Delhi District Court
State vs . Parveen Rana @ Montu Rana on 21 October, 2019
1
IN THE COURT OF Ms. NEELAM SINGH
ASJ03 & SPECIAL JUDGE (COMPANIES ACT)
DWARKA DISTRICT COURTS, DELHI.
In the matter of:
State Vs. Parveen Rana @ Montu Rana
S/o Sh. Krishan Rana,
R/o Flat No.661, Plot No.35,
Sector6, Skylark Apartment,
Dwarka, New Delhi.
● CNR No. : DLSW010002192013
● Registration No. of the Case : SC/440873/2016
● Court Institution Number : SC/3/2014
● FIR Number : 309/2013
● PS : Dwarka South
● Under Section : 302 IPC & 27 Arms Act
● Date of Institution : 02.01.2014
● Case committed to the Court of
Sessions for : 16.01.2014
● Case reserved for Judgment on : 19.10.2019
● Judgment announced on : 21.10.2019
● Final Order : Accused is acquitted of the
charges under Section 302
IPC & 27 Arms Act.
Page No. 1 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
2
JUDGMENT
1. Adumbrated in brief, the case of the prosecution is that a PCR Call was received from a foreigner on the intervening night of 30/31.08.2013 regarding a murder near House No. 876, near ICICI Bank, Sector 7, Ramphal Chowk, Dwarka, New Delhi. Inspector Yogesh Kumar reached the spot where it was found that a dead body of a foreigner was lying inside a red coloured Ford Ikon car having registration No. DL 3CAA 6963. The legs of the deceased were inside the car and the upper part of his body was lying outside the car, on the front passenger side of the vehicle. There were gunshot wounds near the shoulder of the body and blood was oozing out of the wounds. The police registered an FIR No.309 of 2013 at P.S. Dwarka South under Section 302 of the Indian Penal Code, 1860 (hereinafter, referred as IPC) on 31.08.2013 and entered into investigation.
2. During investigation, it was revealed that the deceased was one Twende Mbuyi Yann (hereinafter, referred as the deceased), who was a citizen of the Democratic Republic of Congo. The version of the prosecution is that on the night of 31.08.2013, the deceased had gone to meet his friend, Ms. Passy Lokema Ngole at H. No. 876, Ramphal Chowk, Sector 7, Dwarka. He parked the car near the Page No. 2 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
3 house and she was with him inside the car, where they were talking to each other. In the meanwhile, one person namely Rachidi Mubi Miomo, who was the nephew of Passy Lokema, passed them and greeted them. Suddenly, a car came at the cross road and a boy approached them. After talking for a bit with the deceased, the boy shot the deceased with a gun and then ran away. The friend, Ms. Passy Lokema, got scared and ran to her house where she told her nephew about the incident, who then called the police. FIR No. 309/2013 under Section 302 IPC was registered at PS Dwarka South.
During investigation, efforts were made to trace the accused. The crime team, photographer and finger print expert were called to aid in the investigation. Nearby CCTV cameras were checked and on analysis of the same, one person was seen with a weapon in his hand running away in one of the cameras. The snapshots from the footage were made and this person was identified as the culprit by Ms. Passy Lokema as the person who had shot the deceased. This person was later identified as Parveen Rana, the present accused. The accused had absconded after the incident and a Look Out Circular (LOC) was issued in his name. He was later nabbed while trying to leave the country at the Kolkata Airport. A licensed revolver belonging to the accused was also recovered on the basis of his disclosure statement. In the course of investigation, Section 201 Page No. 3 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
4 IPC and Section 27 of the Arms Act, 1959 (hereinafter, referred as Arms Act) was added by the police. Certain samples were also sent to the Forensic Science Laboratory (hereinafter, referred as F.S.L.) for examination and opinion. The police also filed an application for conducting Test Identification Parade (hereinafter, referred as TIP) of the accused during the course of investigation. However, the accused refused to participate in the TIP proceedings conducted on 08.10.2013 on the ground that the police officials have shown the accused to the witness. On culmination of the investigation, a final report under Section 173(2) of the CrPC was filed against the accused under Sections 302, 201 IPC and Section 27 of the Arms Act by the police in the court of Ld. Metropolitan Magistrate.
COMMITTAL AND CHARGE:
3. On being satisfied of existence of a prima facie case, the Magistrate took cognizance of the offence and after supplying copies of the final report free of cost as per mandate of Section 207 CrPC, committed the case under Section 209 CrPC to this Court vide order dated 10.01.2014, as the offences were exclusively triable by the Court of Sessions.
4. In pursuance thereof, the accused appeared before this Court and Page No. 4 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
5 was later granted bail. After perusal of the record and after hearing the parties, charges were framed by this Court under Sections 302 IPC and Section 27 of the Arms Act vide order dated 28.07.2014. After reading out the charge to the accused, he was asked if he wishes to plead guilty or not. The accused pleaded not guilty and claimed trial.
