" fair complexion, curly hairs entered into their office and took out revolver and made fire towards Jagpreet. He has denied the suggestion put by the Ld.Addl. P.P.for the State in his cross examination that he has stated in his statement to the IO that the first boy made a fire outside the door while he was going outside. He has admitted that he alongwith Sushil @ Suraj and Surender who were in the back room and Jagpreet came outside and chased those boys and at that time, they were shouting. This witness has admitted that there was Esteem Car of Grey colour in which all boys fled away towards Moti Nagar chowk and he had stated to the police the number of the Car in which the accused persons fled away, but at the time of deposition before the court, he did not remember the registration number of said car. However, he has denied the suggestion of Ld.Addl. P.P.for the State that he deliberately not stated the Car number and he had stated to the police in his statement, the description of the person who was sitting on the driving seat of the said car.
This witness has further stated that he did not know the accused persons who are present in court today. This witness has further denied the suggestion of Ld.Addl. P.P.for the State that SC No. 38/14 State Vs. Sunny etc. Page No. 21/30 he was not identifying the accused persons present in court as he has been won over by the accused persons. He has admitted the fact in his crossexamination done by Ld.Addl. P.P.for the State that police came to the spot and inspected the spot and took the photographs of the spot and three fired bullets were recovered.
He has denied the suggestion put by Ld.Addl. P.P.for the State in his crossexamination that police recorded his statement on 15.05.2009, wherein he has stated that fifth boy was with the aforesaid boys and he was in a green colour Maruti Car, perhaps registration number of the said Maruti Car was either 8545 or 8445 and he also disclosed the description of the said fifth boy or that he had stated before the police that the fifth boy parked his car ahead of the Maruti Esteem Car of grey colour or that he had stated before the police that the fifth boy was the associate of the aforesaid four boys. He has further denied the suggestion of Ld.Addl. P.P.for the State that on 19.05.2009, accused Dheeraj, Suresh @ Rinku and Ashutosh @ Ashu, were brought by the police in the evening time at Neel Kanth Auto where he, Jagpreet, Sushil and Surender identified them as an assailants of incident happened on 03.05.2009. He has denied the suggestion of Ld.Addl. P.P.for the State that he has stated before the police that accused Dheeraj entered into their office first and made fire upon Jagpreet and himself and thereafter, accused Suresh @ Rinku entered into their office and made fire and he identified the accused Ashutosh @ Ashu as a person who was sitting on the staring of Maruti Esteem Car. This witness has SC No. 38/14 State Vs. Sunny etc. Page No. 22/30 further denied the suggestion of Ld.Addl. P.P.for the state that the police officials prepared the pointing out memo at the instance of accused persons namely Dheeraj, Ashutosh and Suresh @ Rinku on 19.05.2009.
13.PW7 Sh.Sushil Kumar has stated that on the day of incident, he was sitting in his office and heard the noise of firing and due to that, he became nervous. Police officials came there and made enquiries.
This witness was also declared hostile and crossexamined by the Ld.Addl. P.P.for the State wherein he has denied all the suggestions put to him regarding incident; regarding recording of his statement on 15.05.2009; regarding identification of accused persons on 19.05.2009 and he has also denied the suggestion that he is deposing falsely as he has been won over by the accused persons.
14.PW8 ASI Jai Hind Singh has stated that on 03.05.2009, at about 7:00 PM, one call was received in the PS that there was firing at shop No. 11/161, Neel Kanth Automobile, Moti Nagar and he was informed about it by the duty officer through phone. On receiving the information, he reached at the aforesaid spot and Ct. Lachhu of PS Moti Nagar came there and produced DD No. 26A, Ex.PW8/A to him. SHO PS Moti Nagar, ATS Inspector Jagminder Singh, ACP and other police staffs also reached at the spot. The DD No. 26A was thereafter, assigned to Inspector Jagminder Singh as per directions of the SHO for investigation. Inspector Jagminder Singh inspected the spot and prepared site SC No. 38/14 State Vs. Sunny etc. Page No. 23/30 plan. Inspector Jagminder Singh lifted two empty cartridges from the table and one empty cartridge from outside the shop. One lead i.e. bullet was lifted from the floor of the shop. Some broken pieces of idol of temple (mandir) of shop were also lifted by the IO from inside the shop. IO converted separate pullandas of the above articles and sealed with the seal of JSM and seized the pullandas through seizure memos which are already Ex.PW3/B and Mark PW3/B. IO prepared tehrir on the statement of complainant Jagpreet and gave the same to Ct. Vijay Pal for getting the FIR registered from PS Moti Nagar. The Crime Team reached at the spot and inspected the spot. This witness has identified the case property as Ex.PW8/P.1; Ex. PW8/P.2(colly.).
