Delhi District Court
Sessions Case No. 12/14 State vs Saroj Etc. Page No. 1/40 on 26 May, 2014
THE COURT OF SH. NARESH KUMAR MALHOTRA, ADDITIONAL
SESSIONS JUDGE05, WEST, TIS HAZARI COURTS, DELHI.
IN THE MATTER OF
SESSIONS CASE NO. 12/14
FIR NO. 209/12
P.S. RANJEET NAGAR
U/S 109/302/307/323/289/34 IPC
STATE
VERSUS
1. SAROJ,
W/O LATE SH.SUBH RAM
R/O 8/2, IIND FLOOR,
SOUTH PATEL NAGAR, DELHI.
2. SANJAY
S/O LATE SH.SUBH RAM
R/O 8/2, IIND FLOOR,
SOUTH PATEL NAGAR, DELHI.
3. PANKAJ @ RAHUL
S/O LATE SH. SUBH RAM
R/O 8/2, IIND FLOOR,
SOUTH PATEL NAGAR, DELHI.
DATE OF INSTITUTION : 04.03.2013.
DATE OF RESERVING THE ORDER : 22.05.2014.
DATE OF DECISION : 26.05.2014.
JUDGEMENT
1. The above mentioned case was registered on the statement of Sh.Rajbir Singh S/o Sh. Karan Singh R/o H.No. 3025, Shiv Chowk, Ranjeet Nagar, Delhi, aged about 45 years that on Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 1/40 01.11.2012 in the evening time at around 9 PM, his sons namely Manish @ Manu and Sushil after taking dinner went for a stroll and when both reached in front of house of Sanjay Jaat i.e. H.No. 8/2 South Patel Nagar, Delhi, then accused Sanjay Jaat and his brother Rahul @ Pankaj started beating his sons Manish @ Manu and Sushil without any reason and both Sanjay and Rahul @ Pankaj had also given beatings his sons in the vehicle by fist and leg blows. Thereafter, his sons Manish @ Manu and Sushil reached the house and narrated to him about the beatings given by accused Sanjay Jaat and Rahul @ Pankaj. Then the complainant alongwith his sons Manish @ Manu and Sushil, brothers Deepak and Bunti and nephew Sandeep @ Bhanu went to the house of Sanjay Jaat to ask as to why they had given beatings to his sons.
2. There at the house of accused persons, accused Sanjay Jaat and his brother Rahul @ Pankaj had also attacked the complainant, his sons, his brothers and nephew with Pistol, Sword and Danda and the mother of the accused Sanjay Jaat namely Smt. Saroj had exhorted the accused Sanjay Jaat saying that "Saalo ko goli maar". On hearing this, accused Sanjay had fired upon Manish @ Manu on his back on the left side below the shoulder and the accused Saroj Choudhary let/opened her dogs on the complainant and the dogs had bitten the complainant. The complainant further stated in his complaint that accused Rahul @ Pankaj gave a sword blow on the head of the complainant. Complainant received injuries on his head, left thigh, armpit of Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 2/40 the right hand and the shoulder. Sushil and Sandeep had also received injuries. Due to the result of shot, his son Manish @ Manu died at B.L.K.Hospital.
3. On the basis of statement of the complainant, a FIR bearing no. 209/12 PS Ranjeet Nagar U/s 109/302/307/323/289/34 IPC was registered.
4. After completion of the investigation, chargesheet was filed before the court of Ld.C.M.M. on 28.01.2013 and after its committal, the case was assigned to the Ld.Sessions Court on 04.03.2013.
5. After hearing the arguments, Charges for the offence punishable U/s 109/302 IPC; 109/307 IPC; 109/323 IPC and 289 IPC was framed against the accused Saroj by my Ld. P.O. on 17.07.2013. Charge for the offence punishable U/s 302/34 IPC; 307/34 IPC and 323/34 IPC was framed against the accused persons namely Sanjay Jaat and Pankaj @ Rahul on 17.07.2013 and charge for the offence punishable U/s 25/27/54/59 A.Act was also framed against accused Sanjay. All the accused persons pleaded not guilty to the abovesaid charges and claimed trial.
6. In order to prove its case, the prosecution in all examined 36 witnesses.
7. Statements of all the three accused persons u/s 313 Cr.P.C. have been been recorded, however they do not lead any evidence in their defence.
8. The record has been carefully and thoroughly perused. Submissions of Sh.Sanjay Kumar, Ld. Addl. P.P. for the state and Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 3/40 Sh. R.S.Malik, Counsel for all the accused persons have been heard. The respective submissions of either side have been considered.
9. PW1 Sh.Rajbir Singh is the complainant and he stated that on 01.11.2012 at about 8.459.00 PM, he was present at his factory, situated inside his house. In the meanwhile, one boy came to him and informed that Manish @ Manu and Sushil who are his sons had some quarrel at Bhagat Singh Park, Patel Nagar which is at a distance of 5 minutes walk from his residence. He immediately reached there and there was considerable gathering. He further stated that when he tried to take out his both sons from that gathering, he fell on stray dog and in that process the dog barked upon him and he was also bitten by the dog. He further stated that someone from the gathering shot fire and the bullet hit his son Manish @ Manu. He did not know who fired from the gathering. Thereafter, he lifted his son Manish and in the meanwhile, someone also hit on his head and due to that assault, he had fallen on the ground. He further stated that he was taken to B.K.Kapoor Hospital and also provided medical treatment. He came to know that his son Manish expired due to bullet hit. He also stated that he did not give any statement to the police officials, however the document bears his signatures at point A on Ex. PW1/A. He further stated in his statement that he did not know the assailants who quarreled with his both sons and who fired shot upon his son Manish. He further stated that he did not know the persons standing in the dock.
Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 4/40This witness was turned hostile and crossexamined by the Ld. Addl. P.P. for the State as the witness was not telling some material facts of the case and not identifying the accused persons deliberately.
In his crossexamination done by Ld. Addl.P.P. for the state, he has denied the facts put to him by the Ld. Addl.P.P. for the State as mentioned in his statement U/s 161 Cr.P.C.regarding the whole incident. The witness was also confronted from portion A to A, B to B1, C to C1, D to D1 on Ex. PW1/A. The witness also denied the suggestions put to him by the Ld. Addl. P.P. for the State that the contents of Ex. PW1/A were read over to him by the police and thereafter he had signed the same at point A. The witness also denied the suggestions put to him by the Ld.Addl. P.P. for the State regarding the pointing out of place of occurrence to the IO. Ld. Addl. P.P. for the State also specifically pointed towards all the accused persons standing in the dock and specifically asked the witness if these are the accused persons, but the witness after seeing towards the accused persons stated that he did not know the accused persons and they did not fire upon Manish @ Manu and did not exhort or gave sword blow. The witness further denied the suggestions put to him by the Ld.Addl. P.P. for the State that he has compromised the matter with the accused persons after taking amount from the accused persons and due to this reason, he has been won over by them and not identifying the accused persons deliberately.
