Delhi District Court
State vs 1 Kapil Ranga on 30 September, 2011
1
IN THE COURT OF MS. RAVINDER KAUR, SPECIAL
JUDGE(NDPS)/ADDL. SESSIONS JUDGE, DWARKA
COURTS, NEW DELHI.
SC No. 49/1/11
State Vs 1 Kapil Ranga
S/o Sh. I S Ranga
R/o U128, New Dharampura,
Pragati Vihar, Shahpur,
Gorakhpur, UP
2 Sandeep @ Mental
S/o Sh. Rajender Singh,
R/o B223, Gopal Nagar,
Najafgarh, New Delhi
3 Chetan Yadav @ Kana
S/o Sh Vinod Yadav.
R/o RZ255, B Block,
Gopal Nagar, Najafgarh,
New Delhi
4 Jagdeep
S/o Sh. Rajender Singh,
FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 1
2
R/o B222, Gopal Nagar,
Najafgarh, New Delhi
FIR No. 148/09
PS Najafgarh
U/s. 302 r/w Sec. 120B IPC
& 201 IPC.
Date of Institution : 10.08.2009
Date of Decision : 30.09.2011
JUDGMENT
1 The prosecution case is that on 12.5.2009 information was received in PS Najafgarh at 6.15 am to the effect that at Khaira Mor, one boy was shot at and the assailants had escaped. The said information was received from Mobile No. 9268139726 and was reduced into writing vide DD No. 27A which was entrusted to Inspt. Arun Verma for inquiry. Inspt. alongwith SI Mahesh Soni, Ct. Devender and Ct. Ashok Kumar reached at the spot at Khaira Mor at Najafgarh where one DTC Bus bearing No. DL 1CP 1599 was found parked facing FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 2 3 Najafgarh on Jaffar Pur Najafgarh road. One empty cartridge alongwith a bullet led and lot of blood was found near the DTC bus. No eye witness was found present at the spot. On inquiry it was revealed that the injured already been removed to RTRM hospital by PCR. At this Inspt. Arun Verma alongwith SI Mahesh Soni reached RTRM hospital and found injured Pawan Kumar son of Mahender R/o RZ 78 (B32) Haibat Pura, Nanda Enclave Gopal Nagar, Najafgarh admitted in the hospital vide MLC No. 1393/09 and was declared brought dead at 7.00 am. On the inspection of the dead body, it was found that one bullet had hit on the left side of his chest and the other bullet had hit him on his head. Even in the hospital, no eye witness was found. Inspt. Arun Verma alongwith SI Mahesh Soni returned to the spot where one more empty fired cartridge was found lying near Lamba Book Depot (Khaira Mor side) In the meantime, Mahender Singh came to the spot and his statement was recorded to the following effect :
"That I alongwith my family reside at FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 3 4 above mentioned address and am driver at private blue line bus. I have two sons. My younger son Anil @ Lilla, age 22 years does helper's job in buses and is presently lodged in jail for murder of a person namely Shikhandi, Chetan @ Kana and Khacchar are threatening to kill me and my son Pawan.
Ashok's cousin brother Sandeep @ Mental threatened to kill me and my son Pawan the very next day after Ahsok's murder and also threatened to kill Anil @ Lilla as and when Anil would be out of jail. On 10.5.2009 at around 1 pm I, Pandit and my son Pawan were coming by bus from Dinpur, on that day all the four days boarded the bus and threatened Pawan that you are a guest of 34 days, we will kill you and take revenge of murder of Ashok. I did not take this seriously and was planning to report to police. Today on 12.5.2009 at around 6.00 AM when we reached Khaira Mor for our duties, one FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 4 5 Maruti WagonR white colour coming from Khaira village side stopped and Sandeep @ Mental, one of boys who threatened me and Pawan stepped out of the car carrying pistol in his hand and shot my son in the chest. My son Pawan in the process of saving himself tried to hide himself under the parked DTC Bus across the road but Sandeep @ Mental chased him and fired another bullet in his head and escaped in the WagonR in which 23 boys were already sitting. Sandeep @ Mental killed my son to take revenge of the death of Ashok. Legal action be taken against Sandeep @ Mental and his associates."
2 On the basis of the aforesaid statement of the complainant, case FIR No. 148/09 was registered with PS Najafgarh under section 302/34 IPC and under section 25/27 Arms Act.
3 During the investigation, the site plan of the spot was prepared at the instance of the complainant and FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 5 6 exhibits i.e. blood samples, fired cartridge, fired cases and earth control were lifted from the scene of crime. The crime team inspected the spot. The dead body was removed to the mortuary of RTRM and postmortem was conducted on 3.5.2009. Statement of the witnesses were recorded. Accused Chetan Yadav @ Kana was arrested from outside his house and his confessional statement was recorded. Two days police custody remand was obtained and during this period efforts were made to arrest the remaining accused persons but they could not be arrested.
4 On 22.5.2009 accused Sandeep @ Mental had surrendered in the court and 4 day police custody remand was obtained by the IO and same day the investigation was transferred to ISC, Crime Branch.
5 During investigation of the case the facts revealed are that on 15.4.2009 Ashok the cousin of Sandeep @ Mental was murdered by two persons namely Vikas @ Kale and Anil @ Lillu in the area of PS Jaffarpur. A case FIR No. FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 6 7 42 dated 15.4.2009 u/sec 302/34 IPC was registered at PS Jaffarpur, Delhi in this regard. Sandeep @ Mental wanted to take revenge of the murder of Ashok by killing Vikash and Anil. Earlier he wanted to kill them while they were being escorted to Hospital from PS Jaffarpur for medical examination on foot during their police custody remand. But he could not succeed as he was not able to arrange weapon for killing. After that he along with his brother Jagdeep @ Shikhandi and friend Chetan Yadav @ Kana planned to kill Pawan (brother of Anil @ Lillu) who used to work as conductor in a blue line bus. They were in need of weapon, hence they contacted one of their friend Kapil Ranga, who was known to them as he is a permanent resident village Sultan Pur Dabas, Delhi and presently residing at U128, New Dharam Pura, Pragati Vihar, Shah Pura, Gorakh Pur, UP. The accused persons namely Chetan and Sandeep were of the impression that the weapon can easily be procured from Gorakh Pur, UP. Kapil Ranga agreed for helping them in taking revenge and arranging a FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 7 8 pistol with cartridges for them. Chetan was ready for providing financial assistance to Sandeep as Ashok was his good friend. Kapil Ranga got his train reservation done on 26.4.2009 in AC III in Bihar Sampark Kranti for his journey to Delhi on 28.4.2009. He bought a pistol and 8 cartridges from one of his known namely Moris who used to meet him at City Mall, Gorakhpur and brought the same to Delhi and delivered to Chetan @ Kana after reaching Delhi on 29.4.2009. Kapil after delivering the weapon and cartridges went back to Gorakhpur on 3.5.2009 from Delhi to Lucknow by Gomati Express and thereafter Lucknow to Gorakhpur, UP by LJN MUV Express for which he got his reservation done before moving to Delhi from Gorakhpur. Chetan and Sandeep @ Mental were in need of more weapons and cartridges for the murder and hence on 5.5.2009 they forcibly lifted the Swift Car No. DL 3CW 6656 of one Pradeep @ Banke and departed for Gorakhpur in the said car for purchasing a weapon. Pradeep @ Banke in this regard got a call made on 100 number. The same was recorded vide FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 8 9 DD No. 32 A dated 5.5.2009 at PS Najafgarh, Delhi. During the journey to Gorakhpur they were carrying mobile phone numbers 9212322501 which was being used by Sandeep and the other number ie 9212322502 was being used by Chetan @ Kana. Both the above phone numbers were in the name of Chetan. Chetan was also possessing another mobile number which he had taken on fake identity bearing number 9811449967. Chetan used to insist his friends to call him on this number as this was on fake identity. They reached Gorakhpur to procure one more pistol 06.05.09, where Kapil Ranga arranged for their stay at Hotel Park Regency where entry in the guest register was made by Ankit Ranga (younger brother of Kapil Ranga) and room no. 101 was also booked in the name of Ankit Ranga. On 07.05.2009 Sandeep @ Mental and Chetan Yadav went to Nepal as Kapil asked them to wait till 08.5.2009 for procurement of another pistol. On 8.5.2009 Sandeep @ Mental and Chetan Yadav came back to Gorakhpur and contacted Kapil, who told them about the nonavailability of FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 9 10 another pistol and hence they left for Delhi and reached Delhi on 10.5.09. From Gorakpur they withdrew Rs. 40,000/ from the ATM from the account of accused Chetan @ Kana and gave Rs. 17,000/ to accused Kapil Ranga as payment of the already purchased weapon which had already been delivered by accused Kapil Ranga to them at Delhi on 29.04.2009. Thereafter they came back Delhi as they also had pressure from the police to bring the car back for which a complaint had already been lodged at PS Najafgarh by Pradeep @ Bake on 5.5.09 itself. The vehicle after reaching Delhi was delivered to Pradeep @ Bake on 10.05.2009. Accused Sandeep @ Mental instructed Chetan and his brother Jagdeep @ Shikhandi to trace the movement of Pawan so that he could be eliminated. On 10.5.09 accused Kapil and Jagdeep @ Shikhandi made enquiries from Sanjay @ Gokul Pandit about the movement of Pawan and asked him to warn Pawan that he would be eliminated soon. Sanjay @ Gokul Pandit informed about the threat given by Chetan and Jagdeep to the father of FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 10 11 Pawan i e Sh Mahender Singh. Fearing for the life of his son Mahender Singh reached to trace his son and while he was coming with his son in the bus bearing No. DL lPB 0248 route No. 578 where Pawan was working as conductor from Deenpur bus stand Chetan @ Kana and Jagdeep @ Shikhandi boarded the bus and threatened Pawan in the presence of his father Mahender Singh. On 11.5.09 Mahender Singh did not send Pawan for duty. In the evening Chetan,Sandeep and Jagdeep enquired about Pawan and came to know that they could meet Pawan in the morning at 6:00am at Khaira Mor bus stand from where the first trip of the bus starts. Thereafter he disclosed that alongwith his coaccused Chetan @ Kana and Jagdeep @ Shikhandi they reached the spot of incident in white WagonR car, where Pawan was found standing near bus. Accused Sandeep @ Mental followed him and fired on his chest from close range. Pawan ran across the road to hide himself under another parked bus but he fell down and then accused Sandeep @ Mental chased him and fired on his head another round. FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 11 12 Thereafter all the three accused escaped from the spot. After the incident PW Samay Singh informed the police on 100 number. The complainant ie the father of the deceased had already left the spot due to threats from accused Sandeep @ Mental and lateron on being called by the police he disclosed all the facts in his statement U/s. 161 Cr PC. It is further alleged in the charge sheet that accused Sandeep @ Mental had called at mobile No. 9212540400 on the mobile phone of Narender Pandit and threatened PW Pradeep @ Banke that he had already killed one and now it was his number. Further that accused Sandeep @ Mental had thrown his mobile phone bearing No. 9212322501 and his burnt clothes near village Munda Khaira and on 13.5.09 he left for Haridwar via Najafgarh Roktak and to mislead the police he called one Pawan as well as the father of accused Chetan Yadav from one PCO from Rohtak bus sand. It is further mentioned in the chargesheet that on reaching Haridwar accused Sandeep @ Mental had stayed at Mayur Hotel on the night of 13/14.5.09 and on the next day he checked FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 12 13 out from the hotel depositing his bag containing the pistol at the reception of the hotel and went to Neelkant. He returned to the hotel on the night of 14.5.09 and took his bag from the reception and thereafter went to the bridge of Ganga on the Highway and threw the pistol and remaining cartridges in the Ganga which was flowing at high speed. During investigation accused Sandeep @ Mental had pointed out towards Mayur hotel as well as the spot from where he had thrown the pistol and the cartridges. The record of Mayur hotel was also seized during investigation. During investigation the record of visit of accused Sandeep @ Mental and Chetan @ Kana at Gorakhpur was also collected from Hotel Park Regency. WagorR Car No. HR 63AT 4684 allegedly used by the accused persons during the commission of offence was also recovered from Plot No. 233 Udyog Vihar, Phase1, Gurgaon.
