Delhi District Court
State vs . 1). Sher Bahadur on 24 April, 2012
1 FIR No. 144/08
PS Rohini
IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI
Sessions Case No. 1/11
Unique I.D No. 0240R0055642008
State Vs. 1). Sher Bahadur
S/o Sh. Shanti Sarup
R/o C520, Nathupura, Delhi.
2). Rakesh Kumar
S/o Sh. Santi Sarup
R/o C559, Nathupura, Delhi.
3). Pappu
S/o Sh. Ram Kumar
R/o Village Taharpur,
Distt. Bijnore, U.P.
FIR No. : 144/2008
Police Station : Rohini
Under Sections : 302/34 IPC &
25/27 Arms Act
Date of committal to session court : 22.08.2008
Date on which judgment was reserved: 18.04.2012
Date of which judgment announced: 24.04.2012
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2 FIR No. 144/08
PS Rohini
JUDGMENT:
1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C is as under: That on 12.03.2008 at about 8.04 PM in the evening on receipt of a PCR Call a DD No. 55B (Ext. PW10/A) was registered at PS Rohini, Delhi, that one person after being shot dead is lying in B4, Sector8, Central School Park. The copy of the DD entry was handed over to SI Krishan Kant, who alongwith Ct. Narender reached at the spot. Insp. Vijender Pal Sharma on getting this information alongwith HC Ramesh Kumar, HC Baljeet Singh, HC Jitender Kumar and Ct. Sunil Kumar reached at the spot where SI Krishan Kant met him who handed over the copy of DD No. 55B to Insp. Vijender Pal Sharma. At the spot on the footpath, blood, one chappal of right foot, two empty cartridges and in the bushes near the footpath one iron rod and blood were found lying. It was revealed that ambulance of CATS had already taken the injured to BSA Hospital. Despite efforts made no eye witness could be found at the spot. After leaving the staff for the protection of the spot, Insp. Vijender Pal Sharma alongwith SI Krishan Kant, HC Jitender and Ct. Sunil reached at BSA Hospital where he obtained the MLC No. 1206/08 of Vijay Kumar Sharma S/o Sh. Ganpat 2 of 94 3 FIR No. 144/08 PS Rohini Sharma on which the doctor had endorsed, "alleged history of sustaining injuries due to gun shot, today around 7.55 PM as told by CATS personals"
and injured was brought dead. No eye witness was also found in the hospital. On the basis of copy of DD entry, inspection of spot, MLC and the dead body a case u/s 302 IPC was found to have been committed. The tehrir (Ext. PW22/A was prepared on the copy of the DD Entry at 10.00 PM which was sent through Ct. Sunil Kumar for the registration of the case. The special messenger reports were sent to the MM and senior police officials and crime team was called at the spot and the investigation was carried on. During the course of investigation photographs, spot inspection and the site plan were got prepared through the Crime team. From the spot, blood, blood stained earth, earth control, empty cartridges, chappal and iron rod were lifted which were seized by preparing the separate pullandas. The clothes of the deceased and the personal search articles of the deceased received from the hospital were also seized by making separate pullandas. The dead body had been safely kept in the mortuary of the BSA hospital. In the hospital Smt. Sangeeta Sharma @ Pinki w/o Late Sh. Vijay Kumar Sharma telling herself to be the second wife of the deceased, got recorded her statement that she is the second wife of Vijay Kumar. She alongwith Vijay Kumar and her two children was living on rent at H.No. B4/298, Sector8, Rohini. The first
3 of 94 4 FIR No. 144/08 PS Rohini wife of Vijay Kumar alongwith her children lives at Panipat. In 2005 one boy named Sher Bahadur had come to live on rent in their Swaroop Nagar house who used to say to her as to what is there in this old man and get marry to him (Is Budhe mai kya rakha hai mujhse shadi kar lo), after his death all his property will be used by her and him (Sher Bahadur). Sher Bahadur used to keep an evil eye on her and on the property of her husband. Her husband had got vacated the house from him and thereafter, they started living in Sector8 on rent. On 12.03.2008 at about 7.30 PM in the evening she had seen Sher Bahadur alongwith his two associates sitting in the park. Her husband Vijay Kumar also used to go for strolling every day in the evening in the park. A detailed statement of Smt. Sangeeta @ Pinki was recorded u/s 161 Cr.P.C. Information was given to his first wife and children about the incident. The case property was deposited in the malkhana. On 13.03.2008 on the arrival of the relatives of the deceased in the BSA hospital, the inquest papers of the dead body were prepared and the dead body of the deceased was sent to the Mortuary of Sanjay Gandhi Hospital and postmortem was got conducted on the dead body and after postmortem the dead body was handed over to the heirs of the deceased. Statements of the other witnesses were recorded. The pullandas of three lead, recovered during the postmortem of the deceased, blood gauze piece, clothes of the 4 of 94 5 FIR No. 144/08 PS Rohini deceased alongwith the sample seal were seized and deposited in the malkhana. Scaled site plan was got prepared. Search of Sher Bahadur and his associates was made. On 14.05.2008 on receipt of secret information accused Sher Bahadur was arrested, his arrest memo was prepared. His disclosure statement was recorded and at his instance recovery of the pistol and one live cartridge was made. On the same day, at the instance of accused Sher Bahadur, accused Rakesh Kumar and Pappu were arrested and at the instance of accused Pappu recovery of two empty cartridges was made. Their disclosure statements were recorded and the pointing out memos were prepared. On the iron rod autopsy surgeon opinion was obtained. The exhibits were sent to the FSL.
Upon completion of necessary further investigation challan was prepared for the offences u/s 302/34 IPC & u/s 25/27 of The Arms Act against accused Sher Bahadur, Rakesh Kumar and Pappu and was sent to the court for trial.
2. Since the offence u/s 302 IPC is exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C, the case was committed to the Court of Session u/s 209 Cr.P.C.
5 of 94 6 FIR No. 144/08 PS Rohini
3. Upon committal of the case to the Court of Session, after hearing of charge prima facie a case u/s 302/34 IPC against accused Sher Bahadur, Rakesh Kumar and Pappu and a case u/s 25/27 Arms Act against accused Sher Bahadur was made out. Charges were framed accordingly which were read over and explained to all the three accused persons to which they pleaded not guilty and claimed trial.
4. In support of its case prosecution has examined twenty two witnesses. PW1 Praveen Kumar, PW2 Dr. N.K. Singh, CMO, BSA Hospital, Delhi, PW3 Ct. Dalbir Singh, PW4 Ct. Satvir Singh, PW5 SI Manohar Lal, Draftsman, PW6 HC Jagdish, PW7 Ct. Sunil Kumar, PW8 Vasudev Sharma, PW9 Smt. Prem Lata, PW10 Ct. Shri Ram, PW11 HC Ranbir Singh, PW12 Smt. Sangeeta Sharma, PW13 Radhey Shyam, PW14 HC Jitender, PW15 SI Krishan Kant, PW16 HC Anand Kumar, PW17 Ct. Surender Kumar, PW18 HC Rishikesh, PW19 Sh. V.K. Jha, PW20 Sh. Hans Dass Vadwani, PW21 Shubham and PW22 Inspector Virender Pal (Vijender Pal).
5. In brief the witnessography of the prosecution witnesses is as under: 6 of 94 7 FIR No. 144/08 PS Rohini PW1 Parveen Kumar is the son of deceased who deposed that on 12.03.2008 he was present at his house in Panipat when he received information regarding death of his father. He reached at Govt. Hospital BSA Hospital, Sector6 Rohini. His uncle Radhey Shyam was also with him. He identified the death body of his father and after the postmortem the dead body was handed over to him vide receipt Ex. PW1/B which bears his signature at PointA. He further deposed that police recorded his statement Ext. PW1/A bears his signature at PointA. He further deposed that his father was working in electricity board, one girl Pinky was resided with his father. One Sher Bahadur, accused present in the court today was also living as a tenant of his father in his Swaroop Nagar's house. His mother was residing with them at Panipat and she had also filed a maintenance case against his father and monthly maintenance was also awarded to his mother. On one hearing of court case at Panipat his father also told him that he was in great trouble and was trapped by the girl Pinky as he had made a blunder by allowing her to live with him. His father also told him that accused Sher Bahadur was pressuring to marry Pinki but his father had refused to marry her with Sher Bahadur as he had already got married Pinky with some one else and a quarrel had taken place between his father and Sher Bahadur on 7 of 94 8 FIR No. 144/08 PS Rohini this issue and accused Sher Bahadur was having grudges against his father. Accused Sher Bahadur used to give them threats by calling at their Panipat telephone number by saying that he had already murdered 10 persons and now he will murder his father and them. Regarding this they had also lodged a complaint with Panipat Police. His father had also told him that he had transferred his property situated at Swaroop Nagar, in the name of his Bua Prem Lata.
PW2 Dr. N.K. Singh, CMO, BSA Hospital, Delhi who deposed that on 12.03.2008 at about 8.10 PM one patient Vijay Kumar Sharma S/o Ganpati Sharma aged 57 years male was brought in the hospital by CATS Personnel. He examined the patient and at the time patient was brought dead. He prepared the MLC Ex. PW2/A which bears his signatures at Points A, B & C. The articles recovered from the body of the deceased were also mentioned by him in the MLC by mentioning Sr. No. 1 to 12.
PW3 Ct. Dalbir Singh who deposed that on 12.03.2008 he was posted as photographer with Crime Team Incharge (N/W) District. On that day he alongwith the crime team reached at Sector8, Rohini, in a park between B4 & B6, where blood was lying on the footpath, chappels and 8 of 94 9 FIR No. 144/08 PS Rohini empty fired shell were also lying on the footpath. One iron rod was also lying in the bushes near the footpath. He took 13 photographs of the scene from different angles. He proved the photographs of the spot Ex. PW3/1 to Ex. PW3/13 and negatives Ex. PW3/1A to Ex. PW3/13A.
PW4 Ct. Satvir Singh who deposed that on 12.03.2008 he was posted as Constable at PS Rohini and on that day at about 11.00 PM the duty officer handed over him special reports to be delivered to the senior officers. He left the PS on the official motorcycle and delivered the special report at the house of Ld. MM and thereafter, delivered the special report at the house of Joint CP Mandir Marg and at the house of DCP (Outer) HUDCO place and thereafter he returned back at PS. PW5 SI Manohar Lal is the draftsman who deposed that he was posted as draftsman in NorthWest Distrct. On that day, on the request of the IO he visited the spot i.e DDA Park between pocket B4 & B6, Sector8, Rohini. There at the instance of the IO Inspector Vijender Pal, SHO PS Rohini, he took rough notes and measurements. Later on, on the basis of those rough notes and measurements, he prepared the scaled site plan Ex. PW5/A which bears his signature at PointA. Rough notes are destroyed 9 of 94 10 FIR No. 144/08 PS Rohini after preparation of scaled site plan.
PW6 HC Jagdish is the MHC(M) who deposed that on 13.03.2008 he was working as MHC(M) PS Rohini. On that day, Insp. Vijender Pal deposited ten sealed parcels, duly sealed with the seal of VPS (six in number) and one with SD seal and three with the seal of SGM besides one sample seal of SGM and personal search of the deceased and one mobile phone. He made the relevant entry in register no. 19 at serial no. 4352 Ex. PW6/A. He further deposed that on 14.05.2008, one motorcycle bearing registration no. DL8SAB5704 and one sealed pullanda with the seal of RC stated to be containing, pistol and cartridge and one another sealed pullanda, sealed with the seal of RC stated to be containing empty cartridge were deposited by Inspector Vijender Pal Sharma. The personal search of three accused persons were also deposited in the malkhana on the same day. He made the relevant entry in register no. 19, serial no. 4484 Ex. PW6/B. He further deposed that on 20.06.2008, one sealed pullanda with the seal of VPS, two sealed pullanda with the seal of RC and one pullanda with the seal of SGMH alongwith sample seals were sent to FSL Rohini through Ct. Surender vide RC No. 73/21/08 Ex. PW6/C. He made the relevant entry in register no. 19 at serial no. 4352. He further deposed that on 26.06.2008, 10 of 94 11 FIR No. 144/08 PS Rohini one sealed pullanda with the seal of VPS stated to be containing iron rod was handed over to SHO Inspector V.P. Sharma who took the same for seeking opinion of the doctor and on the same day, SHO deposited back the same pullanda, now with the seal SGM hospital and he made the relevant entry in register no. 19 at sr. no. 4352. He further deposed that on 04.07.2008, four sealed pullandas with the seal of VPS, three sealed pullandas with the seal of SGMH and sample seal and one pullanda with the seal of SD of this case FIR were sent to FSL vide RC No. 76/21/08 Ex. PW6/D through Ct. Sunil Kumar. He made the relevant entry in register no. 19 at serial no. 4352. He further deposed that on 21.05.2009, the result of FSL was received alongwith the remnants of the above exhibits and he made relevant entry at serial no. 4352 in register no. 19 and the result was handed to SHO on 22.05.2009. He further deposed that during the tenure the above said pullandas remained in his possession, nothing was tampered or allowed to be tampered with them.
