Delhi District Court
State vs Badal @Behru Etc on 30 January, 2024
IN THE COURT OF SH. SATISH KUMAR,
ADDITIONAL SESSIONS JUDGE - 03, NORTH DISTRICT
ROHINI COURTS, DELHI
Case No. 57517/2016
State V. 1. Badal @ Behru
S/o Late Sh. Nafe Singh,
R/o Ambedkar Colony,
Village Khewda,
District Sonipat,
Haryana.
2. Dalbir @ Kuka @ Yashwant
@ Master
S/o Sh. Jagdish,
R/o Ambedkar Colony,
Village Khewda,
District Sonipat,
Haryana.
3. Suraj @ Chhotu
S/o Sh. Jai Bhagwan,
R/o Ambedkar Colony,
Village Khewda,
District Sonipat,
Haryana.
4. Rohtash,
W/o Sh. Dharam Pal,
R/o Ambedkar Colony,
Village Khewda,
District Sonipat,
Haryana.
SC No.57517/16
State Vs. Badal @ Behru & Ors. Page No. 1 of 48
5. Vicky @ Vijay,
S/o Sh. Ashok Kumar,
R/o H. No.A-3/491,
Sultan Puri, Delhi.
6. Lalit @ Lala
S/o Sh. Manohar Lal,
R/o H. No.A-3/491,
Sultan Puri, Delhi.
FIR No. 243/2010
U/s 120B, 302 read with Section
120B IPC, 460 read with Section
120B IPC and u/s 25 read with
Section 27 Arms Act.
Police Station Sultan Puri
Assigned to Sessions 22.09.2010
Charges framed on 22.02.2011
Arguments heard on 29.01.2024
Judgement pronounced on 30.01.2024
Decision Acquittal
Appearance : Sh. Pankaj Bhatia, Ld. Addl. PP for the
State.
Sh. Sachin Dev Sharma, ld. Counsel for all the
accused persons.
JUDGMENT
1. BRIEF FACTS OF THE CASE :
Succinctly, the case of the prosecution is that on 13.06.2010, DD No.8-A was marked to SI Praveen, who SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 2 of 48 along with Ct. Radhey Shyam went to the place of occurrence i.e H. No.A-2/368, roof of 2nd floor, Sultan Puri, Delhi. It was revealed to them that injured has been taken to Sanjay Gandhi Hospital in PCR van. Accordingly, SI Praveen went to the said hospital and found injured Om Prakash admitted in the said hospital vide MLC no.8888/10.
The said injured was declared brought dead and was shifted to the mortuary. Thereafter, SI Praveen returned back to the spot and recorded the statement of Sh. Jagmohan i.e brother of deceased Om Prakash. On the basis of said statement and contents of MLC, SI Praveen prepared rukka and got the FIR registered for offence punishable u/s 302/34 IPC. After registration of FIR, the investigation was marked to Inspector Virender, who called crime team at the spot and got the place of occurrence inspected from the crime team. During investigation, IO Inspector Virender also lifted the exhibits from the spot and after sealing, seized the said exhibits through seizure memo. During investigation, IO had got conducted postmortem on the body of deceased Om Prakash and handed over the said body to his relatives.
2. That during the course of the investigation, on 17.06.2010, on receipt of secret information, IO had effected the arrest of Vicky @ Vijay and recorded his disclosure statement and SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 3 of 48 at the instance of accused Vicky, IO had effected the arrest of accused Lalit @ Lala. During the course of further investigation and at the instance of accused Lalit, three country made pistols (kattas) point 315 bore, 18 live cartridges, one empty shell and one knife alleged to have been recovered from Sanjay Gandhi Hospital Locker and the same were seized after sealing through seizure memo.
3. That during the course of further investigation and at the instance of accused Lalit @ Lala, accused Deepak and Dalbir @ Kukka were arrested. That during further investigation, on 19.06.2010, accused Badal @ Behru was arrested and his PC remand was obtained. During PC remand, accused Badal @ Behru got recovered one bed sheet from the bushes behind Sanjay Gandhi Hospital mortuary which was seized through seizure memo. On 03.08.2010, IO had effected the arrest of accused Suraj @ Chhotu and on 27.08.2010, IO had also effected the arrest of accused Rohtash. IO had also moved an application for judicial TIP of all the accused persons but they refused to participate in judicial TIP. Accused Deepak was declared JCL and he was produced before Juvenile Justice Board.
4. That the IO had collected PCR form and also sent the SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 4 of 48 exhibits to FSL. IO had also obtained the call detail reports of mobile numbers of accused Badal @ Behru, Vicky @ Vijay, Dalbir @ Kukka and Suraj @ Chhotu and analyzed the said call detail report of all these accused persons. That after completion of the investigation, IO had prepared charge sheet for offences punishable u/s 302/460/120B/34 IPC and 25/27 Arms Act and the charge sheet was filed in the court of Ld. MM. After completion for formalities of Section 207 Cr.PC, the case was committed to this court for trial.
CHARGE:
That, the ld. Predecessor of this court, vide order dated 22.02.2011 framed the charge for offence punishable u/s 120B IPC, 302 read with Section 120B IPC, 460 read with Section 120B IPC against all the accused persons and separate charge for offence punishable u/s 25/27 Arms Act against the accused Lalit @ Lala was framed, to which all the accused persons pleaded not guilty and claimed trial.
5. PROSECUTION WITNESSES:
That, in order to prove their case, prosecution has examined 32 witnesses namely :-
PWS Name of the Nature of the Documents proved SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 5 of 48 witness witness PW1 Ms. Seema Niece of the This witness has not deposed deceased anything incriminating against any of the accused and even after cross examination by Ld. Addl. PP for the State, she has not supported the version of the prosecution.
PW2 Sh. Brother of He had identified the dead
Jagmohan deceased body of his deceased brother
vide memo Ex. PW-2/A.
PW3 Smt. Sister-in-law of Nil.
Kamlesh deceased
PW4 W. Ct. Savita Police Witness She was posted in PCR Control Room in the night 12/13.06.10 from 8:00 pm to 8:00 am and she filled the computerized PCR form Ex.
