Delhi District Court
State vs Chander Bhan & Ors Fir No.336/2013 Ps ... on 17 December, 2018
State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act IN THE COURT OF SHRI SAURABH PARTAP SINGH LALER ADDITIONAL SESSIONS JUDGE (PILOT COURT) WEST DISTRICT : TIS HAZARI COURTS : DELHI SC No. 56482/2016 FIR No. 336/13 U/s. 302/34 IPC & 30 Arms Act P.S Ranhola In the matter of : State Versus 1). Chander Bhan S/o Bhim Singh R/o H. No. 201, Village Baprola, Delhi 2). Amit S/o Om Prakash R/o H. No. 201, Village Baprola, Delhi 3). Dev Karan S/o Om Prakash R/o H. No. 201, Village Baprola, Delhi 4). Saroj W/o Chander Bhan R/o H. No. 201, Village Baprola, Delhi 5). Suresh W/o Om Prakash R/o H. No. 201, Village Baprola, Delhi 6). Om Prakash Sessions Case No. 56482/2016 Page 1/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act S/o Bhim Singh R/o H. No. 201, Village Baprola, Delhi Date of Institution : 21.12.2013 Date of reserving Judgment : 07.12.2018 Date of pronouncement : 17.12.2018 Appearances For the State : Sh. Santosh Kumar, Additional Public Prosecutor. (Matter was argued by Ms. Reeta Sharma, when she was Ld Addl Public Prosecutor in this court.) For the accused : Sh. Pinaki Addy and Ms. Sharda Garg, learned counsel for accused persons. JUDGMENT
1. Accused persons namely Chander Bhan son of Bhim Singh aged 49 years, Amit son of Om Prakash aged 26 years, Dev Karan son of Om Prakash aged 28 years, Saroj wife of Chander aged 57 years, Suresh wife of Om Prakash aged 63 years and Om Prakash son of Bhim Singh aged 65 years were sent up for trial on the basis of report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) upon conclusion of investigation into First Information Report (FIR) No. 336/2013 of police station (PS) Ranhola for offences Sessions Case No. 56482/2016 Page 2/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act punishable under Sections 302/34 of the Indian Penal Code (IPC), 1860 as well as under Section 27 Arms Act.
2. PROSECUTION VERSION As per the prosecution story, on 25.09.2013 on receipt of DD No. 53 A, SI Ranbir Kumar Sharma alongwith Ct. Dinesh reached at Gadda Colony Wali Gali, Village Baprola, Delhi where on the road infront of H. No. 201, there were blood stains and one slipper was also lying. No eye-witness to the incident, met on the spot. SI Ranbir Kumar Sharma informed the crime team and leaving Ct. Ram Nishan on the spot, he went to Medanta Hospital, Gurgaon, Haryana alongwith Ct. Dinesh. In the hospital injured namely Pawan Kumar son of Shri Bhagat Singh aged 43 years R/o VPO Baprola, New Delhi, was found to be admitted vide MLC no. 1871/13 with alleged history of gun shot injury and was unfit for statement. Eye-witness namely Bhagat Singh @ Bhagat son of Shri Bhoop Singh R/o Village Baprola, New Delhi met in the hospital, who gave his statement to SI Ranbir Kumar Sharma that he has been living in the said village with his family and has been doing farming. He had a dispute with his cousin namely Chander Bhan and Om Prakash regarding ancestral land in village Baprola. On 25.09.2013, in the morning, he had gone to the house of accused Chander Bhan for settlement upon which accused Chandra Bhan asked him (Bhagat Singh) to come in the evening. Accordingly, on the same day at about 9.45 p.m, he alongwith his son namely Pawan and one relative namely Naveen reached at the house of accused Chander Bhan where Chander Bhan, Om Prakash, Suresh w/o Om Sessions Case No. 56482/2016 Page 3/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act Prakash, Saroj w/o Chander Bhan, Amit and Dev Karan were already present on the roof of house, who started shouting. All of them shouted to shoot Bhagat Singh, his son and his relative Naveen. Chander Bhan fired a gun shot which hit Pawan son of Bhagat Singh. Naveen and Bhagat Singh rushed Pawan to Medanta Hospital in his car and Bhagat Singh made a PCR call to this effect. Bhagat Singh stated that accused persons Chander Bhan, Om Prakash, Suresh, Saroj, Amit and Dev Karan had intentionally fired shot on his son Pawan, hence, legal action be taken against them.
3. On the basis of afore-said complainant, case under section 307 / 34 IPC was got registered against accused persons Chandra Bhan, Om Prakash, Suresh w/o Om Prakash, Saroj w/o Chander Bhan, Amit and Dev Karan. SI Ranbir Kumar Sharma informed the crime team, prepared the site plan, lifted the Exhibits from the spot and recorded the statements.
4. During further investigation on 26.09.2013 , accused Chander Bhan was arrested from his house who admitted his guilt of causing gun shot injury to Pawan Kumar. On 30.09.2013, injured Pawan Kumar expired during his treatment in Medanta Hospital hence, the FIR of the present case which was earlier registered under section 307/34 IPC was converted into to one under section 302/34 IPC. Postmortem examination of deceased was got conducted in SGM Hospital. Search was made for apprehending remaining accused persons. On 12.11.2013, accused Amit and accused Dev Karan surrendered in Tis Hazari Court while accused Saroj w/o Chander Bhan and accused Suresh w/o Om Prakash Sessions Case No. 56482/2016 Page 4/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act surrendered in Tis Hazari Court on 19.12.2013. After interrogation, all the above-said accused persons were arrested in the present case.
5. Accused Om Prakash could not be traced and arrested.
6. After conclusion of the investigation, the I.O came to the conclusion that sufficient evidence was collected to establish that accused persons namely Chander Bhan, Om Prakash, Saroj, Amit, Dev Karan and Suresh committed murder of Pawan Kumar son of Bhagat Singh. The police report under Section 173 Cr.P.C (charge-sheet) was prepared against accused persons and filed in the court before the learned Metropolitan Magistrate who after complying with the provisions stipulated under Section 207 Cr.P.C committed the case to the Court of Session.
7. On 27.02.2014, accused Om Prakash was also arrested and IO filed the supplementary chargesheet in the court before the learned Metropolitan Magistrate who after complying with the provisions stipulated under Section 207 Cr.P.C committed the same to the Court of Session.
8. CHARGE After hearing the learned Additional Public Prosecutor for the State and the learned counsel for accused persons, vide order dated 25.03.2014, charge for the commission of offence punishable under Section 30 Arms Act was framed only against accused Chander Bhan while charge for the commission of offence punishable under Sections 302/34 IPC was framed against all the accused persons to which all accused persons did not plead guilty and claimed trial.
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9. PROSECUTION WITNESSES To prove the afore-mentioned charge against the accused, the prosecution examined 21 witnesses in all. For the sake of convenience, a brief description of all the prosecution witnesses as well as their testimonies and the documents relied upon them is stated herein below, in tabular form :-
PW NAME OF EXHIBIT DOCUMENTARY NATURE OF No. PW EVIDENCE TESTIMONY PW-1 ASI Rambir PW-1/B Endorsement on Deposed about recording Rukka of FIR and proved the (Duty Officer) PW-1/D Certificate U/S 65 same.
(B) Evidence Act PW-2 Bhagat Singh PW-2/A Statement recorded Deposed about the (father of by police incident being eye witness deceased) PW-2/B Seizure memo of and being the person who blood stained had taken the deceased to clothes Medanta Hospital.
PW-2/C Site plan without
scale
PW-2/X Statement regarding
identification of
dead body
PW-2/Y Receipt of dead
body
Mark PW- Complaint before
28/X SHO Ranhola
regarding threatning
of murder
Mark PW- Copy of FIR
2/Y
Mark PW- Complaint to SHO
2/Z PS Ranhola
PW-3 Dr. Gurbachan PW-3/A MLC of deceased Prepared MLC of
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State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act
Singh Pawan Kumar deceased and proved the
PW-3/B Police intimation same in the court.
(Medanta form
Hospital,
Gurgaon,
Haryana
PW-4 Ms. Babita PW-4/A Fire Arm Examined the case
Gulia Examination Report property, prepared the
ballistic report and
proved the same in the
(Sr. Scientific court.
Officer-II,
Ballistic,
CFSL, CBI)
PW-5 ASI Ajit Singh PW-5/A Crime team report Inspected the spot and
prepared inspection
(Incharge report.
Mobile Crime
Team)
PW-6 HC Sanjeev PW-6/A1 Photographs of the Took the photographs of
Kumar to A14 spot place of occurrence,
PW-6/B1 Negatives of proved the same as well as
(Photographer) to B14 phonographs of the the negatives thereof.
spots
Mark X1 & Phonographs of the
X2 gun
PW-7 HC Hari Ram PW- DD no. 53s Deposed about receipt of
7/A(OSR) DD No.53 A regarding the
(Duty Officer) PW- DD no. 54A incident on 25.09.2013.
7/B(OSR)
PW-8 Ct. Dinesh PW-8/A Seizure memo of Deposed about the
Sharma blood stained recoveries made from the
clothes spot and as regards arrest
PW-8/B Seizure memo of of accused Chander Bhan,
exhibits as well as recovery of
firearm and cartridges
PW-8/C Seizure memo of from his house.
sleeper
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State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act
PW-8/D Seizure memo of
exhibits
PW-8/E Arrest memo of
accused Chander
Bhan
PW-8/F Personal search
memo of accused
Chander Bhan
PW-8/G Disclosure
Statement of
accused Chander
Bhan
PW-8/H Sketch of 12 bore
gun
PW-8/J Seizure memo of
gun, live bullets and
used cartoos
PW-8/K Seizure memo of
Live bullets
PW-9 HC Raj Kumar PW- Copy of of entry at Deposed about deposit of
9/A(OSR) serial no. 315/13 in exhibits and entry in
(MHC(M)) register no. 19 register no.19.
