Delhi District Court
State vs 1. Nikhil Rana on 1 October, 2019
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM : ADDL. SESSIONS JUDGE-03 :
EAST DISTRICT : KARKARDOOMA COURTS : DELHI.
Sessions Case No. : 1422 of 2016
State Versus 1. Nikhil Rana
S/o Sh. Satbir Rana
R/o H.No. B63,
Gazipur Dairy Farm,
Delhi.
2. Satbir Rana @ Ghenta
S/o Late Prem Singh
R/o H.No. B63,
Gazipur Dairy Farm,
Delhi.
3. Parth Sharma
S/o Sh. Atul Mitter Sharma
R/o H.No. A25, Gali No.2,
Jagatpuri, Delhi.
FIR No. : 507/2014
Under Section : 302/120B/201/202/34 IPC
Police Station : Gazipur
SC No. 1422/16 State Vs. Nikhil Rana etc.
SC No. 2112/16 State Vs. Brijesh etc. Page No.: 1 of 101
Chargesheet Filed On : 12.01.2015
Chargesheet Allocated On : 09.02.2015
Undersigned presided over this Court : 06.11.2017
Judgment Reserved On : 28.09.2019
Judgment Announced On : 01.10.2019
And
Sessions Case No. : 2112 of 2016
(Supplementary chargesheet)
State Versus 1. Brijesh
S/o Sh. Devender
R/o Vill. Nijampur, PS Sikandrabad,
Distt. Bulandshahar, U.P.
2. Rupesh
S/o Sh. Devender
R/o Vill. Nijampur, PS Sikandrabad,
Distt. Bulandshahar, U.P.
Chargesheet Filed On
(Supplementary) : 20.05.2016
Chargesheet Allocated On : 13.07.2016
Undersigned presided over this Court : 06.11.2017
Judgment Reserved On : 28.09.2019
Judgment Announced On : 01.10.2019
Corum: Sh. A.K. Mishra, ld. Addl. PP for the State.
Sh. Pradeep Teotia, ld. counsel for complainant.
Sh. Anil Rana and Sh. Yogesh Swaroop, ld. counsels for
accused persons Nikhil Rana and Satbir Rana.
SC No. 1422/16 State Vs. Nikhil Rana etc.
SC No. 2112/16 State Vs. Brijesh etc. Page No.: 2 of 101
Sh. Pradeep Rana and Sh. Kartik, ld. counsel for Parth Sharma.
Sh.Vikas Sharma, ld. counsel for Brijesh and Rupesh
Abbreviation: Daily Diary (DD);
Investigating Officer (IO)
Police Station (PS)
Asst. Sub Inspector (ASI)
Head Constable (HC)
Forensic Scientific Laboratory (FSL)
Call Detail Record (CDR)
CAF (Customer Application Form)
Cases Referred: Balkar Singh Vs. State of Haryana, 205 (1) JCC 479;
Tomaso Bruno & Anr. Vs. State of Uttar Pradesh,
(2015) 7 Supreme Court Cases 178;
State of UP vs. Anil Singh AIR 1988 SC 1998);
Rajender Kumar Vs. State, 1996 Crl.LJ 960;
Koshy Vs. State, 1991 CrLJ 1776 (Ker);
Natrajan Vs. Union Territory of Pondicherry, 2
2003 CrlJ 2372, 2381;
Jackeran Singh Vs. State of Punjab,
AIR 1995 SC 2345;
Baldev Soni Vs. State of MP;
2012 CrlJ 282 (para 25) (ChhDB);
Appabhai Vs. State of Gujrat, AIR 1988 SC 696;
Abdul Sayed vs. State of Madhya Pradesh,
(2010) 10 Supreme Court Cases 259;
Dhanaj Singh Vs. State of Punjab,
2004 Crl. LJ 1807 at 1809 (SC);
Karnel Singh Vs. State of M.P., 1995 (5) SCC 518;
State of H.P. Vs. Krishan Lal Pradhan,
SC No. 1422/16 State Vs. Nikhil Rana etc.
SC No. 2112/16 State Vs. Brijesh etc. Page No.: 3 of 101
(1987) 2 SCC 17;
State NCT of Delhi Vs. Navjot Sandhu,
[2005 (Crl.J. 3950 (SC)];
State of Kerala V. Markose, AIR 1962 Ker. 133; and
Sukhwant Singh V. State of Punjab
decided on 28.03.1995.
JUDGMENT
1. Vide this common judgment, this court shall dispose of the above mentioned criminal cases bearing S.C. No. 1422/16 and another S.C. No. 2112/16 arising out of FIR No. 507/14 Police Station Gazipur.
2. The factual matrix of the prosecution case, succinctly, is that on receipt of DD No. 63B dated 21.07.2014 at 22:02 Hours lodged with PS Gazipur on which police machinery came into motion whereby ASI Yashpal Singh along with Ct. Sanjeev reached at the spot near Gazipur Toll tax at road of NH24 coming from inside of U.P., where they found that front tyre of one Swift car bearing no. DL5CJ4166 was on divider and driver side glass was broken and some glass pieces were also scattered inside the car and blood was found on front left seat of said car. In the meantime, HC Sultan produced DD no.63B and then he left HC Sultan at the spot. ASI SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 4 of 101 Yashpal Singh along with Ct. Sanjeev went to LBS hospital from where obtained MLC no. 13112/14 of unknown person who was declared as "brought dead" by the doctor and deadbody was shifted to mortuary. Senior police officer also arrived at the spot and crime team was summoned and it inspected. They took photographs of the spot as well as Swift car of the deceased. In the meantime, one Sanjay Kumar S/o Richpal, brother of deceased Vinod Kumar, came there and got recorded his statement in which he had raised suspicion at the instruction of accused Satbir Rana about the involvement of three persons namely Nazim, Shakir and Rashid for the murder of his younger brother Vinod Kumar.
3. On the basis of statement of complainant, the case u/s 302/34 IPC was registered. Site plan was prepared. Postmortem of the deadbody was got conducted as per postmortem report, the deceased sustained three bullets injuries, out of which one led was recovered from inside the body of deceased. On 30.07.2014, the seized vehicle i.e. Swift car in which the victim was murdered was got inspected from the forensic experts of FSL, Rohini. At the first instance, Nazim, Shakir and Rashid who have named in SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 5 of 101 the FIR, were apprehended however, after thorough investigation from them and polygraphy test, they have no role in the commission of murder of deceased Vinod.
4. During investigation, one witness namely Ravi Chopra (PW
18) stated that he had seen Nikhil Rana on 17.07.2014 at about 8.30 a.m. near Blue Gym, Vaishali where deceased Vinod used to go for his exercise. No reason found for presence of Nikhil Rana near said gym as he stopped to go there for last about one year. Then Nikhil Rana and his father Satbir Rana were the prime suspects because of their enmity with the deceased Vinod on the issue of Pradhani and also issue over a plot at Gazipur, Dairy Farm. CDR of accused Nikhil Rana was analysed which revealed about his conversation with coaccused Parth Sharma on the mobile phone of grand mother of Parth Sharma. Both mobile phones were recovered and their CAFs and CDRs were obtained. Motorcycle bearing no. DL5SBS2606 which was used in the crime was seized. Thereafter, accused persons namely Nikhil Rana, Satbir Rana and Parth Sharma were arrested on 15.10.2014 and their disclosure statements were recorded. Accused Nikhil SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 6 of 101 Rana allegedly got recovered the weapon of offence i.e. pistol from his house which allgedly was provided to him by his cousins/other coaccused Rupesh and Brijesh. After conclusion of the investigation, Chargesheet was filed against all accused persons namely Nikhil Rana, Satbir Rana and Parth Sharma before the court of Ld. MM for the offences punishable under Sections 302/120B/201/202/34 IPC and 25/27 Arms Act and supplementary chargesheet was filed against accused persons Brijesh and Rupesh by adding Section 174A IPC as well.
5. After compliance of provisions of Sec. 207 CrPC by the court of Ld. MM, case was committed to the Court of Sessions on 09.02.2015 as Sec. 302 IPC is exclusively triable by it.
6. Vide order dated 28.04.2015, passed by the ld. predecessor, chargeI under Section 120B IPC r/w Section 302 IPC was framed against all these three accused persons. Vide said order, separate chargeII under Sec. 302 IPC, 201 IPC and 27/25/54/59 Arms Act was against accused Nikhil Rana; ChargeIII under Sec. 201 IPC and 202 IPC against accused Satbir Rana and ChargeIV under Sec.202 IPC framed against accused Parth SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 7 of 101 Sharma. To the said charges, all accused persons pleaded not guilty and claimed trial.
7. A supplementary challan qua accused persons Brijesh and Rupesh under Sec. 120B IPC r/w Sec. 302 IPC and 174A IPC was filed and committed to this court under the provisions of Sec. 207 CrPC since main challan was pending for trial before this court.
8. Vide order dated 02.08.2016, charge under Sec. 120B read with Sec. 302 IPC was framed against both these accused persons. Vide said order, separate charge under Sec. 174A IPC was also framed against these accused persons - Brijesh and Rupesh. To the said charges, both these accused persons pleaded not guilty and claimed trial.
9. The Prosecution in support of its case examined as many as 36 witnesses in all qua accused persons namely Nikhil, Satbir and Parth.
PW1 Manoj Kumar; PW2 Smt. Babita; PW3 Sanjay Kumar; PW6 Rajvir Singh are brothers, wife and cousin of deceased Vinod Pehalwan, are material witnesses of the present matter and their testimonies will be discussed at relevant stage. PW6 has also proved SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 8 of 101 deadbody identification memo Ex.PW6/A, deadbody handing over memo Ex.PW6/B, sketch of pistol and cartridges as recovered by accused Nikhil Rana from his house vide Ex.PW6/C, pullanda of said pistol and cartridges Ex.PW6/D and seizure memo of mobile phone make Nokia C7 vide Ex.PW6/E. PW4 ASI Birpal Singh, Duty Officer, recorded DD no.63B dated 21.07.2014 vide Ex.PW4/A. PW5 Ct. Manish Kumar proved the PCR form Ex.PW5/A and Certificate u/s 65B of Indian Evidence Act Ex.PW5/B and PCR form dated 21.07.2014 lying in judicial file Ex.PW5/A1.
PW7 Bhanwar Singh and his brother PW8 Sant Ram, independent witnesses/neighbour, deposed that they agreed to purchase the property of one Mulak Raj bearing property no. C42, Road No.4 which was a Dairy Farm in the names of sons of Bhanwar Singh namely Raj Kumar, Raj Karan and Virender Kumar through deceased Vinod who used to do work of property dealing as well as Milk Dairy. He stated that on 03.07.2014, agreement regarding said property was prepared and at that SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 9 of 101 time, Phulwa, Sanjay, Sant Ram, Girdhar, Simmi and Darshan Singh were with the deceased. PW7 was also crossexamined by ld. Addl. P.P for the State. PW7 proved copy of said Agreement to Sell Ex.PW3/DX2 and Agreement to Sell & Purchase made by Sanchit Girdhar and Darshan Singh in favour of Satbir Rana Mark PW8/X1.
PW9 Phool Kumar Jha, a property dealer, stated that he had worked with deceased for last 1 1½ years from the day of incident. He came to know that Vinod had been killed on 21.07.2014 and he suspect that Vinod was killed due to one deal regarding Property no. C42, Gazipur Dairy Farm, Delhi. Said property was purchased by one Bhanwar Singh for rupees three crore on 03.07.2014 through himself, deceased Vinod, Sanjay and Sant Ram (residents of Gazipur DDA Flats) but accused Satbir had objected to said deal as he himself was interested in the said property and Satbir used to claim that he had purchased the said property for a sum of Rs.40.00 lakh from its owner. Accused Satbir also threatened that anybody who would intervene the property would be killed. PW9 was also cross examined by ld. Addl. P.P for the State and confronted with his statement SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 10 of 101 recorded under Sec. 161 CrPC wherein he admitted some part of it.
PW10 Darshan Singh stated that accused Satbir approached him to purchase plot no. C42, Gazipur Dairy Farm measuring 200 sq yards belonging to his samdhi Kasturi Lal. One Dimple, partner of accused Satbir also threatened them to sell the said dairy plot to Satbir. Ultimately, Sanchit, grandson of Kasturi Lal sold said plot to Satbir for Rs.97.00 lakh however, at the time of registration, accused Satbir prepared some forged documents and fraudulently obtained their signatures on those papers which were regarding some other dairy plot of 400 sq. yards belonging to other sons of Kasturi Lal. Thereafter, they approached Vinod (deceased) and on 03.07.2014, they sold said plot of 400 sq. yards for a sum of rupees three crore through deceased Vinod. When accused Satbir came to know about it, he wanted to take revenge and on 21.07.2014, he murdered Vinod through his son Nikhil Rana after hatching criminal conspiracy.