PW-4/A.
PW5 Dr. Rajesh CMO, Sanjay This witness has prepared the
Dalal Gandhi MLC Ex. PW-5/A of
Memorial deceased Om Prakash on
Hospital dated 13.06.10.
PW6 Ct. Ravinder Police Witness This witness was posted in mobile crime team of Outer District Rohini on 13.06.10 and on the instruction of theiO and inchrage of the crime team, he got the scene photograph from different angled and the said photographs are Ex. PW-SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 6 of 48
6/A1 to A-3 and negatives of the same are collectively Ex.
PW-6/D.
PW7 HC Ishwar Police Witness This witness was posted in
Singh PCR on intervening night of
12/13.06.10 and reached at
the place of incident with
Incharge of the PCR and
shifted and got admitted the
injured SGM Hospital.
PW8 Ms. Pooja Wife of Nil.
deceased
PW9 Inspector Police Witness This witness was posted in
Sanjay Mobile Crime Team Rohini
Kumar Gade Outer District and inspected
the spot of incident and gave
instructions to the IO vide
report Ex. PW-9/A.
PW10 Sh. Rakesh Brother of He identified the dead body
deceased of his deceased brother Om
Prakash vide memo Ex. PW-
10/A. He made the statement
to the police Ex. PW-10/C.
PW11 HC Ram Police Witness Nil.
Kumar
PW12 HC Rajesh Police Witness This witness was posted at
Kumar PS Sultan Puri as duty officer
from 12:00 pm (night) to
8:00 am on dated
12/13.06.2010 and at about
5:25 am, Ct. Radhey Shyam
brought rukka sent by SI
Praveen Kumar and on the
SC No.57517/16
State Vs. Badal @ Behru & Ors. Page No. 7 of 48
basis of the same, he
recorded the FIR of this case
Ex. PW-12/A. He also made
endorsement on the rukka
Ex. PW-12/B.
PW13 Sh. Manoj Medical This witness has conducted
Dhingra Officer, SGM postmortem on the body of
Hospital, the deceased.
Mangolpuri
PW14 SI Sandeep Police Witness This witness was posted as
Yadav Probationary Sub Inspector
in PS Sultan Puri on
30.08.2010 and looking after
the work as MHC(M) and on
the direction of the IO, he
had sent the sealed pullandas
to FSL Rohini vide RC Ex.
PW-14/A. Acknowledgement
and acceptance of parcels is
Ex. PW-14/B.
PW15 Sh. Sube Security Officer This witness has signed the
Singh at SGM recovery memo Ex. PW-
Hospital, 15/A.
Mangolpuri
PW16 HC Hari Om Police Witness This witness was incharge PCR Van L-43 and he had brought original log book containing the call mentioned at page number 243, time 3:02. Copy of the same is Ex.
PW-16/A.
PW17 Sh. Israr Alternate The call detail record of
Babu Nodal Officer, mobile number 9582728821
Vodafone from the period 10.06.2010
SC No.57517/16
State Vs. Badal @ Behru & Ors. Page No. 8 of 48
Mobile to 17.06.2010 is Ex. PW-
Services Ltd. 17/A. The SIM issue
documents are Ex. PW-17/B.
ID proof is Ex. PW-17/C,
certificate u/s 65-B of Indian
Evidence Act is Ex. PW-
17/D.
PW18 Ct. Mahesh Police Witness Nil
Kumar
PW19 Sh. Chander Nodal Officer, This witness has brought the Shekhar Bharti Airtel call detail report of mobile Limited number 9996099635 Ex.
PW-19/A. The mobile SIM document Ex PW-19/B. Certificate u/s 65 Indian Evidence Act is Ex. PW-
19/D. PW20 Ct. Vijender Police Witness This witness was posted in Kumar PS Sultan Puri on dated 17.06.2010 and joined the investigation with the IO.
The accused Vicky @ Vijay was arrested in his presence vide arrest memo Ex. PW-
20/A. The personal search of the accused Vicky @ Vijay Ex. PW-20/B. The disclosure statement of accused Lala @ Lalit was made vide Ex. PW-
20/C. PW21 Ct. Satish Police Witness Nil.
Kumar PW22 Sh. Rajesh Branch This witness has brought the Maharaj Incharge, SBI, detail of account of accused SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 9 of 48 GT Road, Badal @ Behru. The Bahalgarh customer ID proof, customer (Sonipat), detail including the Haryana photograph and signature are Ex. PW-22/A and Ex. PW-
22/B respectively. The statement of transaction of the account of the accused is Ex. PW-22/C. PW23 SI Praveen Police Witness This witness was posted on Kumar emergency duty in PS Sultan Puri on intervening night of 12/13.06.2010 and on receipt of DD No.8/A Ex. PW-23/A reached with Ct. Radhey Shyam at the spot of incident and prepared rukka Ex. PW-
23/B and handed over the same to Ct. Radhey Shyam to get registered the FIR.
Inspector Virender Singh lifted the exhibits from the spot i.e blood stained floor pieces, control floor piece, blood, one blanket red, yellow and green colour, one blood stained towel of green colour and he kept all these articles in separate pullanda vide seizure memo Ex. PW-
23/C. After postmortem examination, doctor handed over one sealed plastic jar sealed with the seal of SGMH mortuary Mangol SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 10 of 48 Puri containing the bullet taken out in the postmortem examination and the said exhibit were taken into possession vide seizure memo Ex. PW-23/D. PW24 SI Dhirendra Police Witness This witness was posted at Singh PS Sultan Puri and had joined the investigation with IO Inspector Arun Sharma.
IO prepared arrest memo of accused Vicky @ Vijay Ex.
PW-24/A. Personal search of the accused was conducted vide memo Ex. PW-24/B. The disclosure statement of the accused Vijay @ Vicky was recorded vide memo Ex.
