Delhi District Court
State vs . Ravi & Ors. on 3 February, 2016
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI
ADDL. SESSIONS JUDGE02 : SOUTH EAST
SAKET COURT : NEW DELHI
IN RE: ID No. 02406R0088562011
SC No.47/14
FIR No.351/10
State Vs. Ravi & Ors.
PS: Sarita Vihar
STATE VS. 1. Ravi
S/o Deshvir Singh
R/o H. No.F566, Bhim Colony,
Aali Vihar, New Delhi.
2. Kamlesh
W/o Sh. Bhim Singh
R/o H. No.F566, Bhim Colony,
Aali Vihar, New Delhi.
3. Ravinder Singh
S/o Charan Singh
R/o D84, Aali Vihar,
New Delhi.
(Facing trial)
4. Davender @ Tape
S/o Prem Chand
R/o E807, Dharam Pal Colony,
Aali Vihar, New Delhi
(Proclaimed offender)
SC No. 47/14 Pg. 1 of 48
5. Lokesh
S/o Deshveer Singh
R/o H. No.566, Bhim Colony,
Aali Vihar, New Delhi
(He was declared P.O vide order
dated 07.01.12.)
6. Rahul Yadav @ Pradhan
S/o Shri Om Prakash Yadav
R/o Garhi Kalenjiri PS Chandi
Nagar, District Bagpat, U.P.
(Juvenile)
__________________________________________________________
Date of Institution : 06.06.2011
Date of transfer of the case
to this court : 30.08.2014
Date of arguments : 29.01.2016
Date of judgment : 03.02.2016
JUDGMENT
1. As per case of prosecution, on 24.12.10 at about 9:40 PM, HC Brij Raj Singh, duty officer (PW31) received information from control room, which was regarding shouting of a person in the Aali Gaon, jungle Area of U.P. Government Irrigation Department, behind Metro Workshop. The said information was recorded vide DD No.38A. The said DD was handed over to SI Satish Chander Singh for necessary action, who SC No. 47/14 Pg. 2 of 48 left for the spot with HC Kartar. SI Parvesh Kasana, SI Virender Pakhre, HC Samay Singh, Ct. Kamal and Ct. Satish were also asked to go to the spot.
2. PW31 HC Brij Raj Singh informed about the aforesaid information i.e. DD No.38A to Inspector K.L. Yadav (PW28), the then SHO of Police Station Sarita Vihar. On receipt of the said information, PW28 Inspector K.L. Yadav reached at the spot, where he was informed that one Bhim Singh Nagar was shot and his son and servant had taken him to Apollo Hospital. He found at the spot two shoes, one loi (woolen shawl), one empty cartridge of 315 bore. He also found one magazine of a pistol and a barrel of a country made katta. In the barrel of katta, one cartridge was stuck in. Two more empty cartridges of pistol, two pieces of led of bullet, one screw driver and one motorcycle make Hero Honda Red Colour bearing No.DL9SX4103 was also found lying at the spot. The blood stains were also noticed at the spot. Pubic witness Pradeep Mishra met at the spot whose statement Ex. PW5/A was recorded by SI Virender Pakhre (PW25). SI Virender Pakhre alongwith Ct. Satish went to Apollo Hospital and collected MLC of Bhim Singh Nagar, who was reported as brought dead. PW25 SI Virender Pakhre made endorsement Ex. PW25/A on the statement of Pradeep Mishra SC No. 47/14 Pg. 3 of 48 Ex. PW5/A and gave the same to Ct. Satish for registration of FIR. Ct. Satish went to the Police Station, got the FIR registered in the case and thereafter, came back to the spot and handed over the copy of FIR and asal tehrir to Inspector K.L. Yadav, IO as further investigation was handed over to him.
3. Inspector K.L. Yadav (PW28) prepared site plan Ex. PW28/A at the instance of Pradeep Mishra (PW5). He prepared sketches of cartridges and magazine Ex. PW25/D, sketch of barrel Ex. PW25/B and sketch of screw driver Ex. PW25/C. He also seized various incriminating articles/material found at the spot vide seizure memo Ex. PW25/I to Ex. PW25/K respectively. Crime Team was called and spot of occurrence was inspected by them. The photographer took photographs of the scene of crime.
4. Matter was investigated as per law. On conclusion of investigation, the investigating officer filed challan in the court. Accused Rahul @ Pradhan was found to be juvenile, therefore, he was produced before Juvenile Justice Board for trial in accordance with law. Accused Lokesh, Ravinder and Devender @ Tape are proclaimed offenders (P.O.) in the case. On production of accused Ravi and Kamlesh, they were supplied copy of charge sheet and complete set of documents and thus, compliance of SC No. 47/14 Pg. 4 of 48 section 207 of The Code of Criminal Procedure, 1973 ( in short "Cr.P.C." ) was made.
5. As the offence u/s 302 of The Indian Penal Code (in short "IPC") is exclusively triable by the Court of Sessions, therefore, the matter was committed to the Court of Sessions for trial in accordance with law.
6. Prima facie, sufficient material was found to frame charge for offence u/s 302/120B IPC against accused Ravi and Kamlesh. Additionally, material was also found to frame charge for offence u/s 25/27 of The Arms Act against accused Ravi. Therefore, charge for the said offences was framed against accused persons, to which they pleaded not guilty and claimed trial.
7. In order to prove its case, prosecution has examined as many as 43 witnesses in all. The details of which are given as under:
(a) PW1 Retd. ASI Guru Charan Singh, the duty officer, is formal witness of the prosecution. He registered FIR No. 351/10 u/s 302/34 IPC and section 25 and 27 of The Arms Act Ex. PW1/A Police Station Sarita Vihar on the basis of DD No.3A. He made endorsement Ex. PW1/B on the tehrir and after registration of FIR and endorsement, handed over copy SC No. 47/14 Pg. 5 of 48 of FIR and original tehrir to Ct. Satish, to hand over the same to Inspector K.L. Yadav for further investigation.
(b) PW2 HC Samay Singh is formal witness of the prosecution.
He deposed that on 01.03.11, he collected 12 sealed parcels alongwith three sample seals from MHC (M) vide RC No. 24/21/11 and 25/21/11 and went to FSL, Rohini and deposited the same there. As per the witness, the case property was not tampered with till the same remained in his possession.
(c) PW3 Ct. Satish Kumar, the beat constable, is also formal witness of the prosecution. This is the witness through whom SI Virender Pakhre got the FIR registered in the case.
