Delhi District Court
State vs . Bijender @ Bandri & Anr. on 31 March, 2018
IN THE COURT OF SH. JITENDRA KUMAR MISHRA, SPECIAL
JUDGE (NDPS), NORTH, ROHINI COURTS, DELHI.
SC No.58015/16
FIR No.403/14
PS Alipur
U/s 302/120B/34 IPC
STATE
Vs.
1.Bijender @ Bandri, S/o Sh. Pratap Singh, R/o H. No. 7677, Village Kundli, PS Kundi, District Sonepat, Haryana.
2. Meer Singh (Since Dead and Proceedings abated), S/o Sh. Rati Ram, R/o Village Shersah, P.S. Kundli, District Sonepat, Haryana.
3. Hanuman @ Sandeep, S/o Sh. Azad Singh, R/o Rurkee Pana Harijan, District Rohtak, Haryana.
State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 1 of 38
Date of Assignment :01.09.2014
Date of Reserving Judgment :09.03.2018
Date of Judgment :31.03.2018
JUDGMENT :
1. Accused persons had been arrested by the Police of Police Station Alipur, Delhi and had been challaned to the Court for trial for commission of offences punishable under Sections 302/120B/34 of the Indian Penal Code, 1860 (in short 'IPC') and under Sections 25 & 27 of Arms Act.
2. The case of the prosecution, in brief, is that all the three accused persons namely Bijender @ Bandri (A1), Meer Singh (A2) (since dead and proceedings already abated vide order dated 23.02.2018) and Hanuman @ Sandeep (A3) entered into a conspiracy to commit murder of Surender and consequently, murdered Surender on 28.04.2014 sometime between 8.00 PM to 9.08 PM on main GTK Road, near Singhu Village, Delhi by using a desi katta by accused Bijender @ Bandri. DD No.31A was received at PS Alipur regarding firing on a person and was assigned to SI Satish Kumar for taking necessary action, who reached at the spot but no eye witness was found at the spot. Later on, FIR was registered vide DD No.3A dated 29.04.2014. MLC was obtained State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 2 of 38 from the hospital vide which patient Surender was declared brought dead. After completion of investigation and conducting other necessary formalities, charge sheet was filed in the court for commission of offences punishable under Sections 302/120B/34 IPC & U/s 25/27 of Arms Act.
3. After supplying copies of the documents to all the three accused persons U/s 207 Cr.P.C., ld. Metropolitan Magistrate committed the present case to the Court of Sessions.
4. Vide order dated 07.08.2015, charge U/s 120B IPC, U/s 302/120B IPC was framed against all the three accused persons namely Bijender @ Bandri (A1), Meer Singh (A2)(since dead and proceedings already abated vide order dated 23.02.2018) and Hanuman @ Sandeep (A3) and a separate charge for offence punishable U/s 25 & 27 of Arms Act was framed against accused Bijender @ Bandri. Accused persons pleaded not guilty and claimed trial. They were accordingly put to trial.
5. In order to prove its case against accused persons, prosecution examined thirty four (34) witnesses in all.
State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 3 of 38
6. Statement of all the three accused persons were recorded under Section 313 Cr.P.C wherein all the incriminating evidence, which had come on record during trial against the accused persons, was put to them and an opportunity was given to the accused persons to explain about the same. Accused persons pleaded that they are innocent and have been falsely implicated in this case; no disclosure statement was made by them; no pointing out memo was made and no memos were prepared. PW16 & PW17 deposed falsely as they are interested witnesses. Accused Bijender @ Bandri further stated that the recovery was not affected from him or at his instance. Rather it was planted upon him to falsely implicate him in the present case. He further pleaded that there was no money transaction between him and the deceased. He did not know accused Hanuman @ Sandeep and Meer Singh. Both the accused persons did not lead any evidence in their defence.
7. I have heard Sh. J.S. Malik, ld. Addl. PP for the State and Sh. B.S. Rana, ld. Counsel for accused Bijender @ Bandri and Sh. Tarun Upadhaya, ld. Counsel for accused Hanuman @ Sandeep. I have also perused the entire material on record.
8. The depositions made by the witnesses are :
State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 4 of 38
i) PW1 is SI Satish Kumar Pandey, who has deposed that on
28.04.2014 when he was on night Emergency Duty, at about 9.08 PM on receipt of a telephone call regarding some person having been shot near cut of Singhu Village. He alongwith Ct. Shanker reached there; saw blood lying there and a motorcycle No. DL11SD9554 was also lying parked on road from Sonepat to Delhi side. HC Naresh and Ct. Dushant also reached the spot. He further deposed that he came to know that PCR had removed injured to SRHC hospital.
Accordingly, after leaving HC Naresh at the spot, he alongwith Ct. Shanker and Ct. Dushant went to hospital, where it transpired that injured Surender was "brought dead". He further deposed that after inspecting the dead body, he shifted the same to BJRM hospital through Ct. Shanker. Thereafter, he prepared rukka Ex.PW1/1 and sent to PS for registration of FIR through Ct. Dushant. He further deposed that he handed over one pullanda and personal search belongings of the deceased to SHO vide memo Ex.PW1/2.