6 During investigation, accused Kapil Ranga was also arrested and his disclosure statement was recorded disclosing that he had arranged for the weapon of offence and FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 13 14 cartridges for accused Chetan Yadav and Sandeep @ Mental and that he had traveled by Bihar Sampark Kranti train to deliver the same at Delhi to the accused persons on 28.4.09 and after delivering left Delhi on 3.5.09. During investigation the exhibits were sent to the FSL. Scaled siteplan was prepared. Photographs of the spot were also clicked and railway enquiry regarding journey taken by accused Kapil Ranga from Gorakhpur to Delhi and Delhi to Gorakhpur was also made. After investigation, the chargesheet was filed to the Court for trial of accused Sandeep @ Mental U/s. 120B/302/201/34 IPC and against accused Chetan Yadav, Kapil Ranga and Jagdeep U/s. 120B/302/34 IPC.
7 On the basis of material on record, charge U/s 302 r/w Sec 120B IPC was framed against all the accused persons for the murder of Pawan by accused Sandeep @ Mental in furtherance of their criminal conspiracy. Further charge U/s 201 IPC was framed against accused Sandeep for causing disappearance of evidence by throwing the pistol used FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 14 15 in the commission of offence alongwith the remaining cartridges in the Ganga River from the over bridge of Haridwar. All the accused pleaded not guilty to the charges, referred above and claimed trial.
8 The prosecution in support of its case has examined 38 witnesses in all.
9 Ld. Addl. PP tendered in evidence the FSL report as Ex PX 1(12),report of Ballistic Expert Ex P2, FSL report dated 31.3.2010 as Ex. PX3 alongwith report of Biology Division as Ex PX4.
10 PW 1 is Dr Parvinder Singh, Junior Specialist, Forensic Medicine, RTRM Hospital, who had conducted the postmortem on the deadbody of deceased Pawan on 13.5.2009 and proved the postmortem report as Ex PW 1/A. He testified that on the external examination, the following injuries were found on the person of the deceased:
"1 One fire arm entry wound measuring 1.2x 1cm, circular shaped, surrounded by abrasion collar of FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 15 16 size 1.3 x1.1 cms situated over left temporal area of skull, lcm above left ear tragus, margins inverted. Blackening, singeing and tattooing present around the wound with active bleeding present. 2 One exit fire arm wound measuring 1.5 x lcm situated over right temporal region of skull, 3cm over right ear pinna, margins everted. No blackening, singeing and tattooing present around the wound with bleeding present.
3 One fire arm entry wound measuring 1 x . 8cms, oval shaped surrounded by a collar of abrasion of size 1.1 x 9 cms situated over front of upper part of left side of chest, 6.5 cms above and right to left nipple, 6.5cms from mid line, 127 cm above left heel, margins inverted with active bleeding present from the wound.
4 Abraded contusion of size 4 x 2.5cm present over middle of forehead.
FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 16 17 5 Abrasion 2.5 x 2 cms present over front of right knee.'' PW 1 further testified that on the internal examination, the following injuries were found on the person of the deceased:
"Abdomen: Peritoneal cavity contains blood ( approximately 1.5 liters). Stomach was intact and mucosa was pale. Approximately 200 grams digested food material of greenish colour was present in the stomach cavity. Intestines were intact and pale. Liver was lacerated and described in injury No. 3. Kidneys and suprarenals were intact and pale.
Pelvis: Pelvic bones were intact. Urinary unibladder was intact and empty. Neck structure were intact and pale.
Chest: Collar Bones were intact. Ribs and sternum were intact. Pleural cavity contains blood FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 17 18 bilaterally. Both lungs were lacerated and described in injury No. 3. Both thoracic cavities were filled with blood. Heart was lacerated, paricardial cavity filled with blood and described in injury No. 3. Right dome of diaphragm was lacerated and described in injury No. 3. Spinal column was intact. Heart: Effusion of blood present under the scalp all over the skull. Fracture ( bullet fractures) of right and left temporal bones were present. Extra dural hemorrhage was present in an area of 10x9cms over right temporal parietal region of skull. Sub dural and sub arechnoid hemorrhage present over right temporal parietal area(lobes) of brain. Free and clotted blood present at the base of the brain ( approximately 150 ml). Contusions and lacerations were present under the fractures side surrounding are of bullet track.
Track of the wounds:
FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 18 19 Injury No. 1: After piercing skin, subcutaneous tissue, underlying muscles, fracturing left temporal bone and enters into left temporal lobe of brain, parietal lobes and right temporal lobes through and through and exited through injury No. 2 after fracturing ( bullet fracture) right temporal bone. Track of the bullet contains blood. Brain matter surround the track is contused and lacerated. Direction of the bullet was from left to right and obliquely below upwards.
Injury No. 2: Bullet Exit Wound.
Injury No. 3 : After piercing skin, subcutaneous tissue, underlying chest muscles, enters between second and third ribs anteriorly in mid clavicular line on left side, then pierce heart( left ventricle) through and through, then pierces left lung, enters into right thoracic cavity, pierces right pleura and lung parenchyma through and through, pierces FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 19 20 between eleventh and twelfth ribs posteriorly and pierces right dome of diaphragm, pierces right lobe of liver through and through. A metallic ( copper) bullet found embedded into the right posterior abdominal wall ( size of the bullet 1.3 x8cms), recovered, sealed and handed over to IO( one end of bullet marked as + by black sketch pen). Direction of the bullet was from left to right and above downwards. Track of the wound contains blood.''
11 After examination of the injuries on the deadbody of the deceased, PW 1 gave the following opinion:
"Death was due to combined effect of hemorrhage and shock alongwith craneocerebral damage, consequent to injuries described above. Injuries were collectively sufficient to cause death in ordinary course of nature. Injury No. 1 and 3 were caused by ammunition discharge from the rifled fire arm from a close range. All the injuries were ante mortem and recent. Injury No. 2 is the exit wound of injury No. l. Injuries No. 4 and FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 20 21 5 were caused by hard blunt object. Time since death was approximately 1 / ¼ days at the time of postmortem examination. ''
12 PW 2 is Dr Mahesh Kumar, Medical Officer, RTRM Hospital. He testified that on 12.5.2009 at about 7:00am deceased namely Pawan Kumar s/o Sh Mahender brought by PCR van to the hospital and on examination he found there was no pulse, no heart sounds in the patient and both the pupils were fixed and dilated. That the clothes of the deceased were soaked with blood and blood stains were present on the left as well as right chest, left side of face, temporal area, from nose fresh bleeding was there. That entry wound of bullet was present on the anterior chest wall approximately 6cm from the left nipple at 11 O'clock position. That on left pinna anterior upper edge, black soot was seen and on the cartilage of pinna near it, the entry wound was seen. That its exit wound was there in right parietooccipital region of approximate diameter 1.5cm with internal flesh coming out. That few small abrasions FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 21 22 about 0.5cms in the middle of the forehead were seen and upon doing the ECG it was a straight line. He proved his detailed report as Ex. PW 2/A. 13 PW 3 Manish Saxena, Asstt. Vice President was working as Manager ( Operations) on 26.5.2009 at Axis Bank, Najafgarh Branch, Opposite Najafgarh PS. He proved statement of account No. 360010100068855 of accused Chetan for the period from 19.3.2009 to 23.5.2009, as Ex. PW 3/A and its covering letter as Ex. PW 3/B. 14 PW 3 further testified that on 7.8.2009 he replied the query of police about the location of cash withdrawal from the account, referred above, on 8.5.2009 vide letter Ex. PW 3/C. That cash amounting to Rs. 15,000/ and Rs. 25,000/ were withdrawn from the aforesaid account on 8.5.2009 at 14:24:12hrs and at 14:23:22hrs respectively and both the withdrawals were made from HDFC bank, Ashuran Chowk, Gorakhpur, utilizing ATM card. He proved the seizure memo as Ex. PW 3/D vide which the statement of account FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 22 23 Ex. PW 3/A was taken into possession.
15 PW 4 is Manish Kumar Chug, Nodal Officer, Tata Tele Services Ltd. He testified that mobile phone Nos. 9212322501 and 9212322502 were in the name of one Chetan s/o Sh Vinod, R/o House No. 255, BlockB, Gopal Nagar, Najafgarh, New Delhi. He proved the attested copy of customer application form and copies of supporting documents in respect of mobile phone numbers of Chetan as Ex. PW 4/A and Ex. PW 4/A1 to Ex. PW 4/A7.
16 PW 4 further testified that mobile phone No. 9211976618 was in the name of one Vivek Kumar s/o Sh Vijay Kumar Sinha, R/o RZ33B, Gopal Nagar, B Block, New Delhi. He proved the attested copy of customer application form and copies of supporting documents in respect of mobile phone No of Vivek Kumar as Ex. PW 4/B and Ex. PW 4/B1 respectively.
17 PW 4 further testified that mobile phone No. 9212540400 was in the name of one Kavinder s/o Sh Ajit FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 23 24 Singh, R/o 483, Gali Jalalpur, Jharoda Kalan, New Delhi. He proved the attested copy of customer application form and copies of supporting documents in respect of mobile phone No of Kalvinder as Ex. PW 4/C and Ex. PW 4/C1 to Ex. PW 4/C4 respectively. He also proved the attested copies of computerised call details of mobile phone Nos. 9212322501, 9212322502, 9211976618 and 9212540400 for the period from 15.4.2009 to 15.5.2009 as Ex. PW 4/D, Ex. PW 4/E, Ex. PW 4/F and Ex. PW 4/G respectively.
18 PW 5 Mahender Singh is the father of deceased Pawan and an alleged eye witness. He testified about the arrest of his son Anil on 15.4.09 in the case relating to murder of one Ashok. He also deposed that on 16.4.09 while he was going in the vehicle of police officials of PS Jaffarpur in which accused Sandeep @ Mental was also present, he threatened to kill him and his elder son and that his other son Anil could only remain alive till he is in custody of the police. He further deposed that on 10.5.09 Gokaran Pandit, R/o RZ251 FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 24 25 B Block, Gopal Nagar, Najafgarh warned him while visiting his house that accused Sandeep @ Mental, Chetan@ Kana and Jagdeep @ Shikhandi present in court were searching his son Pawan and were verifying his whereabouts in order to kill him to take revenge of murder of Ashok. That again on 11.5.09 Gokaran Pandit visited his house and assured him that he shall protect Pawan if he comes on duty and told PW 5 to send Pawan on duty on the next day.
19 PW 5 further deposed that on 12.5.09 he alongwith his son Pawan left the house at about 05:30am. He told Pawan to proceed for his duty while he was going to PS Najafgarh to lodge a complaint regarding the threats being received by them. He further testified that he wanted to meet Sanjay Singh, the driver of the bus on which his son Pawan was a conductor to ask him to take care of Pawan. They reached Khaira Mor by bus at 6/6:15am. After alighting from the bus, when they were crossing road Pawan was ahead of him and when he crossed the road, PW 5 was 10/15 feet behind him FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 25 26 when a white colour Maruti came from the side of Khaira village. He stated that he saw that accused Sandeep @ Mental suddenly got down from the car and was armed with fire arm in his hand and ran towards his son Pawan, caught hold of him from behind and fired a shot in his chest. He stated that his son Pawan at that time was just about to get on the bus and had just held railing of the door of the bus on which he was working as a conductor. He further testified that after his son was shot at, he pushed accused Sandeep @ Mental and ran towards a DTC bus parked on the other side of the road to hide and save himself but he was chased by accused Sandeep @ Mental. He stated that Pawan struck against a DTC bus and fell down and at this accused Sandeep @ Mental shot him in his head. He further stated that accused Sandeep @ Mental threatened in general showing his gun that anyone who would come near him shall be shot by him, thereafter he managed to flee away from there in the white WagonR car. He stated that at that time the car was driven by accused Chetan @ Kana and FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 26 27 accused Jagdeep @ Shikhandi was sitting in the said car. When the car had come at the spot at that time also all the accused persons were present in the car. He stated that due to the incident he was shocked and rushed to his home to inform his wife and thereafter alongwith his wife came to the spot and came to know that Pawan had been taken to hospital by PCR. He stated that the slippers of Pawan were seen lying at the spot besides the blood and empty cartridges. Thereafter he went to RTRM hospital alongwith his wife and came to know that his son had died at the spot. He stated that he had met the police at the spot and then in the PS when he went there from the hospital. He proved his statement to the police as Ex. PW 5/A. He further deposed about receiving of the deadbody vide receipt Ex. PW 5/B and that his statement was again recorded on 26.5.09 in the crime branch office Chankya Puri. He further testified that the site plan of the spot was prepared at his instance on 5.7.09 by the officials of the crime branch and draftsman. On 8.7.09 he had identified the accused persons FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 27 28 namely Sandeep @ Mental, Chetan @ Kana and Jagdeep @ Shikhandi before Inspt Satish Sharma in the Court. 20 PW 6 Sanjay @ Gokaran Pandit is a witness to the threats extended by the accused persons to Pawan ( now deceased ). However, he did not support the prosecution case and was declared hostile.
