Delhi District Court
State vs . : 1) Vikas @ Vicky on 29 April, 2017
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT,
ROHINI COURTS: DELHI
Sessions Case No:58007/16
FIR No. : 69/12
U/s : 394/302/411/120B IPC
P.S. : Samay Pur Badli
State Vs. : 1) Vikas @ Vicky
S/o Sh. Balbir Singh
R/o H.No.542, Brahmin
Mohalla, Kheda Kalan,
Delhi.
2. Ajay Dhania @ Chhota
S/o Sh. Ram Kumar
R/o H.No.18/778, New
Harijan colony, Siraspur,
Delhi
3. Raju
S/o Sh. Ram Kishan
R/o H.No.186, Balmiki
Mohalla, Alipur, Delhi.
4. Ajay @ Rinku
S/o Sh. Banarsi Dass
R/o H.No.154-B, Kheda
Kalan, Delhi.
Offence complained of : 302/394/397/411/120B IPC
& 25/27/54 Arms Act.
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of committal : 06/07/2012
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Date of Judgment : 29/04/2017
JUDGMENT
1. On 23.02.2012 at about 8:43 pm information was received at PS: Samay Pur Badli that, " Libaspur GTK road near Apna Dhaba Ek Admi ko goli Lagi hai". On this information DD No.56 A was recorded. SHO, SI Prakash Chand and other staff reached the spot. They found one male aged about 28-30 years lying in a pool of blood in the middle of the stairs at building No. B-4 Ambey Garden, Libaspur near GTK road. The word 'Sonu' was found tatooed on the left arm. The height of the injured was 5'6". He was having gun shot injury on his right thigh. The injured was shifted to BSA hospital. The scene of crime was inspected by Crime Team. The photographs were taken. One lead of the fired bullet and empty cartridge was found lying on the roof. On the roof there were two small tables, a wooden cot and small paper slips having various numbers written on those were also found lying on the cot. No eye witness was found. The exhibits were lifted. The doctor declared the injured brought dead.
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2. The deceased was identified as Sonu son of Nakshu Lal. During investigation the witness Bijender met, whose statement was recorded. He told that on 23.02.2012 two young boys came at the building No. B- 4, Ambay Garden, Libaspur having Desi katta and knife. They inquired about Satpal @ Sattay who was not there. They threatened the persons present on the roof not to move. One of boy who had come for playing satta stood up and wanted to move. He was immediately shot at by Vikas. That boy sustained injury in his left leg and fell down. He became unconscious near the stair case. The other boy was having knife whose name was Raju. Raju pushed this witness and took out Rs.4800/- from the drawer of the table. Both the assailants decamped from the stair case. Bijender followed them. Both the accused fled away on the motorcycle along with third boy on motor cycle No. DL 1SE 8992. Ct. Vinod who was present in the area tried to chase and apprehend them but they managed to escape on motorcycle. During investigation accused Ajay Dhaniya @ Chotta, Vikas @ Vicky and Raju were arrested. Motorcycle was driven by Ajay Dhaniya. It was revealed that it was done State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 3 ::
in furtherance of criminal conspiracy hatched by the accused persons with Ajay @ Rinku to kill Satpal @ Sattay. All the accused were identified by eye witenss Bijender and Ct. Vinod. Ajay @ Rinku was identified by Satpal @ Sattey. During investigation pistol was also got recovered by accused. After completion of investigation charge sheet was filed against accused persons.
3. Ld. MM after compliance of section 207 Cr.PC committed the case to the Sessions court as the offence punishable u/s 302 IPC and 397 IPC are exclusively triable by the Sessions court.
4. All the 4 accused were charged for the offence punishable u/s 120B IPC. Accused Vikas, Ajay Dhaniya @ Chotta and Raju were also charged for the offence punishable u/s 302/34, 392/34, 394/34 IPC. Accused Vikash @ Vicky and Raju were also charged for the offences punishable u/s 397 IPC & 27 Arms Act. All the accused persons pleaded not guilty and claimed trial.
Thereafter, the case was fixed for prosecution evidence.