After taking permission from the Court, PW1 was crossexamined by ld. Addl. PP for the State wherein he admitted that before leaving for the spot, copy of DD No. 31A was handed over to him by the duty officer and the pullanda handed over to him by the doctor, was sealed with seal of the hospital. He further admitted that a sample seal was also handed over to him.
During crossexamination on behalf of accused Bijender @ Bandri State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 5 of 38 and Meer Singh, PW1 deposed that no pistol was observed by him lying at the spot.
This crossexamination was adopted by ld. Counsel for accused Hanuman @ Sandeep.
ii) PW2, Sh. Sudesh had identified the dead body of his brother Surender in mortuary of BJRM hospital vide memo Ex.PW2/1 and had also received the dead body of his brother after postmortem vide receipt Ex.PW2/2.
His testimony remained unchallenged by ld. Defence Counsels.
iii) PW3, Sh. Rahul is a formal witness, who had only made a call at 100 number. He deposed that PCR van came there and took the injured from there. He further deposed that a desi katta was also lying there and said desi katta was taken away by PCR officials.
After taking permission from the Court, ld. Addl. PP crossexamined PW3 and during his crossexamination by ld. Addl. PP, he denied the suggestion that he had not seen any katta at the spot or that PCR officials did not take away any katta from there.
Testimony of this witness remained unchallenged on behalf of all the accused.
State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 6 of 38
iv) PW4 Sh. Rajbir not supported the case of prosecution in his
evidence but during crossexamination by ld. Addl. PP for State, he admitted that on 28.04.2014 he alongwith Surender Singh were playing cards at "Phad" (working place in Mandi). He deposed that he knew Mir Singh, who is an "Aadhti" in the mandi. He denied the suggestion that while they were playing cards, accused Mir Singh came there or that in his presence, accused Surender Singh told Mir Singh that it would take him one more hour and if Mir Singh so desired, he could go back. He denied the suggestion that Mir Singh claimed that he would go alongwith Surender or that he too sat down at his phad or that while they all were sitting there, Mir Singh received 23 phone calls whereupon he stated to the caller that he was still in the mandi and would inform as and when he started from there or that Surender and Mir Singh left together for Sersa village or that he had seen them going together. He admitted that at around 11.00 PM, he received a telephone call from someone who informed him that Surender was shot dead. He further admitted that Surender was released from jail in the year 2004 and thereafter, he had started his work in the mandi and that Mir Singh and Surender Singh were residents of village Sersa and were dealing with vegetables. He denied the suggestion that after Surender started his work in the Mandi, business of Mir Singh suffered losses or that Mir Singh carried a grudge against State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 7 of 38 Surender for this reason.
His testimony remained unchallenged on behalf of all the accused.
v) PW5 is ASI Ram Kumar, who deposed that on 28.04.2014 on receipt of information from the Control Room, he alongwith his Crime Team had gone to Singhu Village Cut, Main G.T. Karnal Road, Delhi, where SI Satish Pandey met them. He inspected the spot and found blood lying there. He further deposed that one motorcycle bearing No. DL11SD9554 make Honda was also lying parked there. He got the spot photographed through Photographer Ct. Hans Raj, prepared scene of Crime Visit Report Ex. PW5/1 and handed it over to the IO.
Testimony of this witness also remained unchallenged during cross examination.
vi) PW6 Constable Hansraj is the photographer. He proved the photographs as Ex.PW6/A (110) and negatives thereof are collectively as Ex.PW6/B. His testimony also remained unchallenged during crossexamination by on behalf of all the accused.
State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 8 of 38
vii) PW7 is Head Constable Naresh Kumar, who also visited the
crime scene and participated in the investigation of the case. Cloth pullandas, which were received by SI Satish in the hospital, were handed over by him to the SHO. Same were seized vide seizure memo as Ex.PW7/1. He further deposed that articles recovered during personal search of deceased were also handed over to SHO and were seized by the SHO vide seizure memo Ex.PW1/2. He further proved the seizure memo Ex. PW7/2 of the blood stained pieces of the road, which were taken; put in a plastic dibbi and sealed with the seal of JS after converting the same into a pullanda. He also proved the seizure memo Ex. PW 7/3 vide which a sealed pullanda duly sealed with the seal of JS of collected earth control was taken into possession. He further deposed that the seized articles were subsequently deposited in the malkhana.
PW7 admitted in his crossexamination, conducted by ld. Addl. PP for State, that motorcycle No.9554 was also seized at the spot vide seizure memo Ex.PW7/4.
During crossexamination by ld. Defence Counsel, PW7 denied the suggestion that he had never gone to the spot or had never joined the investigation of this case or that nothing was seized in his presence or that he had merely signed documents at the instance of IO or that all proceedings were conducted in Police Station itself.
State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 9 of 38
viii) PW8 Constable Dalip Kutti is a formal witness. His testimony also remained unchallenged during crossexamination by ld. Defence Counsel.
ix) PW9 is Constable Shankar. He corroborated the deposition of PW1. He further proved the seizure memo Ex. PW9/1 of the three sealed parcels and two sample seals, which had been handed over to him in the hospital.
During crossexamination by ld. Defence Counsel on behalf of accused Hanuman, PW9 deposed that SI Satish had not recorded departure entry in his presence.