PW- Copy of of entry at
9/B(OSR) serial no. 320 in
register no. 19
PW- Copy of of entry at
9/C(OSR) serial no. 186//21/13
in register no. 21
PW- Copy of of entry at
9/D(OSR) serial no. 189/21/13
in register no. 21
PW-9/D1 Acknowledgement
of case acceptance
PW- SI Upendra PW-10/A Attested copy of Produced record
10 Singh relevant record pertaining to gun license
regarding the above of accused Chander and
mentioned license proved the same in the
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State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act
PW-10/B Photocopy of the court.
order of Joint Cp for
licensing
PW- Ct. Pal Soren PW-12/DA Statement U/s 161 Deposited six sealed
11 Cr.PC parcels with FSL Rohini
on the direction of the IO.
PW- Ct. Sushil Deposited three sealed
12 parcels with CFSL/CBI
Lodhi Colony on the
direction of the IO.
PW- Ct. Ram PW-13/A Seizure memo of Joined the investigation
13 Nishan blood on gauze and deposed about the
same in the court.
PW- Dr. Manoj PW-14/A Post Mortem Report Performed postmortem
14 Dhingra examination on the dead
body of the deceased,
(Incharge prepared the postmortem
Mortuary, examination report and
SGM proved the same in the
Hospital) court.
PW- Ct. Ravinder PW-15/A PCR Form Deposed about receiving
15 Hooda call regarding the
incident and
(CPCR communicating the same
Operator) to PS. Proved the PCR
form in the court.
PW- Naresh Kumar PW-16/A FSL Report Prepared the biological
16 PW-16/B Biological Report of report, DNA report and
(Sr. Scientific FSL proved the same.
Officer
Biology, FSL,
Rohini)
PW- Naveen Deposed about the
17 incident being eye witness
and he had also taken
deceased to hospital with
PW-2.
PW- Insp. Mahesh PW-18/A Scaled site plan Prepared scaled site plan
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State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act
18 Kumar and proved the same.
(Draughtsman)
PW- Ct. Savita PW-19/A Arrest memo of Witness to the arrest of
19 accused Saroj accused persons namely
PW-19/B Arrest memo of Saroj and Suresh on their
accused Smt. Suresh surrender before the Court on 19.12.2013.
PW- Insp. Manoj PW-20/A Arrest memo of Deposed about the 20 Kumar accused Amit investigation in the PW-20/B Arrest memo of present case being accused Dev Karan Investigating Officer.
(Investigating
Officer) PW-20/C Arrest memo of
accused OM
Prakash
PW-20/D Disclosure
Statement of
accused Om
Prakash
Mark Disclosure
20/X1 Statement of
accused Amit
Mark Disclosure
20/X2 Statement of Dev
Karan
Mark Disclosure
20/X3 Statement of
accused Smt. Saroj
Mark Disclosure
20/X4 Statement of
accused Suresh
PW-20/DA Reply of
anticipatory of bail
application
PW- SI Ranbir PW-21/A DD Entry No. 53 A Conducted part
21 Kumar Sharma dt. 25/09/2013 investigation and deposed
PW-21/B DD Entry No. 54 A about the same.
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State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act
dt. 25/09/2013
PW-21/C Seizure memo of
Arm Licence
PW-21/D DD Entry No. 22 A
dt. 30/09/2013
PW-21/E Filled inquest Form
no. 25.35(1)(B)
PW-21/F Statement regarding
identification of
dead body
PW-21/G Request for the
autopsy on the body
Deceased
10. STATEMENT OF ACCUSED
After conclusion of prosecution evidence, statement of the accused persons namely Chander Bhan, Om Prakash, Saroj, Amit, Dev Karan and Suresh under Section 313 Cr.P.C were recorded on 20.01.2017 where all the accused persons denied the correctness of all the incriminating circumstances appearing in the evidence against them and stated that a false case was registered against them and their family members. All the accused persons took the defence that they were innocent and a false case was registered against them. That on the day of incident they were not present at home. It was only later on, that they came to know that Pawan (deceased) alongwith 20/25 other persons came at their residence and they were armed with firearms and other weapons. They started abusing the female members of the family and when they had not opened the gate of the house, one of the companions of Pawan fired in the air and pellets struck against Sessions Case No. 56482/2016 Page 11/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act the electric pole in front of their house and after rebound the pellets struck Pawan, due to which he received injury. Somebody informed Bhagat Singh (PW.2), who came at the spot, later on. On the directions of Bhagat Singh (PW.2), PCR officials changed the message which was sent by him to PCR Headquarter.
11. All the accused persons desired to lead evidence in their defence. Accordingly, Shri Ved Singh, Shri Sushil Kumar and Ms. Mamta were examined as DW-1, DW-2 and DW-3 respectively.
12. FINAL ARGUMENTS Arguments were advanced by Ms. Reeta Sharma, learned Additional Public Prosecutor for the State and Sh. Pinaki Addy for accused persons.
JUDICIAL RESOLUTION
13. The evidence against the accused persons can be classified into the following headings:-
13.1. Motive (dispute regarding ancestral land). 13.2. Eye witness account (testimony of PW-2 Bhagat Singh, Father of deceased and PW-17 Naveen, relative of deceased).
13.3. Place of incident (in front of house of accused persons).
13.4. Recovery of firm arm and fire cartridge from house of accused Chander Bhan.
13.5. Medical opinion.
13.6. Ballistic opinion.Sessions Case No. 56482/2016 Page 12/60
State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act
14. MOTIVE 14.1. The motive behind the said incident is stated by PW- 2 Bhagat Singh (father of deceased) in his complaint Ex. PW 2/A, wherein he has stated that there was dispute between him and the sons of his uncle Bhim Singh, namely Chander Bhan and Om Prakash with respect to the land inherited from their grand father in village Baprola. The exact words used in the said complaint Ex. PW 2/A are as under:-
"बबपररलब गबग व मम मम रम दबदब लबई जममन कर लम कर dispute रहतब हहह "
14.2. The details of the said dispute were not disclosed in the complaint Ex. PW 2/A and no detailed enquiry with respect to the said dispute was made by the Investigating Officer as in the charge-sheet also, there is no mention of what was the actual dispute between the parties, though in the last few lines of the charge-sheet the Investigating Officer has stated that the copy of khatoni of the disputed land was obtained from the complainant.
14.3. Therefore, to decipher the actual dispute between the parties, which may be said to be the motive behind the murder of the deceased, one has to go through the testimony of PW-2 Bhagat Singh.
14.4. In his examination in chief PW-2 Bhagat Singh as regards dispute between the parties, testified as under:
"I am a farmer. There was dispute between me and the accused persons namely Chanderbhan, Omprakash, Amit, Devkaran, Smt. Suresh and Sessions Case No. 56482/2016 Page 13/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act Saroj who are present in the court today (correctly identified) regarding our ancestral land. Accused Chanderbhan is my cousin brother being son of my real uncle, accused Omprakash is real brother of Chanderbhan, accused Amit and Devkaran are sons of accused Omprakash, Smt. Suresh is wife of accused Omprakash and Smt. Saroj is wife of Chanderbhan."
14.5. In his examination in chief as reproduced above, he has merely stated that there was dispute between him and the accused persons regarding ancestral land, but he did not clarify as to what was the actual dispute between the parties and he also did not rely upon the copy of the khatoni to explain to the court as to what was the dispute with respect to the ancestral land and how the khatoni was relevant to explain or prove the said dispute. 14.6. The cross examination of the witness therefore becomes important to understand the actual dispute between the parties, in which questions were put to him regarding ancestral property. In his cross examination the witness in this regard testified as under:-
"I am agriculturist. The name of my grand-father is Lt. Sh. Amar Singh had four sons and six daughters. Names of his sons are Bhoop Singh, Bhim Singh, Jeet Singh and Karan Singh. The family is having joint holding of the agriculture land of about 18-19 acres. I am the only son of Sh. Bhoop Singh and I have six sisters. Bhhim Singh has four sons and four daughters. The names of the sons of Bhim Singh has four sons and four daughters. The names of the sons of Bhim Singh are Om Prakash, Chander Bhan, Sushil Kumar and Raj Kumar. Sh. Jeet Singh Sessions Case No. 56482/2016 Page 14/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act have two sons and three daughters. The names of the sons of Sh. Jeet Singh are Rajesh and Rakesh. Sh. Karan Singh has one son namely Satpal and two daughters.
There is joint holding of about 4-4.5 acres near the place of occurrence and the said land has been partitioned by different stake holders as per mutual understanding. There is no way / street of about 20 feet between the portions of sh. Bhim Singh and Sh. Karan Singh. It is wrong to suggest that a passage of about 20 feet was given between the portions of Sh. Bhim Singh and Sh. Karan Singh in the above mentioned joint holding after taking 10 feet each from both the sides. My share is on the back side and we use to go through the land of Sh. Karan Singh to my land. It is wrong to suggest that we also use the above mentioned passage of 20 feet which is left between the portions of Sh. Karan Singh and Sh. Bhim Singh. Chander Bhan and Om Prakash (both accused in this case) have constructed houses in their respective portions. The house of Chander Bhan is towards the portion of Karan Singh. It is wrong to suggest that Chander Bhan has left an additional passage of 3 feet adjoining his houses. It is wrong to suggest that the above mentioned passage is use by all villagers. Vol. There is no passage. The house of Om Prakash is next to house of Chander Bhan, thereafter, there are houses of Sushil and Raju. Some part in the portion of Sh. Bhim Singh is lying vacant behind the houses mentioned above. The portions of sh. Karan Singh, Sh. Bhoop Singh and Sh. Jeet Singh are being used as agriculture land. I am residing in the house which is in the village. He families of Sh. Karan Singh and Sh. Jeet Singh are also residing in the village. My house is situated on the main street leading to main Najafgarh Road.