5. Bijender Singh was examined as PW-1. He deposed that he used to work at the shop of Satyapal @ Sattey who was running the cable and mobile recharge State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 4 ::
business from B-4, Ambay Garden, Libas Pur. He was sitting on the roof in the shed of thatches. Accused Vikas and Raju came. Accused Vikas asked this witness not to move and also said if anybody moved he would be killed. Vikas was having a pistol in his hand. Accused Raju was having a knife in his hand. Raju put the knife on the neck of this witness, opened the drawer and took out currency notes amounting to Rs.4800/-. Raju pushed this witness. One of the person present there tried to run away. Accused Vikas fired on him. Thereafter both the accused and other persons ran towards stair case. He chased the accused persons but they ran away on motor cycle as third accused was sitting on motor cycle which was in start condition. He made a call at 100 number. Police arrived there. He took the police officials to the place of incident. He stated that he could not see the face of third accused. On 02.03.2012 he was called in the Police station where he identified accused Vikas and Raju. He can not identify the knife and pistol and also the third person who was keeping the motorcycle in start position.
6. Ld. APP for the State put some leading question State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 5 ::
with permission of the court with respect to the weapon of offence and the witness stated that he had not seen the weapons at the scene of crime and therefore cannot identify the same. He also stated that he had not seen Ajay Dhaniya @ Chhota on the spot and hence, cannot identify him.
7. During cross-examination by defence he stated that he used to work as peon in the office of Sat Pal @ Sattay in the year 2012. His duty was from 10 am to 5 pm. On 23.02.2012 morning he arrived in office of Satpal @ Sattay and went to his house. He came back at 9 pm as he was called there by some police officials. Lot of police officials and public persons were there. His mobile phone was taken by the police. He was taken to the police station where he was kept upto 25.02.2012. He told the police that he left the office of Satpal on 23.02.2012 at 5 pm. On 19.12.13 he was brought to the court by SI Satish. On that day he was called to the police station at about 8:00 am. He was made to understand by SI Satish that he has to identify two persons who had fired and thereafter he would be free. Accused Raju and Vikas were not known to him prior to State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 6 ::
the identification in the court on 19.12.13. He had seen accused Raju and Vikas first time in the police station Samay Pur Badli on 25.02.2012 and were shown to him by SI Satish. He admitted that police suspected that he is involved in commission of crime.
8. On 28.02.2012 he was taken to Rohini Jail by SI Satish. He was told by SI Satish to identify accused Raju and Vikas who were shown to him on 25.02.2012.
He did not make any PCR call. He gave his statement on 19.12.13 before the court on the asking of SI Satish and was not a voluntary statement.
9. In reply to court question as to why he did not tell this fact to the court he stated that he was scared of SI Satish. He stated that he did not make any complaint accusing SI Satish or any other police official till that date. He is 10th pass and working as helper. For the last one year he did not ask for the security from the police. He does not know as to in which manner Sonu was killed and who killed Sonu. In reply to the court question he replied that his mobile Number was 8802458364. He stated that his mobile phone was taken by the police at around 8:30 am on 23.02.2012 when police came to his State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 7 ::
house and took him to the spot.
10. On the request of Ld. APP re-examination of this witness was allowed. Wherein he stated that he had not heard the noise of firing infact had not seen any firing. At the time of incident he was not there. He was brought to the spot lateron by the police officials. Thereafter, Ld. APP requested for cross-examination of this witness which was allowed.
11. During cross-examination by APP he stated that police made inquiries from him on 24.02.2012 in the PS. He denied the suggestion that he deposed before the court on 19.12.13 voluntarily or that he was not tutored by SI Satish. He denied the suggestion that he has been threatened by the accused persons or won over by them.
12. Naksu Ram was examined as PW2. He identified the dead body of his son Sonu in the mortuary of BSA hospital on 25.02.2012 vide documents Ex.PW2/A. The dead body was handed over to him after post mortem vide Ex.PW2/B. He stated that he does not know why his brother had gone to the spot.
13. Sh. Ram Swaroop was examined as PW3.
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Deceased Sonu was his real brother. On the intervening night of 23/24.02.2012 he came to know about death of Sonu in the area of Samay Pur Badli. He identified dead body of his brother Sonu vide Ex.PW2/A. After post mortem the dead body was handed over to his father.
