Delhi District Court
State vs . : 1). Prateek @ Bholu on 13 February, 2018
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT, ROHINI
COURTS: DELHI
Sessions Case No: 220/17
FIR No. : 598/16
U/s : 302/34 IPC
P.S. : Mahendra Park
State Vs. : 1). Prateek @ Bholu
S/o Sh. Talwar Singh
R/o Khasra No.447, Gali No.3,
Guru Nanak Nagar, Bhalswa
Dairy, Village Samarpur
Mainpuri, UP
2) Prashant @ Chhotu
S/o Sh. Talwar Singh
R/o Khasra No.447, Gali No.3,
Guru Nanak Nagar, Bhalswa
Dairy, Village Samarpur
Mainpuri, U.P.
3) Kamal @ Jaipal
S/o Sh. Ram Bhool
R/o A-453, Jhuggi, K-Block,
Jahangir Puri, Delhi.
4) Saddak Hussain
S/o Sh. Sakir Ali
R/o A-168/169, Jhuggi, K-Block,
Jahangir Puri Delhi.
5) Sandeep @ Bachha
S/o Late Sh. Sita Ram
R/o A-162, Jhuggi K-Block,
Jahangir Puri, Delhi.
Offence complained of : 302/411/120B/34 IPC
Plea of accused : Pleaded not guilty
Final Order : Saddaq Convicted u/s 302 IPC
Other accused persons acquitted
State Vs. Prateek @ Bholu SC No.220/17 :: 1 ::
Date of committal : 22.04.2017
Date of Judgment : 13.02.2018
JUDGMENT
1. On 25.10.2016 at about 7:30 pm Ajeet Kumar was standing along with his cousin Jeet Kumar (son of mausi) were standing outside their house in Jhuggies of K-Block Jahangir Puri. Jeet Kumar said to Ajeet that he wants to eat Chicken. On this Ajeet said that let us go to Saleem Chicken at A-block market. Thereafter, they both on the motorcycle No. DL 8S BJ5680 Jixcer Blue Colour reached in the street near Saleem Chicken wala. Jeet stopped the motorcycle in order to answer the call of nature. They both got down and started urinating near the wall. In the meanwhile six boys on two motorcycle came there whom Ajeet kumar was knowing and against them case FIR No:382/16 was registered wherein Jeet was the complainant. Out of those six boys Sandeep @ Baccha, Saddaq, Jaipal and Ajay are resident of Jhuggies of K-block. Chhotu and Bholu are also resident of Jahangir puri but he was not knowing their address. Saddaq caught hold of face of Jeet and said, "Tu hamare khilaf gawahi dega". Thereafter, they all started beating Jeet. Sandeep @ Baccha took out the pistol and fired on Jeet State Vs. Prateek @ Bholu SC No.220/17 :: 2 ::
which hit on his arm. Jeet ran towards country liquor shop. All the six accused followed him. Ajeet also followed them. Near the country liquor shop the accused persons caught hold of Jeet and again gave him beatings. All of the accused said, "Kar do saale ka kaam tamaam, na gawah hoga na gawahi." On this Sandeep @ Baccha fired on the chest of his brother Jeet. After sustaining injury Jeet fell down on the ground. Ajeet fled away from there in order to save himself. He told about the incident to his aunt (mausi) Bimla and his parents. They came back on the spot but Jeet was not there. They went to BJRM Hospital. Jeet was found in the hospital but doctors have already declared him dead. They took Jeet to Fortis Hospital. In the Fortis Hospital also doctor examined Jeet and declared him dead. Accused persons were apprehend. Accused Saddaq got recovered the fire arm used in the commission of offence.
2. After completion of investigation the charge sheet against accused Prateek, Prashant, Kamal and Saddaq was filed. Ld. MM after complying with the provisions of section 207 Cr.PC committed the case to the Sessions court as offence u/s 302 IPC is exclusively triable by the Sessions Court. All the accused persons were charged for the offence punishable u/s 302 r/w 34 IPC to which they pleaded not guilty and claimed trial. Thereafter, the case was fixed for State Vs. Prateek @ Bholu SC No.220/17 :: 3 ::
prosecution evidence.
3. While the prosecution evidence was going on accused Sandeep @ Bachha who was earlier absconding was also apprehended. The supplementary charge sheet against Sandeep @ Bachha was filed. ld. MM committed the charge sheet of Sandeep @ Baccha to the Sessions Court as offence u/s 302 IPC is exclusively triable by the Sessions Court. Accused Sandeep @ Baccha was also charged for the offence u/s 302 r/w 34 IPC to which he pleaded not guilty and claimed trial. The case was fixed for prosecution evidence. The witnesses already examined were re-called.
4. Dr. Paras Mishra from BJRM Hospital was examined as PW-1. He deposed that on 25.12.2016 at 8:50 pm one unknown person, 18 years male, was brought by Surya with alleged history of found on road side. The patient was unconscious. He examined the patient and declared him brought dead. Lot of attendants abducted the body forcible without thumb print of patient. He prepared the MLC Ex.PW1/A.
5. During cross-examination for accused persons he stated that he was not aware if any relative of deceased was present in the hospital or not. He stated that lot of attendants were present in the hospital therefore, he cannot point out as to who was relative.
State Vs. Prateek @ Bholu SC No.220/17 :: 4 ::
6. Dr. Ajeet Kumar from Fortis Hospital was examined as PW-2. He deposed that on 25.12.2016 at 9:15 pm one Jeet Kumar S/o Ramesh 18 years male was brought by Ramesh to the hospital with alleged history of fire arm injury. The patient was LAMA from BJRM Hospital. The patient was declared dead at BJRM according to the relatives. On examination of the patient he found that he was unconscious not responding to the painful stimulli. ECG shows straight line. He declared the patient brought dead at 9:26 pm on 25.12.2016. He proved the MLC as Ex.PW2/A. The testimony of the witness has gone unchallenged and uncontroverted.
7. ASI Bhagwan Singh was examined as PW-3. On 26.12.2016 he was working as duty officer. On that day at 00:15 hours HC Kamlesh brought a rukka sent by Inspector Dhananjay Gupta. He got fed the contents of the rukka in the computer through computer operator Deepak. The copy of FIR is proved as Ex.PW3/A. He made endorsement on the rukka the same is proved as Ex.PW3/B. The certificate u /s 65B Evidence Act is Ex.PW3/C. He handed over the copy of FIR and original rukka to HC Kamlesh for presenting the same to Inspector Dhananjay Gupta for further investigation.
8. He also handed over the envelopes containing the copies of FIR to Ct. Parvinder to deliver the same to senior State Vs. Prateek @ Bholu SC No.220/17 :: 5 ::
police officials and to area MM.
9. During cross-examination he admitted that there is an over writing on the endorsement on the rukka made by him.
10. Dr. Anshul Saxena was examined as PW-4. On 26.12.2016 he conducted post mortem on the body of Jeet Kumar. On external examination he found four injuries detailed in the post mortem report. He opined that the deceased died due to hemorrhage secondary to gun shot injuries to lungs, heart and lever. Injury No.2 and 4 are sufficient to cause death in ordinary course of nature. Time since death between 12 to 24 hours at the time of post mortem examination. Two bullets, clothes, blood in gauze piece, five x-ray films and viscera were preserved, sealed with the seal and handed over to the IO. He proved the post mortem report as Ex.PW4/A. The testimony of the witness has gone unchallenged and uncontroverted.
11. Sh. Manoj Mehto was examined as PW-5. He identified the dead body of Jeet Kumar in the mortuary of the BJRM Hospital and received the same vide memo Ex.PW5/A. The testimony of this witness has gone unchallenged and uncontroverted.
12. Sh. Mahesh Singh was examined as PW-6. He also identified the dead body and received the same vide memo Ex.PW5/A. State Vs. Prateek @ Bholu SC No.220/17 :: 6 ::
13. Sh. Ajeet Kumar was examined as PW-7. He deposed that on 25.12.2016 at about 7:30 pm he along with his cousin Jeet Kumar (deceased) was standing out side his house.
Jeet told him, Chicken Khane ka mann kar reha hai." He suggested to Jeet that they should go to Salim Chicken situated at A-Block market. They ride on the blue colour Jixer motorcycle having registration No. DL 8S BJ 5680 of Jeet Kumar. Jeet Kumar was driving the motorcycle. Jeet stopped his motorcycle before they reached Salim chicken as Jeet wanted to answer call of nature. Jeet Kumar went near the wall and this witness also followed him. In the meanwhile two motorcycle on which six boys were riding reached there. Accused Saddaq got down from one of the motorcycle and caught hold neck of Jeet Kumar from his back by hand. Saddaq said, "tu hamare khilaf gawahi dega." At the same time five other associates of Saddaq came upto Jeet Kumar and they started beating Jeet Kumar with kicks and fist blows. Saddaq also gave beatings to Jeet Kumar with kicks and fist blows. Sandeeep @ Baccha pulled out a pistol from his possession and fired upon Jeet Kumar, resulting fire arm injury to Jeet Kumar. The fired shot hit on right arm and penetrated in the chest of Jeet Kumar. Jeet ran towards the side of country made liquor shop. All the six accused persons who came on the motorcycle chased Jeet Kumar. The State Vs. Prateek @ Bholu SC No.220/17 :: 7 ::
accused persons over powered Jeet near country made liquor shop and again started beating Jeet Kumar. The accused persons said that "Is saale ko jaan se maar detain hain, no hoga gawaha no hogi gawahi." Sandeep @ Baccha again pulled out his pistol and fired upon the chest of Jeet Kumar who was lying on the ground. This witness also ran towards the side of B-Block Jahangir Puri Jhuggi in order to save his life and reached his house. He narrated the entire incident to his aunt Smt. Bimla and also to his parents. He along with Smt. Bimla, his parents and others reached near the scene of crime i.e. near the shop of country made liquor. Jeet was not found there. They all reached BJRM hospital. Jeet was lying there but no doctor was attending him. They took Jeet Kumar to Fortis Hospital for treatment where he was declared dead. He proved his statement as Ex.PW6/A.
14. He knew all six accused persons. Accused Prateek was driving red colour motorcycle No: 0967. Prashant @ Chhotu and Ajay were the pillion riders on his motorcycle. He identified accused Prateek and Prashant present in the court and Ajay is not present. The second motorcycle was driven by Sandeep @ Bachha. Accused Saddaq and Jai Pal @ Kamal were the pillion riders. He identified accused Saddaq as well as Jai Pal. At that time accused Sandeep @ Bachha was not arrested and therefore could not be identified but State Vs. Prateek @ Bholu SC No.220/17 :: 8 ::
lateron this witness was called again when Sandeep @ Bachha was arrested and he identified him also.
15. On the same day when he was present at his house IO called him at the police station. Thereafter, he along with police went to machhi market where he identified Prashant @ Chhotu and Prateek @ Bholu who were riding on red colour motorcycle No.0967. They both were apprehended.
They were arrested vide memos Ex.PW7/B and Ex.PW7/C. Their personal search were conducted vide memos Ex.PW7/D and Ex.PW7/E. The motorcycle was seized vide memo Ex.PW7/F. Both the accused persons made disclosure statement Ex.PW7/G and Ex.PW7/H.
16. On 28.12.2016 he along with IO and other persons went in search of other co-accused persons. Accused Jai Pal @ Kamal was caught by the police under the flyover of Wazirabad. He was arrested vide arrest memo Ex.PW7/I. His personal search was conducted vide memo Ex.PW7/J. Accused made the disclosure statement Ex.PW7/K. He also identified the motorcycle having registration No. DL 8S AT 0967 as Ex.PW7/Article-1 which was seized from Accused Prateek and Prashant.
17. During cross-examination by the Ld. Counsel for accused persons he stated that there was no criminal case registered against his cousin Jeet. It took them 10 minutes State Vs. Prateek @ Bholu SC No.220/17 :: 9 ::
on bike to reach the place of incident from the residence. He was knowing all the accused persons prior to the incident. Accused Prashant and Prateek are resident of Bhalswa Dairy. Pawan is his real brother, Jogender is his friend and Chandan is his cousin brother. Jogender and Chandan are residing in his neighbourhood. On that day before the incident he had not met Chandan and Jogender. He was not keeping any mobile phone at that time. His father was having the mobile phone. Jogender, Pawan and Chandan were also having mobile phones. Jeet Kumar was also not keeping mobile phone. He does not know to whom mobile phone No.9582180370 belongs. During investigation police asked him whether he is maintaining a telephone and he had replied that he had never maintained a mobile phone.