During crossexamination by ld. Defence Counsel on behalf of accused Bijender and Meer Singh, PW9 denied the suggestion that the informant had met them at the spot or that it was he who had informed them about injured being removed to hospital by PCR or that he had also informed that PCR van officials had taken one dessi katta, which was found lying at the spot, with them.
x) PW10, SI Rajveer, posted with PCR, is a formal witness, who picked up the injured from the spot; took him to SRHC Hospital in PCR van and got admitted him there, who later on was declared brought dead.
During crossexamination, PW10 deposed that some people had State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 10 of 38 helped him in putting the injured in the van. He denied the suggestion that he had taken with him any dessi katta when he took injured to hospital from the spot or that the said dessi katta was handed over by him to the IO at any subsequent stage. He further denied the suggestion that the informant met him at the spot.
xi) PW11, ASI Rajender Singh is the duty officer, who has proved the copy of FIR as Ex. PW11/1; his endorsement made on the rukka as Ex. PW11/2 and certificate U/s 65 B of Evidence Act as Ex. PW11/3.
His testimony also remained unchallenged during crossexamination.
xii) PW12, Dr. Avdesh Kumar has proved the MLC in respect of Surender as Ex. PW12/1.
PW12 was not crossexamined at all by ld. Defence Counsel though opportunity was granted.
xiii) PW13, Inspector Mahesh Kumar is the draftsman, who has proved the site plan dated 04.07.2014 as Ex. PW13/1, which was prepared by him on the rough notes prepared at the instance of Inspector Jitender Singh.
His testimony also remained unchallenged during crossexamination.
State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 11 of 38
xiv) PW14, HC Raj Kumar has proved the copy of DD No.31A dated 28.04.2014 as Ex. PW14/1.
His testimony also remained unchallenged during crossexamination.
xv) PW15 is Sh. Virender Maan. He deposed that on 28 or 29 day of a month in the year 2015, he had been taken by some police officials to PS Alipur and made him to sit there for two days and then let him off.
During crossexamination on behalf of the ld. Addl. PP for State, he denied the suggestion that motorcycle No.DL8SAA3001 had ever been purchased by him from Mukesh Maan @ Tamta and on 28.04.2014, Bijender and Sandeep had borrowed the said motorcycle from him. He further denied the suggestion that RC of the said motorcycle registered in the name of Rakesh Maan was ever with him or that he had misplaced the same. He also denied the suggestion that police ever met him on 02.07.2014 or had interrogated him or had recorded his statement. He further denied the suggestion that he has deposed falsely in order to save the accused persons who are well known to him.
PW15 was not crossexamined at all by ld. Defence Counsels though opportunity was granted.
xvi) PW16 is Smt. Neeru, who is the wife of deceased Surender.
State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 12 of 38 She deposed that her husband Surender was 'aadhti' in Azadpur Mandi and was doing it in partnership with Bijender and Rajbir was their Munim. She further deposed that about 1/1.5 months prior to 28.04.2014, accused Bijender of Kundli came to her house and some talks were held between him and her husband regarding some money transaction. Bijender told her husband that he would have to pay money or "natija bura hoga". Bijender wanted to take money from her husband through his hard tactics (badmashi se). She further deposed that her husband expired on 28.04.2014 and 23 days prior to his death, her husband had told her that he was being threatened by Bijender and was apprehensive about his being killed (jaan ka khatra hai) and that Bijender was demanding money from him. She further deposed that in her opinion, it was Bijender who killed her husband as her husband had expressed apprehension in that regard.
During crossexamination on behalf of the ld. Addl. PP for State, she admitted that Meer Singh, who was her covillager, also used to work in Azadpur Mandi and used to travel to Mandi with her husband. She deposed that she knew Anil @ Bhagta who was elder brother of Bijender and was a badmash from Kundli. She denied the suggestion that when Bijender came to her house, he had told her husband that her husband had to give nine to ten lacs to Bhagta and that the said amount has to be given by him. She admitted that Bhagta and her husband were accused in murder case of Harish Pandit. She further admitted State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 13 of 38 that when Bijender had come to her house, her husband had told him that he was implicated in the murder case on account of Bhagta and had to spend lacs in that case.
During crossexamination by ld. Defence Counsel on behalf of accused Bijender and Meer Singh, PW16 denied the suggestion that her husband had demanded money from Bijender claiming that he had spent lot of money in his release and also in commission of the murder. She admitted that Bijender had told to her husband that he was not involved in the murder case and hence he was not liable to pay money. She deposed that neither she nor her husband had lodged any report with the police regarding threats extended by Bijender and she had not lodged any complaint in that regard with family members of Bijender. She further deposed that her husband had never informed her about having informed anyone in the Mandi regarding threats from Bijender. She denied the suggestion that Bijender had never threatened her husband. She denied the suggestion that she told the police officials to note her name as a witness and that she would depose as per their direction. A suggestion was given to her that Bijender had never visited her house for threatening her husband or that he had never demanded any money from him, which she has denied.
PW16 was not crossexamined on behalf of accused Hanuman though opportunity was granted.
