Delhi District Court
Delivered In Amarjeet vs . State Of Punjab 1995 Suppl. (3) Scc on 7 February, 2013
IN THE COURT OF SH RAJ PAUL SINGH TEJI:
ADDL.SESSIONS JUDGE03(OUTER)
ROHINI COURTS:DELHI
I.D. No. 02404R0658672007
State
Vs
1.Surender S/o Sh Azad Singh R/o Village Pooth Khurd, Delhi.
2. Surender @ Sonu S/o Sh Silak Ram R/o Village Pooth Khurd, Delhi.
3. Ajit Singh S/o Sh Zile Singh R/o House No. 1432, Gali No. 7B, Swatantar Nagar, Narela, Delhi.
SC No. 07/2008 FIR No. 386/2007 P.S. Bawana U/s 302/216/109 IPC & 25/27 Arms Act Date of Institution : 11.11.2008 Arguments heard on : 4.12.2012, 12.12.2012 & 29.01.2013 Order pronounced on : 07.02.2013 J U D G M E N T
1. All the accused persons were sent up to face trial for the commission of offence punishable U/s 302/216/109 IPC & 25/27 Arms Act by the police of P.S. Bawana.
2. Brief facts of the prosecution case are that on 13.07.2007 on SC No. 07/2008 Page No. 1 of 27 receipt of DD No. 2A, SubInspector Satya Pal Singh alongwith Ct. Harkishan, Ct. Satish and Ct. Jitender reached the spot i.e. Ganga Toli Road, Plot No. 786 where blood was found lying scattered on the road. One empty cartridge, two lead of cartridge, a pair of plastic chappal and one other chappal was found lying on the spot. One danda was also found lying there on the spot. One motor cycle bearing No. DL8SK7977 was found stationed inside the plot and during investigation it was revealed that motorcycle was that of deceased Dharambir Singh. No eyewitness met them at the spot. After leaving Ct. Jitender at the spot, SI Satya Pal Singh reached MB Hospital, Pooth Khurd and collected the MLC of deceased Dharambir on which doctor has made the endorsement "H/o gun shot injury and patient brought dead". No eyewitness was found available in the hospital. Leaving Ct. Satish for the safeguard of the dead body, SI Satya Pal Singh alongwith Ct. Hari Kishan returned to the spot where Sanjay Kumar @ Babbal met them and got recorded his statement Ex. PW 3/A. SI Satyapal Singh made his endorsement on the statement of Sanjay and send the tehrir to police station through Ct. Hari Kishan for registration of the case. After registration of the case, investigation was carried out by Inspector/ SHO P.S. Bawana. Crime team was called at the spot and spot was got photographed. Exhibits were collected from the spot. Site plan SC No. 07/2008 Page No. 2 of 27 was prepared at the instance of complainant. During investigation,motorcycle of accused Surender bearing Regn. No. DL8SNA0281 was found parked near the field of Balraj Pahalwan which was taken into possession. Postmortem was got conducted on the dead body of deceased Dharambir and after the postmortem examination, dead body was handed over to legal heir of deceased. Efforts were made to search the accused Surender, however, he could not be traced. During investigation, it was found that after the incident, accused Surender had gone to the house of his brotherinlaw namely Ajit Singh who concealed him in order to prevent him being apprehended in this case. Thereafter house of Ajit Singh was raided, however, neither Surender nor Ajit Singh were found present in the court. Notice U/s 160 Cr.P.C. was given to the wife of Ajit Singh on behalf of Ajit Singh, however, she had refused to accept the notice and did not cooperate in the investigation. Thereafter call details of land line telephone N. 65236077 installed at the house of accused Surender Singh and that of mobile No. 9213636085 belonging to Ajit & land line number 65769128 were obtained and it was revealed that Ajit Singh was in contact of accused Surender and was preventing him from arrest. Thereafter on 22.07.2007 an information was received at P.S. Bawana that accused Surender S/o Azad Singh has surrendered before the court of Sh Rajesh SC No. 07/2008 Page No. 3 of 27 Sharma, Judicial Magistrate, Sonipat. On the same day, Naresh got recorded his statement to the police wherein he had got recorded that Sonu had helped him in the commission of offence and that he had seen Sonu giving pistol to Surender. On 23.07.2007 accused Surender was arrested after seeking permission from the court and his transit remand was obtained. Accused Surender made a disclosure statement regarding the commission of offence and also disclosed that Sonu and Ajit had helped him in absconding. Accused Surender had further disclosed that pistol was provided by accused Sonu which was used in the commission of offence. Accused Surender again made a disclosure statement and got recovered the weapon of offence i.e. pistol from Bawana. Pistol was checked and one live cartridge was recovered from the magazine of pistol. Thereafter