PW7 Ct. Sunil Kumar who joined investigation with PW22 Insp. Virender Pal, IO and deposed that on 12.03.2008 he was posted at PS Rohini and on that day he was on patrolling duty with SHO in official gypsy alongwith HC Baljeet, HC Ramesh and HC Jogender. At about 8.05 PM a wireless message was received that firing had taken place at B4 Park, 11 of 94 12 FIR No. 144/08 PS Rohini Sector8, Rohini, Delhi. Accordingly, they reached there and noticed that on the footpath in the park, one right foot chappal, two cartridges case was found lying there. One iron rod was also noticed near the footpath in the bushes and blood was also noticed there. SI Krishan Kant from PS also reached there and handed over DD entry 55 B to SHO. No eye witness met them at the spot. It came to their knowledge that injured had been shifted by the CAT ambulance to BSA Hospital. SHO alongwith him, HC Jogender and SI Krishan Kant reached at hospital and it was revealed that injured was brought dead. No eye witness met them in the hospital. SHO collected MLC. SHO prepared a rukka and handed over the same at about 10.00 PM to him and he reached at PS at 10.15 PM and handed over the same to duty officer HC Ranbir. After registration of FIR, duty officer handed over him copy of FIR and original rukka and he reached back to the spot and handed over the same to IO. IO also recorded his statement. He further deposed that on 04.07.2008, on the directions of SHO, he collected four sealed parcels having the seal of VPS, one parcel having seal of SD. FSL form and sample seal vide RC No. 76/21/08 and deposited the same at FSL Rohini. He collected the receipt from FSL Rohini and handed over the same to MHC(M).
12 of 94 13 FIR No. 144/08 PS Rohini PW8 Vashudev Sharma is the ambulance officer on ambulance AlfaVIII who deposed that on 12.03.2008 at about 7.45 PM a call was received and he thereafter alongwith staff with the aforesaid ambulance reached at B4 Park, Sector8, Rohini. He found one person in injured condition, lying in the park with gun shot injury. They shifted the aforesaid injured to BSA Hospital. The name of the injured later on came to know Vijay Kumar Sharma who was declared brought dead by the doctors at BSA Hospital. His statement was recorded by the police.
PW9 Smt. Prem Lata is the sister of deceased Vijay Kumar Sharma who deposed that his brother had married twice. Smt. Krishna was his first wife and Smt. Pinky was his second wife. Smt. Krishna resided at Panipat, Haryana, alongwith their children. Her brother Vijay Kumar Sharma alongwith his second wife Pinky used to reside at Gali No. 15, Swaroop nagar. There was one tenant in the said house, namely, Sher Bahadur in the year 2005. There was some altercation between his brother and accused Sher Bahadur. Thereafter, his brother had got vacated the tenanted premises from accused Sher Bahadur. Thereafter, her brother shifted to Sector8, Rohini, where the children of her brother (deceased) from second marriage were also studying. Her brother Vijay Kumar Sharma 13 of 94 14 FIR No. 144/08 PS Rohini after vacating the house at Swaroop Nagar, transferred the aforesaid house in her name. She further deposed that on 12.03.2008 she received a telephone call from her brother Vijay Kumar Sharma that he would visit their house tomorrow morning as he wanted to talk to her about some urgent matter and he apprised her, he had threat of his life from one Sher Bahadur, as he had received many threatening calls on that day. Thereafter, she telephoned her brother at around 7.007.30 PM when her daughterinlaw returned from Chandigarh. At that time, the mobile phone of her brother was with some policeman, who picked up the phone and informed her that her brother had received a bullet injury and was admitted in the BSA Hospital. She does not know the reason of altercation between her brother and Sher Bahadur at Swaroop Nagar, for which he got vacated the house from Sher Bahadur. Her deceased brother apprehended threat for his life from accused Sher Bahadur, as he (accused Sher Bahadur) wanted to grape (grab) Pinky as well as his property at Swaroop Nagar and as such he had already transferred the property of Swaroop Nagar in her name.
PW10 Ct. Shri Ram is DD writer who deposed that on 12.03.2008 his duty hours were from 4.00 PM to 12.00 mid night. On that day, at about 8.04 PM an information was received from the PCR that one 14 of 94 15 FIR No. 144/08 PS Rohini person was shot and was lying at B4, Sector8, Central School Park. He recorded the aforesaid information in roznamancha register Vide DD No. 55B and handed over the same to SI Kishan Kant for necessary action. He proved the the attested copy of the same as Ex. PW10/A. PW11 HC Ranbir Singh is the Duty Officer, who deposed that on 12.03.2008 he was posted at Police Station Rohini and was working as Duty officer from 4.00 PM to 12.00 night and at about 10.00 pm he received a rukka sent by Insp. Vijender Pal, the SHO through Ct. Sunil on the basis of which the FIR was recorded by the computer operator on his instructions and the printout of the same is Ex. PW11/A. He further deposed that he had brought the original registers of FIR and the original rukka as well as the printout of the FIR was handed over to Ct. Sunil. He also proved the rukka Ex. PW10/A on which he had made his endorsement at Point 'A'.
PW12 Smt. Sangeeta Sharma is the wife of deceased who deposed that she married with Vijay Kumar in the year 1996. At that time he was around 45 years old. Two children were born out of the wedlock. It was second marriage of her husband. The first wife of her husband alongwith her children was living at Chakki Dadri. In the year 20042005 15 of 94 16 FIR No. 144/08 PS Rohini she alongwith her husband and children was residing at Swaroop Nagar, Delhi. Accused Sher Bahadur was living as a tenant in their house at Swaroop Nagar. Accused was working in Malaria department of MCD. No rent agreement was executed with accused Sher Bahadur. Accused Sher Bahadur used to tease her in the absence of her husband and once he tried to make illicit relations with her to which she informed her husband about the conduct of the accused and they got the premises vacated from the accused. Despite that accused used to visit their house at Swaroop Nagar and used to tease her when she used to leave her children for school. She further deposed that accused was not allowed to enter her house and her husband had beaten him very badly. She further deposed that accused proposed before him for marriage by saying "Iss budhay mei kya rakha hai, mujhse shaddi kar lo shaadi ke baad property meri ho jayegi" again said "humari ho jayegi". She informed her husband about this on which her husband told her the accused could not harm him in any manner as he (her husband) was very religious person. Thereafter, they shifted their residence in the year about 2007. Accused started visiting her residence Sector 8, Rohini, also. Accused used to tease her on her mobile phone also. At present she does not remember the number of her mobile phone as well as of the accused. The accused used to abuse her husband and used to tell her that he (accused) 16 of 94 17 FIR No. 144/08 PS Rohini would kill her husband. Accused further asked her children to start calling him as their "Papa". She further deposed that on 12.03.2008 her husband was walking in the park which was just opposite to her house at about 7.00 or 7.15 PM. She came in the balcony and saw that Sher Bahadur alongwith two other persons that was accused Rakesh and Pappu were also walking in the park. Thereafter, she went inside the house. After sometime when she again came in the balcony she had noticed crowd in the park and when she went there she came to know that someone had murdered. On inquiry, she came to know that her husband had been shot. Her both children had gone to attend some birthday party in the neighbourhood. Her husband removed to Ambedkar Hospital by the police. She also went there with her children. She doubts that accused Sher Bahadur alongwith his two associates had murdered her husband as he was having bad eye on her and on the property of her husband. The accused had forcibly made illicit physical relationship with her. She further deposed that on 15.05.2008 when she visited PS Rohini to enquire about the case, she saw that all the three accused persons were seated in the room of SHO and she had identified in the police station.
PW13 Sh. Radhey Shyam is the brother of the deceased who deposed that on 11.03.2008 he had received a telephone from his sister at 17 of 94 18 FIR No. 144/08 PS Rohini Bhiwani that his brother Vijay Kumar Sharma had expired. He came to the PS Rohini in the morning of 12.03.2008, he had identified the dead body of his brother at SGM Hospital. His statement Ex. PW13/A to this effect was recorded and he had received the dead body vide receipt Ex. PW1/B. PW14 HC Jitender who joined investigation with PW 22 Insp. Virender Pal, IO and deposed that the doctor had handed over three sealed pullandas with one sample seal of hospital which were seized by the IO vide seizure memo Ext. PW14/A. He also proved the disclosure statement of accused Sher Bahadur Ex. PW14/B, arrest memo of accused Sher Bahadur Ex.PW14/C, personal search memo of accused Sher Bahadur Ex. PW14/D, seizure memo of motorcycle No. DL 8SAB 5704 (Ex. P1) vide memo Ex. PW14/E, sketch of pistol and cartridge Ex. PW14/F, seizure memo of pistol (Ext. F1) and cartridge (Ext. F2) Ext. PW14/G, site plan of the place of recovery of pistol and cartridge Ex. PW14/H, arrest memos of accused Rakesh and Pappu Ex. PW14/J, Ex. PW14/M respectively, personal search memo of accused Rakesh and Pappu Ex. PW14/K, Ex. PW14/N respectively, disclosure statement of accused Rakesh and Pappu Ex. PW14/L, Ex. PW14/O respectively, sketch of empty cartridges Ext. PW14/P, seizure memo of empty cartridges (Ex. F3 and Ex. F4) Ex.
18 of 94 19 FIR No. 144/08 PS Rohini PW14/Q, site plan of the place of recovery of two empty cartridges Ex. PW14/R, pointing out memos of the place of occurrence of accused Pappu, Sher Bahadur and Rakesh Ex. PW14/S, Ex. PW14/T & Ex. PW14/U respectively.
PW15 SI Krishan Kant who joined investigation with PW22 Insp. Virender Pal, IO and deposed on the investigational aspects and proved the seizure of blood from the spot vide memo Ex. PW15/A, seizure memo of empty cartridges Ex. PW15/B, seizure memo of blood stained earth Ex.PW15/C, seizure memo of earth control Ex.PW15/D, seizure memo of chappal Ex. PW15/E, seizure memo of iron rod Ex. PW15/F, sketches of empty cartridges Ex. PW15/G, seizure memo of the clothes of deceased Ex. PW15/H, seizure memo of the mobile phone of deceased Ex. PW15/J, seizure memo of the personal search articles of the dead body Ex. PW15/K and proved the iron rod Ext. P1, chappal of the right foot Ex. P2, blood alongwith vegetative material Ex.P3, two empty cartridges on which Ex. EC1 and Ex. EC2 are marked by the examining authority, Ex. P4 (colly), earth control Ex. P5, mobile phone Ex. P6 and purse and other articles Ex. P7 (colly).
19 of 94 20 FIR No. 144/08 PS Rohini PW16 HC Anand Kumar who deposed that on 12.03.2008 he was posted at PCR, PHQ and at about 8.00 pm a call was received from one Praveen Kumar from mobile No. 9899263711 to the effect that in front of a park at B4, Central School, Sector8, Rohini, one person was shot dead and was lying there, which he recorded in the PCR form and he has brought the original which is in his handwriting and signed by him and copy of the same is Ex. PW16/A. PW17 Ct. Surender Kumar who deposed that on 20.6.2008 he was posted at PS Rohini. On that day he took four parcels from the Malkhana at the instructions of the IO out of which one was sealed with the seal of VPS, second was sealed with the seal of SGM hospital and remaining two were sealed with the seal of RC alongwith sample seal and deposited the same with FSL, Rohini vide RC No. 73/21/08 and receipted copy of the same was deposited by him with the malkhana. So long as the parcels remained in his possession, the same were not tampered with.
PW18 HC Rishikesh who deposed that on 13.3.2008 he was posted at PS Rohini. On that day, he alongwith SHO and HC Jitender 20 of 94 21 FIR No. 144/08 PS Rohini reached BSA Hospital where the relatives of the deceased Vijay Kumar were present whose statements were recorded. Thereafter the dead body was removed to the mortuary of SGM hospital where the postmortem examination was got conducted. The doctor who conducted autopsy gave the clothes of the deceased and front part of the led (lead) of the cartridge and blood sample to him and he handed over the same to the SHO in the SGM hospital, who seized the same vide seizure memo already Ex. PW14/A which bears his signature at PointB. PW19 Dr. V.K. Jha, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi who deposed that he conducted the postmortem on the body of the deceased and proved the postmortem report Ex. PW19/A and 16 inquest papers Ex. PW2/A, Ex. PW13/A, Ex. PW1/A and Ex. PW19/B1 to B13. He also proved the opinion regarding the iron rod Ex. PW19/C and the iron rod is already Ex. P1.
PW20 Sh. Hans Dass Vadwani, TSO Office of Nodal Officer, MTNL, GSM Cellular Mobile services who proved the list of their cell ID Ex. PW20/A and the call details of the mobile number 9868725163 from 1st March, 2008 to 13th March, 2008 Ex. PW20/B. 21 of 94 22 FIR No. 144/08 PS Rohini PW21 Shubham is the son of the deceased who was a minor. Before recording his statement questions were put to him to make a preliminary inquiry to ascertain if he understands the questions and can answer them rationally. He deposed that his father has expired in the year 2008. At that time he alongwith his parents was residing at Sector8, Rohini and the house was situated in front of his school. He does not remember the number of the house. Before the death of his father mostly his bua came to their house and the accused Sher Bahadur also used to come. He correctly identified the accused by specifically pointed out towards him. He further deposed that generally accused Sher Bahadur visited their house in absence of his father. They objected their visit in absence of his father and also advised him to visit their house only when his father was present in the house. Accused Sher Bahadur used to told him that he should develop the habit of saying "Pappa" to him. Accused also warned them that he will kill his "Pappa" one day. He never liked accused Sher Bahadur. He dislike accused because he was (had) not narrated his father nicely, accused also speaks dirty language with him and he used to come to their house as and when he desires. His father had been shout (shot) out, at that time he was attending the birthday of his sister's friend. He doubts that accused Sher 22 of 94 23 FIR No. 144/08 PS Rohini Bahadur had murdered his father because he threatened number of times to kill his father and on the day of incident when he went to the market for purchasing atta, then he had seen him who was quarreling with his father as his father demanded money which he has owed him. He further deposed that before the above stated address, they were resided at Swaroop Nagar. The accused Sher Bahadur was also resided there as tenant in their second house.