PW11 Mohd. Nazim, running a hair saloon in the name of FM Zone Saloon in Rishabh Complex at Patparganj, deposed that accused Nikhil Rana and Vinod (deceased) were his customers. He stated that accused SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 11 of 101 Nikhil used to keep long hairs but on his last visit at his shop, he got short haircut.
PW12 Suraj Singh stated that he knew accused Nikhil and Vinod (deceased) and one day in the year 2013, Vinod made a call to Nilkhil from his mobile phone and he stored mobile number of Nikhil in his phone.
PW13 Kaushal Kumar is distant relative of accused Parth Sharma and also owner of motorcycle bearing registration no. DL5SBJ 2606 make CBZ Extreme of brown colour and proved photographs of said motorcycle vide Ex.PW13/A1 to PW13/A5 and copy of RC Ex.PW13/B and attested order of superdari and copy of Superdarinama Ex.PW13/C and PW13/D. This witness was crossexamined by ld. Addl. P.P. for the State with respect to the possession of said vehicle on the date of incident to which said suggestions were denied.
PW14 Sh. Chander Shekhar, Nodal Officer Bharti Airtel Ltd. proved CDRs of mobile SIM 9871944979 with respect to accused Nikhil Rana and SIM 8527366582 with respect to accused Parth Sharma vide Ex.PW14/A & PW14/B, Certificate u/s 65B of Indian Evidence Act SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 12 of 101 ExPW14/C, CAFs of abovesaid mobile numbers vide Ex.PW14/D & PW14/E and location chart of both mobile phone numbers is Ex.PW14/F. PW15 Sh. Jagdish Mittar, grandfather of accused Parth Sharma, was crossexamined by ld. Addl. P.P. in which he admitted that mobile phone bearing no. 8527366582 belongs to him. However, he denied the suggestion that he had given said SIM to his wife Smt. Kamlesh Sharma for its use and his grandson Parth Sharma also used the said number off and on after taking it from his grandmother.
PW16 Dr. Vinay Kumar Singh, conducted the postmortem on the body of the deceased and proved its report as Ex.PW16/A. PW17 HC Krishan Kumar Singh, Duty Officer, proved his endorsement Ex.PW17/A on ruqqa; copy of FIR Ex.PW17/B; certificate under Sec. 65B of Indian Evidence Act Ex.PW1/C and copies of DD Nos. 3A and 4A, both dated 22.07.2014 vide Ex.PW17/D and PW17/E respectively.
PW18 Ravi Chopra, a friend of deceased Vinod Pehalwan, was crossexamined by ld. Addl. P.P. for the State in which he denied the SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 13 of 101 suggestion that on 17.07.2014, when he reached Blue Gym, Vaishali, he saw accused Nikhil Rana standing with a motorcycle near Mall and he asked him as to what he was doing there or that he told him that "Aise hi khada hoon"
or thereafter, he went inside the gym or that there Vinod Rana was already doing exercise or that he did not pay much attention on this.
PW19 ASI Manoj, photographer, proved 14 photographs of the spot vide Ex.PW19/A1 to PW19/A14 with negatives of the same as Ex.PW19/B1 to PW19/B14.
PW20 HC Sultan Singh; PW21 ASI Ram Naresh and PW26 Ct. Karam Pal are formal witnesses.
PW22 Sanjeev Trehan, Assistant Manager, MCD toll Department at Shahdara Zone stated that at about 8.30 pm, he was informed by two boys regarding an incident behind Gazipur main naka, NH24 on which he reached at that place and noticed one Santro car was on divider and also found one person lying on the adjacent seat of driver seat and thereafter, he informed the police at 100 number from his mobile phone regarding the incident. This witness was also crossexamined by ld. Addl. P.P. for the SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 14 of 101 State.
PW23 ASI Yashpal proved ruqqa Ex.PW23/A and seizure memo of Samsung mobile phone of deceased vide Ex.PW23/B. PW24 HC Sanjeev Kumar proved the seizure memo of pullanda regarding one injured namely Rashid vide Ex.PW24/X and seizure memo of sealed pullanda of deceased and sample seal Ex.PW24/A and PW24/B. PW25 Dr. Manoj Teotia, medically examined the injured/deceased Vinod and prepared MLC for the same bearing number 13112 and proved the same as Ex.PW25/A. PW27 ASI Manoj Kumar proved supplementary disclosure statement of accused Nikhil Rana vide Ex.PW27/A. PW28 Insp. Ashok Kumar Singh, the then SHO Police Station Gazipur, proved the application regarding recording of statement of witness Sanjay Kumar under Sec. 164 CrPC before the ld. M.M. vide Ex.PW28/A. SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 15 of 101 PW29 SI Kiran Pal joined the investigations of this case on 30.07.2014 and is a witness to the memos Ex.PW29/A to C prepared in his presence. He also joined the investigations of this case on 15.10.2014 and is a witness to the memos Ex.PW29/D to 29/K vide which accused persons Parth Sharma, Nikhil Rana and Satbir Rana were arrested and made disclosure statements and recoveries were effected in his presence.
PW30 Insp. Mahesh Kumar, Draughtsman, proved the scaled site plan vide Ex.PW30/H. PW31 HC Sachin, MHC(M), proved the entries made in register no.19 vide Ex.PW31/A to PW31/D and Road Certificate no. 106/21/14 vide Ex.PW31/E with respect to deposit of case property with malkhana and also with FSL, Rohini.
PW32 Inspt. (Retd.) Ramdeen Singh partly investigated the matter and conducted the proceedings on 22.07.2014 regarding identification of deadbody and its handing over the same to LRs. He is also a witness to the memos Ex.PW23/B; 24/X; 29/A and 32/A & B regarding seizure of SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 16 of 101 articles.
PW33 Ms. Nabeela Wali, the then ld. M.M. (East) has proved the proceedings vide Ex.PW33/A regarding recording of statement of witness Sanjay Kumar under Sec. 164 CrPC.
PW34 Insp. Vijay Kumar, part investigating officer came at the later stage and conducted the subsequent investigation after the proceedings conducted by SI Kiranpal (PW19) prior to it by by PW32 Inspt. Ramdeen.
PW35 Sh. Surender Kumar, Addl. DCP (East) has accorded the requisite sanction under Sec. 39 of Arms Act against accused Nikhil Rana vide Ex.PW35/A in respect of possession and recovery of arms and ammunition.
PW36 Sh. N.B. Bardhan, CFSL Expert, examined the exhibits and proved his report Ex.PW36/A.
10. It is also pertinent to mention here that to prove the guilt against accused Brijesh and Rupesh prosecution took help of twenty seven witnesses in all. Out of these examined witnesses PW1 Babita (already examined as SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 17 of 101 PW2 in main chargesheet) is material witneses; PW2 Dr. Vinay Kumr Singh, medical expert (already examined as PW16 in main chargesheet); PW4 ASI Manoj (already examined as PW27 in main chargesheet); PW5 Bhanwar Singh (already examined as PW7 in main chargesheet); PW6 Phool Kumar (already examined as PW9 in main chargesheet); PW7 Sanjeev Trehan (already examined as PW22 in main chargesheet); PW8 Sanjay Kumar (already examined as PW3 in main chargesheet); PW9 Manoj Kumar (already examined as PW1 in main chargesheet); PW14 Chander Shekhar (already examined as PW14 in main chargesheet); PW12 HC Sanjeev Kumar (already examined as PW24 in main chargesheet); PW 13 ASI Yashpal Singh (already examined as PW23 in main chargesheet); PW14 Mohd. Nazim (already examined as PW11 in main chargesheet); PW15 Sant Ram (already examined as PW8 in main chargesheet); PW16 Rajvir Singh (already examined as PW6 in main chargesheet); PW17 Jagdish Mittar (already examined as PW15 in main chargesheet): PW18 Darshan Singh (already examined as PW10 in main chargesheet); PW19 ASI Ram Naresh (already examined in main chargesheet); PW20 HC SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 18 of 101 Sultan (already examined as PW20 in main chargesheet); PW21 ASI Krishan Kumar (already examined as PW17 in main chargesheet); PW22 Const. Karampal (already examined as PW26 in main chargesheet); PW23 Kiran Pal (already examined as PW29 in main chargesheet); PW24 Sh. N.B. Bardhan (already examined as PW36 in main chargesheet) ; PW25 Inspt. Vijay Kumar (already examined as PW34 in main chargesheet); PW 26 Inspt. Ashok Kumar Singh (already examined as PW28 in main chargesheet); PW27 SI Narender (already examined in main chargesheet) have already been examined in main case and again examined in supplementary challan except PW10 Inspt. Dhananjay Pratap who was produced as new witness in this chargesheet qua to prove the charge under Sec. 174A IPC against accused persons Brijesh and Rupesh.
11. During the prosecution evidence recorded in supplementary chargesheet, these accused persons namely Brijesh and Rupesh admitted proceedings conducted by Ms. Nabeela Wali; MLC no. 125546 dated 21.07.2014 proved by IO; scaled site plan; DD No. 63B dated 21.07.2014; PCR Form dated 21.07.2014 and report prepared by SI Kaushal Ganguli, SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 19 of 101 Crime Team Incharge, in their statement recorded under Sec. 294 CrPC.
12. Testimony of the witnesses concerned will be discussed at appropriate stage of judgment during observations and discussion while discuss the case chargewise.
13. After conclusion of the prosecution evidence, the statement of all the accused persons were recorded under Section 313 CrPC in which they denied all the incriminating circumstances against them. They pleaded their innocence and further pleaded their false implication.
14. Accused Nikhil Rana and Satbir Rana have taken the plea by stating that they have been falsely implicated in this case at the instance of complainant/PW3 Sanjay as after death of deceased Vinod, Sanjay was having an evil eye over the property of accused Satbir Rana at C42, Gazipur Dairy Farm and he found an opportunity to falsely implicate and frame them & their family in this case in order to grab said property. Said Sanjay hatched a conspiracy with other PWs (who are also interested witnesses) and other police witnesses and in pursuance of the said conspiracy, he prepared forged documents of property of accused Satbir Rana in order to establish a SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 20 of 101 false motive. Accused Satbir was elected as Pradhan of Vill. Ahmad Nagar, Block Khekhra, Distt. Bagpat, U.P. and his tenure of Pradhani was between the period of 20102015. Their family never had any dispute or differences of any sort with the family of the deceased Vinod. The recovery of weapon and mobile phone in the present case are fake and same have been planted. The IO has obtained their signatures on some blank papers forcibly and thereafter forged the disclosure statement and other memos in order to frame them in the present false case.
15. Accused Brijesh further pleaded that he has been implicated falsely in this case being relative of Satbir Rana. He further pleaded that his signatures were obtained on end number of papers and police did not conduct the investigations of this case fairly and he has nothing to do with the crime in question and even do not know any person with the name of Naushad who alleged to be supplier of weapon of offence as recovered from the accused Nikhil Rana.
16. Accused Rupesh also toed on the same lines and also pleading that he did not know any person with the name of Naushad.
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17. All the accused persons except accused Brijesh want to lead evidence in their defence.
18. Accused Satbir Rana examined DW1 Sheesh Pal Singh; DW 2 Prakash and DW3 Leelu in his defence.
DW1 Sheesh Pal Singh, Additional Development Officer, proved original certificate regarding tenure of Pradhani of Satbir Rana from 2010 to 2015 vide Ex.DW1/A. DW2 Prakash, ex UP Pradhan of Village Ahmad Nagar, Block Khekhra, Tehsil Khekhra, District Baghpat, stated that on 15.10.2014, he was sitting in his home along with Leelu and at that time, Rajbir @ Lala came to his home at Village Ahmed Nagar and he was already under the influence of liquor at that time and he insisted to provide money for taking more liquor as there was birth of his grand daughter at his house. He paid him money and he went to Ratol from where he brought one bottle of liquor at his home in the afternoon on 15.10.2014 and then he and Leelu started consuming liquor in his house till evening about 8 p.m. Leelu left his home SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 22 of 101 at about 7.30/8.00 p.m.. however, Rajbir @ Lala who had consumed excessive liquor, became unconscious there and he awoke at about 6 a.m. in the next day morning i.e. on 16.10.2014.