accused Surender pointed out the place where he had left his motorcycle after the commission of offence. At the instance of accused Surender, coaccused Surender @ Sonu S/o Silak Ram was arrested who too made disclosure statement wherein he disclosed that he had provided pistol to coaccused Surender and also helped him from not being apprehended. Accused Surender @ Sonu also got recovered one live cartridge of 9mm which was taken into possession after preparing the sketch of the same. Accused Ajit Singh was formally arrested as he had SC No. 07/2008 Page No. 4 of 27 obtained anticipatory bail. Accused Ajit Singh made a disclosure statement, however, he refused to sign the disclosure statement. Scaled site plan of the spot was got prepared. Exhibits of the case were got deposited in FSL. Permission under Section 39 Arms Act was obtained. After completion of investigation, charge sheet for the offence U/s 302/216/120B IPC & 25/27 Arms Act was filed against the accused persons before the concerned court of Ld. M.M. Since the offence committed by accused persons was exclusively triable by the court of Sessions, Ld. M.M. committed the case to the court of Ld. District & Sessions Judge. Thereafter this case was committed to this court for trial.
3. After hearing the arguments of both the parties on the point of charge, a primafacie charge U/s 302 IPC & 27 Arms Act was served upon accused Surender S/o Azad Singh; a primafacie charge U/s 216 IPC was served upon accused Ajit Singh and a primafacie charge U/s 109 read with Section 302 IPC& 25 Arms Act was served upon accused Surender @ Sonu S/o Silak Ram. All the accused persons pleaded not guilty to the aforesaid charge and claimed trial.
4. Prosecution in support of its case has examined as many as twenty five witnesses.
5. PW 1 SI Manohar Lal is a draftsman who prepared the scaled site plan and proved the same as Ex. PW 1/A which bears his SC No. 07/2008 Page No. 5 of 27 signature at point A.
6. PW 2 is Dr. Yudhvir Singh who prepared the MLC of deceased and proved the same as Ex. PW 2/A which bears his signature at point A.
7. PW 3 Sanjay is a material witness who in his testimony recorded on 14.10.2009 did not support the case of prosecution case, however, on 14.12.2009 when this witness was recalled for cross examination on behalf of accused Surender, he volunteered that whatever he stated on the last date of hearing was not the true facts and stated that he wants to depose the true facts and as such his testimony was again recorded on 14.12.2009. In his subsequent testimony, he has deposed that on the day of incident he alongwith deceased Dharambir were consuming liquor at their plot. He has further deposed that accused Surender S/o Azad Singh was also sitting in the same plot and consuming liquor. He has further deposed that a commotion had taken place between accused Surender and deceased Dharambir. He has further deposed that thereafter accused Surender left after threatening Dharambir that he will come again and teach him a lesson. He has further deposed that he and Dharambir remained there consuming liquor. He has further deposed that he had advised Dharambir to leave in order to avoid further confrontation but he insisted that he will take his dinner there. He has further deposed SC No. 07/2008 Page No. 6 of 27 that he went to nearby Bhandari dhaba. He has further deposed that while he was placing the order, he heard a sound of gun shot from his plot. He rushed to his plot where Dharambir was lying in front of his plot and blood was oozing from his body. He has further deposed that he also heard the noise of bullet motorcycle. He made a call at 100 number. Police came there and shifted Dharambir to the hospital. He has further deposed that police recorded his statement which is Ex. PW 3/A and bears his signature at point A. He has further deposed that statement Ex. PW 3/A was readover to the witness who admitted his statement upto point X only. He has further deposed that police also lifted two bullet lid and two empty cartridge cases from the spot vide memos Ex. PW 3/B and PW 3/C. He has further deposed that police also seized the motorcycle of the deceased from his plot vide memo ex. PW 3/D which bears his signature at point A. He has further deposed that police lifted the danda from the spot. This witness was shown the the photograph Ex. PX and after seeing the same he stated that the photograph is of the slipper of accused Surender S/o Azad Singh. He has further deposed that he had deposed falsely on the last date of hearing as he was under pressure from his family to depose falsely against the accused Surender who is my cousin.