This witness was declared hostile and crossexamined by the Ld. Addl. P.P.for the State wherein he was confronted with statement Ex. PW8/PX from portion A to A, B to B and C to C. He has further stated in his crossexamination done by Ld. Addl. P.P.for the State that he might have stated the above facts to the IO in his statement and due to lapse of time, he could not recollect the same.
15.PW9 Sh.Rishi Pal has stated that on 22.02.2011, he was working as Addl. DCP West District and the IO of the present case Inspector Jagminder Singh of PS Moti Nagar produced the case file of the present FIR containing the case diaries, statements under Section 161 Cr.P.C of the witnesses and photocopies of the judicial file documents (challan) and FSL report, for seeking sanction u/s 39 Arms Act regarding accused Dheeraj s/o Utam SC No. 38/14 State Vs. Sunny etc. Page No. 24/30 Chand, r/o A42, Mansha Ram Park, Uttam Nagar, Delhi. He also produced the legal opinion given by the Prosecution Department in the present case regarding the sanction u/s 39 Arms Act about the articles i.e. empty cartridges.
This witness has further stated that he perused the opinion of the Prosecution Department and also examined case file of the present FIR containing the case diaries, statements under Section 161 Cr.P.C of the witnesses and photocopies of the judicial file documents (challan) and FSL report and he accorded sanction to prosecute the accused Dheeraj. The sanctioning order is proved as Ex.PW9/A.
16.PW10 Sh.Mohinder Virat, Addl.District & Sessions Judge cum Director NALSA has proved the TIP proceedings of accused Sunny as Ex.PW10/A; the application of the IO for conducting TIP of accused Sunny as Ex.PW10/B and application for providing copy of the TIP proceedings as Ex.PW10/C. This witness has also proved the TIP proceedings of accused Dheeraj as Ex. PW10/D; that of accused Suresh @ Rinku as Ex.PW10/E; that of accused Ashutosh Kaushik @ Ashu as Ex. PW10/F; application of the IO for conducting TIP proceedings of abovesaid accused persons as Ex.PW10/G and for providing copy of TIP proceedings as Ex.PW10/H.
17.I have heard ld. Addl. P.P. for the State, ld. Counsels for the accused persons and perused the record carefully.
18.PW3 Sh.Jagpreet Singh is the main witness and he deposed that he did not remember the number of the Car. He has also stated SC No. 38/14 State Vs. Sunny etc. Page No. 25/30 that his statement was not recorded at the PS and even on subsequent date, the police did not record his statement. This witness has also stated that he could not identify those persons to whom he saw at the PS. This witness was declared hostile and crossexamined by the Ld.Addl. P.P.for the State, however, nothing incriminating has come against the accused persons during his crossexamination done by Ld.Addl. P.P.for the State. This witness has identified his signatures at point A on Ex.PW3/A, however, he denied the contents of his complaint Ex.PW3/A. Even in the cross examination done by Ld. Addl. P.P.for the State, this witness has denied the whole incident and also denied his signatures on the documents i.e. Site Paln Mark PW3/A, Seizure memo of cartridge case and bullet led Mark PW3/B and pointing out memo Mark PW3/C, though he admitted his signatures on the seizure memo of the parts of the Mandir Ex. PW3/B and pointing out memo regarding accused Neeraj Ex. PW3/C. This witness had denied the statement U/s 161 Cr.P.C. dt. 03.05.2009 Mark PW3/PX1, statement U/s 161 Cr.P.C. dt. 11.05.2009 Mark PW3/PX2 and statement U/s 161 Cr.P.C. dt. 15.05.2009 Mark PW3/PX3 and submitted that he did not make any such statements to the police. This witness also denied the suggestion put by Ld. Addl. P.P.for the State that the accused persons namely Sunny, Dhiraj, Suresh @ Rinku and Ashutosh Kaushik, who are present before the court, are the persons who came to their shop and made fire upon him and his friends with intention to kill him.
SC No. 38/14 State Vs. Sunny etc. Page No. 26/3019.PW4 Sh.Chander Prakash Luthra has stated that he is acquainted with Pankaj Baba @ Kaka @ Pandit as he gave evidence against him in a case in the year 2004. He has stated that on the date of incident i.e. 03.05.2009, he was out of station and he did not come to know as to who was having hand in the incident of firing on 03.05.2009.
This witness was also declared hostile and cross examined by the Ld. Addl. P.P.for the State and admitted that Pankaj Baba used to extort money from the businessmen and for extorting money, he used to indulge in activities of firing bullets so as to enable him to get money from the businessmen. This witness has admitted that Pankaj Baba many times attempted to extort money from him after giving threats. This witness denied the suggestion put by Ld.Addl.P.P.for the State that on 03.05.2009, Pankaj Baba made firing at his office at 11/161, New Moti Nagar, Delhi. In the crossexamination done by Ld.defence counsel, this witness admitted that he had not received any threat from Pankaj @ Baba @ Pandit in respect of the present case and he came to know about the complaint of firing in the present case by PW3 Sh.Jagpreet Singh on telephone.