18. The motorcycle was stopped about 15-20 steps from the shop of Salim Chicken. Shop of Salim Chicken is at a distance of about 20 steps from HDFC Bank situated near the wine shop. He and Jeet were without helmet. The nearest shop, from where they stopped the motorcycle, was about 20 to 25 steps. The wall where Jeet and this witness has gone to urinate was about 10 to 15 steps from the motorcycle. About 2 to 4 persons were consuming liquor near the place where they stopped the motorcycle. He does not know if any khomchawala was also present near the place of State Vs. Prateek @ Bholu SC No.220/17 :: 10 ::
incident. He does not know from which direction accused persons came as at that time their faces were towards the wall. He turned only after his cousin was caught hold by the accused persons. The distance between him and his cousin was only one step. None of the accused was wearing helmet. None of the accused said anything to him. He started witnessing the incident while standing there when the accused persons caught hold of neck of his brother. He did not intervene when the accused persons gave beatings to his cousin for 2-3 minutes. Only one bullet was fired on the place where they were urinating. His cousin did not fall on ground after sustaining first bullet injury. His cousin started running. He did not raise any alarm while accused persons gave beatings to his cousin. Nobody came forwards as the accused persons saying "agar koi beech mein aaya to maar denge" but this fact was not found mentioned in his statement given to the police. He did not notice if the blood had fallen on the place where the first bullet was fired on Jeet Kumar. On the firing of first bullet the persons standing there fled away.
19. The accused persons again caught hold of his brother at a distance of about 20 steps in front of country liquor shop situated in the back street of HDFC Bank. By the side of HDFC Bank there is a foreign Liquor shop. The motorcycle State Vs. Prateek @ Bholu SC No.220/17 :: 11 ::
on which he and Jeet reached there was not moved by anybody. He also followed the accused and reached there where they caught hold of Jeet again. He did not raise alarm while following the accused persons. He did not intervene when accused persons caught hold of Jeet in front of country liquor shop. He did not ask the shopkeepers to save his brother. It took hardly 30 seconds to 1 minute in front of liquor shop when his cousin was shot. His brother did not run after being hit in the chest with the bullet. He did not notice where the accused persons parked their motorcycles.
20. After the accused persons fired on his cousin second time he fled away. He did not notice in which direction accused persons went there after. From the scene of crime he reached his house. If a person is standing in front of HDFC Bank he cannot see the spot where he and his cousin were urinating and also the place where accused persons fired second time. If a person standing in front of country liquor shop then the place where they were urinating is visible but he will not be able to find as what is to being done. There were 8 to 10 TSR parked on the road between the country liquor shop and the place where they were urinating. He did not notice how many public persons were present when accused persons fired second time.
21. From the spot he went running to his house and came State Vs. Prateek @ Bholu SC No.220/17 :: 12 ::
back on the spot along with his mother and mausi. He did not check his cousin before running away from the spot if he was dead or alive as the accused persons chased him. He along with his mother and mausi came back on the spot within 10 to 15 minutes. No public person was present on the spot. Motorcycle was there on the spot and it was lateron removed by Amar elder brother of Jeet. The Ignition key of the motorcycle was with Jeet. He does not know from where Amar arranged the ignition key of motorcycle. When they came back on the spot they looked for Jeet on the spot for about 10-15 minutes and then they went to the hospital. He did not notice if there was any blood. He did not find any trail of blood leading from the place from where they were urinating to the place where Jeet was shot second time. No police person met them on the spot. He had also not seen the father of deceased on the spot. He himself did not inform the father of Jeet about the incident.
22. He cannot tell at what time he reached hospital. It took them 10 to 15 minutes to reach BJRM hospital from the spot. Many neighbours including family members of Jeet were already in the hospital including father of Jeet. They immediately lifted Jeet and removed him to Fortis Hospital. He cannot tell the time of their reaching Fortis hospital. Doctors immediately took Jeet to emergency. He did not tell State Vs. Prateek @ Bholu SC No.220/17 :: 13 ::
the name of assailants to the doctor. They remained in the Fortis Hospital for 2-3 hours. ACP IO and police reached Fortis Hospital. He told the entire facts to the IO in the Fortis Hospital and IO also noted down some facts on the paper. Thereafter he was taken to police station where his statement was recorded. He remained in the police station upto 4 or 5 am. Before taking to the police station he was taken to the scene of crime where they remained for about 15 to 20 minutes and then went to PS. He does not know if any blood was found on the scene of crime.
23. He did not notice if Jogender, Pawan and Chandan reached BJRM hospital or Fortis Hospital. He did not notice if Jogender, Pawan and Chandan also reached the scene of crime. He did not tell Pawan about incident as he did not meet him. When he reached home and wanted to tell Pawan about the incident, Pawan told that he is already knowing and also seen accused persons fleeing on motorcycle. He did not inquire from Pawan as to how he came to know about the incident. Jogender and Chandan were also knowing about the incident even before he told them. When he returned from the police station in the morning at that time Jogender, Pawan and Chandan were present in the street near the house of Jeet. He had shown the scene of crime to the police. At the place where they were urninating and first State Vs. Prateek @ Bholu SC No.220/17 :: 14 ::
bullet was fired and also the second point where accused persons fired on his cousin second time. He had also pointed out the place where they had parked the motorcycle. He did not tell the police in which directions accused persons fled away. His statement was recorded twice, once on the day of incident and thereafter when accused Prateek and Prashant were arrested.
24. He does not know the distance between fish market and Shah Alam Bandh. He reached there in the gypsy of police. He does not know how much time was taken in reaching Shah Alam Bandh from Fish Market. Both the accused were apprehended at about 8 pm. IO did not record the statement of any public person in his presence. Nothing was recovered in the personal search of accused persons. He does not know if RC of bike was recovered. He does not know if any document of bike was recovered. All the police officials were in uniform but does not remember if driver was also in uniform. He and secret informer pointed out towards accused persons from a distance of 15 to 20 ft. He recognized accused persons from their bike and their hairstyle. The police apprehended the accused persons from their backside.
25. On 28.12.2016 police came to the house of Jeet at 8:00 am. The place from where Jai Pal was arrested is at a State Vs. Prateek @ Bholu SC No.220/17 :: 15 ::
distance of about half an hour drive in gypsy from their house. Same secret informer was with the police who got arrested accused Prateek and Prashant. The gypsy was stopped near the under pass. Accused Jai Pal was coming on foot. He was noticed from a distance of about 20 ft. All the police officials were in uniform. Accused did not try to run away on seeing the police. Nothing was recovered in his personal search. In his presence no information of arrest was given to the family members of Jai Pal.
26. He denied the suggestion that he had not witnessed the incident or that FIR was lodged ante dated and ante timed. He denied the suggestion that mobile phone No. 9582180370 belongs to him or he is deliberately denying this fact. He denied the suggestion that Chandan, Jogender and Pawan were also tutored by him and his family members or that he is making false statement.
27. During cross-examination for accused Sandeep @ Bachha he stated that after 29.05.2017 he was not called for the purpose of investigation. He denied the suggestion that he was not with Jeet or that they had not gone for eating non veg near the shop of country made liquor. He denied the suggestion that he was not present at the scene of crime. Or had not seen the accused persons running away on two motorcycles or had also not noticed down the numbers. He State Vs. Prateek @ Bholu SC No.220/17 :: 16 ::
denied the suggestion that he was having animosity with accused Sandeep @ Bachha and others. He denied the suggestion that after considerable delay and after discussion with family member he was planted as false witness.
28. Sh. Suresh Mehto was examined as PW-8. He identified the dead body of the deceased vide memo Ex.PW8/A and received the body vide memo Ex.PW5/A.
29. Ramesh was examined as PW-9. He identified the dead body of his son vide memo Ex.PW9/A and received the same vide memo Ex.PW5/A.
30. During cross-examination he stated that Ajeet informed him regarding death of his son when he came to his Jhuggie at about 8:30 pm. After receiving information he went to BJRM hospital from his house. Ajeet did not accompany him to the hospital. He does not remember if Ajeet reached there in the hospital or if Ajeet met him in the Fortis Hospital. He denied the suggestion that Ajeet did not inform him about the death of his son or that police informed him that his son is admitted in the hospital or that after receiving information from police he along with his family members reached BJRM hospital.
31. Jogender was examined as PW-10. He deposed that on 25.12.2016 at about 7:15 pm he along with Pawan and Chandan left their houses for going to A-block Market State Vs. Prateek @ Bholu SC No.220/17 :: 17 ::
Jahangir Puri for purchasing liquor. At about 7:30 or 7:40 pm they reached near ATM, about 15 -20 steps before the country made liquor. He heard the sound of two shots. Public persons started running. Two motorcycles, one of red colour other of grey coloyur having blue stripes, went towards the road. On red colour motorcycle Bholu, Chhotu and Ajay were sitting having registration No. 0967. On the other motorcycle Sandeep, Saddaq and Jai Pal were sitting having registration No.7849. Thereafter, they also ran away from the spot. They reached their houses. On 27.12.2016 the police officials visited their houses and inquired from them. Accused Saddaq and Sandeep were already absconder of case registered in which Jeet Kumar was a witness. On 26.12.2016 Ajeet who is his friend informed him that Jeet Kumar had been shot dead. He identified all the accused persons. He identified motorcycle number DL 14 SF 7849 as Ex.PW10.Article-1. The motorcycle No. DL 8S AT 0967 as PW7/Article-1. The photographs of motorcycle No.DL 14SF 7849 are taken on record same are Ex.P1 to P3.
32. During cross-examination he stated that he is running the Kiryana shop. The timing of his shop are from 6:00 am to 11:00 pm. Deceased Jeet was his friend. He knew Pawan being brother of Chandan. Pawan and Chandan are presently having motorcycles but at that time they were not State Vs. Prateek @ Bholu SC No.220/17 :: 18 ::
having motorcycle. He is also having motorcycle. He noted down the numbers of both the motorcycles on his hand after reaching home on 25.12.2016. He does not know if Pawan and Chandan also noted down the numbers of motorcycles. There was a time gap of 2 to 3 minutes in between two shots. People started running after first shot itself. About 50 to 60 persons started running after first shot. They all three hide themselves at one place. They remained there at the spot for about 5 to 6 minutes after the second shot. He did not see at what place the first fire was shot and at what place the second fire was shot. He had also not seen as to who had fired on whom. He presumed on seeing those persons going on two motorcycle at fast speed that, only they committed the offence. After 10 to 14 seconds of the second fire he saw the accused persons fleeing on two motorcycles.
33. He was not maintaining any mobile phone at that time, but presently he is having mobile phone no.9821602421. This number was earlier used by his sister. Presently, Chandan and Pawan are also having mobile phones. He was not having mobile phone and therefore he did not make any call at 100 number. They also did not go to police station or to nearest police booth to inform about the incident.
34. They all went towards the street of Jeet for reaching their house. While they were going in the street they saw the State Vs. Prateek @ Bholu SC No.220/17 :: 19 ::
family members running towards the spot of firing along with some neighbours. He had seen the mother of Jeet running towards the scene of crime but did not see the father of Jeet. Ajeet along with his sister, father and mother was also running towards the scene of crime. Seeing them they also reached the scene of crime. They reached the spot within 10 to 15 minutes i.e. at about 8:10 pm. The wine shop was lying open when they reached there.
35. He had not seen where Jeet had fallen and therefore he had not tried to find out the blood. When they reached back Jeet was not found there. He cannot tell at what time Ajeet told them that Jeet had sustained fire arm injury. When they were running towards the scene of crime, Ajeet was saying Jeet ko goli lag gayee. After hearing this they followed them. He did not ask Ajeet as to who fired on Jeet. He had told Ajeet that he had seen two motorcycles going at fast speed immediately after firing. He told this fact to Ajeet when body of Jeet was taken to Fortis Hospital from BJRM Hospital. No police official met them at the spot. He can't tell if father of Jeet reached BJRM Hospital directly or firstly went to the spot.
36. Police officials reached Fortis Hospital. He did not disclose the fact of seeing the motorcycles to the police who met them in the hospital. Ajeet had also not stated anything State Vs. Prateek @ Bholu SC No.220/17 :: 20 ::
to those police officials, during inquires made by the police officials to him at Fortis Hospital. Father of Jeet made statement to the police in his presence. He came back home at about 1 or 2 am. Pawan and Chandan were sitting in front of the house of Jeet at that time. He never told the number of motorcycle of assailants to Chandan and Pawan and had never shown them the writing on his hand. They did not visit their house for next one or two days. They just used to go to their house to check up and then return to the house of deceased. They did not visit the police station for getting their statements recorded.
37. On 27.12.2016 at noon hour his statement and statement of Pawan and Chandan were recorded in front of house of Jeet. First of all his statement was recorded and thereafter the statement of Chandan and Pawan were recorded. Both the motorcycles fled in opposite direction to each other in interval of two seconds. He noticed those motorcycles from 10 to 12 feet coming from his left side. Lot of traffic was moving on the road. He stated that initially he wrote down the number on his hand but lateron he wrote it down on a paper in the night of incident. Later on he stated that he did not note down the number on his hand but he noted down the same on a paper later on in the night of incident. He had not shown that paper to Chandan and State Vs. Prateek @ Bholu SC No.220/17 :: 21 ::
Pawan and also not to the police officials.
38. Chandan was examined as PW-11. He also corroborated the testimony of PW-10. He stated that on red colour motorcycle, Chhotu, Bholu and Ajay were riding having registration No.0967 and on the grey colour motorcycle Saddaq, Sandeep and Jai Pal were riding having registration No.7849. Both the motorcycles went in different directions. Thereafter, they ran away from the scene of crime towards their houses. On the way they met the public persons of the locality and the neighbours who informed that Jeet Kumar has been shot. He identified all the accused persons and both the motorcycles.