8. PW 4 Meer Singh has deposed testified on 14.10.2009 that about SC No. 07/2008 Page No. 7 of 27 two years ago at about 11.00/12.00 in the night he was present in the field of Balraj Pahalwan where he used to do work as labour. He has further deposed that accused Surender came on a motor cycle and stationed his motorcycle near the field and asked him to take care of the motorcycle and went straight away. He has further deposed that on the next morning, police came there and seized the motorcycle. He has identified his thumb impression on memo Ex. PW 4/A at point A. He has identified the motorcycle as Ex. P.1.
9. PW 5 HC Narender Kumar is a duty officer who recorded DD No. 2A and proved the copy of the same as Ex. PW 2/A. He has further deposed that on the basis of rukka brought by Ct. Hari Kishan, he recorded FIR U/s 302 IPC and proved computerized copy of the FIR as Ex. PW 5/B. He also recorded DD No. 8A and 9A and proved the copies of the same which are Ex. PW 5/C and PW 5/D. He has further deposed that after recording the FIR, he sent the copy of the FIR to SHO who was present on the spot and also made the endorsement on the rukka Ex. PW 5/E.
10.PW 6 SI Suraj Bhan, Incharge Mobile Crime Team has deposed that on 13.07.2007 on receipt of wireless message at about 1.05 a.m.he reached the spot where SHO Bawana and SI Satyapal were found present there. He has deposed that he got the scene of crime photographed through Ct. Ramesh and prepared the SC No. 07/2008 Page No. 8 of 27 crime report which is Ex. PW 6/A and bears his signature at point A.
11.PW 7 Ct. Ramesh Chander is a photographer who took photographs of the spot and proved the positives which are Ex. PW 7/A1 to Ex. PW 7/A12 and negatives of the photographs as Ex. PW 7/13 to PW 7/24.
12.PW 8 HC Prem Ram has deposed that on 12.07.2007 he received a call from one Rajeev having Mobile No. 9313695384 who informed that a sound of firing of shots has been heard in Bawana Industrial area, Sector3 and that one person was lying on the road. He filled up the PCR form and forwarded the same to communication department for action. He has proved the PCR form filled by him as Ex. PW 8/A and also proved the form Ex. PW 8/B which was forwarded to the communication cell for further action.
13.PW 9 Ct. Ishwar Singh is a formal witness who delivered the copies of FIR at the house of Ld. M.M., DCP, NorthWest, Joint CP(North) and at the residence of ACP Ram Chander.
14.PW 10 Mahabir(wrongly shown as PW 9) is the brother of deceased who has deposed that on 13.07.2007 in the night he received an information regarding the murder of his brother Dharambir and also came to know that his dead body was lying at M.B. Hospital, Pooth Khurd. He visited the said hospital and SC No. 07/2008 Page No. 9 of 27 found his brother who was dead . He has further deposed that he came to know in the hospital that Surender had fired upon his brother. He has further deposed that he also came to know that Ajit, brother inlaw of accused Surender, had helped Surender to escape from his house. He has further deposed that when he came to know regarding the involvement of accused Surender, he reached at the house of Ajit singh and saw Surender and Ajit there but Ajit helped accused Surender to escape from the rear door of his house. He inquired from Ajit Singh regarding accused Surender but he showed his inability. He has further deposed that on 25.07.2007 he joined the investigation with the I.O. and reached at DSIDC, Bawana from where accused Surender got recovered a pistol which was checked and was found loaded with one live cartridge. He has further deposed that sketch of pistol and cartridge was prepared which is Ex. PW 9/A which bears his signature at point A. He has further deposed that pistol was taken into possession by the police vide seizure memo Ex. PW 9/B which bears his signature at point A. He has identified the accused persons Surender & Ajit as well as the pistol which was got recovered by accused Surender as Ex. PW 9/article 1 and cartridge as Ex. PW 9/article 2.
15.PW 11 is Dr. K. Goyal(wrongly shown as PW 10) who conducted postmortem examination on the body of Dharambir and proved SC No. 07/2008 Page No. 10 of 27 his report as Ex. PW 10/A. He has opined that cause of death was extensive cranio cerebral injuries caused by fire arm.