21 PW 7 Ct. Anil Kumar had taken the exhibits of the case to FSL Rohini vide RC No. 90/21 on 22.6.09. 22 PW 8 Ct. Partal had joined investigation of this case on 12.5.09. On that day he delivered the special report to Area MM, Joint CP and DCP concerned. He also joined the investigation on 13.5.09 and is a witness to the arrest of accused Chetan vide arrest memo Ex. PW 8/B and his disclosure statement Ex. PW 8/A. He deposed that the personal search of the accused was conducted vide memo Ex. PW 8/C and he had identified the place of incident vide pointing out memo Ex.PW 8/D. 23 PW 9 Sh Arun Kumar Srivastava, GM Admn., FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 28 29 had produced the call detail report in respect of mobile No. 9451539740 w.e.f 15.4.2009 to 15.5.2009 Ex. PW 9/A. However, it is observed that he did not produce any certificate U/s. 65B of the Indian Evidence Act.
24 PW 10 HC Vishram is the duty officer who proved recording of FIR No. 42/2009 Ex. PW 10/A. 25 PW 11 HC Azad Singh had joined the investigation of this case alongwith SI Naresh Sangwan and alongwith him had gone to Gorakhpur on 27.5.2009, the other staff and accused Sandeep @ Mental. As per his testimony, Ashok Sharma, the Front Manager of the Hotel Park Regency was interrogated and Guest registration Card was seized vide memo Ex.PW 11/A. He proved the Guest Registration Card Ex.PW 11/B and bill of the hotel as Ex. PW 11/C. He testified that Deepak Srivastava, the other Front Manager of the Hotel identified accused Sandeep @ Mental as the person who had stayed in their hotel and also identified the signatures of accused Sandeep @ Mental on bill Ex. PW 11/C at point X. FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 29 30 He further deposed about their visit to the house of accused Kapil Ranga at Gorakhpur and that his father Ishwar Ranga produced the mobile phone bearing the BSNL mobile number mentioned on the Guest Card and the same was seized vide seizure memo Ex. PW 11/D. He further proved the pointing out memo of the Hotel Park Regency is Ex.PW 11/E and identification memo regarding the identity of accused Sandeep @ Mental by Deepak Srivastava as Ex. PW 11/F. 26 PW 12 HC Umed Singh is a formal witness in whose presence the IO had collected the exhibits from the RTRM Hospital and seized the same vide memo Ex.PW 12/A. He stated that on 19.6.2009 he had collected one sealed parcel bearing seal of SS from Inspt Satish Sharma alongwith FSL form and deposited the same at FSL Rohini.
27 PW 13 Shankar Dutt Purohit was working as Asstt. Manager in Hotel Mayur, Haridwar, Uttrakhand and deposed that on 13.5.2009 at 10:30pm one Sandeep Deswal had taken room No. 12 in the hotel vide relevant entry No. 23 in the FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 30 31 guest register Ex. PW 13/A. However, he stated that the aforesaid entry was made by Sandeep Deswal in his own handwriting but he cannot identify accused Sandeep Deswal due to lapse of time.
28 PW 14 is Samay Singh, who as per the prosecution is an alleged eye witness to the incident. He testified that he is driver of the bus No. DLlPB 0248 plying on route No. 578 and that Pawan was also working as a conductor in the said bus and on the date which he did not remember, in May 2009 at about 06:00am he was present on the driver seat of the said bus which was parked at Khaira Mor near Lamba Book Depot. On that day Pawan did not come for duty and he got down from the bus to look for him and saw that Pawan was lying near DTC bus. He stated that he did not see any blood, however he testified that he saw bullet injury mark on the temple and on the left side chest of Pawan and called at 100 number. The police reached there within three minutes and took Pawan in a PCR van. He informed the owner of the bus and FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 31 32 took the bus to mechanic near Khaira Mor and parked it there and thereafter one police official came and took him to PS and inquired him about the matter and he told them that he had not seen anybody. PW 14 did not support the prosecution case and was declared hostile by the prosecution. 29 PW 15 Sh Deepak Srivastava is the Front Office Manager at Hotel Park Regency, Gorakhpur, where the accused Sandeep had stayed on 6.5.2009 and checked out on 7.5.2009.. He testified that he had prepared checked out bill already Ex.PW 11/C which was signed by the guest in the name of Sandeep in his presence. However, he stated that due to the lapse of time he was not in a position to identify the guest for the reasons that number of guests keep coming to the hotel. 30 PW 16 Sh Israr Babu had produced the original customer agreement form in respect of phone No. 9811449967 in the name of Sanjeev s/o Sh Ashok alongwith the annexures and proved the same as Ex. PW 16/A. He further produced the attested call details of the said phone from FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 32 33 15.4.2009 to 15.05.2009 as Ex.PW 16/B. He further produced the original customer agreement form in respect of phone No. 9899671421 in the name of Vinod Kumar s/o Sh Row Bheem Singh alongwith the annexures and proved the same as Ex. PW 16/C. He further produced the attested call details of the said phone from 15.4.2009 to 13.05.2009 and proved as Ex.PW 16/D. 3l It is observed that there is no compliance of the provisions of Sec. 65B Indian Evidence Act. 32 PW 17 Ashok Kumar Sharma is another Front Office Manager of Hotel Park Regency, who proved that in the year 2009 three persons came to their hotel in a room and had checked in vide registration card Ex. PW 11/B which was in the name of Ranga Anjit. He stated that he cannot identify those guests who had checked in vide the said card due to lapse of time.
33 PW 18 HC Pista Sharma was posted at CPCR, PHQ on 12.5.2009 and deposed that at about 6:11am he had FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 33 34 received a call from telephone No. 9268139726 from unknown caller and recorded the information in PCR form Ex. PW 18/A. 34 PW 19 HC Kanchhi Lal was posted at Zebra 93 PCR van as incharge on the intervening night of 1112.5.2009 from 9pm to 8am. He stated that at about 06:15am he had received a call that boy had been shot at Khaira Mor Najafgarh. They reached there and found one boy whose name was lateron revealed as Pawan Kumar, lying there with bullet injury. He was removed to RTRM hospital where he declared brought dead by the doctor.
35 PW 20 HC Devender Kumar had joined the investigation alongwith Inspt Arun Verma, SI Mahesh Soni and Ct. Ashok on 12.5.2009 and had reached the spot of incident. He deposed that at the spot huge blood was lying near DTC bus No. DL lPB 1599. The injured had already been taken to RTRM hospital by PCR. One empty cartridge, one bullet lead, one pair of Hawai slippers lying at the spot. After leaving him and Ct Ashok Kumar at the spot to guard, Inspt Arun Verma alongwith FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 34 35 SI Mahesh Soni left for RTRM hospital and after sometime they returned to the spot. The site was again inspected by them. Another empty cartridge was found lying opposite Lamba Book Depot. In the meantime complainant Mahender Singh came to the spot and his statement was recorded by Inspt Arun Kumar who prepared rukka and sent the same to PS Najafgarh through SI Mahesh Soni for registration of the case. He further deposed about arrival of crime team at the spot, lifting of the exhibits and their seizure vide seizure memo Ex. PW 20/A. He stated that from the spot a pair of chappal was sealed and seized vide seizure memo Ex.PW20/B. 36 PW 20 further testified that on 13.5.09 he again joined the investigation of this case at RTRM hospital when the postmortem was conducted on the deadbody of the deceased.
37 As per his testimony, PW 20 is also a witness to the arrest of the accused Chetan Yadav at the instance of secret informer from house No. 255B, Bblock, Gopal Nagar, FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 35 36 Najafgarh vide arrest memo Ex. PW 8/B. He stated that the disclosure statement Ex. PW 8/A of accused Chetan Yadav was recorded and he had signed the same at point B. He further testified that accused Chetan Yadav had pointed out the place of incident as Ex. PW 8/D. During the course of his further testimony, he identified the case property ie the various exhibits as Ex. P1 to Ex. P7.
38 PW 21 Pawan Kumar is an independent witness. As per the prosecution on 5.5.09 accused Sandeep @ Mental and Chetan R/o Gopal Nagar, Najafgarh had forcibly taken away car No. DL 3C AW 6656 of Pradeep @ Banke, regarding which he had complained to the police and for this reason Sandeep @ Mental was annoyed with him. That on 13.5.2009 at about 1:10pm he alongwith Pradeep @ Banke were present at Jharoda Village and Sandeep @ Mental called him on mobile No. 9211976618 from mobile No. 9254624492 and Sandeep @ Mental asked him about Pradeep @ Banke and also asked him to make him talk to Pradeep @ Banke. That lateron FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 36 37 Pradeep told him that Sandeep @ Mental had threatened to kill him and told him ''Ek Ka To Kaam Bandh Diya Hai, Tu Baki Paise Mangta Ho To Tera Bhi Kaam Bandh Doon.'' That he told him that Pawan Ko To Maar Diya Hai, Ab Tumhe Bhi Maar Doonga.". However, PW 21 did not suport the case of the prosecution and even denied that he knows anything about the present case or the police had recorded his statement. His statement Mark P21/1 was read over to him, however he denied having made any such statement.
39 PW 22 Satish was running the PCO at bus stand Rohtak and deposed that telephone installed at his PCO is 9254624492. He stated that on 20.7.09 the police had come to PCO and recorded his statement.
40 PW 23 Ct. Ashok Kumar had joined the investigation of this case on 12.5.09 alongwith Inspt Arun Verma, SI Mahesh Soni and HC Devender. He deposed on the lines of testimony of PW 20 HC Devender Kumar .
4l PW 24 Ct. Praveen Kumar was working as FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 37 38 photographer with Crime Team South West District on
12.5.09 and had taken the photographs of the spot which he proved as Ex. PW 24/A1 to Ex.PW 24/A18 and the negatives( collectively) as Ex.PW24/B. 42 PW 25 Smt Renu is the registered owner of bus No. DL lPB 0248. She deposed that Pawan ( now deceased) was working as conductor on the said bus.
43 PW 26 Sh Vinod Kumar is the father of accused Chetan Yadav. He had stated before the police that on 13.5.09 he had received a telephone call from mobile phone No. 9254624492 from one Sandeep @ Mental, the friend of his son that they had killed one Pawan by shooting. In his chief examination he admitted that in May 2009 his mobile phone number was 9899671421 but he denied that he had made any such statement to the police. He too was declared hostile by the prosecution.
44 PW 27 Sh Ishwar Singh Ranga is the father of accused Kapil Ranga. As per his testimony he had handed over FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 38 39 one mobile phone to police which was seized vide seizure memo Ex.PW 11/D. 45 PW 28 ASI Kishan Kumar testified that on 5.5.2009 on receipt of DD No. 32A Mark PW 28/l he alongwith Ct. Devender Kumar had gone to house No. RZ233, Bblock, Gopal Nagar, Najafgarh but no complainant met him there, so the DD was kept pending for enquiry and under the directions of SHO, the DD was handed over to HC Dinesh Kumar. 46 PW 29 HC Veena was working as duty officer with PS Najafgarh on 12.5.09 and proved recording of FIR No. 148/09 as Ex.PW 29/A. 47 PW 30 ASI Attar Singh was incharge crime team on 12.5.090 and had inspected the site and proved his report to this effect as Ex. PW 30/A. 48 PW 31 Sh Deepak Aggarwal was Asstt.
Manager of Hotel Mayur, Upper Road, Haridwar, Uttranchal on 24.5.09. He deposed that on that day IO of the case came alongwith accused Sandeep and he told him that accused FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 39 40 Sandeep had stayed in their hotel on 13.5.09 in room No.12 vide entry No. 23 of hotel register. He stated that he had handed over the photocopy of the bill Mark X1.
49 PW 32 Sanjeev @ Ashu testified that police had visited his house about 2 ½ years ago and was shown one customer application form of a post paid Vodafone mobile connection which was in his name, bearing his photograph and copy of his licence. He stated that he did not subscribe to the said connection. That he had lost his purse about 8/9 months before that date and his purse was containing his photograph and driving licence. He further stated that handwriting and signatures of the said customer application form Ex. PW 16/A wee not his.