39. During cross-examination he stated that he is working as a driver. His duty hours are from 11 pm to 9 am. He is having mobile phone No. 8588974327 for the last 2-3 years. At the time of incident he was having the same mobile number. He knows Pawan and Jogender being his friends. They are not related to him. Jeet and Ajeet are not related to him. Pawan was also having mobile number but Jogender was not having the mobile phone at that time. Sometime he used the mobile phone of his parents. From his mobile number he gave the mobile phone number of Pawan as 8377813299. Pawan is using this phone number only for the last one month. The mobile phone which Pawan was using at State Vs. Prateek @ Bholu SC No.220/17 :: 22 ::
the relevant time was stolen and thereafter he has taken this new number. It hardly takes 2 to 3 minutes from his house to reach the house of Jeet Kumar. It takes about 10 minutes on foot from their house to reach the place of occurrence. They were on foot as there was no petrol in his motorcycle. Jogender and Pawan were also not having any motorcycle during that period. Jeet and Ajeet were also not having any motorcycle. They reached the place of occurrence at about 7:00 or 7:30 pm. For reaching the liquor vend, they went in the direction of Metro station. There is an ATM of HDFC Bank on the corner of the street where liquor vend is situated. The ATM is before the liquor vend. They were at the corner of the street where liquor vend is situated, in front of the ATM when they heard the sound of fire. There was no TSR at the corner, however, some cycle rickshaw's were there. After hearing the sound of first fire they did not move and remained there only. They remained there for about 2 to 4 minutes after hearing the sound of first fire. 40 to 50 persons gathered there after the sound of first fire. He did not try to find out from where the sound of fire had come. The sound of second fire also came from the same direction.
After the second fire they remained there for about 5 to 7 minutes. Many persons gathered there after second shot. They did not try to find out as to what had happened. After State Vs. Prateek @ Bholu SC No.220/17 :: 23 ::
the incident he did not dare to purchase liquor as after the firing incident there was commotion (Bhagdad). People were saying murder ho gaya. The sound had come from distance of about 5 to 7 steps from where they were standing but that place was not visible as they were on the corner. Neither he nor Chandan made a call at 100 number about the incident. IO did not ask his mobile number and he himself had not given his mobile number to the IO. He does not know if IO asked Jogender and Pawan about their phone numbers. They were standing at a distance of about 10 ft from the corner of the street. Both the motorcycles came from the street. One went towards metro and other went towards BJRM Hospital. There is no criminal case pending against him. He also appeared as witness in the murder case of Vijay. Saddaq Hussain is one of the accused in that case. There was a time gap of about 1 minute in the movement of two motorcycles. First in time red motorcycle having registration No. 0967 moved and then the second motorcycle. The red motorcycle went towards metro station and the second motorcycle went towards BJRM Hospital. Chhotu, Bholu and Ajay went towards BJRM. Sandeep, Saddaq and Jai went towards Metro station. He had seen the faces of all the accused persons while going on motorcycles and noted down the numbers from the rear number plate. State Vs. Prateek @ Bholu SC No.220/17 :: 24 ::
The number was in two rows on both the motorcycles. Jogender and Pawan were also with him when he wrote down the number after taking pen from some passersby. He does not know if Jogender and Pawan had also written the number of motorcycles. He noted down the number as it came to his mind that they might be running after committing some wrong and also because the motorcycles were moving at a fast speed of 15 to 20 kmph.
40. While they were going towards the jhuggies people were running from their jhuggies towards scene of crime saying Jeet ko goli lag gaye and from there they came to know that offence was committed with Jeet. He cannot tell if Ajeet and her mother were among those persons however, parents of Jeet were among those persons and other family members. They met them at a distance of about 100 meters from the scene of crime. He inquired from the persons who were running as to what had happened and they told that Jeet ko goli lag gaye. He did not accompany those persons and went towards his jhuggie. He does not know where Jogender and Pawan went thereafter, After some time he again came in the street and saw Ajeet going towards his house at about 9 to 10 pm. He had not talk with Ajeet at that time. Thereafter, he went to sleep. Next day he saw Pawan and Jogender in the street at about 7 or 8 am. He did not talk State Vs. Prateek @ Bholu SC No.220/17 :: 25 ::
with Pawan and Jogender about the incident. After two days of the incident Ajeet told him about the incident and at that time he also told him that he had seen the accused persons fleeing on motorcycles. Ajeet told him about the incident in BJRM Hospital. His statement was recorded on 27.12.2016 at about noon time in the street of his house. Police was making inquiries in the street and he went to them and told them that the had also witnessed them running on the motorcycles. Pawan and Jogender were already present in the street. He had not seen Ajeet in the street at that time. He told the registration number of both the motorcycle from the paper slip on which he had noted down the number. Pawan and Jogender had already stated the registration number of both the motorcycles to the police. Before he reached there police had already recorded the statements of Pawan and Jogender. He had also shown the paper slip on which he had noted down the numbers after taking out from the pocket. He denied the suggestion that he had not witnessed the incident.
41. Jogender was re-called after the arrest of Sandeep. He again deposed on the same lines.
42. During cross-examination nothing new came out on record. He denied the suggestion that he is having friendship with other witnesses and that is why he is deposing falsely at the instance of family members of deceased. State Vs. Prateek @ Bholu SC No.220/17 :: 26 ::
43. Pawan was examined as PW-12. He also deposed on the lines of PW-10 and PW-11 and fully corroborated them. He also said that he heard accused persons talking with each other "Chalo-chalo, Bhago-Bhago". The accused persons were in fear as appeared from their faces and it seems that they have done some wrong thing. They also ran away towards their houses. On the way his Mausi Smt. Bimla, his mother and his brother Ajeet and other met them and they informed that Jeet Kumar has been shot. They also joined their relatives and reached near Country made liquor shop. He saw Jeet Kumar lying in injured condition having two fire shot injuries and was bleeding. They removed Jeet Kumar to BJRM hospital in battery rickshaw. Doctors of BJRM hospital examined Jeet and declared him dead. Thereafter, Jeet was removed to Fortis Hospital. The doctors there examined him and declared him dead. Jeet Kumar was again removed to BJRM hospital mortuary.
44. On 29.12.2016 he went to PS: Mahendra Park and met IO. There were some police persons and one person in plain clothes. He accompanied them in Gypsy. They reached near Haider pur nehar and two persons in civil clothes met the IO. At about 8:30 pm they reached near the jhuggies of Haider Pur. After some time one person came on the motorcycle and parked his motorcycle in the bushes and State Vs. Prateek @ Bholu SC No.220/17 :: 27 ::
started waiting for somebody. He was apprehended when that person was brought in the light he identified him as accused Saddaq. Accused was arrested vide memo Ex.PW12/A. His personal search was conducted vide memo Ex.PW12/B. Motorcycle of Saddaq was also seized. Witness has identified the motorcycle of Saddaq as Ex.PW10/ Article- 1 and the other motorcycle as Ex.PW7/Article-1. The photographs of the motorcycle DL 14SF 7849 are also taken on record, same are Ex.PW10/P1 to P3. He also identified the accused persons. The witness was recalled after the arrest of Sandeep and he also identified him and deposed on the same lines.
45. During cross-examination he stated that his statement was recorded first time on 27.12.2016 at his house at about 7:30 or 8:00 pm. Statements of Chandan and Jogender were not recorded in his presence. His second statement was recorded on 29.12.2016. He was confronted with his statement where it was not found mentioned that one motorcycle was of grey colour having blue stripes and other motorcycle was of red colour of make Yamaha. He was also confronted with Ex.PW12/DA where it was not found mentioned that the accused persons were talking with each other "Chalo-chalo bhago -bhago" or that they were in fear as appeared from their faces or that it seems that they had State Vs. Prateek @ Bholu SC No.220/17 :: 28 ::
done something wrong. He was also confronted with his statement where it was not found mentioned that they joined the relatives and the others and reached the country made liquor shop and saw Jeet Kumar lying in injured condition having two fire shot wound and bleeding. He was also confronted with his statement where it was not found mentioned that they removed injured Jeet Kumar to BJRM hospital in battery rickshaw. Chandan is his cousin brother. Jogender is his friend. Jeet Kumar was his cousin, son of Mausi and Ajeet is his real brother and is younger to him. On that day he left his house at around 7 pm. His brother Ajeet was not at home at that time. On that day he had not met his brother Ajeet from morning till 7 pm. He was not having any mobile phone at that time. Ajeet was using the mobile phone. He cannot tell if Ajeet was using mobile phone number 9582180370. After leaving his house at 7 pm he met Chandan and Jogender and thereafter, they all three went to wine shop. Neither he nor his brother Ajeet was having any motorcycle. Jogender was also not having motorcycle. Chandan was having motorcycle but they went to wine shop on foot. Chandan was using the mobile phone however, Jogender was not having any mobile phone. They reached in front of ATM of HDFC Bank at around 7:30 pm situated near wine shop. There is ATM of SBI also just adjacent to the ATM State Vs. Prateek @ Bholu SC No.220/17 :: 29 ::
of HDFC. 15 to 20 public persons were present near the ATM of HDFC Bank. They heard the noise of bullet being fired. They did not enter the gali in which the firing took place. The wine shop is not visible to a person standing in front of HDFC Branch. The sound of fire came from the backside of wine shop. There is wine shop situated by the side of HDFC Bank Branch on the main road. He had not witnessed the firing taking place in the street and have also not entered the street. There was time gap of two or two and half minutes in the two shots. After the first fire 10 to15 persons started running. After the first fire no vehicle came out of that street. They remained in front of the wine shop for about 5 to 10 seconds after the second fire and ran towards their houses. He noticed Ajeet coming towards the scene of crime at a distance of about 5 to 7 minutes walk on foot from the wine shop. He did not make any inquiry from Ajeet as to where he is going. Ajeet was accompanying his family members and the family members of this witness as well as other persons. He inquired from one of them as to where they are going and they told that "Jeet ko goli maar di hai". He had not written down the registration number of the motorcycles but memorize the same. In his presence Jogender and Chandan did not write down the numbers on the paper or hand after taking pen from somebody. He accompanied his family State Vs. Prateek @ Bholu SC No.220/17 :: 30 :: members and Ajeet to the place of occurrence. He cannot tell if Chandan and Jogender also accompanied them. He came back to the spot after about 10 to 15 minutes. He had not made any call to Jogender and Chandan as to inquire where they were at that time. He did not tell Ajeet that he had seen accused persons running away on two motorcycles or that he had noted down the numbers. It is not in his knowledge as to who shifted Jeet from the spot to BJRM hospital. Ajeet remained with him at the place where injured was lying i.e. in front of the wine shop in the street. Ajeet and two three more persons apart from the body were there in the battery operated rickshaw. He followed the battery operated rickshaw on foot. He cannot tell who got admitted Jeet in BJRM Hospital. Police met him in the hospital but he did not tell the police officials that he heard the sound of firing and had also seen the accused persons fleeing on motorcycle. He had also not told this fact to Ajeet Kumar. Ajeet also did not disclose anything to him in the hospital. Police visited the street on 26.12.2016 in the morning time but on that day he did not disclose to the police about the facts which were in his knowledge. He had also not told these facts to his brother in the morning on 26.12.2016. When he was narrating these facts to the police on 27.12.2016 his brother Ajeet was also there and only then he came to know about the facts which State Vs. Prateek @ Bholu SC No.220/17 :: 31 :: were in his knowledge.
46. His mobile phone was stolen/misplaced about 10-15 days prior to that occurrence. He had not lodged any complaint to police in this regard. He had not noticed any blood lying on the spot. He found that his brother was not wearing any shirt and jacket and he was wearing only pants. He noticed blood on the body of Jeet. He did not noticed any blood stains on the pants. He had not noticed any shirt or jacket near the body. He had seen Jeet in the day also and at that time he was wearing shirt, Jacket and pants. He also helped Ajeet in removing Jeet Kumar in battery rickshaw. He does not remember if their clothes were also stained with blood. He did not tell the police that when he saw his brother lying in injured condition inside the street he was not found wearing jacket and shirt. He does not know who own the mobile no.9582180370. He denied the suggestion that he had not noted down the numbers or that he was not present on the scene of crime.
47. Sh. Jitender Kumar was called as Court Witness. He is the owner of motorcycle DL 14SF 7849. He proved the RC of the same as Ex.CW13/A. He deposed that on 25.12.2016 his motorcycle was stolen by an unknown person and he got registered E-FIR No.038121. He came to know that his motorcycle has been recovered. He moved application State Vs. Prateek @ Bholu SC No.220/17 :: 32 ::
before the Ld. MM at Karkardooma and got released on superdari. His motorcycle DL 14SF 7849 and is Ex.PW10/Article-1. The testimony of this witness has gone unchallenged and uncontrovered.
48. SI Kiran Pal was examined as PW-14. He deposed that on 25.10.2016 he was on emergency duty. Duty officer informed him about the DD No.29A. He left for BJRM hospital. On the way in A-1 Market near country wine shop Jahangir puri he found some persons gathered and accordingly he went to that place. He came to know that one person had been caused gun shot injuries at that place. He also met HC Kamlesh, Ct. Rajender and Ct. Vinod Kumar. In the meantime Inspector Dhanajay Gupta had also reached there in Govt. Gypsy and told him that he will conduct inquiry in respect of DD No.29A. He accordingly, left that place.