16.PW 12 Naresh Kumar(wrongly typed as PW 11) has deposed that on 12.07.2007 at about 11.00 p.m. he was returning to his house from his fields and when he reached near the house of Sonu @ Surender, at that time Surender was saying to accused Sonu @ Surender that "Aaj Us Motu(referred as Dharambir) Ka Kaam Karna Hain woh Hamesha Chhoda Huan Rehta Hain" and asked him to give him some weapon. He has further deposed that Sonu took out a pistol like weapon and handed over the same to Surender. He has further deposed that thereafter Surender started his motorcycle and went towards Bawana Road and also asked Sonu to follow him. He has further deposed that thereafter Sonu also followed him on his scooter. He has further deposed that at about 12.30 a.m. Mahavir told him that Dharambir had been removed to hospital by the police. He has further deposed that thereafter they reached the hospital where Dharambir was lying in a pool of blood. He has further deposed that one Babbal @ Sanjay met him in the hospital and told that Surender had fired upon Dharambir in his presence.
17.PW 13 Sanjeev Kumar(wrongly shown as PW 12) has identified the dead body of Dharambir vide his statement Ex. PW 12/A which bears his signatures at point A. SC No. 07/2008 Page No. 11 of 27
18.PW 14 Mahender Singh(wrongly shown as PW 13) is the owner of Bhandari Dhaba who did not support the case of prosecution for which he was declared hostile and was crossexamined by Ld. APP but to no avail.
19.PW 15 Subhan Ali( wrongly shown as PW 14) is a tea vendor who too did not support the case of prosecution at all. He was also crossexamined by Ld. APP but nothing material could be brought on record.
20.PW 16 Ct. Satish(wrongly shown as PW 15) had joined the investigation with SI Satya Pal. He has further deposed that on the instructions of SHO, he took the dead body to mortuary of BJRM hospital. He has further deposed that after the post mortem examination, doctor concerned had given him four exhibits which he handed over to the I.O. who seized the same vide memo Ex. PW 15/A. He has further deposed that on 27.8.2007 he again joined the investigation and took the exhibits from MHC(M) and deposited the same at FSL vide RC No. 159/21/07.
21.PW 17 SI Jai Kishan(Retd.)(wrongly shown as PW 16) is a witness to the arrest of accused Surender and Ajit who were arrested vide memo Ex. PW 16/B & PW 16/E respectively. Further, accused persons also made disclosure statements in his presence which are Ex. PW 16/D & PW 16/G. SC No. 07/2008 Page No. 12 of 27
22.PW 18 Manish Kumar Singh(wrongly shown as PW 17), Asstt. Nodal Officer of Tata Tele Services produced the call detail record of phone Nos 01165236077, 9213636085 & 1165769128 for the period 12.07.2007 to 23.07.2007 and proved the computer generated record in respect of said phones which are Ex. PW 17/A to PW 17/C. He has also produced the certificate U/s 65B(4)(C) of the Evidence Act regarding the admissibility of computer output which is Ex. PW 17/D and bears his signature at point A. He has also produced the customer application form of phone No. 1155769128 & 9213636085 which are in the name of Ajit Singh. He has proved the copy of the forms as Ex.PW 17/E & PW 17/G as well as the I.D. Proof of Ajit Singh attached with the forms i.e. driving license as Ex. PW 17/F & PW 17/H. He has proved the copy of application form of phone No. 1155236077 as Ex. PW 17/J which is in the name of Bishu Sarkar. He has also proved the attested photo copy of voter I card attached with the application form as Ex. PW 17/K.
23.PW 19 HC Raj Kumar (wrongly shown as PW 18) is a MHC(M) with whom the case property was deposited by I.O. He made the relevant entries in register No. 19 and proved the true extracts of the relevant entries as Ex. PW 18/A to PW 18/F.