14. Ct. Vinod was examined as PW4. He deposed that on 23.02.2012 he was on patrolling duty in the area of PS Samay Pur Badli. At about 8.30pm, he was in the area of Ambay Garden near Apna Dhaba, Libaspur, Delhi. He heard the sound of fire from the roof of a building. He immediately reached there and saw a man lying in the middle of stairs in a pool of blood. That person had sustained fire arm injury on his right thigh. He called the duty officer and told him about the incident. After sometime SHO reached there. PCR van alongwith PCR official also reached there. Injured was taken to BSA hospital by PCR van. Thereafter, they all reached at the roof of the building. Two tables and a takhat were lying on the roof with some paper slips. SHO left the spot leaving him there. He also deposed that when he saw the injured lying in the staircase he also saw three boys one off whom was having a knife State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 9 ::
and another having katta and the third boy was not having anything in his hand coming out of the building and fled away on motorcycle bearing no.DL1SE8992 black colour parked outside the building. The boy driving the motorcycle was about 6ft.
15. On 02.03.2012 four persons were present in the PS and out of them he identified three persons whom he had seen at the spot. He identified the accused Ajay @ Dhania as the person who was driving the motorcycle, Vikas @ Vicky who was having katta and Raju who was having knife. He identified the motorcycle as Ex.P-1. He stated that he cannot identify the knife and the katta as he had seen the same only for few seconds.
16. During cross-examination for Ajay @ Rinku, he stated that he was patrolling alone on his personal bike. He was parking his bike, when he saw the three accused running from the building. He saw the accused from a distance of about 50 meters. He reached there only after hearing the noise of firing. He had also seen some other persons running from the spot. He had seen the accused persons running within a gape of 4/5 minutes after hearing the sound of firing. One/two State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 10 ::
public persons stopped on seeing him near the injured. It was night time but lights were on. He denied the suggestion that there was dark and he could not see the face of accused persons due to darkness. He saw them coming out of the building and thereafter riding on the motorcycle. He did not try to apprehend them or chase them. First of all PCR van reached there. Thereafter, police from the PS also reached but till then injured was not removed.
17. During cross-examination for accused Vikas, he stated that telephone no.8802458364 does not belong to him. He did not make any call to the police control room. He made call to the duty officer about the incident at about 8.30 pm. PCR has reached the spot at about 8.45 pm. Two/three boys came there on seeing him but police did not make inquiry from them. He himself did not remove the injured before arrival of the police. He remained there upto 1.30 am. He did not make any statement to the PCR official or to the SHO or any other local police official. His statement was recorded first time on 24.02.2012 at about 11:00/11:30am. He was at a distance of about 200 sq. yd. from the place of State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 11 ::
occurrence when he heard noise of fire shots. From that place, the place of occurrence was not visible. He reached there and inquired from the public person as to what had happened. The public persons told him that fire shots have been heard from the roof of one of the shop and they also indicated that roof. He went towards that roof and found one person lying midway in the staircase. He did not make any call to the ambulance or PCR. He did not ask any public person to remove the injured to the nearby hospital or to the doctor. During the time they remained at the spot upto 1.30 am, no person came forward calling to be an eye witness. He was taking care of the injured and hence did not notice as to in which direction the accused persons fled away. He cannot tell the exact number of boys who ran away from the spot. It may be one, two or three. He cannot tell if there was any street light or not. He denied the suggestion that he has not witnessed anything but has been introduced as a witness later on.
18. During cross-examination for accused Ajay @ Chhota he stated that he did not tell the registration number of the vehicle, on which the accused persons State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 12 ::
had fled, to the police. He saw the accused persons in the PS on 02.03.2012 at about 11.00 or 11.30am.
19. Sh. Narender was examined as PW5. He is the owner of the motorcycle make Yamaha. He bought that motorcycle from one Sis Ram R/o Libaspur for a sum of Rs.15,000/- about 10 days prior to that date. The police came to his house in the month of March, 2012. He never handed over the motorcycle to any body and nobody had borrowed the same from him. He had not entered into an agreement to sell the motorcycle. He admitted his signature on the seizure memo Ex.PW5/A. Ex.PW5/B and Ex.PW5/C, form 30 of the Motor Vehicle Act and identified the signature of Sis Ram on Ex.PW5/D and Ex.PW5/E. He signed Ex.PW5/A at the instance of Sis Ram when it was blank. He does not know any of the accused persons. He was cross-
examined by Ld. Addl. PP wherein he admitted that the registration number of motorcycle is DL1SE8992. He denied the suggestion that he handed over the documents Ex.PW5/B to Ex.PW5/E to the police. He denied the suggestion that Ex.PW5/A was not blank when he signed it. He denied the suggestion that he State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 13 ::
handed over the possession of the motorcycle to accused Ajay @ Rinku on 17.02..2012. He denied the suggestion that on 23.02.2012 accused Ajay @ Dhania alongwith accused Ajay @ Chhotu, Vikas @ Vicky and Raju had taken the motorcycle from Ajay @ Rinku. He denied the suggestion that Ajay @ Rinku did not get the motorcycle transferred in his name intentionally. He stated that he has never sold the motorcycle to Ajay @ Rinku. He identified the motorcycle as Ex.P-1. The testimony has gone unchallenged and uncontroverted.