We had raised objection qua installation of one gate in the house of chander Bhan. Vol.Sessions Case No. 56482/2016 Page 15/60
State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act There was no passage and the gate was beng installed unauthorizedly. It is wrong to suggest that there is a passage which is 3 feet higher from the field of Karan Singh. Vol. There is some height for the purpose of taking tractor in field but there is no passage as such. It is wrong to suggest that there is no ramp or it is a regular passage. It is wrong to suggest that we had broken the gate which was supposed to be installed by Chander Bhan about five days prior to the incident. It is wrong to suggest that Chander Bhan had come to me and requested me to settle the matter amicable and to permit him to install the gate or that he had stated that he has already left 3 feet additional space for passage or that I told him that we will not allow the installation of gate at any cost. One of the gate is still laying at the house of Chander Bhan in same position while another gate has been installed. It is wrong to suggest that the gate which is presently installed is there since the year 2006. Vol. The same was installed near the date of incident. I hire tractors for the purpose of agriculture. I am having more than one acre agriculture land. The remaining portion coming to my share has been used for carving out a colony. It is wrong to suggest that I am not an agriculturist or that I am a colonizer / property dealer / land grabber or that I was putting pressure on Chander bhan so that his remaining land can be used by me for colony purpose or that Chander Bhan refused to do so as the land was required by him for other purposes."
14.7. In his cross examination as reproduced above, the witness specifically stated that the name of his grandfather was Sh. Amar Singh and that the family had joint holding of the agriculture land of about 18-19 acres and that there is a joint holding of about 4-4.5 acres near the place of incident Sessions Case No. 56482/2016 Page 16/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act and the said land has been partitioned by different stake holders as per mutual understanding. Thus, the witness admitted that the land was already partitioned among different stake holders, from which an inference can be drawn that there was no dispute between the parties as far as partition of the joint holding was concerned. The witness in his cross examination failed to explain, even voluntarily as to what was the dispute with respect to the ancestral land, if the joint holding had already "been partitioned by different stake holders as per mutual understanding".
14.8. In his cross examination the witness also stated that accused Chander Bhan and Om Prakash had constructed their houses in their respective portions and therefore there was no dispute even as regards any construction or trespass by the accused persons upon the land which came to the share of the complainant / PW-2. He has even not stated that the land owned by Chander Bhan or Om Prakash was adjacent to his land or house, which could be the cause of dispute.
14.9. In his cross examination complainant / PW-2 stated that the dispute was actually with respect to installation of one gate in the house of Chander Bhan and he voluntarily stated that there was no passage and that the gate was being unauthorizedly installed by Chander Bhan. The witness failed to explain even at this stage as to what was the cause of objection, which he had regarding installation of the gate by Chander Bhan in his house and how the Sessions Case No. 56482/2016 Page 17/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act installation of the said gate adversely affected the interest of the complainant. Complainant failed to state any reason at all to raise objection to the installation of gate by Chander Bhan.
14.10. At this stage, it would be relevant to point out that in the suggestions given to this witness by learned defence counsel, it has been suggested that the dispute was with respect to a gate which was broken by the complainant about five days prior to the incident. It is also suggested to this witness in his cross examination that accused Chander Bhan had come to him and requested him to settle the matter amicably and to permit him to install the gate, but the complainant stated to him that he will not allow him to install the gate at any cost.
14.11. Therefore, the dispute between the parties does not seem to be with respect to the ancestral land, as stated by complainant in his complaint Ex. PW 2/A, as well as in his examination in chief, rather the dispute between the parties is with respect to installation of one gate by accused Chander Bhan in his house.
14.12. The fact that there was dispute between the parties is also admitted by daughter of accused Chander Bhan namely DW-3 Mamta Solanki in her testimony, wherein she testified as under:--
"In the vacant portion of our land we had constructed two rooms and a separate gate was also installed by us towards the passage of 20 feet. 2-3 days prior to the incident, the said gate Sessions Case No. 56482/2016 Page 18/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act was demolished by my chacha and chachi namely Bhagat Singh and Rajbala.
On 25.09.2013 in the morning my chacha Bhagat Singh came at my house. After serving tea to him, I went inside the house. After sometime, I heard noise of quarrel between Bhagat Singh and my father. After Bhagat Singh left my house, my father made 100 number call to the police. PCR came and was informed by my father about the harassment made to him by Bhagat Singh. Police did not take any action at that time and left from there."
14.13. In her cross examination the said witness again testified in respect of the gate installed by accused Chander Bhan and stated that the gate was broken by complainant and his wife Raj Bala at 8:00 AM on 22.09.2013. Relevant portion is as under:-
"As per my memory, on 22.09.2013 our gate towards the passage of 20 feet was broken by Bhagat Singh and Rajbala at 8 a.m. I was present at my house on the said day besides my other family members i.e. my parents Shri Chandra Bhan, Smt. Saroj and my brothers namely Jaiveer and Umesh. Only Bhagat Singh and Rajbala had come and had broken the said door. Neither me nor any of my family member had made call on 100 number at that time about the incident of breaking of the gate. It is wrong to suggest that no gate was broken by Bhagat Singh and Rajbala on any day and due to this reason no 100 number call was made by us. Neither me nor any of my family member including my parents had lodged any police complaint regarding breaking of the gate. It is wrong to suggest that no gate was broken by Bhagat Singh and Rajbala on any day and due to this reason no complaint was made to police by us."Sessions Case No. 56482/2016 Page 19/60
State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act 14.14. The witness in the last lines of her cross examination dated 21.04.2017, however, admitted that there was dispute between the complainant and the accused persons on agriculture land, but that she was not aware of the actual details of the said dispute1.
14.15. PW-17 Naveen who is an eye witness as per the prosecution, also did not testify about the dispute between the complainant and accused persons.
14.16. In the written submissions, the learned defence counsel has specifically submitted on page 11 that the reason for the quarrel is that the complainant / PW-2 "wanted Chander Bhan and Om Praksh to sold, surrender and / or exchange their land with him because he wanted use it for carving out colony". In this regard suggestions were given to PW-2 / complainant (as reproduced earlier), which were denied by the complainant. Similar suggestions were also given to PW-17 Naveen in his cross examination, but he also denied the said suggestions. Thus, it could not be proved either through the testimony of PW-2 and PW-17 or even through the testimony of DW-3 Mamta Solanki that the reason behind the dispute between the parties was that the complainant wanted Chander Bhan and Om Prakash to sell, surrender or exchange their land, as the complainant wanted to carve out the colony. However, it may be pointed out here itself that it was admitted by PW-2 in his cross examination that he had 1 "It is correct that there wad sidpute between Bhagat Singh and the accused persons on agriculture land, but I do not know the main cause of dispute."
Sessions Case No. 56482/2016 Page 20/60State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act carved out a colony in the land which came into his share, barring 1 acre of agriculture land, which fact was also admitted by PW-17 in his cross examination 2 and the said fact supports the aforesaid defence.
14.17. However, from the evidence as reproduced and discussed above, the court reaches the conclusion that the prosecution failed to prove that there was dispute between the parties with respect to ancestral land, as the same was already divided among the parties as per mutual understanding. However, there was admittedly a dispute between the parties with respect to installation of a gate by accused Chander Bhan, with respect to which not only PW- 2 but also DW-3 Mamta Solanki (daughter of accused Chander Bhan) testified. It could not be proved by the accused persons that the complaint was trying to pressurize accused Chander Bhan and Om Prakash to sell, surrender or exchange their land, so that the complainant may carve a colony from the same and consequently the motive behind the incident or the cause behind the same can be said to be the dispute between the parties with respect to the installation of gate by accused Chander Bhan. However, the complainant (or any other witness) failed to explain as to how the installation of gate affected the interest of the complainant and as to why complainant had objection to the installation of gate by Chander Bhan in his house.
2 "It is wrong to suggest that Bhagat Singh is doing property dealing business. It is correct that Bhagat Singh had sold plots in his land. Vol. But he is not indulge him in property dealing business. It is wrong to suggest that Bhagat Singh is a colonizer."
Sessions Case No. 56482/2016 Page 21/60State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act 14.18. Thus, the motive as stated in the complaint and charge sheet could not be proved and cause of dispute regarding installation of gate by Chander Bhan also remained unexplained.
15. EYE WITNESS ACCOUNT 15.1. There are two eye witness of the alleged incident i.e. PW-2 Bhagat Singh and PW-17 Naveen .
15.2. PW-2 Complainant Sh. Bhagat Singh is also father of the deceased and as per the prosecution he along with his son Pawan (deceased) and Naveen (relative) had come to the house of accused Chander Bhan on 25.09.2013 at about 9:45 PM where the incident took place. Thus, both PW-2 Bhagat Singh and PW-17 Naveen are eye witnesses of incident.
15.3. PW-2 as regards the incident dated 25.09.2013 testified as under:-
"On 25.09.2013, at about 8:00 am, I had gone to the house of accused Chanderbhan to settle above mentioned land dispute with him. Accused Chanderbhan had asked me to come to his house in the evening on that day thereafter I came back to my house. At about 9.45 pm I alongwith my son Pawan (since deceased) and one of my relative namely Naveen went to the house of accused Chanderbhan. When we reached at the house of accused Chanderbhan we found all the accused persons mentioned above standing on the roof of their house. Accused Chanderbhan was carrying gun in his hand. All the accused persons were exhorting in loud voice 'Sab ko khatam kar do, goli mar do.' Thereafter accused Chanderbhan pointed his gun towards Sessions Case No. 56482/2016 Page 22/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act my son Pawan and thereafter he fired from his gun and my son Pawan received bullet injury on his head. Blood started oozing out from his injury. After receiving bullet injury my son Pawan fell down on ground. Thereafter I alongwith my releative Naveen took my son to the Medanta Hospital Gurgaon in my car. While removing my injured son Pawan my wearing clothes i.e. pant and T-shirt were stained in blood. We got my son admitted in the said hospital. After receiving injury my son Pawan become unconscious and he remained unconscious in the hospital till his death. I had informed the police at number-100. My statement was recorded by the IO in this case on 26.09.2013 at Medanta Hospital and the same is Ex. PW 2/A bears my signatures at point A. My son Pawan expired in the hospital on 30.09.2013."