10.PW2 Sh.Sushil Kumar, who is son of the complainant and also Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 5/40 injured has stated that on 01.11.2012 at about 8.30 to 9 PM, he alongwith his brother Manish @ Manu after taking dinner went for a stroll and when they were coming back to their house and when they reached near H.No. 8/2, South Patel Nagar, 1015 persons were standing there, who called them and asked as to where they were going and thereafter those 1015 persons gave beatings to them. Many public perosns gathered at the spot and in the meanwhile his family members namely Sandeep, his cousin, his father and his uncle Deepak also reached there. He further stated that there was altercation and in that process, on bullet hit his brother Manish @ Manu. He further stated that he did not know who had fired from the crowd. He alongwith his cousin Sandeep and his father also received injuries. He further stated that he cannot say as to who were the assailants as there was a gathering of people in the form of crowd. He further stated that his brother Manish was taken to B.L.Kapoor hospital and later on doctor declared his brother Manish as dead. He further stated that he cannot identify the accused persons who gave beatings to him, his cousin Sandeep, his father and fired upon his brother Manish @ Manu. He further stated that he did not know the accused persons standing in the dock.
This witness was also turned hostile and crossexamined by the Ld. Addl. P.P. for the State and he denied the suggestions put to him by the Ld.Addl. P.P. for the State regarding the facts mentioned in his statement u/s 161 Cr.P.C. and also he has been confronted with statement Mark A from portion A to A1, B to B1 Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 6/40 and C to C1 of. The witness also denied the suggestion put to him by the Ld.Addl. P.P. for the State regarding recording of his supplementary statement which is Mark B. This witness also denied the suggestions put to him by the Ld.Addl. P.P. for the State that he has compromised the matter with the accused persons after taking huge amount from the accused persons and due to this reason, he has been won over by them and not identifying the accused persons deliberately.
11.PW3 Sh. Sandeep @ Bhanu has stated that on 01.11.2012 at about 8.309.00 PM, he was present at his house. On hearing the noises, he reached at H.No. 8/2 South Patel Nagar, Delhi where he saw that people had gathered there and on inquiry, he came to know that someone had fired shot upon his cousin namely Manish @ Manu. He further stated that thereafter Manish was taken to B.L.Kapoor hospital and on reaching the hospital, he came to know that Manish @ Manu had expired. He further stated that he did not know as to who were the assailants and as to who fired shot on Manish @ Manu. He further stated that he did not know anything else about the present case. He went alone to the place of occurrence and did not see personally the occurrence.
This witness was also declared hostile and crossexamined by the Ld. Addl.P.P. for the State and denied the suggestion that his statement Mark A was recorded by the police official. This witness was also confronted from portion A to A1 and B to B1 of his statement Mark A. He further denied the suggestions put to Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 7/40 him by the Ld. Addl. P.P. for the State that he saw accused Saroj, Sanjay and Pankaj at the spot and accused Sanjay fired upon his cousin Manish in his presence and accused Pankaj gave sword blow on the person of his Tau. He has also denied the suggestion of Ld.Addl. P.P. for the State that due to compromise with the accused persons, he has not identified them.
12.PW4 Sh. Deepak has stated that on 01.11.2012 at about 8.309 PM, he was present at his residence and on hearing the noise, he alongwith his wife reached at H.No. 8/2, South Patel Nagar, Delhi where he saw 100150 people gathered there. On inquiry, he came to know that someone had fired shot upon Manish @ Manu and his nephew. He further stated that he alongwith one boy whose name he did not remember had taken his nephew to B.L.Kapoor hospital and later on doctors declared his nephew Manish @ Manu as brought dead. He further stated that he did not know as to who were the assailants and who had fired shot upon Manish @ Manu. He further stated that he did not know anything else about the present case and he did not see the occurrence personally.
This witness was also declared hostile and crossexamined by the Ld. Addl. P.P. for the State wherein he also denied the suggestions put to him by Ld.Addl. P.P. for the State regarding the incident recorded as per his statement Mark A. He further denied the suggestion put to him by the Ld.Addl. P.P. for the State that he saw Saroj, Sanjay and Pankaj at the spot and accused Sanjay fired upon Manish in his presence and Pankaj gave Sword blow on the Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 8/40 person of his elder brother. He has also denied the suggestions put to him by the Ld.Addl. P.P. for the State that he had stated in his statement Mark B that Smt.Saroj was saying to damage their own car so that Rajbir and his family members could be implicated in some false case.
This witness also denied the suggestions put to him by the Ld.Addl. P.P. for the State that his elder brother has compromised the matter with the accused persons after taking huge amount from the accused persons and due to this reason, he has been won over by them and not identifying the accused persons deliberately.
13.PW5 Sh. Bunty S/o Sh. Karan Singh has stated that on 01.11.2012, at about 99.30 p.m, he was present at his residence. On hearing the noises to the effect that quarrel has taken place, he came to know that someone has fired shot upon Manish @ Manu his nephew and he came to know that his nephew is shifted to B.L. Kapoor hospital. Thereafter, he went to the hospital where he came to know that Manish @ Manu has expired. This witness stated that he do not know as to who were the assailants and as to who fired shot on Manish @ Manu. He was informed that there was gathering of 100150 people and someone fired upon Manish @ Manu. He do not know anything else about the present case. This witness stated that he personally did not see the occurrence. This witness was declared hostile and was cross examined by the ld. APP for the State where he denied the suggestion that his statement Mark A was recorded by the police Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 9/40 official. This witness denied the suggestion that he had got recorded the portion A to A1 in his statement, where it is mentioned by the witness that his nephew Manish @ Manu and Sushil came at the residence and they both informed that on 01.11.2012, at about 9 p.m they both went for a stroll and when they reached near H. No. 8/2, South Patel Nagar, Delhi, Sanjay Jaat and his brother Pankaj @ Rahul gave beatings to both of them, laid them inside one vehicle and gave leg and fist blows. This witness also denied the suggestion that he had got recorded portion B to B1 in his statement to the effect that when he along with Manish @ Manu, Sushil, Rajbir, Deepak and Sandeep went at the house of Sanjay Jaat to inquire as to why they gave beatings to Manish and Sushil or that Sanjay and Pankaj were having pistol and sword in their hands or that Saroj, mother of Sanjay and Pankaj exhorted her son Sanjay to kill and on this, Sanjay opened fire upon Manish @ Manu and Rahul gave sword blow on the head of Rajbir, his elder brother or that Saroj provoked her dog to bite them or that later on they had taken injured Manish to the hospital. The contents of statement Mark A was read over to the witness and he stated that he did not make such statement. This witness denied the suggestion that he made statement Mark A. This witness denied the suggestion that he saw Saroj, Sanjay and Pankaj at the spot or that accused Sanjay fired upon his nephew Manish in his presence or that Pankaj gave sword blow on the person of his elder borhter. This witness denied the suggestion that he is not identifying all the three Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 10/40 accused persons standing in the dock deliberately as his elder brother and his family members have compromised the matter after taking the amount from the accused persons.
14.PW6 HC Surender, No. 344/C, PS Ranjit Nagar has deposed that on 02.11. 2012, he was posted at PS Ranjit Nagar as duty officer. On that day, at about 12.45 night, he recorded aforesaid FIR on the basis of tehrir sent by SI Vivek Singh through Ct. Karelal. He has brought original FIR register containing the computerized FIR. The copy of same is proved as Ex. PW6/A. He proved the endorsement on the same vide Ex. PW6/B, which bears his signatures at point A.