20. Sh. Amir Ali was examined as PW6. He stated that he was doing the business of selling CDs and Cassettes in fish market. He does not know any of the accused persons. Accused persons never came to him for any purpose. He was cross-examined by Ld. Addl.
PP but he did not support the prosecution case. He denied the suggestion that he was doing satta/gambling or was keeping the record of the same. He also denied the suggestion that accused Ajay @ Rinku used to operate satta from Swaroop Nagar or that accused Ajay @ Chhottu, Raju, Vikas @ Vicky used to work for accused Ajay @ Rinkui. He denied the suggestion that State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 14 ::
on 25.02.2012 accused Ajay Dhania @ Chhotu come to him asking him for a loan of Rs.10,000/- on which he asked for reasons on which accused Ajay Dhania said him that he required this money for paying expenses of a case. He also denied the suggestion that accused Ajay @ Dhania told him that he alongwith Ajay @ Rinku will kill Satpal @ Satte or that accused Ajay @ Rinku had provided him countrymade pistol, one cartridge, one knife and the motorcycle or that thereafter, all the accused being armed with the weapon provided by Ajay @ Rinku proceeded to commit murder of Satpal @ Satte and to rob him on the motorcycle provided by Ajay @ Rinku or that thereafter, Ajay @ Dhania remained on the ground floor and the Vikash @ Vicky and Raju on top stairs looted money and also killed one person. He denied the suggestion that accused Ajay @ Dhania also told him that he visited Tihar Jail to inform Ajay @ Rinku or that Ajay @ Chhota went inside the jail to inform Ajay @ Rinku.
21. Inspector Anil Kumar was examined as PW7. He was the Incharge Crime Team. He alongwith team i.e. photographer Ct. Hansraj reached the spot. Ct. Hansraj State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 15 ::
took the photographs. He inspected the scene of crime and submitted his report Ex.PW7/A.
22. Sh. Sis Ram was examined as PW8. He sold his motorcycle no.DL1SE8992 on 04.01..2012 to one Narender Singh for a consideration of Rs.7000//-. He proved the copy of form 30 as Ex.PW5/B and Ex.PW5/C and form 29 as Ex.PW5/D and Ex.PW5/E. He proved the copy of delivery receipt as Ex.PW8/A. Narender assured that he will get the vehicle transferred in his name but he came to know that this vehicle is still in his name.
23. HC Prem Chand was examined as PW9. On 24.02.2012 he delivered the copy of FIR to the area Metropolitan Magistrate and the senior police officials.
24. Sh. Brijesh Kumar was examined as PW10. He is the director of Jai Hind Intentional School, Narela. He got constructed one tea shop at B-4, Ambay Garden, Libaspur. Out of that 19 shops were sold to different persons by his father. He is not having any right in the building i.e. B-4, Ambay Garden, Libaspur. He does not know who was present on the roof of the above building at the time of above incident.
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25. ASI Anil Kumar was examined as PW11. On 25.02.2012 he was posted as HC in Special Staff, Outer District. He received information that three boys who had committed murder at Apna Dhaba, Libaspur would come in a maruti car and would go towards Prahlad Pur Khera. He passed on this information to senior officers.
On the direction of the senior officer, a raiding party was formed comprising of police officials. They proceeded towards Khera Prahlad Pur in pvt. vehicle and motorcycle. At about 2.30pm one maruti car of mehroon colour from the side of Khera Prahalad Pur was signaled to stop. The occupants got down and tried to escape but were over-powered. He apprehended Ajay @ Chhotu and one country made pistol was recovered from the left side dub of the pants of accused Ajay @ Chhotu. The person driving the vehicle was apprehended who disclosed his name as Vikas. One pistol and two live cartridges were recovered from his possession and the person sitting on the rear seat was also apprehended who disclosed his name Raju. He also identified Raju. He got registered FIR no.60/12. One button actuated knife was recovered from the State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 17 ::
possession of Raju. He identified the case property and also proved the memos Ex.PW11/A to Ex.PW11/S.