15.4. PW-17 Naveen also testified about what happened on 25.09.2013 and his testimony in this regard is as under:-
"On 25.09.2013 I had come to the Village Baprola. At around 9.45 pm I along with Bhagat Singh and his son Pawan went to the house of accused Chanderbhan for some discussion. When we reached at the house of accused Chanderbhan, accused Chanderbhan, Amit, Devkaran, Smt. Suresh, Smt. Saroj and Om Prakash were present at the roof of the house. After seeing us all the abovesaid persons asked Chanderbhan to shoot us by saying "inhe goli mar do". Thereafter accused Chanderbhan, who was having a gun in his hand, pointed the said gun towards us and made a fire which hit Pawan. Pawan fell down on the ground due to said gun fire. I and Bhagat Singh shifted Pawan from the spot to the car and took him to Medanta Hospital, Gurgaon where we got him admitted."Sessions Case No. 56482/2016 Page 23/60
State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act 15.5. The testimonies of the said witnesses has been challenged by the learned defence counsel by submitting that their testimonies are unreliable and full of contradictions and do not inspire confidence. 15.6. It is pointed out by learned defence counsel that complainant PW-2 failed to disclose any dispute with respect to the ancestral land as stated by him in his complaint Ex. PW 2/A and that even if there is any dispute between him and Chander Bhan, there was no reason for him to come to the house of Chander Bhan alongwith an outsider namely Naveen that too as late as 9:45 PM. It is further submitted that even PW-17 admitted that he resides 25-30 kms away and that he used to deal in property with Pawan from which it appears that the motive of Bhagat Singh PW-2 and Naveen PW-17 was "to create disturbance at night"3. Further it is submitted that even if the prosecution story is believed to be true, still it is unbelievable as well as illogical that without any instigation and provocation the accused persons gathered on the roof of house of Chander Bhan from where Chander Bhan fired a gun shot, upon exhortation of the other accused persons. It is further submitted that even as regards the exhortations made by the accused persons at the time of incident, there are contradictions.
15.7. The court proceeds to discuss the contradictions pointed out by learned defence counsel.
3 Page 12 of the written submissions.
Sessions Case No. 56482/2016 Page 24/60State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act 15.8. It is submitted by learned defence counsel that DD No.53-A and 54-A dated 25.09.2013 are read with the PCR Form dated 25.09.2013, then one can see that PCR call was made by one Pawan Solanki, who stated in the call that "mere ladke ke mere chacha ke ladke ne goli mar di and need police", whereas in DD No.54-A it is stated "mere ladke ko mere dada ke ladke ne goli mar di"
15.9. The said anomaly is explained by the learned Additional PP, who submitted that such minor contradiction in the noting of the information at the PCR can also be due to some over hearing while the information is communicated over the telephone.
15.10. The court has gone through the PCR Form Ex. PW 15/A, as per which the call was received at the PCR on 25.09.2013 at 10:03:42 PM from telephone number 9999600424, and as per the PCR Form the informant is Pawan Solanki, S/o Sh. Bhagat Singh and the complaint is of shoot out and the incident information is "mere ledke ke mere chacha ke ledke ne goli mar di hai need police".
Upon receiving the said information the PCR Van reached at the spot where Suresh W/o Sh. Om Prakash (who is an accused in the present case), met the police and informed the police that complainant Bhagat Singh alongwith 15-20 persons had come to their house and started quarreling with them and that in the fight a bullet was fired which hit Pawan S/o Sh. Bhagat Singh, who has already been taken to hospital. The PCR Van remained at the spot till the arrival of SHO, Additional SHO with staff and it Sessions Case No. 56482/2016 Page 25/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act subsequently reported to the Control Room that accused Chander Bhan had shot Pawan from his licensed gun and that public has informed that Bhagat Singh has taken injured to Medanta Hospital.
15.11. The report received from the PCR Van is important to understand the situation at the spot and same is reproduced as under:-
"RCD TIME 5 MIN SURESH S/O OM PRAKASH R/O AS ABOVE R/O 201 BAPROLA GAON NE BATLAYA BHAGAT SINGH S/O BHOOP SINGH AGE 48 YRS R/O H. NO. 188 VILL. BAPROLA 15/20 LOGO KE SATH USKE GHAR AYA AUR JHAGRA KIYA. JHAGRE MAIN UNHONE GOLI CHALAYI JISMAIN EK LADKA PAWAN S/O BHAGAT SINGH KO GOLI LAGI HAI JO PAHLE HI U/K HOSPT. JA CHUKA HAI SHO, ADD. SHO WITH STAFF MAUKA PER INKA CHACHA--TAU KA PROPERTY PER JHAGRA HAI. MAUKA PER AUR KOI INJD NAHI HAI SAME CALL DCR NO 228 CH NO. 1050480 C/ROOM INFD 25/09/2013 22:49:55 PAWAN AGE 28 YRS KO GOLI KAHAN PER KIS JAGAH PER LAGI HAI KUCH PATA NAHI HAI 25/09/2018 22:50:12 CORRECTION- SURESH W/O OM PRAKASH HAI 25/09/2013 22:52:11 CHANDER BHAN S/O BHIM SINGH R/O 201 VILL. BAPROLA NE APNE LICENCING GUN SE PAWAN KO GOLI MARI HAI C/ROOM INFD 25/09/2013 23:04:06 FROM T-48 PUBLIC NE BATLA RAHE HAI PAWAN S/O BHAGAT SINGH JISKO GOLI LAGI HAI USKO PAHLE HI MEDANTA HOSPT.
GURGAON LE GAYE HAI 25/09/2018 28:04:24 C/ROOM INFD"
15.12. It may be noted here itself that as the official from the PCR Van was not examined, hence, the said information can not be relied upon as proof of allegations against the Sessions Case No. 56482/2016 Page 26/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act accused Chanderbhan, but the said information has been reproduced merely to show that mistakes in noting down the details over telephone do occur as in the said information initially Suresh was mentioned as son of Om Prakash, where as subsequently a correction was made in this regard and it was clarified that Suresh is wife of Om Prakash. The details on the said form therefore can neither be basis of conviction nor can any discrepancies in the same be a ground for acquittal or of raising a doubt as regards how the actual incidence took place. When the said PCR Form Ex. PW 15/A is read with DD No.54-A Ex. PW 21/B, one can see that the information on the basis of which DD No.54-A is written is given by Constable Ravinder Hudda, who recorded the PCR Call in PCR Form Ex. PW 15/A and who intimated the police about the said PCR call. Thus, the discrepancy in the information recorded in Ex. PW 15/A and Ex. PW 21/B is at best a minor discrepancy and it does not affect the case on its merits.
15.13. Moreover, Ct. Ravinder Hooda from PCR was examined by the prosecution as PW-15 and he in his testimony categorically stated that the information that he received at PCR from phone number 9999600424 was "Mere ladke ke mere chacha ke lake ne goli mar di hai, need police". The said witness was not cross examined despite opportunity and his testimony in this regard remains unrebutted and unchallenged. The said witness also stated that the informant told him that he was Pawan Sessions Case No. 56482/2016 Page 27/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act Solanki, however, as regards same the court is of the opinion that Pawan Solanki could not have given information himself in view of his medical condition and it is a possible that PW-2 Bhagat Singh made call from phone of Pawan Solanki.
15.14. It is also argued by learned defence counsel that the story of prosecution that PW-2 and deceased Pawan came alongwith Naveen at 9:45 pm to settle land dispute is unbelievable as Naveen is not a relative of PW-2 or deceased and he was not even a neighbour, rather, he used to reside 25-30 kms away and was involved in the business of properties with Pawan, which shows that the motive of Bhagat Singh (PW-2), deceased and Naveen (PW-17) was to create disturbance at late night. 15.15. PW-2 in his complaint Ex. PW 2/A mentioned that Naveen was his relative. Even in his examination in chief he mentioned that Naveen was his relative4. 15.16. However, PW-17 Naveen in his cross examination stated :-
"On 25.09.2013 I reched Village Baprola at about 7:00-7:30 PM. On that day I had come to Village Baprola to meet Pawan (since deceased). I had friendship with Pawan for about 4-5 years prior to the incident.............I have no direct relationship with Bhagat Singh, however, a girl of our village has been married in Village Baprola............"
15.17. Thus, Naveen stated that he had no relationship with PW-2 Bhagat Singh and that he was merely a friend of 4 "...............One of my relative namely Naveen............"
Sessions Case No. 56482/2016 Page 28/60State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act deceased Pawan which is contrary to the testimony of PW- 2 Bhagat Singh. However, the said fact does not mean that PW-17 Naveen was not present at the spot or that he was planted by PW-2 or police officials.
15.18. The fact that PW-17 was present at the spot and also took the injured to the hospital stands proved from his own testimony, as well as testimony of PW-2 and besides that the blood stained clothes of Naveen which were seized by PW-21 on 26.09.2013 in presence of PW-8 were sent to FSL and were found to be having stains of blood of 'O' group, i.e. the same blood group as that of deceased, as per FSL report Ex. PW 16/A and Ex. PW 16/B. The said report was also duly proved by PW-16. Naresh Kumar, Senior Scientific Officer, Biology, FSL and the seizure of clothes was duly proved by PW-2, PW-8, PW-17 and PW-
21. 15.19. Thus, the presence of this witness at the spot and the fact that he took the injured to Medanta Hospital alongwith PW-2 Bhagat Singh stands proved beyond reasonable doubt.
15.20. The testimony of this witness regarding the identification of all accused persons by name is interesting, as the said witness in his statement under Section 161 Cr. P.C. dated 26.09.2013 named all the accused persons, though in his cross examination he testified:-
"I had never gone to the house of Chander Bhan or Om Prakash prior to 25.09.2013. I had met Chanderbhan and Om Prakash prior to incident Sessions Case No. 56482/2016 Page 29/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act as they used to visit the house of Bhagat Singh in my presence.....................It is correct that I have never been called for TIP of any of the accused persons either at the police station or in jail."