PW-24/C. The sketch of three country made pistols are Ex. PW-24/D, Ex. PW-
24/E and Ex. PW-24/F, sketch of knife is Ex. PW-
24/G, sketch of live cartridges is Ex. PW-24/H, sketch of empty cartridge is Ex. PW-24/J, pointing out memo at the instance of accused Lalit @ Lala of the locket was prepared vide memo Ex. PW-24/K. IO prepared arrest memo Ex.
PW-24/L-1 of accused Deepak, recorded disclosure statement of accused Deepak SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 11 of 48 vide memo Ex. PW-24/L-2.
Arrest memo of accused Dalbir @ Kuka is Ex. PW-
24/M, his personal search was conducted vide memo Ex. PW-24/M-1, his disclosure statement was recorded vide memo Ex. PW-
24/M-2. Pointing out memo of place of incident is Ex.
PW-24/M-3. Mobile phone of recovered from the accused persons namely Lalit @ Lala, Vijay @ Vicky, Dalbir @ Yashwant @ and JCL Deepak were taken into possession vide memo Ex.
PW-24/M-4, Ex. PW-24/M-
5, Ex. PW-24/M-6 and Ex.
PW-24/M-7. Affidavit in respect of the employment of JCL Deepak was taken into possession vide seizure memo Ex. PW-24/M-9 and his duty proof is Ex. PW-
24/M-10. On 19.06.2010, he again joined the investigation and arrested the accused Badal vide arrest memo Ex.
PW-24/N, his personal search was conducted vide memo Ex. PW-24/N-1, his disclosure statement was recorded vide memo Ex. PW-
24/N-2, pointing out memo SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 12 of 48 of place of incident is Ex.
PW-24/N-3. On the intervening night of 02/03.08.2010, he again joined the investigation with IO and arrested the accused Suraj @ Chhotu vide arrest memo Ex. PW-24/O, his personal search was conducted vide memo Ex.
PW-24/O-1, his disclosure statement was recorded vide memo Ex. PW-24/O-2, pointing out memo as Ex.
PW-24/O-3. On 27.08.2010, he again joined the investigation of this case with IO and arrested accused Rohtash vide arrest memo as Ex. PW-24/P, his personal search was conducted vide memo Ex. PW-24/P-1, his disclosure statement was recorded vide memo Ex. PW-
24/P-2 and pointing out memo was prepared vide memo Ex. PW-24/P-3.
PW25 DCP M.A. Police Witness This witness was DCP Crime Rizvi and has accorded the Sanction pursuant to Section 39 of Arms Act vide Ex PW-
25/P for the prosecution of accused Lalit @ Lala S/o Manohar Lal u/s 25 Arms Act.
SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 13 of 48PW26 Sh. Puneet Sr. Scientific This witness has conducted Puri Officer the test fire from the (Ballistic), recovered country made FSL, Rohini, pistol (katta) and the Delhi cartridges. The detailed report is Ex. PW-25/A. PW27 Ms. Sunita SSO (Biology), The detailed biological report Gupta FSL, Rohini, was prepared by this witness Delhi and the same is Ex. PW-27/A and Ex. PW-27/B. PW28 Retd. Police Witness This witness was posted as Inspector ATO in PS Sultan Puri on Virender dated 13.06.2010 and after Singh reaching the spot of incident, he prepared site plan as Ex.
PW-28/A. The dead body identification statement of Munshi Lal is Ex PW-28/B. Request to perform the postmortem examination is Ex.PW-28/C and inquest proceedings are Ex.PW-
28/D. PW29 Sh. Independent He has deposed that at about Shamsuddin witness 2/3:00 am in the night, he heard noise of dhamaka i.e sound of fire. He went to the house of deceased, there the family members were crying by saying that "Kinhi Hatyaro Ne Goli Maar Di"and he made 100 number call to the police from his mobile phone 9873023176.
SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 14 of 48PW30 Ct. Radhey Police Witness This witness got registered Shyam the present case FIR.
PW31 HC Police Witness This witness joined the Munawar investigation with the IO.
Khan PW32 ACP Arun Police Witness This witness has carried out Kumar the investigation of the present case FIR and has arrested all the accused persons and after carried out the investigation, the charge sheet was filed.
That after recording the testimony of all the prosecution witnesses vide order dated 01.02.2018, all the accused persons admitted the genuineness of TIP proceedings and the said TIP proceedings are already Ex. PW-24/Q, Ex. PW-24/Q1, Ex. PW24/Q2, Ex. PW-24/Q3, Ex. PW-24/Q4 and Ex. PW-24/Q5.
6. STATEMENT OF ACCUSED PERSON U/S 313 CR.P.C:
That, all the incriminating evidence brought on record by the prosecution against all the accused persons were put to the accused person and they have denied the same and has SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 15 of 48 stated that they have been falsely implicated in this case and none of the accused has opted to lead any defence evidence.
7. PERUSAL OF RECORD:
The submissions of ld. Counsel for the accused persons as well as Ld. APP for the State have been heard at length. The chargesheet as well as all the statements recorded by the IO during the course of the investigation and all the evidence recorded by the prosecution to prove their case have been perused.
Having heard the submissions made by Ld. Addl. PP for the State as well as Ld. Defence counsel for all the accused persons and after gone through the case file, this court is of the considered view that the case of the prosecution is based upon the circumstantial evidence as during the course of trial, the prosecution has not examined any eye witness who must have seen the occurrence. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (Reliance placed on Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 16 of 48 (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
That the Hon'ble Supreme Court has held in case titled as Bhagat Ram v. State of Punjab (AIR 1954 SC 621), that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
8. Reference is also made to a decision passed by Hon'ble Supreme Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 17 of 48 should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
9. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was held by the Hon'ble Apex Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
10. That in case State of U.P. v. Ashok Kumar Srivastava, (1992 SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 18 of 48 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
11. That, the rules specifically pertaining to the circumstantial evidence has been mentioned in a book "Wills' Circumstantial Evidence" (Chapter VI) written by Sir Alfred Wills. It has been mentioned in the said book that : (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 19 of 48 reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".