26. During cross-examination he denied the suggestion that accused persons were not arrested in the manner as deposed by him or he did not make any disclosure statement or that case property was planted upon them.
27. Dr. Kuldeep Singh was examined as PW12. He was working as CMO in Dr. BSA hospital on 23.02.2012.
On that day at 10.00pm a patient was brought in the emergency by PCR official HC Kailash with alleged history of sustaining gunshot injury about 45 minutes back as told by PCR official. He examined the patient and declared him brought dead. The articles and clothes of the deceased were sealed and handed over to the IO. He proved the MLC of the patient as Ex.PW12/A.
28. Ct. Hans Raj was examined as PW13. He was photographer of mobile crime team. He visited the spot alongwith crime team. Took the photographs. He proved the photographs as Ex.PW13/1 to Ex.PW13/23. The negatives are collectively proved as Ex.PW13/2.
29. Sh. Satpal was examined as PW14. He State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 18 ::
deposed that he was running a STD PCO booth. One boy Vijender used to work with him. His booth was situated in Ambey Garden near Delhi Dharam Kanta, GT Karnal Road, Libaspur. On that day at about 9.00 pm he was present at his house. He received call from Vijender who said that some incident had taken place on the roof of the booth and asked him to reach there. He asked Vijender to make complaint to the police. He also reached at PCO booth. When he reached the booth Bijender told him that someone had shot one person whose dead body is lying on the roof. He was cross- examined by Ld. Addl. PP but he did not support the prosecution case. He also stated that he does not know any of the accused.
30. SI Veer Sain was examined as PW15. He deposed that he was on patrolling duty alongwith Ct. Anand and Ct. Baljeet. At about 12.00 pm he was present at Pusta Road. They received information that a boy who is PO from Roop Nagar would be passing from there. At about 12.40 pm a person was seen coming from the side of Burari Road. Informer pointed out that boy. He was apprehended. That boy disclosed his name State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 19 ::
Ajay @ Rinku. He was formally arrested in the kalandra U/S 41 Cr.P.C. Photocopy of kalandra is proved as Ex.PW15/A.
31. HC Jagdish Chand was examined as PW16. He was working as duty officer at PS Samaypur Badli on 24.02.2012. He proved the copy of FIR as Ex.PW16/1. Endorsement on the rukka is proved as Ex.PW16/2.
32. Sh. Mahesh Kumar was examined as PW17. He prepared the scaled site plan at the instance of Inspector Dharamvir and proved the same as Ex.PW17/1.
33. W/HC Rashmi was examined as PW18. She was posted in the CPCR police Head Quarter on 23.02.2012. He proved the form no.1 filled on the basis of information received as Ex.PW18/1.
34. HC Ravinder Singh was examined as PW19. He proved the copy of FIR no.27/97 which is Ex.PW19/A.
35. SI Rajbir Singh was examined as PW20. He proved the copy of FIR no.16/12 of PS Shahbad Dairy as Ex.PW20/1.
36. HC Neeraj Rana was examined as PW21. On 25.02.2012 the investigation of the case FIR no.60//12 State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 20 ::
was assigned to him after registration of the FIR. He reached at the spot. HC Anil produced accused Ajay @ Chhotu, Vikas @ Vicky and Raju before him. He interrogated and formally arrested them. He proved the arrest memos as Ex.PW21/A-1, Ex.PW21/B-1 & Ex.PW21/C-1. They all made disclosure statement which are Ex.PW20/A, Ex.PW20/B2 and Ex.PW20/C2. He also seized Rs.2500/- vide seizure memo Ex.PW21/A. Maruti car was seized vide memo Ex.PW21/E. He passed on the information regarding arrest of the accused persons to PS Samaypur Badli. Nothing material came during his cross-examination to discredit the witness.