PW22 Inspector Virender Pal is the IO of the case who deposed that on 12.03.2008 he was posted as SHO Rohini. On the same day in the evening on receiving DD No.55 B which was regarding that a person was shot at, same was handed over for investigation to SI Krishan Kant. During that time he was on patrol duty alongwith other police officials near M2K, Rohini area. Thereafter, he reached at the spot and came to know that the injured Vijay Kumar was already shifted to BSA Hospital. At the spot blood was lying in the park, slippers was also lying there, two empty cartridges were also lying there, one iron rod was also found to be lying there. No eye witness met at the spot. He left his staff at the spot to protect and himself alongwith other staff went to BSA Hospital. On inquiry he came to know that one person namely Vijay Kumar Sharma who was aged around 60 years was brought to the hospital by the ambulance of CATS who was 23 of 94 24 FIR No. 144/08 PS Rohini declared "brought dead". No eye witness met them in the hospital. He prepared one rukka Ex. PW22/A signed by him at PointA and handed it over to Ct. Sunil to take it to PS for registration of FIR and he left from the hospital itself. He alongwith other staff came back to the spot. By that time crime team had already come who had inspected the spot and taken the photographs also. Thereafter, he lifted from the spot, the blood of deceased, empty cartridges, one slipper of deceased, blood stained earth. Thereafter, he prepared sketch of the empty cartridges vide memo Ex. PW15/G signed by him at PointB. Thereafter, the said exhibits were kept in separate pullandas after which they were sealed with the seal of VPS and were seized. The blood was seized vide memo Ex. PW15/F, empty cartridges were seized vide memo Ex. PW15/B, blood stained earth vide memo Ex. PW15/C, earth control vide memo Ex. PW15/D, slipper vide memo Ex. PW15/E, iron rod vide memo Ex. PW15/F signed by him at PointB respectively. He also recorded statements of witnesses including that of incharge Crime team and photograph. He further deposed that on 13.03.2008 he had given a request letter to perform the autopsy of the deceased which is Ex. PW19/B1. He also prepared the brief facts, same is Ex. PW19/B2 signed by him at PointB. He filled up form 25.35 (1) (B), same is Ex. PW19/B3 signed by him at PointB. He also recorded 24 of 94 25 FIR No. 144/08 PS Rohini statements of Radhey Shyam and Parveen Kumar regarding their identification of dead body, same are Ex. PW13/A and Ex. PW1/A signed by him. After postmortem, dead body was handed over to the relatives of the deceased vide receipt Ex. PW1/B for funeral acts. He also got prepared the scale site plan from SI Manohar Lal which was already exhibited as Ex. PW5/A. He searched for the accused persons and on the basis of secret information, accused Sher Bahadur was arrested from Bhalswa Bridge on 14.05.2008. The arrest memo Ex. PW14/C and his personal search vide memo Ex. PW14/D was also conducted. He interrogated the accused Sher Singh and recorded his disclosure statement Ex. PW14/B signed by him at PointA. Accused Sher Singh disclosed the name of his associates in the commission of crime as Rakesh and Pappu. Accordingly, at his instance accused Rakesh and Pappu were arrested from Nathupura vide arrest memos Ex. PW14/J & Ex. PW14/M signed by him. Their personal search memos were also taken vide memos Ex. PW14/K & Ex. PW14/N. He recorded the disclosure statements of both accused vide memos Ex. PW14/L & Ex. PW14/O signed by him at PointB. He also seized the motorcycle bearing no. DL 8S AB 5704 and helmet of black colour from the house of accused Sher Singh at Nathupura, Delhi and seized the same vide memo Ex. PW14/E. He also proved the pointing out memos Ex. PW14/S, Ex.
25 of 94 26 FIR No. 144/08 PS Rohini PW14/T and Ex. PW14/U which were prepared at the instance of the accused persons. During investigation he had also sought opinion from the doctor vide his application Ex. PW22/B which was given by the doctor on the back of the application which is Ex. PW19/C. He also proved the sketch of the pistol and live cartridges which were recovered at the instance of accused Sher Bahadur vide memo Ex. PW14/F. He further deposed that the pistol and cartridge were sealed in a pullanda and sealed with the seal of RC and taken into possession vide memo Ex.PW14/G. He proved the site plan of the place from where accused Sher Bahadur got recovered the weapon of offence Ex. PW14/H and also proved the sketch of empty cartridges Ex. PW14/P which were recovered at the instance of accused Pappu from his house C520 Nathupura and taken into possession vide memo Ex. PW14/Q. He also proved the site plan Ex. PW14/R of the place from where the empty cartridges were recovered. He further deposed that he also collected the call details of the phone of accused Sher Bahadur i.e 9868725163 showing the location at the place of incident. After completion of investigation, he filed the challan in the court. FSL Reports were procured and later on filed in the court Ex. PX, Ex. PY and Ex.PY1. He also obtained the sanction after obtaining the FSL report u/s 39 Arms Act and filed the same in the court Ex. PW22/C signed by Addl. DCP at PointA. 26 of 94 27 FIR No. 144/08 PS Rohini He also proved the site plan of the spot i.e B4 Block Park, Sector8, Rohini Ex. PW2/D. He proved the case property i.e iron rod Ex.P1, a chappal of right foot Ex. P2, one pistol and one cartridge Ex. F1 & F2, two empty cartridges Ex. F3 & Ex. F4 which were recovered at the instance of accused Pappu, blood in the cotton wool swab in a plastic container Ex. PX1, blood stain earth Ex. PX2, earth control Ex. PX3, two empty cartridges Ex. PX4 & Ex. PX5, helmet Ex. PX4 and motorcycle Ex. P1.
5. Statements of accused Sher Bahadur, Pappu and Rakesh were recorded u/s 313 Cr.P.C wherein they pleaded innocence and false implication. Accused Pappu opted not to lead any defence evidence whereas accused Sher Bahadur and Rakesh opted to lead defence evidence. Accused Sher Bahadur and accused Rakesh Kumar examined four witnesses in their defence. DW1 Sher Bahadur (accused himself), DW2 Rakesh Kumar (accused himself), DW3 Sh. Praveen Kaushik, Assistant (Clerical), State Bank of India, D.C. Chowk, Sector9, Rohini, Delhi and DW4 Sh. R.K. Khandelwal, General Manager, Trams Motors Workshop, C13, SMA Industrial Area, G.T.K. Delhi.
27 of 94 28 FIR No. 144/08 PS Rohini DW1 Sher Bahadur (accused himself) in his examinationin chief has deposed that "I know Vijay Kumar and I was his tenant up till December, 2006 of his house bearing no. 17/1, Swaroop Nagar, Gali No. 15, Delhi. I have cordial relation with the deceased Vijay Kumar and he used to call me at his place whenever he required any assistance or help from me. I was called by deceased Vijay Kumar whenever he was ill and there was no one to look after him i.e Sangeeta Sharma who was residing with the deceased as his daughter and the family members of Vijay Kumar Sharma from his marriage with Smt. Krishana Sharma. Smt. Krishna Sharma sometimes visited the house of deceased and there was quarrel between Smt. Krishna Sharma and deceased as they used to demand the property of Swaroop Nagar in the name of deceased be transferred in their favour. But the deceased has transferred the above property in the name of his sister Smt. Prem Lala (be read as Smt. Prem Lata, who has been examined as PW9) about 23 years prior to the said incident."
DW1 Sh. Sher Bahadur also proved a copy of the reply Ext.DW1/A to the letter dated 27.09.2007 submitted by deceased Vijay Kumar Sharma with his employer i.e pension be given to him only till his life time and that no one else should be given this pension benefit after his 28 of 94 29 FIR No. 144/08 PS Rohini demise. He also proved the copy of the RTI reply received from bank authority Ext. DW1/B with regard that he was called by Sh. Vijay Kumar Sharma at the time of account opening with SBI Bank, Sector9, D.C. Chowk, Rohini, Delhi on 28.12.2005. He also proved a reply Ext. DW1/C which was received through RTI by him from Ghaziabad Development Authority that under Koel Housing Scheme by Sangeeta showing herself daughter of Vijay Sharma. He also proved the copy of the reply Ext. DW1/D obtained under RTI from the office of Transport Department, Govt. of NCT of Delhi regarding the identity document placed at the time of purchase of car bearing no. DL9CP2387 by deceased wherein as per the I. Card of the deceased filed by him on the backside of the card shows the family details of the card holder and it has been shown that Sangeeta Sharma and Pinki are the daughters of deceased Vijay Kumar Sharma. He also proved the copy of the RTI reply Ext. DW1/E from the Jail Authorities regarding the visitors who had visited him in jail.
DW2 Sh. Rakesh Kumar (accused himself) has deposed that he is car mechanic by profession. At the time of incident he was working at Trimukh Motors (authorised vendor of Chershero Motor Company). He joined Trimukh Motors as car mechanic in August, 2007. His duty hours in 29 of 94 30 FIR No. 144/08 PS Rohini the company were 9.00 AM till 8.00 PM in the night. In his authorization attendance is mark by punching of card and also they have to sign in the register. The same procedure is following in the evening. On the day of the alleged incident he had marked his attendance in aforesaid fashion. On 11.05.2008 he was removed from his workplace by HC Baljeet and HC Ramesh Chand alongwith some other police officials who were in civil dress at about 12.30 Noon. They took signatures of the mangers and some staff members on some other papers and then removed him to PS. He had marked his presence on 11.05.2008 in the morning and also at about 1.30 PM when he was taken out from his workplace. Police officials had taken the said attendance card that was in his possession alongwith his I.Card and visiting card of the company alongwith them. He has no role to play in the alleged incident.
DW3 Sh. Praveen Kaushik who has deposed that he has brought the summoned record of saving bank account no. 30029471486 in the name of Ms. Sangeeta D/o Sh. Vijay Kumar. The account was opened in their branch on 30.12.2005. The said account was opened on the introduction of accused Sher Bahadur R/o Village Raza Pur, Sector9, Rohini, Delhi. The said account was opened on the basis of PAN card of Sangeeta Sharma and 30 of 94 31 FIR No. 144/08 PS Rohini copy of electricity bill and proved the attested copy of account opening form of Sangeeta Sharma Ext. DW3/A (running into six pages), attested copy of accounts statement of the aforesaid account Ext. DW3/B (running into four pages).
DW4 Sh. R.K. Khandelwal, who deposed that he has brought the summoned record pertaining to their employee Rakesh Kumar, who is the accused present in the court today who joined the services as Assistant Mechanic in their organization from 12.11.2007 and remained in employment till afternoon of 12.05.2008. He has further deposed that it is correct that remarks at PointX on Ext. DW4/1 had been entered by their staff on the basis of the information mentioned in the attendance sheet. He has further deposed that as per the usual practice they seek an application for seeking leave from an employee, however, if there is any emergency they allow the employee to leave the office and do not ask for the application thereafter and instructions were issued at the gate to let that person on leave. They do not maintain any reason record in this regard. Their mechanics generally leave after seeking permission but if they (mechanics) have to go for road test of the vehicles, permission is not required. He does not know whether any efforts were made to know the reason as to why the accused had 31 of 94 32 FIR No. 144/08 PS Rohini stopped coming in the office after 12.05.2008. He does not know if the accused was taken from the office on 12.05.2008 as he (DW4) was not there at the relevant time. He proved a copy of punching details Ext. DW4/2, copy of salary statement of accused Rakesh Kumar for the month of May, 2008 Ext. DW4/3.
6. Ld. Counsel for the accused submitted that the prosecution has miserably failed to prove its case. He submitted that as per the prosecution accused Sher Bahadur, Rakesh and Pappu are all involved in the commission of alleged offence. However, only name of accused Sher Bahadur crops up in the statement of witness recorded u/s 161 Cr.P.C, though all the accused are identified by prosecution's star witness. PW12 Sangeeta is the one involved in the commission of alleged offence. Though it is important to note herein that no TIP proceedings were conducted qua accused Rakesh and Pappu and neither any efforts were made nor any description of two other person i.e Rakesh and Pappu given in statement by said Smt. Sangeeta (PW12).
Ld. Counsel for accused further submitted that from accused Pappu two empty cartridges were recovered as per the statement of IO/SHO PW22 V.P. Sharma in his examinationinchief but interestingly in his 32 of 94 33 FIR No. 144/08 PS Rohini crossexamination he has categorically stated that "I had not sent the empty cartridges to the office of FSL, which cartridges were seized from the spot on 12.03.2008."
From above it becomes crystal clear that both accused Rakesh and Pappu have been falsely implicated in the present case. In fact it is the case of prosecution itself that they (Rakesh & Pappu) have been roped in as an accused on the basis of alleged disclosure statement of coaccused Sher Bahadur and as such there is no iota of incriminating evidence against them on record.