15.21. Thus, PW Naveen had not met accused Amit, Dev Saran, Saroj and Suresh prior to the incident. Though, the said fact weakens the testimony of this witness, but, it is not his testimony alone, which is being relied upon by the court to decide the present case. His testimony is corroborated by the testimony of PW-2 Bhagat Singh, as well as by the fact that the incident took place in front of the house of accused persons and the firearm as well as fired cartridge was also recovered from the house of accused Chanderbhan at his instance.
15.22. In the opinion of the court the eye witness account given by PW-2 and PW-17 is believable and proves the fact that accused Chanderbhan fired gunshot at them when they were present in front of house of Chanderbhan and the said gunshot hit the deceased who died because of the same. The argument of learned defence counsel that both PW-2 and PW-17 are interested witnesses, is not having much force, as PW-2 Bhagat Singh being a father would not shield the real culprit, just to falsely implicate Chanderbhan, because of land dispute. Though, the testimony of these witnesses as regards involvement of the entire family is to be evaluated with some circumspections, as the possibility of naming the entire family to seek revenge can not be ruled out.
Sessions Case No. 56482/2016 Page 30/60State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act
16. PLACE OF INCIDENT (IN FRONT OF HOUSE OF ACCUSED PERSONS) 16.1. The place of incident i.e. where deceased Pawan was hit with the pellets, is in front of the house of the accused persons, which fact is admitted even by the accused persons in their statement under Section 313 Cr. P.C. All the accused persons have stated in their reply to Question No.40 in their statements under Section 313 Cr. P.C that while they were away, the deceased alongwith 20- 25 persons came at their residence armed with fire arms and other weapon and they started abusing female members of the family, who were present in the house and when the gate of the house was not opened, one of the companions of deceased Pawan fired in the air and pellets from the said shot struck against the electric pole and rebounded and struck Pawan because of which he received injuries. Thus, the accused persons admitted the fact that deceased Pawan had received pellet injuries in front of the house of the accused persons, though as per them the pellet injuries were not caused because of the gunshot fired by accused Chander Bhan, rather the pellet injuries were caused to Pawan, as the pellets rebounded from the electric pole upon firing by one of the companions of Pawan.
16.2. The place of incident is further proved through the testimony of PW-2 and PW-17, who are eye witness to the incident and who testified stated that Pawan received pellet injuries in front of the house of the accused persons. The Sessions Case No. 56482/2016 Page 31/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act said fact is further proved by the testimony of PW-5 ASI Ajeet Singh, who found blood stains in the gali in front of the house of accused persons, PW-6 HC Sanjeev Kumar who photographed the spot and found blood stains in the gali in front of house of accused persons, PW-8 Constable Dinesh Sharma who also found blood stains outside the house of the accused persons and PW-21 Ranbir Kumar Sharma.
16.3. Therefore, the fact that the incident took place in front of the house of the accused persons stands proved beyond reasonable doubt. The submissions of the learned defence counsel as regards the distance between the spot where Pawan received injuries and the house of the accused persons is discussed separately while discussing ballistic opinion.
17. RECOVERY OF FIRE ARM AND FIRE CARTRIDGE FROM HOUSE OF ACCUSED CHANDER BHAN AT HIS INSTANCE.
17.1. The evidence of PW-6 and PW-21 is relevant as regards recovery of the gun and fired as well as live cartridges from the house of accused Chanderbhan, as these are the only two witnesses to the recovery and the two seizure memos Ex. PW 8/I and PW 8/K. 17.2. As per the said two witnesses, accused Chanderbhan was arrested from his house on 26.09.2013 at 3:50 AM vide arrest memo Ex. PW 8/E and his personal search was conducted vide memo Ex. PW 8/F. His Sessions Case No. 56482/2016 Page 32/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act disclosure statement was also recorded as Ex. PW 8/G and upon his pointing out the gun was recovered from top of the Almirah and one live and one fired cartridge was recovered from the roof of the house. Further at this instance one box containing seven live cartridges were recovered from underneath the gadda lying on the room on the first floor. As far as the arrest of accused Chanderbhan is concerned, the accused in answer to question No.15 in statement under Section 313 Cr. P.C. admitted it to be correct that he was arrested vide memo Ex. PW 8/E, that his personal search was conducted vide memo Ex. PW 8/F and that his disclosure statement Ex. PW 8/E was also recorded by the Investigation Officer. Learned defence counsel in his written5 as well as oral submissions pointed out some contradictions in the testimonies of PW-8 and PW-21, however, the said contradictions are minor in nature and fail to create doubt in the mind of the court as regards the recovery of the weapon from the house of accused Chanderbhan at his instance.
17.3. The defence that the police seized the gun, as the same was found hanging on the wall, seems unbelievable on the face of it, as the fact the fire arm and fired cartridge as well as live cartridge were taken from the house of accused Chanderbhan is not completely disputed. In this regard, DW3 Mamta (daughter of accused Chanderbhan), testified in her examination in chief that :-
5 Page 22 to 26 of written submissions.Sessions Case No. 56482/2016 Page 33/60
State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act "That police officials came inside our house after getting the door opened and made inquiry from us. We narrated the incident to the police. There was a gun hanging inside our mandir room situated on the ground floor of the house. The said gun was taken away by the police alongwith one pocket of cartridge. At the time of taking away the gun, police officials had fired one cartridge from the said gun."
17.4. Thus, the fact that the police officials took the gun from the house of accused Chanderbhan is admitted by DW-3 i.e. the defence witness produced by accused persons, specially the one who claims to have seen as to how Pawan received pellet injuries, though as per her, the police took the gun and also fired a shot, which explains the ballistic report (Ex. PW 4/A).
17.5. No prudent person would hang a firearm in open so as to be visible6 and accessible to anyone present in the house. Further, if the police fired in air from the said recovered firearm, then, the neighbours must have heard the same and they could have deposed that they heard gunshot after the incident, when police had come at the spot, but no such independent witness has been examined in defence.
17.6. Moreover, DW-3 stated that police arrived at the spot after Bhagat Singh had taken the injured and at that time itself the police officials took the gun and live cartridges with them and fired the gun there itself, which is highly unbelievable as by that time the complainant or his family members had no time and opportunity to connive with the 6 DW-3 stated in cross : "The mandir and gun were visible from the main gate of my house."
Sessions Case No. 56482/2016 Page 34/60State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act police to falsely implicate Chanderbhan. Further, if the police officials were actually taking the gun and live cartridges with them as stated by DW-3, then there was no reason for them to fire a gunshot in air there itself, that too in the middle of night. The police officials could have easily taken the gun to police station and fired a shot there, if the purpose was to create false evidence.
17.7. The court is not convinced with the submissions made by learned counsel for accused that the gun and cartridges were not recovered at the instance of accused Chanderbhan from his house. In the opinion of the court the prosecution has proved beyond reasonable doubt the recovery of firearm and used as well as live cartridges at the instance of accused Chanderbhan from his house.
18. MEDICAL OPINION 18.1. PW-3 Dr. Gurbachan Singh of Medanta Hospital, Gurgaon is the first doctor who examined deceased Pawan S/o Bhagat Singh after the incident. PW-3 testified that on 25.09.2013 he was posted as CMO at Medanta Hospital, Gurgaon when Pawan was brought by his father Bhagat Singh. He examined Pawan and prepared MLC Ex. PW 3/A and also reported the matter to police vide Form Ex. PW 3/B. This witness was not cross examined by learned defence counsel.
18.2. As per the MLC the patient (Pawan) was having several injuries, as under:-
(i) Multiple pallets injuries over face and upper chest.Sessions Case No. 56482/2016 Page 35/60
State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act
(ii) CLW over scalp and pima.
(iii) Swelling right side neck with bleeding (oozing).
(iv) Left blackend eye.
(v) Left facial deviation.
(vi) Nosal bleeding.
18.3. The provisional diagnosis as per the MLC was "Gunshot injury with multiple facial and neck and chest injury".
18.4. The nature of injury was described by the doctor as "Dangerous". The medical opinion regarding the nature of injury and the cause of injury remains unchallenged. 18.5. The said opinion is further coroborated by PW-14 Dr. Manoj Dhingra of Sanjay Gandhi Memorial Hospital, who proved the post mortem report dated 30.09.2013 in his testimony. PW-14 testified about having conducted the postmortem on 30.09.2013 alongwith Dr. Vivek Rawat on the body of deceased Pawan. The external injuries found on the body are as under:-
"1. Stitched craniotomy wound 32cm long seen over left fronto-parieto-termoral scalp area.
2. Stitched laceration (pellet entry wound) seen over right frontal scalp area, lying 8.5 cm vertically above mid point of eyebrow. Underlying frontal bone was fractured.
3. Multiple healing pellets entry wounds (as per MLC) measuring 0.8 x 0.6 cm seen over left frontal forehead scalp area, right, left infraorbital area, left cheek, both sides of neck & over righyt supraclavicular area.
4. Black eye seen on left side of both eyelids.
5. Stitched laceration 3cm long seen over mid part of left pinna.Sessions Case No. 56482/2016 Page 36/60
State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act
(i) Surgical drainage would 1x1 cavity deep in right th 4 intercostals space along anterior axillary line."
18.6. The said doctor also opined that the death was caused due to shock as a result of damage to head and chest structures under injury number 1, 2 and 3 (as mentioned above). In the cross examination, the doctor further clarified that the injuries mentioned in postmortem report are pellete entry wounds.
18.7. In cross examination suggestion was given to PW-14 that the said pellet injuries were possible due to rebound shot of fire arm, which suggestion was admitted to be correct by the wiitness, however, the same has been discussed in detail will considering ballistic opinion. 18.8. Suffice it is to say as regards medical opinion that the injured had sufferred fresh pellet entry woulds when he was examined by PW-3 on the night of 25.09.2003 and that he died because of the said pellet injurise on 30.09.2003.