49. During cross-examination he stated that he reached the place of occurrence at 9:25 pm. Public persons who met them there told him the time of occurrence as about 8:15 pm. He remained on the spot for about 10 minutes. No eye witness met him there on the spot.
50. ASI Brij Mohan was examined as PW-15. He proved the entries in register No.19 as Ex.PW15/A to Ex.PW15/D. He proved the entries in register No.21 as Ex.PW15/E, Ex.PW15/G and Ex.PW15/I and Ex.PW15/K. He proved the State Vs. Prateek @ Bholu SC No.220/17 :: 33 ::
acknowledgment receipt from the FSL as Ex.PW15/F, Ex.PW15/H and Ex.PW15/J. Nothing material came during the cross-examination to discredit the witness.
51. ASI Sikander was examined as PW-16. He was working as duty officer on 04.07.2016 in PS: Jahangir Puri. On that day at 3:10 am he received rukka sent by ASI Ram Chander through Ct. Vinod. He registered FIR No.382/16. He proved the copy of FIR No.382/16 as Ex.PW16/A. Nothing material came on record during his cross-examination.
52. ASI Dilbagh Singh was examined as PW-17. He brought the log book and diary of 26.12.2016 on sheet No.42. As per record at about 00:03 hrs an information was received from Fortis Hospital that Jeet Kumar 14 years male was admitted in Fortis Hospital with fire arm injury and brought by his relatives vide MLC No.386/16. He proved the wireless log diary of 26.12.2016 as Ex.PW17/A.
53. Ld. PP dropped Inspector Radhey Shyam from the list of witnesses and his statement to this effect was recorded on 24.05.2017.
54. Defence has also admitted the scaled site plan Ex. PX-1. The report of ASI Rajbir Incharge Mobile Crime Team Ex.PX-2. The certificate u/s 65B issued by SI Harish Chander Pathak Nodal Officer CPCR, PHQ Ex.PX-3. Form No.1 of the Delhi Police control Room dt.26.12.2016 Ex.PX- State Vs. Prateek @ Bholu SC No.220/17 :: 34 ::
4. DD No.43B dt. 25.12.2016 PS: Mahendra Park, Ex.PX-5.
DD No.30A dt. 25.12.2016 PS: Mahendra Park Ex.PX-6. DD No.29A dt. 25.12.2016 PS: Mahendra Park Ex.PX-7. DD No.39B dt. 25.12.2016 PS: Mahendra Park Ex.PX-8. DD No.31A dt. 25.12.2016 PS: Mahendra Park Ex.PX09. Seizure memo of the pullanda having seal of Fortis Hospital along with sample seal Ex.PX-10. Seizure memo of Parcel viol envelope and one wooden box having seal of ASFMT BJRM Hospital along with sample seal Ex.PX-11. Death report Ex.PX-12. High School Examination certificate 2011 of Amitesh Ex.PX-13. Certificate issued from Sh. Ekras Anant Adarsh Inter College Mainpuri with respect to Amitesh Ex.PX-14. Record of Middle Standard Examination of Amitesh Ex.PX-15. Character certificate of Jaipal Ex.PX-16. Certificate issued from Sh. Data Ram Singh Inter College of Jai Pal s/o Sh. Ram Bhool Ex.PX-17. Age memo with respect to Prashant @ Chhotu @ Amit @ Amitesh Ex.PX18. Age memo with respect to Kamal @ Jaipal Ex.PX-19. The photographs of the scene of crime Ex.PX-20/1 to 17.
55. Sh. Amit Rawat, Asstt. Director Chemistry was examined as PW-18. On 01.03.2017 he examined the viscera and found to contain etyle alcohol 97.6 mg per 100 ml of blood. The report is Ex.PZ. The testimony of the witness has gone unchallenged and uncontroverted. State Vs. Prateek @ Bholu SC No.220/17 :: 35 ::
56. ASI Suresh Kumar of special staff was examined as PW-19. He deposed that on 29.12.2016 he was searching for the accused involved in the murder case. One secret informer met him near Haider pur Nehar and informed that accused involved in case FIR No.382/16 PS: Jahangir Puri could be apprehended from Haider Pur. At about 8:15 pm Ct. Vinod along with one public person Pawan and secret informer along with IO met him. He told Inspector Dhanajay Gupta that he had information with regard to accused of case FIR No.382/16. Inspector Dhanajay Gupta was also having the same information. They all joined together and formed a raiding party. On the direction of the IO they took the position near Haider Pur nehar. The secret informer was with him. At about 8:30 pm while IO Pawan and secret informer were standing on the sides of Jhuggies of Haider Pur one person came on motorcycle and parked his motorcycle in the bushes and started looking around. They apprehended that person. Pawan identified that person as Saddaq Hussain. Secret informer also pointed out that person. He was interrogated and arrested vide memo Ex.PW12/A. His personal search was conducted vide memo Ex.PW12/B. Accused made disclosure statement Ex.PW19/A. Motorcycle No. DL 14SF 7849 was seized vide memo Ex.PW19/B. He correctly identified the accused.
State Vs. Prateek @ Bholu SC No.220/17 :: 36 ::
57. On 31.12.2016 he again joined the investigation of this case with Inspector Dhananjay Gupta and HC Kamlesh. Accused Saddaq Hussain was taken out from the lockup. Accused led them to H.No.3/44, Kichdipur village, Shiv market plot No.3. PS: Kalyan Puri, Delhi. The accused picked up the key of his house from the window of ground floor of above number house. The accused opened the house and led them to the ground floor where one single bed was lying. Accused opened the box of the bed and produced one pistol out of the old clothes lying in the box. The said pistol was opened and magazine was taken out. The sketch of the pistol and magazine was prepared which is Ex.PW19/C. The said pistol and magazine were wrapped in a piece of cloth, sealed with the seal of DG and seized vide memo Ex.PW19/D. The motorcycle is identified in the photographs as Ex.PW10/Article-1. The pistol and magazine is identified as Ex.PW19/Article-1.
58. During cross-examination for accused Saddaq Hussain he stated that officials of special staff of concerned district remained in touch with IO of the murder case. There is no written order issued by DCP to officials of special staff to remain in touch with the IO's of murder cases. Saddaq Hussain was already wanted in case FIR No.382/16 of PS:
Jahangir Puri. He reached Haiderpur Nehar at about 8:00 or State Vs. Prateek @ Bholu SC No.220/17 :: 37 ::
8:15 pm along with the secret informer. Accused Saddaq waited for someone after parking his motorcycle. First of all he caught hold of him. They remained on the spot for about 1½ hour. There was darkness at that place. No site plan of the place of arrest was prepared. He denied the suggestion that accused was not arrested from the place, time and manner as deposed by him or that the accused was lifted from his house and falsely implicated in the present case.
59. On 31.12.2016 they left the police station at about 11 or 12 noon in govt. gypsy with accused. After one hour they reached the place of recovery. On the way to the place of recovery IO did not ask any public person to join the investigation. IO did not inform PS: Kalyan Puri that accused had pointed out house No.3/44, Kichdipur. No inquiry was made as to who is the owner of that house. IO asked public persons to join the proceedings but none agreed. No notice was given to the public persons who refused to join. The place of recovery is one and a half story. No site plan of place of recovery was prepared. No specific mark of identification was put on the recovered pistol. He denied the suggestion that no pistol was recovered. No question was put to the witness on behalf of other accused persons.
60. HC Kamlesh Kumar was examined as PW-20. On 25.12.2016 on receipt of information of firing in A-1 market State Vs. Prateek @ Bholu SC No.220/17 :: 38 ::
near Desi Sharab Theka, Jahangir Puri, he along with ASI Kiran Pal, Ct. Rajender, Ct. Vinod reached there. Inspector Dhananjay Gupta with Ct. Prabhjyot also reached in gypsy. They came to know that injured had been removed to BJRM hospital. He and ASI Kiran Pal were left on the spot. IO left for BJRM hospital. IO came back at the spot and recorded statement of Ajeet s/o Sh. Suresh Kumar. IO made endorsement, prepared the rukka and handed over to him. He went to the police station and presented the rukka to the duty officer at 00:15 hours on 26.12.2016. Duty officer registered the FIR and handed over the copy of FIR and original rukka to him. He came back on the spot and handed over the original rukka and copy of FIR to Inspector Dhanajay Gupta. Crime team came on the spot and inspected the scene of crime. Photographer of crime team took the photographs. One empty cartridge was found on the spot which was picked up. Its sketch was prepared which is Ex.PW20/A. The empty cartridge was wrapped in a piece of cloth, sealed with the seal of DG and seized vide memo Ex.PW20/B. One motorcycle of blue colour No: DL 8SBJ 5680 was seized from the spot, which was belonging to the deceased, vide memo Ex.PW20/C. He along with IO went to BJRM Hospital where IO prepared the inquest papers. The dead body was identified by the relatives of the deceased. State Vs. Prateek @ Bholu SC No.220/17 :: 39 ::
Post mortem was got conducted. After the post mortem IO seized the Exhibits in sealed parcels along with the sample seal vide seizure memo Ex.PX-11.
61. On the same day in the evening hours he along with IO left for K-Block jhuggies in search of accused persons.
Complainant Ajeet Kumar was also joined. One secret informer met IO and informed that two boys are waiting on motorcycle near Shah Alam Bandh. They reached there and on the pointing out of secret informer and identification of complainant, Prashant @ Chhotu and Prateek @ Bholu were apprehended. They were on motorcycle No. DL 8S AT 0967. Accused Prashant @ Chhotu was arrested vide arrest memo Ex.PW7/D. His personal search was conducted vide memo Ex.PW7/D. Accused Prashant made the disclosure statement Ex.PW7/G. Accused Prateek was arrested vide arrest memo Ex.PW7/C. His personal search was conducted vide memo Ex.PW7/E. Accused Prashant made the disclosure statement Ex.PW7/H. Motor cycle No. DL 8 S AT 0967 was seized vide memo Ex.PW7/F. He identified both the accused persons. He also corroborated the testimony of PW-19 regarding the recovery of pistol at the instance of Saddaq Hussain and identified the accused persons as well as the case property. He identified the empty cartridge as Ex.PW20/Article-1. The motorcycle No. DL 14SF 7849 is identified in the State Vs. Prateek @ Bholu SC No.220/17 :: 40 ::
photographs as Ex.PW10/Article-1. The pistol and the magazine are identified as Ex.PW19/Article-1.
62. During cross-examination for accused Prateek, Prashant and Kamal he deposed that they reached the spot at about 8:30 or 9:00 pm. About 15 to 20 public persons were present on the spot. No relative of the deceased was there.
Ajeet reached the spot after about 30-45 minutes of his reaching the spot. Ajeet remained there for about half an hour. Public person who were present there, informed that they had not witnessed the incident but pointed out the place where injured was found lying. No blood was found on the spot. They could not tell as to who had removed the injured to the hospital. He remained at the spot till 1 or 2 am. He does not know any person by the name of Pawan, Jogender and Chandan. No relative of deceased except Ajeet came on the spot. He admitted that CCTV cameras are installed at the ATM of HDFC, SBI Bank and Liquor shop. IO did not check the CCTV cameras of these installations in his presence, as the officials/owners of these properties/shops were not there. No clothes were found on the spot or nearby. The public persons who pointed out the place as to where the injured was lying was examined by the IO. Ajeet was not present there when the public persons pointed out to the IO as to the place where injured was lying.
State Vs. Prateek @ Bholu SC No.220/17 :: 41 ::
63. Secret informer had not informed the IO about the particulars of the accused including their residence and parental address. Ajeet met them at about 6:00 or 6:30 pm. He does not know if secret informer came along with Ajeet or they came separately. Secret informer pointed out accused Prashant and Prateek from a distance of about 30 steps.
They all were in uniform and in police gypsy. The accused persons did not try to escape and also does not put any resistance. The accused persons were arrested at about 8:00 pm. They remained at that place for about 45 minutes. Secret informer remained at the spot and he does not know when he left. He does not know whose disclosure statement was recorded first in time. He does not remember if any RC or license or insurance document were found in possession of the accused persons or were found in the motorcycle. Public witnesses were not asked to join the investigation at the time of arrest. However, public persons were present there. He denied the suggestion that accused persons were lifted from their house and lateron shown to have been arrested from there.
64. During cross-examination for accused Saddam he stated that he cannot tell the time when they left the police station. It took them one hour to reach Kichdipur from PS:
Mahendra Park. On the way to the place of recovery IO did State Vs. Prateek @ Bholu SC No.220/17 :: 42 ::
not ask any public person to join the investigation. He does not know who owned that house. IO did not record the statement of neighbours or asked them to join the investigation. They remained there for about half an hour. 2-3 public persons gathered out side the house. No mark of identification was put on the pistol. IO did not inform the local police about the recovery of the pistol. He denied the suggestion that no recovery was effected or that the case property was planted upon the accused.