15.PW7 W/Ct. Kamlesh, No. 8135/PCR, CPCR Head Quarter has deposed that on 01.11.2012, she was posted at CPCR PHQ as channel operator. On that day, at about 9.22 pm, one call was received from mobile No. 9818427888 regarding quarrel at 8/2, South Patel Nagar and the information was passed on to concerned district. This witness proved computer generated PCR form as Ex. PW7/A.
16.PW8 W/Ct. Nilima, No. 8086/PCR, CPCR, Head Quarter has stated that on 01.11.2012, she was posted at CPCR PHQ as Channel Operator. On that day, at about 9.30 pm, one call was received from mobile No. 9953223514 regarding quarrel at 8/2, South Patel Nagar and the information was passed on to concerned district. This witness proved computer generated PCR form as Ex. PW8/A.
17.PW9 W/Ct. Kiran Lakra, No. 8037/PCR, CPCR Head Quarter has Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 11/40 stated that on 01.11.2012, she was posted at CPCR PHQ as Channel Operator. On that day, at about 10.08 pm, one call was received from mobile No. 9810025747 regarding quarrel at 8/2, South Patel Nagar and the information was passed on to concerned district. This witness proved computer generated PCR form as Ex. PW9/A.
18.PW10 Dr. B.N. Mishra, Medical Officer cum Forensic Expert and Criminologist, Department of Forensic Medicine, DDU Hospital has stated that on 02.11.2012, he conducted postmortem on the dead body of Manish Kumar. This witness proved postmortem report No. 1444/12 dated 02.11.2012 as Ex. PW10/A, which bears his signatures at point A. This witness has stated that the cause of death in the present case was due to haemorrhagic shock caused by tearing of left lung as result of gunshot injury. This witness further stated that on 03.12.2012, Inspector Gurdev Singh, PS Ranjit Nagar moved an application along with one sealed parcel. He opened the parcel and it was found containing one full sleeves shirt bears irregular pattern of tearing at its left shoulder part and smeared by blood at its left shoulder part and smeared by blood at its surrounding area in addition to multiple tearing at different parts. This witness stated that before giving his opinion about the nature of injury, he asked for FSL report and Ballistic report so that opinion can be given. This witness has proved his subsequent report as Ex. PW10/B which bears his signatures at point A. This witness stated that on 02.03.2013, he gave his final opinion regarding nature of injuries (scar marks Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 12/40 present on the body of accused Sanjay) as per injury noted in his MLC No. 100/12. He gave his opinion in detail as per the heading opinion. This witness proved final opinion as Ex. PW10/C, which bears his signatures at point A. This witness was not cross examined by the counsel for the accused persons.
19.PW11 Ct. Vijay, No. 2083/C, Photographer, Mobile Crime Team, Central District, Delhi has deposed that on 01.11.2012, he was posted at Mobile Crime Team, Central District as Photographer. On that day, he alongwith other officials of the Mobile Crime Team went at 8/2, Sought Patel Nagar, Delhi. This witness stated that he had taken 21 photographs of the place of occurrence. The 21 photographs along with negatives are collectively proved as Ex. PW11/A.
20.PW12 HC Jagdish, No. 722/C, PS Ranjit Nagar, Delhi has stated that on 02.11.2012, he was posted at PS Ranjit Nagar as MHC(M). On that day, SI Vivek Singh deposited two sealed parcels and one sample seal. He made an entry to this effect in store room register at Sl. No. 549. The photocopy of said entry is proved as Ex. PW12/A. This witness further stated that on 02.11.2012, Inspector Gurdev Sing deposited nine sealed parcels with the seal of GS, another four parcels and one car bearing No. DL4CNA 3941 in damages condition. He made an entry to this effect in store room register at Serial No. 549. On the same day, SI Kamlesh deposited two sealed parcels and one sample seal. On the same day, Insp. Rajesh deposited two sealed parcels and one sample seal. This witness further stated that on 03.11.2012, Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 13/40 Inspector Gurdev Singh deposited one sealed parcel. He made an entry to this effect in store room register at serial No. 550. This witness proved the photocopy of the said entry as Ex. PW12/C. This witness further stated that on 09.11.2012, he sent 16 exhibits alongwith four sample seals to CFSL, CBI, CGO Complex through Ct Manoj vide RC No. 98/21/12. This witness proved the said RC as Ex. PW12/D. This witness further stated that on 30.11.2012, 16 sealed parcels were received from CBI, CFSL, CGO Complex through SI Rohtash and one the same day, vide RC No. 106/21/12, 15 exhibits were sent to CBI, CFSL CGO Complex through SI Rohtash vide Ex. PW12/E. He gave FSL report to the IO. This witness stated that the case property was not tampered with till it remained in his possession.
21.PW13 Sh. Bhupender Singh S/o Sh. Jaman Singh has stated that he do not remember the date and the month but it was in the last year, at about 99.15 PM, he came to know that brother of his friend Ankush has been murdered. On hearing this news, he went to B.L. Kapoor Hospital, Pusa Road. He made a call from his mobile No. 9810025747 at 100 number.
22.PW14, SI Dhan Singh, No. D3709, Mobile Crime Team, Central District, Pahar Ganj has stated that on 01.11.2012, he was posted at Mobile Crime Team, Central District as Incharge. On receipt of information from the control room, He along with other member of Crime Team reached at the scene of crime i.e. 8/2, South Patel Nagar, where police staff from PS Ranjit Nagar were present. Ct. Vijay Kumar, No. 2083/C, photographer took the photographs Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 14/40 from the different angles of the scene of crime. HC Hari Kishan, Finger Print proficient tried to develop and lift the chance print from the scene of crime but no chance print could be developed. He prepared the report and same was handed over to IO. The report is Ex. PW14/A, which bears his signatures at point A. This witness stated that his statement was recorded on 15.12.2012 by the IO.
23.PW15 Sh. Hitesh Kumar S/o Sh. Ved Prakash, r/o 3022, Shiv Chowk, Ranjit Nagar, Delhi has stated that he came to know that quarrel has taken place between Manish and Sanjay Jaat etc. and they had gone to B.L. Kapoor hospital. He also went to B.L. Kapoor hospital and at the hospital some one made a call from his mobile No. 9953707220 at 100 number.
24.PW16 Inspector Mahesh Kumar, No. D460, Draftsman, Crime Branch, PHQ has stated that on 05.12.2012, he was posted as SI Draftsman in Crime Branch and at the instance of Sh. Rajbir Singh (father of deceased) and Insp. Gurdev Singh he took rough notes and measurements of the place on incident. On the basis of those rough notes and measurements, he prepared scaled site plan which is Ex. PW16/A, which was signed by him at point A.
25.PW17 Ct. Om Prakash, No. 863/C, PS Ranjit Nagar has stated that on 10.12.2012, he took one sealed pulanda and one sample seal from the Malkhana of PS Ranjit Nagar for deposit of same at CFSL, CBI, Lodhi Colony, Delhi vide RC No. 109/21/12. He deposited the pulanda at the CFSL office and receipt of the same handed over to the MHC(M). This witness stated that so long as Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 15/40 sealed pulanda remained in my custody, no one has tampered the same.