19. BALLISTIC OPINION 19.1. Three parcels bearing seal of RKS were sent to FSL for opinion of ballistics report. The parcels contained the following exhibits:-
"Ex.-1:- It contained one 12 Bore fired cartridge case (marked C/1 by me).
Ex. -2:- It contained one 12 Bore SBBL gun bearing Sl. No.32178, (marked W/1 by me).
Ex. -3:- It contained one 12 Bore cartridge (marked C/2 by me)."
19.2. The said exhibits were examined by PW-4 Babita Gulia, Senior Scientific Officer-II (Ballistics), (FSL), CFSL, Sessions Case No. 56482/2016 Page 37/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act CBI, New Delhi and she reported in her report Ex. PW 4/A as under:-
"i) The 12-bore SBBL gun (marked W/1) contained in Ex. No.2 is a firearm as defined in Arms Act 1959, is in working order in its present condition and had been fired through.
ii) The 12-bore cartridge case (marked C/1) contained in Ex. No.1 has been fired from the 12- bore SBBL gun (marked W/1) contained in Ex. No.2 & not from any other firearm even of same make & bore because every firearm has got its own individual characteristic marks.
iii) The 12-bore cartridge (marked C/2) contained in Ex. No.2 is 'Ammunition' as defined in Arms Act 1959 & was live one."
19.3. Coming to the testimony of this witness, in her testimony she reiterated the opinion given by her in her report Ex. PW 4/A and she also identified the exhibits that she had examined as Ex. P1, P2 and P3.
19.4. The said expert was cross examined on 21.01.2015 and again on 09.12.2016 (after application under Section 311 Cr. P.C. was allowed).
19.5. In her cross examination the said expert admitted the following facts:-
(i) The firing range of 12- bore gun Ex. P-1 is approximately 75 meters and maximum range is 600 meters.
(ii) If the cartridge is of number 1, then approximately 100 pellets will release from the same.Sessions Case No. 56482/2016 Page 38/60
State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act
(iii) The pellets which exhaust from the cartridge, spread over an area and it depends upon the distance of firing.
(iv) Spreading of pellets starts after six yard approximately and they spread roughly at the average of one centimeter per yard.
(v) The pellets will spread over an area of about 100 cms after they are released from a cartridge fired from a 12-bore DBBL or SBBL gun after covering distance of 900 yards.
19.6. The said ballistic opinion has been relied upon by the learned defence counsel, who argued that as per the said ballistic opinion the pellets should have spread over a large area and at least some pellets would have also hit PW-2 Bhagat Singh and PW-17 Naveen, who were standing near the deceased, as per their testimony.
19.7. The submissions in this regard on page 29 of the written submissions is as under:-
"...It has also come on record in the cross examination of PW-14 that the pellet injuries are possible as a result of rebound shot of fire arm meaning thereby that a grave suspicion arises whether the shot has been made by the deceased which has rebounded back and caused injury. This gives a lot of doubt as to nature of injury sustained by the injured as because of the gun fired from a distance of about 90 yds or 100 yads cannot have multiple pellet injury on the face and chest of the injured as would be evident from the statement of the ballistic expert PW4 who in cross examination has stated that the Sessions Case No. 56482/2016 Page 39/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act pellets would have spread over an area of 100 centimetres. When there are three persons standing near to each other at the neight of 25.09.2013 as per statement of the eye witness, Bhagat Singh by firing of the gun from the distance of 90 yds then whether it is possible that the pellet injuries are only received by the injured and not the other two eye witnesses standing at a distance of 2 ft. It has also come on record of the PW-14 the accuracy range of the gun of 12 bore is approximately 75 meters. So if one goes by the prosecution story and the statement of eye witness, Bhagat Singh, PW 2 who has seen the incident from a close quarter as stated in cross examination that at the time of the incident he was standing near his son, Pawan at a distance of 1- ft and Naveen was standing at a distance of 2-3 ft behind him should have also received pellet injury as per statement of the PW14 when she stated that the pellet which exhaust from the cartridge spread over an area and it depends on the distance of the firing. Here in this case, the distance between the accused Chandra Bhan who was alleged to have fired from his licensed gun from roof top of house at Point B and the place where the injured Pawan was stated to have got the gun shot injury at point B as per site plan prepared by IO at the instance of the eye witness Bhagat Singh PW 2 being Ext. PW 2/C is approximately more than 100 mtrs. in the scaled site plan. So even if it is assumed hat the gun shot was made from the distance of more than 100 mtrs. it probably could not have hit Pawan at an angle with such an accuracy when admittedly the accuracy of the gun diminshes after 75 mtrs or even if the pellets got scattered after 6 yds then it would be totally impossible that the scattered pellets would have hit the injured at his face and chest and not to other two persons, i.e. Bhagat Singh PW 2 and Navin Pw 17 who are Sessions Case No. 56482/2016 Page 40/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act standing only at a distance of 1-2 ft from the injured."
19.8. In order to appreciate the aforesaid arguments, the court is first required to give a finding as regards the correctness of the site plans as well as the distance between the roof of the house of the accused persons from where the gunshot was fired and the place where the pellet injuries were caused to Pawan.
19.9. The rough site plan Ex. PW 2/C was prepared on 26.09.2013 by PW-21 SI Ranbir Kumar Sharma at the instance of complainant Bhagat Singh and the scaled site plan Ex. PW 18/A was prepared by PW-18 Inspector Mahesh Kumar on 06.12.2013 after he visited the spot on 23.11.2013 and took rough notes at the instance of complainant Bhagat Singh, PW-21 SI Ranbir Kumar and PW-20 Inspector Manoj Kumar.
19.10. Learned defence counsel pointed out contradictions in the two site plans, as he submitted that in the site plan Ex. PW 2/C two houses bearing House No. 201 and 201-A have been shown, whereas in the scaled site plan Ex. PW 18/A, there is no mention of House No.201-A. He further pointed out that while in the site plan Ex. PW 2/C the place from where the gunshot was fired is shown to be in House No. 201, on the north of which there is a vacant plot, in the site plan Ex. PW 18/A the spot from which the gunshot was fired is shown to be a house of Chander Bhan in the north of which there is house of accused Om Prakash.
Sessions Case No. 56482/2016 Page 41/60State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act 19.11. In order to appreciate the difference between the two site plans Ex. PW 2/C and Ex. PW 18/A are reproduced as under respectively:-
Sessions Case No. 56482/2016 Page 42/60State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act 19.12. As regards the site plan, PW-21 was cross examined and in his cross examination he specifically stated that accused Chander Bhan was arrested from House No.201, shown at point B in the site plan Ex. PW 2/C and he further categorically stated that he can not say whether the house at point X in the site plan Ex. PW 2/C belongs to Chander Bhan and house at point B belongs to Om Prakash, though he reiterated that the proceedings regarding arrest and recovery were conducted from the house shown at point B. Sessions Case No. 56482/2016 Page 43/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act 19.13. Upon comparison of the aforesaid two site plans, it is found that on the southern side of the house of accused Chander Bhan there is open area / field / gher of accused Chander Bhan and that on the northern side of his house, the house of accused Om Prakash is situated and further north to the house of Om Prakash there is open area / field / gher of Bhim Singh. It is further found that while in the scaled site plan five Ashoka Trees have been shown to be planted in the house of Om Prakash, the said trees have not been depicted in the site plan Ex. PW 2/C. At this stage, the photographs of the spot Ex. PW 6/A1 to 6/A14 need to be perused in the light of the site plans. 19.14. In the photographs Ex. PW 6/A1 and Ex. PW 6/A10, one can see the Ashoka Trees, as depicted in the scaled site plan Ex. PW 18/A and one can also see that the house in which the Ashoka Trees are planted belongs to Om Praksh S/o Sh. Bhim Singh (accused). Thus, when the photographs are compared with the scaled site plan Ex.
PW 18/A one can see that the scaled site plan correctly depicts the house of Om Prakash to be the one in which the Ashoka Trees are planted and the house of Chander Bhan adjacent to the said house (where there are no trees).
19.15. The contradictions in the two site plans is as regards the number of the house, as in site plan Ex. PW 2/C the number of the two houses is 201 and 201-A, whereas in the scaled site plan Ex. PW 18/A both the houses bear House No.201. Another contradiction is as regards the Sessions Case No. 56482/2016 Page 44/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act place from where the gunshot was fired, because in the site plan Ex. PW 2/C the point B (from where the gunshot was fired) is shown in the house, which as per the site plan Ex. PW 18/A belongs to Om Prakash and has Ashoka Trees planted in it, whereas as per the site plan Ex. PW 18/A the place (Point A) from where the gunshot was fired is shown to be on the roof of house of accused Chander Bhan which is adjacent to the house in which the Ashoka Trees are planted.
19.16. In short the contradiction between the two site plans is that the place from which the gunshot was fired is shown to be in two different houses, though adjacent to each other.
19.17. However, the said contradiction in the site plans does not go to the root of the case for the reason that it is an admitted fact that the deceased sustained pellet injuries in front of the house of accused persons and also for the reason that it has come in defence evidence also that the firearm was recovered from the house of accused Chander Bhan. Though the Investigating Officer committed an error in pointing out the house of Om Prakash (where the Ashoka Trees are planted) as the house from which the gunshot was fired, in the site plan prepared by him as Ex. PW 2/C, but when the photographs Ex. PW 6/A1 to PW 6/A14 are seen together with the site plan Ex. PW 18/A, it becomes clear that the house of Om Prakash and the house of Chander Pal are located adjacent to each other Sessions Case No. 56482/2016 Page 45/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act and that it is the house of Chander Pal in front of which the incident took place.