50 PW 33 Narender Kumar was working as Postmortem Assistant RTRM hospital who had made entry regarding postmortem conducted on the deadbody of the of the deceased on 13.5.09 at serial No. 72 in the register containing details of postmortem conducted in the mortuary. FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 40 41 He proved the copy of the said entry as Ex. PW 33/A. 51 PW 34 Pradeep Kumar is the owner of Swift Car bearing No. DL 2CAW6656. He testified that he is a property dealer and had got purchased two plots to the mother and wife of accused Sandeep. On 5.5.09 accused Sandeep called him at his house for giving payment of the said plots. He went there at 12:30pm in his Swift car where accused Sandeep alongwith one person whom he was addressed as Chetan and whom he had seen for the first time on that day, went away in his car stating that they were going to bring money for payment to him. He kept waiting in the house of accused Sandeep till 4:00pm and then his wife told him that Sandeep would not come back on that day, so he made call at 100 number. He stated that on 10.5.09 he alongwith Narender had gone for a walk in the morning who received a call from accused Sandeep at 6/6:15am and accused Sandeep asked Narender to give the phone to him i e PW 34 as he wanted to talk to him. He stated that accused Sandeep told him that ''Ek Ka To Kaam Bandh FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 41 42 Diya Hai, Tu Baki Paise Mangta Ho To Tera Bhi Kaam Bandh Doon.'' He further stated that on 13.5.09 his worker Pawan had come to his office and received a call from his mobile phone from accused Sandeep from a Haryana number at about 01:30pm. Thereafter Pawan gave the phone to him as asked by accused Sandeep and then he spoke to Sandeep on mobile of Pawan and accused threatened him by saying he must have read in the newspaper that he had killed one Pawan, brother of Anil and if he would still demand money, he would kill him as well.
52 This witness was declared hostile since he had not identified accused Chetan. During cross examination by Ld. Addl. PP for State, he denied that accused Chetan present in the court was not the same person but had taken away his car alongwith accused Sandeep.
53 PW 35 SI Mahesh Soni testified that on receipt of DD No. 7A Ex. PW 35/A on 12.5.09 he alongwith Inspt Arun Verma, HC Devender and Ct Ashok reached the spot at Khaira FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 42 43 Mor, Najafgarh, where one bus No. DL l PB 1599 was found stationed facing from the side of Jaffarpur to Najafgarh. He deposed about the blood, empty cartridge and blood stained bullet lying at the spot. He further stated that since no eye witness was found present at the spot and they came to know that the injured had already been removed to RTRM hospital in a PCR van, he alongwith Arun Verma went to RTRM hospital, leaving the other staff at the spot. That in the hospital injured Pawan Kumar was found admitted vide MLC No. 1393/09 who was declared brought dead by the doctor on the MLC. That the deadbody was inspected and they found that there was a gun shot on the left side of the chest near nipple and one gun shot on the head of the deceased. That from the personal search of the deceased, one brown colour leather purse, one election I card, Rs. 230/ in cash and one mobile phone of TATA Indicom of black and white colour were recovered which were taken into possession vide memo Ex. PW 35/B bearing his signature at point A. That no eye witness was found present even in the FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 43 44 hospital. Thereafter they came back to the spot and searched for the other empty cartridge (Khol) which was found lying at the distance of about 25 meter from the blood lying on the road on opposite side of Khaira road and in front of Lamba Book Depot. That complainant Mahender Singh also reached at the spot and he gave his statement Ex. PW 5/A upon which endorsement was made by Inspt Arun Verma. Thereafter he was sent to PS for registration of the case alongwith the original rukka at about 9:00am. He deposed that after registration of the FIR he returned to the spot. He stated that crime team had already inspected the spot and thereafter the exhibits were lifted from there and were seized vide seizure memo Ex. PW 20/A. Further that blood stained pair of slippers of blue colour were also seized vide seizure memo Ex. PW 20/B. 54 PW 36 SI Naresh Sangwan of Crime Branch had joined the investigation of this case on 23.5.2009 alongwith Inpst. Satish Sharma. He testified that on that day accused Sandeep @ Mental present in Court was interrogated and his FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 44 45 disclosure statement Ex. PW 36/A was recorded. 55 PW 36 further stated that on 24.5.2009 he had joined the investigation of this case alongwith Inspt. Satish Sharma and other staff when accused Sandeep @ Mental was taken to Haridwar where he led them to hotel Mayur and pointed out the said hotel in the presence of Sh Deepak Aggarwal, vide pointing out memo Ex. PW 36/B. That in the hotel accused Sandeep @ Mental was identified by Sh Shankar Dutt, Asstt. Manager of the hotel vide identification memo Ex. PW 36/C. That Sh Deepak Aggarwal, the owner of the hotel had produced the vistor's register having entries from Serial No. l dated 9.5.2009 to Serial No. 117 dated 24.5.2009. That there was an entry at Serial No. 23 in the name of Sandeep Deshwal. He deposed that bill No. 825 which was in the name of Sandeep was also produced and was seized vide seizure memo Ex. PW 36/D and the photocopy of the relevant entry No 23 of the visitor's register was taken which is Ex. PW 13/A. He stated that thereafter accused Sandeep @ Mental led the FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 45 46 police party to the bridge on the highway under which the water of river 'Ganga' flows towards the other corner of the bridge from where while standing on the bridge he had thrown the pistol used in the commission of the present offence. He proved the pointing out memo of the said spot as Ex.PW 36/E. He deposed that they had tried to search out the said pistol, however they could not succeed due to the flow of water of river Ganga.
56 As per the testimony of PW 36, he had again joined the investigation on 27.5.2009 and alongwith the police team and accused Sandeep @ Mental had gone to Gorakhpur to find out the source of weapon of offence and to recover the car used in escaping from the scene of crime by the accused persons. They reached Gorakhpur on 28.5.2009 and accused Sandeep @ Mental identified hotel Park Regency on Park Road, Gorakhpur, where he alongwith accused Chetan had stayed on 6.5.2009 and where Kapil Ranga met him. He prepared the pointing out memo of hotel Ex. PW 11/E at the FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 46 47 pointing out of the accused. He further stated that the accused was again interrogated at Gorakhpur and his disclosure statement Ex. PW 36/F was recorded. In the hotel he met Sh Deepak Srivastava, the Front Manager of the hotel who identified accused Sandeep @ Mental and identification memo Ex. PW 11/F was prepared. He further deposed that he seized Guest Registration Card Ex. PW 11/B, bill Ex. PW 11/C from Sh Ashok Kumar Sharma and seized vide memo Ex. PW 11/A. He further deposed about accused Sandeep @ Mental leading them to the house of accused Kapil Ranga where Ishwar Singh Ranga, father of accused Kapil Ranga met them and was interrogated about mobile phone No. 9451539740 and said mobile phone was seized from him vide seizure memo Ex. PW 11/D. Specimen handwriting of Ankit Ranga, the brother of accused Kapil Ranga was also taken which are Ex. PW 36/G and Ex. PW 36/H respectively. Ankit Ranga was also interrogated since the room was booked at hotel Park, Gorakhpur in his name. The statement of I S Ranga and FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 47 48 other witnesses were recorded at the spot.
57 PW 36 is also a witness to the recovery of WagonR car bearing No. DL 4CN 0328 at the instance of accused Sandeep @ Mental from plot No. 233 Udyog Vihar, Shankar Chowk Gurgaon which was containing two other number plates bearing registration No. HR 63 AT 4684 which were seized vide seizure memo Ex. PW 36/J. 58 PW 36 further deposed that on 31.5.2009 the specimen signatures and handwriting of accused Sandeep @ Mental were taken with the permission of the Court and he proved the signatures and handwriting as Ex. PW 36/K1 to Ex. PW 36/K29.
59 PW 36 deposed about arrest of accused Kapil Ranga on 31.5.09 who had surrendered in the PS and proved his arrest memo Ex. PW 36/L, personal search memo Ex. PW 36/M. He stated that he was interrogated and made disclosure statement Ex. PW 36/N. 60 PW 36 further deposed that on 9.6.09 accused FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 48 49 Jagdeep had surrendered in the office of Crime Branch. He proved his disclosure statement as Ex. PW 36/Q. He further deposed that on 11.6.2009 he had seized the record of Axis Bank, Najafgarh Road vide memo Ex. PW 3/D and seized record is Ex. PW 3/A to C. As per his testimony, he collected the postmortem report and the sealed exhibits alongwith sample seal from RTRM hospital on 12.6.2009 and seized them vide memo Ex. PW 12/A. He testified that during investigation he had also recorded the statements of the witnesses and on 5.7.2009 he had accompanied SI Mahesh Soni, the draftman where the site plan was prepared at the instance of the complainant Mahender Singh.
61 During the course of his testimony he identified the two number plates bearing FIR No148/09 which are Ex.PW 36/X1 and mobile phone of black colour of Fly Company Ex.P1. The identify of the WagonR car which was released on superdari vide entry Ex. PX in register No. 19 was not in dispute by the defence.
FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 49 50 62 PW 37 Inspt Arun Verma testified that on 12.05.2009 on receipt of DD No. 7 A Ex.PW35/A, he along with SI Mahesh Soni, H.Ct. Devender and Ct. Ashok reached reached Khaira Mor, Najafgarh, where they found DTC bus No. DL 1 PB 1599 stationed and sufficient quantity of blood was found lying. One empty cartridge and one blood stained bullet led and a pair of blood stained blue colour hawai chappal was also found lying at the spot. No eye witness was found present at the spot. They came to know that the injured had already been removed to RTRM hospital in a PCR van. He along with SI Mahesh went to RTRM hospital leaving the other staff at the spot for the prevention and supervision and in the hospital, they found injured Pawan Kumar admitted in hospital vide MLC No. 1393/09 who was declared brought dead by the doctor on the said MLC. They inspected the dead body and found that there was a gun shot injury on his left side of chest near nipple and one gun shot injury on the head of the deceased. 63 PW 37 further testified that one brown colour FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 50 51 leather purse, one Election Icard, Rs.230/ in cash and one mobile phone of TATA Indicom of black and white colour which were recovered from the personal search of the deceased, were produced by Duty Ct. Pawan Kumar and the said items were seized vide memo Ex.PW35/B. That even in the hospital, they did not find any eye witness. Thereafter they came back to the spot. At the spot they searched for the empty cartridge (khol) and the same was found lying at the distance of about 25 mtr. from the blood found lying at the spot, on the opposite side of Khaira Road and in front of Lamba Book Depot. That he recorded the statement of complainant as Ex. PW 5/A and made endorsement Ex. PW 37/A and sent the same to the PS through SI Mahesh Soni for registration of FIR. The crime team was summoned at the spot. He deposed that site plan Ex. PW 37/B was prepared by him at the instance of Mahender Singh. He further deposed about arrival of the crime team at the spot, inspection of the spot by the crime team and the photographs taken by the photographer of the crime team. He stated that FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 51 52 after SI Mahesh Soni returned to the spot alongwith copy of the FIR Ex.PW 29/A, the exhibits were lifted from the vide seizure memos Ex. PW 20/A and Ex.PW 20/B. He deposed that on 12.5.2009 he moved an application Ex. PW 37/X for preservation of deadbody for 72 hours. He further proved his application Ex. PW 37/C alongwith brief facts, Form 25.35, true copy of DD No.7A, copy of FIR, copy of statement of Mahender Singh and rukka for conducting postmortem. He further deposed on the arrest of accused Chetan on the same day at about 06:30am from his house. That he made disclosure statement and pointing out place of incident. He further deposed about efforts made by him and his staff during investigation for arrest of the remaining accused persons but without any success. He stated that on 22.5.09 accused Sandeep @ Mental had surrendered in the Court and was formally arrested vide arrest memo Ex. PW 37/G. The police custody remand for four days was obtained. Thereafter the investigation was transferred to Crime Branch.
FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 52 53 64 PW 38 Inspt Satish Sharma had taken over the investigation on 22.5.09 and deposed on the lines of testimony of PW 36 SI Naresh Sangwan. Besides, he also testified that during investigation he had collected the computerized details of PNR Number from Indian Railway which are collectively Ex.PX1 alongwith forwarding letter of Manager IRCTC Ltd Ex.PW 38/A and as per the said record accused Kapil Ranga had traveled on 28.4.2009 from Delhi to Gorakhpur to and fro. He also collected the ownership of record of bus No. DL 1P B 0248 Ex.PX2 and collected the details of mobile phone Nos. 9212322501 used by accused Sandeep @ Mental, 9212322502 and 9811449963 used by Chetan and 9451539740 used by accused Kapil Ranga, the said record is collectively Ex.PX3. During investigation he had signed the exhibits to FSL in intact condition and lateron collected the result and file the same in the Court. 65 After conclusion of the prosecution evidence, the statement of the accused persons was recorded U/s 313 Cr. FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 53 54 PC, whereby accused Kapil Ranga has denied the incriminating evidence appearing on record against him and claimed that he was called by the police for interrogation and in the office of Inspt Satish he was falsely arrested and his signatures were obtained forcibly on some blank papers which were never shown to him thereafter. He denied having made any disclosure statement to the police and claimed to be innocent. 66 Accused Sandeep @ Mental also denied the entire incriminating evidence appearing on record against him and claimed to be innocent and to have been falsely implicated in the present case.
67 Accused Jagdeep also denied the entire incriminating evidence appearing on record against him and claimed that he was falsely implicated in the present case after being called by the police and his signatures were obtained forcibly on some blank papers which were never shown to him thereafter. He stated that on the day of incident he was present in his office at Dadux IBM Gurgaon where he was working as a FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 54 55 driver and was also residing there.
68 I have heard arguments addressed by Ld. Addl. PP for State and the counsel for the accused persons and have gone through the material on record carefully. 69 It is submitted by the Ld. Addl. PP that complainant Mahender Singh is an eye witness of the case and he had stated that the deceased Pawan was his son. He had also stated that he was informed by Gokaran Pandit R/o Khaira Mor that his son was being searched by accused Sandeep, Chetan and Jagdeep @ Shikhandi, in order to kill him to take revenge of murder of Ashok and that he was advised by Gokaran Pandit not to send Pawan to his job. As a result of this Pawan was not sent for his duties on 11.5.2009. He had further stated that on 11.5.2009 he was assured by Gokaran Pandit that he would protect Pawan if he goes for his duty and told him on duty on the next day. Complainant Mahender Singh further testified that on 12.5.2009 when Pawan was going for his duty at about 5.30 am, he also accompanied him as he FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 55 56 wanted to lodge a complaint regarding the threats received by him. He had further stated that at about 6.00 am/6.15 am while they were crossing the road, Pawan was ahead of him and he was 1015 feet behind him, one white colour Wagon R car came from the side of Khaira village, from the Khaira Village the said car was driven by accused Chetan and the accused Jagdeep and Sandeep were sitting in the said car and accused Sandeep suddenly got down from the car and ran towards Pawan, while holding a fire arm in his hand. He had further described the manner in which his son was murdered by Sandeep and after the incident they all had ran away in the same car. It is further submitted by Addl. PP that on 13.5.2009 at about 6.30 pm on the basis of secret information, accused Chetan @ Kana was arrested from Gopal Nagar and he confessed his guilt. It is further submitted that on 22.5.2009 accused Sandeep @ Mental had surrendered in the court and he was arrested in this case and his disclosure was recorded, wherein he admitted his guilt. It is further submitted that FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 56 57 during the police remand of accused Sandeep @ Mental he led the police party to Hotel Mayur, Haridwar and pointed out the said hotel where he had stayed after committing this crime. Accused Sandeep was identified by Shri Sankar Dutt, Asstt. Manager of the hotel and the relevant entry of the record of the hotel, Ex. PW 13/A and photocopy of Bill No. 825 in the name of accused Sandeep, were seized by the Police. Accused Sandeep had also pointed out the place where he had thrown the pistol, used in the commission of the offence, in riven Ganga while standing on the bridge.
70 It is further submitted by Addl. PP for State that accused Sandeep had disclosed that he committed the murder Pawan as he wanted to take revenge of murder of Ashok, who was his cousin brother and for this they were in need of weapon hence they contacted Kapil Ranga, who was known to them being permanent resident of Sultan Pur Dabas, Delhi and at that time he was residing at Gaurakhpur, UP. He had further confessed that accused Chetan, agreed to provide FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 57 58 financial assistance to his co accused Sandeep, since deceased Ashok was also his good friend. Accused Kapil also agreed to provide weapon to them, who got his train reservation done for his journey to Delhi on 28.4.2009 in Bihar Sampark Kranti and he bought a pistol and 8 cartridges from his one of known and he delivered the same to the accused Chetan @ Kana after reaching Delhi on 29.4.2009 and thereafter he left Delhi for Gorakhpur on 3.5.2009 by Gomti Express from Delhi to Lucknow and thereafter from Lucknow to Gorakhpur by LJN MUV Express for which he got his reservation done. In this regard, relevant record was seized by the police and was duly proved.
71 It is further submitted by the Ld. Addl. PP that accused Chetan and Sandeep @ Mental were in need of more weapon and cartridges hence on 5.5.2009 they forcibly lifted the Swift Car No. DL 3C AW 6656 of one Pradeep @ Banke. In this regard, statement of PW Pradeep @ Banke was also recorded as PW34 in the court wherein he had clearly stated that on FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 58 59 5.5.2009 his car No. DL 3C AW 6656 was taken by accused Sandeep alongwith his co accused Chetan and his car was returned on 10.5.2009. It is further submitted that they had stayed at Hotel Park Regency which accommodation was arranged by their co accused Kapil Ranga and the entry in the guest registration card was made in the name of Ankit Ranga i.e. the younger brother of accused Kapil Ranga and in this regard, relevant entries of the hotel are duly proved on record and the report of handwriting expert is also corroborating the fact that the entries were made by the accused persons. Further that the car No. DL 4C N 0328 make WagonR car was recovered from Gurgaon on the pointing out of accused Sandeep, in which he alongwith his other associates had gone to the spot and committed the murder of Pawan and two number plates bearing registration No.HR63 AT 4684 were recovered from the said car. That from Gorakhpur Rs.40,000/ were withdrawn through ATM from the account of accused Chetan @ Kana, out of which Rs.17,000/ were given to accused Kapil Ranga for the FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 59 60 payment of the weapons and the said record has been duly proved on record.
72 It is further submitted that the spot of the incident was duly clarified by PW Mahender Singh in his cross examination and that his later part of the evidence recorded after moving an application u/sec 311 Cr.PC cannot be relied upon since it was recorded much after the recording of his statement in the court and that cannot be relied upon and is of no consequence. It is further submitted that accused Sandeep had disclosed that after committing the murder he departed for Haridwar via Najafgarh Rohtak and to mislead the police he had called on the mobile phone of Pawan on his mobile No. 9211976618 and Vinod Yadav, father of his coaccused Chetan on his mobile No.9899671421 from PCO No.9254624492 from Rohtak Bus Stand and this fact is duly proved on record that mobile Phone No.9211976618 belong to Pawan and Mobile Phone No. 9899671421 belong to Vinod Yadav and the owner of the STD Booth was also examined as PW22 and he had stated FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 60 61 that mobile phone No. 9254624492 was installed at his PCO and his statement was recorded by the police. That this witness was not cross examined and his testimony remained unrebutted. It is further submitted that it is a case of criminal conspiracy hatched between the accused persons to kill Pawan and in pursuance thereof he was murdered and that the criminal conspiracy is always hatched in secrecy and there cannot be any direct evidence of it. It is further submitted that the prosecution has proved its case beyond the reasonable doubts by leading direct evidence as well as documentary and circumstantial evidence.
73 On the other hand, the counsel for the accused persons have submitted that the prosecution has failed to prove the guilt of accused persons beyond reasonable doubt. That prosecution has examined two eye witnesses ie PW 5 Mahender Singh who happens to be the father of the deceased and PW 14 Sh Samay Singh, driver of bus No.DL lPB 0248 plying on route No. 578 on which deceased was working as FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 61 62 conductor. It is submitted that PW 14 Samay Singh has not supported the case of the prosecution that he had witnessed the incident but to the contrary he testified that on the day of the incident at about 06:00am he was present on the driver seat of the bus No DL lPB 0248 parked at Khaira Mor near Lamba Book Depot on which deceased was working as conductor and when he did not come for duty, PW 14 got down from the bus to look for him and then he saw that deceased was lying near DTC bus with bullet injury marks on his temple and left side of the chest and he called police on 100 number and PCR reached there in three minutes and removed him. It is submitted that this witness was declared hostile by the prosecution and he was confronted with his statement Ex.PW 14/DA but he denied that he had witnessed the incident that the deceased was shot dead by accused Sandeep and also that thereafter Sandeep had threatened him to be killed in case he would disclosed anything to the police or in the court. It is submitted that the testimony of PW 14 Samay Singh is of no help to the prosecution. FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 62 63 74 Regarding PW 5 Mahender Singh, father of the deceased, it is submitted by the defence counsels that he was not present at the spot and this fact finds corroboration that he was not seen by the PCR officials or any other police official when they reached the spot for the first time. It is submitted that if PW 5 Mahender Singh was present at the spot, he would have remained at the spot by the side of his son when he was shot dead in front of his eyes and his testimony to this effect that he went away from the spot to his house to inform his wife as he was in shock is not believable. It is submitted that he has neither reported the matter to the police nor had provided any help to the deceased nor he removed him to the hospital, nor he raised any alarm which is unlike a father. It is further submitted that even as per the testimony of PW 5 Mahender Singh, soon after alleged firing at deceased Pawan accused Sandeep had left the spot and in those circumstances PW 5 had no threat to his life and he should have made all possible efforts to save the life of his son or should have remained by FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 63 64 his side at the spot. It is submitted that evidence of PW 5 Mahender Singh to the effect that accused Sandeep had threatened him in the presence of the police officials in the official vehicle when his son Anil was arrested in the case of murder of one Ashok Kumar who was the cousin brother of accused Sandeep @ Mental has not been corroborated by any police official nor any such person has been examined by the prosecution who was present in the said official vehicle. Further the testimony of PW 5 Mahender Singh to the effect that he was informed by PW 6 Sanjay @ Gokaran Pandit about the threats given by the accused persons to the life of his son Pawan has also not been corroborated as PW 6 has not been supported the aforesaid version of PW 5. That PW 5 in his testimony deposed that on16.4.2009 he alongwith his son Anil, who was in the custody of police officials and accused Sandeep were going with the police officials of PS Jaffarpur in SUV to PS Jaffarpur for change of clothes of Anil and accused Sandeep had threatened to kill him and his elder son and also FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 64 65 threatened that Anil would remain alive only till he is in the custody of the police officials, whereas all the police officials were categorically questioned in this regard during cross examination but none of them stated that there was no such place where one could hide.