DW3 Leelu also supported the version as given by DW2 Prakash.
Dr. A.P. Singh (DW1) was produced in defence of accused Rupesh. He deposed that as per the record, Rupesh was admitted with Kailash Hospital on 28.03.2014 and was discharged on 14.04.2014. He proved the medical record vide Ex. DX for accused Rupesh of his fracture ad admission with hospital. He also proved other record Ex. DY, Z and X1 to 2 qua medical record pertaining to the accused Rupesh.
19. Ld. Addl. P.P. for the State argued that prosecution has been able to prove the charges through evidence of prosecution witnesses and recovery effected. He argued that there is no reason to disbelieve the testimony of the prosecution witnesses which are cogent and credible. He argued that accused persons failed to give any reasonable account for their false implication.
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20. Ld. Addl. PP for the State, on the issue of Sec. 174A IPC, against the accused Brijesh and Rupesh, contended that the prosecution has also proved its case on this aspect as well. He drew the attention of the court that defence witness in this regard is also of no help to the accused persons. Rather these accused persons admitted their relations with other accused persons and they also knew their involvement in the present case and this all also go against these accused persons. As such, proved for conviction of accused namely Brijesh and Rupesh for the said offence for which they have been charged with.
21. It further submitted that there is nothing to disbelieve the testimony of the prosecution witnesses and the culpability of all accused persons stand fully established beyond all reasonable doubts. Ld. Addl. P.P., therefore, prayed for conviction, for all the accused persons as per the charge(s) framed against them.
22. Sh. Anil Rana, ld. counsel for accused Nikhil Rana and Satbir Rana argued that the testimony of PW6 Rajvir, PW29 Kiranpal and PW34 SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 24 of 101 Insp. Vijay Kumar regarding recovery of weapon of offence and mobile phone at the instance of accused Nikhil Rana, having great inconsistencies and contradictions with each other and are of improbable nature which creates serious doubt regarding the said alleged recovery from the house of accused Nikhil Rana and alleged recoveries are planted just to frame the accused persons in the present false case, however, there was no recovery effected at the instance of accused persons. From the crossexamination of PW6 Rajvir, his deposition casts serious doubt as to the alleged presence of PW6 at the spot for the recovery of mobile phone and countrymade pistol at the instance of accused Nikhil Rana on 15.10.2014. As such, neither any police official ever visited the house of accused Nikhil Rana nor any alleged recovery had ever been made at his instance in presence of PW6 Rajvir, therefore, IO did not join the said public witness as a witness of recovery.
23. Next contention raised by this ld. defence counsel is that the weapon and mobile phone were planted by the police officials in connivance with the complainant Sanjay at the Police Station. PW34 Insp. Vijay Kumar deposed in his examinationinchief as well as in crossexamination SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 25 of 101 that the recovery memo of weapon Ex.PW6/D, its sketch Ex.PW6/C and recovery memo of mobile phone Ex.PW6/E were made in his handwriting and Ex.PW6/C and PW6/D were written in Hindi language however the handwriting in both exhibits are different as the same were prepared in the Police Station and not at the place of recovery and it raise serious doubts on the story of prosecution regarding abovesaid recovery from the house of accused Nikhil Rana at his instance. He stated that signature of alleged attesting witness/PW6 Rajvir are also apparently different and are not signed by the same person. Ld. defence counsel further submits that PW6 Rajvir has never been a resident of Gazipur Dairy Farm and is a resident of Vill. Ahmed Nagar, Block Khekhra, District Baghpat, U.P. and being near relative of deceased Vinod is an interested witness and not an independent witness, as such, his testimony is not reliable as he is an alcoholic and he himself admitted many times to Nasha Mukti Kendra for rehabilitation, thus evidence of PW6 is not credible. Apart from that, DW2 Prakash who is resident of Vill. Ahmed Nagar, Block Khekra deposed that PW6 Rajvir was remained at his house on 15.10.2014 and he consumed a huge quantity of SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 26 of 101 liquor till evening and then woke up the next morning.
24. Ld. counsel further contended that the registered owner of mobile phone no. 9871944979, allegedly recovered from the house of accused Nikhil Rana, at his instance, is of one Jyoti D/o Ramji Lal but she or her father have not been cited as a witness by Investigating Officer deliberately and intentionally. Said Jyoti who is the registered owner/user of said SIM has actually died as alleged by the Investigating Officer but no death certificate has been filed to this effect. He contended that the prosecution has miserably failed to establish the fact that accused Nikhil Rana was using and was in possession of said SIM and the same has been planted upon accused - Nikhil Rana.
25. Ld. defence counsel also argued that initially the complaint was lodged on the statement of complainant/PW2 Sanjay who had alleged the name of three persons named Nazim, Shakir and Rashid in the involvement of murder of his brother Vinod who used to go to Blue Gym at Vaishali, Ghaziabad and on the date of incident, deceased Vinod went to Blue Gym at 6 p.m. in Swift car bearing registration no. DL5CJ4166 and SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 27 of 101 used to come back by 9.30 p.m. On 21.07.2014, deceased Vinod had not reached his house by 10 p.m., then complainant/PW2 Sanjay called on his mobile phone but the same was found switched off. Later on, said mobile phone was picked up by one police official informing that his brother was admitted with LBS Hospital. Thereafter, during the investigation, all three proposed assailants Nazim, Shakir and Rashid have given clean chit by alleging that no foul play have been committed by any one of them in committing murder of deceased Vinod and then police arrested accused persons on 15.10.2014 whereupon disclosure statement was recorded and recovery was effected from them at their instance.
26. Ld. counsel for accused Nikhil Rana and Satbir further argued that the prosecution has alleged three motives for committing the alleged offence against accused Satbir Rana which are : (i) First motive for the crime is the issue of 'Pradhani' between accused Satbir and deceased Vinod in Gazipur Dairy Farm. Since accused Satbir Rana @ Ghenta lost election of Pradhan in Gazipur Dairy Farm and deceased Vinod Pahalwan won the same as such, accused Satbir Rana and his family bearing grudge against deceased SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 28 of 101 Vinod and his family. Ld. counsel for accused also submitted that accused Satbir was already elected as Pradhan of Vill. Ahmed Nagar, Vill. Khekhra, Distt. Bagpat, U.P. for the period 20102015 as per the Panchayat Raj Act, 1947. He never contested election as Pradhan of Gazipur Dairy Farm where no Panchayat exists and he examined DW1 Sheesh Pal Singh, Addl. Development Officer.
27. Second motive for the alleged crime as alleged that there is dispute over a property bearing no. 'C42, measuring 400 sq. yards in Gazipur Dairy Farm'. An agreement to sell was made in favour of Raj Kumar Lohia, Raj Karan Lohia and Virender Kumar Lohia all sons of Bhanwar Singh and execution of said Agreement to Sell caused monetary loss to accused Satbir Rana. This story is falsify by the prosecution witnesses as there are improvements, contradictions and inconsistencies and as such, their testimonies cannot be relied upon.
28. Ld. defence counsel further submitted that as per prosecution story, there is dispute between deceased Vinod Pahalwan and accused Satbir Rana @ Ghenta over the property bearing no. C42, Road No.4, Ad SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 29 of 101 measuring 400 sq. yards in Gazipur Dairy Farm. Agreement to Sell dated 03.07.2014 Ex.PW3/DX2 is a forged document, the existence of same was not in the knowledge of accused Satbir Rana and his family members as the said document was forged and fabricated just to frame the accused persons in the present false case and said document firstly came into the knowledge of accused persons.
29. Third motive was grudge by accused Satbir Rana against deceased Vinod and his family since he quarrelled with PW9 Phool Kumar Jha @ Phulwa, he stated that accused Satbir threatened Phulwa who used to work with deceased Vinod and accused Satbir was having no trust on him. It is further argued by ld. defence counsel that there is no police complaint or Daily Diary entry regarding said incident, as such it cannot be inferred that any such incident ever happened and allegations of abuses and threat are afterthought and concocted. It is, therefore, prayed for the acquittal of the accused persons Nikhil Rana and Satbir Rana @ Ghenta.
30. Sh. Pradeep Rana and Sh. Kartik, ld. counsels for accused Parth Sharma contended that prosecution has failed to prove the SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 30 of 101 communications between accused Nikhil Rana and Parth Sharma through mobile phones on 21.07.2014 and PW15 Jagdish Mitter, who is the registered user of mobile SIM no. 8527366582 also did not support the prosecution case by stating that said mobile phone at no point of time was in the possession or used by accused Parth Sharma. Apart from that contention of his counsels is that Inpst. Vijay Kumar has mentioned that the mobile phones of Nikhil Rana and Parth Sharma went switched off and switched on, at one point of time but when confronted for the same during the cross examination on this issue to PW34 Inspt. Vijay Kumar and about the said devise/mechanism for which IO gave very simple reply by stating that - I am not aware but the switch off and switch on of mobile can be depicted by analyzing its CDR and as such, IO of his own opted to state that both were in touch. Extending this argument, ld. counsel drew the attention of the court towards the statement of PW15 Jagdish Mittar who in very simple words stated that on said date and time he was very much present with his mobile phone and at that time he was going to dentist on that date too.
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31. Ld. counsels for accused Parth Sharma further contended that there is no iota of evidence on record which can connect that at any point of time accused persons Nikhil Rana and Parth Sharama were ever seen near or at the place of incident on the date of crime or even accused Parth Sharma was found present near the place of incident on the date and time of incident with the motorcycle bearing registration no. DL5BJ2606. Besides the above, ld. defence counsel further contended that as per prosecution case, the motorcycle bearing registration no. DL5BJ2606 was used in the commission of crime by accused Parth Sharma, however, PW13 Kaushal Kumar, who is the registered owner of alleged motorcycle bearing registration no. DL5BJ2606 has not supported the prosecution case by stating that nobody took his motorcycle at any point of time as such, it is fully established that accused Parth Sharma had not taken his motorcycle on 21.07.2014 and it remained with PW13 Kaushal Kumar. Ld. counsel further contended that prosecution miserably failed to establish the fact that accused Parth Sharma and Nikhil Rana had used the abovesaid motorcycle SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 32 of 101 on 21.07.2014 and there is no oral or documentary evidence i.e. CCTV footage etc, as to this effect that both the accused persons met with each other on 21.07.2014. and also that there is hardly any evidence regarding the fact that anyone had seen the accused Nikhil Rana and Parth Sharma together on 21.07.2014 at any point of time nor been seen accused Parth Sharma came to the house of accused Nikhil Rana with the aforesaid motorcycle or had seen near place of incident at NH24 on said motorcycle.
32. Ld. counsel further argued that the alleged recovery of weapon, mobile phones and motorcycle are fake and planted one and there is nothing as such recovered from or at instance of accused Nikhil Rana and Parth Sharma. This itself proved by the statement of prosecution witnesses. So far as the recovery of weapon of alleged offence and mobile phone by accused Nikhil Rana, the prosecution relied upon the testimony of PW6 Rajbir Singh, PW29 SI Kiranpal and PW34 Insp. Vijay Kumar. Though, it is contended that these three witnesses have made contradictory statements with respect to the colour of mobile phones, make of pistol etc. The place from where PW6 Rajbir was standing and the time for the recovery at the SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 33 of 101 house of accused Nikhil Rana as well as simultaneously from the house of accused Parth Sharma, it is contended by ld. defence counsel that PW6 Rajbir was not present on 15.10.2014 at the place of alleged recovery along with PW29 SI Kiranpal and PW34 Insp. Vijay Kumar. Even his signatures in this regard are differ on recovery memo and seizure memo of said articles. Handwriting on the documents pertaining to seizure of said articles are also differ. There is no videography or photography has been conducted by IO though being available with smart mobile phone. Even these inconsistent with the recovery of said articles from the house of accused Nikhil Rana as well as recovery of mobile phone and motorcycle at the instance of accused Parth Sharma are not feasibly possible and same are false and fabricated concocted story out of curious mind of IO.