37. ASI Shakti Raj was examined as PW22. He proved the DD no.56A dated 23.02.2012 PS Samaypur Badli as Ex.PW22/1.
38. Ld. APP submitted that in this case there is an eye witness Bijender PW-5. He has fully supported the prosecution case. He was present on the roof where the incident had taken place. He identified both the assailants. He said that accused Raju was having knife, Vikas was having a pistol in his hand. Raju also put State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 21 ::
knife on his neck and removed Rs.4800/- from his drawer. Accused Vikas said that no body shall move but one of the person who was present there tried to run away and accused Vikas fired on that person. That person fell in the stairs and became unconscious. Both these accused persons ran away on the motorcycle with Ajay Dhania. The testimony of PW-1 is corroborated by the testimony of PW-4 who was patrolling in the area at that time. He reached there on hearing the sound of firing and saw the accused persons coming down stairs. Accused Vikas was having pistol in his hand. Raju was having knife in his hand and they fled away on the motorcycle with accused Ajay Dhania.
39. Ld. APP submitted that keeping in view this testimony of PW-1 finding corroboration from the testimony of PW-4, it is clear that the offence was committed by the three persons. The deceased was identified as Sonu son of Nakshu Lal. The testimony of PW-1 also finds corroboration from the post mortem report proved on record as Ex.PW-27/A and according to the report, the cause of death is hemorrhagic shock consequent to penetrating injury to the lower limb State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 22 ::
caused by a projectile discharged from a fire arm weapon capable of discharging such a projectile. The limb injury was sufficient to cause death in ordinary course of nature. All injuries were ante mortem and fresh in duration. Ld. APP submitted that this offence was committed by the accused persons in conspiracy with Ajay @ Rinku as they wanted to kill Satpal examined as PW-14 as Ajay @ Rinku used to demand commission from Satpal, who was running a gambling racket (satta) from that place, which Satpal refused. Ajay @ rinku in order to teach him a lesson and to get commission hatched this conspiracy. In furtherance of that conspiracy accused Vikas, Raju and Ajay @ Dhania reached there i.e. place from where satta was being organized by Satpal to kill him but resulted in killing of Sonu. Ld. APP submitted that as the offence was committed in pursuance to the conspiracy for murder, therefore, Ajay @ Rinku is also liable. Ld. APP submitted that though Satpal could not be murdered but as the offence was committed in pursuance to that conspiracy, therefore irrespective of the fact that another person had been murdered in place of Satpal despite State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 23 ::
that Ajay @ Rinku is liable for the murder of Sonu. Ld.APP submitted that both the witnesses PW-1 and PW-4 have corroborated each other. They have stood through the test of cross examination. The testimony of PW-1 also finds corroboration from the medical evidence I.e post mortem report Ex.PW-27/A. Both the witnesses are reliable and trust worthy. There is nothing on record that there is any reason for them to depose falsely against the accused persons. Ld.APP submitted that onus which was on the prosecution has fully been discharged and prayed that all the accused persons be held guilty for conspiracy to murder Satpal and accused Ajay @ Dhania, Vikas and Raju be also held guilty for committing murder of Sonu in pursuance to the conspiracy hatched with Ajay @ Rinku to murder Satpal.
40. Ld. Defence counsel submitted that the onus which was on the prosecution has not been discharged.
The testimony of PW-1 does not inspire confidence. Ld. Counsel submitted that in fact he was not present there and had not witnessed the incident. Ld. Counsel submitted that though PW-1 himself had admitted during the cross examination by the defence and during re- State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 24 ::
examination of the witness by Ld.APP that he was not present on the spot and he did not witness the incident. The witness also stated that he was called there later on and he was under pressure by the police to make such statement. Ld. Counsel submitted that besides that from the evidence brought on record also, it is clear that no eye witness was present on the spot. Ld. Counsel submitted that according to the evidence and as per the prosecution story PW-1 was present on the spot but the FIR was not registered on the testimony of Bijender. Rather it is specifically mentioned in the rukka Ex.PW- 31/A that no eye witness was present on the spot. Ld. Defence counsel submitted that this clearly shows that PW-1 was not available there. According to the prosecution story, PW-4 was the person to reach the spot. He also does not say any thing about the presence of PW-1 on the spot. Ct. Vinod alleges himself to be the eye witness. According to rukka he was present on the spot but still his statement was not recorded. His statement was recorded only after the registration of the FIR. Ld. Counsel submitted that presence of Ct. Vinod is also doubtful. He did not try to chase the accused State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 25 ::
persons. He did not shift the injured to the hospital. He did not inform the PCR. There is no such record available that he even informed the duty officer of the PS about the incident and that he is an eye witness. The injured was removed from the spot by the PCR but he did not tell the PCR official that he witnessed the incident or even to the IO that he witnessed the incident. Under the circumstances, it is clear that he was not there. Otherwise he must have chased the accused persons or informed the police. Ld. Counsel further submitted that PW-4 also contradict the testimony of PW-1 and also the story of prosecution. According to the story of prosecution accused Vikas and Raju went up stairs committed the offence, whereas accused Ajay @ Dhania remained seated on the motorcycle on the road. Keeping motorcycle in start condition. After committing the offence both the accused persons came down and fled away on the motorcycle with Ajay @ Rinku, whereas according to PW-4, three boys came running down stairs, started the motorcycle and fled away which is in contradiction with the prosecution story and also shows that PW-4 was introduced later on. Ld. Counsel State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 26 :: submitted that both the witnesses are not reliable and trust worthy. Benefit of same be given to the accused persons and they be acquitted. Ld. Counsel in support of his arguments relied upon the judgments cited as follows:
i) Vankat Salum & Anr Vs. State(Delhi Admn) decided by Delhi High court on 15.04.2009
ii) Anil Kumar Gaur @ Titu Vs. State of NCT of Delhi decided by High Court of Delhi on 05.02.2009.