As Regards Motive for committing the Crime Ld. Counsel for accused submitted that as per the story put forward by the investigating agency accused Sher Bahadur has an evil eye on PW12 Smt. Sangeeta Sharma @ Pinki who claims herself to be the wife of deceased Vijay Kumar Sharma and that Vijay Kumar Sharma had scolded accused when he came to know about the acts and misdeeds of accused Sher Bahadur and as such accused was keeping a grudge against him and for the reason he removed him (eliminated him).
But the said motive for committing the crime as put forward by 33 of 94 34 FIR No. 144/08 PS Rohini the investigating agency crumbled in the light of various important facts brought on record by the accused Sher Bahadur in the crossexamination of various important witnesses as well as in his defence evidence. The main point of which are
i). It has been brought on record by way of a irrebuttable documentary proof i.e PAN Card. That is Smt. Sangeeta Sharma @ Pinki (PW12) is the daughter of deceased Vijay Kumar Sharma and not his wife. Further the accused has proved various documents in his examination as DW1 and DW3 Sh. Parvesh Kaushik, Assistant (Clerical) in State Bank of India, D.C. Chowk, Sector9, Rohini, Delhi, which are exhibited.
ii). If at all, the relations between the deceased and accused were strained then why would he had sought his help in opening bank account in S.B.I and in the time of his need that is whenever he needed to go to doctor etc. or at various other times.
iii). One of the point raised by the prosecuting agency is that accused Sher Bahadur wanted to grab the property of deceased Vijay Kumar Sharma.
34 of 94 35 FIR No. 144/08 PS Rohini But herein again it has again been proved beyond any reasonable doubt that deceased has no immovable property in his name and he had already transferred his properties in the name of his sister Smt. Prem Lata (PW9) as he was facing court cases at Panipat, Haryana filed by his wife Smt. Krishna Sharma and in order to avoid his liability, hence, he had transferred his property in the name of his sister Prem Lata.
iv). Further PW1 Praveen Kumar, who is the son of deceased in his examination has stated that his father told him at Panipat when he came there to attend court case hearing that "On one hearing of court case at Panipat my father also told me that he is in great trouble and is trapped by the girl Pinki as he had made a blunder by allowing her to live with him".
v. Another point which is highlighted by PW21 Shubham who is the son of Pinki @ Sangeeta is that her mother was kept in police custody for five days at PS Rohini after the incident and that police officials used to serve him food there.
This fact clearly indicates that even the investigating agency were placing their doubt on PW12 Smt. Sangeeta as the culprit involved in the 35 of 94 36 FIR No. 144/08 PS Rohini commission of offence (that is Murder of Vijay Kumar Sharma) but strangely she has been let off for reasons best known to the investigating agency and accused Sher Bahadur, Rakesh and Pappu are falsely implicated in this case.
Further PW1 Sh. Praveen Kumar in his crossexamination has also stated that "When I reached BSA Hospital the police told me that Pinki was in their custody".
Ld. Counsel for accused further submitted that no chance print were lifted from any of the exhibits seized.
Ld. Counsel for accused further submitted that the evidence qua the recovery of alleged weapon of offence is also doubtful. As per prosecution story the said weapon was recovered from B4/463, Bhalaswa Dairy Ex. PW14/H but in the memo Fard Nishan Dehi (pointing out cum seizure memo pistol and live cartridges) Ext. PW14/G bears and shows the place of alleged recovery as House No. B4/468. Moreover, PW22 IO SHO Inspector V.P. Sharma has categorically stated in his crossexamination that all the alleged recovery of pistol etc. have been recovered from the 36 of 94 37 FIR No. 144/08 PS Rohini place/address mentioned in the arrest memo and personal search memo which again is contradicting the story put forward by the investigating agency.
He further submitted that the evidence of last scene is not trustworthy as it has not been pointed out from where the alleged witness PW12 has seen accused persons with the deceased and also the time (specifically), the distance from where PW12 had seen the accused and the place where accused were placed at that time. It is all the more untrustworthy because PW12 has stated in her examination that she knows accused Rakesh and Pappu prior to alleged incident but strangely till their apprehension she had not named them in any of her statements recorded by the police.
Ld. Counsel for accused further submitted that the manner of arrest of accused persons also casts serious doubt on the story put forward by the investigating agency.
IO/SHO of the case PW22 Inspector Virender Pal has stated in his examinationinchief that 37 of 94 38 FIR No. 144/08 PS Rohini "Accused Sher Bahadur got recovered a motorcycle bearing no. DL8SAB5704 & helmet of black colour from his house at Nathu Pura, Delhi which were seized vide memo Ext. PW14/E".
Whereas as per the story put forward by the investigating agency the said motorcycle was seized at the time of apprehension of accused, which is contrary to view stated by the IO of the case PW22 Inspector Virender Pal. Moreover, the accused Sher Bahadur and accused Rakesh Kumar in their testimonies as DW1 & DW2 have deposed that they have been removed forcibly and kept in wrongful confinement by the police officials and had been implicated later on. DW4 Sh. R.K. Khandelwal, General Manager, Tram Motors Workshop, C13, SMA Industrial Area, G.T.K. Delhi also sheds light on the manner of arrest of accused Rakesh.
Ld. Counsel for the accused further submitted that in the light of the aforesaid facts & circumstances, there is no incriminating evidence sufficient enough to nail the accused persons in the present case and they are prayed to be acquitted of the charges levelled against them.
7. While the Ld. Addl. PP for the state, on the other hand submitted that accused Sher Bahadur was knowing the deceased and other members of the family as accused Sher Bahadur resided as tenant at the house of 38 of 94 39 FIR No. 144/08 PS Rohini deceased Vijay Kumar Sharma at Swaroop Nagar as deposed by PW1 Praveen Kumar and PW9 Smt. Prem Lala, sister of the deceased. The accused persons were last seen at about 7.35 PM in the park and deceased used to visit the park in the evening and this fact was reported by PW12 Smt. Sangeeta Sharma and PW21 Shubham. Three leads were recovered from the body of the deceased. Accused Sher Bahadur was arrested on 14.05.2008 and he also got arrested his two associates Rakesh Kumar and Pappu by pointing out their houses. Accused Sher Bahadur also got recovered the pistol Ext. F1 and a live cartridge Ext. F2. Accused Pappu also got recovered two empty cartridges Ext. F3 & Ext. F4 from his house which were used for killing the deceased. He further submitted that an iron rod was recovered from the spot where the dead body was found and it was used by accused Rakesh and injury no.1 on the deceased was caused by the rod as stated by PW19 Dr. V.K. Jha. He further submitted that the deceased received threats from accused Sher Bahadur as deposed by PW1 Praveen Kumar, PW9 Smt. Prem Lata and PW21 Shubham. He further submitted that sanction u/s 39 of The Arms Act was received and the same is Ext. PW22/C and the FSL reports Ext. PY & Ext. PY1 were also filed and are on the record. He further submitted that the prosecution has proved its case beyond reasonable doubt against all the accused persons. The contradictions 39 of 94 40 FIR No. 144/08 PS Rohini and discrepancies as are pointed out are minor and not the material one's and do not effect the credibility of the witnesses.
8. I have heard the Ld. Addl. PP for the state and the Ld. Counsel for the accused and have also carefully perused the entire record.
9. The charge u/s 302/34 IPC against all the three accused Sher Bahadur, Rakesh Kumar and Pappu is that on 12.03.2008 at about 7.55 PM at Park between B4 and B6, Sector8, Rohini, Delhi, they all in furtherance of their common intention committed the murder of Vijay Kumar Sharma S/o Sh. Ganpati Sharma by using fire arm (pistol) and iron rod. Against accused Sher Bahadur additional charge u/s 25 Arms Act was also framed. That on 14.05.2008 accused Sher Bahadur got effected recovery of one automatic pistol and live cartridge from house no. B4/468, Bhalswa Dairy, Delhi which he retained without any licence or permit.
10. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of 40 of 94 41 FIR No. 144/08 PS Rohini justice.
11. The Hon'ble Supreme Court in case Md. Mannan @ Abdul Mannan Vs. State of Bihar 2011 V AD (SC) 289 has held that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established. The circumstances so proved unerrignly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.
LAST SEEN EVIDENCE:
12. PW12 Smt. Sangeeta Sharma and PW21 Shubham are the last seen evidence. On this aspect what PW12 Smt. Sangeeta Sharma has deposed during her examinationinchief it is pertinent to reproduce which reads as: " On 12.03.2008 my husband was walking in the park which was just opposite to my house at about 7:00 or 7: 15 p.m. I came in the balcony 41 of 94 42 FIR No. 144/08 PS Rohini and saw accused Sher Bahadur alongwith two other persons that is accused Rakesh and Pappu both are present in the court today (witness has correctly identified the accused persons) was also walking in the park. Thereafter, I went inside the house. After sometime when I again came in the balcony I have noticed crowd in the park and when I went there I came to know that someone has been murdered. On enquiry, I came to know my husband has been shot. My both children had gone to attend some birthday party in the heighbourhood. My husband was remove (removed) to Ambedkar Hospital by the police. I also went there with my children. I doubt that accused Sher Bahadur along with his two associates had murdered my husband as he was having bad eye on me and on the property of my husband. My statement was recorded by the police. The accused had forcibly made illicit physical relationship with me."
During her crossexamination recorded on 26.05.2010, PW12 Smt. Sangeeta Sharma has deposed that "It is incorrect to suggest that I have falsely implicated accused Sher Bahadur in the present case. It is incorrect to suggest that I had not seen accused Sher Bahadur alongwith other persons present in the park on 12.03.2008 at about 7 or 7.15 p.m as deposed."
"I had not lodged any complaint with police officials regarding the fact that accused Sher Bahadur had forcibly made illicit physical relations with me. I had not stated to the police officials in my statement u/s 161 Cr.P.C about the physical features and facial features of those two boys whom I had noticed on 12.03.2008 in the evening in the park. I had not 42 of 94 43 FIR No. 144/08 PS Rohini stated even after my recording of statement u/s 161 Cr.P.C about the physical and facial features to the police. It is incorrect to suggest that I had not stated about the physical and facial features of other two accused namely Rakesh and Pappu in my statement or even after that as they were not present in the park at the time of alleged incident alongwith accused Sher Bahadur as deposed. It is further incorrect to suggest that I am deposing falsely."
She has further deposed in her crossexamination recorded on 26.05.2010 conducted on behalf of accused Rakesh "It is correct that I had not noticed the body of my (husband) Vijay Kumar Sharma in the park after the incident. It is correct that I (from me) was not (got) identified about the place of occurrence by the police. I cannot tell the distance of wall of the said park from my rented house. My statement was recorded by the police in the morning on 13.3.2008. I was never interrogated by the local police regarding the commission of offence as a suspect. My neighbours informed me about the incident but I do not remember the time of information given to me about the incident. I visited BSA hospital alongwith my children. I cannot tell the distance between my house and the BSA hospital. I cannot tell the time when I visited the hospital. Volunteered, as soon as I came to know about the same, I left for the hospital. There was no person known to me at the hospital when I reached there but police officials were present there. It is incorrect to suggest that prior to the incident I was well aware about the family members of accused Sher Bahadur. Accused Rakesh visited only once at my residence at Swaroop Nagar. It is correct that accused Rakesh was known to me prior to the incident"
43 of 94 44 FIR No. 144/08 PS Rohini "It is incorrect to suggest that I had falsely deposed about the accused Sher Bahadur and two other companions present in the park"
On careful perusal and analysis of the said part of the testimony of PW12 Smt. Sangeeta Sharma many facts and facets comes to the surface which are to be noticed.
PW12 Smt. Sangeeta Sharma in her examinationinchief has deposed as reproduced hereinabove "Thereafter, I went inside the house. After sometime when I again came in the balcony I have noticed crowd in the park and when I went there I came to know that someone has been murdered. On enquiry, I came to know my husband has been shot."
While PW12 Smt. Sangeeta Sharma in her crossexamination as reproduced hereinabove has deposed "It is correct that I had not noticed the body of my (husband) Vijay Kumar Sharma in the park after the incident"
44 of 94 45 FIR No. 144/08 PS Rohini The question is, why she has not noticed the body of her husband Vijay Kumar Sharma after the incident? After all Vijay Kumar Sharma was her husband. She even did not take pain to notice his body in the park and to see as to what has happened to him.
The said conduct of PW12 Smt. Sangeeta Sharma in the given facts & circumstances, when tested on the anvil of ordinary reaction of a normal person cannot withstand scrutiny. In the circumstances, the said part of the testimony of PW12 Smt. Sangeeta Sharma that she went to the park and there she came to know that some one has been murdered and on enquiry she came to know that her husband has been shot but she had not noticed the body of her husband Vijay Kumar Sharma in the park after the incident does not inspire confidence. It clearly revolts against the projection of PW12 Smt. Sangeeta Sharma as a last seen witness by the prosecution and severly dents the prosecution case.
During her crossexamination PW12 Sangeeta Sharma has deposed as reproduced hereinabove 45 of 94 46 FIR No. 144/08 PS Rohini " On 12.03.2008 my husband was walking in the park which was just opposite to my house at about 7:00 or 7: 15 p.m. I came in the balcony and saw accused Sher Bahadur alongwith two other persons that is accused Rakesh and Pappu both are present in the court today (witness has correctly identified the accused persons) was also walking in the park."