33. It is further argued that there are large number of contradictions and inconsistencies among the statements of PW6, PW29 and PW34 with regard to the manner in which said articles were seized either at the place of incident or at the police station and that the same are forged, fabricated and manipulated one. Seizure memo of weapon of offence vide Ex.PW6/D and SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 34 of 101 its sketch Ex.PW6/C are not fully signed by same person i.e. PW6 signatures as the same is apparently different. It is also argued that PW6 Rajbir Singh never resided in Gazipur Dairy Farm on 15.10.2014 and he is a resident of Ahmed Nagar, Block Khekhra, Distt. Baghpat, U.P. and he is an alcoholic and several times admitted in Nasha Mukti Kendra for rehabilitation. He is a planted witness at the instance of complainant and even several public persons were available there but none of them have joined the investigation at the time of alleged recovery of weapon, mobile phones and motorcycle. It is further argued that PW13 Kaushal Kumar stated that motorcycle bearing registration no. DL5SBS2606 belongs to him and he has taken the same on Superdari from the court and nobody has taken his motorcycle at any point of time. On 21.07.2014, accused Parth Sharma has not taken his motorcycle and same was remained with him, as such, humbly prayed for acquittal of the accused persons.
34. Sh. Vikas Sharma, ld. counsel for accused persons Brijesh and Rupesh, argued that these accused persons have nothing to do with the alleged offence and have been implicated falsely in this case being relative SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 35 of 101 of Satbir Rana with malafide intentions to create pressure upon the accused persons. Ld. defence counsel also argued that processes under Sec. 82 & 83 CrPC upon these accused persons could not served properly and hence, provisions of Sec. 174A CrPC cannot be attracted against either of them. Qua accused Rupesh, ld. defence counsel also contended that he was unable to walk properly on account of problem in his leg and remain admitted in the hospital. Apart from that, it is also argued that there are many material contradictions and improvements in the testimonies of the prosecution witnesses and nothing has been recovered at the instance of either of the accused persons. Ld. defence counsel prayed for acquittal of these accused persons.
35. All the ld. defence counsels once for all have submitted that the investigation conducted by the investigating officer was not conducted fairly, though it is a case of eye witness, CCTV installed at Toll Tax booth of NH24 and a lot of public persons were present at the time of incident, even officials of toll booth but due to faulty and defective investigation of Investigating Officer benefit of the same must be given to the accused SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 36 of 101 persons. Even though, witnesses have not been given rational answers to the queries made during their crossexamination on PW36 Sh. N.B. Bardhan who has not examined the alleged weapon in terms of the stipulated norms/law.
36. Ld. counsel for accused Nikhil Rana and Satbir Rana placed reliance upon the cases reported as Balkar Singh Vs. State of Haryana, 205 (1) JCC 479 and Tomaso Bruno & Anr. Vs. State of Uttar Pradesh.(2015) 7 Supreme Court Cases 178 in support of his contentions.
37. Ld. defence counsels finally after concluding the submissions humbly prayed for acquittal of all these accused persons by granting them benefit of doubt, in view of the contentions raised by them.
38. Having considered the submission of Sh. A.K. Mishra, ld. Addl. P.P. for the State duly assisted with Sh. Pradeep Teotia, ld. counsel for complainant; Sh. Anil Rana and Sh. Yogesh Sawroop, ld counsels for accused Nikhil Rana and Satbir Rana; Sh. Pradeep Rana and Sh. Kartik, ld. counsels for accused Parth Sharma and Sh. Vikas Sharma, ld. counsel for Brijesh and Rupesh and have carefully gone through the entire material on SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 37 of 101 record and have considered the rival submissions of the parties in the light of the law laid down in the judgments relied upon.
39. It is not out of place to appreciate all the sincere efforts to argue and to prepare the written submissions.
40. In a murder case, the trial court is incharged with the supreme duty of making proper appreciation of evidence and of law before reaching the finding that the case proved is culpable homicide amounting to murder as defined in Sec. 300 IPC. This constitutional duty flows from Article 21 because conviction under Se. 302 IPC is liable to expose the accused to the extreme penalty that of deprivation of life in regard to which the court must follow reasonable procedure of due application of mind.
41. It is necessary to remember that a Judge does not preside over a trial merely to see that no innocent man is punished but he also preside to see that a guilty man does not escape. Both are the public duties. The Court has to sift the evidence, separate the chaff from the grain unless the court thinks that both versions are not reliable, the short cut path to acquittal is not the legitimate path. [Ref.: Bijoy Kr. Agarwal V. State of Orissa, (1989) 2 SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 38 of 101 Crimes 34 (Ker.)].
42. It is the duty of the court to take out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. (Ref. State of UP vs. Anil Singh AIR 1988 SC 1998).
Motive Of Crime:
43. So far as the alleged motive for committing the crime, it is well settled that where there is direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be proved and sometimes however, the motive is shrouded in the mystery and it is very difficult to locate the same. If, however, the evidence of the eye witnesses is credit worthy and believed by the court which has placed implicit reliance on that SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 39 of 101 the question whether there is any motive or not becomes wholly irrelevant.
44. In case reported as Rajender Kumar Vs. State, 1996 Crl.LJ 960, Hon'ble Apex court held that the circumstances which prove the guilt of the accused persons are however, not weakened at all by this fact that the motive has not been established. It often happens that only the culprit himself knows what moved him to a certain course of action.
45. In Koshy Vs. State, 1991 CrLJ 1776 (Ker), it was observed that "motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally read the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many of murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain indiscoverable. Though it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 40 of 101 accused into evidence does not mean that no such mental condition existed in the mind of the assailant".
A. Issue of Pradhani:
46. In the instant case, accused Nikhil Rana and Satbir Rana as well as deceased Vinod are relatives and are living in same vicinity along with their family members and can keep watch movements/activities of each other and they know the activities individually as well as socially of each other. It has also been testified by the prosecution witnesses in their deposition repeatedly that deceased Vinod was Pradhan of Vill. Gazipur Dairy Farm, Samaj Sudhar Samiti, though it does not require by the accused Satbir Rana to be Pradhan as the statute of the Pradhan has been provided to him with Panchayat Raj Act, however, there is a small residential welfare society which is called as "Samaj Sudhar Samiti" for which election of Pradhan was conducted by nomination and the deceased Vinod Pahalwan elected as Pradhan by nomination as such, accused Satbir Rana @ Ghenta felt jealous, this fact has been deposed by PW1; PW2; PW3; PW6; PW 7; PW8; PW9; PW10 and PW18 repeatedly in a loud voice.
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47. The said prosecution witnesses i.e. PW1 to 4, 7 to 10 and PW 18 also testified repeatedly that there was election of Pradhan of Vill. Gazipur and deceased Vinod Pahalwan was declared as a Pradhan. PW8 Sant Ram in his examinationinchief stated that in January 2014, a meeting was held in which 200250 persons were present and Nempal Panditji facilitated deceased Vinod by offering garland on the account of being him elected as Pradhan. In that meeting, accused Satbir was also present and had threatened Vinod to see him by saying, "tune meri pradhani kaishe chhini, main tujhe dekh lunga, sale tujhe main jaan se maar dunga" and then PW8 intervened to pacify both of them. Even in crossexamination, this fact has also been corroborated by stating that in the said meeting, accused Satbir had threatened Vinod to see him by saying the abovesaid words though alleging that there is improvement but it has been brought in natural form though have straightway submitted by PW8 that this fact has also been stated by him to the police but it is upon police while recording statement under Sec. 161 CrPC in what manner he has recorded this fact. Apart from that, fact SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 42 of 101 corroborated by PW1 Manoj Kumar, PW2 Sanjay Kumar, PW3 Babita, PW6 Rajbir, PW7 Bhanwar Singh and PW8 Sant Ram etc. B. Issue of C42, Gazipur Dairy Farm
48. Similarly, regarding the issue of Plot no. C42, Gazipur Dairy Farm, the PW7 Bhanwar Singh, PW8 Sant Ram and PW10 Darshan Singh stated that in said meeting, accused Satbir also threatened to deceased Vinod to stay away from the said property or else Vinod would face dire consequences and also threatened that if anybody would intervene in sale or purchase transaction of the said property, he would kill him (thikane laga dega). It is also testified by the PW7; PW8; PW9 & PW10 that in January 2014, Vinod has also snatched Pradhani from accused Satbir. Even time and again, on this issue, all prosecution witnesses have repeatedly stated about the said threat extended by accused Satbir Rana @ Ghenta with regard to this 'plot' no. C42, Gazipur Dairy Farm in question as well as on the issue of 'Pradhani'.
49. PW9 Phool Kumar Jha @ Phulwa was partner in business of property deals with deceased Vinod who also made suspect of killing Vinod SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 43 of 101 regarding dealing of Property no. C42, Gazipur Dairy Farm, whereas further testified that earlier he had also worked with accused Satbir Rana @ Ghenta. Said plot was purchased by one Bhanwar Singh (PW7) for rupees three crore on 03.07.2014 through deceased Vinod Pradhan but accused Satbir had objected to said deal as he himself was interested in the said property and Satbir used to claim that he had purchased the said property for a sum of rupees forty lacs from its owner. Accused Satbir also threatened that anybody who would intervene the property, would be killed. PW9 Phool Kumar Jha @ Phulwa also stated that on 13.10.2013, when he was passing through the area of house of Vinod as he was working with Vinod, accused Satbir was insisting upon him to go to his village but he refused and thereafter, accused Satbir abused him. Sanjay and Manoj, brother of Vinod, have also come there and thereafter, accused Satbir started quarreling with Sanjay and Manoj. Accused Nikhil Rana was also present with accused Satbir Rana on 13.10.2013 at the time of quarrel between his father with Sanjay and Manoj and he also suspect accused Satbir for murder of Vinod. Though, during crossexamination, PW9 Phool Kumar Jha @ Phulwa has SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 44 of 101 denied that one Darshan Singh had sold property no. C42 to accused Satbir.
50. PW10 Darshan Singh also testified that accused Satbir also claimed to have purchased 400 sq. yards plot and when they objected to it and also came to know about forgery in execution of Agreement to Sell. Accused Satbir claimed that there was some agreement for Rs.40 lakh and also paid advance of Rs.20.00 lakh to him whereas PWs denied the same and stated that said documents of Satbir Rana @ Ghenta were forged one. Thereafter, it has also been testified by PW10 Darshan Singh that accused Satbir had threatened to kill Vinod Pahalwan and not to sell said plot. Accused Satbir Rana has also filed the Civil Suit vide case of plaint Ex.DW10/DX2.
51. In view of the aforesaid discussion and material placed on record for the threats for the issue involved regarding Pradhani as well as of plot no. C42 and quarrel with PW Phulwa, these incidents have been corroborated in the different form by the prosecution witnesses and suggestion of ld. defence counsel in crossexamination of PWs denied that no such incident has been taken place nor accused Satbir bearing grudge SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 45 of 101 against deceased Vinod, Phulwa or having any evil eye on the Plot no. C42, Gazipur Dairy Farm. Though there are ample documents as collected by the prosecution qua accused Satbir Rana but there is no suggestion with regard that these documents are forged and fabricated one. The said statement of prosecution witnesses is corroborated by prosecution witnesses including PW7 (Bhanwar Singh); PW8 (Sant Ram) and PW10 (Darshan Singh) that no such property was ever sold to accused Satbir Rana and sale documents as relied upon of said property are forged one.