(d) PW4 Ct. Parveen is also a formal witness of the prosecution.
He took the copies of FIR from duty officer, Police Station Sarita Vihar and delivered the same to senior officers of the police and the Ilaka Metropolitan Magistrate.
(e) PW5 Pradeep Mishra is an eye witness of the incident. He gave his statement Ex. PW5/A to the police and on the basis of his statement, FIR in the case was registered.
(f) PW6 ASI Umrao Singh, joined investigation in the case with Inspector K.L. Yadav. He alongwith SI Parvesh Kasana and HC Ram Kumar went to AIIMS Hospital, where after the postmortem of Bhim Singh Nagar, the concerned doctor had SC No. 47/14 Pg. 6 of 48 handed over to him two sealed parcels with the seal of the Hospital, one related to blood in gauge and other was bullet, which was removed from the body of deceased and kept in a small plastic bottle and the sample seal.
(g) PW7 Ct. Girdhar Singh is formal witness of the prosecution.
He alongwith Incharge of Mobile Crime Team, SI Naresh Kumar reached at the spot, where on the instructions of the IO, he took 13 photographs of the spot from different angles. The photographs and their negatives are Ex. PW7/A1 to Ex. PW7/A13 and Ex. PW7/B(colly) respectively.
(h) PW8 HC Kamal Singh joined the investigation with Inspector K.L. Yadav and lady Ct. Sudesh on 15.03.11. He alongwith the IO and lady Ct. Sudesh went to house No. F566, Bhim Colony, Aali Vihar, where accused Kamlesh was arrested vide arrest memo Ex. PW8/A. Personal search of accused Kamlesh was conducted vide memo Ex. PW8/B. Disclosure statement Ex. PW8/C of accused Kamlesh was also recorded.
(i) PW9 Lady Ct. Sudesh is also a formal witness of the prosecution. On 15.03.11, she joined the investigation with IO and HC Kamal Singh (PW8). On the instructions of the IO, she had conducted personal search of accused Kamlesh.
(j) PW10 Rajesh is son of deceased Bhim Singh Nagar. As per SC No. 47/14 Pg. 7 of 48 this witness, his father Bhim Singh Nagar before his death had made dying declaration to him, wherein he had told the names of the persons, who had fired upon him. He alongwith Moharram Ali @ Chhotu (PW11) had taken deceased Bhim Singh Nagar on motorcycle to the hospital, where he was declared brought dead.
(k) PW11 Moharram Ali @ Chhotu is also a material witness of the prosecution, who claims to have seen the accused persons before and after the incident.
(l) PW12 Rocky is an independent witness of the prosecution, who turned hostile during his deposition and despite lengthy cross examination by learned Additional PP for State, has not supported the prosecution case.
(m)PW13 Prashant Kumar Chhawri is known to accused Ravi and Lokesh. This witness also did not support the prosecution case and therefore, he was declared hostile by the prosecution. Despite his cross examination by learned Additional PP for State, he has not supported the prosecution story.
(n) PW14 HC Satya Bramba is a formal witness of the prosecution. He brought the FIR No.101/10 u/s 379 IPC registered at Police Station Maurice Nagar. Copy of said FIR is Ex. PW14/A. SC No. 47/14 Pg. 8 of 48
(o) PW15 SI Satish Chandra is a formal witness of the prosecution. On 25.12.10, the doctors of Apollo Hospital had handed over one cloth pullanda containing the clothes of deceased Bhim Singh Nagar and one pullanda containing blood sample of deceased in sealed condition with the sample seals to him. The personal search articles of deceased was also handed over to him. Both the pullandas with the sample seal was seized by IO Inspector K.L. Yadav vide seizure memo Ex. PW15/A. The personal articles of deceased was seized vide memo Ex. PW15/B.
(p) PW16 Inspector Naresh Kumar, Incharge, Mobile Crime Team, on 24.12.10 at about 10 PM, on receipt of information from control room regarding shooting incident at land opposite Bhim Colony, Aali Vihar went to the spot alongwith HC Bhagwan Singh, proficient and Ct. Girdhar, photographer. He inspected the scene of crime and thereafter, prepared his report which is Ex. PW16/A.
(q) PW SI Jai Karan Singh, Senior Sub Inspector, Police Station, Sector39, Noida, Gautam Budh Nagar, on the asking of Inspector K.L. Yadav (IO of this case) had handed over one Bajaj Motorcycle bearing No. DL5ST5105 to him.
(r) PW18 HC Rajbir Singh is a formal witness of the prosecution.
SC No. 47/14 Pg. 9 of 48 He brought the original FIR No.128/10 of Police Station Jamia Nagar. Copy of said FIR is Ex. PW18/A.
(s) PW19 Sh. R.K. Sharma is complainant in case FIR no.
101/10 of PS Maurice Nagar. He got the said FIR registered, when his vehicle i.e. motorcycle bearing no. DL5ST5105 make Bajaj model CT 100 was not found in the parking of Arts Faculty of Delhi University on 03.12.2010, where he had parked. On 28.12.2010, he was informed regarding recovery of the said motorcycle. He got his motorcycle released on superdari by the order of the court.
(t) PW20 Hanok Nathaniel is an independent public witness, who on receipt of information regarding the alleged incident went to the spot. He made call to the police at 100 number. (u) PW21 Dr. Apoorva Sharma proved MLC No. 598/2010 Ex PW21/A pertaining to Sh. Bhim Singh Nagar.
(v) PW22 Yograj Singh is formal witness of the prosecution. On 25.12.2010, he identified the dead body of his brother in law Sh. Bhim Singh Nagar at Apollo hospital, Delhi. He proved his statement Ex PW22/A given to the police.
(w) PW23 lady Ct. Geeta is a formal witness of the prosecution.
In the intervening night of 24/25.12.2010, while posted at Control Room, PCR, she received information that one person SC No. 47/14 Pg. 10 of 48 has been shot in Aali Gaon, near Metro workshop. She recorded the said information in the PCR form which is Ex PW23/A.