iii) Abdul Rahim Alias Indori Vs State of NCT of Delhi decided by High Court of Delhi on 04.05.12
iv) Musheer Khan @ Badshah Khan and Anr. Vs. State of Madhya Pradesh decided by Supreme court of India on 28.01.10
41. After hearing the arguments and going through the record, I found that in this case there is an eye witness PW-1. In his examination in chief he described the role of the accused persons and that after firing both the accused fled away. They went down stairs. This witness also chased them but they ran away on the motorcycle as third accused was sitting on the motorcycle which was in start condition. He also made a State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 27 ::
call at 100 number. He identified the accused persons and also the case property. But during his cross examination, he stated that he was not present on the spot as he left the office at 5 PM. At 9 PM he was called on the spot by the police officials. They also took his mobile phone. He was taken to the police station and remained there upto 25.02.12. He stated that he has not witnessed the incident and he made the statement under the pressure of SI Satish. He was cross examined by Ld. APP wherein he stated that, "I had not heard the sound of firing. I had not seen any firing. At the time of incident I was not there. I was brought to the spot later on by the police officials. I did not mark my presence in any register for my duty on that day or prior to that day".
42. From this it is clear that the witness is now saying that he was not present at all on the spot. If this testimony is considered along with the testimony of the other witnesses then it creates doubt about the presence of PW-1 on the spot. According to PW-1 he made a call at 100 No. Police came there and he took State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 28 ::
the police upstairs. But the police officials, who reached on the spot stated that no eye witness met them on the spot. Inspector Dharambir Singh, who was examined as PW-31 stated that no eye witness was found there and they left Ct. Vinod to guard the place of occurrence. PCR form has also been proved on record as Ex.PW- 18/1. In the PCR form also, which also have the record of information given by Libra-67 from the spot there is no such mention that Bijender or any other eye witness was present on the spot. Even in the rukka Ex.PW-13/A, it is mentioned that no eye witness met them on the spot. However it is important to note that the call at 100 No.was made from the mobile no.918802458364 which is the mobile number of PW-1. But keeping in view the testimony of PW-1 coupled with the facts that even the police persons does not say that eye witness was present on the spot. Even the report of crime team Ex.PW-7/A it is mentioned that look for the eye witness meaning thereby that PW-1 was not present there till crime team remained on the spot.
43. According to the prosecution story PW-4 was the first police official who reached the spot. He also does State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 29 ::
not say that any eye witness was present on the spot. All these facts creates doubt regarding the presence of PW-1 on the spot coupled with the testimony of PW-1, who himself stated during cross examination that he was not present on the spot at the time of incident. In my opinion no reliance on his testimony can be placed.