65. Ct. Vinod was examined as PW-21. He deposed that on 25.12.2016 on receipt of information regarding firing at A-1 Market near Desi Sharab Theka, Jahangir Puri, he along with Ct. Rajender reached there. HC Kamlesh ASI Kiran Pal were already there. After sometime Inspector Dhanjajay Gupta along with Ct. Prabhjyot also reched there in gypsy. They came to know that injured had been removed to BJRM Hospital. HC Kamlesh along with ASI Kiran Pal were left on the spot. He along with Inspector Dhanjay and Ct. Rajender went to BJRM Hospital. At BJRM Hospital they came to know that injured had been taken by his family members to Fortis Hospital where he was declared dead. IO directed him to remain at Fortis Hospital and left for the spot. IO came back to the hospital with Ct. Vinayak. The hospital authorities gave one sealed parcel along with sample seal to Ct. Vinayak State Vs. Prateek @ Bholu SC No.220/17 :: 43 ::
which was seized by the IO vide memo Ex.PX-10. The dead body was shifted to the mortuary of BJRM hospital by him. After the post mortem the dead body was handed over to the relatives. He corroborated the testimony with respect to the arrest of accused Kamal @ Jai Pal as deposed by PW-7. He stated that accused Jaipal also pointed out the place of occurrence vide memo Ex.PW21/A. He also corroborated the testimony of PW-12 regarding arrest of accused Saddaq and seizure of his motorcycle DL 14 SF 7849. He also deposed that on 14.03.2017 he collected four sealed parcels and two sample seals from MHC(M) for depositing the same at FSL vide RC No.27/21/17. He deposited the case property in the FSL and obtained the acknowledgment. He returned to the police station and handed over the copy of RC and acknowledgment to the MHC(M). Till the case property remained in his possession no body tampered with the same.
66. On 29.05.2017 he joined the investigation with Inspector Mukesh Kumar and Ct. Virender. They reached court room No.117 Rohini Courts Complex. Accused Sandeep @ Bachha @ Pankaj was produced in the court. IO after taking permission from the court interrogated the accused and arrested him vide arrest memo Ex.xPW28/B. Accused made the disclosure statement Ex.PW28/C. Police custody remand of accused was taken. Accused pointed out State Vs. Prateek @ Bholu SC No.220/17 :: 44 ::
the place of occurrence vide memo Ex.PW28/D. The witness has identified the motorcycle in the photograph Ex.PW10/P1 to P3 as Ex.PW10/Article-1.
67. During cross-examination he stated that on 25.12.2016 they reached the spot at about 9:30 pm. 5 to 10 public persons were already there but they stated that they had not witnessed the incident. Witness Ajeet met them at Max hospital at about 9:45 pm. He had not noticed any blood on the spot. Some persons who were knowing the injured were present in the hospital. He does not know if they were relatives of the deceased. He admitted that there are two liquor shops and one ATM of HDFC bank and ATM of SBI Bank near the place of occurrence. CCTV Cameras are installed on one of the liquor shop and also at the ATM of SBI Bank. They did not check the CCTV footage till they remained there. They also did not find any clothes on the spot.
68. On 28.12.2016 at about 6/7 pm he joined the investigation. IO made the departure entry. Ajeet met them near SBI Bank. They were in official gypsy. They had not asked any public person to join the investigation. Secret informer met them at Aggarwal Sweets which is at a distance of about 200 meters from the police station. Ajeet met them by chance. He was joined in the investigation. Wazirabad State Vs. Prateek @ Bholu SC No.220/17 :: 45 ::
bridge is situated at a distance of about 6 to 7 km from the police station and does not fall within the jurisdiction of PS:
Mahendra Park. They did not inform the local police station. IO was in uniform but he was in plain clothes. No notice in writing was given to the public persons who refused to join. IO did not note down the names and addresses of those public persons who refused. They reached Wazirabad at about 7:30 pm. The police gypsy was stationed near the Bridge facing Mukarba chowk. Secret informer pointed towards the accused Jai Pal from a distance of about 15 to 20 steps. Accused Jai Pal was coming from Timar pur side.
First of all Inspector Dhanjay Gupta over powered the accused. Accused tried to get himself released but could not escape. They remained on the spot for about 35 to 40 minutes after the arrest of accused. From there the accused took them to place of incident and then they returned to the police station. He does not know by which mode the complainant Ajeet left the place of arrest. He denied the suggestion that he did not join the investigation or that accused was not arrested in his presence.
69. No public person could be joined at the time of arrest of accused Saddaq. The public persons refused to join. They reached near Haider Pur canal at about 8 pm on 29.12.2016. Accused Saddaq came from the side of Prashant Vihar. He State Vs. Prateek @ Bholu SC No.220/17 :: 46 ::
hide the motorcycle in the bushes. Accused Saddaq Hussain waited for 5 -10 minutes for someone but none came, thereafter he was apprehended. He denied the suggestion that accused did not make any disclosure statement or did not point out place of occurrence.
70. Ms. Prerna Lakra, Ballistic expert was examined as PW-22. She deposed that on 09.05.2017 she received one sealed parcel, seals were intact and tallied with the specimen seal. She opened the parcel and examined it on 18.08.2017. As a result of Atomic Absorption Spectrophotometer analysis (AAS), characteristic of gun shot residue i.e. element led and barium have been detected on suspected hole marked as H4. Element led has been detected on the suspected hole marked as H1, H2, H3 and element Copper has been detected on the suspected holes marked as H2, H3 and H4. She proved her report as Ex.PW22/A. The testimony of this witness has gone unchallenged and uncontroverted.
71. The statements of advocates were recorded on 07.09.2017 and they stated that they don't dispute the identity of vehicle no:DL 12S 9960.
72. Aarif was examined as PW-23. He is the registered owner of motorcycle DL 8S AT 0967 which is registered in the name of his mother Smt. Sanjo. He deposed that he sold the motorcycle to Bholu through Shahruk but the vehicle is State Vs. Prateek @ Bholu SC No.220/17 :: 47 ::
still registered in the name of his mother. Bholu did not get the vehicle transferred in his name. He stated that accused Bholu is not present in the court. He was cross examined by Addl. PP wherein he stated that Prateek @ Bholu is not present in the court. The accused was also pointed out to him but he stated that he is not the person to whom the motorcycle was sold.
73. During cross-examination for accused Saddaq, Prashant and Prateek he stated that he and his mother had not signed form No.29-30 of Motor Vehicle Act. He had not issued any receipt of any amount to Prateek @ Bholu. He had also not taken any authority letter from his mother for selling motorcycle. His mother had also not given him any authority for selling the same. He had also not taken any ID proof of Prateek @ Bholu at the time of said transaction. He had not informed transport authority regarding selling of the motorcycle. He does not know where Shahrukh is residing. He denied the suggestion that he had not sold the motorcycle to Prateek @ Bholu or that he is deposing falsely.
74. Sh. S.K. Singla was examined as PW-24. He deposed that on 01.03.2017 three sealed parcels were received in the Biology division of FSL. He examined the exhibits and blood was detected on Ex.1a, 1b, 2a, 2b and 3. The blood was found to be of human origin of B-group was detected on 1a State Vs. Prateek @ Bholu SC No.220/17 :: 48 ::
and 1b but the grouping cannot be done of the blood found on the exhibits 2a, 2b and 3. He proved his report as Ex.PW24/A.
75. R. Eniyavan was examined as PW-25. He conducted the ballistic examination on the exhibits received in four sealed parcels on which the seals were intact and tallied with the specimen seal. From the parcels one empty cartridge case marked as EC1, from the parcel two, one improvised pistol marked as F1, one bullet marked as EB1 in the third parcel and in the fourth parcel also one bullet was found which is EB2. On examination of the exhibits he found that F1 is a firearm as defined in the Arms Act. It is an improvised pistol capable of chambering and firing standard 7.65 mm ammunition.
76. Five 7.6 mm cartridges were received for test firing, were chambered and successfully test fired through exhibit improvised pistol marked F1 in the laboratory. Hence, it is opined that exhibit Improvised pistol mark F1 is in normal working order. Recovered bullets and cartridges cases were used for examination and comparison purposes. The physical examination of exhibit marked EC1 shows that it is an empty cartridge case of standard 7.65 mm caliber and is a part of ammunition as defined in Arms Act 1959.
77. No opinion could be given whether the cartridge case State Vs. Prateek @ Bholu SC No.220/17 :: 49 ::
mark Ex.EC1 had been fired through exhibited improvised pistol F1 or not due to absence of percussion cap.
78. The physical examination of exhibit marked EB1 and EB2 shows that they are bullets of standard 7.65 mm caliber and they are part of ammunition as defined in Arms Act 1959.
79. The individual striation marks present on evidence bullets marked Exhibit EB1 and EB2 were compared with recovered test bullets fired through improvised pistol marked F1 under a comparison microscope. After through examination and comparison, individual striation marks present on exhibit bullets marked EB1 and EB2 were similar with individual striation marks present on test bullets fired through exhibit improvised pistol marked F1. Hence, it is opined that exhibit bullets marked EB1 and EB2 have been discharged through exhibit improvised pistol marked F-1. He proved is report as Ex.PW25/A. He also identified the pistol as Ex.PW19/Article-1. The empty cartridge as Ex.PW25/Article-1. The bullets EB1 and EB2 as Ex.PW25/Article-1 and Ex.PW25/Article-2. The testimony of this witness has gone unchallenged and uncontroverted.
80. Prerna Lakra was again called as PW-26 and she proved her detailed report as Ex.PW26/A. She also identified the clothes collectively as Ex.PW26/Article-1. The testimony of this witness has gone unchallenged and uncontroverted. State Vs. Prateek @ Bholu SC No.220/17 :: 50 ::
81. Ms. Vijayanta Arya was examined as PW-27. She accorded the sanction u/s 39 Arms Act 1959 for prosecution of accused Saddaq Hussain s/o Sh. Shakir Ali and Pankaj @ Sandeep @ Bachha S/o Late Sh. Sita Ram u/s 25 Arms Act on 31st July 2017. She proved the sanction order as Ex.PW27/A. Nothing material came during cross-examination of the witness to discredit her.
82. Inspector Mukesh Kumar was examined as PW-28. On 29.05.2017 he got the file for further investigation. On that day he along with Ct. Vinod and Ct. Virender went to the court of Ld. ACMM Sh. Manish Khurana. Accused Sandeep @ Baccha @ Pankaj was produced in the court on production warrants. He moved application Exhibit PW-28/A for permission to interrogate and arrest after obtaining permission he arrested the accused vide arrest memo Ex.PW28/B. Accused made the disclosure statement Ex.PW28/C. He obtained the police custody remand of the accused. Accused pointed out the place of occurrence vide memo Ex.PW28/D. Accued also pointed out house number 3/44 Shiv market Kichdi pur where his co-accused Saddaq had hidden the country made pistol used in the commission of offence. He prepared the site plan of that place which is Ex.PW28/E. Next day accused was produced before the court and was sent to J/C. State Vs. Prateek @ Bholu SC No.220/17 :: 51 ::
83. During cross-examination he stated that the scene of crime was already in his knowledge as he had gone through the file. He denied the suggestion that accused Pankaj did not make any disclosure statement or pointed out any place or the place where he along with co-accused Saddaq had hidden the pistol.
84. HC Jaspal was exmained as PW-29. He deposed that on 23.05.2017 he along with Ct. Ravikant left police station in search of proclaimed offenders. At about 1;30 pm they reached at Laxmi Narain Mandir Bhalswa Village where one secret informer met them and informed that one proclaimed offender is standing near the temple wearing blue colour Pyjama. The secret informer pointed towards accused Pankaj @ Baccha who was apprehended. Accused was arrested. He prepared the kalandra Ex.PW29/A. On return to the police station he made entry which is Ex.PW29/B. He accordingly informed the duty officer of PS: Jahangir Puri and Mahendra Park about the arrest of accused. The testimony of this witness has gone unchallenged and uncontrovered.
85. Inspector Dhananjay Gupta the IO of the case was examined as PW-30. On 25.12.2016 on receiving information regarding firing at A1 market near Desi Sharab Theka on telephone while DD No.30A Ex.PX-6 he reached the spot. Ct. State Vs. Prateek @ Bholu SC No.220/17 :: 52 ::
Rajender, Ct. Vinod, HC Kamlesh, ASI Kiran Pal met him there. Ct. Prabhjyot was with him. He came to know that injured had been removed to BJRM hospital. He left HC Kamlesh and ASI Kiran Pal on the spot. He along with Ct. Vinod and Ct. Rajender left for BJRM hospital. He collected the MLC of the unknown. He came to know that injured had been taken by his family members to Fortis hospital where he was declared dead. He directed Ct. Vinod to remain present in the Fortis hospital and left for the spot. He also sent the message to control room for calling the crime team at the scene of crime. He reached the spot where Ajeet S/o Sh. Suresh Kumar eye witness of the case met him. He recorded the statement of Ajeet Kumar Ex.PW7/A. He made his endorsement Ex.PW30/A. He prepared the rukka and handed over to HC Kamlesh at 11:55 pm for registration of FIR. Thereafter, he returned to hospital along with Ct. Vinayak. From the Fortis Hospital he received one sealed parcel which was seized vide memo Ex.PX-10. The dead body was shifted to the mortuary of BJRM Hospital through Ct. Vinod. Crime team headed by ASI Rajbir accompanied by photographer ASI Manoj reached the spot. Crime team inspected the scene of crime and also took the photographs. HC Kamlesh came back on the spot and handed over original rukka and copy of FIR to him. One empty cartridge State Vs. Prateek @ Bholu SC No.220/17 :: 53 ::
was found by the crime team on the spot. He prepared the sketch of the same which is Ex.PW20/A. The empty cartridge was put in a piece of cloth sealed with the seal of DG and seized vide memo Ex.PW20/B. He prepared the site plan of the scene of crime which is Ex.PW30/B at the instance of Ajeet Kumar. He seized the motorcycle No. DL 8S BJ 5680 which was lying on the scene of crime vide seizure memo Ex.PW20/C.