52. The accused Satbir Rana during the crossexamination of PW 10 Darshan Singh, has also placed on record the document i.e. copy of plaint Ex.PW10/DX2 whereas accused Satbir Rana filed a civil suit for permanent injunction against Sanchit Girdhar and PW10 Darshan Singh whereas in para no.4 of said plaint Ex.PW10/DX2, admitted that at the time of entering into a written agreement to sell and purchase of the property in question, the defendant received Rs.20 lac in cash from the plaintiff as a consideration amount in advance and handed over the possession of 200 sq. yards land to the plaintiff. It was also agreed by the defendants that the outstanding SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 46 of 101 amount of Rs.20 lac shall be paid by the plaintiff on dated 18.04.2013 at the time of possession of remaining portion of the plot. In para no.5 of said plaint Ex.PW10/DX2, plaintiff stated that he arranged the previous amount of Rs.20 lac after selling of his DDA Janta Flat bearing no. 214A, Ground Floor, Gazipur, Delhi96 to Sh. Khairati Lal S/o Sh. Amar Nath Kapoor R/o 216A, DDA Flat, Gazipur, Delhi96 in a sum of Rs.22 lac on 30.09.2012. The plaintiff also entered into an agreement/Bayana receipt dated 13.02.2013 in respect of his another flat bearing no. 228A, DDA Flats, Gazipur, Delhi96 for a total sale consideration of Rs.21 lac with Haji Rahees S/o Haji Ramjani R/o Mandawali, Fazalpur, Delhi and in this regard the plaintiff has already executed transfer documents i.e. GPA, Will, possession letter, affidavit, receipt, all dated 09.07.2013 in favour of the said purchaser and thus, the plaintiff (Satbir Rana accused) had arranged the entire sale consideration in time payable to the defendant under the agreement in question. Further in para no.11 also stated by accused/plaintiff Satbir Rana that the cause of action arose in favour of the plaintiff and against the defendants on dated 22.01.2013, when the defendants entered SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 47 of 101 into an agreement to sell with the plaintiff in respect of the suit property i.e. C42 and received Rs.20 lac on the same date from the plaintiff and further when the defendants did not reach at the office of the SubRegistrar on two dates i.e. on 18.04.2014 and on 22.04.2013 and further when the plaintiff sent a legal notice dated 07.05.2013 to the defendants and further when the defendants sent a false and frivolous reply dated 20.05.2013 to the plaintiff. Plaintiff/accused Satbir Rana also admitted through the said plaint that he has filed said criminal complaint case u/s 200 r/w Section 156(3) CrPC against the defendants and it continues to arise from day to day as the defendants have refused to do the needful and have been threatening the plaintiff to take forcible possession of the property admeasuring 200 sq. yards and seeking relief of decree of permanent injunction in favour of plaintiff thereby restraining them permanently from disposing off, transferring, creating third party interest in property bearing no. C42 measuring 400 sq. yards situated at Road no.4, C Block, Ghaziapur Dairy Farm, Delhi besides restraining them permanently from taking forcible possession of the property admeasuring 200 sq. yards out of 400 sq. yards SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 48 of 101 shown in the site plan filed.
53. In the Written Statement Ex.PW10/DX1 filed on behalf of Sanchit Girdhar and Darshan Singh (PW10) whereas contended that the suit filed by the plaintiff (Satbir Rana - accused) is liable to be dismissed as the plaintiff is guilty for forging the document and the document which the plaintiff has relied upon are false and fabricated and the plaintiff is liable to be prosecuted for creating false and bogus documents only with view to cheat the defendants. The Agreement to Sell is forged document and no money as alleged by the plaintiff was ever received by the defendants at any point of time, however, the plaintiff is a person who involved in several cheating cases and he is a habitual criminal. It is also submitted that he (Satbir Rana - plaintiff) is involved in case FIR No. 688/2006 u/s 384/420/452/468/471/506 IPC in Police Station Kalyanpuri and several criminal complaints were registered against him. It is also submitted that defendants never entered in any agreement with the plaintiff nor they have received any money from the plaintiff at any point of time and the signatures on the agreement are false and forged and the same are manipulated by the SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 49 of 101 plaintiff for filing the present false case. It is also submitted that there is no thumb impressions of the defendants upon the agreement to sale. It is also admitted in written statement that on 15.03.2013, the defendant no. 2 i.e. Darshan Singh (PW10) only executed documents in favour of Hazi Rahis S/o Abdul Hamid R/o L55, Welcome, Seelampur, Delhi at Noida, U.P. for the sale of other property and the plaintiff may be under the conspiracy with him or other person fraudulently may be obtained some signature on some paper while mixing the paper which was executed by the defendant no.2 with the impression that the defendant no.2 only selling one Dairy plot no. C42 area 212 sq. yards situated at Road no.5, Gazipur Dairy Farm, Delhi96 to Hazi Rahis. Defendant i.e. PW10 Darshan Singh even denied the same as well as relief as has been claimed being based on false and fabricated documents which have been bogus one and FIR No. 688/2006 u/s 384/420/452/468/471/506 IPC in Police Station Kalyanpuri already registered against accused Satbir.
C. Issue of quarrel and threat to PW09 Phool Kumar Jha:
54. PW1; PW2; PW3 and PW9 in their deposition categorically SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 50 of 101 stated that an altercation took place with PW9 and accused Satbir Rana o 13.10.2013. Accused Satbir Rana threated him and insisted him to goto his village when he was passing through the area of house of Vinod as he was working with him. On refusal to go to his village, accused Satbir Ran abused him and also started quarrelling and he suspected that Satbir and his son are involved in the murder of Vinod Pahalwan.
55. Keeping in view the aforesaid discussion and the material on record as well as the deposition of the prosecution witnesses i.e. PW1, PW 2, PW3, PW6 and PW7 to PW10 whereas it has been revealed that accused Satbir bearing grudge against deceased Vinod Pahalwan and evil eye on the plot bearing property no. C42, Gazipur Dairy Farm.
56. In a case of murder of deceased Vinod, who is also cousin of accused Satbir Rana and uncle of accused Nikhil Rana, it is difficult to know the exact motive in the mind of accused persons. The material available on record shows that the relationship between the family of accused Satbir Rana and family of deceased Vinod was strained due to the issue of Pradhani, issue of plot no. C42 and a quarrel of accused Satbir Rana with PW9 Phool SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 51 of 101 Kumar Jha @ Phulwa wherein PW1 and PW2 have intervened and hot words were exchanged between them and accused Satbir Rana resulting which the relationship between both were not cordial and accused persons were bearing grudge in order to take the revenge of snatching of his Pradhani against Vinod Phalwan as also intimidated to the deceased and his family members with dire consequences. As such, ipso facto the conclusion is that accused Satbir Rana bearing grudge against the deceased Vinod Pahalwan and his family members, the consecutive incidents of previous altercations and litigation regarding plot in question and issue of Pradhani, to show the motive of accused persons for committing the crime.
57. Therefore, in view of the above discussion, it is proved beyond all reasonable doubts that the motive for bearing grudge and taking revenge against deceased Vinod Pahalwan and his family has been established and proved by various unimpeachable evidence connecting accused persons with the crime and there is no negative evidence of anybody else as to the effect of enmity with deceased Vinod Pahalwan. The circumstantial evidence on record, as discussed above, proved beyond all reasonable doubts that SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 52 of 101 accused Satbir and his son Nikhil Rana were bearing grudge with deceased Vinod Pahalwan and have motive to commit the crime.
RECOVERY OF WEAPON OF OFFENCE AND MOBILE PHONE FROM ACCUSED PERSONS NIKHIL RANA AND MOBLE PHONE AND MOTORCYCLE FROM PARTH SHARMA:
58. Accused Nikhil Rana pointed out the place where the weapon of offence has been concealed, used in the commission of offence and it was hidden. It reflects the conduct of the accused which is admissible under Sec. 27 and Section 8 Indian Evidence Act, 1872. Irrespective of the fact that the conduct of accused persons within the scope of Section 8 of Indian Evidence Act and accused Nikhil Rana led the police party and PW6 Rajvir Singh who was also relative of deceased and Satbir & Nikhil. PW6 Rajvir Singh categorically testified in his deposition before the court repeated regarding recovery of weapon of offence and mobile phone used in the crime from the house of accused Nikhil Rana kept inside the wooden almirah on his instance. Said fact has been corroborated by PW29 SI Kiranpal and PW34 Insp. Vijay Kumar. The contention that there are variation in the signature of PW6 Rajbir, accused Nikhil Rana as well as SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 53 of 101 differ in handwriting on seizure memo has no relevance when prosecution witnesses have categorically identified their signature on all the memos and also gave their explanation with regard to sort of variation, if any. The cardinal principal of appreciation of evidence is that the court in considering as to whether the deposition of witnesses and/or the party is truthful may consider his conduct. PW6 Rajbir during his crossexamination has admitted to be alcoholic and remained admitted with Nasha Mukti Kendra twice and as such to be assumed to be truthful witness and not hidden anything.
59. The above discussion proved the recovery of weapon of offence i.e. pistol vide Ex.PW6/D and also of mobile phone vide Ex.PW6/E at the instance of accused Nikhil Rana vide seizure memo Ex.PW6/D from 2nd floor of his wooden almirah and mobile SIM no. 9871944979 and at the same time, mobile SIM no. 8527366582 recovered from accused Parth Sharma which belongs to his grandmother and motorcycle bearing registration no. DL5SBS2606 recovered at the instance of accused Parth Sharma belongs to PW13 Kaushal Kumar.
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60. PW6 Rajbir Singh is an independent public witness of recovery of pistol, mobile phone, motorcycle who has given his address as B64, Gali No.6, Gazipur Dairy Farm, Delhi and no material contradiction has been brought on record by ld. defence counsel that he used to reside at Ahmed Nagar, Block Khekhra, Distt. Baghpat, U.P. It is also contended by ld. defence counsel that on the day of recovery i.e. on 15.10.2014 at 5 p.m., he was in the company of DW2 Prakash S/o Jaipal as PW6 Rajbir was enjoying liquor party by celebrating birthday of grand daughter of DW2 Prakash, which has been denied vehemently. On perusal of testimony of DW2 Prakash as Ex. Pradhan of Vill. Ahmed Nagar, this court is of the view that his testimony is neither reliable nor trustworthy in the absence of any ocular corroborative piece of documentary evidence. Neither DW2 placed on record the birth certificate of his grand daughter Abhishi nor have placed on record any photography or videography for the same which shows that Rajbir was in his company on 15.10.2014. PW6 Rajbir in his examinationinchief categorically stated that he joined the investigation on SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 55 of 101 15.10.2014 at 5 p.m. along with police officials and went to house of accused Nikhil Rana at B63, Gali no.6, Gazipur Dairy Farm where accused Nikhil Rana took them to his room at second floor from where he took out one pistol and one mobile phone from a wooden almirah of his room. Accused Nikhil took out the magazine from the pistol himself and there were two live cartridges in the said magazine. Accused Nikhil disclosed that it was the same weapon with which he had murdered Vinod. The police officials prepared sketch of the pistol and live cartridges vide Ex.PW6/C and on the bottom of the cartridges, there were marking of KF 7.65. He also categorically stated that police seized one mobile phone and noted down its IMEI number in the seizure memo. He did not remember the complete IMEI number. The mobile phone make Nokia C7 of black colour which was also seized vide seizure memo Ex.PW6/E. He also identified the pistol, cartridges and Swift car bearing registration no. DL5CJ4166 (belongs to deceased Vinod and same is not disputed) as recorded in the evidence dated 07.12.2015 of PW3 Sanjay Kumar. PW6 Rajbir in his crossexamination on behalf of accused persons has denied the suggestion to this effect that he SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 56 of 101 has not participated in the investigation on 15.10.2014 or for the recovery of pistol and mobile phone from accused Nikhil Rana. It is further testified by PW6 Rajbir that his father is owner of H. No. B64 and electricity meter is installed in the name of Mahender, his real elder brother. It is denied that he was present in Vill. Ahmed Nagar, Block Khekhra, Distt. Baghpat on 15.10.2014. It is also denied that he was not shown the pistol and cartridges by the IO or both were not recovered from the house of accused Nikhil Rana or that the said pistol and cartridges were planted upon accused Nikhil Rana in connivance with PW3 Sanjay, brother of deceased. It is further vehemently denied that all writing work was done by IO in the police station. PW6 Rajvir Singh also shown his voter I.Card having his own photograph on the same which was taken on record vide Ex.PW6/DX.
61. With regard to the recovery of abovesaid articles, the accused persons in their statement recorded under Sec. 313 CrPC have denied the same and stated the factum of recovery of pistol and mobile phone from the wooden almirah kept in the room of accused Nikhil Rana and he took out the magazine of pistol which found containing two live cartridges. It is SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 57 of 101 answered during statement recorded under Sec. 313 CrPC by accused Nikhil Rana that recovery in the present case is fake and planted one. IO obtained his signatures and signature of his father forcibly in the present case and the story of prosecution is false and concocted one for which he went to lead his defence examination but there is no plausible defence to this effect.