(x) PW24 Insp. Mahesh Kumar, draftsman, Crime Branch, PHQ, on 21.02.2011, on request of Insp. K.L. Yadav (IO) visited the place of occurrence, where he took rough notes and measurements of the spot at the instance of IO and public person Pradeep Mishra. On 07.03.2011, he prepared scaled site plan Ex PW24/A. (y) PW25 SI Virender Pakhre, on 24.12.2010, on receipt of information about an incident of firing in the jungle of Aali Vihar went to the jungle. He found three used cartridges, one live cartridge, two led, one loi (woolen shawl), one screw driver, one motorcycle make Hero Honda CD Delux, barrel of one country made pistol in which one live cartridge was stuck and blood lying at the spot. He recorded statement Ex PW5/A of Pradeep Mishra and made endorsement Ex PW25/A on his statement and thereafter, got the FIR registered in the case. He joined the investigation in the matter on various occasions alongwith IO / Insp. K.L. Yadav.
(z) PW26 Hari Raj Singh is the registered user of mobile phone no.9717216240. As per this witness, he had got arranged a sim SC No. 47/14 Pg. 11 of 48 connection of the said mobile phone which was being used by his brother in law Ravinder.
(aa) PW27 SI Parvesh Kasana, joined the investigation in the case on various dates and at different places with the IO Insp. K.L. Yadav.
(ab) PW28 Insp. K.L. Yadav is the IO of the case, who conducted various stages of investigation in the matter, seized incriminating articles and documents, apprehended the accused persons, and after completion of investigation, filed charge sheet in the court.
(ac) PW29 HC Vijay Tawatia is a formal witness of the prosecution. He was posted as MHC(M) at Police Station Sarita Vihar at the relevant time. IO deposited various articles with the MHC(M) at the PS on different dates. He deposited the said articles in the malkhana and made entries Ex PW29/A to Ex PW29/H respectively in Register no.19. (ad) PW30 SI Naresh, the record keeper brought the summoned record of file containing the complaints of Smt. Kamlesh and Sh. Bhim Singh Nagar. Complaints of Smt. Kamlesh and correspondence made thereon are Ex PW30/A1 to Ex PW30/A42 and Ex PW30/B1 to Ex PW30/B35. The complaints of Bhim Singh on which enquiry was conducted by SC No. 47/14 Pg. 12 of 48 the PG Cell of South East District are Ex PW30/C to Ex PW30/C7 and complaint of Bhim Singh Nagar against SI Adesh are Ex PW30/D1 to Ex PW30/D4. Copy of FIR no. 128/10 is Ex PW30/E. (ae) PW31 HC Brij Raj Singh, the duty officer is formal witness of the prosecution. On 24.12.2010, he was posted as duty officer at Police Station Sarita Vihar from 4.00 pm to 12.00 mid night. At about 9.40 pm, he received information regarding shooting of a person in the Aali Gaon jungle area, near Metro workshop. He recorded the said information vide DD no.38/A. At about 10.15 pm, he received another information from control room regarding admission of Bhim Singh Nagar in Apollo hospital. He recorded this information vide DD no.39A Ex PW28/N. (af) PW32 SI Rajender Dagar is the witness, who joined investigation in the matter with IO Insp. K.L. Yadav and other police officials on different dates and at different places. (ag) PW33 Insp. Vijay Kumar applied for sanction u/s 39 of The Arms Act against accused Ravi. He proved the Sanction Order Ex PW33/A given by the competent authority. (ah) PW34 Ms. Sunita Suman Gupta, Senior Scientific Officer, Biology, FSL, Rohini examined the exhibits for serological SC No. 47/14 Pg. 13 of 48 examination. After examination of exhibits, she prepared detailed report of serological examination which is Ex PW34/B. (ai) PW35 Ct. Satish, an official of UP police posted at Sector39, Noida on the relevant date i.e. in the night of 24/25.12.2010, on receipt of information through PCR that mirror of the car of one complainant Rajbir Singh broken by two boys, reached at the spot. He met Rajbir Singh Chauhan at the spot. He removed the motorcycle found at the spot and parked the same in Police Station Sector39, Noida, U.P. (aj) PW36 Ct. Satender Kumar, is formal witness of the prosecution, who in the night of 24/25.12.2010 was posted at PCR in the area of Police Station Sector39, Noida. He, on receipt of information from Control Room regarding incident of robbery with one Rajbir Singh Chauhan at near Chhalera village, went to the spot, where he met the complainant Rajbir Singh Chauhan. He provided details of call record of the said incident Ex PW28/L to the IO of this case.
(ak) PW37 Pawan Singh, Nodal Officer, Idea Cellular Ltd.
brought the record of mobile phone no. 9540200403, which was in the name of Urmila Devi. He produced the Customer Application Form Ex PW37/A, proof of ID i.e. election ID of SC No. 47/14 Pg. 14 of 48 applicant Ex PW37/B. He stated that call details of the above mobile phone number from 20.12.2010 to 25.12.2010 Ex PW37/C was provided to police as per email dt. 25.12.2010 Mark 37/X. He proved the call ID chart of the said mobile which is Ex PW37/D. He also proved the Certificate Ex PW37/E given u/s 65 B of The Indian Evidence Act. (al) PW38 Ajay Kumar, Nodal Officer, Bharti Airtel Ltd.
brought summoned record pertaining to mobile no. 9971849226 in the name of Hari Raj Singh. He proved Customer Application Form Ex PW38/A and proof of ID i.e. election ID of applicant Ex PW38/B. He could not verify the data of document Mark 28/X1 i.e. call details of mobile no. 9971849226.
(am) PW39 Dr. Asit Kumar Sikary proved the postmortem report no.1329/10 of Bhim Singh Nagar Ex PW39/A which was conducted by Dr. Ashish Jain on 25.12.2010.
(an) PW40 Ms. Meghna Yadav, proved Sanction Order Ex PW33/A given u/s 39 of The Arms Act for prosecution of accused Ravi.
(ao) PW41 Rajbir Singh Chauhan is the witness, who had made call at 100 number regarding the incident of robbery and hitting of his vehicle i.e. Swift car bearing No.HR 517199 by SC No. 47/14 Pg. 15 of 48 a motorcycle. This witness completely turned hostile and has not supported the prosecution case.
(ap) PW42 Sh. V.R. Anand is a ballistic expert, who examined the exhibits of the case and after examination, gave his detailed report which is Ex PW42/A and;
(aq) PW43 Ct. Manish, an official of Delhi Police, who at the relevant time was posted in the office of ACP, Sarita Vihar. On 25.12.2010, he sent mail to service providers i.e. Aircel, Airtel, Idea and Tata for seeking details of mobile phone nos. as mentioned in the print of the mail Ex PW43/A. He received the requisite information from the service providers through mail. He produced the call details of the mobile phone numbers Ex PW43/D.