12. It is the universal principle laid down by the Hon'ble Apex Court of India that there is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by Hon'ble Supreme Court in various judgments as far back as in 1952.
13. It has been held by the Hon'ble Apex Court of India in case 'Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh', (AIR 1952 SC 343), wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 20 of 48 such as to show that within all human probability the act must have been done by the accused."
14. It has also been held by the Hon'ble Apex Court of India in case 'Sharad Birdhichand Sarda v. State of Maharashtra', (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 21 of 48 ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
15. That, in order to establish the motive, the prosecution has examined PW-8 Ms. Pooja (wife of deceased) and during her examination in chief, she has deposed that she does not know anything about the present case as she was in the house of her mother. On the next day of incident, she came to know that her husband Om Prakash had been shot dead. After hearing the said news, she went to her in-laws house. Since this witness has not supported the case of the prosecution and she was cross examined on behalf of the State and during her cross examination, she has deposed that her marriage with Om Prakash was love marriage and it was objected by her parents, but later on, the marriage was accepted. She further deposed that accused Badal used to visit their house and sometimes, he used to stay. She further deposed that accused Badal used to eat and drink with her husband and used to praise the food cooked by her. She also deposed that she did not use to like the praises of Badal and she used to ask her husband not to allow such type of person in the house and Badal used to have an evil eye on her. She also deposed that during Holi time as she was not SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 22 of 48 keeping well and her mother was also not keeping well, so she went to her mother's house and one day prior to the death of her husband, her husband came to her mother's house.
16. That PW-8 Pooja (wife of deceased) was also cross examined by Ld. Defence counsel for all the accused persons on behalf of defence and during cross examination on behalf of accused Badal and Dalbir, she has deposed that Prakash was previously married and every member of Prakash's family had objection to this marriage. She also deposed to be correct that accused Badal always used to come in the presence of her husband. During cross examination on behalf of accused Vijay, she has deposed that she married with Om Prakash on 18.08.2008 by writing a letter to a Judge and the said letter is with Rakesh. She was aware at that time about previous marriage and children of Om Prakash. She also deposed that Om Prakash and his brother Jagmohan and Rakesh used to fight on the one issue or the other. She also deposed that accused Badal never stayed at their house in the night time. She also deposed that she can not say if Rakesh had murdered Om Prakash. The testimony of PW-8 does not support the case of the prosecution in any manner.
SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 23 of 4817. That, in order to prove their case, the prosecution has also examined PW-1 Seema (niece of the deceased). The record reveals that this witness has not supported the case of the prosecution in any manner inasmuch as in her examination in chief, she has deposed only to the effect that on 13.06.2010, she was sleeping on the roof of her house along with uncle Jagmohan and his wife Kamlesh. At about 2:30 am, she heard the scream of her aunt Kamlesh. She deposed that she does not hear anything else and she does not know anything about this case. Since this witness has not supported the case of the prosecution, she was also cross examined by Ld. Addl. PP for the State and during cross examination, she deposed that her statement was not recorded by the police. Statement Mark A was read over and explained to PW-1 but she denied to have made any such statement before the police. During cross examination, she also deposed to the correct that her uncle namely Prakash was sleeping on the monty of stair case and on hearing the scream of her aunt Kamlesh, she and her uncle Jagmohan got up and noticed that blood was oozing from the head of her uncle Om Prakash. She has deposed that she had not seen any person running down from the stairs. She denied that she was awaken by the sound of the bullet.
SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 24 of 48She also denied that she had seen four persons running down to the stair case. PW-1 has also been cross examined by Ld counsel for all the accused persons but PW-1 Seema has not been able to depose anything incriminating against any of the accused persons. She even denied to have made statement Mark A before the police. Therefore, the testimony of PW-1 Seema is not of a sterling quality and is also not helpful to prove the case of the prosecution in any manner.
18. That, the prosecution has also examined PW-2 namely Jagmohan (brother of deceased) who has deposed that he used to work as labourer. He was having two brothers and four sisters. Om Prakash (deceased) was his younger brother who also used to work as labourer. They all used to sleep on the roof of their house. On the day of incident, he along with his wife and niece Seema had gone to sleep on the second floor of his house and Om Prakash went to sleep on the roof of stair case where he used to sleep as usual. At about 3:00 am, on hearing the noise of some fire bullet, they got up and noticed three persons running in the street and one person was tying his shoes. Accused Badal was tying his shoes on the staircase where his brother was sleeping SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 25 of 48 and he noticed his brother Om Prakash having bullet injury on the occipital scull on the right side. On giving the screams, the public persons of the street woke up and he was brought down and gave the call at 100 number. Thereafter, PCR shifted his brother Om Prakash to Sanjay Gandhi Memorial hospital where he was declared brought dead. His statement Ex. PW-2/A was recorded in Sanjay Gandhi Memorial hospital by the police. He has identified the dead body of his brother Om Prakash. He also identified all the accused persons as they were running from the stair case of his house after giving bullet injury to his brother. He also deposed that after inspection by the Crime team, police took away the blood stained clothes as well as blanket and also lifted blood earth control, blood and earth from the spot.
This witness was also cross examined on behalf of accused persons and during cross examination, PW-2 has deposed that he had deposed in juvenile court. During cross examination, certified copy of his statement dated 07.03.2011, recorded before Principal Magistrate, JJB-I, has been shown to the witness and witness admitted that he made the said statement and the said statement was exhibited as Ex.PW-2/DA. During cross examination, this witness has admitted that he has deposed before the juvenile SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 26 of 48 court that he has not seen the assailants. He also deposed to be correct that he had stated in the juvenile court that the assailant had covered their faces with blankets. He also deposed that when crime team came at the spot, by that time, the dead body was already sent to the hospital. During cross examination, this witness has deposed that he had stated in his statement to the police that one man was tying his shoes and it was accused Badal who was tying his shoes laces in the stairs. The said portions of his statement were confronted with his previous statement Ex.PW-2/A where it was not found so recorded.