State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 14 of 38 xvii) PW17 Suresh Kumar is the real brother of deceased Surender. He had proved his statement Ex. PW17/1 regarding identification of the dead body of his brother Surender in Mortuary, BJRM Hospital and had also proved the receipt Ex. PW2/2 vide which he had received the dead body after postmortem. He further deposed that before his death on 28.04.2014, Bijender had gone to the house of his brother Surender and his brother thereafter told him that he was apprehensive about his safety at the hands of accused Bijender and Meer Singh. His brother also told him that Bijender demanded money from him. He further deposed that about 2/3 days prior to his death, his brother had again told him that he was fearing his death at the hands of Bijender and Meer Singh. He further deposed that Meer Singh was also doing work of "Aarath" in Mandi and as his brother, who also was an Aarathi was doing very well, Meer Singh was jealous of him.
During his crossexamination by ld. Addl. PP after taking permission of the Court, PW17 admitted that Meer Singh had a grudge against his brother as his business suffered when his brother restarted work as Aarathi. He further admitted that often there used to be "kaha suni" between them regarding the customers and money. He further admitted that his brother had told him that Bijender was demanding a sum of Rs.9/10 lacs from him on behalf of Bhagta saying that the said amount was due to him. He further admitted that before State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 15 of 38 Surender was murdered, he had seen Bijender and Meer Singh together in the village on a number of occasions.
During crossexamination by ld. Defence Counsel on behalf of accused Bijender and Meer Singh, PW17 denied the suggestion that after death of his brother, he came to know that he had been killed by boys of Harish Pandit in whose murder case his brother was earlier arrested or that his brother had never informed him about any threats or demands being made by Bijender or that it was for this reason that he had not told anything in that regard to police on 29.04.2014.
PW17 was not crossexamined on behalf of accused Hanuman though opportunity was granted.
xviii) PW18 SI Kamlesh Kumar has participated in the investigation alongwith IO Inspector Jitender Singh. He deposed that on 12.05.2014 at about 6.00 PM, they both alongwith other staff members had reached Singhu Village in search of culprits of this case, where a secret informer met them and informed the IO that the culprit Meer Singh, who was being searched, had been seen at Tajpur Singhola road. Police party alongwith informer reached there. A person was found standing there and after sometime another person came on a Pulsor motorcycle and stopped near the first person and started talking to him. On State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 16 of 38 receipt of 'ishara' from the IO, the police party apprehended both of them, who disclosed their names as Bijender @ Bandri and Meer Singh. He further proved the sketch of dessi katta as Ex. PW18/1 and seizure memo as Ex. PW18/2, recovered from right side dub of the payajama of accused Bijender. Katta was checked and found to contain one live cartridge. He further proved the arrest memos of both the accused as Ex.PW18/3 and PW18/4; their personal search memos as Ex.PW18/5 and Ex.PW18/6 and their disclosure statements as Ex.PW18/7 and Ex.PW18/8; seizure memo of the motorcycle as Ex.PW18/9. He further proved the seizure memo of the broken mobile phone got recovered by accused Meer Singh from his house from an iron almirah as Ex.PW18/10. He further proved the pointing out memo as Ex.PW18/11, prepared at the instance of accused Bijender.
After taking permission of the Court, PW18 was crossexamined by ld. Addl. PP and he admitted that four live cartridges had also been recovered from the right side pocket of payjama of accused Bijender. He proved the sketch of the same as Ex.PW18/12 and seizure memo as Ex.PW18/13. He further identified the mobile with SIM as Ex. P1; dessi katta alongwith test fired cartridge as Ex. P2; four used cartridges collectively as Ex. P3 and the motorcycle as Ex.P4.
During crossexamination by ld. Defence Counsel on behalf of State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 17 of 38 accused Bijender and Meer Singh, PW18 denied the suggestion that accused Bijender had never pointed out the spot of incident to them or that he knew the spot of incident before hand. He further denied the suggestion that he has deposed falsely in this regard as he had never seen Bijender coming to the spot on motorcycle or that Bijender and Meer Singh had not been arrested from there in the manner as stated by him or that he had never been to that spot or that Bijender and Meer Singh had themselves surrendered in the Police Station whereafter they were formally arrested. Suggestions have been given that he had merely signed the documents in Police Station at the instance of IO or that none of the two accused had been apprehended, searched or interrogated in his presence or that nothing incriminating was recovered from possession of or at the instance of any of the two accused persons or that no motorcycle was recovered from the spot, which were denied. He further denied the suggestion that articles identified by him in Court had never been seized in his presence or that the same had only been shown to him in the Police Station by the IO and on basis thereof, he had identified the same in the Court.
PW18 was not crossexamined on behalf of accused Hanuman though opportunity was granted.
xix) PW19 is Constable Jitender, who deposed that on 17.05.2014 State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 18 of 38 he had joined investigation of this case alongwith Inspector Jitender. He deposed that he alongwith IO had reached at BDO Block Alipur as IO had an information regarding reaching of an accused Hanuman there and on the pointing out of the secret informer, who met them there, accused Hanuman was apprehended. He further proved the arrest memo, personal search and disclosure statement of accused Hanuman as Ex.PW19/1, Ex.PW19/2 and Ex. PW19/3 respectively. He further proved the memo of nonrecovery of broken mobile phone as Ex. PW 19/4 and pointing out memo as Ex. PW19/5.
PW19 was not crossexamined on behalf of accused Bijender and Meer Singh though opportunity was granted.