8. After conclusion of prosecution evidence, statement of accused Ravi and Kamlesh u/s 313 Cr.P.C. was recorded, in which all the incriminating circumstances / material was put to them, to which they claimed innocence and alleged false implication.
9. Both the accused denied to lead evidence in their defence, therefore, the defence evidence was closed.
10. I have heard and considered the submissions advanced by Sh. M. Zafar Khan, learned Addl. PP for State, Sh. A.K. Singh, learned advocate for complainant and Sh. L.K. Verma, learned SC No. 47/14 Pg. 16 of 48 counsel for both accused and carefully perused the entire material on record including the testimony of prosecution witnesses and the documents proved by them during their deposition. I have also gone through the written submissions filed on behalf of both the parties and the judgments relied upon by learned counsel for parties.
Reliability of the testimony of eye witness Shri Pradeep Mishra (PW5)
11. PW5 Shri Pradeep Mishra claims to be an eye witness of the incident. He deposed that on 24.12.10 at about 9:15 PM, he alongwith his chacha Bhim Singh Nagar was going towards Aali Gaon i.e. House No. 167, Aali Vihar, New Delhi on a motorcycle bearing No.DL9SX4103 via Aali Vihar, Peer Baba and PAC Camp. He stated that when they reached at in the agricultural field and crossed the half way, suddenly, he noticed that four persons came on two motorcycles from behind. According to PW5, Shri Pradeep Mishra, the first motorcycle hit their motorcycle on the back and the second motorcycle stopped in front of them blocking their way. As a result of impact of the hit, he lost balance and they fell alongwith the motorcycle. Bhim Singh Nagar got up and while getting up, PW5 Pradeep Mishra saw that Ravinder and Lokesh were on the motorcycle which was behind them and had hit their motorcycle. On the other SC No. 47/14 Pg. 17 of 48 motorcycle, which was stopped in front of their motorcycle, he recognized accused Ravi and said that he could recognize the other boy, if shown to him. The witness could not tell the name of the boy, who had shot gun at him but as per this witness, the gun did not fire. Therefore, finding opportunity, he ran and crossed a wall which was by the side of the spot and saw that Bhim Singh Nagar was running and behind him, Lokesh, Ravinder and Ravi alongwith the fourth boy were chasing him. He further deposed that Ravi was continuously firing at Bhim Singh. Shri Pradeep Mishra (PW5) identified accused Ravi in the court as the person who had fired at Bhim Singh Nagar.
12. PW5 Shri Pradeep Mishra further deposed that he immediately rang up Rajesh son of Bhim Singh Nagar through his mobile phone and informed him about the incident and also told him the names of the persons, who were involved in the attack on Bhim Singh Nagar. He further deposed that after firing at Bhim Singh Nagar, all four of them ran towards PAC Camp. He reached to Bhim Singh Nagar and in the meantime, Rajesh (PW10) and Chhotu (PW11) also reached there. As per the witness, he had informed Chhotu also from his mobile phone after informing Rajesh. He further deposed that Bhim Singh Nagar was lying in injured condition and was 'chat pata raha tha'. Thereafter, Bhim SC No. 47/14 Pg. 18 of 48 Singh Nagar was taken to the hospital by Rajesh and Chhotu and he remained at the spot. The police reached at the spot and recorded his statement Ex. PW5/A and on the basis of the same, FIR in the case was registered. PW5 Shri Pradeep Mishra has further deposed that accused Ravi was driving the motorcycle, while the other boy was sitting on the pillion seat. He stated that he had pointed out the place of incident to the police on the first day itself.
13. PW5 Shri Pradeep Mishra was cross examined at length by learned counsel for accused Ravi and Kamlesh. In his cross examination, PW5 Shri Pradeep Mishra admitted that the incident had taken place in the winter season i.e. on 24.12.10 and it was cold on that day. He further admitted that it was dark at about 9:15 PM and there was fog also.
14. PW5 Shri Pradeep Mishra has made sufficient improvements in his deposition when recorded in the court from his earlier statement given to the police. In his earlier statement given to the police Ex. PW5/A, PW5 Shri Pradeep Mishra had not named any of the assailants, who attacked upon Shri Bhim Singh Nagar and who participated in the commission of offence in the case. A bare look at the statement Ex. PW5/A of complainant Shri Pradeep Mishra shows that it has been signed SC No. 47/14 Pg. 19 of 48 by him and his statement has also been attested by SI Virender Pakhre (PW25). Shri Pradeep Mishra admitted in his cross examination that IO had read over the statement to him and it was the same statement which he had made before the IO and only after hearing the same, he signed it. He admitted that in his statement Ex. PW5/A, the name of accused Ravi was not mentioned. Shri Pradeep Mishra further admitted that he knew accused Ravi ever since he got employment with Bhim Singh Nagar. Ravi lived nearby the house where he used to reside. He further admitted that he was on talking terms with accused Ravi. He also admitted that he knew family members of accused including his mother, sister and brother Lokesh. This court fails to understand as to why PW5 Shri Pradeep Mishra did not name accused Ravi in his statement Ex. PW5/A when given to police despite the fact that he knew accused Ravi from the date of his employment with Shri Bhim Singh Nagar.
15. PW5 Pradeep Mishra in his cross examination stated that he had given the names of accused Ravi, Lokesh, Ravinder and another person to the police in his complaint. The witness was confronted with his statement Ex. PW5/DA, where the name of the accused persons was not found to be mentioned. PW5 Shri Pradeep Mishra claims to have seen the occurrence from behind SC No. 47/14 Pg. 20 of 48 the wall. The site plan Ex. PW28/A was prepared by Inspector K.L. Yadav (PW28) at the instance of PW5 Shri Pradeep Mishra. In the site plan Ex. PW28/A, it has not been shown at to from where Shri Pradeep Mishra had allegedly seen the occurrence. The site plan has also not been signed by Shri Pradeep Mishra.
16. PW25 SI Virender Pakhre had recorded the statement of complainant Shri Pradeep Mishra Ex. PW5/A. In his cross examination, SI Virender Pakhre deposed that he had read over the statement of Shri Pradeep Mishra to him and Shri Pradeep Mishra had signed his statement after finding it correctly recorded by him. He stated that at that time, Shri Pradeep Mishra did not disclose the name of any assailants or the persons, who committed the crime. He further stated that Shri Pradeep Mishra had not made any complaint against him nor he faced any inquiry on the complaint of Shri Pradeep Mishra alleging that his statement was wrongly recorded by him. Thus, from the testimony of SI Virender Pakhre (PW25), it becomes amply clear that whatever statement was given by Shri Pradeep Mishra (PW5), the same was correctly recorded by him.