5. To bring home the guilt of the accused, the prosecution has produced 35 witnesses in this case and has also relied on various documentary evidence to prove its case and has thereafter closed its evidence. After the same, the statement of the accused was recorded without oath under Section 313 CrPC on 21.02.2019. All the incriminating evidence appearing against the accused was put to him in simple questions and his answers to the same were recorded. The accused replied no knowledge to most of the questions. He agreed that he had a licensed gun, resided at the Skylark Apartments on rent. He stated that he was produced before the Magistrate in unmuffled face and was shown to the public at large and therefore had refused to participate in the TIP. He further stated that he was forced to sign certain blank documents at the Police Station. No eye witness had identified him and claimed that he is innocent and the present case is false. The accused stated that he does not wish to adduce defense evidence.
Page No. 5 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
6
6. Thereafter, the case was posted for final arguments. I have heard the arguments of Sh. P.N. Singh, ld. APP for the State and Sh. R.S. Malik, Advocate, ld. counsel for the accused at length. I have also carefully gone through the record of the case and given my thoughtful consideration to the material on record.
SUMMARY OF PROSECUTION EVIDENCE :
7. The burden of proving the case beyond reasonable doubt lay on the prosecution. The star witness of the prosecution was PW13, Passy Lokema Ngloe who was the eye witness to the incident. She took the stand and deposed that she used to reside in Sector 7, Dwarka in the year 2013. On 31.08.2013, the deceased, whom she knew since the past 56 months, had called on her telephone to come down and meet him. The deceased was in a car, the number of which she did not remember. The deceased and the witness were talking in the car when another car came from the front side and from it three persons alighted. One person fired at the deceased and all the three persons ran away. The witness, who was scared, ran from the car to her house. She met PW 4, Rachidi, who was related to her and informed him about the incident. He then called the police. Therefore, the witness supported the prosecution version of the occurrence of murder. However, she did not identify the accused person on oath.
Page No. 6 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
7 She stated that none of the persons who had fired at the deceased were present in Court. At this moment, the accused was also present in court.
8. As such, permission was sought by the Ld. Addl. PP to cross examine the witness, which was allowed. During her cross examination by the Ld. Addl. PP, she admitted that when she was in the car, PW 4, her nephew had passed them and greeted them. She further stated that it was wrong that one person came from the car that was stopped under a street light and then one boy had come towards the side of the deceased and talked to him. When the deceased had said that talk in English and not in Hindi, the boy suddenly pulled out his gun and gave 23 gunshots to the deceased. She further stated that the police had never called her to the Anupam Studio to show the photograph of the accused so as to identify him and denied making any statement to the police identifying the accused as the person who had shot the deceased. Further, she stated that she did not come to court on 10.10.2013 and identified the accused as the person who had shot at the deceased. Therefore, the witness turned hostile and resiled from the statement given before the police, when confronted with the same.
9. PW 4, Rachidi Mubi Miomo, is the nephew of the eye witness PW Page No. 7 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
8 13 and has stated on oath that at the date of the incident, i.e., 31.08.2013, he noticed a red coloured car around midnight in which his aunt Passy Lokema and the deceased were sitting and talking. He wished them and went to the house at the third floor. After around 15 minutes, he had heard three gun shots and he came out of the balcony of the house, from where he could see PW 13 running upstairs. She came and narrated the incident to him, after which he called his friend Richie Lontulungu for the police number and then called 100. It has been extracted from the witness during the cross examination that he did not state the fact of going out of the balcony and hearing 3 gunshots in his statement made to the police. Further, the statement under Section 161 CrPC before the police also did not mention the fact that he had seen body of the deceased in the left side of front portion of the car or the fact that he had called his friend before calling the police.
10. PW 35 is Inspector Yogesh Kumar, who is the Investigation Officer (hereinafter, I.O.) in this case. He deposed on oath that he was posted at PS Dwarka South on 31.08.2013. At around 2:20 am, a DD entry Ex. P35/A was given to him. He reached the spot and saw a maroon Ford Ikon car bearing registration no. DL 3CAA 6963. The front left door of the car was open and the deceased was lying half in the car and the outer half was outside the car. He called the crime Page No. 8 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
9 team, finger print expert and the photographer. He further lifted samples from the spot. One set of chance prints was also taken from the spot. Statements of the eye witness PW 13 and her nephew PW 4 were also recorded and rukka Ex. PW35/B was prepared and sent to the Police Station for registration of FIR. He also prepared the rough site plan Ex. PW30/G, seized articles lying the car vide seizure memo Ex. PW30/A, seized the car vide seizure memo Ex. PW30/D. Further, other articles were also seized like blood merged soil vide Ex. PW30/B, earth control Ex. PW30/C. He recorded the statements of PW 13 and PW 4 after calling a translator (PW 27) from the Congo Embassy.