The overall impact of the testimony of PW-2 Sh. Jagmohan is that he had made the contradictory statement before this court and while making his statement before Juvenile Justice Board. This witness during cross examination has specifically deposed to be correct that while making statement Ex.PW-2/DA, before Juvenile Justice Board, he had stated that he had not seen the assailants and that the assailants had covered their faces with blankets. His statement to the effect that it was accused Badal who was seen by him at the stair cases had also been duly confronted with his previous statement Ex.PW-2/A where it was found not so recorded. This witness before this court while making testimony, had identified the accused persons present at the SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 27 of 48 roof but while making statement Ex.PW-2/DA before Juvenile Justice Board, this witness has specifically deposed that he had not seen the assailants. So the testimony of this witness is neither wholly reliable and in these circumstances, the benefit of doubt ought to be given to the accused persons. Admittedly, this witness is not a witness of occurrence and he reached at the roof after the occurrence and is a witness of circumstantial evidence but this witness had made contradictory statement before this court from that of his statement made before Juvenile Justice Board and therefore, his testimony is not reliable.
19. That, the prosecution has also examined PW-3 Smt. Kamlesh who has deposed that his brother in law Om Prakash used to live with them and used to sleep on the terrace of their house. On 13.06.2010, at about 3:00/3:30 am, there was no light and her husband asked her about disconnection of light. She told her husband that there was light just before and her husband went for urinating, thereafter, she also went for urinating and thereafter, they both went for sleep at the second floor. In the mean time, she heard the sound of fire, they got up and noticed her brother in law in injured condition and also noticed that accused persons fleeing from the floor of their house. She SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 28 of 48 made screams. All the inhabitants of the street got up and made a call at 100 number and her brother in law was shifted to Sanjay Gandhi Memorial Hospital by PCR. She also deposed that they were called three times to identify the accused persons but they refused to join. She further deposed that accused Badal used to reside in the vicinity and accused Vicky used to visit in their house and accused Badal used to consume eatables in their house almost daily. She also deposed that she can not tell in whose hands country made pistol, as it was dark.
During cross examination carried out by ld. Defence counsel for accused persons, this witness was confronted with her statement u/s 161 Cr. PC Ex. PW-3/DA where it was not recorded that accused Badal and Vicky were living in their vicinity. She also deposed that she had not stated to the police that accused Badal used to consume eatables in their house. She also deposed that electricity had gone at about 3:00 am and it was restored at about 3:30 am and it was not moon light. She also deposed that the place where they were sleeping, was surrounded by a wall of about 2½ feet. She also deposed that there was a stair case but she again deposed that there was no stair case where Om Prakash used to sleep. She also deposed that she saw four persons SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 29 of 48 running in the gali from the terrace. She also deposed that on hearing the gun shot, she abused accused Lalit @ Lala that she would see him in the morning as to why he had fired a shot but she had not seen accused Lalit @ Lala on the terrace. She also deposed that she had not named accused Lalit @ Lala before the police and she has also not named accused Lalit in her statement which was recorded before the juvenile court. She was also confronted with statement Ex. PW-3/DA where it was not so recorded that accused Lalit @ Lala was seen by this witness running in the gali.
The overall impact of testimony of this witness is that admittedly, she had not seen the occurrence and she had woken up only on hearing the sound of fire and noticed her brother in law in injured condition and also noticed accused persons fleeing from the floor of their house. She also admitted that there was no electricity in between 3:00 am to 3:30 am and it was not a moon light. The incident as per rukka took place at about 3:00 am. Admittedly, as per the testimony of this witness, at the time of occurrence, there is no electricity and it was also not moonlit night and thus, in these circumstances, it is beyond imagination as to how this witness has been able to see the faces of the offenders when admittedly, there was no electricity and it was not moonlit SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 30 of 48 light. This witness has also been confronted in respect of improvements made by her in respect of accused Lalit. This witness has admittedly, deposed that she can not tell in whose hand country made pistol was made as it was darkness. Thus, in view of the aforesaid discussion, nothing incriminating has been come out in the testimony of PW-3 Kamlesh against the accused persons.
20. That now coming to the testimony of another material witness of the prosecution i.e PW-10 Rakesh, it is observed that this witness has deposed that on 13.06.2010, he along with his wife were sleeping the ground floor and on the second floor, his brother Jagmohan, his wife Kamlesh and his niece Seema was sleeping and on the roof of stair case, his brother Om Prakash was sleeping. At about 3:00 am, he heard a noise of bullet fire and he opened the bolt, he heard scream of Jagmohan, his wife Kamlesh and their daughter Seema. He rushed upstairs and when he was going upstairs, accused Badal faced him in the stair case and was tying laces of his shoes. He went upstairs and found his brother Om Prakash in a pool of blood. He along with his brother Jagmohan, neighbour Suresh brought injured Om Prakash down stairs. He also deposed that he requested accused Badal to assist them in getting the injured down stairs and SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 31 of 48 accused Badal assisted them. One of the neighbour made a call at number 100 and PCR came to the spot and the body of his brother was shifted to Sanjay Gandhi Hospital. He also deposed to have identified the dead body of his brother vide statement Ex. PW-10/A and after postmortem, received the dead body vide receipt Ex. PW-10/B. He also deposed that on 27.08.2010, his brother Jagmohan and his wife came to Rohini Court and when they were standing near the gate, accused persons namely Dalbir, Suraj, Rohtash, Vicky, Lalit and Badal were in police custody and his bhabhi told him that accused Vicky had fired on his brother Om Prakash. During a leading question, put by Ld.Addl. PP for the State, this witness has deposed to be correct that accused Badal slept in their house one day. During cross examination on behalf of Ld. Addl. PP for the State, this witness has deposed that accused Badal, Vicky, Lalit @ Lala, Kuka and Suraj generally used to enjoy get together.
This witness was also cross examined by Ld. Defence counsel for the accused and during cross examination, this witness was confronted statement Ex. PW-10/DA and Ex. PW-10/DB where it was not recorded that it was his bhabhi Kamlesh who told him that Vicky had fired on Om Prakash. He was also confronted with the said statements where the SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 32 of 48 names of the accused persons were no where mentioned. This witness was also confronted with the aforesaid statements where it was nowhere recorded that he had seen accused Badal tying his shoe laces in the stairs or that he had made any such request to accused Badal in taking the dead body down stairs.