17. PW25 SI Virender Pakhre recorded the statement of complainant Shri Pradeep Mishra (PW5) in the course of usual SC No. 47/14 Pg. 21 of 48 discharge of his duties. He does not have any grudge or ill will either with the complainant or the family members of deceased nor have any affinity with the accused persons. Therefore, there is no reason as to why he will record wrong statement of complainant. Complainant has failed to bring any previous animosity with SI Virender Pakhre (PW25) or the IO of the case (PW28) Inspector K.L. Yadav. Thus, no merit is found in the allegation of complainant that his statement was not correctly recorded by the IO as allegedly stated by him.
18. The factum of knowing the name of assailants/accused persons by Shri Pradeep Mishra (PW5) is belied from the testimony of PW10 Shri Rajesh. As per the testimony of PW5 Shri Pradeep Mishra, accused Ravi was continuously firing at Bhim Singh. He immediately ranged up Rajesh (PW10) s/o Bhim Singh through his mobile phone and informed him about the incident and also told him the names of the persons, who were involved in the attack on Bhim Singh. On the other hand, PW10 Shri Rajesh deposed that on 24.12.10 at about 9:20 to 9:21, he received a call on his mobile phone from his servant Pradeep Mishra (PW5) and he informed him that Bhim Singh Nagar was surrounded by some bad elements in the fields and that he was pulled by them on the path in the fields. Thus, it is seen from the SC No. 47/14 Pg. 22 of 48 testimony of PW10 Shri Rajesh that names of assailants were not informed to him by PW5 Shri Pradeep Mishra. The testimony of Shri Pradeep Mishra (PW5) is found to be false to the extent that he had told the name of the accused persons to PW10 Shri Rajesh, who attacked upon Shri Bhim Singh.
19. PW11 Moharram Ali @ Chhotu also claims to have received a call from Shri Pradeep Mishra (PW5) at about 9:25 PM on his mobile phone and he was asked to reach immediately in the field near Peer Baba Mazar, PAC Camp as Ravi, Lokesh, Ravinder and one more boy attacked upon Choudhary Bhim Singh Nagar. Another public witness PW20 Hanok Nathaniel has deposed that on 24.12.10 at about 9:15 9:30 pm, he was present at outside his room, Chhotu (PW11) came and was shouting that some miscreants had surrounded Chacha (Bhim Singh) in the forest. He further deposed that he immediately ran towards the direction to which Chhotu was pointing i.e. towards the Mazar of Peer Baba. PW11 despite allegedly knowing the name of assailants was shouting that some miscreants had surrounded Chacha. Had PW11 Moharram @ Chhotu been in the knowledge of name of assailants, he would have told and shouted that those were the persons, who had surrounded Chacha and not stated that Bhim Singh was surrounded by some miscreants.
SC No. 47/14 Pg. 23 of 48
20. As per deposition of PW27 SI Parvesh Kasana, PW28 Inspector K.L. Yadav (IO of the case) and PW32 SI Rajender Dagar, accused Ravi and Rahul were apprehended on the basis of secret information and at the instance of secret informer. PW27 SI Parvesh Kasana in his cross examination has admitted that on 26.12.10, secret informer met them at Aali Village at 1:15 PM and informed them about the name of assailants of the incident. Had the name of assailants been in the knowledge of investigating officer or other police officials on the date of incident itself, they would have raided their premises and tried to apprehend them, if possible. This clearly shows that the name of assailants was not within the knowledge of the police and therefore, they were apprehended on the basis of secret information and at the instance of secret informer.
21. In view of above analysis of the testimony of PW5 Shri Pradeep Mishra, PW10 Shri Rajesh, PW11 Shri Moharram @ Chhotu, PW20 Shri Hanok Nathaniel and PW25 SI Virender Pakhre, it can be safely concluded that the eye witness Shri Pradeep Mishra (PW5) neither knew the assailants nor their names nor had told their names either to the police nor to any other person after the incident. The testimony of PW27 SI Parvesh Kasana, PW28 Inspector K.L. Yadav and PW32 SI SC No. 47/14 Pg. 24 of 48 Rajender Dagar categorically reveals that accused Ravi and Rahul were apprehended on the basis of secret information and at the instance of/pointing out by secret informer.
22. PW5 Shri Pradeep Mishra appears to be unreliable and untrustworthy witness of the prosecution. His testimony does not inspire confidence of the court. He has made major improvements in his testimony from his earlier statement Ex. PW5/A given to the police. He did not name the accused persons in his statement Ex. PW5/A when recorded by the police. Subsequently, he changed his statement and stated that he had named the name of assailants to the police, but it was not correctly recorded by police. He further deposed that he had told the name of assailants to PW10 Shri Rajesh and PW11 Shri Moharram Ali @ Chhotu, which has been found to be false. It appears that under the influence of the relatives of deceased, he changed his statement and made improvements during his testimony in the court.
23. It was held by Hon'ble Apex Court in Crl. Appeal No. 628/1979 titled as Mahesh Chander & Anr. Vs. State of Delhi decided on 03.04.1991 that if names of accused are not mentioned in the FIR, though informant knew the names, accused is entitled for acquittal inter alia on this ground.
SC No. 47/14 Pg. 25 of 48 Dying declaration made by deceased Bhim Singh Nagar.
24. It was submitted by learned Additional PP for State that PW10 Rajesh and PW11 Moharram Ali @ Chhotu have deposed that when they met deceased Bhim Singh soon after the incident, then deceased Bhim Singh told them the names of assailants, who were accused Ravi, Lokesh, Ravinder and one other boy purported to be JCL Rahul Pradhan, which clearly indicates that deceased had named the accused persons in his last statement before his death and this piece of evidence is sufficient to hold accused Ravi guilty in the case.
25. PW10 Rajesh deposed that on 24.12.10 at about 9:20 to 9:21, after receipt of call from his servant Pradeep Mishra (PW5) on his mobile phone regarding his father being surrounded by bad elements in the fields, he took his motorcycle and reached fields via PAC Camp, where his father was lying in injured condition. He deposed that he had picked him on his lap when their servant Chhotu also reached there. He further stated that his father told him that he was beaten and injured by Ravi, Lokesh, Ravinder and another boy. He further deposed that he with the help of Chhotu took his injured father to the hospital, where his father was declared brought dead by the doctor.