11. He further deposed that during investigation, it was found that CCTV footage of the camera installed at the outer wall of H. No. 1013, Ramphal Chowk, had captured the accused with a gun. He went to the location of the camera and examined the footage. Thereafter, he called hardware engineer Rajeev Sood (PW 7), owner of RVS Computers, Mahavir Enclave by sending one Ct. Ranbir, who had got Rajeev Sood on the spot. The engineer told him that the mirror imaging of the Hard Disk and CD of the CCTV footage cannot be done at the spot so the material was sent to the lab with him.
Page No. 9 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
10
12. He further stated that HC Kalu Ram (PW 30) and Rajeev Sood (PW
7) reached Anupam Studio, Sector 7, Ramphal Chowk, where the he came along with eye witness PW 13 Passy Lokema, her nephew PW 4 Rachidi and translator Emily Tshbola PW 27. Thereafter, snap shots were developed by Kamal Chopra, PW 11 and from these snapshots, eye witness PW 13 positively identified the person in the snapshot as the same who had killed the deceased. The snap shot was seized vide memo Ex. PW11/A alongwith CD of CCTV footage. The photographs of the accused were distributed amongst police officials and thereafter he was identified as the present accused. The video recorded installed at House no. 1013, Ramphal Chowk, Sector 7 was also seized vide memo Ex. PW7/A.
13. In order to nab the accused, the witness went to his house at Skylark Society, Sector 6, Dwarka where he met the mother and wife of the accused who stated that he was in the construction business and had a licensed pistol. However, the accused was absconding. Thereafter, LOC was issued in the name of the accused and Hue and Cry notice Ex. PW35/1 dated 24.09.2013 was issued. The accused was then apprehended at the Netaji Subash Chander Bose International Airport (hereinafter, Kolkata Airport) by the authorities there on basis of the LOC. The accused was then arrested on 30.09.2013 by the witness vide arrest memo Ex. PW32/A and transit remand Ex.
Page No. 10 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
11 PW35/2 was obtained to bring back the accused to Delhi. The medical examination of the accused was got done in a muffled face and his disclosure statement Ex. PW35/3 was recorded, on the basis of which a licensed weapon, i.e. revolver was recovered from the residence of the accused. The pointing out memo is Ex. PW33/A, search memo Ex. PW33/C, Seizure memo of weapon Ex. PW33/D, sketch of weapon Ex. PW33/B and site plan of place of recovery Ex. PW35/4.
14. During investigation, the witness PW 35 also requested for conducting the Test Identification Parade (hereinafter, TIP) of the accused by moving an application Ex. PW 35/5. However, the accused refused to participate in the TIP.
15. During his cross examination, the witness admitted that the rukka was sent after 45 hours of his reaching at the spot. Further, he did not seize any ownership proof of the car inside which the deceased was found and neither any public witness was joined for its seizure. He also admitted that in the site plan Ex. PW30/G, no position of eye witness or the source of light was shown. The witnesses admitted to the fact that the eye witness, Passy Lokema PW 13 had told him that she had seen three persons coming from the car, out of which one person fired at the deceased. Further, the passport of accused was Page No. 11 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
12 seized by the witness and he admitted going through the same but was not aware if the accused had previously gone abroad.
16. With regard to the CCTV cameras, it was elicited from the witness that the house where the CCTV camera was installed was not shown in the site plan and even no reference was given of the CCTV camera or the house in the rukka or the FIR. It is admitted that no FSL team was called to the check the CCTV camera.
17. The prosecution has also called PW 24, Inspector Sunil Godiyal to the stand. He has stated on oath that he was part of the three teams constituted to nab the accused after the incident. He alongwith his team members reached House No. 1013, ABlock, Sector 7, Dwarka where they noticed a CCTV camera installed outside the house. On examination the footage of the said camera, a person was noticed running and who had a weapon in his right hand. The distance between the place of incident and the place where CCTV camera was installed was around 50 meters. He then informed the I.O. of the case who in turn arrived at the spot and called the computer engineer to analyse the footage. The defence has elicited from this witness in the cross examination that he does not remember the house where the incident had taken place, but it was at a road between houses on both sides in Block A, Sector 7, Dwarka.
Page No. 12 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
13
18. It has been further admitted by PW 24 in his cross examination that he does not recall who was the owner of House No. 1013, Sector 7, Dwarka. No written permission was taken from the owner to inspect the CCTV neither was any public person joined in the investigation. He stated that verbal permission was taken from the owner. He further admitted that the ownership record of neither the house nor the CCTV camera was seized and he was not present when the camera was seized by the I.O. (PW 35). Also, the computer engineer, PW 7 did not come in his presence to inspect the CCTV footage.