It means PW12 Smt. Sangeeta Sharma knew accused Rakesh and Pappu. If it was so then, why these two accused Rakesh and Pappu have not been named by her in her statement u/s 161 Cr.P.C to the police recorded on 13.03.2008. What was the hitch for not stating the names of said accused Rakesh and Pappu to the police? Even if it is taken for the sake of argument that PW12 Smt. Sangeeta Sharma was not knowing the names of said accused Rakesh and Pappu, at least she could have stated about their physical features in her statement u/s 161 Cr.P.C to the police but she didn't. Moreover, during her crossexamination PW12 Smt. Sangeeta Sharma has specifically deposed as reproduced hereinabove and admitted that "I had not stated to the police officials in my statement u/s 161 Cr.P.C about the physical features and facial features of those two boys whom I had noticed on 12.03.2008 in the evening in the park. I had not stated even after my recording of statement u/s 161 Cr.P.C about the physical and facial features to the police."
46 of 94 47 FIR No. 144/08 PS Rohini Perusal of statement of PW12 Smt. Sangeeta Sharma recorded u/s 161 Cr.P.C on 13.03.2008 shows that it is totally at variance as to what PW12 Smt. Sangeeta Sharma has deposed in her examinationinchief as reproduced hereinabove. Moreover, no Test Identification Parade (TIP) Proceedings of accused Rakesh and Pappu were got conducted by the investigating agency. Why no Test Identification Parade (TIP) proceedings of accused Rakesh and Pappu were got conducted by the investigating agency, when they were not named by PW12 Smt. Sangeeta Sharma in her statement recorded on 13.03.2008 nor their physical and facial features were stated to the police by PW12 Smt. Sangeeta Sharma in her statement u/s 161 Cr.P.C recorded on 13.03.2008 and not even thereafter? No explanation has been placed by the prosecution on the record in this regard.
It clearly shows that naming of accused Rakesh and Pappu in her testimony by PW12 Smt. Sangeeta Sharma is a major, substantial improvement and is an afterthought and goes to the root of the matter, therefore, this part of the testimony of PW12 Smt. Sangeeta Sharma does not inspire confidence.
47 of 94 48 FIR No. 144/08 PS Rohini
13. Another dent to the prosecution case projecting PW12 Smt. Sangeeta Sharma as last seen evidence is caused when PW12 during her crossexamination recorded on 26.05.2010 has deposed "I cannot tell the distance of wall of said park from my house".
14. PW12 Smt. Sangeeta Sharma in her crossexamination as reproduced hereinabove has deposed "I was never interrogated by the local police regarding the commission of offence as a suspect. My neighbours informed me about the incident but I do not remember the time of information given to me about the incident. I visited BSA hospital alongwith my children. I cannot tell the distance between my house and the BSA hospital. I cannot tell the time when I visited the hospital. Volunteered, as soon as I came to know about the same, I left for the hospital."
During her crossexamination recorded on 26.05.2010 PW12 Smt. Sangeeta Sharma has deposed that "It is incorrect to suggest that I was kept in Police Custody for five days at PS Rohini after the incident"
48 of 94 49 FIR No. 144/08 PS Rohini Her this part of testimony is not corroborated by her son PW21 Shubhum who in his crossexamination has specifically deposed that "It is correct that my mother was held up at the PS for 05 days after the shoot out incident with my father. I was also provided meals by the police officials".
In the circumstances, the above said part of the testimony of PW12 Smt. Sangeeta Sharma is not reliable and remained uncorroborated and does not inspire confidence.
15. PW22 Inspector Virender Pal, IO in his examinationinchief has deposed that "I had also prepared the site plan of the spot i.e B4 Block Park, Sector8, Rohini, same is Ex. PW2/D (be read as Ex. PW22/D) signed by me at pointA."
While PW12 Smt. Sangeeta Sharma in his cross examination recorded on 26.05.2010 has deposed that 49 of 94 50 FIR No. 144/08 PS Rohini "It is correct that I (from me) was not (got) identified about the place of occurrence by the police".
From above it is clearly indicated that site plan Ex. PW22/D was not prepared by PW22 Inspector Virender Pal at the instance of PW12 Smt. Sangeeta Sharma nor the place of occurrence was got identified by PW12 Smt. Sangeeta Sharma, the alleged last seen witness. Why site plan Ex. PW22/D was not prepared at the instance of PW12 and why place of occurrence was not got identified by PW12 who was the last seen witness as per the investigating agency. No plausible explanation has been placed by the prosecution in this regard. It speaks of volume, of the mode, manner and diligence, the investigation has been carried out in the case
16. Now coming to the testimony of another last seen witness PW21 Shubham who is the son of PW12 Smt. Sangeeta Sharma.
PW21 Shubham in his examination in chief has deposed that "I doubt accused Sher Bahadur because he threatened number of time to kill my father and on the day of incident when I went to the market for purchasing atta, then I have seen him who was quarreling with my father 50 of 94 51 FIR No. 144/08 PS Rohini as my father demanded money which he has owed him".
During his crossexamination PW21 Shubham has deposed that " I do not remember when my statement was recorded by police officials. It is correct that accused Sher Bahadur was present in the PS on the day when my statement was recorded by the police officials. I do not remember if at that time, Anita Sharma was also present there or not. I can read Hindi. The statement was recorded as per my version but the same was not read over to me and read by me. It is incorrect to suggest that I do not know as to what was recorded in my statement as I did not read it after it was recorded. I do not remember whether I had stated to the police in my statement regarding the quarrel which had taken place in the market with accused Sher Bahadur when my father demanded money owed to him".
As to what has been deposed by PW21 Shubham in his examinationinchief reproduced herein above, is at variance to his statement u/s 161 Cr.P.C as it does not find mention in his statement u/s 161 Cr.P.C, whereby it constitutes a major and substantial improvement in his deposition made in the court and goes to the root of the matter. Moreover, the theory of last seen, as propounded by PW21 Shubham, of having seen accused Sher Bahadur, on the day of incident, of quarreling with his father (Vijay Kumar Sharma) as his father demanded money he (accused Sher Bahadur) 51 of 94 52 FIR No. 144/08 PS Rohini owed him (Vijay Kumar Sharma) when he went to market for purchasing atta is not at all corroborated by his mother PW12 Smt. Sangeeta Sharma, another alleged last seen witness. For purchase of atta from market PW21 Shubham, must have been sent by PW12 Smt. Sangeeta Sharma and after purchase of atta, by PW21 Shubham on returning home, PW21 Shubham must have disclosed to her mother, PW12 Smt. Sangeeta Sharma as to what he (PW21) saw on the way, "Of having seen accused Sher Bahadur, on the day of incident, of quarreling with his father (Vijay Kumar Sharma) as his father demanded money he (accused Sher Bahadur) owed him (Vijay Kumar Sharma)".
But the total silence of PW12 Smt. Sangeeta Sharma on this aspect knocks out the bottom of such theory of last seen as propounded by PW21 Shubham, which falls flatly to the ground.
In the circumstances, the testimony of PW21 Shubham being also a last seen witness does not inspire confidence.
52 of 94 53 FIR No. 144/08 PS Rohini MOTIVE FOR CRIME:
17. It is the case of the prosecution and has also not been denied by accused Sher Bahadur that he (accused Sher Bahadur) was well known to PW12 Smt. Sangeeta Sharma, her son PW21 Shubham as well as to Vijay Kumar Sharma, the deceased. To the same effect has also been deposed by accused Sher Bahadur as DW1 in his examinationinchief that he knew Vijay Kumar and he (DW1) was his tenant up till December, 2006 of his House No. 17/1, Swaroop Nagar, Gali No. 15, Delhi.
PW12 Smt. Sangeeta Sharma in her examinationinchief has deposed that accused Sher Bahadur alongwith his two associates had murdered her husband as he (accused Sher Bahadur) was having bad eye on her and on the property of her husband.
PW9 Smt. Prem Lata sister of the deceased Sh. Vijay Kumar Sharma, in her examinationinchief recorded on 07.01.2010 has deposed that "My deceased brother apprehended threat for his life from accused Sher Bahadur as he wanted to grape (grab) Pinki (PW12 Smt. 53 of 94 54 FIR No. 144/08 PS Rohini Sangeeta Sharma) as well as his property at Swaroop Nagar as such he had already transferred the property of Swaroop Nagar in my name."
During her crossexamination PW9 Smt. Prem Lata has deposed that "I do not remember when the property of Swaroop Nagar was transferred in my name. Vol. it was transferred 23 years from today."
DW1 Sher Bahadur (accused) in his examinationinchief has deposed that the deceased had transferred his Swaroop Nagar property in the name of his sister namely Prem Lata about 23 years prior to the said incident.
From the said part of crossexamination of PW9 Smt. Prem Lata as well as the testimony of DW1 Sher Bahadur (accused) it is clearly indicated that the property of Swaroop Nagar of deceased had already been transferred by Sh. Vijay Kumar Sharma (deceased) in the name of PW9 Smt. Prem Lata 23 years before the date of incident. It is on the record that deceased was living in a rented accommodation at Sector8, Rohini on the 54 of 94 55 FIR No. 144/08 PS Rohini date of incident.
In the circumstances, there was not the remotest chance for accused Sher Bahadur to grab/succeed to the property of deceased even through PW12 Smt. Sangeeta Sharma, therefore, as far as the motive for committal of crime for grabbing of the property of deceased is concerned falls flat to the ground.
During examinationinchief PW12 Smt. Sangeeta Sharma has deposed that accused Sher Bahadur used to tease her. He used to tease her on her mobile phone also. At present she does not remember the number of her mobile as well as of the accused. The accused used to abuse her husband (Vijay Kumar Sharma) and used to tell her that he would kill her husband. The accused had forcibly made illicit physical relationship with her.
During her crossexamination recorded on 26.05.2010 PW12 Smt. Sangeeta Sharma has specifically deposed that "I had not lodged any complaint regarding harassment and teasing by accused Sher Bahadur with the police authorities".
55 of 94 56 FIR No. 144/08 PS Rohini "Vijay Kumar Sharma had never told me that accused Sher Bahadur is intending to kill him. I am not aware whether Vijay Kumar Sharma had lodged any complaint against accused Sher Bahadur."
"I had not lodged any complaint with police officials regarding the fact that accused Sher Bahadur had forcibly made illicit physical relations with me."
DW3 Sh. Praveen Kaushik in his examinationinchief has deposed that he has brought the summoned record of saving bank account no. 30029471486 in the name of Ms. Sangeeta D/o Sh. Vijay Kumar. The account was opened in their branch on 30.12.2005. The said account was opened on the introduction of accused Sher Bahadur R/o Village Raza Pur, Sector9, Rohini, Delhi. The said account was opened on the basis of PAN card of Sangeeta Sharma and copy of electricity bill and proved the attested copy of account opening form of Sangeeta Sharma Ext. DW3/A (running into six pages), attested copy of accounts statement of the aforesaid account Ext. DW3/B (running into four pages).
Moreover during the entire incisive crossexamination of DW3 Sh. Praveen Kaushik, the factum of opening of saving bank account no.
56 of 94 57 FIR No. 144/08 PS Rohini 30029471486 by PW12 Smt. Sangeeta Sharma, on the introduction of accused Sher Bahadur has not been disputed by the prosecution.
In view of above, as far as the motive for committal of crime of having bad eye on PW12 Smt. Sangeeta Sharma does not hold ground. Had accused Sher Bahadur having evil eye on PW12 Smt. Sangeeta Sharma; Had he gone to the extent of having forcibly illicit physical relationship with PW12 Smt. Sangeeta Sharma; Had he used to abuse her husband and used to tell her that he would kill her husband, then it is strange on the part and conduct of PW12 Smt. Sangeeta Sharma as to why she did not lodge any complaint with the police against accused Sher Bahadur? What prevented her from doing so? Further if the conduct of Sher Bahadur was so bad and shameful, why introduction of Sher Bahadur was sought by PW12 Smt. Sangeeta Sharma in the opening of Saving Bank Account No. 30029471486 at SBI Branch, Sector9, Rohini, Delhi on 30.12.2005, the attested copies of Account Opening Form Ext. DW3/A (colly) and attested copy of accounts statement Ext. DW3/B (colly), has not been explained either by PW12 Smt. Sangeeta Sharma or by the prosecution.
57 of 94 58 FIR No. 144/08 PS Rohini Moreover the conduct of PW12 Smt. Sangeeta Sharma in the given facts and circumstances when tested on the anvil of ordinary reaction of a normal person cannot withstand scrutiny.
In the circumstances, prosecution has failed to prove the motive for the committal of the crime in the present case.