62. So far as the contention under Sec. 313 CrPC in consonance with the sketch of pistol Ex.PW6/C and seizure memo of pistol and two live cartridges Ex.PW6/D, seizure memo of mobile phone Ex.PW6/E does not depict to be signed by accused Nikhil Rana and same were taken on blank papers by police though it reflected that it was written from top to bottom at the time of their preparation and obtaining the signatures of the concerned witness. The handwriting on Ex.PW6/C and PW6/D are same as well as signed and writing of PW6 Rajbir Singh as also depicted to be seen the word "Singh" is also signed on Ex.PW6/C and not on Ex.PW6/E and Ex.PW6/C which can be possibly made in the running hand. There is no suggestion that it was not signed by him or it was fake and manipulated one. The person sometimes writing/signing his full name and sometimes writing SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 58 of 101 and signing with short name be depend on the mental status at that time as in Ex.PW6/C. Ld. defence counsel also alleged that same was written in some different handwriting by some other police official. As per the statement of PW6 Rajbir Singh, in his examinationinchief as well as crossexamination that all the exhibits are prepared by IO in his presence at the spot. PW6 in his examination in chief dated 16.02.2016 at page no.2 stated that ".....I had signed sketch of pistol and cartridges. Same is Ex.PW6/C bearing my signature at point A. ..... Pistol was also measured by the IO. After that IO had prepared pullanda of pistol and two live cartridges. After that it was sealed by the IO with the seal of NAN03 and it was taken into possession by the IO vide seizure memo Ex.PW6/D bearing my signature at point A. My statement was recorded by IO. Police has also seized the mobile phone and noted down its IMEI number in the seizure memo.....". In cross examination on behalf of accused Nikhil Rana and Satbir Rana dated 17.07.2017, PW6 Rajbir stated that "..... SI Kiranpal alongwith twothree police officials were also present when such writing work was being done by the IO. I am signatory to all the recovery memos but I cannot tell as who SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 59 of 101 else had put signatures on them. I put signatures on these documents at house of Nikhil Rana at second floor....". It is denied that entire recoveries of pistol, mobile handset, cartridge was planted upon Nikhil Rana at Police Station by the Investigating Officer.
63. PW29 Kiranpal and PW34 Insp. Vijay Kumar, both have corroborative statement of PW6 Rajbir Singh with regard to the recovery of mobile phone and weapon of offence i.e. pistol along with two live cartridges with magzine from the house of accused Nikhil Rana and no suggestion in this regard was given to them. Similarly, recovery of mobile phone and motorcycle at the instance of accused Parth Sharma do not create any dent in the prosecution case and said aspect is duly corroborated with testimony of prosecution witnesses ..and statement of PW29 and PW34 and CDR of both mobile phone. It is trite law that the person who going to commit the crime will no use any SIM in their name and the PW13 and PW15 are close relatives of the accused Parth Sharma denied having over the mobile phone and motorcycle to accused Parth Sharma. The provisions of Sec. 106 Indian Evidence Act should have been taken in the present SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 60 of 101 circumstances.
64. To facilitate the matter, said Section is hereby reproduced as under:
Section 106 of the Indian Evidence Act 1872, illustrations
(a) when a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.
65. Recovery of mobile phone and motorcycle registration no. DL 5SBS2606 at his instance and in view of disclosure statement of accused Parth Sharma, Section 27 of Indian Evidence Act provide the founded on the principle that if the confession of the accused is supported by the discovery of a fact, the confession may be presumed to be true and not to have been extracted. It comes into operation only :
(i) if and when certain facts are deposed to as discovered in consequence of information received from an accused SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 61 of 101 person in police custody; and
(ii) if the information relates distinctly to the fact discovered.
66. Section 27 of Indian Evidence Act is to be pressed into service only to make admissible a statement to police, which is otherwise admissible leading to certain discovery relating to the offence. This section is applicable only where the confessional statement leads to the discovery of some new fact. The provision of Section 27 do not require that a voluntary statement must be signed by its maker or that the thumb impression must be affixed to it. The failure to obtained signature of the accused on the confessional statement recorded u/s 27 of Indian Evidence Act would not make the statement ipso facto as invalid in the eyes of law as it is not obligatory on the part of IO to take signature of the accused on it. If signature of the accused had been taken on such statement, it would not be illegal, as observed in the case. [Natrajan Vs. Union Territory of Pondicherry, 2003 CrlJ 2372, 2381; Jackeran Singh Vs. State of Punjab, AIR 1995 SC 2345; Baldev Soni Vs. State of MP, 2012 CrlJ 282 (para 25) (ChhDB)].
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67. A criminal trial is not an enquiry into the conduct of an accused, for any purpose other than to determine whether he is guilty of the offence charged. In that connection, that piece of evidence found the conduct of the accused can be held to be incriminatory which as no reasonable explanation except on the hypothesis of his guilt. The adverse conduct which destroys the presumption of innocence can alone be considered as material s discussed in case reported as Ananat Chintaman Lagu V. State of Bombay, AIR 1960 SC 500.
68. Therefore, in view of the recovery effected at the instance of accused Nikhil Rana and Parth Sharma is within the scope of Sec.27 and Sec. 8 of Indian Evidence Act and there is nothing contrary to show by either of these accused persons. Both these accused Nikhil Rana and Parth Sharma got effected the recovery of articles at their instance in presence of the prosecution witnesses.
CONTRADICTION, IMPROVEMENTS AND VARIATION:
69. So far as the lacunae and improvements as pointed out by ld.
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defence counsel as well as minor contradictions in the statements of PW6, PW29 and PW34 with regard to the recovery of incriminating articles, learned defence counsel has not observed the facet on the other side that deceased Vinod was murdered with gunshot injury and one of the bullet 7.65 bore hit him and recovered from his body. In case reported as Rajender Kumar Vs. State (supra), Hon'ble Apex court held that the circumstances which prove the guilt of the accused are however, not weakened at all by this fact that the motive has not been established. It often happens that only the culprit himself knows what moved him to a certain course of action by hiding the weapon, get the hair cutting and connection of CDR and CAF etc.
70. Qua contentions of ld. defence counsels that there are contradictions and variations in the statements of the prosecution witnesses, as already discussed above, though ld. defence counsels failed to prove that that are any material contradiction which may go to the root of the case and hamper the prosecution case in any manner, the Hon'ble Apex Court has laid down in catena of judgments that only major contradictions and discrepancies need be considered. Minor discrepancies are to be ignored.
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Reference to this effect in case reported as (2011) 6 SCC 279 A. Shankar v. State of Karnataka , wherein it was observed as follows:
"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety."
71. In another case reported as Appabhai Vs. State of Gujrat, AIR 1988 SC 696, Hon'ble Apex Court also observed as The discrepancies which are due to normal errors of perception or observation should not be SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 65 of 101 given importance. The errors due to the lapse of memory may be given due allowance."
72. Besides the above, Hon'ble Apex Court in catena of judgment from time to time observed that undue importance should not be attached to the statements made during investigation and recorded under Sec. 161 CrPC. The statement so recorded cannot be treated as evidence. However, it may be used for the limited purpose of impeaching the credibility of a witness [Ref.: Ram Sawroop V. State of Rajasthan, AIR 2004 SC 2943 (para 23)].
73. In case reported as Abdul Sayed vs. State of Madhya Pradesh (2010) 10 Supreme Court Cases 259, Hon'ble Supreme Court laid down :
"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a builtin guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.
SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 66 of 101 "Convincing evidence is required to discredit an
injured witness." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606bc), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.] PUBLIC WITNESSES:
74. One of the contentions of the learned defence counsels is that no independent witness has been cited while recovery of contravent articles from the accused persons, it is observed in Sanjay Vs. State (NCT of Delhi) 2001 CrlJ 1231 (para 30) that where the disclosure statement of the accused was proved by the testimony of a natural witness, a brother of the deceased present during investigation when he made the statement, the fact that no independent witnesses were associated with the recoveries, was held to be not sufficient to create doubt in the prosecution version. The statement of the police officer for recovery and other matters could be believed and could SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 67 of 101 form the basis of conviction but where the statement of such a witness is not reliable and does not inspire confidence then the accused would be entitled to the benefit of doubt in accordance with law. Mere absence of independent witness when the investigating officer recorded the statement of the accused and the articles were recovered pursuant thereto, is not a sufficient ground to discard the evidence of the police officer relating to recovery at the instance of the accused persons.
75. So far as the recovery at the instance of accused Parth Sharma, the prosecution examined PW13 Kaushal Kumar with respect to the motorcycle bearing registration no. DL5SBS2606 Ex.P3 and its photographs Ex.PW13/A1 to PW13/A5 and the witness has been declared hostile and did not support the case of the prosecution whereas denied that he has not given his motorcycle to accused Parth Sharma. Even on 21.07.2014, he has not given his motorcycle to anyone and the same remained with him. So far as the recovery of mobile phone as recovered from accused Parth Sharma which belongs to his grand father/PW15 Jagdish Mitter and he has also not supported the case of the prosecution SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 68 of 101 despite crossexamination whereas denied to be given his mobile phone no. 8527366582 to his grand son Parth Sharma at any point of time. Even on 21.07.2014, he had gone to Ghondli after visiting dentist at Parwana Road at 6.30 pm and after about one hour, he had left for Rajbir Colony, Ghondli. Though he has never stated that he returned at 6.30 pm and he was carrying his mobile phone at that time. Though on the contrary, PW14 Chander Shekhar, Nodal Officer, Bharti Airtel Ltd. in his statement has categorically stated that he has brought the CDR of mobile phone no. 8527366582 and 9871944979 for the period 01.06.2014 to 15.10.2014. He has brought the CDRs of both mobile numbers vide Ex.PW14/A and PW14/B and Certificate us/ 65B of I.E. Act Ex.PW14/C and CAFs of both mobile numbers along with supporting documents vide Ex.PW14/D and PW14/E. Mobile phone no. 9871944979 was issued in the name of one Jyoti D/o Ramji Lal and mobile no. 8527366582 was issued in the name of Jagdish Mitter S/o Laxman Dass. PW14 has also proved the tower location chart Ex.PW14/F (colly 12 pages). The investigation has been carried out and examined the CDRs and CAFs as well as call location chart with respect to SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 69 of 101 both mobile phones. The CDRs of alleged suspects Nazim, Shakir and Rashid were also verified but it was found at different places. After verification, the presence of Nazim, Shakir and Rashid were not found near the place of incident and even apart from that, there is no incriminating evidence found against the alleged suspects Nazim, Shakir and Rashid and after detailed interrogation, they have let off from this case by the Investigating Officer. So far as the CDRs of both accused Nikhil Rana and Parth Sharma have been analyzed and it revealed that on 21.07.2014, accused Nikhil Rana made a telephone call at 18:44:38 to mobile no. 8527366582 (the cell phone belongs to grand mother of accused Parth Sharma and was being carried by the accused Parth) and talked about 54 seconds, the location of mobile no. 8527366582 was at Jitar Nagar at that time and accused Nikhil Rana made a telephone call again at 19:40:52 to mobile no. 8527366582 and talked about 57 seconds, the location of mobile no. 8527366582 was at Jitar Nagar at that time too whereas during both calls, the location of mobile no. 9871944979 (mobile phone of accused Nikhil Rana was at A12/224, Harijan Basti, Rajbir Colony, Gharoli, Delhi.
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At 20:32:15, the location of mobile no. 8527366582 was at A12/224, Harijan Basti, Rajbir Colony, Gharoli which clearly indicate that accused Parth Sharma has reached at the same location where Nikhil Rana was present hence, they both were together at 20:32:15, on the day of incident. The location of mobile no. 8527366582 usually found at and around Jagatpuri. The mobile phone no. 9871944979 went switched off at 19:40:52 while the location of the mobile phone was at A12/224, Harijan Basti, Rajbir Colony, Gharoli, this clearly indicate that both the accused switched off their mobile phones from the same locations. After that mobile no. 8527366582 was switched on at 22:12:04 with its location at Gali no.4 Jagatpuri and the mobile no. 9871944979 was switched on at 21:34:21 while having its location at B34 Road no.2, Gazipur Dairy Farm. The pattern of call details as per CDRs and location chart created strong evidence. Hence, on the basis of the disclosure statement and admission made by accused Nikhil Rana and Parth Sharma which lead to the recovery of incriminating articles create the needle of guilt towards them though, PW11 Kaushal Kumar and PW15 Jagdish Mitter are interested witnesses being relative SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 71 of 101 who have been made a contradictory statement to the recovery of said articles at the instance of accused Parth Sharma though made connection of their assembly to the place of incident. PWs13 and PW15 are interested witnesses and their testimony is not reliable as in pursuance to the disclosure statement, accused led to the recovery of the incriminating articles, as per Sec. 27 of Indian Evidence Act. In the instant case, information given by accused persons lead to the recovery of the mobile phone and motorcycle, weapon of offence and analysis of CDRs and call location chart proved the presence of both accused Nikhil Rana and Parth Sharma nearly the place of incident and Blue Gym too. As per the DD No. 63 dated 21.07.2014 at 22:02 hours, the incident of shot fire took place after 6.30 p.m. PW15 Jagdish Mittar stated that mobile phone remained with him till 6.30 p.m. Therefore, he has not stated categorically that the said mobile remained with him after 6.30 p.m. On the contrary, accused Nikhil Rana never alleged that the said mobile phone allegedly recovered from him was not in his possession when the Jyoti, registered owner of said moble phone, is no more in this world. It is upon the accused persons to disprove by SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 72 of 101 examining ocular trustworthy evidence in their defence to defuse the recovery but no such defence witness was examined. The said recovery of pistol, mobile phone and motorcycle recovered from the accused persons Nikhil Rana and Parth Sharma has been proved by prosecution with help of prosecution witnesses including public witnesses. CONTENTIONS QUA FAUALTY INVESTIGATION:
76. Besides the above, contentions of the ld. counsels that investigation is faulty, Hon'ble Apex Court in catina of judgment from time to time observed that accused persons cannot take the shelter of faulty investigation, if otherwise case of the prosecution is strong. In Dhanaj Singh Vs. State of Punjab, 2004 Crl. LJ 1807 at 1809 (SC) and also Karnel Singh Vs. State of M.P., 1995 (5) SCC 518, Hon'ble Apex Court observed that in case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective.