19. PW 9 ASI Shish Ram was the first responder on the site. He reached the spot on the date of occurrence at around 2:25 am and witnessed a person lying dead in a red coloured Ford Ikon car in such a manner that his torso was on the ground and his legs were in the car. A gun shot injury with blood oozing out was also seen. The engine of the car was hot. In his cross examination, he has admitted that he had conveyed to the PCR that no blood was coming out of the body and it seemed the offence was committed some place else and then the body was brought to the spot. He further admitted that no eye witnesses were present when he reached the spot. Further, there were many houses near the site where the offence took place.
20. PW 30 is HC Kalu Ram, who stated that he was on emergency duty Page No. 13 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
14 on 31.08.2013 and on receipt of information, he alongwith other officials reached Flat No. 876, Block A, Ramphal Chowk, Sector 7, Dwarka. All the samples were collected during investigation from the spot in his presence. He further stated that there was a ladies boutique shop opposite the site and the police saw CCTV footage of the camera installed at that place, which showed the accused running with a pistol in his hand. In his cross examination, it is admitted that no departure entry was made by the witness. He had seen some footprints near the car and had pointed out the same to the crime team. Further, no it has been admitted that no neighbours were called the join the investigation and neither any inquiry of ownership of the House no. 876, Sector 7 or the place where the CCTV was located was done. Also, the witness was confronted with his S. 161 CrPC statement where it was not recorded that the shop having the CCTV camera was located in front of the place of occurrence.
21. PW 1 is Dr. Komal Singh, Additional MS and HOD, Forensic Medicine, DDU Hospital, New Delhi. He had conducted the post mortem on the dead body of the deceased and his report is Ex. PW1/A. The conclusion of the report is that the death was caused due to injuries on vital organs of the body due to fire arm injuries. The blood on gauze piece, clothes of deceased, metallic bulet missles (two), DNA sample were taken and sealed with seal of DFMT, DDU Page No. 14 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
15 Hospital and handed over to the police. In his cross examination, he admitted that no abrasion, blackening of wound was found, which suggest that the firing was from a distance of more than 6 inches. He also admitted that on the clothes of the deceased, there was no tear, cut, hole, singing or charring corresponding to the injuries. It was also admitted that the injuries were possible by a pistol, shot gun, country made pistol but not by a gun. He admitted that he was not appointed by the Government as specialist/consultant in forensic medicine but was appointed head of the department.
22. PW 17, K.C. Varshney, Deputy Director, FSL, Rohini was also examined by the prosecution. He testified that a revolver of .32"
caliber bearing no. FG11601 alongwith one bullet and one metallic piece were examined by him. In his opinion, the revolver was in working condition and the test fire was concluded successfully. The firing pin of the revolver appeared to have been tampered with. The bullet corresponded to the bullet of .32 cartridge and had been discharged through a standard fire arm. However, he stated that the individual characteristics of rifling marks on the bullets were insufficient for comparison and hence opinion cannot be given if the bullets were discharged through the revolver or not. Apart from the above witnesses, other official witnesses have supported the prosecution version.
Page No. 15 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
16
23. With regard to the CCTV camera evidence, PW 12 Pardeep Kumar was examined, who turned hostile. He stated that his house is H. No. 1013, Sector 7, Dwarka but he did not install CCTV camera there. Neither did the police nor any computer engineer came there to check the footage and nor they took any hard disk from the system. He denied making any statement to the police in this regard. Another witness examined by the prosecution, PW 16, Prabhakar Mishra, turned hostile and resiled from his statement before the police wherein he had stated that he had installed the CCTV camera Auto Cop4 channel DVR with CCTV camera at H. No. 1013, A Block, Ramphal Chowk, Sector 7, Dwarka.
24. PW 7, Rajeev Sood, took the stand and stated that he is a computer engineer who runs a shop by the name of RVS Systems, Mahavir Enclave, Main Palam Dabri road. The police had come to him to examine a CCTV camera footage and had produced a hard disk. He prepared the mirror image and handed over the CD to the police. In his cross examination, he admitted that he had good relations with the I.O. Inspector Yogesh Kumar and the I.O. had brought the CD to him. He stated that he cannot say if the articles were already tampered with and further stated that he had signed on the document Ex. PW7/A (seizure memo of hard disk) on the asking of the I.O.
Page No. 16 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
17
25. PW 11, Kamal Chopra, was also brought to the stand by the prosecution and also turned hostile. He stated that he did work at Anupam Studio, Sector 7, Dwarka but it is wrong that HC Kalu Ram alongwith computer engineer had come to his studio where he developed one snapshot from the video of the CCTV camera and then printed 100 photographs of the same. He identified his signatures on the seizure memo Ex. PW11/A but stated that his signatures were taken on blank papers.