ARREST AND RECOVERY MADE FROM ACCUSED PERSONS:
18. PW22 Inspector Virender Pal in his examinationinchief has deposed that "I searched for the accused persons and on the basis of secret information, accused Sher Bahadur was arrested from Bhalswa Bridge on 14.05.2008. The arrest memo Ex. PW14/C and his personal search vide memo Ex. PW14/D was also conducted. He was interrogated and we (he) made disclosure statement Ex. PW14/B signed by me at pointA. He disclosed the name of his associates in the commission of crime as Rakesh and Pappu. Accordingly at his instance accused Rakesh was arrested from his house at Naghupura and Pappu was also arrested from Nathupura vide arrest memos Ex. PW14/J and Ex. PW14/M signed by me. Their personal search memos were also taken vide memos Ex. PW14/K and Ex. PW14/N
58 of 94 59 FIR No. 144/08 PS Rohini signed by me. Disclosure statements of both accused was recorded vide Ex. PW14/L and Ex. PW14/O by me signed by me at pointB. Accused Sher Bahadur got recovered a motorcycle bearing no. DL 8S AB 5704 and helmet of black colour from his house at Nathupura, Delhi which were seized vide memo Ex. PW14/E signed by me at pointB. All the 03 accused persons pointed out the place where they had committed the crime vide pointing out memos Ex. PW14/S, Ex. PW14/T and Ex. PW14/U was prepared separately signed by me at pointB. During investigation I had also sought opinion from the doctor vide my application Ex.PW22/B regarding the rod. An opinion was given by the doctor on the back of the application which is Ex. PW19/C. Accused Sher Bahadur also disclosed that he can get recovered the weapon used in commission of offence. He has taken the police party to a rented house at Bhalswa dairy from where he got recovered a pistol and a live cartridge. Sketch of the pistol and live cartridge was prepared vide memo Ex. PW14/F signed by me at PointB. Pistol and cartridge was sealed in a pullanda and sealed with seal of RC and taken into possession vide memo Ex. PW14/G signed by me at pointB. The site plan of the place from where accused got recovered the weapon was also prepared, same is Ex. PW14/H signed by me at pointB. Accused Pappu also got recovered 02 empty cartridges from his house C520 Nathupura which he has taken with him after killing the deceased. The sketch of both the empty cartridges was prepared vide memo Ex. PW14/P signed by me at pointB and both the cartridges were sealed in a pullinda which was duly sealed with the seal of RC. Same was taken into possession vide memo Ex PW14/Q signed by me at point B. The site plan of the place from where the cartridges were recovered was also prepared same is ExPW14/R signed by me at pointB."
59 of 94 60 FIR No. 144/08 PS Rohini From above interalia accused Sher Bahadur also got recovered Pistol (Ext. F1) and cartridge (Ext. F2) which were taken into possession vide seizure memo Ext. PW14/G. The site plan of the place from where accused Sher Bahadur got recovered the weapon is Ext. PW14/H. Accused Pappu got recovered two empty cartridges (Ext. F3 & Ext. F4) which were taken into possession vide seizure memo Ext. PW14/Q sealed with the seal of RC. Except for the disclosure statement of accused Rakesh Ext. PW14/L, admittedly nothing incriminating was recovered from the possession or at the instance of accused Rakesh.
Accused Rakesh Kumar has examined himself u/s 315 Cr.P.C On oath as a witness as DW2 in his defence and has deposed that on 11.05.2008 he was removed from his work place by HC Baljeet and HC Ramesh Chand alongwith some other police officials who were in the civil dress at about 12.30 noon. He had marked his presence on 11.05.2008 in the morning and also at about 01.30 PM when he was taken out from his work place.
In his defence accused Rakesh Kumar has also examined DW4 Sh. R.K. Khandelwal. DW4 Sh. R.K. Khandelwal has knocked out the bottom of the testimony of DW2 Rakesh Kumar, when in his (DW4) 60 of 94 61 FIR No. 144/08 PS Rohini examinationinchief he has specifically deposed that Rakesh Kumar remained in employment till afternoon of 12.05.2008 and also proved the copy of punching details Ext. DW4/2, copy of salary statement of accused Rakesh Kumar for month of May, 2008 Ext. DW4/3. The perusal of punching details of accused Rakesh Kumar Ext. DW4/2 interalia reads as:
Date In Time Sign Out Time Sign
11.05.2008 10.08 Rakesh 7.25 Rakesh
(in Hindi) (in Hindi)
12.05.2008 10.29 Rakesh 02.50 Rakesh
(in Hindi) (in Hindi)
From the punching details Ext. DW4/2, as reproduced herein above, it is clearly indicated that accused Rakesh reported for his duty on 12.05.2008 at 10.29 AM and remained at duty till 2.50 PM.
In the circumstances, it does lie in the mouth of accused Rakesh Kumar to say that on 11.05.2008 he was removed from his work place by police officials at about 12.30 AM. The theory of removal from his work place on 11.05.2008 at about 12.30 PM so propounded by accused Rakesh Kumar as DW2 falls flat on the ground.
61 of 94 62 FIR No. 144/08 PS Rohini
19. As per PW14 HC Jitender who has deposed in his examination inchief that after postmortem doctor had handed over three sealed pullandas with one sample seal of the hospital which were taken into possession by the IO vide seizure memo Ext. PW14/A which bears his signature at Point 'A'.
The perusal of seizure memo Ext. PW14/A interalia shows that in one sealed pullinda three "Lead" were sealed.
As per PW15 SI Krishan Kant who has deposed in his examinationinchief that from the spot two empty cartridges were taken into possession vide seizure memo Ext. PW15/B and were sealed with seal of VPS.
20. For better appreciation, let the FSL report Ext. PX be reproduced. It reads as under:
1. DESCRIPTION OF PARCEL (S):
Sealed plastic jar parcel: 03 (three) Sealed plastic box wrapped in cloth parcel: 01 (one) Total: 04(four) 62 of 94 63 FIR No. 144/08 PS Rohini
2. DESCRIPTION OF ARTICLES CONTAINED IN THE PARCEL (S)/EXHIBIT (S):
Parcel No. & Seal Description of Exhibit (s) contained in no. Impression parcel (s) 1 01 V P S Two 7.65mm cartridge cases marked exhibits 'EC1' & 'EC2'.
2 01 SGM HOS Two bullets and one deformed bullet marked Mangol Puri exhibits 'EB1' to 'EB3'.
Delhi83 3 02 R.C One improvised pistol of 7.65mm caliber marked exhibit 'F1' and one 7.65mm cartridge marked exhibit 'A1'.
4 01 R.C Two 7.65mm cartridge cases marked exhibits 'EC3' & 'EC4'.
3. RESULTS OF EXAMINATION/OPINION:
(1) The improvised pistol 7.65mm caliber marked exhibit 'F1' is designed to fire a standard 7.65mm cartridge. It is in working order in its present condition. Test fire conducted successfully. (2) The 7.65mm cartridge marked exhibit 'A1' is live one and can be fired through 7.65mm caliber firearm.
(3) The 7.65mm cartridge cases marked exhibits 'EC1' to 'EC4' are fired empty cartridges.
63 of 94 64 FIR No. 144/08 PS Rohini (4) The bullets/deformed bullet marked exhibits 'EB1' to 'EB3' corresponds to the bullet of 7.65mm cartridge. (5) The 7.65mm cartridge marked exhibit 'A1' and one 7.65mm cartridge from laboratory stock were test fired through the improvised pistol 7.65mm caliber marked exhibit 'F1' above and test fired cartridge cases were marked as 'TC1' & 'TC2' & recovered test fired bullets were marked as 'TB1' & 'TB2'. (6) the individual characteristics of firing pin marks and breech face marks on evidence fired cartridge cases marked exhibits 'EC1' to 'EC4' and on test fired cartridge cases marked 'TC1' & 'TC2' were examined and compared under the Comparison Microscope Model Leica DMC and were found identical. Hence, the exhibits 'EC1' to 'EC4' have been fired through the improvised pistol of 7.65 mm caliber marked exhibit 'F1' above.
(7) The individual characteristics of striations on bullets/deformed bullet marked exhibits 'EB1' to 'EB3' are insufficient for comparison and opinion whether these have been discharged through the improvised pistol 7.65mm caliber marked exhibit 'F1' above or not.
(8) The exhibits 'F1' / 'A1', 'EC1' to 'EC4' & 'EB1' to 'EB3' are firearm/ammunition as defined in the Arms Act, 1959. NOTE: (1) Case Exhibits/Remnants of Exhibits sent to this laboratory for examination have been sealed with the seal of KCV FSL Delhi.
64 of 94 65 FIR No. 144/08 PS Rohini
21. As per the FSL report Ext. PX the two empty cartridges (Ext. EC1, Ext. EC2) recovered from the spot & seized vide seizure memo Ext. PW15/B; AND the two empty cartridges (Ext. EC3, Ext. EC4) allegedly recovered at the instance of accused Pappu and seized vide seizure memo Ext. PW14/Q were opined by Ballistics Expert to have been fired through the improvised pistol of 7.65mm caliber marked Ext. F1, allegedly recovered at the instance of accused Sher Bahadur.
22. However, the Ballistics Expert has opined that the individual characteristics of striations on bullets/deformed bullet marked Exhibits EB1, to EB3 (which were handed over by doctor after postmortem of deceased and seized vide seizure memo Ext. PW14/A) are insufficient for comparison and opinion whether these have been discharged through the improvised pistol 7.65 mm caliber marked Exhibit 'F1" above or not.
23. In view of above as per FSL report Ex.PX, no nexus could be established between the pistol (Ext. F1) and the two bullets and one deformed bullet (Ext. EB1 to Ext. EB3) which were fired upon the deceased and recovered from the body of the deceased at the time of postmortem.
65 of 94 66 FIR No. 144/08 PS Rohini
24. In other words, the bullets (three) found in the body of the deceased were not fired from the pistol Ext. F1, allegedly recovered at the instance of the accused Sher Bahadur. It means pistol Ext. F1 is not the 'weapon of offence'.
25. If the bullets recovered from the body of the deceased were not fired from the pistol Ext. F1 allegedly recovered at the instance of accused Sher Bahadur then it must have been fired from some other weapon, where is that weapon?
26. In these circumstances, the recovery of two empty cartridges (Ext. EC1, Ext. EC2) found lying at the spot and recovery of two empty cartridges (Ext. EC3, Ext. EC4) allegedly recovered at the instance of accused Pappu and seized vide seizure memo Ext. PW14/Q also becomes doubtful, though as per FSL report Ext. PX it has been opined that the individual characteristics of firing pin marks and breech face marks on evidence fired cartridge cases marked exhibits EC1 to EC4 and on test fired cartridge cases marked TC1 & TC2 on examination and comparison were found identical, to have been fired through the improvised pistol of 7.65 MM Caliber marked Ext. 'F1'. It does not appeal to the reason as to why accused 66 of 94 67 FIR No. 144/08 PS Rohini Pappu will keep/retain such empty cartridges and for what purpose? To wait for the police to came and to seize the same from his possession. It creates doubt and suspicions in the prosecution case and does not rule out false implication and plantation.
27. PW22 Inspector Virender Pal, IO in his crossexamination has deposed that "I had not sent the empty cartridges to the office of FSL which cartridges were seized from the spot on 12.03.2008."
28. His testimony is not corroborated by PW6 HC Jagdish, MHC(M) and PW17 Ct. Surender Kumar.
PW6 HC Jagdish in his examinationin chief has deposed that "On 20.06.2008, one sealed pulanda with the seal of VPS, two sealed pulanda with the seal of RC and one pulanda with the seal of SGMH alongwith sample seals were sent to FSL Rohini through Ct. Surender vide RC No. 73/21/08. I made the relevant entry in register No. 19 at serial No. 4352".
67 of 94 68 FIR No. 144/08 PS Rohini "On 21.05.2009, the result of FSL was received alongwith the remnants of the above exhibits and I made relevant entry at serial no. 4352 in register no. 19 and the result was handed to SHO on 22.5.09............."
29. While PW17 Ct. Surender Kumar in his examinationinchief has deposed that "On 20.6.2008, I was posted at PS Rohini. On that day, I took four parcels from the Malkhana at the instructions of the IO out of which one was sealed with the seal of VPS, second was sealed with the seal of SGM hospital and remaining two were sealed with the seal of RC alongwith sample seal and deposited the same with FSL Rohini vide RC No. 73/21/08 and receipted copy of the same was deposited by me with the Malkhana. So long as the parcels remained in my possession, the same were not tempered with".
(Unlined by me).
30. If as per PW22 Inspector Virender Pal he had not sent the empty cartridges to office of FSL which were seized from the spot on 12.3.08, then which cartridges were sent in lieu of said cartridges, regarding depositing of which in FSL, PW17 Ct. Surender Kumar has deposed as reproduced here inabove.
68 of 94 69 FIR No. 144/08 PS Rohini It creates doubt and suspicion in the prosecution case and does not rule out false plantation.
31. PW22 Inspector Virender Pal, IO in his examinationinchief has deposed that "Accused Sher Bahadur also disclosed that he can get recovered the weapon used in commission of offence. He has taken the police party to a rented house at Bhalswa dairy from where he got recovered a pistol and a live cartridge. Sketch of the pistol and live cartridge was prepared vide memo Ex PW14/F signed by me at point B. Pistol and cartridge was sealed in a pullinda and sealed with seal of RC and taken into possession vide memo Ex PW 14/G signed by me at point B. The site plan of the place from where accused got recovered the weapon was also prepared, same is Ex.PW14/H signed by me at pointB".
During his crossexamination PW22 Inspector Virender Pal has deposed that "Q. Whether you can tell that recoveries effected from accused Sher Bahadur or at his instance as told by you in your deposition were effected from the address mentioned in his arrest memo and personal search memo?
69 of 94 70 FIR No. 144/08 PS Rohini Ans. It is correct that the recoveries were effected from the arrest memo and personal search memo."
32. In the arrest memo of accused Sher Bahadur Ext. PW14/C the address given is "Bhalswa Bridge". While in his personal search memo Ext. PW14/D address given is "C520 Nathu Pura Delhi.
33. The perusal of pointing out cum seizure memo of pistol and live cartridge Ext. PW14/G shows that seizure of pistol and live cartridge has been effected from H. No. B4/468, Bhalaswa Dairy, Delhi.