26.PW18 Ct. Manoj Kumar, No. 611/C, District Line, Paharganj, Delhi has stated that on 09.11.2012, he took 16 sealed pulandas along with sample seal from the Malkhana of PS Ranjit Nagar for deposit of same at CFSL, CBI Lodhi Colony, Delhi vide RC No. 98/21/12. He deposited the pulanda at the CFSL office and receipt of the same handed over to the MHC(M). This witness stated that so long as sealed pulanda remained in his custody, no one has tampered the same.
27.PW19 Inspector Gurudev Singh, No. D3510 has deposed that on 01.11.2012, he was posted as Inspector, Investigation in PS Ranjit Nagar. On that day, present case file was marked to him for further investigation. He prepared site plan of the place of occurrence i.e. in front of H. No. 8/2, South Patel Nagar, Delhi at the instance of SI Vivek Singh and the same is Ex. PW19/A. He lifted exhibits from the spot i.e. Earth control, blood stained soil, empty cartridge, one danda and one cricket bat through separate pulandas. One car bearing No. DL4CNA 3941 was also seized from the spot in damaged condition. The seizure memo of the pulandas containing danda and bat is Ex. PW19/B. The seizure memo of the aforesaid car is Ex. PW19/C. The seizure memo of the broken glass pieces which were seized from the spot is Ex. PW19/D. The seizure memo of the blood stained soil, earth control and blood sample is Ex. PW19/E. He also seized two empty cartridges from the spot through sealed pulanda with the Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 16/40 seal of GS and same is Ex. PW19/E1. He also prepared sketch of both the cartridges vide memo Ex. PW19/E2. He also collected MLC of injured as well as of deceased from B.L. Kapoor hospital as well as of accused Sanjay from Ganga Ram Hospital. He deposited the case property in Malkhana.
This witness further stated that on 02.11.2012 at about 11:00 AM, he along with other police staff reached at the house of accused Saroj Chaudhary. She was arrested in the present case by him vide arrest memo Ex. PW19/F and personal search was also got conducted through Lady Ct. Sunita vide memo Ex. PW19/G. Thereafter, accused was taken to Lady Harding Hospital from where she was got medically examined and produced in the court and sent to J/C. He recorded the statement of witness Sushil Kumar. On the same day, Insp. Rajesh Kumar got conducted postmortem of deceased Manish Kumar at DDU Hospital and after postmortem of deceased at DDU hospital the dead body was handed over to the relatives of deceased. The pulandas received after postmortem by Insp. Rajesh Kumar were deposited in the Malkhana by him.
This witness further stated that on 03.11.2012, accused Sanjay Chaudhary was arrested after discharge from Balaji Hospital, Paschim Vihar. The arrest memo of accused Sanjay is Ex. PW19/H and his personal search memo was prepared vide Ex. PW19/J. He recorded statements of both the accused persons vide Ex. PW10/J1 and J2. Thereafter, accused Sanjay Chaudhary took the police team to his house i.e. 8/2, South Patel Nagar, Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 17/40 Delhi and he got receovered weapon of offence i.e. countrymade pistol which was concealed by him in the room on the 2nd floor of the said house. He prepared sketch of the said weapon vide memo Ex. PW19/K. The weapon was converted into a sealed pulanda and said pulanda was taken into possession vide Ex. PW19/K1. He also prepared the site plan of the place of recovery of weapon vide Ex. PW19/L. Thereafter, he returned back to the PS and pulandas were deposited in the Malkhana. During investigation, he also recorded supplementary statement of accused Sanjay Chaudhary on 04.11.2012 and same is Ex. PW19/L1. The accused was produced in the court on 04.11.2012 after his medical examination and he was taken on one day police remand. After completion of police remand, accused was produced on 05.11.2012 in the court and sent to J/C. This witness also recorded statement of witnesses during investigation. He collected postmortem report from the mortuary, DDU Hospital. The exhibits were sent to CFSL, CGO Complex, Lodhi Colony. He also collected photographs of the place of incident from the Crime Team office. He obtained the result on the MLC of injured Sushil, Sandeep and Rajbir. The opinion on the MLC of both the accused were also obtained and the same was opined as simple. He also obtained opinion on the MLC of accused Sanjay from DDU Hospital regarding receipt of injuries received by him in his shoulder. This witness stated that he obtained NBW of accused Pankaj Chaudhary and thereafter, Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 18/40 obtained proceedings under Section 82/83 Cr.P.C from the court. Accused Pankaj Chaudhary was got declared PO and after completion of investigation challan was filed in the court.
This witness also stated that he obtained the reports from the CFSL and same were filed in the court of Ld. CMM, vide application Ex. PW19/M. Thereafter, he obtained sanction under Section 39 Arms Act from Addl. DCP, Central District. On 18.03.2013, accused Pankaj Chaudhary was arrested by him on production warrants issued by the court. The arrest memo of accued Pankaj is Ex. PW19/N and his personal search is Ex. PW19/N1. He also recorded disclosure statement of accused Ex. PW19/N2 and pointing out memo is Ex. PW19/O. This witness proved one cricket bat as Ex. P1, danda is proved as Ex. P2 and the country made pistol is proved as Ex. P3. The two empty cartridges were proved as Ex. P4.
In cross examination by ld. Defence counsel, this witness stated that there were 6070 persons were at the spot when he reached there. He remained at the spot first time for about 20 minutes. No eye witness met him during the said period. He prepared site plan Ex. PW19/A after his return from hospital. He had not shown the place where accused were standing at the spot. The same was prepared after registration of FIR. This witness stated that he had not seized the empty cartridges at the first instance. This witness stated that it is correct that wooden danda and cricket bat are available in the market. This witness stated that no neighbour was called before recovery of weapon Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 19/40 from house of accused. Wife of accused Sanjay and 23 other relatives were present at the time of recovery. He did not offer his search to the accused Sanjay or his family members before taking search of the premises. He came to know regarding concealment of weapon in the PS. This witness stated in the cross examination that the said weapon was obtained accused from one Bihari boy. This witness also stated that he had come to know that accused Sanjay has received gun shot injury. It is also admitted as correct that he had obtained the opinion in respect of accused Sanjay from the doctor whether the said gun short injury could be self inflicted. This witness also stated that it is correct that Dr. B.N. Mishra had opined that the said injury cannot be self inflicted.
28.PW20 Inspector Rajesh Kumar, No. D953 has stated that on 02.11.2012, he was posted at PS Ranjit Nagar. He alongwith SI Ranbir Sent to DDU and produced the documents before the concerned doctor. After the postmortem, the dead body was given to relative of deceased vide memo Ex. PW20/A, which bears his signatures at point A. This witness stated that after the post mortem, concerned doctor gave him two sealed parcels and two sample seal with the seal of DFMT, DDU Hospital and he had taken the same into his possession through seizure memo Ex. PW20/B, which bears his signatures at point A. He came to PS and the case property was deposited in the Malkhana. This witness stated that case property was not tampered with till it remained in his possession.
Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 20/4029.PW21 SI Rajes Kumar, No. D3458 has stated that on 03.12.2012, he was posted at PS Ranjit Nagar. On that day, at the directions of IO Insp. Gurudev Singh, he had taken one sealed parcel from the MHC(M) and he had given the same to concerned doctor for obtaining his subsequent opinion vide RC No. 107/21/12. He has given the receipt to the MHC(M). The case property was not tampered with till it remained in his possession. This witness also stated that on 05.12.2012, he collected one sealed parcel from DDU Hospital alongwith the report and he gave the same to MHC(M) and the report was given to the IO.
30.PW22 Ms. Deepa w/o Sanjay Chaudhary, r/o 8/2, 2nd floor, South Patel Nagar, Delhi has deposed that mobile No. 9818427888 remains with her motherinlaw Smt. Saroj. On the date of occurrence, her motherinlaw used this mobile. He do not know any lady by the name of Manorama.
31.PW23 Ct. Mahender Singh, No. 2832/PCR, Outer Zone, PCR, Delhi has stated that on 01.11.2012, he was posted at CPCR as operator. On that day, at about 10:09 PM, he received a call from mobile No. 42251094 from Dr. R.B. Singh of Sir Ganga Ram Hospital, Old Rajinder Nagar to the effect that Sanjay s/o late Sh. Subhram has received gun short injury on his shoulder. He has brought the computerized PCR form and same is proved as Ex. PW23/A.
32.PW24 Ct. Amit Ksana, No. 657/C, PS Ranjit Nagar has stated that on 02.11.2012, he was posted at PS Ranjit Nagar. On that day, duty officer gave him four sealed envelopes, addressed to Sh.
Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 21/40Vidhya Parkash, Ld.C.M.M., Joint C.P., DCP and ACP concerned.
33.PW25 Sh. Sanchit S/o Sh. Christopher, Sr. Technician, Medical Record Room, B.L.K. Superciality Hospital, Pusa Road, Delhi has deposed that he has been deputed to depose on behalf of Dr. Safeer Haider, Dr. Sean, who prepared MLC No. 255/12 of patient Manish, 254/12of Mr. Rajbir, No. 257/12 of Sandeep and No. 256/12 of Sushil. He has seen all these four MLCs. These MLCs are in the handwriting of Dr. Safeer Haider and Dr. Sean. He identified their handwriting and signatures at Ex. PW25/A, B, C and D respectively, which bears his signatures at point A, being familiar with, as per the medical record. It is stated that both these doctors have left the services of BLK Hospital.
34.PW26 W/Ct. Sunita, No. 6268/C, PS Ranjit Nagar has stated that on 02.11.2012, she was posted at PS Ranjit Nagar. On that day, accused Smt. Saroj was arrested in her presence by the IO. IO interrogated her, recorded disclosure statement vide Ex. PW19/L1, which bears her signatures at point B. It is also stated that IO prepared arrest memo and personal search memo vide Ex. PW19/F and S, which bears her signatures at point B. She identified accused, present before the court.
35.PW27 Ct. Kare Lal, No. 1896/C has stated that on 01.11.2012, he was posted at PS Ranjit Nagar. On that day, he along with SI Vivek Singh went at the place of occurrence i.e. 8/2, South Patel Nagar, Delhi. He noticed that blood was lying at the place and one white colour Skoda number DL4CNA 3941 whose panes were broken was standing there. IO gave him tehrir for getting the case Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 22/40 registered. He went to PS Ranjit Nagar and after getting the case registered, he came back at the spot, gave copy of FIR and original 'Tehrir' to the IO at about 2:15 AM.
36.PW28 Ct. Mahipal Singh, No. 3185/PCR, New Delhi Zone has stated that on 01.11.2012, he was posted at CPCR as Operator from 8 PM to 8 AM. At about 10:00 PM and 10:20 PM, he received two calls and accordingly, he recorded the same. The concerned PCR form is Ex. PW28/A and B. He passed on the information to the concerned authorities.
37.PW29 Dr. Girish Rajpal, Consultant, Neuro Surgery, B.L.K. Superspeciality Hospital, Pusa Road has stated that he has seen MLC No. 254/12 of Rajbir, aged 50 year. This MLC bears his endorsement which he had given on 08.11.2012 to the effect that as per radiological record, the nature of injuries is 'simple'. He proved endorsement as Ex. PW29/A, which bears his signatures at point A.
38.PW30 Dr. Chanderesh Gupta, Associate Consultant, Department of General Minimal Access (Surgery), B.L.K. Superspeciality Hospital, Pusa Road has stated that he had seen MLC No. 254/12 of Rajbir, aged 50 years. This MLC bears his endorsement which he had given on 09.11.2012 to the effect that as per nature of injuries, most probably blunt object was used. He has proved endorsement as Ex. PW30/A, which bears his signatures at point A.
39.PW31 Dr. R.V. Singh, Casualty Medical Officer, Sir Ganga Ram Hospital has deposed that on 01.11.2012, he medically examined Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 23/40 patient Sanjay, 29 years old male and prepared his MLC No. 100/12. He had seen the aforesaid MLC which is in his handwriting. The MLC is Ex. PW31/A, which bears his signatures at point A. He referred the patient to Surgery/ICU. He had given the nature of injuries as 'simple' at point B. He had declared the patient fit for statement at 10:15 PM vide his signatues at point C. He seized the blood stained shirt and also gave two other sealed parcels and gave the same to the police officials. He has informed the PCR regarding the visit of injured and further referring the patient by him.
40.PW32 SI Kamlesh Kumar, D5142, PS Ranjit Nagar has stated that on the intervening night of 01.11.2012 and 02.11.2012, he was posted at PS Ranjit Nagar. On that day, he along with IO Insp. Gurdev Singh, HC Anil Kumar and Ct. Sher Singh reached at the spot i.e. House NO. 8/2, South Patel Nagar and from there he along with HC Anil Kumar and Ct. Sher Singh went to Sir Ganga Ram Hospital, Rajinder Nagar on the directions of SHO. In the hospital Sanjay Chaudhary was found admitted in hospital. Doctor handed over to him two sealed pulandas, along with samples sealed with seal of Dr. R.V. Singh, which he seized vide seizure memo Ex. PW32/A, which bears his signatures at point A. He deposited the case property in the Malkhana. IO record his statement. The witness has correctly identified the accused Sanjay Chaudhary present in the court.
41.PW33, HC Anil Kumar, No. 1853/C has stated that on the intervening night of 01.11.2012 and 02.11.2012, he was posted Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 24/40 at police station Ranjit Nagar. On that day, he along with IO Insp. Gurdev Singh, SI Kamlesh Kumar and Ct. Sher Singh reached at the spot i.e. Houe No. 8/2, South Patel Nagar and from there he along with SI Kamlesh Kumar and Ct. Sher Singh went to Sir Ganga Ram Hospital, Rajinder Nagar on the directions of SHO. In the hospital Sanjay Chaudhary was found admitted. Doctor handed over to SI Kamlesh Kumar two sealed pulandas, along with samples sealed with seal of Dr. R.V. Singh, which he seized vide seizure Memo Ex. PW32/A, which bears his signatures at point B. SI Kamlesh Kumar deposited the case property in the Malkhana. IO recorded his statement. This witness identified accused Sanjay Chaudhary present in the court.