26. Apart from that, other witnesses have been examined by the prosecution who have supported the story of the prosecution. No defence evidence was led by the accused person.
APPRECIATION OF EVIDENCE :
27. In order to appreciate the evidence of the prosecution, the following are the points of determination before the Court, which are to be addressed :
(a) Whether the chain of circumstances is complete so as to make the accused guilty of the accused under Section 302 IPC beyond reasonable doubt by the prosecution?
(b) Whether the accused is guilty beyond reasonable doubt under Section 27 of the Arms Act?
Page No. 17 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
18 SECTION 302 IPC & SECTION 27 THE ARMS ACT, 1959:
28. The Ld. Addl. PP for the State has argued that the offence of murder has been proved beyond reasonable doubt. The eye witness has testified to the factum of murder and all the other incriminating evidence point towards the guilt of the accused. The offence of murder as an aggravated form of the offence of Culpable Homicide is defined under Section 300 IPC. The Hon'ble Supreme Court in the case reported as State Of Andhra Pradesh vs Rayavarapu Punnayya 1977 AIR 45 has laid down a three stage test to approach a case of murder. It has held, inter alia, as under : "From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not. amounting to murder,' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in S.
299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of S.300, Penal Code is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of murder' contained in S. 300."
Page No. 18 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
19
29. In the present case, it is borne out from the testimony of the medical witness PW 1 and the post mortem report Ex. PW1/A that the cause of the death was due to gunshot injuries on the vital organs of the body. The description of the injuries is as follows : "1. Gunshot entry wound of gunshot injury present on the outer surface of right arm at its middle part oval in shape 0.4cm x 03.cm margins inverted clot present over the base.
2. Gunshot exit would of middle part of right arm placed on the inner surface corresponding the injury no. 1 of size 0.4cm x 0.3cm oval in shape margin inverted and another entry wound at the mid part of axiliara of size 0.5cm x 0.2cm margins inverted.
3. Gunshot entry wound present over right iliac fossa with blackening around the oval wound size 2mm thickness 0.4cm x 0.3cm margins inverted clot present over the base.
4. Lacerations on the left side of iliac wrist on anterior site 2cm x 1cm in size clot present around.
5. Abrasion on the upper side of the right shoulder 2cm x 1cm."
30. After the process of the post mortem of the deceased was concluded by the doctors, a final opinion as to the cause of death was given. The opinion reads as under: "1. the cause of death is due to injuries to the vital organs of the body subsequent to the firearm injuries and these injuries were sufficient to cause death in the ordinary course of nature individually as well in combination.
Page No. 19 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
20
2. Manner of death is homicide"
Therefore, the conclusion is that the death of the deceased was caused by the gunshot injuries.
31. The offence of murder, as defined under Section 300 IPC, has four limbs. Under the first limb, the act by which murder is caused should be done with the intention of causing death. The occurrence in the present case is not disputed. PW 13, Passy Lokema, is the eye witness of the case and has deposed in her testimony that on 31.08.2013, she was with the deceased when he was shot by one person who then ran away with the other two persons. The presence of the eye witness PW 13 at the site of the incident is also corroborated by the testimony of her nephew, PW 4, who deposed that he has met the deceased and the eye witness, his aunty, shortly before the shooting. The shooting by a weapon on the vital organs of the body point towards the fact that the act of shooting was done with the intention of causing death. Although the eye witness resiled from her statements made to the police on certain aspects, as per Section 154 of the Indian Evidence Act, 1872, the party can rely on part of the testimony of the hostile witness to the extent it supports the version of the party calling the witness. The principle of false in uno, false in omnibus (false in part, false in whole) does not apply in Page No. 20 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
21 India. Reference may be made to the decision of the Hon'ble Apex Court in this regard in Mohan Lal vs. State of Punjab AIR 2013 SC 2408. Therefore, the evidence of occurrence as given by the eye witness can be relied upon.
32. However, the version of the prosecution fails at the stage of identity of the accused. The prosecution has produced only one eye witness to the crime, namely, Passy Lokema, PW 13. She deposed on oath that none of the three persons who had come down from their car to the car of the deceased were present in court during her testimony. Moreover, even the I.O. in his cross examination has admitted that he did not show the position and the place of the eye witness in the site plan Ex. PW30/G. During her cross examination, she was specifically showed the accused by pointing out in the court by the Ld. Addl. PP but the witness refused to identify him. Ex. PW11/A is the seizure memo wherein the snapshot in the CD was identified by PW 13 before the police and bears her signature. The witness denied that she had ever made such a statement before the police. There could be only two conclusions with respect to the statement. Either the eye witness did not identify the accused because she never saw him, or that she has been won over by the accused. No explanation has been brought forward by the prosecution in this regard.