The overall impact of testimony of this witness is that admittedly, he had not seen any of the accused persons running away or present at the roof of the house at the time of the incident. This witness has made certain statement which are hearsay and is not admissible in evidence. This witness was also confronted with statements Ex.PW-10/DA and Ex. PW-10/DB where the name of accused Badal or the presence of accused Badal at the place of occurrence or on the stair cases has nowhere been mentioned. The only deposition to the effect that accused Badal, Vicky, Lalit @ Kala, Kuka and Suraj generally used to enjoy get together can not be termed as incriminating evidence against any of the accused persons. The testimony of PW-10 is not helpful to the case of the prosecution in any manner or to connect any of the accused persons with the commission of the offence in question.
SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 33 of 4821. That the prosecution has also relied upon the recovery of weapon of offence at the instance of accused Lalit @ Lala. As per the case of the prosecution, during investigation, accused Lalit @ Lala disclosed that he could get a bag containing weapon of offence recovered from inside a locker lying inside Sanjay Gandhi Memorial Hospital and during investigation, accused Lalit @ Lala led PW-31 HC Munwar Khan, PW-32 IO/Inspector Arun Kumar and other police officials to the said locker inside Sanjay Gandhi Memorial hospital and the lock of the said locker was broken with stone and the said locker was found containing a dark green bag which upon checking found containing three country made pistols, one knife and 18 live cartridges and one fire cartridge.
In this regard, this court is of the considered view that at the time of alleged recovery, the investigation agency has joined independent public witness i.e PW-15 Sh. Sube Singh and PW-15 namely Sh. Sube Singh, he has also not supported the case of the prosecution inasmuch as PW-15 Sh. Sube Singh has deposed that two year back, he was working as security officer at SGM Hospital from Gorkha Security Agency and he was in-charge of 106 security guards. He also deposed that there was locker facility for the guards.
SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 34 of 48He also deposed that accused Lalit was the security guard in said security along with one Deepak. He specifically deposed that in his presence, nothing was recovered from the locker. He also deposed that he was called in PS and was told by the IO that certain arms and ammunitions were recovered from the locker situated in SGM Hospital. He also deposed that he was not aware whether accused Lalit was having any locker facility as he has not given any locker facility to him. During examination, the attention of the witness was drawn to seizure memo Ex. PW-15/A and this witness has deposed that he had been called by SI Dhirender Singh and was asked to sign the said documents being the security incharge and when he refused to sign, he was told by the said SI that he will have to sign the documents, otherwise he would also be implicated in this case.
Since PW-15 Sube Singh has also not supported the case of the prosecution in any manner inasmuch as during cross examination carried out Ld. Defence counsel for the accused, PW-15 Sube Singh has denied to have made statement mark A before the police. This witness has also denied that on 17.06.2010, in his presence, accused Lalit broken the lock of the locker and took out one mehandi SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 35 of 48 colour bag which was found containing three country made pistols, one chhura and some cartridge. He also denied that the said articles were sealed in his presence or that he had signed seizure memo Ex.PW-15/A at the place of said alleged recovery. When the case property was put to this witness, he denied that any such arm and ammunition was recovered from his possession and deposed that the said case property was shown to him only in PS. The overall impact of testimony of this witness is that he has not supported the case of the prosecution in any manner even despite cross examination made by Ld. Addl. PP for the State, this witness has also not supported the case of the prosecution and denied that any recovery was effected from the said locker at the instance of accused Lalit. Rather, this witness has deposed that he was called at PS and was threatened by police and was forced to sign the seizure memo Ex. PW-15/A. So the testimony of PW-15 is not helpful to the case of the prosecution in any manner as this witness has not supported the case of the prosecution and denied the recovery of any such arm and ammunition in his presence from the locker of SGM Hospital at the instance of accused Lalit @ Lala.
SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 36 of 4822. That this court has also to see as to whether the testimony of other witnesses connects the accused persons with the commission of offence charged against them. In this regard, it is observed that PW-4 Wct. Savita is a formal witness who filed PCR form Ex. PW-4/A to the effect that a person has been given bullet injuries. Admittedly, in the information given to the PCR, the name of the assailants has nowhere been mentioned. PW-5 Dr. Rajesh Dalal is a formal witness, who prepared MLC Ex. PW-5/A of Om Prakash. PW-6 Ct. Ravinder is crime team photographer who took photograph Ex. PW-6/A1 to Ex. PW-6/A3 and exhibited the negatives as Ex. PW-6/D. PW-7 HC Ishwar and PW-16 HC Hariom were posted in PCR of outer zone and they deposed that about 2:50 am, an information was received and accordingly, they went to the spot where in flood light, they noticed that some person was taking out a person in injured condition from the roof and they shifted the said injured in SGM hospital in PCR Van and thus is a formal witness. PW- 9 Inspector Sanjay Kumar Gade is crime team in-charge who inspected the place of occurrence and prepared report Ex. PW-9/A. PW-11 HC Ram Kumar who was posted with mobile crime team as Finger Print Expert and made efforts to lift finger print and foot print but no foot print or finger print were found at the spot. PW-12 HC Rajesh is also a SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 37 of 48 formal witness i.e duty officer who recorded FIR Ex. PW- 12/A. It is observed that the aforesaid witnesses are formal witnesses and have not deposed anything incriminating against any of the accused persons.
23. That the remaining witnesses examined by the prosecution i.e SI Sandeep Kumar is also a formal witness who deposed to have collected 11 sealed parcels and three sample seals and deposited the same at FSL on 30.08.2010 vide RC no.108/21/10 Ex. PW-14/A. PW-18 Ct. Mukesh is a special messenger who delivered the copy of FIR to Ld. Area MM and senior police officials. PW-22 Sh. Rajesh Mahajan had brought the summoned record of account of Sh. Bheru Baba and he exhibited the customer detailed as Ex. PW-22/A and also exhibited the statement of account as Ex. PW-22/B and also exhibited the certificate u/s 65-B of Indian Evidence Act as Ex PW-22/C and also exhibited the Account Opening Form, Voter Card and Ration Card as Ex. PW-22/D. The aforesaid witnesses are also formal witnesses and have not deposed anything incriminating against any of the accused persons.