While perusal of site plan Ext. PW14/H of the place from where the seizure of pistol and cartridge has been made shows the Mark 'A' in the site plan Ext. PW14/H, is the place from where, from the Loft (Taand) of the outer room of H.No. B4/463, Bhalaswa Dairy, seizure of pistol and cartridge was made.
34. How is it that pointing outcumseizure memo of pistol and 70 of 94 71 FIR No. 144/08 PS Rohini cartridge Ext. PW14/G is of the address of B4/468, Bhalaswa Dairy while site plan of the place from where the seizure of pistol and cartridge has been made Ext. PW14/H shows Mark 'A' as the place of recovery of pistol and cartridge from Loft (Taand) of the Outer Room of H.No. B4/463, Bhalaswa Dairy. How this magic has occured?
35. Further, PW22 Inspector Virender Pal in his crossexamination is deposing as reproduced hereinabove that all the recoveries were effected from the addresses mentioned in his (accused sher Bahadur) arrest memo Ext. PW14/C and personal search memo Ext. PW14/D which are totally different addresses as to what are mentioned in pointing out cum seizure memo of pistol and cartridge Ext. PW14/G and site plan of place of recovery of pistol and cartridge Ext. PW14/H. Prosecution has failed to explain such substantial and fatal anomaly, which has shaken the very substratum of the edifice of its case.
36. It is well settled that the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established.
71 of 94 72 FIR No. 144/08 PS Rohini
37. In the circumstances, prosecution has miserably failed to prove that recovery of pistol (Ext. F1) and cartridge (Ext. F2) was made from the place i.e H.No. B4/468, Bhalswa Dairy, Delhi pursuant to the pointing out cum seizure memo Ext. PW14/G of accused Sher Bahadur.
It creates doubt and suspicion in the prosecution case and does not rule out false plantation.
38. PW22 Inspector Virender Pal, IO in his examinationinchief has deposed that "Accused Sher Bahadur was arrested from Bhalswa Bridge on 14.05.2008. The arrest memo Ex. PW14/C and his personal search vide memo Ex. PW14/D was also conducted."
"Accused Sher Bahadur got recovered a motor cycle bearing no. DL 8S AB 5704 and helmet of black colour from his house at Nathupura, Delhi which were seized vide memo Ex. PW14/E signed by me at PointB."
The arrest memo dated 14.05.2008 of accused Sher Bahadur Ext. PW14/C shows the place of his arrest "Bhalswa Bridge". The perusal of 72 of 94 73 FIR No. 144/08 PS Rohini seizure memo of motorcycle no. DL 8S AB 5704 dated 14.05.2008 Ext. PW14/E shows that seizure of said motorcycle and helmet was done when accused Sher Bahadur wearing helmet was coming driving the said motorcycle at Bhalswa Bridge. In the said seizure memo Ext. PW14/E there is not a single word that the motorcycle and helmet was got recovered by accused Sher Bahadur from his house at Nathu Pura, Delhi. The seizure memo of motorcycle and helmet Ext. PW14/E totally belies the said testimony of PW22 Inspector Virender Pal which clearly raises a question on the fairness of the investigation carried out by the investigating agency whereby a dent is caused in the prosecution case on the aspect of mode and manner of the seizure of motorcycle and helmet from the possession of accused Sher Bahadur.
EVIDENCE REGARDING THE NATURE OF RELATIONSHIP BETWEEN PW12 SANGEETA SHARMA AND VIJAY KUMAR SHARMA (SINCE DECEASED) WHETHER MARITAL OR OTHERWISE
39. A very extensive part of evidence on record has revolved round this question. Since elaborate evidence has come on record pertaining to this 73 of 94 74 FIR No. 144/08 PS Rohini questions wherein PW12 Sangeeta Sharma is claiming herself as wife of Vijay Kumar Sharma (since deceased) which is being controverted by accused Sher Bahadur by stating that she was living with vijay Kumar Sharma, in a daughter and father relationship therefore only with a view to unearth the truth on this aspect, the evidence is being analysed but before I take up analysis, I must make it clear that the conclusion so arrived at must not be construed or used by any party as grant of declaration of status or right to any party as it is for the competent court of civil judicature to pass the declaratory decree as provided under the Specific Relief Act.
PW12 Smt. Sangeeta Sharma in her examinationinchief has deposed that "I married with Vijay Kumar in the year 1996. At that time he was around 45 years old. Two children were born out of the wedlock. It was a second marriage of my husband. The first wife of my husband alongwith her children was residing at Swaroop Nagar, Delhi."
During her crossexamination PW12 Sangeeta Sharma has deposed that 74 of 94 75 FIR No. 144/08 PS Rohini "I got married on 30.11.1996 at Bhubwneshwar, Orissa. None of my family members had participated in my marriage ceremony. Voltd. I married of my own sweet will with Vijay Kumar Sharma. It was my first marriage."
"Some friends of my husband had participated in my marriage ceremony but I can not tell their names".
"It is correct when I got married with Vijay Kumar Sharma I was aware that Vijay Kumar Sharma was already married that his wife is still alive with her children. It is correct when I got married with Vijay Kumar Sharma he was not divorced from his first wife."
"My husband retired from his service on 31.12.2007. It is correct that my husband Vijay Kumar Sharma was working in Bhakra Beas Management Board."
"I am not receiving any pension from the office of my husband. It is correct that my husband had given submission in writing to his office that his pension would be given to him uptill he is alive and thereafter his pension should not be given to anybody including his family members."
"It is correct that first wife of Vijay Kumar Sharma, Smt. Krishna Sharma had filed a case against him for maintenance at Panipat's Court".
"I had applied for a flat before Ghaziabad Development Authority. It is wrong to suggest that I had mentioned the name of Vijay Kumar Sharma as my father in the form filled up by me for getting a flat
75 of 94 76 FIR No. 144/08 PS Rohini with GDA. Voltd. I had mentioned the name of Vijay Kumar Sharma as my husband. It is wrong to suggest that I am having saving bank account in sector9 of SBI. I am not aware whether any cheque of SBI, Sector9, Rohini was annexed with the GDA form. Voltd. My husband Vijay Kumar Sharma had filled the form. I am not aware whether the name of Vijay Kumar Sharma was mentioned in the column of my father in the said account."
"My marriage with Vijay Kumar Sharma was not registered with any Registrar."
"I received the death certificate of Vijay Kumar Sharma. I had not submitted the said death certificate with any of the banks in which Vijay Kumar Sharma was having bank accounts wither solely or in joint name with myself."
PW9 Smt. Prem Lata who is sister of deceased in her examinationinchief has deposed that "Deceased Vijay Kumar Sharma was my brother. My brother had married twice. Smt. Krishna was his first wife and Smt. Pinky was his second wife. Smt. Krishna resided at Panipat, Haryana, along with her children. My brother Vijay Kumar Sharma along with his second wife Pinky used to reside at Gali No. 15, Swaroop Nagar."
PW9 Smt. Prem Lata during her crossexamination has deposed 76 of 94 77 FIR No. 144/08 PS Rohini that "It is correct that my brother was not divorced from his first wife Smt. Krishna, though the divorce case was pending in Charkhi Dadari, Bhiwani. Besides Vijay Kumar Sharma (deceased), I have four other brothers. My brother got married with Pinky in the year 1998. I did not attend the said marriage, which was solemnized in some temple at Kolkatta".
"It is correct that Subham Sharma is son of my deceased brother from his second marriage with Sangeeta Sharma @ Pinky".
PW1 Parveen Kumar, who is the son of the deceased, in his examinationinchief has deposed that "My father was working in electricity board. One girl Pinky was resided with my father".
"My mother was residing with us at Panipat and she had also filed a maintenance case against my father and monthly maintenance was also awarded to my mother".
PW1 Parveen Kumar during his crossexamination has deposed that 77 of 94 78 FIR No. 144/08 PS Rohini "Pinki was daughter of my deceased father's friend and he had handed over the responsibility of Pinki to my father before his death. Pinki was residing with my father before her marriage. I do not remember the time since Pinki was residing with my father before marriage and I also do not remember the date of marriage of Pinki. I have not attended the marriage ceremony of Pinki. Vol. May be I was ill at that point of time. I do not remember who else from my family had attended the marriage ceremony of Pinki. Pinki has two children; one daughter and one son. I do not know where the matrimonial home of Pinki is. I have no knowledge why Pinki is residing with my father after marriage. I do not remember the date since Pinki was residing with my father after her marriage."
PW13 Sh. Radhey Shyam, who is the brother of the deceased, in his crossexamination has deposed that "It is correct that deceased Vijay Kumar Sharma and one Chander Bhan father of Sangita Sharma were friends."
DW1 Sher Bahadur (accused) in his examinationinchief has deposed that "I also received a reply through RTI from the office of Bhakra Beas Management Board, Chandigarh pertaining to the letter dated 27.09.2007 submitted by deceased Vijay Kumar Sharma with his aforesaid 78 of 94 79 FIR No. 144/08 PS Rohini employer that his pension be given to him only till his life time and that no one else should be given this pension benefit after his demise. Copy of the same is Ex. DW1/A. I was called by Sh. Vijay Kumar Sharma for introducing Sangeet (Sangeeta) Sharma d/o Vijay Kumar Sharma at the time of account opening with SBI Bank, Sector9, D.C. Chowk, Rohini, Delhi on 28.12.2005. the copy of RTI reply received from the Bank Authority in this regard is Ex. DW1/B. A reply was also received through RTI by me from Ghaziabad Development Authority that under Koel Enclave Housing Scheme by Sangeeta showing herself as the daughter of vijay Sharma is Ex. DW1/C."
"I also obtained reply under RTI from the Office of Transport Department, Govt. of NCT Delhi regarding the identity document placed at the time of purchase of Car bearing no. DL 9CP 2387 by deceased wherein as per the Icard of the deceased filed by him shows on the back side of the Card shows the family details of the Card holder and it has shown that Sangeeta Sharma and Pinki are daughters of deceased Vijay Kumar Sharma. The copy of same is Ex. DW1/D."
During his crossexamination DW1 Sher Bahadur (accused) has deposed that "It is incorrect to suggest that even if on any of the document it is mentioned Sangeeta can be daughter of deceased Vijay Kumar it was by mistake or due to instigation. Vol. Vijay Kumar was literate person and cannot do such mistake."
79 of 94 80 FIR No. 144/08 PS Rohini Moreover during the entire incisive crossexamination of DW1 Sher Bahadur the factum of mentioning of Sangeeta (PW12) as daughter of Vijay Kumar Sharma (since deceased) on the documents (Ext. DW1/B, Ext. DW1/C, Ext. DW1/D) has not been disputed by the prosecution.
On careful perusal and analysis of the testimonies of the aforesaid witnesses and the documents proved on record, it stands established on record that Vijay Kumar Sharma deceased, a Hindu (governed by the provisions of The Hindu Marriage Act, 1955) had a living spouse namely Smt. Krishana Sharma who had not been since divorced by him though litigations were pending between them. In the circumstances, the deposition of PW12 Smt. Sangeeta that she had married to Vijay Kumar Sharma in the year 1996 and the marriage with vijay Kumar Sharma was not registered with any registrar, and the deposition of PW9 Smt. Prem Lata that her brother (Vijay Kumar Sharma) married with Pinki (PW12 Smt. Sangeeta) in the year 1998 and it is correct that Subham Sharma is son of her deceased brother from his second marriage with Sangeeta Sharma @ Pinki, does not hold ground except leading to an inescapable conclusion that both PW12 Sangeeta Sharma and Vijay Kumar Sharma (since deceased) were living 80 of 94 81 FIR No. 144/08 PS Rohini together in a Relationship but what was the nature of Relationship, in the circumstances no name can be given to it. It is because if it was a wifely relationship and son Subham (PW21) was born out of it, then why daughterly relation had been shown in the documents Ext. DW1/B, Ext. DW1/C and Ext. DW1/D. OPINION ON IRON ROD EXT. P1
40. PW19 Dr. V.K. Jha in his examinationinchief has deposed that "On 26.06.2008 I received a request from the IO to give opinion regarding the weapon of offence whereby injury no.1 as mentioned above could have been caused. I received one sealed packet with the seal of VPS. On opening the seal, it contained one iron rod. After examination, I opined that the injury no. 1 mentioned in the heading of external injury in PM Report no. 193/08 could have been caused by this rod or similar such rod. After examination it was sealed with sample seal of Mortuary. My opinion is Ex. PW19/C which bears my signatures at pointA."
PW6 HC Jagdish MHC(M) in his examinationinchief has deposed that 81 of 94 82 FIR No. 144/08 PS Rohini "On 26.06.2008, one sealed pullanda with the seal of VPS stated to be containing iron rod was handed over to SHO Inspector V.P. Sharma who took the same for seeking opinion of the doctor and on the same day, SHO deposited back the same pullanda, now with the seal SGM hospital and I made the relevant entry in register no. 19 at serial no. 4352."
During crossexamination PW6 HC Jagdish has deposed that "I had not made any road certificate entry on 26.06.2008 when the iron rod was handed over to Inspector V.P. Sharma."
Why no road certificate entry was made by PW6 HC Jagdish when iron rod was handed over to Insp. V.P. Sharma (PW22)? Why the procedure of road certificate entry was not followed and what was the urgency for not following such procedure? To sanctify the process of taking out the iron rod deposited in the malkhana it was expected to follow the procedure of road certificate entry but that was not done. Who knows as to which was that iron rod, which was taken out from the malkhana. Was it the same iron rod which was taken out from malkhana or some other iron rod regarding which opinion was obtained by PW22 Insp. V.P. Sharma from PW19 Dr. V.K. Jha. Had the procedure of road certificate entry being followed then it could have dispeled the clouds of suspicion which had 82 of 94 83 FIR No. 144/08 PS Rohini gathered due to the nonfollowing of the procedure of making the road certificate entry. It creates doubt and suspicion in the prosecution case with regard to the iron rod Ext. P1 and the opinion Ext. PW19/C obtained thereon.