Page No. 21 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
22
33. Another fact for which the prosecution has not led any explanation is that the eye witness in her testimony has stated that she had seen 3 people come down from the car, out of which one killed the deceased. This fact has also been admitted in cross examination by the I.O. that the witness had told him about 3 persons. However, no investigation with regard to the other two persons was carried out. Moreover, it is not the case of the prosecution that the finger prints lifted from the crime scene by PW 10 match those of the accused, which could establish his presence on the crime scene. Be that as it may, the court in such cases then has to look for other corroborations to convict the accused.
34. Men may lie, but the circumstances do not lie. Where direct evidence is not available, it is for the court to enquire if the circumstantial evidence available on file points towards the guilt of the accused. With regard to the identity of the accused, other evidence is to be looked to see if it is sufficient to prove his guilt.
CCTV FOOTAGE:
35. It is the case of the prosecution that after the incident, the CCTV camera in the vicinity of the place of occurrence was examined and it was found that a person was captured running with a gun in his Page No. 22 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
23 hand. The accused was thus identified by the eye witness and was eventually nabbed while trying to escape the country. However, the evidence led by the prosecution in support of this proposition lacks credibility and authenticity. The CCTV camera in question was discovered by PW 24, Inspector Sunil Godiyal. He stated on oath that the CCTV footage was collected from a camera installed on the outer wall of House No. 1013, Sector 7, Dwarka. However, during his cross examination, he even failed to point out the exact address of the house in front of which the incident had taken place. Further, he admitted that the CCTV camera was not seized by the I.O. in his presence and neither the computer engineer PW 7 examined the camera at the house in his presence. There was no seizure of ownership proof of either the house or the CCTV camera. No public witnesses were joined.
36. A separate version on this point has come from PW 30, HC Kalu Ram. He has stated that the CCTV camera was installed at a ladies boutique shop, which was opposite the place of occurrence. He admitted in his cross examination that he did not mention this fact in his statement under S. 161 CrPC to the police that the shop was opposite the place of incident. Fruther, no enquiry as to ownership of the ladies boutique shop was made by the investigating team. The witness identified his signatures on Ex. PW7/A, which is the seizure Page No. 23 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
24 memo of the Hard Disk of the CCTV camera. The memo states that the seizure was made of the cameras installed at House No. 1013, Sector 7, Dwarka. There is no mention about a ladies boutique store. Even otherwise, none of the other witnesses mention about the CCTV cameras being installed at a ladies boutique store.
37. The testimony of PW 12 Pardeep Kumar is totally contrary to the prosecution's case. He is the owner/resident of the House No. 1013, Sector 7, Dwarka. He resiled from his statement made to the police. In the cross examination by the Ld. Addl. PP, he denied that he had installed CCTV camera at his house for security purposes or that police had come to his residence to check the footage of any CCTV camera. Another witness of the prosecution on this point, PW 16 Prabhakar Mishra, turned hostile and denied that he had installed CCTV cameras at House No. 1013, Sector 7, Dwarka.
38. Apart from the above, there are major contradictions in the prosecution evidence on the point that the CCTV camera was examined by PW 7, Rajeev Sood, at the house. In his testimony, PW 7 has categorically stated that the police had produced the Hard Disk for examination to him. This is contrary to the testimony of the I.O. PW 35 Inspector Yogesh Kumar, who testified that PW 7 Rajeev Sood had come to the House No. 1013, Sector 7, Dwarka to examine Page No. 24 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
25 the footage with Ct. Ranbir and had thereafter took the objects to his lab. Further, it has been admitted by I.O. PW 35 that no team from FSL was called to examine the CCTV camera. No explanation has been given as to why this was not done. It is highly suspicious that the I.O. had called a private computer engineer for crime investigation rather than calling the qualified governmental agency. More suspicious is the fact that the I.O. was on friendly terms with the said computer engineer. The I.O. in his cross examination denied that PW 7 Rajeev Sood is known to him. However, PW 7 in his cross examination had admitted that he had good relations with the I.O. Inspector Yogesh Kumar.
39. It is the case of the prosecution that after the computer engineer PW 7 Rajeev Sood examined the CCTV footage and the accused was spotted in it, they took the CD to one Anupam Studio, Sector 7, Ramphal Chowk, Dwarka where the accused was identified and snapshots were printed. PW 11 Kamal Chopra was examined in this regard and he also did not support the prosecution story. He denied that the computer engineer alongwith HC Kalu Ram had came to the studio where he had developed a snapshot and printed 100 photographs for circulation in the police. He further stated that his signature on the seizure memo Ex. PW11/A were taken on a blank paper.