During crossexamination by ld. Defence Counsel on behalf of accused Hanuman, PW19 denied the suggestion that accused Hanuman was not apprehended in the manner as stated by him or that he had merely signed the documents in PS at instance of the IO or that accused Hanuman was never interrogated or that he never made any disclosure statement or that accused Hanuman had not been taken anywhere in search of mobile phone.
xx) PW20 Sh. Mukesh Maan @ Tamta, PW22 Sh. Amit, PW23 Sh. Ashishbrotherinlaw of accused Bijender and PW24 Sh. Joginder, real brother of accused Bijender are hostile witnesses as they have not supported the State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 19 of 38 prosecution case.
xxi) PW21 Sh. Ajeet Singh is a witness from transport authority, who has proved the record of registration of motorcycle No.DL8SAA3001 as Ex. PW21/1. He deposed that as per record, said motorcycle is registered in the name of Rakesh Mann.
His testimony remained unchallenged during crossexamination.
xxii) PW25 is Rakesh Mann, who has deposed that around the year 2005, he had got financed motorcycle No.DL8SAA3001. Since he could not pay due installments in time, the financier had picked up his motorcycle and seized it.
During his crossexamination by ld. Addl.PP, after taking permission of the Court, PW25 denied the suggestion that in the year 2007, he had sold said motorcycle to Mukesh Maan @ Tamta for Rs.25,000/ or that at that time, Mukesh had claimed that further installments would be paid by him and that he would get it transferred in his name only after paying the complete installments. He further denied the suggestion that he had told the police that he had sold it to Mukesh Maan in the year 2007.
His testimony remained unchallenged during crossexamination.
State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 20 of 38 xxiii) PW26, Sh. Shishir Malhotra is the Nodal Officer from Aircel Ltd. He has deposed that mobile No.9716161175 stands registered in the name of Kamlesh Chand and proved the copy of Customer Engagement Form prepaid in that regard as Ex.PW26/1; copy of CDR in respect of said mobile number for the period 15.04.2014 to 14.07.2014 as Ex.PW26/2; certificate U/s 65(B) of Indian Evidence Act in respect of CDRs as Ex.PW26/3; copy of the Cell ID list as Ex.PW26/4 and the forwarding letter as Ex.PW26/5 vide which all the details had been furnished to the IO.
His testimony also remained unchallenged during crossexamination.
xxiv) PW27, Sh. Saurabh Agarwal is the Nodal Officer from Vodafone. He has deposed that mobile No.8447255527 stands registered in the name of Meer Singh and proved the copy of prepaid Application Form in that regard as Ex.PW27/1; copy of CDR in respect of said mobile number for the period 15.04.2014 to 10.07.2014 as Ex.PW27/2 and certificate U/s 65(B) of Indian Evidence Act in respect of CDRs as Ex.PW27/3.
He further deposed that mobile No.8059767437 stands registered in the name of Sandeep Kumar and proved the copy of prepaid Custmer Information Form in that regard as Ex.PW27/4; cell details record in respect of said mobile number for the period 15.04.2014 to 10.07.2014 as Ex.PW State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 21 of 38 27/5 and certificate U/s 65(B) of Indian Evidence Act in respect of CDRs as Ex.PW27/6 and copy of the Cell ID list as Ex.PW27/7.
His testimony also remained unchallenged during crossexamination.
xxv) PW28 is Constable Mahesh. He deposed that on 14.05.2014, accused Bijender, who was with them on PC Remand, had accompanied Inspector Jitender and one other police official to get recover an empty cartridge. They went to Tajpur Singhola road, near Batra Farm House and from there accused Bijender got recovered one empty cartridge shell. He further proved the seizure memo of the same as Ex.PW28/1, which was deposited in the malkhana.
During crossexamination by ld. Addl. PP, after taking permission from the Court, PW28 admitted that the empty cartridge was picked up by Bijender from near wall of Batra Farm House before handing it over to police and sketch of the empty shell Ex.PW28/2 was prepared. He denied the suggestion that he was intentionally not identifying the empty shell in order to help the accused.
During crossexamination by ld. Defence Counsel on behalf of accused Bijender and Meer Singh, PW28 denied the suggestion that he had signed Ex.PW28/1 and Ex. PW28/2 in Police Station or that he had never gone to the spot of recovery or that no empty shell was got recovered by accused State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 22 of 38 Bijender. He further denied the suggestion that no empty shell was got recovered by accused on 14.05.2014 or that it had already been recovered on 29/30.04.2014 or was only planted upon the accused on 14.05.2014.
PW28 was not crossexamined on behalf of accused Hanuman though opportunity was granted.
xvi) PW29 Ms. Anita Chhari, Sr. Scientific Officer has proved the report dated 28.10.2014 as Ex. PW29/1 and the forwarding letter as Ex. PW29/2 vide which the report was forwarded to SHO.
Testimony of this witness also remained unchallenged during crossexamination.
xxvii) PW30 is Constable Dushyant. He is a formal witness, who alongwith HC Naresh on receipt of a call, went to the spot on 28.04.2014 and from there he took rukka and handed over the same to Duty Officer for registration of FIR. He further deposed that after registration of FIR, the rukka and copy of FIR were handed over to him for being delivered to the IO and he accordingly went to the spot and handed over the same to the IO (SHO).
Testimony of this witness also remained unchallenged during cross examination.