20.PW5 Sh.Surender Kumar has stated that he did not know anything. On 03.05.2009, he heard shouting "Goli Chali,Goli Chali". Even this witness denied to have made statement before the police. Even he did not know what was being recorded by the police. This witness denied the suggestions put by the Ld. Addl. P.P.for the State.
SC No. 38/14 State Vs. Sunny etc. Page No. 27/3021.PW6 Sh. Nitin Luthra has deposed that he was present at his office and heard a noise of fire and he saw that one of his associate Jagpreet Singh was hiding under the table and entered into his cabin and asked him to stay there. After some time, he came outside but no one was present outside his office. This witness also denied the suggestions put by the Ld.Addl. P.P.for the State.
22.PW7 Sh.Sushil Kumar has stated that on the day of incident, he was sitting in his office and heard the noise of firing. This witness was also declared hostile and crossexamined by the Ld.Addl. P.P.for the State, wherein he denied the suggestions put by the Ld. Addl. P.P.for the State.
23.In the testimony of PW3 Sh.Jagpreet Singh, he has clearly denied that any of the accused persons had fired upon him. Thus, in view of the clear denial, it cannot be said that accused persons had fired upon PW3 Sh.Jagpreet Singh.
24.Now the question arises whether the accused Dhiraj can be convicted for the offence U/s 25/54/59 A.Act. Ld. Counsel for the accused persons has filed the certified copy of Judgment dt. 24.03.2014 passed by Sh.Satish Kumar Arora, Ld. CMM (SW) Dwarka, vide which accused Dhiraj was acquitted for the offence punishable U/s 25/54/59 A.Act in case FIR no. 71/09 PS Crime Branch. I have perused the said Judgment.
25.It is the case of the prosecution that accused persons were arrested in case FIR no. 71/09 and they had made disclosure statement regarding their involvement in the present case. The SC No. 38/14 State Vs. Sunny etc. Page No. 28/30 certified copy of the Judgment shows that accused Dhiraj was acquitted and in that case, prosecution has examined seven witnesses and Ld.CMM has analyzed the evidence of PW4, PW6 and PW7. I am of the view that as the Ld. CMM has acquitted the accused Dhiraj for the offence U/s 25/54/59 A.Act, the accused Dhiraj cannot be convicted for the offence U/s 25/27 A.Act in the present case.
26.I have also perused the FSL report, which reads as under :
"The individual characteristics of firing pin marks and breech face marks present on evidence fired cartridge cases marked exhibits 'EC1 to EC3' and on test fired cartridge cases marked as 'TCA1' & 'TCA2' were compared and examined under comparison microscope model Leica DMC and were not found indentical. Hence exhibits 'EC1' to 'EC3' have not been fired through the improvised pistol 7.65 mm bore marked exhibit 'F1' in case FIR no. 71/09 PS Crime Branch (FSL2009/F2293)".
As per report of FSL, the empty cartridges were not fired from the pistol 7.65mm.
27.Further in the present case, the prosecution has examined as many as 10 witnesses and PWs 3 Sh.Jagpreet Singh, PW4 Sh.Chander Prakash Luthra, PW5 Sh.Surender Kumar, PW6 Sh.Nitin Luthra, and PW7 Sh.Sushil Kumar have not supported the case of the prosecution.
28.In view of the report of FSL and as the witnesses have not supported the case of the prosecution, PE stands closed and SC No. 38/14 State Vs. Sunny etc. Page No. 29/30 statements of accused persons U/s 313 Cr.P.C. stands dispensed with.
29.In view of the above discussion, I am of the considered view that the prosecution is not able to prove its case against all the accused persons beyond reasonable doubt. Accordingly, all the accused persons namely Sunny, Dhiraj, Suresh @ Rinku and Ashutosh Kaushik are hereby acquitted for the offence punishable U/s 120B IPC r/w Section 307/384 IPC; 384 IPC r/w Section 120B IPC; 307 IPC r/w Section 120B IPC and 452 IPC r/w Section 307/120B IPC. Accused Dhiraj is also hereby acquitted for the offence U/s 25/27 A.Act. All the accused persons are on bail. All the accused persons are also directed to furnish bail bonds and surety bonds for a sum of Rs. 10,000/each (Rupees ten thousand each) with one surety each in the like amount in view of Provision of Section 437A Cr.P.C. within 7 days from today.
File be consigned to record room, after necessary compliance.
ANNOUNCED IN THE OPEN (NARESH KR. MALHOTRA) COURT ON:24.03.2015. ASJ05 (West), THC, Delhi.
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