19.18. Now coming to the ballistic opinion, in the scaled site plan Ex. PW 18/A the distance between place (A) from where the gunshot was fired and place (B) where the pellets hit the deceased is shown to be 880 cms i.e. 8.8 mtrs. However, in the arguments as reproduced above, it is mentioned by the learned defence counsel that the distance between the place where the gunshot was fired and the place where Pawan received pellet injuries is about 90-100 yards. The said distance of 90-100 yards is not visible either in the site plans, nor a suggestion to this effect has been given to the eye witnesses PW-2 and PW-
17. PW-21 SI Ranbir Kumar Sharma who prepared the site plan Ex. PW-2/A was also cross examined at length as regards the site plan, but even in his cross examination he never stated that the distance between the place from where the gunshot was fired and the injured received pellet injuries is about 90-100 yards. No suggestion in this regard was also ever given to PW-21.
19.19. On the other hand, it is the case of the accused themselves that the deceased alongwith 20-25 persons had gathered in front of the house of accused Chander Bhan and when the gate was not opened by the occupants of the house, one of the accomplice of Pawan fired gunshot which rebounded and caused pellet injuries to Pawan. Thus, even as per the defence taken by the accused persons, the distance between the house of Chander Bhan Sessions Case No. 56482/2016 Page 46/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act and the place where Pawan received pellet injuries could not be more than 8-10 mtrs and surely the same can not be 90-100 yards as argued by learned defence counsel. 19.20. The distance between the spot from where the gunshot was fired (i.e. the roof of house of Chanderbhan) and the place where deceased Pawan received pellet injuries is shown as 8.8 meters in the site plan Ex. PW 18/A. On perusal of testimony of PW-2 Bhagat Singh and PW-17 Naveen, as well as defence witness DW-3 Mamta as well as the photographs, one can conclude that the distance between the roof of house of Chanderbhan and the place where Pawan received pellet injuries is about 8- 12 meters or at most 7 to 14 meters. It may be noted that draftsman Inspector Mahesh Kumar was examined as PW- 18 and he was not cross examined regarding the distance between the spot from where the gunshot was fired and the place where Pawan received pellet injuries. There is no suggestion to him that the site plan Ex. PW 18/A is incorrect. No question was put to the witness regarding the site plan. As per site plan the total width of the gali in which the incident took place is 5.45 meters, therefore by no imagination the distance between the place from where the gunshot was fired and the place where Pawan received pellet injuries can be more than 10-15 meters. 19.21. Now in the light of the said conclusion, when the opinion of ballistic expert PW-4 Babita Gulia is read, then the injuries caused to the deceased (as depicted in the MLC and the postmortem report) stand duly explained.
Sessions Case No. 56482/2016 Page 47/60State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act PW-4 Babita Gulia in her cross examination stated that the spreading of pellets starts after yards approximately and it spread roughly at the average of one centimeter per yard. Thus, as per the testimony of PW-4 after firing the pellets spread over an area of about 10-20 cms after covering distance of 10-14 yards, which is consistent with the kind of pellet injuries found on the body of deceased, which are concentrated over the face, head and upper chest. 19.22. Thus, the contradiction pointed out by the learned defence counsel on page 29 of written submissions (as reproduced earlier) is without merits and in the opinion of the court the ballistic opinion and medical record / opinion corroborate each other, instead of contradicting each other.
20. The evidence against the accused persons has been discussed as above, but the defence of alibi taken by the accused persons also need to be discussed separately, as under.
21. PLEA OF ALIBI 21.1. All the six accused persons took the plea of alibi i.e. they were not present at the spot (i.e. their home) when the incident took place. Accused Chander Bhan, Saroj, Suresh and Om Prakash claims that they had gone to attend Sharadh Ceremony at village Rasoi, District Sonipat, Haryana, whereas Amit and Dev Karan claim that they had gone to Najafgarh to meet their friend Amit. 21.2. In order to prove the defence of alibi, accused Amit and Dev Karan examined their friend Amit Kumar S/o Sh.
Sessions Case No. 56482/2016 Page 48/60State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act Ved Singh as DW-1 who testified that on 25.02.2013 both the accused came to his residence at Najafgarh at 10:30 AM and they stayed there till 10:30-11:00 AM of the next morning.
"I know accused Amit and accused Dev Karan for the last ten years. I alongwith both the accused used to work together as driver-cum-conductor. On 25.02.2013, both the accused came at my residence at about 10:30 a.m regarding some job. We all worked together on that day and came back at my residence and both the accused remained with me throughout the night and they also slept at my residence. On the next date i.e. on 26.09.2013, both the accused left my residence at about 10:30 a.m / 11:00 a.m."
21.3. It may be noted that while accused Amit and Dev Karan in their statement under Section 313 Cr. P.C. stated they had gone to meet their friend Amit, DW-1 Amit stated that they worked together on that day as driver-cum- conductor. This witness was cross examined at length by the learned Additional PP for the State and relevant portion thereof is reproduced as under:-
".....................I have remembered the date 25.09.2013 due to the reason that on 20.09.2013, both the accused persons had come to my house and we had plied the vehicle till 25.09.2013. On 26.09.2013 we had taken leave i.e. we had not plied the vehicle and both the accused persons went to their house whereas I remained at my house. Both the accused persons used to stay with me occasionally. Prior to 20.09.2013, the accused persons had stayed at my house on 12.09.2013. After 25.09.2013, the accused persons did not stay at my house. Vol. They did not meet me thereafter.Sessions Case No. 56482/2016 Page 49/60
State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act Both the accused persons had come to my house on 25.09.2013 for running of the RTV. They used to come to my house daily for plying the RTV. They used to come to my house at about 9:30 a.m. We used to take 10 circles / trips of the RTV. We used to maintain record of the earnings of each trip. We were not maintaining any record of the earnings. Vol. We used to count the earned money at the end of the day.....................None of my neighbour saw the accused persons coming to my house and staying there in the night of 25.09.2013. It is wrong to suggest that due to the reason that both the accused persons did not stay at my house on the said day, none of the neighbour saw them. It is wrong to suggest that both the accused persons were present at their house on the night of 25.09.2013 when the incident pertaining to this case was committed. It is correct that accused Amit and Dev Karan did not ask me to accompany to SHO of PS Ranhola, ACP or DCP for the purpose of telling that they were with me at the time of the incident. It is correct that accused Amit and Dev Karan did not ask me to appear and depose in any court complaint against their false implication in depose in any court complaint against their false implication in the present case."
21.4. In the cross examination the witness at one place stated that the accused came to his house on 20.09.2013 and they plied the RTV till 25.09.2013 and on 26.09.2013 they had taken leave, which is contrary to his own examination in chief and also to the defence taken by accused Amit and Dev Karan in their statement under Section 313 Cr. P.C. 21.5. Further, accused Amit and Dev Karan never stated that they had gone to Amit to work there as driver-cum-
Sessions Case No. 56482/2016 Page 50/60State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act conductor or to ply the RTV. They merely stated that they had gone to meet their friend, which is different from what is stated by DW-1.
21.6. Further, in todays world of use of mobile phones, the best evidence to prove the plea of alibi was to summon and produce the call detail record of the mobile phones used by Amit and Dev Karan, but no effort in this regard was made by these accused persons, and as such their plea of alibi could not be proved through the testimony of DW-1. 21.7. The accused persons in order to prove their plea of alibi also examined Ms. Mamta Solanki (daughter of Chanderbhan) as DW-3.
21.8. DW-3 in his examination in chief stated that accused Chanderbhan, Saroj, Suresh and Om Prakash had gone to Village Rasoi District Sonipat, Haryana to attend the shradh ceremony of her matrimonial uncle on 25.09.2013 and that they returned on 26.09.2013 at 10-11 AM. Her examination in chief in this regard as under:-
"On 25.09.2013 in the morning my chacha Bhagat Singh came at my house. After serving tea to him, I went inside the house. After sometime, I heard noise of quarrel between Bhagat Singh and my father. After Bhagat Singh left my house, my father made 100 number call to the police, PCR came and was informed by my father about the harassment made to him by Bhagat Singh. Police did not take any action at that time and left from there.
At about 11:30 a.m., I went to my college and in the meantime my mother, my father, my tau namely Shri Om Prakash and my Tai namely mt. Suresh also left the house for the house of my Sessions Case No. 56482/2016 Page 51/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act mama situated at village Rasoi District Sonipat Haryana for attending Shradh ceremony of my mama which was to be held on next day. I returned to my house at about 5 p.m from my college and at that time my two younger brothers aged about 17 years and 7 years namely, Jaiveer and Umesh were present and at the house of my Tai namely Smt. Suresh, my bhabhi was present......
In the morning on 26.09.2013, my father came back to our house at 10/11 a.m and we narrated the incident to him. He went to police station for lodging the report. He did not return to the house from the police station.
My mother and my Tai Suresh are real sisters. My cousin brother namely Dev Karan and Amit had gone to ply their vehicle to Najafgarh on 25.09.2013 in the morning hours when I was present at my house. Dev Karan and Amit returned back on 26.09.2013 in the afternoon. After they came to know that my father has not returned, they went from the house."
21.9. This witness was also cross examined at length and in her cross examination she admitted that despite the incident of 25.09.2013 (as narrated by her), she did not make a call at 100 number or tried to contact his father Chanderbhan or uncle Om Prakash. The following cross examination of DW-3 demolishes the defence of alibi taken by the accused persons, more so, as no witness from village Rasoi was examined by the accused persons:-
"My father had made a missing complaint of his mobile phone. My mother and my tai do not have any mobile phone. There was no landline connection in the house of my Mama resident of Village Rasoi. M said Mama was having a mobile phone. It is correct that at Village Rasoi, my many other relatives were also present in the Sessions Case No. 56482/2016 Page 52/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act intervening night of 25/26.09.2013 at the house of my Mama. We were not having mobile numbers of our other relatives except my Mama. It is wrong to suggest thatno telephone call was made by me or my bhabhi to my father or Om Prakash. It is wrong to suggest that the mobile phone of my Tau was not found out of coverage area. It is wrong to suggest that there was no occasion to make call to any of the said person as the accused persons were present in my house at the time of incident on 25.09.2013 and even thereafter till their arrest.