75 The defence counsels have further submitted that in the statement Ex. PW 5/A PW 5 Mahender Singh has not disclosed the name of the occupants of the car other than Sandeep @ Mental which shows that he had not seen anybody in the car and merely on conjectures and surmises presumed that accused Sandeep @ Mental must have killed his son since Ashok, cousin brother of accused Sandeep @ Mental was murdered and he was suspecting Anil, the son of PW 5 Mahender Singh to be the murderer of Ashok. It is submitted that on the same day on 12.5.09 PW 5 Mahender Singh made another statement U/s 161 Cr PC, wherein he gave the names of other occupants of the car which is an after thought and cannot be relied upon. It is submitted that it is not possible that FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 65 66 when he made the first statement ie Ex.PW 5/A he did not remember their names and thus lateron he had to make another statement to this effect. It is further submitted that there are discrepancies in his testimony and the site plan Ex. PW 37/B and this also leads to the inference that he was not present at spot. It is submitted that PW 5 Mahender Singh in his complaint Ex. PW 5/A has nowhere stated that after the incident he had left the spot for his house and had returned there lateron alongwith his wife. The bare perusal of his statement leads to the inference that he was present throughout after the incident. It is submitted that in such circumstances the testimony of PW 5 Mahender Singh is not believable and cannot be relied upon without any independent corroboration. Further that the testimony of PW 5 is full of improvements and he was confronted on all the material particulars with his statement Ex. PW 5/A. Further that even PW 14 Samay Singh has nowhere acknowledged the presence of PW 5 at the spot. 76 It is further submitted that weapon of offence FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 66 67 was never recovered and the evidence led by the prosecution to the effect that accused Sandeep @ Mental after the incident had gone to Haridwar via Rohtak has not been proved on record. That the extra judicial confession allegedly made by the accused before PW 34 Pradeep Kumar has not been proved on record, as for the incident dated 12.5.09 PW Narender on whose mobile phone the accused Sandeep @ Mental had allegedly spoken to Pradeep Kumar has not been examined and at the same time the incident dated 13.5.09 that accused had spoken to Pradeep on the mobile phone of PW 21 Sh Pawan Kumar has also not been proved as PW 21 was declared hostile and he did not support the case of the prosecution. Besides, as per the prosecution, call was made on the mobile phone of Pawan Kumar bearing No. 9211976618 from phone No. 9254624492 which belongs to PCO but PW 22 the owner of the PCO who appeared in the witnessbox was not made to identify the accused Sandeep @ Mental that he was the person who had made the relevant call from his PCO at the relevant time on FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 67 68 13.5.09. It is further submitted that the evidence led by the prosecution to the effect that accused Sandeep @ Mental had stayed at hotel in Haridwar even assuming to be correct does not by itself leads to the inference that he had committed the murder of Pawan and to dispose off the weapon of offence had gone to Haridwar. It is submitted that there is no witness who had seen the weapon of offence in possession of accused Sandeep at any point of time during his stay at Haridwar nor anyone had seen him throwing the same in the river Ganga. Similarly regarding the evidence led by the prosecution from the department of railway that accused Kapil Ranga had travelled from Gorakhpur to Delhi and then from Delhi to Lucknow and to Gorakhpur is not sufficient to prove his visit to Delhi, as there is no evidence on record that Kapil Ranga had met accused Chetan and Sandeep @ Mental and had delivered pistol and eight live cartridges. Besides, there is no evidence on record that if any pistol or live cartridges were delivered by Kapil Ranga to these accused persons, the same was the weapon FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 68 69 of offence used in the killing of Pawan. Similarly, the defence counsel has submitted that though it is denied by the accused persons that they had visited Gorakhpur but at the same time their visit to Gorakhpur does not in any manner connect them with the commission of alleged offence. The withdrawal of Rs. 40,000/ from ATM at Gorakhpur by accused Chetan does not in any manner leads to the inference that said amount was to be paid to accused Kapil Ranga. The defence counsel he has drawn my attention to the respective disclosure statement of the accused persons, where there are various discrepancies in this regard. It is submitted that so far accused Kapil Ranga is concerned, the mobile phone bearing No. 9451539740 which was seized by the police and was allegedly used for conversation with accused persons does not belong to Kapil Ranga but was in the name of his father and that the father of accused has not been cited or examined as prosecution witness to prove that accused Kapil Ranga was using his mobile phone and was in touch with the accused persons through the said mobile phone. FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 69 70 77 It is further submitted that stay of accused Chetan and Sandeep in the hotel at Gorakhpur does not connect Kapil Ranga in any manner as associate of accused Sandeep and Chetan since there is no entry in the register of the hotel made in the hand of Kapil Ranga nor there is any evidence on record that Kapil Ranga had met the accused persons at Gorakhpur for purchasing some weapon. It is submitted that in such circumstances the prosecution has failed to bring home the guilt of the accused persons beyond reasonable doubt and thus they are liable to be acquitted. 78 After hearing the submissions from both the parties, I have gone through the material on record carefully. 79 The prosecution has examined PW 1 is Dr Parvinder Singh, Junior Specialist, Forensic Medicine, RTRM Hospital, who had conducted the postmortem on the deadbody of deceased. He proved the postmortem report as Ex. PW 1/A. He testified that on the examination of the deadbody of the deceased following external injuries were found on his person: FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 70 71
"1 One fire arm entry wound measuring 1.2x 1cm, circular shaped, surrounded by abrasion collar of size 1.3 x1.1 cms situated over left temporal area of skull, lcm above left ear tragus, margins inverted. Blackening, singeing and tattooing present around the wound with active bleeding present.
2 One exit fire arm wound measuring 1.5 x lcm situated over right temporal region of skull, 3cm over right ear pinna, margins everted. No blackening, singeing and tattooing present around the wound with bleeding present.
3 One fire arm entry wound measuring 1 x . 8cms, oval shaped surrounded by a collar of abrasion of size 1.1 x 9 cms situated over front of upper part of left side of chest, 6.5 cms above and right to left nipple, 6.5cms from mid line, 127 cm above left heel, margins inverted with active bleeding present from the wound.
4 Abraded contusion of size 4 x 2.5cm FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 71 72 present over middle of forehead.
5 Abrasion 2.5 x 2 cms present over front of
right knee.''
PW 1 further gave the track of the
wounds as follows:
Injury No. 1: After piercing skin, subcutaneous tissue, underlying muscles, fracturing left temporal bone and enters into left temporal lobe of brain, parietal lobes and right temporal lobes through and through and exited through injury No. 2 after fracturing ( bullet fracture) right temporal bone. Track of the bullet contains blood. Brain matter surround the track is contused and lacerated. Direction of the bullet was from left to right and obliquely below upwards.
Injury No. 2: Bullet Exit Wound.
Injury No. 3 : After piercing skin, subcutaneous tissue, underlying chest muscles, enters between second and third ribs anteriorly in mid clavicular line on left side, then pierce heart( left ventricle) FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 72 73 through and through, then pierces left lung, enters into right thoracic cavity, pierces right pleura and lung parenchyma through and through, pierces between eleventh and twelfth ribs posteriorly and pierces right dome of diaphragm, pierces right lobe of liver through and through. A metallic ( copper) bullet found embedded into the right posterior abdominal wall ( size of the bullet 1.3 x8cms), recovered, sealed and handed over to IO( one end of bullet marked as + by black sketch pen). Direction of the bullet was from left to right and above downwards. Track of the wound contains blood.'' After examination of the injuries on the deadbody of the deceased PW 1 gave the following opinion:
"Death was due to combined effect of hemorrhage and shock alongwith craneocerebral damage, consequent to injuries described above. Injuries were collectively sufficient to cause death in FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 73 74 ordinary course of nature. Injury No. 1 and 3 were caused by ammunition discharge from the rifled fire arm from a close range. All the injuries were ante mortem and recent. Injury No. 2 is the exit wound of injury No. l. Injuries No. 4 and 5 were caused by hard blunt object. Time since death was approximately 1 / ¼ days at the time of postmortem examination. ''
80 His testimony has not been disputed or rebutted in any manner, as he was not subjected to cross examination by the counsel for any of the accused persons. Hence vide his unrebutted testimony, it is proved that the deceased had died on account of injury Nos. l & 3 which were caused by ammunition discharge from the rifled fire arm from a close range and all the injuries were antemortem and recent. 81 As per the prosecution case, accused Sandeep @ Mental and other accused persons had motive to kill Pawan to take revenge of the murder of Ashok, the cousin brother of FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 74 75 accused Sandeep @ Mental by Anil, the brother of Pawan, deceased in the present case. To this effect, the prosecution has examined PW 5 Mahender Singh and PW 6 Sanjay @ Gokaran Pandit.
82 It is the case of the prosecution that Anil, the younger son of PW 5 Mahender Singh, the complainant in the present case who was working as helper on some bus was arrested in the case of murder of one person namely Ashok. As per the complaint, PW 5 Mahender Singh alleged that soon after the murder of Ashok, accused Sandeep @ Mental/ the cousin brother of deceased Ashok, Chetan @ Kana and Jagdeep @ Shikhandi had been threatening the complainant and his son Pawan to kill them. That accused Sandeep @ Mental had threatened the complainant and his son Pawan on the next date of the murder of Ashok that they would be killed and that Anil, his other son would be killed the moment he would be out of jail. It is further alleged that on 10.5.09 at about 1:00pm while he alongwith his son Pawan were coming by bus FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 75 76 from Dinpur, the above referred four persons, entered the bus and told Pawan " Tu Do Char Din Ka Mehman Hain, Tujhe Jaan Se Marengey Wa Ashok Ke Murder Ka Badla Legey" The complainant stated that he did not take the threat seriously and was about to lodge the report with the police in a day or two. He further complained that on 12.5.09 at about 6:00am he alongwith his son Pawan reached Khaira Mor for going to their respective jobs. In the meantime one Maruti WagonR white colour came from the side of Khaira village and stopped near them and Sandeep @ Mental, who had threatened him and his son to be killed, got down from the car holding a pistol in his hand and fired on the chest of his son. At this, his son Pawan to save himself crossed the road and tried to conceal himself under the stationary DTC bus but Sandeep @ Mental followed him and fired a shot on his head from close range and thereafter accused Sandeep @ Mental escaped from the spot in the WagonR alongwith 2 /3 other boys, who were sitting therein. He alleged that accused Sandeep @ Mental had FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 76 77 killed Pawan for taking revenge of the death of Ashok. 83 The prosecution has examined Mahender Singh, the complainant as PW 5, wherein he deposed about the arrest of his son Anil on 15.4.09 in the case of murder of one Ashok. He also deposed that on 16.4.09 while he was going in the vehicle of police official of PS Jaffarpur in which accused Sandeep @ Mental was also present and had threatened to kill him and his elder son and that his other son Anil could only remain alive till he was in custody of the police. He further deposed that on 10.5.09 Gokaran Pandit, R/o RZ251 B Block, Gopal Nagar, Najafgarh warned him while visiting his house that accused Sandeep @ Mental , Chetan@ Kana and Jagdeep @ Shikhandi present in court were searching his son Pawan and were verifying his whereabouts in order to kill him to take revenge of murder of Ashok. That again on 11.5.09 Gokaran Pandit visited his house and assured him that he shall protect Pawan if he comes on duty and told PW 5 to send Pawan on duty on the next day.
FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 77 78 84 PW 5 further deposed that on 12.5.09 he alongwith his son Pawan left the house at about 05:30am. He told Pawan to proceed for his duty while he was going to PS Najafgarh to lodge a complaint regarding the threats being received by them. He further testified that he wanted to meet Sanjay Singh, the driver of the bus on which his son Pawan was a conductor asked him to take care of Pawan. They reached Khaira Mor by bus at 6/6:15am. After alighting from the bus, when they were crossing road Pawan was ahead of him and when he had crossed the road, PW 5 was 10/15 feet behind him when a white colour Maruti came from the side of Khaira village. He stated that he saw that accused Sandeep @ Mental suddenly got down from the car and was armed with fire arm in his hand and ran towards his son Pawan, caught hold of him from behind and shot him in his chest. He stated that his son Pawan at that time was just about to get on the bus and had just held railing of the door of the bus on which he was working as a conductor. He further testified that after his FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 78 79 son was shot at, he pushed accused Sandeep @ Mental and ran towards a DTC bus parked on the other side of the road to hide and save himself but he was chased by accused Sandeep @ Mental. That Pawan struck against the DTC bus and fell down on which accused Sandeep @ Mental shot him in his head. He further stated that accused Sandeep @ Mental threatened in general showing his gun that anyone who would come near him shall be shot by him and thereafter he managed to flee away from there in the white WagonR car. He stated that at that time the car was driven by accused Chetan @ Kana and accused Jagdeep @ Shikhandi was sitting in the said car. When the car had come at the spot at that time also all the accused persons were present in the car. He stated that due to the incident he was shocked and rushed to his house to inform his wife. Thereafter he alongwith his wife came to the spot and came to know that Pawan had been taken to hospital by PCR. He stated that the slippers of Pawan were seen lying at the spot besides the blood and empty cartridges. Thereafter he went to FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 79 80 RTRM hospital alongwith his wife and came to know that his son had died at the spot. He stated that he had met the police at the spot and then in the PS when he went there from the hospital. He proved his statement to the police as Ex. PW 5/A. He further deposed about receiving of the deadbody vide receipt Ex. PW 5/B. He stated that again his statement was recorded on 26.5.09 in the crime branch office Chankya Puri. He further testified that the site plan of the spot was prepared at his instance on 5.7.09 by the officials of the crime branch and draftsman. That on 8.7.09 he had identified the accused persons namely Sandeep @ Mental , Chetan @ Kana and Jagdeep @ Shikhandi before Inspt Satish Sharma in the Court. 85 The defence counsel has submitted that the testimony of PW 5 does not inspire any credence as he has made the substantial improvements in his testimony and was confronted with his previous statement dated: 12.5.09. That his testimony has not been supported by the evidence of PW 6 Sanjay @ Gokaran Pandit that he had visited the house of PW FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 80 81 5 Mahender Singh, the complainant on 10.5.09 and thereafter on 11.5.09 and informed him that the accused persons namely Sandeep @ Mental, Chetan @ Kana and Jagdeep @ Shikhandi were searching for his son Pawan and were verifying his whereabouts in order to kill him to take the revenge of the murder of Anil.