24. That perusal of the testimony of material witnesses of investigation i.e PW-23 SI Praveen, it reveals that he has deposed that in the intervening night of 12/13.06.2010, he SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 38 of 48 was on emergency duty and on receipt of DD no.8A Ex. PW-23/A, he along with Ct. Radhey Shyam (PW-30) went to the place of occurrence and found that injured has already been shifted to SGM Hospital by PCR officials. He went to the said hospital and collected the MLC of deceased Om Prakash, who was declared brought dead. PW-23 returned back to the spot and recorded the statement of Jagmohan (brother of the deceased) Ex.PW-2/A and prepared rukka Ex. PW-23/B and got the FIR registered through Ct. Radhey Shyam and further investigation was assigned to Inspector Virender Singh. In his presence, IO Inspector Virender Singh lifted the exhibits from the spot and seized them vide seizure memo Ex.PW-23/C. In his presence, IO got conducted postmortem on the body of deceased Om Prakash and seized the exhibits handed over in his presence by the concerned doctor vide seizure memo Ex.PW-23/D. PW-23 is a formal witness and has not deposed anything incriminating against any of the accused persons.
25. That the testimony of the IO i.e PW-28 Inspector Virender Singh reveals that he has deposed that on 13.06.2010, after the registration of FIR, the investigation was assigned to him. He called crime team at the spot and crime team incharge prepared report Ex.PW-9/A and crime team SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 39 of 48 photographer took the photograph. He also deposed to have prepared site plan Ex. PW-28/A. He also lifted the exhibits from the spot vide seizure memo Ex. PW-23/C. He also got conducted postmortem on the body of deceased vide his request Ex. PW-28/C and prepared inquest proceedings Ex. PW-28/D. After postmortem, the body of deceased Om Prakash was handed over to his relatives. He also deposed that further investigation was assigned to Inspector Arun Kumar. This witness has also not deposed anything incriminating against the accused persons.
26. That after gone through the testimony of PW-32, ACP Arun Kumar, it reveals that he has deposed that on 13.06.2010, he was posted as SHO PS Sultan Puri and further investigation was entrusted to him. During the course of investigation, on 17.06.2010, after receiving the information from the secret informer, he effected the arrest of accused Vijay @ Vicky vide arrest memo Ex. PW-24/A and recorded his disclosure statement Ex. PW-24/C. Thereafter, they went to Sanjay Gandhi Hospital and at the instance of accused Vijay @ Vicky, they apprehended accused Lalit @ Lala and effected the arrest of accused Lalit @ Lala vide arrest memo Ex.PW- 20/A and recorded his disclosure statement Ex.PW-20/C. Pursuant to disclosure statement, accused Lalit @ Lala led SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 40 of 48 them to old building locus of Sanjay Gandhi Hospital, security In-charge Sube Singh (PW-15) was called up to join investigation and the locker was broken in the presence of Sube Singh and from the search of locker, three county made pistols, one chura and 18 live cartridge were recovered. PW-32 prepared their sketches and seized the same after sealing vide seizure memos Ex. PW-15/A.
27. It is worth mentioning that PW-15 namely Sube Singh was made the witness of the recovery of the weapon from the lockers at the instance of accused Lalit @ Lala but this witness has also not supported the case of the prosecution and has deposed that he had signed the seizure memo Ex.PW-15/A at PS and no recovery was effected in the manner as deposed by the recovery police officials. Since the only material public witness i.e PW-15 has not supported the case of the prosecution in any manner, the recovery of said arm and ammunition at the instance of the accused Lalit @ Lala is doubtful and the benefit of doubt ought to be given to the accused Lalit @ Lala.
28. That the testimony of PW-32 IO/Inspector Arun Kumar further reveals that during the course of investigation, he arrested Deepak since JCL vide arrest memo Ex. PW-24/L SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 41 of 48 and from his possession, one mobile phone was recovered which was seized vide seizure memo Ex.PW-24/M-7. On the same day, they effected the arrest of accused Dalbir @ Kuka vide arrest memo Ex.PW-24/M and two mobile phone were recovered from his possession seized vide seizure memo Ex. PW-24/M-6. On 19.06.2010, he had also effected the arrest of accused Badal @ Behru vide arrest memo Ex.PW-24/N and recorded his disclosure statement Ex. PW- 24/N-2 and also recorded his subsequent statement Ex. PW- 31/A. During the course of investigation, accused Badal @ Behru got recovered one blood stained bed sheet of white colour from the garbage of back wall of mortuary of SGM Hospital and disclosed that the said bed sheet was used at the time of incident which was seized after sealing vide seizure memo Ex. PW-20/D. During investigation, on the intervening night of 2/3.08.2010, he also effected the arrest of accused Suraj @ Chhotu vide memo Ex. PW-24/O and recorded his disclosure statement Ex. PW-24/O-2. On 27.08.2010, he also effected the arrest of accused Rohtash vide memo Ex PW-24/P and recorded his disclosure statement Ex. PW-24/P-2. During investigation, all the accused persons were tendered for judicial TIP but they refused to participate in judicial TIP. PW-32 also sent the exhibits to FSL and collected FSL report Ex. PW-27/A and SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 42 of 48 Ex. PW-27/B and also obtained ballastic report and sanction u/s 39 Arms Act. Admittedly, during investigation, no public witnesses have been joined at the time of arrest and recording of disclosure statement of accused persons except PW-15 Sube Singh but PW-15 has not supported the case of the prosecution in any manner.