Page No. 25 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
26
40. The I.O. PW 35 Insp. Yogesh Kumar in his cross examination has admitted that in the rough site plan Ex. PW30/G, he did not show the location of the House No. 1013, Sector 7, Dwarka to show where the CCTV camera was installed. He further admitted that there is no mention about the CCTV camera in the rukka or the FIR. These three documents, namely the site plan, rukka and FIR are generally prepared at the initial stages, when the probability of fabrication is less. There is not even a whisper of the CCTV camera in all these documents.
41. It has been argued by the defence counsel that even otherwise, in absence of a certificate in compliance of Section 65B of the Indian Evidence Act, 1872, the CCTV camera evidence being electronic in nature, cannot be considered. He has placed heavy reliance on the case of Anvar P.V. vs. P.K. Basheer 2014 (10) SCC 473. Section 65A and 65B were inserted in the Evidence Act by way of amendment due to the enactment of the Information Technology Act, 2000. Section 65A provides that the contents of electronic records can be proved in accordance with Section 65B. Section 65B lays down the conditions to be followed for the admissibility of electronic records. It provides that any information stored in electronic form and then printed on paper, stored, copied on optical Page No. 26 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
27 media etc. can only be proved by adducing a certificate alongwith such record, certifying the manner in which the record was produced and providing the details of the device involved in the operation. A person occupying a responsible official position with respect to the device has to provide the certificate. With regard to the above provision, a 3 Judge Bench of the Hon'ble Apex Court has in the case of Anvar P.V. vs. P.K. Basheer 2014 (10) SCC 473 held, inter alia, as under : "13. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2)....
Concluding its position on the same, the court held that: "22. An electronic record by way of secondary evidence Page No. 27 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
28 shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
42. In the present case, a perusal of the case file reveals that the PW 7 Rajeev Sood took out the snapshots of the accused from the Hard Disk of the CCTV camera and then made a CD containing the same. A mirror image was made in a separate Hard Disks. Both the Hard Disks were seized vide seizure memo Ex. PW7/A (One Hard Disk was marked Ex. P10). Another seizure memo is Ex. PW11/A, vide which a photo developed from the CD was seized (The CD was marked as Ex. P11). No certificate under Section 65B of the Indian Evidence Act, 1872 has been produced by the prosecution. Although a hand written document purporting to be a certificate under Section 65B, Evidence Act and written by PW 7 is on file, however, the same was not proved by any witness of the prosecution and therefore cannot be considered. Further, even PW 11, who the prosecution claims printed 100 photographs from the CD, did not issue any certificate under Section 65B of the Indian Evidence Act, as admitted by the I.O. PW 35 in his cross examination. Therefore, in view of the law laid down in the above mentioned case, these evidences are inadmissible and cannot be considered.
Page No. 28 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
29
43. It is evident from the above discussion that the CCTV evidence sought to be adduced by the prosecution is suspect. It is inadmissible for non compliance of Section 65B of the Indian Evidence Act and even otherwise, the contradictions and discrepancies as elucidated above do not warrant placing any reliance on the same.
FORENSIC EVIDENCE:
44. It has been argued by the prosecution that the forensic evidence clearly ties the accused with the weapon used for the offence and his guilt is established beyond reasonable doubt. Ld. Addl. PP has argued that on the basis of the disclosure statement Ex. PW35/3, a revolver was recovered from the house of the accused. The recovered revolver of .32" calibre and the bullets recovered from the post mortem of the deceased by the doctor were sent to the FSL for analysis and opinion. On the basis of the same, it is contended that the weapon has tied the accused to the offence. On the other hand, ld. counsel for the accused has argued that in cases where the link is completed, the accused is entitled for benefit of doubt. He has placed reliance on the judgment reported as Puran Singh vs. State of Uttaranchal 2008 (1) JCC 253. PW 17, K.C. Varshney, Deputy Director, FSL Rohini entered the witness box and deposed in accordance with his opinion Ex. PW 17/A. A perusal of the report Page No. 29 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
30 reveals that the weapon was in working condition and test fired conclusively. It does not come to a conclusion that the bullets in question were fired from the same weapon which was sent for analysis. The report mentions that the individual characteristics of the bullet and the metallic piece were insufficient for comparison and opinion.
45. Therefore, the report is inconclusive. The only fact forthcoming from the evidence is that the bullet found inside the body of the deceased corresponded to the bullet of .32" cartridge. This in itself cannot be a ground to complete the chain of circumstances. A vital link of connecting the weapon of the accused and the bullets is missing. Moreover, PW 34 has stated that the accused had thrown the box of the revolver alongwith some live and used cartridges and the original license of the same in the river Yamuna, which could not be recovered. The pointing out memo of the same is Ex. PW34/A. As such, this piece of evidence also does not help the prosecution in proving its case and as per the judgment quoted above, the benefit of doubt has to be given to the accused in such a case.