44. So far as PW-4 is concerned, he alleged that he reached the spot on hearing the sound of firing.
Meaning thereby that he was not present there when the incident took place. But his conduct makes his presence even immediately after the incident doubtful. He did not remove the injured from the spot. He did not make any call either to the police or to the PCR. Though he alleged that he informed the Duty officer but no such DD entry has been placed on record. He even did not try to chase the accused persons. He deposed that, " I can not tell the number of boys ran away from the spot. It may be 1, may be 2 or it may be 3. I did not make any call to the PCR that some person had run from the spot. I can not tell whether there was any street light or not. It was night time. I can not tell what was the arrangement of light or State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 30 ::
there was any light or not at the spot nearby. I did not tell that PCR officials had heard the gun shot fire. I had not told the PCR official. I had not seen boys running away from the spot. I did not tell the aforesaid facts to the crime team official also. Vol. I told the said fact to the IO at about 11.30AM. I told aforesaid facts to the SHO on the same day but the statement was given by me on the next day."
45. From this testimony it is clear that he did not disclose to any body till 11/11.30 on 24.02.12 that he had seen the accused persons running away, though he was present on the spot and met the IO also. It is also important to note that he was about 200 sq.yards from the place of occurrence when he heard the noise of fire shot. From that place the place of occurrence was not visible. After reaching there he made inquiries from the person as to what had happened and those persons told him that fire shots have been fired from the roof of one of the shop and only thereafter he reached there which clearly shows that he had not seen any person fleeing from the spot. He has been introduced later on which is State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 31 ::
evident from the facts that he did not try to chase the accused persons or help the injured to remove him to the hospital or informed the PCR or police station about the incident and did not disclose anybody that he had seen the accused persons fleeing or that he can identify.
46. Keeping in view all these facts, in my view so far as PW-4 is concerned, he is also not reliable. Besides these eye witnesses there is another circumstance in this case i.e. extra judicial confession. No doubt extra judicial confession is weak type of evidence but in this case allegedly the accused Ajay @ Rinku persons made confession before Aamir Ali examined as PW-6 that they went to kill Satpal @ Satte but killed some body else.
But Aamir Ali did not support the prosecution case at all. He even stated that he does not know any of the accused persons present in the court and that accused persons never came to him for any purpose. He was cross examined by Ld. APP but he denied the suggestion that accused Ajay @ Rinku made extra judicial confession before him.
47. Keeping in view this fact, I found that so far as the circumstance of extra judicial confession of the State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 32 ::
accused Ajay @ Rinku is concerned that is also not established.
48. The next circumstance which the prosecution alleges is the recovery of motorcycle at the instance of accused. The witnesses examined in this regard have also proved the recovery but there is no evidence on record that this motorcycle was used in the commission of offence. PW-1 has not given the number of the motorcycle on which the accused persons allegedly fled away. The motorcycle has not been identified by PW1 as the same on which the accused persons fled away. PW-4 has identified the motorcycle as Ex.P1 and also gave its number. But keeping in view the fact that the public witness PW-1 does not support the story that it is the same motorcycle on which accused fled away creates doubt about story of prosecution. As per record the motorcycle is in the name of Narender. He did not support the prosecution case. He deposed that he did not sell the motorcycle to Ajay @ Rinku and also did not hand over the possession of motorcycle to any one. Keeping in view this statement it is clear that the story of prosecution that this motorcycle was of Ajay @ Rinku State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 33 ::
itself is demolished. Keeping in view all these facts and evidence in my opinion this circumstance is not established.
49. From the spot one bullet and empty shell were recovered. The bullet and empty shell were sent to FSL for analysis with the pistol recovered from Vikas. As per ballistic report it cannot be opined that the empty shell or bullet were fired from that pistol. There is also recovery of knife from accused Raju. PW-1 did not identify the knife as the same which was put on his neck by accused Raju. Keeping in view all these facts, the above discussion with respect to eye witness, the extra judicial confession and the circumstances does not prove the case of the prosecution. It is well settled principle of the law that the circumstances established shall point towards the guilt of the accused and at the same time it shall be in consistent with any hypothesis of innocence of accused. The circumstances proved shall also form a complete chain, pointing towards the guilt of the accused, which is missing in this case. Keeping in view all these facts in my opinion prosecution has failed to prove its case beyond doubt. therefore, they all are State Vs. Vikas @ Vicky etc. SC No.58007/16 :: 34 ::
acquitted giving the benefit of doubt. They be released on furnishing of Personal Bonds of Rs. 20,000/- each with one Surety of the like amount each u/s 437(A) Cr.PC for the period of six months.
File be consigned to Record Room.
Announced in the open court today on 29.04.2017 (VIRENDER KUMAR BANSAL) ASJ/Pilot Court/North District Rohini Courts/New Delhi.
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