24.PW 20 Inspector Satya Pal Singh(wrongly shown as PW 19) has partly investigated the case. He prepared the rukka Ex. PW 19/B SC No. 07/2008 Page No. 13 of 27 and got registered the case. In his presence, crime team inspected the spot and got the spot photographed. He has further deposed that in his presence Inspector H.S. Meena lifted blood, earth control and blood stained earth from the spot. He has further deposed that Inspector H.S. Meena also prepared site plan on the pointing out of Sanjay @ Babbal which is Ex. PW 19/C. He has also deposed that motorcycle bearing No. DL8SNA0281 was found parked at the tube well of Balraj Pahalwan which was taken into possession vide memo Ex. PW 4/A which bears his signature at point B. He has further deposed that on 25.07.2007 accused Surender had pointed out the place from where he had got recovered the pistol buried by him. He has deposed that Inspector H.S. Meena prepared the sketch of pistol and live cartridges which is Ex. PW 9/A and seized the same vide memo Ex. PW 19/B which bears his signatures at point B. He has further deposed that accused Surender also pointed out the place of occurrence vide pointing out memo Ex. PW 19/D and also pointed out the place where he had parked the bullet motorcycle. He has also deposed that accused Surender also got recovered one chappal of left foot which was taken into possession vide memo Ex. PW 19/E. He has further deposed that accused Surender lead them to the house of Sonu @ Surender S/o Sh Silak Ram from where accused Sonu was SC No. 07/2008 Page No. 14 of 27 arrested at the instance of accused Surender vide memo Ex. PW 19/F who made disclosure statement Ex.PW 19/H. He has further deposed that accused Surender @ Sonu also got recovered his scooter bearing No. DL8 SU6905 which was taken into possession vide memo Ex. PW 19/J and also got recovered one live cartridge after taking it out from a drawer of table which was taken into possession vide memo Ex. PW 19/L. He has identified the accused persons as well as the case property got recovered by accused persons.
25.PW 21 Inspector H.S. Meena(wrongly shown as PW 20) is the investigating officer who has deposed on the lines of PW 20 Inspector Satya Pal Singh.
26.PW 22 Sh B.K.Singh, Addl.DCP(wrongly shown as PW 21) had accorded sanction U/s 39 Arms Act in respect of prosecution of accused Surender @ Sonu S/o Silak Ram and accused Surender S/o Azad Singh under Arms Act which are Ex. as PW 21/A and PW 21/B and bears his signatures at point A.
27.PW 23 V.R. Anand, Sr. Scientific Officer (wrongly shown as PW
22) examined the exhibits in this case and proved his report as Ex. PW 22/A which bears his signatures at point A.
28.PW 24 Ms Anita Chhari, Sr. Scientific Assistant, Biology Division(wrongly shown as PW 23) also examined exhibits received in this case and proved her reports as Ex. PW 23/A & SC No. 07/2008 Page No. 15 of 27 PW 23B which bears his signatures at point A. She has also identified the signatures of Dr. Rajender Kumar on the reports at point B.
29.PW 25 Mukesh Kumar wrongly shown as PW 24 has deposed that about four years back, when he reached near Village Pooth, he found one person was lying on the road in injured condition. He made a call at 100 number from his mobile No. 9313695884. He was declared hostile by Ld. APP on the point of date of incident and was crossexamined by Ld. APP in this regard but to no avail.
30.PW 26 Smt. Kavita Goyal( wrongly shown as PW 25) is again a Sr. Scientific Officer who examined one parcel having blood sample which was found containing Ethyl Alcohol. She has proved her detailed report as Ex. PW 25/A which bears her signatures at point A.
31.Thereafter statement of accused persons were recorded U/s 313 Cr.P.C. wherein they have denied the allegations against them and stated that they have been falsely implicated in the present case.
32.I have heard Sh A.K. Srivastava Ld. APP for the State as well as Sh Rajesh Khanna, Ld. counsel for accused persons and carefully perused the material available on record. I have also gone through the written submissions filed by Ld. Counsels for accused persons.
SC No. 07/2008 Page No. 16 of 27
33.Ld. counsel for accused persons has argued that all the accused persons have been falsely implicated in this case and that they have nothing to do with the alleged commission of offence. Ld. Counsel for accused persons has further submitted that FIR in this case was not registered promptly and there is deliberate delay in recording the FIR which clearly suggests that FIR was recorded after due delibration, consultation and discussions with the family members of deceased.