42.PW34 Ct. Sher Singh, No. 2576C has stated that on the intervening night of 01.11.12 and 02.11.2012, he was posted at PS Ranjit Nagar. On tht day, he along with IO Inspector Gurdev Singh, SI Kamlesh Kumar and HC Anil Kumar reached at the spot i.e. H.No. 8/2, South Patel Nagar and from their he along with SI Kamlesh Kumar and HC Anil Kumar went to Sir Ganga Ram Hospital on the directions of SHO. In the hospital Sanjay Chaudhary was found admitted. Doctor handed over to SI Kamlesh Kumar two sealed pulandas, along with samples sealed with the seal of Dr. R.V. Singh, which he seized vide seizure memo Ex. PW32/A, which bears his signatures at point C. SI Kamlesh Kumar deposited the case property in the malkhana. IO recorded his statement.
43.PW35 Sh. Rajesh Deo, Addl. DCP (Security) has stated that on Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 25/40 28.02.2013, he was posted as Addl. DCP Central District. On that day, the photocopy of the final report under section 173 Cr.P.C., statement of prosecution witnesses recorded under Section 161 Cr.P.C., other documents including seizure memo and sketch etc. and ballistic report were placed before him. On perusal of the same, he was satisfied that one country made pistol (Desi Katta) was recovered at the instance of accused Sanjay Chaudhary in FIR No. 209/12 and he gave sanction under Section 39 of the Arms Act, which is Ex. PW35/A, which bears his signatures at point A. In the cross examination this witness has stated that he has not read the case diaries. This witness stated that he has seen the ballistic and FSL report.
44. PW36 SI Vivek Singh, PIS No. 16080028 has stated that on 01.11.12, he was posted at PS Ranjeet Nagar. He was on night emergency duty and DD No. 39A was assigned to him. The attested true copy of DD No. 39A is Ex. PW36/A. This witness further stated that he along with Ct. Manjeet reached at H.No. 8/2, South Patel Nagar, Delhi, where, large crowd was found. On the road, blood and dandas were lying. One Skoda car bearing No. DL4CNA3941 of white colour was also lying there is damaged condition. On enquiry, he came to know that accused Sanjay Chaudhary had been taken to B.L. Kapoor Hospital. SHO of PS Ranjeet Nagar along with other police staffs reached at the spot. On enquiry he came to know that accused Sanjay had fired. The spot was guarded with the help of tape. Thereafter, he along with Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 26/40 Ct. Manjeet went to B.L. Kapoor Hospital. On reaching hospital, he collected MLC of the injured namely Manish @ Monu (now deceased) bearing MLC No. 255/12, on which the doctor had declared Manish @ Monu dead at 9:55 PM. In the hospital, one Rajbir Singh was also found admitted vide MLC No. 254/12 and another person namely Sushil Kumar and Sandeep were also found admitted in hospital vide MLC No. 256/12 & 257/12. He made enquiries from Rajbir Singh and recorded his statement, which is proved on record as Ex. PW1/A and bears his signatures at point B and signatures of Rajbir Singh at point A. This witness stated that he wrote application for preserving the dead body at DDU hospital and gave the same to Ct Manjeet. The photostate copy of his application is Mark PW36/A1, which bears his signatures at point A. The dead body was sent to DDU Hospital through Ct. Manjeet. At B.L. Kapoor hospital, the doctor gave him two sealed pulandas along with sample seal of the hospital, which stated to have contain clothes of deceased and belongings of the deceased i.e. ATM Card, Mobile Phone, ICard etc. He seized the above articles through seizure memo Ex. PW36/B, which bears his signatures at point A. He along with the pulanda came to place of incident. He made rukka on the statement of Rajbir Singh, which is Ex. PW36/C, which bears his signatures at point A. He sent the rukka to PS through Ct. Kare Lal at 12:30 AM for registration of FIR. Inspector Gurdev Singh, SHO and other staff was also present at the spot, when he came to spot from the hospital. After registration of FIR investigation of Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 27/40 the case was marked to Insp. Gurdev Singh. Ct. Kare Lal came back to the spot after getting the FIR registered at about 1:15 AM. This witness stated that Insp. Gurdev Singh had lifted blood, blood stained earth, earth control, dandas, bat, broken glass pieces and two empty cartridges from the spot and converted the same into separate pulandas, which were sealed with the seal of GS and seized the above articles vide seizure memo which are already Ex. PW19/B, Ex. PW19/D, Ex. PW19/E and Ex. PW19/E1, which bears his signatures at point X respectively. The IO seized the car DL4CNA 3941 through seizure memo, which is already Ex. PW19/C, bears his signatures at pointX. IO prepared site plan which is already Ex. PW19/A, which bears his signatures at point X. This witness has further stated that on 03.11.2012, he again participated in investigation with Insp. Gurdev Singh and accused Sanjay, who is present in the court today, went to second floor of his house No. 8/2, South Patel Nagar, Delhi, from where accused got recovered one katta (country made pistol) from the corner of the second floor room. Again said, the said katta was recovered from the room which was constructed on the roof of the second floor. This witness stated that IO prepared sketch of country made pistol and seized the same while preparing its pulanda, which was sealed with the seal of GS. The sketch of country made pistol is already Ex. PW19/K, seizure memo already Ex. PW19/K1, bears his signatures at point X. This witness stated that IO prepared sketch of place of recovery of Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 28/40 country made pistol, which is already Ex. PW19/L, which bears his signatures at point X. This witness identified the danda as Ex. P5 which was seized by the IO. This witness identified the cricket bat as Ex. P1, pistol as Ex. P3 and cartridge cases as Ex. P4. This witness identified broken glass pieces and damaged car as Ex. P6 (colly). This witness identified plastic container containing blood on gauze as Ex. P7, which was lifted from the spot by the IO. This witness identified the plastic container containing blood stained earth control as Ex. P8, which was lifted from the spot by the IO. The plastic container containing gauze cloth piece containing blood stains was identified as Ex. P9, which was lifted from the spot by the IO. This witness identified the plastic container black concrete material as Ex. P10, which was lifted from the spot by the IO. This witness identified the plastic container containing gauze cloth piece having dark brown stains as Ex P11, which was lifted from the spot and seized by the IO.