It is correct that in the morning on 26.09.2013, we had not made any 100 number call to the police. My father had gone to police station Ranhola at about 11.30 a.m. alone. On 26.09.2013 I remained present at my house throughout the day. I had told my Chacha and Tau residing nearby my house about the fact that my father had not come back from the police station at about 2/3 p.m. I do not know if they had gone to police station Ranhola for making any enquiry about my father. My bhabhi had also not visited police station to know about the whereabouts of my father. We had not tried to search my father as my chacha Rajkumar told us that my father has been arrested by the police. We did not visit any lawyer on coming to know about the arrest of my father. We did not meet my father for about 1 month after his arrest. We did not make any complaint in the PS regarding false arrest of my father in this case. We did not make any 100 number call even on 26.09.2013. We did not meet SHO/ACP or DCP regarding false implication of my father in this case. We did not file any complaint in the court regarding the false implication of my father in this case."
21.10. In light of the aforesaid cross examination, in the opinion of the court, the plea of alibi could not be proved. Interestingly, none of the accused had any telephone on Sessions Case No. 56482/2016 Page 53/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act which they could be contacted or through which they could prove their absence. Learned Additional PP for the State relied upon two judgments as regards plea of alibi to support her argument that the plea of alibi has to be proved with absolute certainty so as to exclude the possibility of the presence of the accused at the place of occurrence. 21.11. The court relies upon the said two judgments titled as Binay Kumar Singh vs. State of Bihar (1997) ISCC 283 and Pushpender Singh vs. State (2015) 225 DLT 82, to conclude that the plea of alibi could not be proved by the accused persons.
21.12. Before concluding, the court would like to point out that on page 6 of the written submissions, learned counsel for accused submitted:-
"From the report of PCR Van it appears that there is some correction in the reporting of police at 22:52 hours where for the first time the name of "Chander Bhan S/o. Bhim Singh" was mentioned as the person who has shoot the deceased Pawan from his licensed gun. There is no mention at whose instance this subsequent addition was made after 45 mins from the time of first reporting of the incident, i.e. at 9.58 pm. The introduction of the name of "Chander Bhan" was made at whose instance after 45 mins is also not clear. At one place the name of the informant is mentioned as Suresh s/o Om Prakash i.e. reported at 5 min on the basis of report of PCR van and subsequent addition / correction was made at 22.50 hrs by Suresh w/o Om Prakash where the name of Chander Bhan was Chander Bhan was inserted. Suresh w/o Om Prakash also is an accused. Thus, it creates gave doubts as to the credibility of this informant."Sessions Case No. 56482/2016 Page 54/60
State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act 21.13. The fact that minutes after the incident the report Ex. PW 15/A (reproduced earlier) of PCR Van mentions name of two accused persons, is a fact that goes against the accused persons and not in their favour, as far as plea of alibi is concerned.
22. The allegations against accused Amit, Dev Karan, Saroj, Suresh and Om Prakash, is limited to the extent that they made exhortations upon seeing PW-2, deceased and PW-17 outside their house. The question before the court is whether the evidence produced on record is sufficient to conclude that all the said accused shared common intention with accused Chanderbhan in committing murder of deceased Pawan. The discussion in this regard is as under:-
23. EXHORTATIONS BY ACCUSED OTHER THAN CHANDERBHAN:- WHETHER SUFFICIENT?
23.1. The role of all the accused persons except accused Chanderbhan is that as soon as they saw complainant Bhagat Singh with his son coming to their house, they started making exhortation that shoot all of them '(सबरर कर गरलम मबर दर)'. In the opinion of the court as far as accused Amit, Dev Karan, Saroj, Suresh and Om Prakash are concerned, they are entitled to benefit of doubt as regards their involvement in the offence of murder for the following reasons:-
(i) PW-2 Bhagat Singh stated that the said accused persons were exhorting in loud voice "Sab ko khatam kar do, goli mar do", whereas PW-17 Naveen deposed Sessions Case No. 56482/2016 Page 55/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act that they were exhorting "inhe goli mar do". Thus, there is contradiction as regards the exhortations. Further, when Bhagat Singh was specifically asked in his cross examination as what were the exact words used by the different accused persons at the time of alleged exhortation, he replied that "all the accused persons were saying same words in unison that Chanderbhan goli chla, inko maar do", which is different from what he stated in his examination in chief and which is difficult to believe for the reason that two of the accused persons are sons of Chanderbhan, one is his wife and another is his sister-in-law, who could not be believed to have addressed accused Chanderbhan by his name, as stated by complainant.
(ii) Normally, the aforesaid contradiction in the exhortation would not be ground to doubt the prosecution story, but in this particular case, the doubt arises for the reason that there was no cause for all the persons including the lady members of the house to be present on the roof of the house, merely to make exhortation. Even if the accused persons had planned to murder complainant or his son, still they would not ask all the family members including their wife or mother to be present to see the execution of the said plan and raise exhortations, when such exhortations were not at all required in the given facts, where there was no altercation or quarrel immediately before the gun shot was fixed.Sessions Case No. 56482/2016 Page 56/60
State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act
(iii) It is highly unbelievable that almost the entire family was waiting on the roof of the house for the complainant and his son to arrive, that too as late as 9:45 PM, when no time was fixed for the meeting. PW-2 Bhagat Singh in his complaint as well as testimony stated that accused Chanderbhan in the morning of 25.09.2013 asked him to come in the evening to settle land dispute with him, but no time in the evening was fixed and in absence of such fixed time, it is hard to believe that the entire family was waiting for the complainant to arrive since 5:00 or 6:00 PM in evening till 9:45 PM at night (when the incident took place).
(iv) Further, it is the case of the prosecution itself that there was dispute between the parties and such dispute together with the death of deceased Pawan is a good reason for the complainant and friend / relative Naveen to implicate not only the person who fired the gunshot, but all his family members so as to ruin the entire family in order to take revenge of the loss of son.
23.2. In order to support the argument that exhortation as stated in present case are sufficient for conviction, the learned Additional PP for the State relied upon two judgments i.e. Virender Singh vs. State of MP (2010) 8 SCC 407; Raj Kishore Purohit vs. State of MP (2017) 9 SC 483.
23.3. However, both the said cases are distinguishable on facts. In the case of Raj Kishore Purohit (Supra), the Sessions Case No. 56482/2016 Page 57/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act accused persons had arrived at the scene of crime together in an ambassador car and the crime was committed in a gathering, where the help of co-accused was required to escape, if necessary. In the present case the presence of all the family members on the roof of the house that too without arms, could not have been of any help to accused Chanderbhan even in case of retaliatory fire from the other side, which is not the case of Raj Kishore Purohit (Supra).
23.4. Similarly in the case of Virender Singh (Supra), the father and his two sons had gone to the house of deceased while all of them were carrying arms and all of them participated in the assault upon the deceased and upon exhortation the gunshot was fired by one of the his sons upon the deceased.
23.5. In the present case, on the other hand, the deceased came to the house of accused and none of the other accused persons, except Chanderbhan, were armed and they did not participate in any manner in the commission of the offence, except the alleged exhortation, which were also superfluous as the gunshot was fired without any quarrel or altercation at all.
23.6. In the opinion of the court, as far as accused Amit, Dev Karan, Saroj, Suresh and Om Prakash are concerned, they deserve to be acquitted after being given benefit of doubt.
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24. Final Order 24.1. In the opinion of the court the prosecution has proved beyond reasonable doubt that on 25.09.2013 accused Chander Bhan fired gun shot from his licensed gun at deceased Pawan, who received pellet injuries on his face, head and upper chest and scummed to death because of the said injuries on 30.09.2013. The prosecution proved the said fact through the eye witness account of PW-1 and PW- 17 and prosecution also proved the recovery of fire arm (licensed gun) and used as well as live cartridges from the house of accused Chander Bhan at his instance. All the evidence when read together leads to the conclusion that it was Chander Bhan and Chander Bhan alone who fired gun shot at Pawan on 25.09.2013, which led to the death of Pawan on 30.09.2013. The prosecution proved that the gun shot was fired by Chander Bhan with the intention to kill the deceased and the court thus concludes that Chander Bhan is guilty of the offence of murder of Pawan, punishable under section 302 IPC.
24.2. As far as offence under section 30 of the Arms Act is concerned, from the Ballistic Expert report as well as from the statement of the witnesses, it is established that accused Chander Bhan misused his licensed gun in committing the murder of deceased Pawan, hence he is liable to be convicted for the offence punishable under Sessions Case No. 56482/2016 Page 59/60 State Vs Chander Bhan & Ors FIR No.336/2013 PS Ranhola U/s 302/34 IPC & 30 Arms Act section 30 of the Arms Act. (Arbi Ali v. State of U.P., (2014) 4 All LJ 111)7 24.3. Accused Amit, Dev Karan, Saroj, Suresh and Om Prakash for the reasons mentioned above deserve to be acquitted after being given benefit of doubt. The said accused persons namely Amit, Dev Karan, Saroj, Suresh and Om Prakash are accordingly acquitted of the offence under section 302/34 of Indian Penal Code. 24.4. Accused Chander Bhan S/o Bhim Singh is convicted for offence under Section 302 IPC and Section 30 Arms Act.
24.5. Convict Chander Bhan to be heard separately on the point of sentence on 20.12.2018 at 2:00 PM.
SAURABH Digitally signed by
PARTAP SINGH SAURABH PARTAP
(Pronounced in the open LALER SINGH LALER
Court on 17.12.2018) (S.P.S Laler)
Additional Sessions Judge
(Pilot Court) West:Court No. 33:
Tis Hazari Courts/Delhi
7 Para 27 of judgment: "27. The accused appellant has been rightly convicted and sentenced under section 30 Arms Act also because from the Ballistic Expert report as well as from the statement of the witnesses, it is established that the accused appellant misused his licensed gun in committing the murder of his wife. So we find no reason to interfere with this finding also."
Sessions Case No. 56482/2016 Page 60/60