86. On 26.12.2016 dead body was identified by Ramesh Kumar and Suresh Kumar vide statement Ex.PW8/A and Ex.PW9/A. He prepared the inquest papers and moved application Ex.PW30/C for post mortem. After the post mortem the dead body was handed over to the relatives. He received the exhibits from the hospital vide memo Ex.PX11. He returned to the police station and handed over the exhibits to the MHC(M). On the same day the accused persons Prashant @ Chhotu and Prateek @ Bholu were arrested, in this regard he corroborated the testimony of PW-
7. The motorcycle No. DL 8S AT 0967 on which they were moving was also seized. Both the accused Prashant and Prateek pointed out the scene of crime vide memo Ex.PW30/D. He identified both the accused persons. On 27.12.2016 he obtained the police custody remand of the accused persons. They were got medically examined. They State Vs. Prateek @ Bholu SC No.220/17 :: 54 ::
went in search of accused persons but the other co-accused could not be arrested.
87. He corroborated the testimony of PW-7 and PW-21 with respect to the arrest of accused Kamal @ Jai Pal and his pointing out of scene of crime.
88. On 29.12.2016 one day police custody remand of accused Kamal was obtained from the court. They went in search of accused persons and Pawan was joined in the investigation. He deposed about the arrest of accused Saddaq and corroborated the testimony of PW-12 and PW- 19 in this regard. He also deposed regarding the recovery of the weapon of offence and fully corroborated the testimony of PW-19. He prepared the site plan of the place of recovery which is Ex.PW30/E.
89. On 01.03.2017 through Ct. Satya Prakash the exhibits and the five live cartridges were sent to FSL. He also obtained the non-bailable warrants against accused Ajay and Sandeep and thereafter as the non-bailable warrants could not be executed the process u/s 82 Cr.PC was got issued.
90. On 14.03.2017 again the exhibits were sent to FSL through Ct. Vinod.
91. During investigation he came to know that motorcycle No. DL 14SF 7849 was stolen from police station Farash Bazar and hence section 411 was added in this case. He State Vs. Prateek @ Bholu SC No.220/17 :: 55 ::
also got prepared the scaled plan of the place of occurrence which is Ex.PX-1. After completion of investigation he filed the charge sheet in the case. He identified the case property as well as the accused persons. He identified the motorcycle No. DL 8S BJ 5680 as Ex.PW30/Article-3. The clothes of the deceased as Ex.PW30/Article-1 and Ex.PW30/Article-2.
92. During cross-examination by the defence he stated that it is not in his knowledge as to who removed the injured to the hospital. It was Ajeet who pointed out the place of occurrence to him. There were two places of occurrence. i.e. first place is near Salim Chickenwala where the victim went to attend the call of nature and second one was near Desi Liquor shop. Both these places are situated at A-1 market Jahangir Puri Delhi. Motorcycle bearing registration No.5680 was found parked near Salim Chickenwala from where it was seized. The crime team official lifted one empty cartridge lying near Desi liquor shop. He reached the place of occurrence at about 9:30 pm. 5 to 7 public persons were there on the spot. He made inquiries from them but they stated that they had not witnessed the incident. No family member of the injured/deceased met him in BJRM hospital or at the place of occurrence. No family member of the deceased was found even in Fortis Hospital. He reached BJRM hospital at about 9:45 pm and remained there for State Vs. Prateek @ Bholu SC No.220/17 :: 56 ::
about 5 to 7 minutes. He reached Fortis Hospital at about 10:15 pm and remained there for about 10 minutes. From Fortis Hospital he reached the spot at about 10:40 pm and remained there upto 2 am. He met Ajeet first time on the spot when he came from the Fortis Hospital. No family member of the deceased was with Ajeet at that time. No public person met him on the spot when he returned from Fortis Hospital except Ajeet. He had not noticed any blood at both the places. Ajeet had not disclosed him the phone number belonging to him. However, he mentioned one phone number at the time of making statement as belonging to his father. He had not mentioned this fact in the statement Ex.PW7/A that this phone number belongs to his father. He collected the CDR of that number also but same was not required for the investigation purposes. He denied the suggestion that the said phone belongs to Ajeet or that the version given by Ajeet was not corroborated by the CDR and that is why the same has not been placed on record. Crime team reached at the spot at 11:15 pm and remained there for about 20 minutes. Complainant Ajeet was also present on the spot till the crime team officials remained at the spot. He had not shown the place where the deceased went for attending natures call in rough site plan Ex.PW30/B, however, in the scaled plan it has been shown. He admitted that in Ex.PX1 State Vs. Prateek @ Bholu SC No.220/17 :: 57 ::
the scaled site plan the place where deceased went for attending nature's call has not been mentioned. At point A in scaled plan Ex.PX1 shows the place where accused persons started attacking Jeet Kumar. He admitted that in the rough site plan as well as scaled site plan the location of the parking of motorcycle of deceased and PW Ajeet has not been shown. He had also not shown the direction in which accused persons fled away after the incident in the site plan Ex.PW13/B as well as Ex.PX1 and had also not shown the place from where the witness Ajeet had witnessed the incident in the rough site plan as well as in the scaled site plan. He had also not inquired from the witnesses Chandan, Jogender and Pawan as to whether they were carrying any mobile phone number.
93. On 27.12.2016 he was present in K-Block Jhuggie Jahangir puri where he met Chandan, Jogender and Pawan and they told that they had also witnessed the occurrence and thereafter he recorded their statements. Complainant Ajeet had not told in his statement that Chandan, Pawan and Jogender were also witnesses of occurrence. Chandan, Jogender and Pawan were also not knowing about the presence of Ajeet at the place of occurrence. He inquired from Chandan, Jogender and Pawan as to why they had not approached the investigating agency but they did not give State Vs. Prateek @ Bholu SC No.220/17 :: 58 ::
any specific reply in this regard. The position of Chandan, Joginder and Pawan is also not shown in the site plan Ex.PX1. Witnesses Pawan, Jogender and Chandan orally told about the numbers of the motorcycles on which accused persons fled away and had not shown any slip having numbers of motorcycles. CCTV cameras were found installed at the gate of HDFC ATM counter as well as at the gate of SBI Bank and at the gate of liquor shop. The CCTV cameras were covering the inside of the shop. He had checked the CCTV footage but none of the footage was covering the incident. No clothes were found on the spot or nearby.
94. He denied the suggestion that Prateek was not arrested from the place and in the manner deposed by him.
On 26.12.2016 initially he met complainant Ajeet and thereafter secret informer. The secret informer had not disclosed about the names and parentage of accused Prateek and Prashant. He denied the suggestion that accused Prateek and Prashant have been falsely implicated or that they had not made any disclosure statements. He denied the suggestion that he has not properly investigated the case.
95. On 31.12.2016 accused Saddaq was taken out from the lockup during noon hours. No information was given to State Vs. Prateek @ Bholu SC No.220/17 :: 59 ::
PS: Kalyan Puri. They remained at the house of accused Saddaq at Kalyan Puri for about an hour. No public person or family member of accused Saddaq Hussain was available in the house. It was a tenanted house. He requested the neighbours for joining the investigation but none agreed. He denied the suggestion that no receovery was effected at the instance of accused Saddaq Hussain from the said house or at the instance of Saddaq Hussain.
96. Thereafter, prosecution evidence was closed. Statement of accused persons were recorded u/s 313 Cr.PC wherein they denied the entire evidence and stated that they have been falsely implicated. They did not wish to lead evidence in defence.
97. Thereafter, the case was fixed for final arguments.
98. I have heard Ld. Addl.PP for the State, Ld. Defence counsel for accused persons and perused the record.
99. Ld. Addl. PP submitted that in this case there is an eye witness Ajeet Kumar examined as PW-7. He has fully supported the prosecution case, identified the accused persons and also the motorcycles on which the accused persons came. Ajeet Kumar stated that on 25.12.2016 at about 7:30 pm he along with Jeet Kumar was standing outside their house i.e. Jhuggie No.A-569 K-block Jahangir Puri. Jeet Kumar wished to eat chicken and PW-7 suggested State Vs. Prateek @ Bholu SC No.220/17 :: 60 ::
to go to Salim Chicken wala at A-block market. They reached the market of A-block on the motorcycle No. DL 8S BJ 5680 Ex.PW30/Article-1. Jeet stopped the motorcycle before the shop of Salim Chicken wala to urinate. Jeet Kumar and Ajeet PW-7 went near the wall and started urinating. All the six accused i.e. Prateek, Prashant, Kamal, Saddaq Hussain and Sandeep and one Ajay not arrested came there on two motorcycles. Saddaq caught hold the neck of Jeet Kumar from behind and said "tu hamare khilaf gawahi dega". Ld. APP submitted that infact Saddaq and Sandeep were accused in case FIR No.382/2016 PS: Jahangir Puri u/s 302/307/34 IPC wherein Jeet Kumar was an eye witness and also injured. All the six accused gave beatings to Jeet Kumar. Sandeep pulled out a pistol and fired on Jeet Kumar which hit on the right arm of Jeet and thereafter, penetrated into the chest. Jeet Kumar ran towards the country made liquor shop but was over powered by all the accused persons near the liquor shop. They again gave beatings to Jeet Kumar and said, "Is saale ko jaan se maar detein hain, na hoga gawah no hogi gawahi." On this Sandeep @ Baccha took out a pistol and fired on Jeet Kumar who was lying on the ground at that time. Ld. APP submitted that Ajeet Kumar has fully supported and corroborated the prosecution case. His testimony is also corroborated by the medical evidence. State Vs. Prateek @ Bholu SC No.220/17 :: 61 ::
According to the post mortem report Ex.PW4/A there were two entry wounds referred as injury No.2 and injury No.4. Two bullets were also found lodged in the body during post mortem which were also taken out. This supports the testimony of PW-7 that two shots were fired on Jeet by Sandeep @ Baccha. Ld. APP submitted that PW-7 has stood through the test of lengthy cross-examination. There is nothing on record to disbelieve the testimony of PW-7 or that he had any reason to depose falsely against the accused persons.
100. Ld. APP further submitted that all the accused persons came together on two motorcycles clearly shows that they were having the common intention. They gave beatings to Jeet Kumar while he was urinating and one of the accused i.e. Sandeep @ Baccha fired on Jeet again shows that they had that common intention. When Jeet started running after sustaining bullet injury all the accused persons again chased and they all also exhorted "Is saale ko jaan se maar detein hain, na hoga gawah no hogi gawahi." After this exhortation Sandeep @ baccha fired on the chest of Jeet who was lying on the ground at that time. This exhortation by all the accused persons clearly shows that they were having common intention to kill him so that he be not able to depose against accused Saddaq Hussain and Sandeep @ Bachha in State Vs. Prateek @ Bholu SC No.220/17 :: 62 ::
case FIR No. 382/16 PS: Jahangir Puri u/s 302/307/34 IPC. Ld. APP submitted that the onus which was on prosecution has been fully discharged. The prosecution has been able to prove the guilt of the accused persons beyond doubt. It is prayed that they all be held guilty and convicted for the offence punishable u/s 302 r/w 34 IPC.
101. Ld. Defence Counsel submitted that the onus was upon the prosecution to prove that Jeet was murdered by the accused persons but the prosecution has miserably failed to discharged the onus. According to the prosecution case Ajeet witnessed the incident, but the record shows that he is not the eye witness but was introduced later on. Ld. Defence counsel submitted that Jeet was not removed to the hospital by Ajeet or any other relative of Jeet. Jeet was removed to BJRM Hospital by one Surya R/o H.No.1055, D-Block as mentioned in MLC Ex.PW1/A and he found injured on the road side. Surya has not been examined by the investigating agency and has not been cited as witness. He was the best person to tell where he found the injured. The MLC is prepared at 8:50 pm. In the MLC the name of the injured, his father's name and address is not mentioned meaning thereby when he was removed to BJRM hospital it was not known as to who is the injured. Ld. Counsel submitted that if PW-12 is to be believed he along with Ajeet and others State Vs. Prateek @ Bholu SC No.220/17 :: 63 ::
removed injured Jeet Kumar to BJRM Hospital in battery rickshaw. If PW-12 is to be believed then in the MLC the name and address of Jeet Kumar should have been there and also in the column where name of Surya is mentioned the name of PW-12 or any other relative of Jeet Kumar should have been there.