34.Ld. counsel for accused persons has further argued that the story put forward by the prosecution that deceased was a friend of complainant Sanjay or that on 12.07.2007 both were having drinking sessions at Plot No. 786 belonging to said Sanjay @ Babbal is false and concocted one as no glass or bottle was found there at the spot when the crime team had inspected the spot. Ld. Counsel for accused persons has further argued that complainant Sanjay while appearing in the witness box has given different statements which are contradictory to each other and the same cannot be relied upon. Ld. Counsel has submitted that PW 3 Sanjay is a unreliable witness and no reliance can be placed on his testimony. Ld. Counsel for accused persons has further submitted that there were other public witnesses cited by the prosecution but both these witnesses i.e. PW 13 Mahinder Singh and PW 14 Subhan Ali in their testimonies on oath have not SC No. 07/2008 Page No. 17 of 27 supported the case of prosecution despite crossexamination by Ld. APP.
35.Ld. counsel for accused persons has further argued that accused persons have neither made any disclosure statements nor got recovered the alleged articles as shown by the police. Ld. counsel for accused persons has further submitted that accused Surender S/o Azad Singh has not got recovered the alleged weapon of offence and that alleged recoveries were planted upon the accused just to falsely implicate him in this case. Ld. Counsel for accused persons has further argued that PW Mahavir in whose presence the alleged recovery of pistol was effected, is the brother of deceased and as such he is an interested witness hence no reliance can be placed on his testimony. Ld. counsel has further pointed out that PW 11 Naresh who had allegedly overheard the hatching of conspiracy between accused Surender & Sonu, is most unreliable witness because he was present in the hospital on the date of incident but he did not disclose this fact to anyone on 12.07.2007 or thereafter and hence his testimony cannot be relied upon.
36.As regards accused Ajit Singh, Ld. Counsel has submitted that he has been falsely implicated being the brother inlaw of accused Surender Singh S/o Azad Singh. He has submitted that there is no evidence against him to prove that he had harboured or SC No. 07/2008 Page No. 18 of 27 concealed the accused Surender Singh. Ld. Counsel for accused persons has submitted that prosecution has failed to prove its case against the accused persons and hence they are liable to be acquitted.
37.On the other hand Ld.APP for the State has submitted that no doubt PW 13 Mahender Singh and PW 14 Subhan Ali have not supported the case of prosecution yet PW 3 Sanjay in his testimony on 14.12.2009 has proved on record that on the day of incident, a commotion had taken place between accused Surender S/o Azad Singh and deceased Dharambir. Ld. APP has further submitted that from the testimony of PW 3 Sanjay, it has also been proved that Surender had theatened the deceased Dharambir that he will come back and teach him a lesson. Ld. APP has further submitted that accused Surender S/o Azad Singh had made a disclosure statement wherein he has admitted his guilt and has got recovered the weapon of offence i.e. Pistol. Ld. APP has further submitted that it has also been proved on record that it was accused Surender @ Sonu who provided the pistol to the accused Surender S/o Azad Singh and abetted the commission of offence. He has further argued that prosecution has also proved on record it was the accused Ajit who had harboured accused Surender S/o Azad singh in order to prevent his arrest in this case. He has further submitted that all these SC No. 07/2008 Page No. 19 of 27 facts suggests the involvement of accused persons in the present case and hence they are liable to be convicted.
38.I have considered the submissions made by both the parties and carefully gone through the record.
39.In the present case, accused Surender S/o Azad Singh has been charged for the offence U/s 302 IPC & 27 Arms Act; accused Ajit Singh has been charged for the offence U/s 216 IPC whereas accused Surender @ Sonu S/o Silak Ram has been charged for the offence U/s 109 IPC read with Section 302 IPC and 25 Arms Act.