State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 23 of 38 xxviii)PW31 is Dr. Bhim Singh, who has proved his postmortem report No.332/14 dated 29.04.2014 as Ex. PW31/1. He has deposed that in his opinion, death was due to hemorrhagic shock consequent upon visceral injuries. He further deposed that all the injuries were antemortem, fresh and caused by bullet recovered from the body and injuries were sufficient to cause death in ordinary course of nature.
His testimony also remained unchallenged during crossexamination.
xxix) PW32 ACP Jitender Singh is the IO of the case. He has deposed about the investigation conducted by him. He has further proved the site plan Ex. PW32/1; mortuary application form requesting to perform autopsy on the body of deceased Surender as Ex. PW32/2; brief facts as Ex. PW32/3 and death report as Ex. PW32/4. He deposed that he had deposited the recovered articles in the malkhana and recorded the statements of the witnesses. During investigation, he also collected the CDRs of all the three mobile phone numbers used by all three accused persons during commission of offence and from analysis of CDRs it was transpired that at the time of commission of offence, the location of Bijender & Sandeep was near the place of occurrence and accused Mir Singh was in constant telephonic touch with accused Bijender during the said period. He has further deposed that during investigation, he had made an State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 24 of 38 application to DCP Outer for according sanction U/s 39 of Arms Act for prosecution of accused Bijender for offence punishable U/s 25 Arms Act.
During crossexamination by ld. Defence Counsel on behalf of accused Hanuman @ Sandeep, PW32 deposed that no incriminating article had been recovered from the possession or at the instance of accused Hanuman and that the mobile phone number allotted to a particular person can be used by some other person including his relatives. He further deposed that the secret information received regarding accused Hanuman had not been reduced into writing by him, however, it is incorrect to suggest that it was so as no such secret information regarding accused Hanuman had been ever received by him. He denied the suggestion that neither accused Bijender nor accused Hanuman had ever made any disclosure statement or that their signatures had been obtained forcibly on blank papers which were later on used in preparing incriminating documents against them. He further denied the suggestion that accused Hanuman had never pointed out the place of occurrence or that accused Hanuman had not been taken to anywhere for recovery of any mobile phone.
During crossexamination by ld. Defence Counsel on behalf of accused Bijender and Meer Singh, PW32 denied the suggestion that PCR staff had handed over to him any Desi Katta in connection with investigation of this case or that no Katta or any other incriminating article had ever been recovered State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 25 of 38 from the possession or at the instance of accused Bijender or that no witness gave any statement to him or he on his own had fabricated the statements of some persons and planted them as witnesses in this case or that accused Bijender had never made any disclosure statement or that he had never been actively associated in the investigation of this case or that he had just put his signatures on the documents prepared by his supporting staff. Suggestion was given to him that no notice was given to any public person as he had never gone there nor accused Bijender had been apprehended from there or that no motorcycle had been recovered from accused Bijender or that motorcycle bearing No. DL 8S AA 3001 had been planted upon accused Bijender, which were denied by him. He further denied the suggestion that wife and brothers of the deceased never met him or that their statements had been fabricated by him or that PWRajbir never met him or that even his statement had been fabricated by him of his own. He further denied the suggestions that during investigation he had come to know that accused Bijender was not concerned with this case in any manner or that he had planted the fabricated evidence against him just to justify his arrest or that during investigation, it had transpired that the mobile phone No. 9716161175 had never been used by accused Bijender or that he had wrongly mentioned in his investigation regarding mobile phone, country made pistol, live cartridges & empty cartridge or that whatever evidence has been placed on file, is fabricated State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 26 of 38 evidence just to chargesheet the arrested persons. He has also denied the
suggestion that all the accused persons had been wrongly arrested in this case or that they were not involved in the present case offence in any manner whatsoever.
xxx) PW33 is HC Baljeet. He has proved entry No.320 dated 29.04.2014 of register No.19 as Ex. PW33/1 vide which Inspector Jitender Singh had deposited in Malkhana one sealed bottle, two sealed packets along with two sample seals, one sealed pullanda along with a sample seal, two more sealed pullandas, one motorcycle bearing no.DL11SD9554 and belongings found on the body of the deceased, in case FIR No.403/14 PS Alipur.
He has also proved entry No.352 dated 12.05.2014 of register No.19 as Ex. PW33/2 vide which Inspector Jitender Singh had deposited in malkahan one sealed pullanda said to contain a country made pistol and a live cartridge, one sealed pullanda said to contain one live cartridge, another sealed pullanda said to contain a mobile phone, one motorcycle bearing No.DL8SAA 3001 and articles recovered from the personal search of accused Meer Singh and Bijender.
He has further proved entry No.359 dated 14.05.2014 of register No.19 as Ex. PW33/3 vide which Inspector Jitender Singh had again deposited in malkhana one sealed pullanda said to contain an empty cartridge State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 27 of 38 shell and entry No.368 dated 17.05.2014 as Ex. PW33/4 vide which Inspector Jitender Singh again deposited in Malkhana some articles recovered from the personal search of accused Hanuman.