86 The defence counsel has drawn my attention to the testimony of PW Gokaran Pandit who has been examined as PW 6 i e Sanjay @ Gokaran Pandit, who testified that he was not aware of anything about the present case. He stated that police had made enquiries from him but he did not remember if his statement was recorded or not. Perusal of the record shows that the prosecution is relying upon his statement recorded U/s 161 Cr PC on 12.5.09 and as per the same, on 10.5.09 at about 9pm Chetan @ Kana, Sandeep @ Mental and Shikhandi, cousin brother of deceased Ashok visited his house and asked him as to where was Pawan. PW 6 told them that Pawan was working as a conductor and at this Chetan FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 81 82 Yadav stated that he would be finished in a day or two. It is further mentioned in his statement that he informed Sh. Mahender Singh, father of deceased Pawan about the aforesaid threat given by them and he had also informed Pawan in this regard and thereafter in the evening also accused Shikhandi and Chetan @ Kana had entered the bus in which they were travelling and he gone near Pawan and threatened him that he would be killed in a day or two and they would taken revenge of the death of Ashok and thereafter they got down at Chhawla bus stand, Najafgarh regarding which he informed the father of Pawan and advised him to report the matter with the police. However, PW 6 did not support his said statement made before the police on 12.5.09 and was declared hostile by the prosecution. He was cross examined at length. During cross examination he identified the accused persons namely Chetan @ Kana, Sandeep @ Mental and Shikhandi by saying that they are his neighbours but he denied that on 10.5.09 they had visited his house, inquired about Pawan, or had threatened that FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 82 83 they would eliminate him in a day or two. He also denied that he had told any of these facts to PW 5 Mahender Singh, father of the deceased. He also denied that any incident had taken place in the bus where Pawan was threatened by Chetan and Shikhandi to be killed in a day or two for taking revenge of the death of Ashok. He further denied that he had informed about any such incident to PW 5 and advised him to lodge report with the police. In these circumstances, the prosecution has failed to prove on record that PW 6 Sanjay @ Gokaran Pandit had ever been informed by the accused persons about their intention and designs to kill Pawan to take revenge of the death of Ashok and that PW 5 Mahender Singh was informed in this regard by PW 6. PW 5 has also been confronted with his complaint Ex PW 5/A, wherein he nowhere stated before the police that Gokaran Pandit had ever visited his house and informed him about the threats to the life of Pawan at the hands of the accused persons and that they were in search of Pawan. At the same time the testimony of PW 5 Mahender FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 83 84 Singh in examinationinchief to the effect that accused Sandeep @ Mental, who was travelling alongwith him in the police vehicle on 16.4.09 to PS Jaffarpur, had extended threats to kill him and his son Pawan, has not been proved on record, as no police official who was present in the official vehicle at that time has been cited or examined as prosecution witness. At the same time PW 36 SI Naresh Sangwan, IO of the case has nowhere testified that any such threat was given by accused Sandeep @ Mental to PW 5.
87 Besides the defence counsel has also drawn my attention that the presence of PW 5 at spot is doubtful in view of his own statement. During cross examination he testified that after 15.4.09 he was not working anywhere and that he had left his job on 15.4.09 itself after his younger son Anil was arrested in some murder case, whereas in his complaint Ex. PW 5/A it is stated by him before the police that on 12.5.009 at 6am he and his son were going to their respective job ( Apni Apni Naukari Par Jane Ke Liye) reached Khaira Mor, whereas FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 84 85 during the course of his testimony he stated stated that he had left his house alongwith Pawan at 05:30am on 12.5.09 and he told him to proceed for his duty, whereas he was going to PS Najafgarh to lodge complaint regarding threats being received by them. He has made two different statements at two different stages. In his complaint before the police, he stated that they both he and his son were going to their respective jobs when the incident took place, whereas in his testimony before the Court he stated that he was going to lodge report with the police regarding the threats received by them, whereas no such threat was mentioned in his complaint Ex. PW 5/A as conveyed to them by PW 6 Sanjay @ Gokaran Pandit. As such, his said testimony creates doubt about his presence at the spot. 88 Ld. Addl PP for State has submitted that witness has mentioned in his statement dated: 26.5.09 about the fact that he was conveyed about the threats by Gokaran Pandit. However, Ld. Defence counsel has submitted that this is an after thought statement which was given before the police FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 85 86 after 14 days of the incident. I find force in the arguments of the defence counsel to this effect, as PW 5 Mahender Singh testified in his examination in chief that on 10.5.09 and again on 11.5.09 PW 6 had conveyed about the threats to the life of his son Pawan but despite this, this fact was not mentioned by him in his complaint which was recorded immediately on the next day i e 12.5.09. This itself creates doubt that there was any threat to the life of Pawan at the hands of the accused persons and it was conveyed to PW 5 Mahender Singh through PW 6 Sanjay @ Gokaran Pandit. It is observed that though PW 5 Mahender Singh has testified in his examination in chief that the threats were extended to him and his son w.e.f 15.4.09 but till before the incident no such report was lodged with the police and as such I have no hesitation to hold that either there was no threats as alleged by PW 5 or there was no such alarm caused to his mind to lodge report.
89 The defence counsel has further drawn my attention towards the conduct of PW 5 who as per his own FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 86 87 testimony had accompanied the deceased at the time of incident but he neither made any attempt to save his son nor tried to remove him to the hospital nor informed the police nor even remained at the spot near the deadbody of his son nor he raised any alarm nor even tried to apprehend the accused persons. His testimony to the effect that he was shocked and as such he left the spot and went to his house to inform his wife about the incident does not inspire any credence, as no father in these circumstances where his son is dying would leave him unattended and proceed to his house which was far away, to inform his wife and bring her to the spot. The first and foremost duty of the father was to look after his son who had been shot twice in the chest and head and to immediately provide him the medical aid but none of these things were resorted to by PW 5 which raises doubt about the presence at the spot. Moreover, the wife of PW 5 has not been cited nor examined as prosecution witness to prove that PW 5 had witnessed the incident and in shocked state of mind had reached his house FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 87 88 and informed her about the incident and then brought her to the spot. Even the presence of his wife at the spot has not been shown in the rukka or in any other document prepared at the spot or in the PS. Moreover even in the rukka it does not find mention that PW 5 Mahender Singh after witnessing the incident in shocked state of mind had left for his house and returned to the spot alongwith his wife. Even in his statement recorded U/s 161 Cr PC on 12.5.09 and 26.5.09, this fact does not find mention. It is seen that only in his statement dated 26.5.09 he has mentioned that he had gone to his house to inform his wife about the incident.
90 Ld. Addl. PP for State has submitted that in his said supplementary statement U/s 161 Cr PC, PW 5 has mentioned that after the incident he went to his house to inform his family members, however it is observed that in his said statement he has nowhere mentioned that he has gone to his house to inform his wife as testified before this Court. 9l The defence counsel has further submitted that FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 88 89 the presence of PW 5 Mahneder Singh at spot is further doubtful, as in his complaint Ex. PW 5/A except the name of Sandeep @ Mental, the names of other two accused persons does not find mention. He has submitted that for the first time the name of other two accused persons namely Chetan @ Kana and Jagdeep @ Shikhandi were recorded in his supplementary statement of the same date ie 12.5.09. It is submitted that the explanation given by the witness in his statement that he could not disclose the names of these two persons in his complaint due to shock is not believable as if he was so shocked then he could not have even disclosed the name of Sandeep @ Mental whom he had allegedly seen firing at his son. 92 The conduct of PW 5 Mahender Singh shows that he was not present at the spot at the time of the incident, otherwise he would have been concerned about the fate of his son and could not have left him on the road to die as unattended. It is strange that if the parents cannot show the compassion towards their children, in such circumstances how FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 89 90 can a passersby do. PW 5 also could not tell during his cross examination by which bus route number he had reached the spot alongwith Pawan. If he had accompanied Pawan to Khaira Mor in a bus, then he would have remembered at least the bus route number. The defence counsel has further drawn my attention that in his supplementary statement dated:
12.5.09 PW 5 stated that due to fear and to save himself he had concealed his presence, whereas all the official witnesses have categorically mentioned that there was nothing on the pavement from where this witness had allegedly seen the incident, to conceal his presence and as such statement dated:
12.5.09 was also manipulated and even in the said statement he has not disclosed as to where he has concealed his presence.
Moreover, he himself admitted in his cross examination that the passage on the pavement was not blocked by anything till Khaira Mor crossing. Thus in view of the conduct of PW5 and in view of improvements and contradictions in his testimony, a doubt is created about his presence at the spot at the time of FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 90 91 incident.
93 The other eye witness cited by the prosecution to the incident is PW 14 Samay Singh who was driver of the bus No. DLlPB 0248 plying on route No. 578. He deposed that Pawan was also working as a conductor in the said bus and that on a particular date in May 2009 at about 06:00am he was present on the driver seat of the above said bus which was parked at Khaira Mor near Lamba Book Depot. He further stated that on that day Pawan did not come for duty, so he got down from the bus to look for him and saw that Pawan was lying near DTC bus. He stated that he did not see any blood, however he testified that he saw bullet injury mark on the temple and on the left side chest of Pawan and called at 100 number. The police reached there within three minutes and took Pawan in a PCR van. He informed the owner of the bus and took the bus to mechanic near Khaira Mor and parked it there and thereafter one police official came and took him to PS and inquired him about the matter and he told the police officials FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 91 92 that he had not seen anybody. PW 14 did not support the prosecution case.
94 Perusal of the record shows that the statement of PW 6 Samay Singh was recorded U/s 161 Cr. PC on 12.5.09 and as per the same he was working as driver on blue line bus route No. 578 bearing registration No. DL lPB 0248 and that Pawan was also working as conductor on the said bus since last about 1 ½ months. It is further mentioned in his statement that the bus used to be parked near Lamba Book Depot at Khaira Mor at night and they used to take the bus in the morning from the said place itself. That on 12.5.09 at about 6:00am he came for his duty and in the meanwhile Pawan also reached and Mahender Singh, father of Pawan was also at some distance from him and that Pawan was about to board bus from the front gate when one boy namely Sandeep @ Mental caught hold of Pawan and fired a shot on his chest and that at this Pawan tried to hide himself under the stationary out of order DTC bus parked on the other side of the road and that Sandeep FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 92 93 @ Mental caught hold of Pawan and fired a shot on his head. That thereafter he (ie PW 14) came near him and threatened him and his family to be killed if he disclosed anything to the police or in the court against him and asked him to leave from there. It is further mentioned in his said statement that he got scared and sat on the floor of the bus and that after sometime he called at 100 number from his mobile phone No. 9268139726 and informed the police that he was very much scared from the threats extended by Sandeep @ Mental due to which reason he did not go to give his statement and left the spot with his bus and that he was called by the police at the spot through telephone and even at that time he was feeling scared. He stated before police that if Sandeep @ Mental comes to know that he had called the police at 100 number and had given statement to the police, he and his family members would be killed by him and as such he wanted that his name be kept secret. However, during his examination in chief, he did not support the case of the prosecution in terms of his statement FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 93 94 recorded U/s 161 Cr.PC and was declared hostile and was confronted with his entire statement which he denied to have made before the police. He categorically denied that he was an eye witness to the incident. He has also denied the presence of PW 5 Mahender Singh at the spot.