40.Present case was regsitered on the statement of complainant Sanjay @ Babbal who was examined as PW 3. In his testimony on 12.07.2007 complainant Sanjay did not support the case of prosecution for which he was declared hostile and was cross examined by Ld. APP. In crossexamination by Ld. APP he denied the suggestion of Ld. APP that it was accused Surender who had fired one shot on the road and then fired 34 shots on the head of Dharambir. It is pertinent to mention here that cross examination of this witness on behalf of accused Surneder S/o Salik Ram and Ajeet was deferred on 14.10.2009 due to non availablity of main counsel and on 14.12.2009 when this witness reappeared for crossexamination, he took a somersault by stating that whatever he had said on the last date of hearing, was SC No. 07/2008 Page No. 20 of 27 a lie and not the true version of the actual happening and stated that he wants to depose the correct version which was allowed by Ld. Predecessor of this court and statement of complainant Sanjay was recorded again. In his statement recorded on this occasion, he deposed that on the day of incident he alongwith deceased Dharambir were consuming liquor at their plot. He has further deposed that accused Surender S/o Azad Singh was also sitting in the same plot and consuming liquor. He has further deposed that a commotion had taken place between accused Surender and deceased Dharambir. He has further deposed that thereafter accused Surender left after threatening Dharambir that he will come again and teach him a lesson. He has further deposed that he and Dharambir remained there and consumed liquor. He has further deposed that he had advised Dharambir to leave in order to avoid further confrontation but he insisted that he will take his dinner there. He has further deposed that he went to nearby Bhandari dhaba. He has further deposed that while he was placing the order, he heard a noise of gun shot from his plot. He rushed to his plot where Dharambir was lying in front of his plot and blood was oozing out of his body. He has further deposed that he also heard the noise of bullet motor cycle.He made a call at 100 number.
First of all I would like to mention here that this witness in his re SC No. 07/2008 Page No. 21 of 27 examination has deposed about the commotion which had taken place between Surender and deceased Dharambir as well as about taking of liquor on the day of incident. Complainant has nowhere said that he had seen accused Surender S/o Azad Singh firing at Dharambir or fleeing away from the spot. Further in his crossexamination by Ld. Counsel for accused persons, this witness has admitted it to be correct that he had deposed on 14.10.209 voluntarily that police had not done any investigation in his presence and that he cannot identify the chappals of Surender, bullets and cartridges as the same were not seized in his presence. He has further admitted it to be correct that he had stated on 14.10.2009 voluntarily that when he had signed the memos Ex.PW3/B toPW 3/D, those were blank and police had obtained his signatures on blank papers. Admittedly, complainant has made two different statements at two different times. It is settled law that where witness make two inconsistent statements in his evdience either at one stage or two stages, the testimony of such witness becomes unreliable and unworthy of credence. In my view, testimony of complainant is not straightforward, convincing and is not sufficient to convict the accused persons.It is settled law that the benefit of any flaw in the case of the prosecution has to be given to the accused persons. Hence, no reliance can be placed upon such a witness, who is blowing hot & SC No. 07/2008 Page No. 22 of 27 cold on two different points of time in the same trial.
41.Next, the prosecution has relied upon the statements of Mahender Singh and Subhan Ali who were examined as PW 13 & PW 14 respectively but both of them have not supported the case of prosecution despite crossexamination by Ld. APP.
42.Now only evidence left on record against accused Surender S/o Azad Singh is with respect to the recovery of pistol . Before going into the recovery, it is important to mention here that though in the FSL report Ex. PW 22/A, it has come that deformed bullets Ex. 'EB1 & EB2' have been discharged from the said pistol, yet there is nothing on record to show that finger prints were lifted from the pistol or was sent for comparsion with the finger prints of accused.
43.It is the case of prosecution that in pursuance of his disclosure statement, accused got recovered a pistol from the bushes at DSIDC, Sector2, C Block, Bawana which was found containing one live cartridge. To prove this fact, besides the police officials, prosecution has examined PW 9 Mahavir who is the brother of deceased. No witness was called or joined from the neighbourhood at the time of alleged recovery of pistol. Even PW 9 in his testimony has initially deposed that on 25.07.2007 when he joined the investigation with the I.O. at that time accused Surender was not with them, however, in the next breathe, he stated that accused Surender was present with police officials. SC No. 07/2008 Page No. 23 of 27 PW 9 in his crossexamination has stated that the writing work pertaining to the recovery was done in the police station which is a serious infirmity and the possibility of tampering with the weapon cannot be ruled out. Reliance can be placed on the judgment delivered in Amarjeet Vs. State of Punjab 1995 Suppl. (3) SCC 217 wherein it was held that nonsealing of the revolver at the spot is a serious infirmity.
44.Prosecution has also examined Inspector Satya Pal as PW 19 who has stated that accused Surinder S/o Azad Singh got recovered one polythene bag after digging the earth. In cross examination, he was confronted with his statement Ex. PW 19/DA where the fact of digging was not mentioned. He has further stated in his crossexamination that document regarding the recovery of pistol were prepared at the spot.