26. PW11 Moharram Ali @ Chhotu has also deposed that SC No. 47/14 Pg. 26 of 48 in his presence, injured Choudhary Bhim Singh Nagar told to Rajesh that Ravi, Lokesh, Ravinder and one more boy had caused injuries to him (mara hai.).
27. PW20 Hanok Nathaniel, an independent public witness, deposed that on 24.12.10 at about 9:15 9:30 pm, he was present at outside his room when Chhotu came and was shouting that some miscreants had surrounded Chacha (Bhim Singh) in the forest. He deposed that he immediately ran towards the direction to which Chhotu was pointing i.e. towards Mazar of Peer Baba. He stated that he saw Bhim Nagar was lying on the ground and some fired cartridges cases were also lying near his body and blood was oozing out from the chest portion of Bhim Singh Nagar. He further deposed that in the meantime, Rajesh also reached there and thereafter, Chhotu and Rajesh took Bhim Singh Nagar to the hospital by motorcycle. He stated that he made call to the police on 100 number.
28. Thus from the testimony of PW20 Hanok Nathaniel, it is seen that he reached first at the place of occurrence and thereafter, Rajesh (PW10) reached at the spot. PW11 Shri Moharram @ Chhotu reached at the spot after reaching of Rajesh (PW10). PW10 Shri Rajesh has deposed that he reached first at the spot. In his cross examination also, PW20 Hanok Nathaniel SC No. 47/14 Pg. 27 of 48 stated that Rajesh (PW10) reached there within seconds of their reaching at the spot. He further stated that Rajesh (PW10) and Moharram Ali @ Chhotu (PW11) had taken the injured to the hospital immediately after reaching there. PW11 Shri Moharram Ali @ Chhotu has admitted in his cross examination that there was no talk between them and the injured Bhim Singh Nagar, while they took them to the hospital. Had any such dying declaration been made by deceased to PW10 Rajesh, same would have also been heard by PW20 Hanok Nathaniel. PW20 Hanok Nathaniel has nowhere stated that any such statement as alleged by PW10 Shri Rajesh was made before him. As per this witness, the deceased/injured Bhim Singh was taken to the hospital immediately after Rajesh (PW10) and Chhotu (PW11) reached there. Thus, the theory of dying declaration as propounded and introduced by prosecution through the deposition of PW10 Rajesh is found to be doubtful and false.
Reliability of deposition of PW11 Shri Moharram Ali @ Chhotu.
29. PW11 Moharram Ali @ Chhotu, who was working as munshi for deceased Bhim Singh Nagar, deposed that on 24.12.10 at about 8:25 PM, he left the office of Choudhary Bhim Singh Nagar for his house and when he reached at a distance of 150 meters from the office, he saw Kamlesh w/o Deshvir, Ravi, SC No. 47/14 Pg. 28 of 48 Lokesh, Ravinder, Devender @ Tape and one more boy aged about 2021 years present there along side with wall and Kamlesh was saying to the above said persons "aaj Bhim Singh ka ant ho jana chahiye". Thereafter, he immediately went to his house. As per the witness, at about 8:35 PM, he reached at his house and made a call to Choudhary Bhim Singh Nagar but he did not pick up phone. He also repeatedly called him, but he did not pick up the phone, thereafter, he tried to make call to his son, but his phone was found not reachable.
30. According to PW11 Shri Moharram Ali @ Chhotu, at about 9:25 PM, he received a call from Pradeep Mishra (PW5) on his mobile phone, who asked him to reach immediately in the field near Peer Baba Mazar, PAC Camp as Ravi, Lokesh, Ravinder and one more boy attacked upon Choudhary Bhim Singh Nagar. He immediately rushed to the said place on his motorcycle. He saw at Aali Vihar that two motorcycles were coming from the side of field. Ravi was driving one motorcycle and the boy, who was earlier seen with them was sitting behind him. The other motorcycle was being driven by Lokesh and Ravinder was pillion rider. At some distance, he found Kamlesh was running towards the Aali Vihar from the field area. Thereafter, he reached at the spot and found Choudhary Bhim SC No. 47/14 Pg. 29 of 48 Singh in injured condition and Rajesh was holding him on his lap. He further deposed that in his presence, injured Choudhary Bhim Singh Nagar told to Rajesh that Ravi, Lokesh, Ravinder and one more boy caused injuries to him (mara hai.). He further deposed that he drove the motorcycle while Rajesh sat on holding Choudhary Bhim Singh. They reached at the Apollo Hospital, where Choudhary Bhim Singh was declared brought dead. He further stated that accused Kamlesh and her family members wanted to grab the properties of Choudhary Bhim Singh Nagar that is why, she and her family members committed murder of Choudhary Bhim Singh. He correctly identified accused Kamlesh and Ravi in the court. He stated that he could identify other accused persons namely Ravinder, Devender @ Tape, Lokesh and the said boy, who had been seen by him with Kamlesh.
31. PW11 Shri Moharram Ali @ Chhotu was cross examined by learned counsel for accused persons, wherein he admitted his statement Ex. PW11/DA given to the police. The cross examination of the witness shows that he has made sufficient improvement during his deposition in the court from his earlier statement given to the police. The witness was confronted with his statement given to the police Ex. PW11/DA and it is to be noted that there is material change in his deposition SC No. 47/14 Pg. 30 of 48 given in the court from the one given to the police. PW11 Shri Moharram Ali @ Chhotu has admittedly not told to the police that "when I reached at a distance of 150 meters from the office". He had also not told to the police that the accused persons were standing "alongwith the wall". A new version was introduced by PW11 Shri Moharram Ali @ Chhotu in his deposition that he had told to the police "aaj Bhim Singh ka ant ho jana chahiye". This part of communication allegedly made by accused Kamlesh to other accused persons is not found mentioned in the statement Ex. PW11/DA given by PW11 Shri Moharram Ali @ Chhotu to the police. PW11 Shri Moharram Ali @ Chhotu has himself admitted that he had not told to the IO that at 8:35 PM, he had made call to Chacha Bhim Singh on his mobile so many times, but he did not pick the phone. He had also not told to the police in his statement that after making call to Bhim Singh, he made call to Rajesh (PW10). The fact that PW11 Moharram Ali @ Chhotu had told to IO that Shri Pradeep Mishra (PW5) named assailants to him and asked him to come in the field near Peer Baba Mazar is also not found mentioned in his statement Ex. PW11/DA. Thus, it is noticed that PW11 Moharram Ali @ Chhotu has made sufficient improvements in his testimony given in the court from his earlier statement Ex. PW11/DA given to the police.