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Contentions qua offence punishable under Sec. 120B IPC:
77. Having regard to the criminal conspiracy, it is to be seen that earlier to the introduction of Sec. 120B IPC, conspiracy per se was not an offence. Criminal conspiracy is an independent offence. It is punishable separately. There may be an element of abetment in a conspiracy, but conspiracy is something more than abetment. To establish a charge of criminal conspiracy, the prosecution must prove an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means provided that where the agreement is other than or to commit an offence, the prosecution must go further and prove that some act besides the agreement was done by one or more of the parties in pursuance of it.
78. Criminal conspiracy has been defined under Sec. 120A IPC.
Under Sec. 120A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means, when it is a legal act by illegal means over act is necessary.
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Offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is that all the accused have the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever, horrendous it may be, that offence be committed.
79. Act subsequent to the achieving of the object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act which may be unlawful, would not make the accused part of conspiracy like giving shelter to an absconder.
80. Each conspirator can be attributed to each other's action for conspiracy. Under Sec. 10 of Indian Evidence Act conspiracy is punishable independent of its fruitation. The principle of agency as a rule of liability SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 75 of 101 and not rule of evidence has been accepted both by the Privy Council and Hon'ble Apex Court in Nalini's Case (1999) 5 SCC 253 in which it is explained that joined and every said written things done for common purpose is deemed to have by each one of them.
81. The agreement is gist of the offence. In order to constitute a single general conspiracy there must be a common design in furtherance of common design. Each appropriator plays its separate part in its integrated and unitedly to achieve common purpose. Each one is aware that he has participated to play in general conspiracy though he may not at all, it secret or by mean by which common purpose is to be accomplice. The evil scheme may be promoted by some or some may dropped or some may joined at later stage, but the conspirator continued until it is broken. The conspiracy may develop in success stage. There may be general plan to accomplice the common design by such means as from time to time may found expedient.
82. In a case where conspiracy is alleged, court must enquire for what they have come together to pursuant to the unlawful object. The former does not render conspirator but the later does for the offence of conspiracy SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 76 of 101 some kind of physical manifestation of agreement is required to be established. The evidence as to the transmission of through sharing the unlawful acts is not sufficient to conspiracy. Conspiracy is continuing offence till it is executed or reascended or frustrated by choice of necessity. During its substantiate whenever anyone of the conspirator he would be held guilty under Sec. 120B IPC.
83. In case of State of H.P. Vs. Krishan Lal Pradhan (1987) 2 SCC 17 it was held that the offence of conspiracy is consisted of meeting of mind of two or more persons for doing an illegal act or an act by illegal means for performance of act. Therefore pursuance to the criminal conspiracy conspirator to do many act, and all of them are liable if any one committed any part at any point of time.
84. Perusal of the record of this case is crystal clear that no witness has ever been cited or produced or examined on behalf of the prosecution to the effect that anyone of them have ever heard and seen them at any occasion about hatching criminal conspiracy to commit any offence by any of the accused persons. Besides the above, there is no iota of evidence, either SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 77 of 101 oral or documents or electronic one which show that at any point of time these accused persons have ever conspired to commit any offence. From the perusal of the record, it is amply clear that there is nothing on record which may whisper to the effect that any criminal conspiracy was ever hatched to commit the crime. There is no evidence regarding prior meeting of the accused persons at any point of time before committing the offence, there is no other incriminating article or any other circumstance to hatch any criminal conspiracy to commit any such offence ever being produced on record by the prosecution. In order to prove the criminal conspiracy which is punishable under Section 120B IPC, there must be direct or circumstantial evidence to show that there was prior agreement between two or more persons to commit an offence. In Parliament attack case, the accused had never contacted the deceased terrorist on place but had helped one of conspirators to flee a safer place after incident was not held guilty as conspirator, as observed in the case titled as State NCT of Delhi Vs. Navjot Sandhu, [2005 (Crl.J. 3950 (SC)].
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85. It is also settled law that common intention and conspiracy are matters of inference and if while drawing an inference any benefit of doubt creeps in, it must go to the accused. Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view. Direct evidence in proof of a conspiracy is seldom available, offence of conspiracy can be proved by either direct or circumstantial evidence. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference. The offence of criminal conspiracy is of a technical nature and the essential ingredient of the offence is the agreement to commit an offence. "A conspiracy" consists, not merely in the intention of two or more but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. So long as such a SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 79 of 101 design rests in the intention only it is not indictable. When two agree carry into effect, the very plot is an act itself.
86. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences. To constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 80 of 101 others, it will not affect the culpability of those others when they are associated with the object of the conspiracy.
87. In the instant case, the material on record and disclosure statement of any of these accused persons do not reflect in any manner that Satbir Rana has hatched any criminal conspiracy to commit the murder of deceased Vinod Pahalwan or Parth Sharma and Nikhil Rana have ever prior meeting of mind to have any intention to commit the murder. There is no whisper of evidence on this aspect as per the ingredients of Section 120B IPC, as defined under law.
88. With the above discussion, this court is of the view that prosecution has failed to bring home the guilt of any of these accused persons for the offence punishable under Sec. 120B read with Sec. 302 IPC and thus, on this account, the prosecution case falls flat. Accordingly, all accused persons namely Nikhil Rana, Satbir Rana, Parth Sharma, Brijesh and Rupesh are hereby acquitted for the offence punishable under Section 120B IPC.
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Contentions against accused Parth Sharma for the offence punishable under Sec. 202 IPC:
89. Section 202 of the Indian Penal Code defines as - whoever knowing or having reasons to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give.
90. Undoubtedly, accused Parth Sharma did not inform the police about murder of deceased.
91. Though charge under Sec. 201 IPC has not been framed against this accused, but it is well settled law that accused can be held guilty for other offence, though charge not framed.
92. In Wasim Vs. State of NCT of Delhi, 2018 X AD (DELHI) 442, taking shelter of observations made in Gurnain Singh's case (supra) court in its para 18 observed:
"xxxxx20. There is no dispute that no charge was framed under Section 306 IPC.
Though the charge has not been framed under Section 306 yet on a question that has been put SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 82 of 101 under Section 313 Cr.P.C., it is clear as crystal that they were aware that they are facing a charge under Section 304B IPC which related not to administration of poison but to consumption of poison by the deceased xxxxxxxx The test is whether there has been failure of justice or prejudice has been caused to the accused.
21. In Gurbachan Singh v. State of Punjab [MANU/SC/0132/1957 : AIR 1957 SC 623: 1957 Cri. L.J. 1009], this Court examined the question of prejudice and held as under:
(AIR p. 626, para 7)"7. ... in judging a question of prejudice, as of guilt, courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself."
22. In Shamnsaheb M. Multtani v. State of Karnataka [MANU/SC/0047/2001: (2001) 2 SCC 577: 2001 SCC (Cri.) 358], a threeJudge Bench, while dealing with the concept of "failure of justice", has opined thus: (SCC pp.
58586, paras 2324) "23. We often hear about failure of justice' and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression failure of justice' would appear, sometimes, as an SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 83 of 101 etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment [MANU/UKHL/0007/1977 : 1978 AC 359:
(1977) 2 WLR 450: (1977) 1 All ER 813 (HL)]). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.
24. One of the cardinal principles of natural justice is that no man should be condemned without being heard (audi alteram partem). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, if the aspect is of such a nature that nonexplanation of it has contributed to penalising an individual, the court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of noncompliance with the principle of natural justice."
93. Hence, in view of the above, it is clear that though another charge of causing the evidence to disappear has not been framed to accused Parth Sharma but accused was well aware that allegations were levelled against him to the effect that he fully knew or having reasons to believe that SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 84 of 101 an offence has been committed and caused any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, accused can be held guilty for the said offence
94. To facilitate the matter, Section 201 Indian Penal Code is reproduced as under:
Causing disappearance of evidence of offence, or giving false information to screen offender - Whoever, knowing or having reasons to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he known or believes to be false; xxxx
95. On this issue, it has come on record to the effect that it was accused Parth Sharma fully knowing and having reasons to believe that an offence of murder has been committed, caused evidence of the commission of that offence to disappear, with the intention of screening the offender Nikhil Rana from legal punishment whereas concealed the mobile phone and motorcycle.
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96. The PWs 13 & 15 are owners of mobile phone and motorcycle, recovered at the instance of said accused namely Parth Sharma, as per the provisions of Sec. 27 Indian Evidence Act. Though PW13 and PW15 have deposed that mobile phone and motorcycle remained in their possession on the date and time of murder. Now burden shifts upon them to prove under Sec. 106 Indian Evidence Act to prove it counter. The CDR and CAF is evidence on this count and having the location and call details on the date of incident, which also create doubt against accused Parth Sharma. As such, prosecution has fully established its case against accused Parth Sharma for the offence punishable under Sec. 201 IPC and 202 IPC.
Contentions against accused Satbir Rana @ Gnehta for the offence punishable under Sec. 201 IPC & 202 IPC:
97. Allegations against this accused Satbir Rana, father of accused Nikhil Rana, are that he got destroyed the recording contained in disk of CCTV installed at his house and also omitted to give information about murder being committed by his son namely Nikhil Rana. It is the case of the prosecution that information about murder of deceased has not been given SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 86 of 101 by Satbir Rana. Rather at initial stage he protested against the police that police was not taking action against suspects. No suggestion was put to any of the prosecution witness including the Investigating Officer that this accused namely Satbir Rana did not commit any such offences. Rather suggestions were put to the effect only that signatures were obtained on some papers. During disclosure statement made by accused Satbir, he clearly admitted/confessed that he came to know about the commission of the said offence by his son Nikhil Rana and in order to conceal him, he directed Nikhil Rana to get his hair short and deleted the recording of CCTV installed at his house and even concealed the weapon of offence and mobile phone used in the crime. PW11 Mohd. Nizam, running hair saloon, deposed that on the last visit on one Wednesday, Nikhil came and got his hair short.
English calendar of 2014 shows that 21.07.204 falls on Monday. As per the disclosure statement of this accused, he came to know about commission of murder on next day and then he directed Nikhil to get his hair short and also suggested the name of other persons in order to divert the attention of the police. It clearly indicates that it might be Wednesday on which day Nikhil SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 87 of 101 went to hair saloon for getting his hair cut. Though PW11 Mohd. Nizam did not mention the date but he specifically mentioned the day on which Nikhil Rana visited his shop and got cut his hair. The suggestion was put on behalf of this accused that accused Nikhil never visited his hair saloon and said suggestion was vehemently denied by this witness. There is no reason as to why this witness would depose falsely particularly when there is no illwill, grudge or enmity has either been alleged or proved against him. This advice was given to accused Nikhil Rana as it has come to the notice from PW23 Sanjeev Trehan had seen one person who was having long hair, ran away from the spot after committing the crime. This all shows that it was accused Satbir Rana @ Ghenta who fully aware and having reasons to believe that an offence of murder has been committed by his son Nikhil Rana and caused disappeared the evidence of the commission of that offence, with the intention of screening his son accused Nikhil Rana from legal punishment and even intentionally omitted to give information of murder of Vinod by Nikhil Ranan to the police in order to screen the real offender as well as misguided to the complainant Sanjay and police by giving wrong SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 88 of 101 information for misleading the police by naming three other persons as Nazim, Shakir and Rashid.