102. Ld. Counsel further submitted that crime team also inspected the scene of crime in this case. The report of the crime team has been proved as Ex.PX-2. According to the crime team report the crime team reached the spot at about 1:40 am and remained there till 2:10 am. In the crime team report column No.11 where the details of victim /deceased were to be filled is blank. In that column the Incharge crime team ASI Rajbir has also not mentioned the age of the deceased. ld. Counsel submitted that IO was present on the spot at that time and according to the story Ajeet Kumar had already met the IO before the Crime team visited the scene of crime. Statement of Ajeet had already been recorded and rukka was sent at about 11:55 pm by Inspector Dhanjay Gupta. If it is to be believed then not only the name of injured but the manner of committing offence and the names of the assailants were known to the police before the inspection by the crime team. But the incharge crime team in his report has mentioned, "do guton mein jhagrah mein goli chali batai". Ld. State Vs. Prateek @ Bholu SC No.220/17 :: 64 ::
Defence counsel submitted that this report of the Crime team Incharge clearly shows that Ajeet had not witnessed the incident but was introduced lateron after due deliberations in order to solve the case. The fact that he has been introduced lateron is also evident from his conduct. PW-7 stated that the accused persons gave beatings to Jeet Kumar when he and Jeet were urinating. But PW-7 neither intervened to save his brother Jeet nor raised alarm. Even after Sandeep @ Baccha fired on Jeet Kumar as deposed by PW-7. He did not raise alarm. When allegedly Jeet Kumar ran from there at that time also he did not try to save Jeet Kumar from the accused persons. He also does not say that he was beaten by the accused persons or threatened by any of the accused due to which he did not intervene or raise alarm. Ld. Defence counsel submitted that the conduct of the witness is unnatural. He is the brother of deceased. If his brother was beaten and also fired at he would at least raise alarm and when the accused persons fled away after committing the offence. He would have shifted his brother to the hospital. Ld. Counsel submitted that infact Ajeet was not there and has been introduced lateron. The fact that no blood was found on the places further strengthen the theory that Ajeet was not present with Jeet when Jeet sustained the fatal injuries. The prosecution alleges that one empty cartridge was also found State Vs. Prateek @ Bholu SC No.220/17 :: 65 ::
on the spot which shows that it was the place where offence was committed. The empty shell was sent to FSL for analysis. The ballistic expert report has been proved on record as Ex.PW25/A. According to the report it could not be opined that the empty cartridge case was fired from the pistol which was lateron recovered. Hence, it cannot be said with certainty that the incident has taken place on the spot as deposed by PW-7. Ld. Counsel submitted that the Surya was the best witness to depose where he found the deceased but as statement of Surya was not finding favour with the prosecution case i.e. why he has not been introduced as a witness. Ld. Counsel submitted that all these facts clearly shows that PW-7 is not a reliable witness. Ld. Counsel submits that there is no other eye witness who can link the accused persons with the commission of offence. It is prayed that benefit of the same be given to accused persons and they be acquitted.
103. After hearing the arguments and going through the record I found that according to the story the incident was witnessed by Ajeet PW-7 who is the cousin of deceased Jeet. According to the prosecution case Ajeet met the IO on the spot when IO came there from Fortis Hospital. IO also stated that no relative of the deceased or eye witness met him either in BJRM hospital or in Fortis Hospital. It is State Vs. Prateek @ Bholu SC No.220/17 :: 66 ::
important to note that according to PW-12 as well as PW-7 police met them in Fortis Hospital and also made inquiries from them. PW-12 also stated that police made inquiries from Ajeet but Ajeet also did not disclose anything to the police in his presence. He also stated that Ajeet also did not tell anything to PW-12 about the incident.
104. According to PW-30 he recorded the statement of Ajeet on the spot but according to PW-7 he was taken to police station from the hospital and his statement was recorded in the police station. He also stated that in the Fortis Hospital he told all the facts to the IO. This contradiction in the testimonies of the witness itself creates doubt about the presence of PW-7.
105. It is also important to note and as pointed out by the defence that Crime team inspected the scene of crime at 1:40 am and inspected the same till 2:10 am. According to the prosecution case FIR had already been registered at 00:15 hrs i.e. much before the visit of crime team on the scene of crime. This also shows that by the time crime team visited the scene of crime IO was already knowing the name, parentage and address of the deceased and also the names of the assailants coupled with the manner of commission of offence. But surprisingly, the column No.11 of the Crime team report Ex.PX2 is blank. ASI Rajbir Incharge Crime team State Vs. Prateek @ Bholu SC No.220/17 :: 67 ::
only mentioned the following words in the column, "Age about years." The Incharge Crime Team even not mentioned the age of the deceased. Incharge Crime Team had also mentioned in his report Ex.PX2 that the firing took place between two groups which is not in confirmity with the statement of PW-7 and the FIR which according to the prosecution were recorded much before the inspection of the scene of crime by the crime team. All these facts clearly shows that the FIR is ante timed and that Ajeet had been introduced later on.
106. It is also important to note that injured was not removed to the hospital by Ajeet or any relative of the deceased but by one Surya R/o H.No.1055, D-Block, Jahangir Puri, as mentioned in the MLC Ex.PW1/A. Why Surya had not been examined or produced in the witness box is not clear. In fact Surya has not been arrayed as witness. Surya was the best person to tell where he found Jeet.
107. Even the conduct of eye witness PW-7 is doubtful. He deposed that in his presence the accused persons gave beatings to his cousin Jeet but he did not intervene or tried to save his cousin. Admittedly the accused persons had not said any thing to PW-7 i.e. they had neither given beatings to PW7 nor extended any threat. Ajeet had also not raised any State Vs. Prateek @ Bholu SC No.220/17 :: 68 ::
alarm while his cousin was beaten when the accused fired on his cousin and when his cousin fled away and accused persons were chasing him and again gave beatings to him. Keeping in view all these facts in my opinion PW-7 is not reliable and introduced witness.
108. In the present case prosecution also intend to prove and establish the following circumstances in order to prove the guilty of the accused persons.
Fleeing on motorcycles from the scene of crime. Recovery of weapon of offence.
109. I taken up the circumstances one by one. Fleeing on motorcycles from the scene of crime.
110. Ld. APP submitted that in this case there are three witnesses i.e. PW-10 Jogender, PW-11 Chandan and PW-
12. Pawan. All the three witnesses on 25.12.2016 had gone to A-Block Market Jahangir Puri for purchasing liquor. It was about 7:30 pm. They were near the ATM of HDFC Bank situated near Country made liquor shop. They heard the noise of two fire shots. The people started running, they also noticed Accused Bholu, Chhotu and Ajay going on motorcycle No.0967 and on another motorcycle No.7849 accused Sandeep, Saddaq and Jaipal fled away. The motorcycle No.7849 was infact found to be having registration No. DL 14SF 7849 which was later on recovered State Vs. Prateek @ Bholu SC No.220/17 :: 69 ::
from the possession of Saddaq and motorcycle DL 8S AT 0967 was recovered from the possession of Bholu and Chhotu on the same day i.e. 25.12.2016. All the three witnesses have identified the motorcycle No. DL 8S AT 0967 as Ex.PW7/Article-1 and motorcycle No. DL 14SF 7849 as Ex.PW10/Article-1. Ld. Counsel submitted that all these three witnesses stated that both the motorcycles went in opposite directions after coming out of the street. They have also identified all the accused persons who were on motorcycles. They stated that they noted down the numbers as they suspected that they might have committed some offence as they were fleeing on motorcycles at fast speed immediately after they heard the noise of firing of two shots. Ld. APP submitted that all the three witnesses have stood through the test of cross-examination they are reliable and the conduct of the accused persons immediately after the offence is also relevant u/s 8 of the Evidence Act. This circumstance stands established that all the accused were seen fleeing from the spot on two motorcycles which also points towards their guilt.
111. Ld. Defence counsel submitted that PW-10, PW-11 and PW-12 are interested witnesses. Even otherwise the three have contradicted each other to such an extent that they cannot be believed. According to PW-10 after hearing the shots and seeing the accused persons fleeing on two State Vs. Prateek @ Bholu SC No.220/17 :: 70 ::
motorcycles he along with PW-11 and PW-12 ran towards their houses. While they were running towards their houses he saw Ajeet along with his family members and other persons running towards the scene of crime. They all i.e. PW-10, PW-11 and PW-12 reached the scene of crime but Jeet was not there from there Ajeet ran towards BJRM Hospital and they followed him. Whereas according to PW- 11 only he did not go back to the spot but went to his house.
After sometime he came in the street where he saw Ajeet but he did not talk with him. So far as PW-12 is concerned he stated that while they were running back he saw his brother Ajeet and other family members running towards the scene of crime he was told that Jeet had been shot. They reached near country made liquor shop. He saw Jeet Kumar lying in injured condition having two fire arms wound and bleeding. They removed injured Jeet to the hospital where he was declared dead. He also stated that there were no shirt or jacket on the body of Jeet. ld. Counsel submitted that PW-12 had not only contradicted PW-10 that when he reached there Jeet was not found but also PW-7 who also stated that Jeet was not found at that place. This itself creates doubt whether they were present there and noticed the accused persons fleeing on motorcycle. Ld. Counsel submitted that according to PW-10 he had noted down the numbers of the State Vs. Prateek @ Bholu SC No.220/17 :: 71 ::
motorcycles on his hand but he in the later part of his cross- examination stated that he had not noted down the number on his hand but on the paper in the night after reaching home. So far as PW-11 is concerned he stated that he wrote down the number after taking the pen from a passerby and at that time PW-10 and PW-12 were also with him. But PW-10 During cross-examination stated that he does not know if PW-11 and PW-12 had also noted down the number of motorcycles or not. They have also not told anything to Ajeet or to the police. Though PW-10 and PW12 met the police. PW-10 is not aware if PW-11 and PW-12 also came back on the spot. PW-12 is also not aware if PW-10 and PW-11 came on the spot. PW-12 stated that there were no clothes i.e. the shirt, jacket and Baniyan on the person of Jeet when he was lying in injured condition and was also bleeding but according to the record the clothes of deceased were seized in BJRM Hospital i.e. the blue jeans and the pant and under wear. The shirt and white Baniyan of deceased was seized in Fortis Hospital Shalimar Bagh which was seized by the IO. This circumstance itself falsifies the statement of PW-12 that no shirt, Baniyan or Jacket was found on person of Jeet when he was found lying in injured condition. PW-12 also stated that Jeet was bleeding but no blood was found on the spot. PW-12 also stated that he and Ajeet removed the injured to State Vs. Prateek @ Bholu SC No.220/17 :: 72 ::
the hospital which is again not supported by the MLC as in the MLC it is mentioned that the injured was brought by Surya. Ld. Defence counsel submitted that keeping in view all these contradictions in the testimony of PW-10, PW-11 and PW-12 coupled with the fact they despite seeing the accused persons fleeing did not disclose this fact to anybody and even not to the police it is clear that they were not there and introduced later on.
112. After hearing the arguments and going through the record I found that prosecution rely upon the testimony of PW-10, PW-11 and PW-12 that they had seen the accused persons fleeing from the scene of crime after committing the offence. Defence has alleged that all the three witnesses are interested witnesses but I do not find any such evidence on the record. Merely because a witness is related or known to the deceased does not make him an interested witness. It was for the defence to show that witnesses are interested which the defence has not been able to bring on record.
113. So far as these three witnesses are concerned they alleges that they had gone there to purchase liquor. They heard the sound of two fire shots. They also noticed the accused persons fleeing on two motorcycles Ex.PW7/Article-
and Ex.PW10/Article1. Thereafter, they all started coming back to their houses. On the way they saw Ajeet and other State Vs. Prateek @ Bholu SC No.220/17 :: 73 ::
family members going towards the scene of crime. PW-10 stated that from the persons going towards the scene of crime he came to know that Jeet had been shot at. According to PW-10 he along with PW-11 and PW-12 reached the scene of crime. PW-11 stated that even after coming to know that Jeet had been shot at he went home. When he came at about 9:00 he saw Ajeet in the street but he did not talk with him or told him that he had witnessed the accused persons fleeing. According to PW12 Ajeet told him that Jeet had been fired at and thereafter, he along with them reached the spot where he found Jeet having two fire shot injuries and bleeding. There was no Baniyan, shirt or jacket on the body of Jeet. It is also important to note that according to PW-12 he does not know if PW-10 and PW-11 also went along with him to the scene of crime. PW-10 and PW-12 met the police also but they did not tell police anything that they had seen the accused persons fleeing on two motorcycles. PW-12 had not only contradicted PW-10 and PW-11 but he also contradicted PW-7 when he stated that Jeet was found lying on the spot having injuries. PW-12 has also contradicted the circumstance of recovery of clothes of deceased which were received from Fortis Hospital by the IO. But according to PW- 12 there was no Baniyan, Shirt or Jacket on the body of deceased. According to PW-11 while they were coming back State Vs. Prateek @ Bholu SC No.220/17 :: 74 ::
he noted down the number of the motorcycle on his hand by taking pen from a passerby and at that time PW10 and PW- 12 were also with him. PW-10 deposed that he does not know if PW-11 and PW-12 had also noted down the registration numbers of the motorcycles. PW-10 also stated that he noted down the numbers of the motorcycles on his hand but later on in the cross-examination by the defence he stated that he noted down the numbers on the paper at night after reaching home and not on his hand.