He has further proved the Road Certificate No.97/21/14 dated 10.06.2014 as Ex. PW33/5 vide which four sealed pullandas alongwith two sample seals had been sent to FSL through Ct. Jaivir; its acknowledgment from FSL as Ex. PW33/6 and Road Certificate No.98/21/14 dated 10.06.2014 as Ex. PW33/7 vide which four sealed pullandas alongwith one sample seal had also been sent to FSL through Ct. Jaivir and its acknowledgment from FSL as Ex. PW33/8.
Testimony of PW33 also remained unchallenged during crossexamination.
xxxi) PW34 is Dr. N.P. Waghmare, who has proved the FSL report and opinion, prepared by him after examination of parcels as Ex. PW34/1.
Testimony of this witness also remained unchallenged during cross examination.
9. Ld. Counsel for the accused persons has submitted that there are glaring contradictions in the statements of the witnesses. It is argued that the State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 28 of 38 prosecution has not able to prove recovery of weapon from the accused; link of the vehicle recovered at the spot with the accused; arrest of the accused by the police; the vehicle involved at the time of arrest of the accused. It is further submitted by him that the prosecution has also not been able to prove any link with the crime committed and the evidence brought by the accused. It is further argued that none of the witnesses supported the case of the prosecution. It is further argued that the testimony of the witnesses before the Court indicate that the police had planted the witnesses only to falsely implicate the accused. It is further argued by him that the prosecution based its case either upon the hearsay evidence or upon the conjectures and surmises which cannot be sustained in a case of circumstantial evidence and, thus, the accused persons are innocent and they deserve to be acquitted in this case.
10. On the other hand, Ld. APP for State has contended that there is not an iota of doubt in coming to the conclusion that the accused persons have committed the offence, and, hence, they are liable to be convicted in this case.
APPRECIATION OF EVIDENCE :
11. Admittedly in the present case there is no direct evidence. No eye State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 29 of 38 witness has been brought by the prosecution to prove that he was a witness of the crime. Therefore, the prosecution has brought witnesses of only circumstantial evidence to prove its case. However, there is no link of the circumstantial evidence to prove the guilt of the accused to the extent so that the Court comes to the conclusion that all the links established and prove the guilt of the accused persons and there should not be missing of any link which indicates towards the innocence of the accused persons or may doubt upon the prosecution.
12. The Hon'ble Supreme Court explained in various cases regarding the manner to deal with circumstantial evidence.
i) In Mohd. Mannan Vs. State of Bihar, (2011) 5 SCC 317, Hon'ble Supreme Court of India in para No.14 held :
".... 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 formally established. The circumstances are so proved must unerringly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and noneelse. It has to be considered within all human probability and not in a fanciful manner. In order to sustain conviction circumstantial evidence must be State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 30 of 38 complete and must point towards the guilty of the accused. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hard and fast rule can be laid down to say that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances of each case".
ii) In Rishipal Vs. State of Uttrakhand, (2013) 13 SCC 551, Hon'ble Supreme Court of India in para No.19 held :
"The trial Court has, in our opinion, proceeded more on the basis that the appellant may have murdered the deceasedAbdul Mabood. In doing so the trial Court over looked the fact that there is a long distance between 'may have' and 'must have' which distance must be traversed by the prosecution by producing cogent and reliable evidence. No such evidence is unfortunately forthcoming in the instant case. The legal position on the subject is well settled and does not require any reiteration. The decisions of this Court have on numerous occasions laid down the requirements that must be satisfied in cases resting on circumstantial evidence. The essence of the said requirement is that not only should the circumstances sought to be proved against the accused be established beyond a reasonable State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 31 of 38 doubt but also that such circumstances form so complete a chain as leaves no option for the Court except to hold that the accused is guilty of the offences with which he is charged".
iii) In Vijay Kumar Vs. State of Rajasthan, (2014) 3 SCC 412, Hon'ble Supreme Court of India in para No.9 :
".....In a case based on circumstantial evidence the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. "
iv) In Madhu Vs. State of Karnataka, (2014) 12 SCC 419, Hon'ble Supreme Court of India in para No.13 held :
"This Court has dealt with the case of circumstantial evidence time and again. It has consistently been held that a conviction can be based solely on circumstantial evidence. The prosecution's case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 32 of 38 be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are complete in themselves. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable or point to any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. The evidence produced by the prosecution should be of such a nature that it makes the conviction of the accused sustainable. (Vide: Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622; State of Uttar Pradesh Vs. Satish, AIR 2005 SC 1000; and Paramjeet Singh @ Pamma Vs. State of Uttarakhand, AIR 2011 SC 200)".
13. PW3 deposed that a desi katta was found lying there at the spot, which was taken away by PCR officials. During crossexamination on behalf of ld. Addl. PP, he has deposed that police had met him and recorded his statement in connection with this case wherein he had mentioned that he had seen a katta lying at the spot or that the katta was taken away by PCR officials when attention of this witness was drawn to the statement Mark P3/A wherein this fact was not mentioned. PW10 appeared and during crossexamination a suggestion was State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 33 of 38 given to him that he had taken with him desi katta when he took injured to the hospital from the spot. The suggestion was denied. PW18 deposed that during casual search of accused Bijender at the spot, a desi katta was recovered from the right side dub of payajama of acccused Bijender. Katta was checked and found to contain one live cartridge. Similar deposition was given by PW32. If testimonies of PW3, PW10, PW18 & PW32 read together, then a doubt comes whether katta was recovered at the spot or from the right side dub of the payajama of accused Bijender. No public person was there when casual search of accused Bijender was taken and katta was recovered from accused Bijender. If the katta was recovered from accused Bijender, then the prosecution is not able to explain, which was that katta which was lying at the spot or was taken away by PCR officials. PW3 is the own witness of the prosecution and, therefore, the Court has no reason to disbelieve upon the testimony of PW3.