29. That this court has also to consider as to whether there is any other incriminating evidence to connect the accused persons with the commission of offence and this court has observed that during trial, prosecution has also examined PW-29 Sh. Shamshuddin but this witness has not seen the occurrence. He only deposed that at about 2/3:00 am, while he was sleeping his house, he heard the noise of dhamaka that is sound of fire and went to the house of Jagmohan where the family members were crying by saying that "kinhi Hatyaro Ne Goli Maar Di" and he made a call at number 100 from his mobile phone. Had the family members seen the assailants then certainly, they would have disclosed the name of the assailants to PW-29 Shamshuddin but they were only saying that "kinhi Hatyaro Ne Goli Maar Di". Therefore, admittedly, none of the witness has seen any of the assailants present at the spot or running away and therefore, there is no incriminating evidence as come on SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 43 of 48 record from the testimony of PW-29 against any of the accused persons.
30. That during the course of trial, the prosecution has also examined PW-17 Israr Babu, who had exhibited the CDR Ex. PW-17/A in respect of mobile number 9582728821 and as per CAF, the said mobile was issued to Sanjay Pawar. The prosecution has also examined PW-19 Sh. Chander Shekhar, who had produced the CDR Ex. PW-19/A in respect of mobile number 9996099635. As per the CAF the said number was issued to one Sh. Jai Bhagwan. Admittedly, none of the accused persons are the customers in respect of the aforesaid mobile phones and thus, the prosecution has not been able to prove the electronic evidence against any of the accused persons.
31. That the prosecution has also examined Manoj Dhingra who had conducted the postmortem on the body of the deceased Om Prakash and exhibited the said report as Ex. PW-13/A. This witness has also handed over one bullet taken out from the body of deceased during postmortem to IO. The prosecution has also examined PW-26 Sh. Puneet Puri, who had prepared ballastic report Ex. PW-25/A and has deposed that the bullet Mark EB-1 was corresponding to the bullet of SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 44 of 48 8 mm and has been discharged through the country made pistol Mark Ex. F-2 as the individual characteristics of striations present on Ex. EB-1 and on test fire bullets marked TB-3 and TB-4 were found identical when examined under the comparison microscope. Though, the prosecution has been able to establish that country made pistol Mark Ex. F-2 was used in the commission of offence as the bullet Mark EB-1 was fired through the said country made pistol. PW-15 namely Sube Singh is the very material witness for the purpose of the prosecution to prove that the recovery of the country made pistols were affected from the locker of SGM Hospital of accused Lalit @ Lala. But PW-15 has deposed that the services of the accused Lalit @ Lala were terminated 15 days prior to the incident and if his services had been terminated, then the question does not arrive to keep a locker in the name of accused Lalit @ Lala. Since the prosecution has not been able to establish that the said arm was recovered at the instance of accused Lalit @ Lala as PW-15 Sube Singh has not supported the case of the prosecution, the benefit of doubt ought to be given to the accused persons.
32. That the case of the prosecution is based upon circumstantial evidences and the prosecution was required SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 45 of 48 to cogently and firmly establish all the relevant factors so as to unerringly pointing towards the guilt of the accused persons and the chain of circumstantial evidences alleged by the prosecution should be so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and that such evidence was consistence with the guilt of accused and also inconsistent with his innocence. Perusal of the testimony of the other prosecution witnesses also does not inspire any confidence and is not sufficient to establish the complete chain of circumstances to prove that any of the accused was involved in the commission of offence. That the argument of ld. Addl. PP for the State that all the accused persons did not take part in TIP proceedings inasmuch as they were actively involved in the commission of offence and an adverse inference can be drawn for refusal of the TIP. This argument of Ld. Addl. PP for the State is immaterial and unsustainable in the eyes of law inasmuch as in the cross examination PW-2 Jagmohan has admitted that "he had gone to the police station twice after the incident. Police had informed me about the arrest of the accused persons and he was called to the PS and the accused persons were shown to him by the police in the PS". If all the accused persons were shown to PW-2 Jagmohan SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 46 of 48 (brother of the deceased) prior to the TIP proceedings, then there is no purpose to take part by all the accused persons in TIP proceedings and therefore, no adverse inference can be drawn against any of the accused persons for refusal of TIP proceedings.
33. That, in view of the above stated, this court is of the considered view that the prosecution has not been able to establish and to prove all the relevant factors of circumstantial evidence consistent only with the hypothesis of the guilt of the accused nor the chain of circumstantial evidence as relied upon by the prosecution is so complete so as to establish and to prove that it was only the accused persons and none else who committed the alleged offence. In view of the aforesaid discussion, this court is also of the considered view that the prosecution has not been able to prove that the accused persons have entered into a criminal conspiracy or pursuant to criminal conspiracy committed the murder of deceased Om Prakash or that the accused persons pursuant to criminal conspiracy committed criminal trespass by night by entering into the building of complainant Jagmohan and voluntarily caused the death of his brother namely Om Prakash and in view of the reasons mentioned above, the prosecution has not been able to prove that SC No.57517/16 State Vs. Badal @ Behru & Ors. Page No. 47 of 48 accused Lalit @ Lala got recovered country made pistols, cartridges and chhura or used the same in the commission of offence. Accordingly, accused persons namely Badal @ Behru, Dalbir @ Kuka @ Yashwant @ Master, Suraj @ Chhotu, Rohtash, Vicky @ Vijay and Lalit @ Lala are hereby acquitted for the offence punishable u/s 120-B IPC under Section 302 read with Section 120B IPC, u/s 460 read with Section 120B IPC and accused Lalit @ Lala is also hereby acquitted for offence punishable u/s 25/27 Arms Act.
34. That the bail bonds furnished during trial and at the stage of the bail, are hereby stands canceled. The sureties of all the accused persons stand discharged. However, the bail bonds furnished by all the accused persons under Section 437A Cr.P.C. shall remain effective for a period of six months from the date of this judgment.
35. File be consigned to Record Room.
Announced in the open court
on 29.01.2024 (Satish Kumar)
Addl. Sessions Judge-03,
North District, Rohini Courts,
Delhi.
SC No.57517/16
State Vs. Badal @ Behru & Ors. Page No. 48 of 48