SC No. 47/14 Pg. 31 of 48
32. In his statement Ex. PW11/DA, PW11 Shri Moharram Ali @ Chhotu had told to the police that at about 9:25 PM, he received call on his phone from Shri Pradeep Mishra (PW5), who told him that Chacha Bhim was surrounded by assailants in the field. PW11 Shri Moharram Ali @ Chhotu told in his deposition in the court that name of assailants was also told to him by Shri Pradeep Mishra (PW5). In para no.19 and 21 of the judgment, this court has already come to the conclusion that Shri Pradeep Mishra (PW5) had not told the name of assailants to anybody nor the same was within the knowledge of PW11 Shri Moharram Ali @ Chhotu. PW11 Shri Moharram Ali @ Chhotu has deposed that after receiving the call from Shri Pradeep Mishra (PW5), he immediately rushed to the place of incident on his motorcycle. On the other hand, PW20 Hanok Nathaniel has deposed that Chhotu (PW11) came running to them. He kept on running, while shouting and informing about Bhim Singh Nagar. The testimony of PW20 Hanok Nathaniel, an independent and truthful witness of the prosecution, shows that PW11 Shri Moharram Ali @ Chhotu was seen running and informing about Bhim Singh Nagar and he was not on his motorcycle. Thus, the testimony of PW11 Shri Moharram Ali @ Chhotu that after receiving call from Shri Pradeep Mishra (PW5), he rushed to the SC No. 47/14 Pg. 32 of 48 spot on motorcycle is also found to be doubtful.
33. The factum of dying declaration, wherein deceased Bhim Singh told the name of assailants to Rajesh (PW10) in the presence of PW11 Shri Moharram Ali @ Chhotu has also been found to be suspicious and doubtful. There is improvement in the version of PW11 Shri Moharram Ali @ Chhotu that accused Kamlesh was heard saying to the other accused persons "aaj Bhim Singh ka ant ho jana chahiye". There is also improvement in the statement of PW11 Shri Moharram Ali @ Chhotu to the effect that accused Ravi was seen driving one motorcycle, while accused Lokesh was seen driving another motorcycle. The aforesaid fact is not mentioned in the statement Ex. PW11/DA of PW11 Shri Moharram Ali @ Chhotu. Thus, considering the overall deposition of PW11 Shri Moharram Ali @ Chhotu, his testimony does not inspire confidence. He does not appear to be a wholly reliable and credible witness. On the basis of his deposition, it would not be safe to hold conviction of the accused persons.
Recovery of motorcycles used in the commission of offence in the case.
34. As per deposition of PW5 Shri Pradeep Mishra, four persons came on two motorcycles at the spot. He deposed that when he reached at in the agricultural field and crossed the half SC No. 47/14 Pg. 33 of 48 way, suddenly, he noticed that four persons came on two motorcycles from behind. According to him, the first motorcycle hit their motorcycle on the back of his motorcycle and the second motorcyclist stopped in front of them blocking their way. He further deposed that as a result of impact of the hit, he lost balance and they fell alongwith the motorcycle.
35. PW5 Shri Pradeep Mishra could not tell the number, model or colour of the motorcycles on which four persons came on two separate motorcycles. The police could recover only one motorcycle allegedly used in the commission of the offence in the case. The second motorcycle could not be recovered. The police failed to ascertain about the second motorcycle allegedly used in the commission of offence in the case.
36. As per the case of the prosecution, accused Ravi had used a stolen motorcycle in the commission of the offence in the case. The investigating officer is reported to have recovered motorcycle bearing No. DL5ST5101 make Bajaj model CT 100 at the instance of accused Ravi. The said motorcycle was found stolen in case FIR No.101/10 PS Maurice Nagar. There is no evidence on record to suggest that the aforesaid motorcycle was stolen by accused Ravi. There is also no material on record to suggest that the said motorcycle was used in the commission of SC No. 47/14 Pg. 34 of 48 offence in the case. There is only the disclosure statement of accused Ravi that he had used the aforesaid motorcycle in the commission of offence in this case.
37. PW41 Rajbir Singh Chauhan is reported to have called the police on the allegations that a motorcycle had hit his vehicle bearing No.HR517199. He stated that he could not identify the person who had come on motorcycle and caused accident with his car on that day. The witness deposed that he had not seen the faces of those persons as it was dark at the time of accident and therefore, he could not identify them. He failed to identify accused Ravi as the person, who had come on the motorcycle on the alleged date of incident and hit his vehicle.
38. The motorcycle bearing No.DL5ST5101 was found parked in Police Station Sector39, Noida U.P. PW35 Ct. Satish deposed that in the night of 24/25.2010, he was on motorcycle duty in the area of Police Station Sector 39, Noida and he received information through PCR that the mirror of the car of one complainant Rajbir was broken by two boys. He reached at the spot, where Rajbir Chauhan met and informed him that two persons on motorcycle had tried to rob him and due to man handling, they failed to rob and broke mirror of his car and ran away from the spot after leaving the motorcycle. As per the SC No. 47/14 Pg. 35 of 48 witness, he removed the said motorcycle from the spot and parked it in the Police Station Sector39, Noida. In his cross examination, PW35 Ct. Satish stated that the front mirror of the car of the vehicle of Rajbir Chauhan was broken. He admitted that the physical description of the two persons, who had come on the motorcycle, hit his vehicle and tried to rob him was not given by Rajbir Chauhan (PW41). On the other hand, PW36 who also reached at the spot stated that the left side mirror of the car of Rajbir (PW41) was found broken. Thus, from the testimony of PW35 Ct. Satish, PW36 Ct. Satender Kumar and PW41 Rajbir Singh Chauhan, it could not be established on record that accused Ravi was one of those boys, who came on motorcycle bearing No. DL5ST5101, hit the vehicle of Rajbir Singh Chauhan (PW41) and after scuffle with him, they left the motorcycle at the spot and ran away.
39. PW28 Inspector K.L. Yadav deposed that on 28.12.10, he alongwith SI R.S. Dagar (PW32), SI Parvesh Kasana (PW27), Ct. Neeraj and Ct. Mahender reached Chhalera near Modern Store. He made inquiry regarding motorcycle No.DL5ST5101 and on inquiry from local people, he came to know that the said motorcycle was involved in an accident with a car driver and a call regarding accident was made to the police.