114. Keeping in view the above discussion and contradictions in the testimonies of PW-10, PW-11 and PW- 12 in my opinion this circumstance of seeing the accused persons fleeing from the scene of crime immediately after the commission of offence is not established.
Circumstance of recovery of weapon of offence.
115. Ld. APP submitted that on 29.12.2016 accused Saddaq Hussain was arrested from near Haider Pur canal. Prosecution in order to prove his arrest examined PW-12 Pawan, ASI Suresh PW-19, Ct. Vinod PW-21 and Inspector Dhananjay Gupta PW-30. All of them fully supported and corroborated each other about the place of arrest and manner of arrest. They all stated that after getting secret information IO along with the team reached Haider Pur Canal. ASI Suresh PW-19 from special staff was also having State Vs. Prateek @ Bholu SC No.220/17 :: 75 ::
the same secret information and reached there along with the informer. Accused Saddaq Hussain came on motorcycle No. DL 14 SF 7849. He parked the motorcycle in the bushes and started waiting for someone. When accused Saddaq started moving he was apprehended by PW-13 and was arrested. Ld. APP submitted that all the four witnesses have fully supported and corroborated each other. Police custody remand of accused was taken. In pursuance to the disclosure statement accused got recovered the pistol with magazine from his house No.3-44, Kichdipur, Shiva Market, Block No.3, PS: Kalyan Puri from the box of bed. Prosecution in order to prove this recovery has examined ASI Suresh Kumar as PW-19, HC Kamlesh as PW-20 and Inspector Dhananjay Gupta as PW-30. The pistol and magazine have been identified as Ex.PW19/Article-1. No witness could be joined at the time of recovery as despite efforts none agreed to join. Ld. APP submitted that it is well settled law that the testimony of police witnesses cannot be discarded merely because public witnesses were not joined. Ld. APP in support of his arguments relied upon the Judgments cited as Karamjit Singh v. State (Delhi Administration), AIR 2003 SC 1311 wherein the Supreme Court has held that:
"8. Shri Simla, learned senior counsel for the appellant, has vehemently urged that all the witnesses of recovery examined by the State Vs. Prateek @ Bholu SC No.220/17 :: 76 ::
prosecution are police personnel and in absence of any public witness, their testimony alone should not be held sufficient for sustaining the conviction of the appellant. In our opinion the contention raised is too broadly stated and cannot be accepted. The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depends upon the facts and circumstances of each case and no principle of general application can be laid down. PW11 Pratap Singh has clearly stated in the opening part of his examination-in-chief that ACP Shakti Singh asked some public witnesses to accompany them but they showed their unwillingness. PW10 Rajinder Prasad, SI has given similar statement and has deposed that despite their best efforts no one from public was willing to join the raiding party due to the fear of the terrorist. Exactly similar statement has been given by PW9 R.D. Pandey. We should not forget that the incident took place in November 1990, when terrorism was at its peak in Punjab and neighbouring areas. The ground realities cannot be lost sight of that even in normal circumstances members of public are very reluctant to accompany a police party which is going to arrest a criminal or is embarking upon search of some premises. At the time when the terrorism was at its peak, it is quite natural for members of public to have avoided getting involved in a police operation for search or arrest of a person having links with terrorists. It is noteworthy that during the course of the cross-examination of the witness the defence did not even give any suggestion as to why they were falsely deposing against the appellant. There is absolutely no material or evidence on record to show that the prosecution witnesses had any reason to State Vs. Prateek @ Bholu SC No.220/17 :: 77 ::
falsely implicate the appellant who was none else but a colleague of theirs being a member of the same police force. Therefore, the contention raised by Shri Sinha that on account of non-examination of a public witness, the testimony of the prosecution witnesses who are police personnel, should not be relied upon has hardly any substance and cannot be accepted."
116. Ld. Addl. PP also relied upon the judgment cited as Kashmiri Lal v. State of Haryana, (2013) 6 SCC 595 wherein the Supreme Court has held that:
"9. As far as first submission is concerned, it is evincible from the evidence on record that the police officials had requested the people present in the 'dhaba; to be witnesses, but they declined to cooperate and, in fact, did not make themselves available. That apart, there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to reliable and trustworthy, the court can definitely act upon the same. If in the course of scrutinizing the evidence the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle of quality of the evidence weighs over the quantity of evidence. These aspects have been highlighted in State of U.P. v. Anil Singh, 1990(3) R.C.R (Criminal) 585 : 1988 Supp SCC 686, State, Govt. of NCT of Delhi v.
Sunil and another, 2001(1) R.C.R.(Criminal) 56 : 2001(1) SCC 652 and Ramjee Rai and others v. State of Bihar, 2006(4) R.C.R. (Criminal) 289 : 2006(13) SCC 229.
Appreciating the evidence on record on the unveil of the aforesaid principles, we do not perceive any acceptable reason to discard the State Vs. Prateek @ Bholu SC No.220/17 :: 78 ::
testimony of the official witnesses which is otherwise reliable and absolutely trustworthy."
117. Ld. APP has also relied upon the Judgment cited as Rahish @ Ganja v State, 2017 (4) JCC 2619 wherein the High Court of Delhi has held that:
"24. The mere fact of non-joining of a public witness, would not ipso facto make the evidence of the police witnesses unreliable or untrustworthy but the fact that no public person joined cannot vitiate the case of prosecution."
118. Ld. APP submitted that this recovery of the pistol and magazine is established by the prosecution. Accused Sandeep @ Baccha also pointed out this house as the place where he along with Saddaq concealed the weapon of offence and the site plan of the same was prepared which is Ex.PW28/E. Ld. APP submitted that during the post mortem two bullets were found in the body as mentioned in the post mortem report Ex.PW4/A. Those bullets were seized by the police vide memo Ex.PX11. The bullets recovered from the body along with the pistol and magazine recovered at the instance of accused Saddaq were sent to FSL for analysis. The ballistic expert report has been proved on record as Ex.PW25/A. According to this report the pistol recovered i.e. Ex.PW19/Article1 was in working order. It is also opined that the bullets found in the body which are identified as Ex.PW25/Article-1 and Ex.PW25/Article-2 were fired from the pistol Ex.PW19/Article1 got recovered by accused Saddaq State Vs. Prateek @ Bholu SC No.220/17 :: 79 ::
Hussain. Ld. APP submitted that the recovery of the pistol is proved and the ballistic expert report further establishes that it is the same weapon with which the offence was committed as the bullets found in the body were fired through this firearm only. Ld. APP submitted that the incident is of the night of 25.12.2016 and the recovery is of 31.12.2016 there is not much delay in the recovery and hence the presumption arises that it was the accused only who used this weapon and i.e. why found in possession. As accused Sandeep also pointed out the same place therefore that discloses his special knowledge of the place where the weapon of offence was concealed. Ld. APP submitted that keeping in view the testimonies of all these witnesses prosecution has successfully proved and establish this circumstance which point towards the guilt of accused Saddaq Hussain and Sandeep @ Baccha.
119. Ld. Defence counsel submitted that accused Saddaq Hussain was arrested from the place as deposed. No independent witness was joined despite the fact that the independent witnesses were available. So far as PW-12 Pawan is concerned he is an interested witness. ld. Counsel submitted that the recovery of the weapon of offence is from residential area as per the prosecution story but no neighbour or public person had been joined despite State Vs. Prateek @ Bholu SC No.220/17 :: 80 ::
availability. This fact itself creates doubt regarding the truthfulness of story of prosecution. Ld. Defence Counsel further submitted that as per the prosecution case the weapon was with Sandeep @ Bachha and not with the accused Saddaq. But the prosecution in order to solve the case planted the weapon on the accused Saddaq. Ld. Counsel submitted that so far as accused Sandeep @ Baccha is concerned there is no recovery from him or at his instance. Prosecution has alleged that he had concealed this weapon along with Saddaq but there is no recovery in pursuance to this disclosure. Recovery had already been effected much before the arrest of Sandeep. The place of recovery was also known to the police before the pointing out by the accused. Therefore, it does not link accused Sandeep with the commission of offence.
120. Ld. Counsel submitted that so far as opinion of expert is concerned that is only an opinion and does not point towards the guilt of accused. Ld. Counsel in support of his arguments relied upon the Judgment cited as Abdulwahab Abdulmajid Baloch v. State of Gujarat, (2009) 11 SCC 625 wherein it has been held that:
"24. Be that as it may, we feel that only because the recovery of a weapon was made and the Expert opined that the bullet found in the body of the deceased was fired from one of the weapons seized, by itself cannot be the sole State Vs. Prateek @ Bholu SC No.220/17 :: 81 ::
premise on which a judgment of conviction under Section 302 could be recorded. There was no direct evidence. Accused, as noticed herein before, was charged not only under Section 302 read with Section 34 of the Indian Penal Code but also under Section 302 read with Section 120B thereof. The murder of the deceased was said to have been committed by all the accused persons upon hatching a conspiracy. This charge has not been proved. The learned trial judge itself opined that the recovery having been made after nine months, the weapon might have changed in many hands. In absence of any other evidence connecting the accused with commission of crime of murder of the deceased, in our opinion, it is not possible to hold that the appellant on the basis of such slander evidence could have been found guilty for commission of offence punishable under Section 302 of the Indian Penal Code."
121. Ld. Counsel submitted that in view of this Judgment merely on the basis of recovery of weapon of offence at the instance of accused does not prove him guilty. The onus was upon prosecution to prove and establish this fact which the prosecution has failed. It is prayed that benefit of the same be given to accused persons and they be acquitted.
122. After hearing the arguments and going through the evidence I found that for proving the recovery of weapon of offence prosecution has examined three witnesses i.e. PW- 19 ASI Suresh, PW-20 HC Kamlesh and PW-30 Inspector Dhananjay. All the three witnesses have fully supported and corroborated each other. No doubt the public witness not joined but the witness specifically stated that efforts were State Vs. Prateek @ Bholu SC No.220/17 :: 82 ::
made to join the investigation but none agreed. Keeping in view this fact in my opinion the testimony of police witnesses cannot be discarded simply on the ground that no public person was joined.
123. The recovery witnesses have fully supported and corroborated each other. They have also stood through the test of cross-examination. There is nothing on record that they have any reason to depose falsely against accused persons. The witnesses are trustworthy and reliable.
Therefore, in my opinion so far as recovery of weapon at the instance of Saddaq Hussain is concerned that is established. However, the same cannot be attributed to Sandeep @ Pankaj @ Baccha as the recovery had already been effected that also much before the arrest of accused Sandeep @ Baccha. As per the ballistic expert report Ex.PW25/A the bullets recovered at the time of post mortem of dead body which were seized vide memo Ex.PX11 were fired from the pistol Ex.PW19/Article-1 got recovered by accused Saddaq Hussain. So far as the Judgment relied upon by the defence is concerned that is not applicable in the facts and circumstance of this case as in this case the recovery of the pistol is only after six days of commission of offence. Whereas in the Judgment relied upon by the defence the recovery was after 9 months of commission of offence State Vs. Prateek @ Bholu SC No.220/17 :: 83 ::
whereby court observed that during this period the weapon might have changed the hands. Under the circumstances in my opinion this Judgment is of no help to the defence. Keeping in view the above discussion in my opinion prosecution has been able to prove the recovery of weapon of offence at the instance of accused Saddaq Hussain and that the bullet found in the dead body was also fired through this weapon. This circumstance points towards the guilt of the accused Saddaq Hussain and at the same time is also in consistent with any hypothesis of innocence of accused.
124. It is well settled principle of law that a person can be held guilty on the basis of circumstances also. The requirement of law is that circumstances shall be proved and established. The circumstance so proved and established shall form a complete chain. The circumstances so proved and established shall point towards the guilt of accused and shall also be in consistent with any hypothesis of innocence of accused. In the present case only one circumstance is proved and established i.e. the Recovery of weapon of offence at the instance of Saddaq Hussain. As per the report Ex.PW25/A the bullets found in the dead body were fired through the pistol Ex.PW19/Article-1 got recovered at the instance of accused Saddaq Hussain on 31.12.2016 whereas the offence was committed on 25.12.2016 around State Vs. Prateek @ Bholu SC No.220/17 :: 84 ::
7:30 pm. In my opinion the solitary circumstance itself is sufficient to hold the accused Saddaq Hussain guilty.
125. Keeping in view the above discussion accused Saddaq Hussain is held guilty and convicted u/s 302 IPC. All other accused are acquitted of the charge. The accused Prateek, Prashant, Kamal and Sandeep be released on furnishing Personal bond of Rs.30,000/- with one surety of like amount u/s 437A Cr.PC.
126. Let convict Saddaq Hussain be heard separately on the quantum of sentence.Digitally signed
VIRENDER by VIRENDER
KUMAR KUMAR BANSAL
Date: 2018.02.13
BANSAL
Announced in the open court 15:22:16 +0530
today on 13.02.2018 (VIRENDER KUMAR BANSAL)
ASJ/Pilot Court/North District
Rohini Courts/New Delhi.
State Vs. Prateek @ Bholu SC No.220/17 :: 85 ::