In cross examination this witness stated that name of the assailants were not mentioned in the said DD. He did not make his departure entry after receiving of DD No 39A. This witness stated that no eye witness was found at the spot. This witness stated that there is no mention of empty cartridges and bat already lying at the spot prior to reaching of the SHO and guarding of the spot, in his statement recorded under Section 161 Cr.P.C by the IO. This witness stated that there is no mention of empty cartridges and bat lying at the spot in rukka Ex. PW6/B. Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 29/40 This witness stated in the site plan Ex. PW19/A, the position and name of the assailants is not mentioned in Ex. PW19/A. This witness stated that he cannot tell the name of any such person who had disclosed to him that Sanjay had fired. This witness stated that IO/Insp. Gurdev Singh had told him on 03.11.2012 at about 7 PM about the pistol concealed in the room constructed on the second floor of house of Sanjay Chaudhary. This witness stated that accused Sanjay made disclosure statement regarding concealment of pistol before the IO and him. This witness stated that the fact of concealment of pistol by accused Sanjay in the room of the second floor of house is not mentioned in his statement recorded under Section 161 Cr.P.C. This witness stated that he did not request any neighbour to join the investigation, however, IO had asked. He stated that he cannot tell the whereabouts of the persons who were requested by the IO to join the investigation. This witness stated that nobody met them at the house of accused Sanjay. The house of accused was opened, however, the main gate of the house of the accused was bolted. Before entering the house of accused Sanjay, neither he nor IO had offered for search to accused Sanjay. This witness stated that after recovery of country made pistol from the room on the roof of second floor, they had bolted the main gate of the accused Sanjay. IO had prepared the site plan Ex. PW19/L of the place of recovery in his presence. This witness stated that no description of the floor is mentioned in Ex. PW19/L. This witness stated that he did not make any statement to the IO regarding recovery of Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 30/40 the country made pistol from the room of the second floor of the house of accused Sanjay on 03.11.2012. This witness stated that accused Sanjay also received a gun shot injury.
45.Ld.counsel for the accused has argued that PW1 Sh.Rajbir is the complainant in the present case and PW2 to PW5 are the eye witnesses of the incident but none of the above witness has supported the prosecution case. It is contended that it is not proved that accused Sanjay had fired upon Manish @ Manu. It is not proved that accused Sanjay alongwith accused Pankaj @ Rahul gave injuries to Rajbir, Sandeep and Sushil. It is also contended that it is not proved that accused Pankaj and Sanjay caused injuries to the injured persons. It is also not proved that accused Saroj let/opened her dogs on the Rajbir and the dog had bitten the Rajbir. It is also contended that there is no evidence on record to show that accused Saroj had instigated her both sons by saying "Saalo ko goli maar". It is further contended by the Ld.counsel for the accused persons that there is no evidence of instigation against the accused Saroj. None of the offence has been proved against the accused persons and therefore it is prayed that all the accused persons are liable to be acquitted as there is no evidence on record.
46.This case was registered on the statement of Rajbir Singh. I have perused the statement of the complainant Rajbir Singh. When this witness appeared in the witness box as PW1, he has stated that on 01.11.2012 at about 8.459.00 PM, he was present at his factory, situated inside his house. In the meanwhile, one boy Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 31/40 came to him and informed that Manish @ Manu and Sushil who are his sons had some quarrel at Bhagat Singh Park, Patel Nagar which is at a distance of 5 minutes walk from his residence. He immediately reached there and there were considerable gathering. He further stated that when he tried to take out his both sons from that gathering, he fell on that stray dog and in that process the dog barked upon him and bitten by the dog. He further stated that someone from the gathering shot fire and the bullet hit his son Manish @ Manu. He did not know who fired from the gathering. Thereafter, he lifted his son Manish and in the meanwhile, someone also hit on his head and due to that assault, he had fallen on the ground. He further stated that he was taken to B.K.Kapoor Hospital and also provided medical treatment.
This witness was declared hostile by the Ld. Addl. P.P. for the State. In the crossexamination, this witness even denied to make any statement to the police and also denied that accused Sanjay and Pankaj @ Rahul both started beating his sons. This witness was also confronted with the portion A to A1, B to B1, C to C1 and D to D1 of Ex. PW1/A. This witness even stated that he does not know the accused persons standing in the dock and even accused persons did not fire upon Manish and did not exhort or gave sword blow to him.
47.PW2 Sh.Sushil Kumar who was also an injured persons has stated that on on 01.11.2012 at about 8.30 to 9 PM, he alongwith his brother Manish @ Manu after taking dinner went for a stroll Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 32/40 and when they were coming back to their house and when they reached near H.No. 8/2, South Patel Nagar, 1015 persons were standing there, who called them and asked as to where they were going and thereafter those 1015 persons gave beatings to them. Many public persons gathered at the spot and in the meanwhile his family members namely Sandeep, his cousin, his father and his uncle Deepak also reached there. He further stated that there was an altercation and in that process, one bullet hit his brother Manish @ Manu. He further stated that he did not know who had fired from the crowd. He alongwith his cousin Sandeep and his father also received injuries. He further stated that he cannot say as to who were the assailants as there was a gathering of people in the form of crowd. He further stated that his brother Manish was taken to B.L.Kapoor hospital and later on doctor declared his brother Manish as dead. He further stated that he cannot identify the accused persons who gave beatings to him, his cousin Sandeep, his father and fired upon his brother Manish @ Manu. He further stated that he did not know the accused persons standing in the dock.
This witness was also turned hostile and crossexamined by the Ld. Addl. P.P. for the State but nothing fruitful could be extracted from the crossexamination of the witness to show that accused persons are involved in the present case.
48.PW3 Sh. Sandeep @ Bhanu has stated that on on 01.11.2012 at about 8.309.00 PM, he was present at his house. On hearing the noises, he reached at H.No. 8/2 South Patel Nagar, Delhi where Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 33/40 he saw that people had gathered there and on inquiry, he came to know that someone had fired shot upon his cousin namely Manish @ Manu. He further stated that thereafter Manish was taken to B.L.Kapoor hospital and on reaching the hospital, he came to know that Manish @ Manu had expired. He further stated that he did not know as to who were the assailants and as to who fired shot on Manish @ Manu.
This witness was also turned hostile and crossexamined by the Ld. Addl. P.P. for the State and he denied to make any statement before the police.
49.PW4 Sh. Deepak has also stated that on 01.11.2012 at about 8.309 PM, he was present at his residence and on hearing the noise, he alongwith his wife reached at H.No. 8/2, South Patel Nagar, Delhi where he saw 100150 people gathered there. On inquiry, he came to know that someone had fired shot upon Manish @ Manu and his nephew. He further stated that he alongwith one boy whose name he did not remember had taken his nephew to B.L.Kapoor hospital and later on doctors declared his nephew Manish @ Manu as brought dead. He further stated that he did not know as to who were the assailants and who had fired shot upon Manish @ Manu. He further stated that he did not know anything else about the present case and he did not see the occurrence personally.
This witness was also turned hostile and crossexamined by the Ld.Addl. P.P. for the State but nothing fruitful could be extracted from his crossexamination.
Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 34/4050.Similar statement has been given by PW5 Sh. Bunty that someone had fired shot his nephew Manish @ Manu. He further stated that he did not know as to who had fired upon Manish. This witness even denied to see the dispute and nothing fruitful could be extracted from his crossexamination.
51.Thus all the PWs who were the eye witnesses to the incident did not support the case of the prosecution. It is not proved that any of the accused gave injuries to the deceased. It is also not proved that accused Saroj had instigated her sons Sanjay and Pankaj @ Rahul to kill Manish. It is also not proved that accused Saroj let her dogs on the Rajbir and the dogs bitten the Rajbir.
It is also not proved that accused Sanjay in furtherance of his common intention alongwith other coaccused committed murder of Manish @ Mannu and it is also not proved that both the accused persons in furtherance of their common intention caused dangerous injuries on the person of Rajbir with intention to kill him. Further it is also not proved that both the accused persons in furtherance of their common intention caused simple injuries on the person of Sandeep and Sushil.