MEDICAL AND FORENSIC EVIDENCE:
41. PW2 Dr. N.K. Singh, CMO, BSA, Hospital, Delhi, who deposed that on 12.03.2008 at about 8.10 PM one patient Vijay Kumar Sharma S/o Ganpati Sharma aged 57 years male was brought in the hospital by CATS Personnel. He examined the patient and at the time patient was brought dead. He prepared the MLC Ex. PW2/A which bears his signatures at Points A, B & C. The articles recovered from the body of the deceased were also mentioned by him in the MLC by mentioning Sr. No. 1 to 12.
42. PW19 Dr. V.K. Jha, Medical Officer, BJRM Hospital, Jahangir Puri, Delhi, who deposed that who deposed that he conducted the postmortem on the body of the deceased and proved the postmortem report Ex. PW19/A and 16 inquest papers Ex. PW2/A, Ex. PW13/A, Ex. PW1/A and Ex. PW19/B1 to B13. He also proved the opinion regarding the iron rod Ex. PW19/C and the iron rod is already Ex. P1.
83 of 94 84 FIR No. 144/08 PS Rohini PW19 Dr. V.K. Jha, in his examinationinchief has deposed that "I observed following external injuries on the dead body of deceased.
1. Fracture deformity of right arm at its upper end.
2. Lacerated penetrated wound of size 0.5x0.5 cm oval in shape present on right fore arm 3cm below right elbow joint on its outer aspect, margins were inverted (entry wound of fire arm).
3. Lacerated penetrated wound of size 1 cm X 1 cm present on right fore arm upper aspect 1.5 cm below right elbow joint, margins were everted (exit wound of injury no.1).
4. Lacerated penetrated wound of sixe 1 cm x 1 cm present in front of chest right side in tenth intercostal space obliquely lateral and 8 cm below right nipple. Margins were inverted, entry wound of the fire arm.
5. Lacerated wound on front of chest of size 1.5 cm x 1.5 cm placed 6 cm below right nipple. Margins were everted (exit wound of fire arm injury no.4).
6. Lacerated punctured wound on right ear extending to floor of mouth lacerating it and entered the cranium and lodged in the base of skull in between vertrabral muscles.
84 of 94 85 FIR No. 144/08 PS Rohini
7. Lacerated penetrated wound 1 cm x 1 cm present on upper aspect of right arm, no burning signing present, margins were inverted (entry wound of fire arm).
8. Lacerated wound on calvicular fossae 1.5 cm x 1.5 cm, margins were everted, bullet lodged in subcutaneous tissue (exit wound of injury no.
7).
9. Lacerated penetrated wound 6 cm above umblicus on right medial side of size 1 cm x 1 cm, margins were inverted (entry wound of fire arm).
10.Lacerated wound on left lateral side of umblicus 2 cm above it, margins were everted (exit wound of fir arm injury no.9).
On internal examination of head, there was fracture deformity of base of skull and on internal examination of abdomen, there was laceration of liver, spleen and upper surface of intestinal coil. After postmortem examination I opined cause of death as Craniocerebral damage as a result of fire arm injury. Fire arm injury was ante mortem in nature and injury no. 6 was sufficient to cause death in ordinary course of nature. Time since death was approx. was 17 hours and total no. of inquest were 16 in number which were returned alongwith the PM report to the police IO."
During his crossexamination on behalf of accused Sher Bahadur and Pappu, PW19 Dr. V.K. Jha has deposed 85 of 94 86 FIR No. 144/08 PS Rohini "There was no observation with regard to burning of blackening of the skin around the said wounds as noted in the external injuries. Vol. All negative findings are not usually mentioned in the PM report regarding burning, signing and tatooing. Three bullets which were recovered from the dead body were seized and were handed over to the police. It is wrong to suggest that I had prepared my report in mechanical manner at the instance of the IO."
During his crossexamination on behalf of accused Rakesh, PW19 Dr. V.K. Jha has deposed "It is correct that with the rod Ex.P1 exit wound of 1 cm x 1 cm is not possible. It is correct that there is no mention against injury no. 1 under external injuries that there was any blackening or redness or any wound over skin. All injuries were fresh in duration, therefore, duration in respect of injury no. 1 has not been mentioned. It is wring to suggest that the said injury no. 1 was an old injury. It is wrong to suggest that opinion Ex. PW19/C was given as per wishes of IO."
I have carefully perused and analysed the testimony of PW19 Dr. V.K. Jha and the postmortem Ext. PW19/A. Inspite of incisive cross examination of PW19 Dr. V.K. Jha nothing material has been brought out on the record so as to impeach his creditworthiness. In the witness box he has withstood the test of crossexamination. His testimony is cogent, 86 of 94 87 FIR No. 144/08 PS Rohini convincing and trustworthy.
In the circumstances, it stands duly proved on record that the death of deceased Vijay Kumar Sharma was homicidal in nature.
ELECTRONIC EVIDENCE:
43. PW20 Sh. Hans Dass Vadwani who proved the list of Cell ID Ext. PW20/A. He has further proved the call details of mobile phone no.
9868725163 from 01.03.2008 to 13.03.2008 Ext. PW20/B. (objected to on the mode of proof).
During his crossexamination PW20 Sh. Hans Dass Vadwani has deposed that "I was handed over the computer print out of the details of cell I D location. It is correct that the said details are not under my supervision. It is correct that Ext. PW20/A was not signed and endorsed by any superior officer. It is correct that Ex. PW20/A is not in accordance with Section 65 B of Evidence Act. It is correct that I cannot say that the call details of aforesaid phone numbers Ex. PW20/B were retrieved from our system or from any other system. It is correct that I have no knowledge about the GSM mobile system and network. Vol. I am working in administrative wing of 87 of 94 88 FIR No. 144/08 PS Rohini the MTNL. It is correct that I have simply produced the computerised record of cell ID of our services in the court."
I have carefully perused the testimony of PW20 Sh. Hans Dass Wadwani. Inspite of incisive crossexamination of PW20 Sh. Hans Dass Vadwani, the fact regarding the veracity and correctness of the call details of mobile phone no. 9868725163 Ext. PW20/B remained unchallenged/undisputed except for the origin of its retrieval and the objection on its (Ext. PW20/B) mode of proof by Ld. Counsel for accused . The fact that mobile phone no. 9868725163 belonged to accused Sher Bahadur is the admitted case of the Ld. Counsel for the accused, which I will discuss a little later.
During her crossexamination recorded on 26.05.2010 PW12 Smt. Sangita Sharma has deposed that "I do not remember whether Vijay Kumar Sharma was using mobile no. 9868371670 of MTNL and I was having mobile no. 9868744327."
88 of 94 89 FIR No. 144/08 PS Rohini "It is incorrect to suggest that I had telephonic conversation from my mobile no. 9868744327 on the mobile no. 9868725163 belonging to Sher Bahadur on 13.03.2008 at 11.27 am and informed him that somebody had shot Mr. Sharma yesterday night in the park. Volunteered, I cannot have telephonic conversation with anybody as both our phones were in the custody of police officials."
"It is incorrect to suggest that I used to have telephonic conversations from my mobile phone no. 9868744327 on the mobile phone of accused bearing no. 9868725163 for long durations in a day several times."
On careful perusal of the said part on the testimony of PW12 Smt. Sangita Sharma many facts comes to the surface which are to be noticed. Firstly Ld. Counsel for accused has himself admitted that mobile phone no. 9868725163 belonged to accused Sher Bahadur. Secondly, PW12 Smt. Sangita Sharma neither negated nor admitted the suggestion regarding using of mobile no. 9868371670 of MTNL by Vijay Kumar Sharma and of using of mobile no. 9868744327 by her but deposed that "I do not remember whether Vijay Kumar Sharma was using mobile No. 9868371670 of MTNL and I was having mobile no. 9868744327."
89 of 94 90 FIR No. 144/08 PS Rohini However, while negating the suggestion of having telephonic conversation from her mobile no. 9868744327 on the mobile no. 9868725163 belonging to Sher Bahadur on 13.03.2008 at 11.27 AM and informing him that somebody had shot Mr. Sharma yesterday night in the dark, has volunteered she cannot have telephonic conversations with anybody as both their phones were in the custody of police officials.
It clearly indicates that PW12 Smt. Sangita Sharma made a futile attempt to conceal the truth but it stands clearly established on the record that PW12 Smt. Sangita Sharma was having two mobiles, having no. 9868371670 and 9868744327, of which 9868371670 of MTNL was being used by Sh. Vijay Kumar Sharma and mobile no. 9868744327 was being used by PW12 Smt. Sangita Sharma.
Let me now further analyse the said part of testimony of PW12 Smt. Sangita Sharma reproduced hereinabove alongwith the call details of mobile phone no. 9868725163 Ext. PW20/B. 90 of 94 91 FIR No. 144/08 PS Rohini On careful perusal and analysis of the call details Ext. PW20/B it interalia shows that on 13.3.2008 at 11.27 AM, a call was made from mobile no. 9868744327 (PW12 Smt. Sangita Sharma) on mobile no. 9868725163 (accused Sher Bahadur) regarding which suggestion was made to PW12 Smt. Sangita Sharma, which was negated by her. It further shows that the calls detail record Ext. PW20/B is highly infested with calls from mobile no. 9868725163 to mobile no. 9868744327 and vice versa, with a reflection of numerous calls in a day. Even on 12.03.2008 the date of incident there are four calls from mobile number 9868725163 to mobile no. 9868744327 at 5:11:06 PM, 5:16:06 PM, 5:21:06 PM and 5:27:35 PM. On 13.3.2008, the next day of incident, there are four calls from mobile no. 9868744327 to mobile no. 9868725163 at 3:52:18 PM, 11:06:00 AM, 11:27:01 AM, 3:52:23 PM.
While discussing the evidence under the head MOTIVE FOR CRIME, it is an established fact on the record that accused Sher Bahadur was well known to PW12 Smt. Sangeeta Sharma. Even if telephone/mobile calls are shown between accused Sher Bahadur and PW12 Smt. Sangeeta Sharma on 12.03.2008 and for any other preceeding or succeeding days then how it connects the accused Sher Bahadur for the offence alleged. For the reason 91 of 94 92 FIR No. 144/08 PS Rohini that if accused Sher Bahadur was in contact with PW12 Smt. Sangeeta Sharma it means accused Sher Bahadur was not a person to whom PW12 Smt. Sangeeta Sharma did not like to talk. If PW12 Smt. Sangeeta Sharma liked to talk with accused Sher Bahadur then there was 'something' between the two, of which PW12 was also a party. If for that 'something' both accused Sher Bahadur and PW12 Smt. Sangeeta Sharma were party then why to single out accused Sher Bahadur only, why not PW12 Smt. Sangeeta Sharma also.
In the circumstances, the testimony of PW20 Hans Dass Vadwani is not of any assistance to advance the case of the prosecution rather retorts back and creates a question on the fairness of the investigation carried out.
44. From evidence existing on the record prosecution has miserably failed to prove cogently and firmly all the components, elements and links that PW12 Smt. Sangeeta Sharma and PW21 Shubham are the last seen evidence, that the recovery of motorcycle no. DL8SAB5704 (also Ext. P1, during the testimony of PW14 HC Jitender) vide seizure memo Ext.
92 of 94 93 FIR No. 144/08 PS Rohini PW14/E, was effected from the possession or at the instance of accused Sher Bahadur; that the recovery of cartridge and pistol of 7.65 mm Caliber marked Ext. F1 (projected as weapon of offence by prosecution) was in pursuance of pointing out cum seizure memo Ext. PW14/G and site plan of place of recovery Ext. PW14/H; that the iron rod Ext. P1 was the same regarding which opinion Ext. PW19/C was obtained; that as per FSL report Ext. PX, pistol of 7.65 mm Caliber marked Ext. F1 is the "weapon of offence"; and that accused Sher Bahadur had a motive for the committal of the crime.
45. In view of above discussion, I am of the considered opinion as far as the involvement of accused Sher Bahadur, Rakesh Kumar and Pappu in the commission of the offence u/s 302/34 IPC and that of accused Sher Bahadur also in the commission of the offence u/s 25 Arms Act, 1959 is concerned, the same has not been sufficiently established by the cogent and reliable evidence and in the ultimate analysis the prosecution has miserably failed to bring the guilt home to the accused Sher Bahadur, Rakesh Kumar and Pappu beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Sher Bahadur, Rakesh Kumar and Pappu. I, therefore, acquit Sher Bahadur, Rakesh 93 of 94 94 FIR No. 144/08 PS Rohini Kumar and Pappu for the offence u/s 302/34 IPC and accused Sher Bahadur also for the offence u/s 25 Arms Act, 1959 after giving them the benefit of doubt. Accused Sher Bahadur, Rakesh Kumar and Pappu are running in JC. They be released forthwith, if not wanted in any other case. Announced in the open Court today on 24th Day of April, 2012 (MAHESH CHANDER GUPTA) Addl. Sessions Judge- IV/Outer District Rohini/Delhi.
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