14. PW7 admitted during crossexamination by ld. Addl. PP that motorcycle No.9554 was also seized from the spot vide seizure memo Ex. PW 7/4. PW15 denied the suggestion during crossexamination on behalf of State that motorcycle No. DL 8SAA3001 was purchased by him from Mukesh Maan @ Tama. He further denied the suggestion that the said motorcycle was purchased by him from Mukesh or that on 28.04.2014 Bijender and Sandeep had State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 34 of 38 borrowed the said motorcycle from him. Therefore, when the prosecution is not able to prove that the said motorcycle was borrowed by the accused then the testimony of PW32 that he apprehended accused Meer Singh and Bijender on 12.05.2014 has not been proved beyond doubt.
15. PW25 as well as PW21 proved that motorcycle No.DL 8SAA 3001, which is a black colour Bajaj Pulsor, stood in the name of Rakesh Maan, who appeared as PW25 and deposed that since he could not pay due installments in time, the financier had picked up his motorcycle and seized the same. As per the case of the prosecution, at the time of arrest of A1 & A2, they were apprehended with that motorcycle but the prosecution is not able to establish the link between the motorcycle No. DL 8SAA3001 and both the accused.
16. PW32 deposed that during investigation, he had made enquiries regarding mobile No.9716161175, which was used by accused Bijender during the commission of offence, from wife of accused Bijender, his brotherinlaw and his brother and one Amit of Village Tajpur and all of them disclosed that the said number was being used by accused Bijender. PW32 collected the details of the said mobile number from the concerned telecom agency. However, the person to whom the said number had been allotted, could not be traced. He further deposed State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 35 of 38 that during investigation, he collected CDRs of all the three mobile phone numbers used by accused persons Meer Singh, Bijender and Hanuman during commission of offence and from analysis of CDRs, it was transpired that at the time of commission of offence, the location of Bjiender and Sandeep was near the place of occurrence and accused Meer Singh was in constant telephonic touch with accused Bijender during the said period. But since the allotment of number could not be attributed to accused Bijender or allottee of telephone No. 9716161175 could not be traced, therefore, this Court cannot rely upon the evidence of mobile phone against the accused. It is not the case of the prosecution that either of the accused were using the stolen mobile phone as no such evidence has been brought on record. Even the aforementioned mobile phone could not be recovered from accused Bijender @ Bandri or at his instance.
17. PW32 further deposed that during interrogation accused Hanuman had disclosed that after the incident he had broken up his mobile phone being used by him and the broken mobile phone had been thrown away by him in agricultural fields of Village Tajpur. Accused Sandeep led PW32 and Constable Jitender to the agricultural fields of Village Tajpur and they made efforts to trace out the mobile phone but the same could not be recovered. The nonrecovery memo of the mobile is proved as Ex. PW19/4. Thus, the link between the State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 36 of 38 numbers being used and accused also could not be established by the prosecution.
18. PW32, who is IO of the case himself deposed before the Court that during investigation he had made enquiries regarding mobile No.9716161175, which was used by accused Bijender during the commission of offence, from wife of accused Bijender, his brotherinlaw and his brother and one Amit of Village Tajpur and all of them disclosed that the said number was being used by accused Bijender. He collected details of said mobile number from the concerned telecom agency. However, the person to whom the said number was allotted, could not be traced. Therefore, the prosecution is not able to establish the link between the mobile phone No.9716161175 and accused Bijender. The prosecution is further not able to prove that if this Court believes upon the story of prosecution in regard to the aforesaid telephone number, then how accused Bijender got this telephone number, is not explained.
19. It is admitted during crossexamination of PW32 that no incriminating article was recovered from the possession or at the instance of accused Hanuman.
State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 37 of 38 CONCLUSION :
20. In view of the above observations, this Court is of the considered opinion that both the accused namely Bijender @ Bandri (A1) and Hanuman @ Sandeep (A3) are given benefit of doubt and, thus, acquitted of the offences leveled against them. Their bail bonds stand cancelled. Sureties are discharged. Documents, if any, be returned to the sureties/counsel and endorsement on the documents, if any, be cancelled. In terms of Section 437(A) Cr.P.C., both accused are directed to furnish personal bonds in the sum of Rs.50,000/ each with one surety of the like amount for a period of six months for their appearance before the High Court of Delhi in the event the prosecution wishes to file an appeal challenging the present judgment.
21. Ahlmad is directed to page and bookmark the file so as to enable the digitisation of the entire record. File be consigned to Record Room.
Digitally signed by JITENDRA JITENDRA KUMAR
KUMAR MISHRA
Date: 2018.04.13
MISHRA 15:29:21 +0530
Announced today (Jitendra Kumar Mishra)
in open court on 31.03.2018. Special Judge (NDPS), North, Rohini Courts, Delhi.
State Vs. Bijender @ Bandri & anr.
FIR No. 403/14, P.S. Alipur 38 of 38