CONDUCT OF ACCUSED:
46. It has been argued by the Ld. Addl. PP that the accused had Page No. 30 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
31 absconded right after the incident took place and he made every effort to flee from the justice. It was only due to a LOC issued in his name that he was apprehended by the Airport authorities at the International Airport at Kolkata with a boarding pass to fly to Bangkok. He relies on Section 8 of the Indian Evidence Act to say that the conduct of the accused is of much relevance and a person who has done nothing wrong has no reason to hide and flee. Per contra, ld. counsel for the accused has argued that the mere fact that the accused had absconded is no reason to fasten liability on him. He has relied on Bhagirath vs. State of Madhya Pradesh AIR 1976 SC 975, Rahman vs. State of UP AIR 1972 SC 110, Datar Singh vs. State of Punjab AIR 1974 SC 1193 and Raghubir Singh vs. State of UP AIR 1971 SC 2156 to urge his contention.
47. The arguments of the prosecution are liable to be rejected on the ground that the conduct of a person is a weak type of evidence so as to make him liable under criminal law. The evidence of conduct only is relevant under Section 8 of the Indian Evidence Act and it is for the judge to attach value to the same, in totality of circumstances. In this case, where the story of the prosecution is crumbling on its own, it cannot seek help of the conduct of the accused to prove its case. It is natural that a person may decide to avoid the process of law due to Page No. 31 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
32 fear etc. It has been held in the case of Matru @ Girish Chandra vs. State of UP 1971 AIR 1050, as follows: "The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime; such is the instinct of self Preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused."
The legal point emanating from all the decisions relied upon by the accused is that the prosecution must stand on its own legs to prove its case. The fact that the present accused had absconded cannot be a determinative factor in judging his guilt.
48. Further, no motive has been established by the prosecution to establish the guilt of the accused. The argument made by the Ld. Addl. PP that the accused has stated in his disclosure statement that he had a fight with the deceased regarding parking of his vehicle and Page No. 32 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
33 he killed them due to it, is not tenable in law because the only reliance on a disclosure statement can be made under the provisions of Section 27 of the Indian Evidence Act. No other witness/evidence has been led by the prosecution. It has been held by the Apex Court in the case of Babu vs. State of Kerela, (2010) 9 SCC 189 as follows: "22. In State of Uttar Pradesh v. Kishan Pal & Ors ., (2008) 16 SCC 73, this Court examined the importance of motive in cases of circumstantial evidence and observed:
".......the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."
23. This Court has also held that the absence of motive in a case depending on circumstantial evidence is a factor that Page No. 33 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
34 weighs in favour of the accused. (vide: Pannayar v. State of Tamil Nadu by Inspector of Police, (2009) 9 SCC 152)"
In the present case, the direct evidence of the prosecution by way of PW 13 has resiled from her statement with regard to the identity of the accused. Therefore, the other surrounding circumstances were required to be proved by the prosecution to prove its case. The non proving of motive in this case is another factor that goes against the prosecution and in favour of the accused.
49. Another contention of prosecution is that the accused refused to participate in the TIP proceedings Ex. PW25/A, and therefore, an adverse inference has to be taken against the accused. In this regard, the courts are empowered to take certain presumptions under Section 114 of the Indian Evidence Act. These are presumptions of fact that are taken on the basis of common course of natural events, human conduct and public and private business. Ex. PW 35/B is the application of the I.O. for conducting TIP proceedings of the accused. The endorsements made by the Ld. MM mention that the accused has been produced in unmuffled face. Further, the accused has justified that he did not want to participate in the TIP proceedings as the police had shown him to the witness. As such, in these circumstances, an adverse inference cannot be taken against the accused.
Page No. 34 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.
35
50. In view of the foregoing discussion, the prosecution has been unable to prove the ingredients required to satisfy a charge under Section 302 IPC and under Section 27 of Arms Act against the accused beyond reasonable doubt, and as such, benefit of doubt is given to the accused.
52. In conclusion, the accused is acquitted of the charge of Section 302 IPC and Section 27 Arms Act by giving him benefit of doubt.
Digitally
signed by
Announced in the open Court NEELAM
on 21st day of October 2019.
NEELAM SINGH
SINGH Date:
(total 35 pages) 2019.10.24
15:25:07
+0530
(NEELAM SINGH)
ASJ03 & Special Judge (Companies Act)
Dwarka Courts (SW), New Delhi.
Page No. 35 of 35 State Vs. Parveen Rana @ Montu Rana.;
FIR No. 309/2013/14 of PS Dwarka South.