98. As mentioned above, accused can be held guilty for the offence though charge not framed.
99. To facilitate the matter, Section 203 IPC is reproduced as under:
Whoever knowing or having reason to believe that an offence has been committed, gives any information respecting that offence which he knows or believes to be false, shall be punished xxx
100. Sections 201 IPC and 203 IPC contemplate information given to private persons as well as public servants. First Information reports under Sec. 154 CrPC are covered by sections and for holding this view, court is taking shelter from the case reported as State of Kerala V. Markose, AIR 1962 Ker. 133.
101. As per the prosecution case, this accused misled the police and public persons by raising suspicion on three other persons and even protest was made with other persons. PW3 Sanjay is also to the witness to this SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 89 of 101 effect. Investigating Officer also deposed about the same. Accused never denied this factum. Even stand of the accused is also that police let off the persons who were earlier suspected. It is the only after thorough investigation by the police needle of guilt came towards the accused persons.
102. With the above discussion and observation, this court is of the view that prosecution has been able to prove its case beyond all reasonable doubts against accused Satbir Rana @ Gheta for the offences punishable under Secs. 201 IPC; 202 IPC and also 203 IPC. Accordingly, this accused namely Satbir Rana @ Ghenta is held guilty for the offences punishable under Sections 201 IPC; 202 IPC and 203 IPC and is convicted accordingly.
103. At this stage, court is of the view that it is not out of place to mention here with a famous Urdu couplet by famous Urdu poet Krishan Bihari Noor epitomizes all:
"Sach Ghate Ya Bade, To sach Na Raye Jooth ki Koi intayaha hi nahi Translated it means: That by definition real truth is only one, if you mix something in truth, it will not remain truth any more, it may though be something near truth, but not truth whereas there is no limit to false hood SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 90 of 101 which can be stretched to any limit.
Role of Nikhil Rana:
104. Now, court shall deal with the offences for which accused Nikhil Rana has been charged with i.e. for the offences punishable under Sec. 302 IPC; 201 IPC and 27/25 Arms Act, one by one.
105. First of all, court will analysis the material qua offence punishable under Sec. 302 IPC:
106. Material on record and in view of the discussion made in the preceding paras, court came to conclusion that there was enmity between family of deceased and family of Nikhil Rana. At the initial stage, case was investigated for others suspects Nizam, Shakir and Rashid and from the thorough investigation, when no iota of evidence from any angle was found against any one of them, they were let off and on material collected against accused Nikhil Rana with other accused persons case was investigated in connected with other accused persons. CDR and call location chart including the statement of PW11 Mohd. Nazim; PW18 Ravi Chopra and PW22 Sanjeev Trehan needle of suspicion was created that it was accused Nikhil SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 91 of 101 Rana who was present on the date and time of incident near and at the place of incident. Very interestingly, no such suggestion was put to any of these public witnesses including the Investigating Officer that accused Nikhil Rana never present near the spot nor did commit such crime. Rather suggestions were put in other way beating about the bushes that accused persons were implicated falsely in this case with connivance of the complainant and the documents for recovery of weapon and mobile phone were forged and fabricated or that PW Sanjay wanted to blackmail and fabricated documents of C42, Gazipur Dairy Farm.
107. Admittedly, in the case in hand, deceased died on account of firearm injury sustained by him on 21.07.2014 near Gazipur Toll Tax Road NH24 coming from the side of UP.
108. Postmortem report vide Ex.PW16/A. External injuries are found on the body of deceased Vinod are as follows :
1) Firearm entry wound 1.4x1.2 cm over right side lower end at pinnac with singeing, burning, blackening in surrounding area 3x1.5 cm margins irregulars inwards directed above downwards right to SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 92 of 101 left, 153 cms above heel and 13 cms from midline.
2) Firearm entry wound, 1.8x1.5 cms over right anterio medial side of neck with singeing, burning and blackening in surrounding area 2.5x2 cms, margins irregular, inwards directed backward, inwards right to left, 147 cms above heels 3 cms from midline.
3) Firearm entry wound, 1.5x1 cms, over right lateral side at neck, no singeing, burning or blackening present, 150 cms above heels 7 cms from directed inwards, downwards right to left side.
4) Fire arm exit wounds 1.5x9 cms, above heels 8 cms. From midline margins oriented.
5) Firearm exit wound, 1.8x1 cms, over left mandible region, 149 cms above heels 6 cms from midline margins oriented.
109. Cause of death was opined as "Shock and hemorrhage due to firearm injury xx, all injuries are antemortem in nature and recent in duration. Injury no.1, 2 and 3 individually and collectively are sufficient to cause death in ordinary course of nature". Time since death was given as 1420 hours.
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110. In case reported as Sukhwant Singh V. State of Punjab decided on 28.03.1995, Hon'ble Apex Court observed that it hardly needs to be emphasised that in cases where injuries are caused by fire arms, the opinion of the ballistic expert is of considerable importance where both the firearm and the crime cartridges are recovered during the investigation to connect an accused with the crime.
111. With the above discussion and material placed on record as well as the oral and documentary evidence duly supported with judgments of Hon'ble Apex Court, chain of evidence link with each other led the accused Nikhil Rana towards the guilt that it was accused Nikhil Rana who caused firearm injury to deceased on 21.07.2014 at the time and place of incident and on account of it, deceased Vinod Pahalwan died and as such, accused Nikhil Rana committed an offence punishable under Sec. 302 IPC. As such, accused Nikhil Rana S/o Sh. Satbir Rana is hereby held guilty for the said offence punishable under Sec. 302 IPC and is convicted accordingly.
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112. Now let us discuss the matter on the issue of 201 IPC, charge framed against accused Nikhil Rana
113. To prove the said offence, prosecution took help of PW11 Mohd. Nazim; PW18 Ravi Chopra; PW22 Sanjeev Trehan and PW6 Rajvir Sigh and deposition of police officials. Evidence of PW11 Mohd. Nzium has already been discussed qua observations made while discussing the matter for coaccused Satbir Rana. PW2 Smt. Babita also denied the suggestion that earlier accused Nikhil Rana was not having long hair or having short hair after death of deceased and connected with CDR including call location chart. With all the material on record including the observations made, as discussed above, court is of the view that it was accused Nikhil Rana who fully knowing and having reasons to believe that an offence of murder has been committed, caused disappearance of evidence of the commission of that offence, as mentioned above i.e. by getting his hair short after commission of offence, as per directions of his father, and thereby, committed an offence punishable under Sec. 201 IPC. Accordingly, accused SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 95 of 101 Nikhil Rana is found guilty for the offence punishable under Sec. 201 IPC, beyond all reasonable doubts and he, is convicted accordingly. Material and contentions about charge for the offence punishable under Sec. 27/25 Arms Act for accused Nikhil Rana
114. Qua this offence, for which accused Nikhil Rana has been charged, plea of the ld. defence counsel is that evidence of FSL expert is not reliable as he gave evasive replies to the queries raised by defence counsel and testimony of the prosecution witnesses is full of contradictions and improvements and same makes the prosecution case doubtful.
115. First of all, qua one of the contentions that FSL expert is giving evasive reply is not tenable in the eyes of law. Perusal of the FSL report, it is crystal clear to the aspect that defence is trying to beat the bushes and not stuck on the issue in question. Qua second issue that there are contradictions and improvements in the statements of witnesses, matter has already been discussed at length in the preceding paras of the judgment. No illwill, grudge or enmity has either been alleged or proved against any of the police official for false implication of the accused at their hands. Apart from that, it SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 96 of 101 is also to be kept in mind that every person has its own wisdom and style to narrate the incident, if occurred in his presence.
116. Qua the offence punishable under Sec. 27 Arms Act, the defence counsel argued that nothing has come on record which may connect the alleged weapon of offence with the crime in question quoting the cross examination of PW36 Sh. N.B. Bardhan, Director FSL, whereby said witness explained about appearance of grooves and lands and striation pattern/marks.
117. Perusal of the record is crystal clear that this witness i.e. PW36 N.B. Bardhan examined the exhibits sent to FSL. It is common experience that lands and grooves and striation pattern of any arms and ammunition cannot match with other one under any circumstance. Perusal of report Ex.PW36/A via Result of examination under (ii) and (iii) with its notes, it is clear that weapon of offence recovered at the instance of accused Nikhil Rana and bullet recovered from the body of deceased are from one pistol. Sanction has been accorded for the same and has been duly proved by PW 35 Sh. Surender Kumar, Addl. DCP as Ex.PW35/A. Though this witness SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 97 of 101 was crossexamined at length on behalf of Nikhi Rana but nothing has come on record which may go to the root of the prosecution case and hamper the prosecution case in any manner. It is well settled that the police officials are competent witnesses and conviction against the accused can be based on their sole testimony but an onerous duty has been cast upon the court to scutrtinise their statements very closely in order to form an opinion whether they are reliable and trustworthy. As mentioned above, nothing has come on record which may adversely affect to the prosecution case in any manner that it was accused Nikhil Rana who got recovered the weapon of offence with two live cartridges used in the crime of murder.
118. With the above discussion court is of the view that prosecution has able to prove is case beyond all reasonable doubts against accused Nikhil Rana for the offence punishable under Sec. 27/25 Arms Act. As such, accused Nikhil Rana is held guilty for the offence punishable under Sec. 25 Arms Act and 27 Arms Act and is convicted as such.
Contentions qua the offence punishable under Sec. 174A CrPC for accused persons Brijesh and Rupesh:
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119. Qua offence punishable under Sec. 174A IPC against accused persons Brijesh and Rupesh, from perusal of the material on record, it is clear that processes under Sec. 82 and 83 CrPC were issued against both of these accused persons and despite that both of them failed to appear before the court and thus both of them declared proclaimed offenders. Though both these accused persons took plea that processes were not served upon them and they were very much available at the given address, such contention is not tenable. On the one hand, they took plea that they have been booked in this case being relative of Satbir Rana, on the other hand, their plea is that they were unaware about their involvement in the present matter. One cannot be hot and cold in same breath. As mentioned above, it is well settled that the police officials are competent witnesses and conviction against the accused can be based on their sole testimony but an onerous duty has been cast upon the court to scutrtinise their statements very closely in order to form an opinion whether they are reliable and trustworthy.
120. As the prosecution has proved its case against the accused persons namely Brijesh and Rupesh that they failed to appear before the SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 99 of 101 court despite due execution of the processes issued to them and even were declared proclaimed offender, the accused persons namely Brijeseh and Rupesh are separately held guilty for the offence punishable under Section 174A IPC and are convicted accordingly.
121. It is not out of place to mention here that judgments relied upon by defence side are not useful for the accused persons as each case has to be looked into its own peculiar facts and circumstances. Conclusion:
122. The prosecution has proved the chain of circumstances which was not broken and sum up of the above discussion is that;
(i) prosecution has failed to prove its case against any of these accused persons for the offence punishable under Sec. 120B IPC r/w Sec. 302 IPC and all the accused persons namely Nikhil Rana; Satbir Rana; Parth Sharma; Brijesh and Rupesh are acquitted of the offence punishable under Sec. 120B IPC read with Sec. 302 IPC;
(ii) prosecution has been able to prove its case beyond all reasonable doubts against accused Parth Sharma for the offences punishable under Secs. 201 IPC and 202 IPC and as such, he is held guilty for said offences and is convicted accordingly;
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(iii) prosecution has been able to prove its case beyond all reasonable doubts against accused Satbir Rana @ Ghenta for the offences punishable under Secs. 201 IPC; 202 IPC and 203 IPC and as such, he is held guilty for said offences and is convicted accordingly;
(iv) prosecution has been able to prove its case beyond all reasonable doubts against accused persons Brijesh and Rupesh for the offence punishable under Sec. 174A IPC separately as such, both these accused persons namely Brijesh and Rupesh are held guilty for said offence and are convicted accordingly;
(v) prosecution has also been able to prove its case beyond all reasonable doubts against accused Nikhil Rana for the offences punishable under Secs. 302 IPC; 201 IPC and also under Sec. 25 Arms Act & 27 Arms Act. As such, said accused namely Nikhil Rana is held guilty for said offences and is convicted accordingly.
Announced in the open Court SATINDER Digitally signed by SATINDER KUMAR GAUTAM Dated: 01st Oct. 2019 KUMAR GAUTAM Date: 2019.10.01 16:57:14 +0530 (Dr. Satinder Kumar Gautam) Additional Sessions Judge03 (East) : Karkardooma Courts : Delhi. SC No. 1422/16 State Vs. Nikhil Rana etc. SC No. 2112/16 State Vs. Brijesh etc. Page No.: 101 of 101