52.Ld. Addl. P.P. for the State has contended that PW5 Sh. Bunty has stated in the court that he came to know that a quarrel had taken place between Manish and Sanjay Jaat and they had gone to B.L.Kapoor hospital. But this evidence is of no help as it is not denied by the accused persons that a quarrel had taken place.
53.Next contention of the Ld.Addl. P.P. for the State is that a case U/s 25/27 A.Act is proved against the accused Sanjay. The recovery of Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 35/40 pistol was got effected in pursuance of the disclosure statement made by the accused Sanjay and this weapon was used in the commission of offence.
54.First of all we have to see whether the prosecution is able to prove that country made pistol was recovered in pursuance to the disclosure statement made by the accused Sanjay. PW19 Insp.Gurdev Singh is the investigating officer of the present case and this witness has admitted that on 02.11.2012 at about 11 AM, he alongwith other police officials visited the house of accused Saroj but the recovery is shown of dt. 03.11.2012 and the accused Sanjay was arrested on 03.11.2012. No explanation has been given by PW19 Insp.Gurdev Singh as to why the house of the accused was not searched on 02.11.2012. On 02.11.2012, itself the accused Saroj was arrested. This witness has also admitted that the place from where recovery of weapon was effected is surrounded by the residences. This witness also stated that no neighbour was called before the recovery of weapon from the house of the accused. This witness also stated that wife of the accused Sanjay and 23 other relatives were present at the time of recovery but PW36 SI Vivek Singh stated that he did not request any neighbour to join the investigation. He also stated that IO had asked the public persons but PW19 IO/Insp.Gurdev Singh did not say that he had requested any neighbour to join the investigation. PW19 IO/Insp.Gurdev Singh stated in his crossexamination that wife of the accused Sanjay and 23 relatives were present at the time of recovery but PW36 Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 36/40 stated that nobody met at the house of the accused Sanjay.
PW36 SI Vivek Singh in his crossexamination has stated that when he visited the house of the accused, the house was opened. This witness further stated that the main gate of the house was bolted and after the recovery of country made pistol from the room on the roof of the second floor, he had bolted the main gate of the house of accused Sanjay. Thus, there is contradictions in the statements of PW19 and PW36.
Moreover, no explanation has been given by the IO as to why the statement of PW36 SI Vivek Singh was not recorded on 03.11.2012 and why his statement was recorded on 05.11.2012. PW36 SI Vivek Singh also admitted that the fact of concealment of pistol by the accused Sanjay in the room of the second floor of his house is not mentioned in his statement U/s 161 Cr.P.C. This witness also admitted that he did not make any statement to the IO regarding recovery of the countrymade pistol from the room of the second floor of the house of accused Sanjay on 03.11.2012. Thus it is not proved that any disclosure statement was made by the accused Sanjay on 03.11.2012 and in pursuance of the disclosure statement, country made pistol was recovered at the instance of the accused Sanjay.
55.Ld. Addl. P.P. for the State has vehemently argued that the pistol Ex.P.3 and the bullet recovered from the body of the deceased was sent to the FSL. As per report of the FSL Ex.PX2, it is mentioned that :
"On the basis of Microscopic Examination of crime fired bullet Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 37/40 with the test fired bullets under the Comparison Microscope, it is opined that the .32" bullet (marked BC/1) contained in parcel No.11 had been fired from the .32" Country made pistol (marked W/1) contained in parcel no. 15 in question".
But during the evidence, .32" fired bullet was not brought on record. Moreover, all the PWs had denied that accused Sanjay had caused any gun shot injury. Further statements of PW19 Insp.Gurdev Singh and PW36 SI Vivek Singh are not trustworthy regarding recovery of country made pistol from the house of the accused.
56.Counsel for the accused has pointed out certain lapses in the investigation as PW19 Insp.Gurdev Singh did not seize the cartridges and other articles i.e. danda, bat when he first visited at the spot.
No explanation has been given by the IO as to why these articles were not seized on the first instance when he visited the spot on 01.11.2012.
57.Counsel for the accused persons has also relied upon the Judgments in this regard i.e. (1) 1989 Crl. L.J.1585 State of Madhya Pardesh Vs. Ram Prakash & others (2)1989 Crl.L.J 127, Pawan Kumar Vs. Delhi Administration, wherein it is held that :
No efforts made by police to join any independent witness though several persons were present. This circumstance creates doubt on arrest and recovery of weapon of offence.
(3) IV (2009)(4) JCC 2541 Kirpa Shankar Vs. State, wherein Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 38/40 it is held that :
The witnesses to the disclosure statement and recovery of weapon of offence are police officials who obviously are the witnesses interested in the success of the case. Thus, we do not deem it safe to rely upon their testimony. (4) 1998 (1) CCC 411 Pritam Singh Vs. State, wherein it is held that :
Where the recovery was made from an open house and not in exclusive possession of the accused persons and there is no independent witness of the alleged recovery, it becomes doubtful.
(5) 1995(3) CCC 252 Satish Kumar Vs. State, wherein it is held that :
Nonjoining of independent witness during disclosure statement--where no efforts were made by the police to join any independent witness, before recording the disclosure statement of the accused and before effecting the recoveries.
58.Counsel for the accused persons has also pointed out that IO has not mentioned in the site plan where the deceased was standing and from where accused Sanjay had fired and he has also placed reliance upon the Judgment 2005 Crl.L.J.299 Vijay Singh Vs. State of M.P., wherein it is held that :
The preparation of site plan is not mere formality but it is essential feature in order to reach firm conclusion by court as to whether offence was committed by accused or not Serious infirmity in site plan as it does not indicate that from which place accused fired gun and place where deceased was standing Benefit would go to accused.
59.Prosecution has also failed to prove that any disclosure statement Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 39/40 was made by the accused Sanjay on 03.11.2012 and recovery was effected on 03.11.2012. In the present case, accused Sanjay has also received gun shot injury. It is contended by the counsel for the accused that the prosecution is not able to explain the injuries suffered by the accused Sanjay. I fail to appreciate this contention of the Ld.counsel for the accused as it is for the accused to show how he had received gun shot injury. No suggestion was put by the accused Sanjay to PWs that he received gun shot injury. It is not the prosecution case that accused Sanjay had received gun shot injury and it is not the case of the defence that accused Sanjay received gun shot injuries in the same quarrel.
60.In view of above discussion, accused Sanjay Jaat and Pankaj @ Rahul are hereby acquitted for the offence punishable u/s 302/34 IPC; 307/34 IPC and 323/34 IPC. Accused Sanjay Jaat is also acquitted for the offence punishable U/s 25/27/54/59 A.Act.
61.Accused Saroj is also hereby acquitted for the offence punishable u/s 109/302 IPC; 109/307 IPC; 109/323 IPC and 289 IPC.
All the accused are on bail. Their bail bonds stand intact for a further period of six months in view of provisions of section 437A of Cr.P.C.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON : 26th MAY, 2014. (NARESH KR. MALHOTRA) ADDITIONAL SESSIONS JUDGE05 (WEST) DELHI / TIS HAZARI COURTS Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 40/40 Sessions Case No. 12/14 State Vs.Saroj etc. Page No. 41/40