45.Even otherwise the law is now well settled that recovery of incriminating articles are weak type of evidence and are not sufficient to convict the accused. Reference can be made to judgment of our own High Court in case titled as Mohd. Jabbar vs. State, Crl. Appeal No. 1022/2008, decided on 21.05.2010.
46.It has also been pointed out by Ld. Counsel for accused persons that there is delay in lodging the FIR and that the same was recorded after due delibration, consultation and discussions with the family members of deceased. The incident in this case had SC No. 07/2008 Page No. 24 of 27 taken place at about 11.30 p.m. and police had reached at the spot within half an hour, however, the rukka was sent to P.S. at 4.30 a.m. It is pertinent to mention here that as per Ex. PW 6/A, crime team had remained at the spot from 1.40 a.m. to 2.40 a.m. wherein particulars of the FIR i.e. FIR No. 386/2007 U/s 307 IPC, Name of complainant: PCR Call, Name of I.O. Sh Satpal Sigh has been mentioned. It clearly suggests that two FIRs were recorded in this case and the first FIR has been suppressed from this court. Hence, it cannot be ruled out that present FIR was recorded after due deliberation, consultation and discussions which cast a shadow of doubt on the case of prosecution.
47.So far as accused Surender @ Sonu S/o Salik Ram is concerned, prosecution has examined PW 11 Naresh who has deposed that on 12.07.2007 when he reached near the house of Sonu @ Surender, at that time Surender S/o Azad Singh was saying to accused Sonu @ Surender to provide him a weapon and told him that he wanted to take revenge from Motu and that accused Surender @ Sonu took out some pistol like weapon and handed over the same to Surender S/o Azad singh and he also followed him on his scooter. Admittedly, the incident had taken place on th the intervening night of 12th/13 July 2007 whereas he made a statement to the police when Surinder S/o Azad Singh surrendered before the court at Sonepat i.e. after about 11 days of SC No. 07/2008 Page No. 25 of 27 incident. It has come in the crossexamination of PW Naresh that he went to the hospital on the day of incident at about 1.15 a.m. and at that time Mahavir, brother of deceased was also there. It has also come in the crossexamination of PW Naresh that he had attended the cremation of deceased. Now a question arises when this witness had visited the hospital and also attended the funeral, why did he kept silent and did not disclose the fact of providing the pistol to accused Surender by accused Sonu. This cast a doubt on the prosecution story and makes the testimony of PW Naresh unreliable. Even otherwise, it is highly unbelievable that two persons would hatch such a conspiracy audible to others. It clearly suggests that this witness was introduced lateron just to give a shape to the case. There is no other evidence in this case against accused Sonu @ Surender S/o Salik Ram.
48.As regards accused Ajit Singh, prosecution has relied upon the testimony of PW 9 Mahabir who has deposed that after the incident, accused Surender had gone to the house of his brother inlaw Ajit Singh. He has further depsoed that he came to know that Ajit had helped Surender to escape. He has further deposed that on one day when he reached there, he saw Surender and Ajit there but Ajit helped accused Surender to escape from the rear door of the house. First of all I would like to mention here that first part of evidence as deposed by PW Mahavir that he came to know SC No. 07/2008 Page No. 26 of 27 that Ajit had helped Surender, is a hearsy evidence. So far as the latter version, it is important to mention here that he had neither given the date as to when he had gone to the house of Ajit nor mentioned about the address of Ajit. Even otherwise, PW Mahavir being the brother of deceased is an interested witness hence it would not be safe to place reliance upon the sole testimony of PW Mahavir in the absence of any corroboration from any other witness. Prosecution has not examined any other witness to claim that accused Ajit had harboured/concealed Surender with intention of preventing him from being apprehended in this case.
49.Therefore, as per the discussion above, I am of the opinion that prosecution has miserably failed to prove its case against accused persons. Therefore, all the abovenamed accused persons are entitled for acquittal. Accordingly accused persons are acquitted of the charges framed against them. Accused Surender S/o Azad Singh be released forthwith, if not required in any other case. Case property, if any be destroyed after the expiry of period of appeal. File be consigned to record room after making compliance to Section 437A Cr.P.C by the accused persons.
Announced in Open Court (Raj Paul Singh Teji)
on 07.02.2013 Addl.Sessions Judge(03)
Outer District:Rohini:Delhi
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