95 Prosecution is also harping on the extra judicial confession made by accused Sandeep @ Mental to PW 34 Pradeep Kumar on 12.5.09 and 13.5.09 respectively. As per PW 34 Pradeep Kumar, he is a property dealer and had got purchased the plots to the mother and wife of accused Sandeep @ Mental. Regarding which accused Sandeep @ Mental called him to his house for giving payment for the plots and when he went there, both accused Sandeep @ Mental and Chetan @ Kana took away his Swift car on the pretext to bring money for payment but did not return and consequently he informed police on 100 number. However, it is seen no such report made by PW 34 has been proved on record. PW 34 Pradeep Kumar testified that on 12.5.09 he had gone for a walk with Narender when FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 94 95 accused Sandeep @ Mental called on the mobile of Narender and spoke to him as well and threatened " Ek Ka To Kaam Bandh Diya Hai, Tu Baki Paise Mangta Ho To Tera Bhi Kaam Bandh Doon.'' However, his said testimony is not reliable as Narender on whose phone he had been threatened by Sandeep @ Mental has not been examined and thus there is no evidence on record that Narender on particular date and time was with PW 34 when he received alleged call from Sandeep @ Mental and that Sandeep @ Mental had asked Narender to give phone to PW 34 and then PW 34 spoke to Sandeep @ Mental. It is obvious that whatever Sandeep @ Mental had allegedly spoken to PW 34 could not have been heard by Narender but whatever Sandeep @ Mental must have told him after talking to him could only be deposed by PW Narender who has not been examined by the prosecution. Besides, the onus was on the prosecution to prove the mobile number of Narender on which he had received the call and mobile number of Sandeep @ Mental from which he made the call, but it is seen that no FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 95 96 such evidence is led by the prosecution, so it is not proved by prosecution that accused had made any such extra judicial confession before PW 34 on telephone while threatening him. 96 PW 34 Pradeep Kumar also testified that on 13.05.2009 when Pawan came to his office, accused Sandeep called on the mobile phone of Pawan from a Haryana number and also spoke to him at 1:30pm, giving him threat that he must have read in newspaper that he had killed one Pawan, brother of Anil and if he would still demand money, he would kill him as well. However, even the said testimony of PW 34 has not been corroborated by PW 21 Pawan Kumar who denied that he received any call on mobile No. 9211976618 from phone number 9254624492 of Sandeep @ Mental or PW 34 Pradeep Kumar also spoke to Sandeep@ Mental who threatened him that he had killed Pawan and now he will kill him. Besides it is seen from the call record Ex. PW 4/F that the said mobile No. 9211976618 is not in the name of PW 21 Pawan Kumar but in the name of Vijay Kumar Sinha who has not FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 96 97 been cited or examined as prosecution witness. As such, there is no evidence on record that mobile No. 9211976618 at the relevant time was being used by PW 21 . So even if it is proved on record that a call was made from phone No. 9254624492 to mobile No. 9211976618, there is no evidence that accused Sandeep @ Mental had spoken to PW 21 Pawan Kumar through these telephone phones. At the same time, the provisions of Sec. 65B Indian Evidence Act have not been complied with, as such call record is in admissible in evidence. Even if call record is deemed to be proved, there is no evidence that the said call was made by accused Sandeep @ Mental. At the same time, it is observed that prosecution has examined PW 22 Satish who testified that he is running a PCO at bus stand Rohtak and phone No. 9254624492 is installed at his PCO. He deposed that police visited his PCO on 20.7.09 and recorded his statement. It is seen this witness was not questioned with regard to the call allegedly made by accused on 13.5.09 nor he was made to identify Sandeep that he had FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 97 98 visited his PCO on that day. Besides, there is no evidence that any police official had visited his PCO on 21.7.09 as no official witness deposed so. In such circumstances, prosecution has failed to prove that any such call was made by accused Sandeep @ Mental to PW 34 Pradeep Kumar on 13.5.09 from the PCO of PW 22 making extra judicial confession while threatening him that he had killed Pawan and now he would kill him. 97 It is seen that PW 5 Mahender Singh who claimed to be an eye witness of the incident and deposed that accused Sandeep @ Mental and other two accused Chetan and Jagdeep had reached the spot in a WagonR car of white colour but he did not testify about the number of the WagonR car. Even in his complaint Ex. PW 5/A and supplementary statement dated: 12.5.09, the number of the WagonR car is not mentioned. It is only in the disclosure statement of Sandeep that the car number is mentioned. There is no evidence on record that after the disclosure statement of accused Sandeep dated: 23.5.09 whereby he disclosed that the said belongs to his FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 98 99 father, his father was ever interrogated by the police as to who was in possession and use of the said car at the time of alleged incident. It is also seen that as per the prosecution, the recovery of the car was effected from Udyog Vihar,Shankar Chowk Gurgaon but no public witness was joined at the time of its recovery nor it has come on record as to whom the said property belongs from where the car was recovered nor the owner or occupant of the said property has been examined as prosecution witness to prove that this car remained parked there after the incident till its recovery. It is further seen that during the entire investigation PW 5 was never made to identify the said vehicle that it was the same which used by the accused persons in the commission of offence. It is further observed that in the disclosure statement of accused Jagdeep @ Shikhandi, there is no mention of use of any car or even about his presence alongwith accused Sandeep and Chetan. Rather he claims that accused Sandeep had called him on his mobile phone at 6:15am that he had killed Pawan. It appears that no FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 99 100 investigation was carried out to verify the said disclosure statement made by accused Jagdeep Ex. PW 36/Q as to where was he at the relevant time. At the same time, it is observed that it has not been proved on record by the prosecution that at the relevant time accused Jagdeep was possessing any mobile phone and accused Sandeep had made a call to him informing about the incident and whatever call detail record has been placed on record by the prosecution is not supported by any certificate U/s. 65B of the Evidence Act. Hence the same is not admissible in evidence.
98 The evidence led by the prosecution to the effect that accused Sandeep had stayed at Haridwar in Hotel Mayur after the commission of the offence and that he had led the police to the over bridge of Ganga river pointing out the place from where he had thrown the pistol used in the commission of offence and the live cartridges, by itself is not sufficient to prove the guilt of the accused. Mere presence of accused Sandeep at Haridwar does not in any manner lead to FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 100 101 the inference that he had killed Pawan and thereafter to destroy the evidence i e to dispose of the weapon of offence and the cartridges in his possession he had gone there. At the same time, it is observed that there is no witness who had seen accused Sandeep at the over bridge of Ganga at any point of time during his visit to Haridwar nor anybody saw him throwing the pistol and the cartridges in the Ganga. It is admitted case of the prosecution that no recovery of pistol/ cartridges allegedly thrown by him in the Ganga was effected. Merely by pointing out of a particular place at the over bridge of Ganga by accused Sandeep, it cannot be assumed that he had thrown the weapon of offence ie the pistol and cartridges from there. Moreover, if the accused had to dispose of the pistol and the cartridges there was no necessity for going to Haridwar and it could be done anywhere on his way to Haridwar. So even by proving that the accused had visited Haridwar in no manner leads to the inference that he had committed the alleged offence and had disposed of the weapon of offence in FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 101 102 Ganga River.
99 The prosecution has relied upon the circumstantial evidence in pursuance to the disclosure statement made by accused Sandeep and Chetan that accused Kapil Ranga who was resident of Gorakhpur had arranged for weapon of offence and had visited Delhi on 28.4.2009 and had delivered the weapon of offence ie pistol and 8 cartridges to accused Chetan @ Kana and Sandeep on 29.4.09 and after delivering the weapon and cartridges went back to Gorakhpur on 3.5.09 via Lucknow. To this effect the prosecution has proved on record the document Ex. PX 1 vide which the railway tickets were got reserved from Gorakhpur to Delhi, from Delhi to Lucknow and Lucknow to Gorakhpur. However, there is no evidence on record except the disclosure statement of accused Chetan that accused Kapil Ranga had visited Delhi and handed over the weapon of offence to him and Sandeep. Here it is observed that there is no witness examined by the prosecution who had seen accused of Kapil Ranga present at Delhi or FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 102 103 alongwith accused Chetan and Sandeep at any point of time so as to presume that they were in touch with each other and the weapon of offence was delivered by accused Kapil Ranga to them. At this stage, it is also observed that as per the disclosure statement Ex PW 36/A of accused Sandeep, there is no mention that accused Kapil Ranga had arrived at Delhi from Gorakhpur and had handed over the weapon of offence to them. To the contrary therein it is mentioned that there was one person at Gorakhpur whom he had met in a jail at Punjab who could arrange for a pistol and for this reason they would have to go to Gorakhpur, consequently on 5.5.09 they took the Swift car of Pardeep @ Banke and proceeded to Gorakhpur and they reached there on 6.5.09 where they met one person namely Durga whom Chetan knew from before he was the person who had assured him to arrange for the pistol. As per the said disclosure statement, Durga had arranged for a pistol and 8 bullets which he had handed over to accused Sandeep, whereas at that time accused Chetan was in hotel. As per this FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 103 104 disclosure statement, it is nowhere mentioned that accused Kapil Ranga ever visited Delhi and delivered the weapon of offence as well as cartridges to Chetan and Sandeep. Besides, it is further observed that the supplementary disclosure statement of accused Sandeep was recorded on 28.5.09 which is proved on record as Ex PW 36/F and as per the same, Durga was Kapil and as per the said disclosure statement Kapil Ranga had visited Delhi and had delivered the weapon of offence. However, as per the disclosure statement of accused Kapil Ranga, Chetan had withdrawn Rs. 40,000/ at Gorakhpur and out of the same he had given Rs. 17,000/ to Kapil Ranga at Gorakhpur whereas to the contrary as per the disclosure statement Ex PW 36/F of accused Sandeep Rs. 17000/ were given to accused Kapil Ranga at Delhi when he delivered the pistol and the cartridges. In view of such contradictory disclosure statements made by the accused persons they are not leading to discovery of any relevant fact, whereas prosecution is only relying upon such contradictory FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 104 105 disclosure statements regarding delivery of weapon of offence and cartridges by accused Kapil Ranga to accused Chetan Yadav and Sandeep at Delhi. The prosecution has though proved on record the presence of accused Sandeep and Chetan at Gorakhpur vide the bank record Ex. PW 3/A i e the statement of account No. 360010100068855 vide the testimony of PW 3 who deposed that the said account number belongs to Chetan and proved the statement of account as Ex PW 3/A for the period from 19.3.09 to 23.5.09 and as per the same cash amount of Rs. 15000/ and Rs. 25000/ was withdrawn from the aforesaid account on 8.5.09 at 14.24.12hours and 14.23.22 hours respectively from HDFC Bank Ashuran Chowk Gorakhpur through ATM card and the said evidence has not been rebutted by the accused Chetan in any manner. Vide the testimony of PW 15 Sh Deepak Srivastava is the Front Office Manager at Hotel Park Regency, Gorakhpur, it is proved on record that Ankit Ranga had booked one room in hotel Park Regency, Gorakhpur on 6.5.09 and the occupant had checked FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 105 106 out of the hotel on 7.5.09 and had signed in his presence at point X on the checked out bill Ex. PW 11/C. Similarly, PW 17 Ashok Kumar Sharma also proved the guest register card Ex. PW 11/B in this regard. The prosecution has proved on record the FSL report Ex.PX1 to the effect that the checked out bill Ex. PW 11/C is bearing the signature of accused Sandeep and this evidence has not been rebutted by the accused persons in any manner.
100 Even if the prosecution has proved on record that accused Sandeep and Chetan had gone to Gorakhpur on 6.5.09, this in no manner can be linked with the alleged commission of offence. There is no evidence on record that these two accused had met Kapil Ranga at Gorakhpur. Ankil Ranga who had made booking in the hotel Park Regency Gorakhpur for the accused persons has neither been cited nor examined by the prosecution to prove his association with the accused persons either personally or through accused Kapil Ranga. Moreover, there are two contradictory FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 106 107 disclosure statements of accused Sandeep with regard to procuring of the weapon of offence from Kapil Ranga. As per his first disclosure statement dated: 23.5.09 the weapon of offence was procured at Gorakhpur, whereas as per the other disclosure statement dated: 28.05.2009 accused Kapil Ranga had delivered the weapon of offence at Delhi. As such, except for the presence of accused Chetan and Sandeep at Gorakhpur, there is no cogent evidence on record that they had gone to Gorakhpur for procuring weapon of offence.
101 Though the prosecution has relied upon the call record of mobile phone Nos. 9212322501, 9212322502, 9211976618, 9212540400, 9451539740, 9811449967,9899671421 and 9254624492 to connect the accused persons with the alleged commission of offence but for want of certificate U/s. 65 B of Evidence Act, the said record is not admissible in evidence. 102 In view of the above discussion, the prosecution has failed to lead any cogent evidence to prove the charges against all the accused persons, hence giving benefit of doubt, FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 107 108 all the accused persons namely Kapil Ranga, Sandeep @ Mental, Chetan Yadav @ Kana and Jagdeep @ Shikhandi are acquitted of the charge U/s. 302 r/w Sec. 120B/34 IPC and accused Sandeep @ Mental is also acquitted of the charge U/s 201 IPC.
103 In view of the provisions of Section 437A Cr.PC, all the accused persons are directed to furnish a personal bond in the sum of Rs. 50,000/ each with one surety each in the like amount. All the accused persons seek time to furnish the surety bonds. As such, they are directed to furnish the surety bonds on 01.10.2011.
File be consigned to the Record Room after compliance of the provisions of Sec. 437A Cr. PC.
ANNOUNCED IN OPEN (RAVINDER KAUR)
COURT TODAY SPECIAL JUDGE (NDPS)
DATED: 30.09.2011 ASJ/DWARKA /ND
FIR No. 148/09 State Vs Kapil Ranga & Ors. Page No. 108