SC No. 47/14 Pg. 36 of 48 The police had come at the spot and the local police may have taken the motorcycle as the two persons, who were on the motorcycle had ran away from the spot. He further deposed that thereafter, they reached at Police Station Sector39, Noida. As per the witness, when they entered the premises of the Police Station, both the accused Ravi and Rahul pointed out towards a motorcycle Bajaj CT 100 lying outside the Police Station and stated that it was the same motorcycle which was used in the commission of offence in the case. He further deposed that he met SI Jai Karan of Police Station Sector39, Noida and apprised them of the facts and circumstances of the case. SI Jai Karan informed him that about 34 days earlier, one Rajbir Chauhan of Village Chhalera had made call regarding attempt of robbery and their police reached at the spot and found neither the complainant nor the motorcycle owner at the spot. However, motorcycle bearing No. DL5ST5101 was found lying there. Therefore, they brought the motorcycle to the Police Station. Inspector K.L. Yadav gave application for seizure of motorcycle and thereafter, he seized it vide memo Ex. PW27/K and thereafter, brought the motorcycle to the Police Station. The part of information given by SI Jai Karan to Inspector K.L. Yadav (PW28) is found to be patently false in view of the deposition given by PW35 Ct.
SC No. 47/14 Pg. 37 of 48 Satish, PW36 Satender Kumar and PW41 Rajbir Singh Chauhan. As per deposition of PW SI Jai Karan Singh, the motorcycle bearing No. DL5ST5101 was deposited in the Police Station as abundant motorcycle.
40. Admittedly, motorcycle bearing No. DL5ST5101 was found parked outside Police Station Sector39, Noida, U.P. which was visible to all the persons. The motorcycle was in the possession of police of Police Station Sector39, Noida, U.P. The pointing out memo and the seizure memo prepared in respect of motorcycle bearing No. DL5ST5101 has not been signed by SI Jai Karan Singh or any of the police official of Police Station Sector39, Noida, U.P. No reason has been furnished as to why no police official of Police Station Sector39, Noida, U.P. was made a witness of recovery when admittedly, the motorcycle in question was in the possession of police of Police Station Sector39, Noida, U.P. and was recovered from their premises. The said vehicle was parked outside the Police Station Complex and was visible to anybody. In the given facts and circumstances of the case and nonjoining of any witness from Police Station Sector39, Noida, U.P. at the time of pointing out and recovery of motorcycle bearing No. DL5ST5101 is found to be doubtful. There is no material on record to suggest that motorcycle bearing SC No. 47/14 Pg. 38 of 48 No. DL5ST5101 which is alleged to have been recovered at the instance of accused Ravi and Rahul was used in the commission of offence in the case.
Recovery of weapon of offence used in the commission of offence in the case.
41. On 27.12.10, Inspector K.L. Yadav (PW28) and recovery witnesses SI Virender Pakhre (PW25), SI Rajender Singh Dagar (PW32) alongwith accused Ravi and Rahul went to Village Garhi, Kalengeri, Police Station Chandi Nagar, District Bagpat, U.P., where accused Rahul was residing. The aforesaid police officials deposed that they requested public persons to join in the investigation, but they refused. They reached at the house of Rahul. As per them, as soon as they entered his house, on the right side, there was a room, where a sofa was lying, from underneath the cushion of sofa, Ravi produced one pistol which on checking was found to be written as automatic made in USA from one side. The pistol was sealed in a pullanda sealed with the seal of KL and was seized vide seizure memo Ex. PW27/E. The site plan Ex. PW27/F of place of recovery was prepared.
42. The above police officials have further deposed that on the same day, they alongwith both the accused reached at Village Chhalera near Sector44, Noida. They reached at the house of Subhash where on the back portion of his house, there was a SC No. 47/14 Pg. 39 of 48 chajja near the wall and from the said chajja, Ravi produced one desi katta which was not having its barrel. They deposed that after checking the katta, sketch of the same Ex. PW27/G was prepared. The katta was sealed in a pullanda with the seal of KL and seized vide seizure memo Ex. PW27/H.
43. Admittedly, neither the police officials of local Police Station within whose jurisdiction, the alleged recovery of weapon of offence was effected at the instance of accused persons were called nor joined in the investigation at the time of alleged recovery. The IO of the case also did not inform the local police either at the time of their arrival or at the time of departure from the place, where the alleged recovery was effected. No intimation was given to the local police. The owner or occupier of the premises from where the alleged recovery was effected have also not been joined in the investigation. The Pradhan of the village or respectable members of the locality have also not been joined in the investigation of the matter. As per provisions of Cr.P.C., local police needs to be intimated regarding arrival and departure of police outside their jurisdiction whenever they conduct any raid, or apprehend any person or conduct investigation of criminal matter. The provisions as contained in Section 100 and 165 Cr.P.C. have not been followed by investigation officer of the SC No. 47/14 Pg. 40 of 48 case. The provisions pertaining to making of arrival and departure entry by the police as required under Punjab Police Rules as applicable to Delhi have also not been followed by the investigation officer in this case. No plausible explanation has been furnished by the investigating officer as to why the local police or Pradhan of the village, or respectable members of the locality or the owners/occupiers of the premises from where the alleged recovery has been effected have been joined in the investigation at the time of alleged recovery of weapon of offence. In view of above, the alleged recovery effected at the instance of accused persons, from the place and the manner in which it has been shown to be recovered is doubtful.
44. Moreover, the sketch of katta Ex PW27/G prepared by IO shows that it bears the signature of Rahul, while the seizure memo of katta Ex PW27/H bears the signature of Ravi. The case of prosecution is that the said katta was got recovered at the instance of Ravi. No reason has been mentioned as to why the signature of accused Ravi on the sketch of katta was not obtained. On bare look of both the documents, it appears that the signature of accused persons was obtained on blank papers and thereafter the same was written or alternatively same has been manipulated by the IO of the case.
SC No. 47/14 Pg. 41 of 48 Appreciation of scientific evidence
45. It was submitted by learned Addl. PP for State that there is strong scientific evidence against accused Ravi, who got recovered weapon of offence i.e. pistol which matched with the recovered empty magazine seized by the IO from the spot on the day soon after the incident. He further submitted that empty cartridges having mark of strike on its back found at the spot i.e. EC3 and EC4 also matched with the cartridges TC1 to TC3 used in the FSL Lab by test firing the cartridge from the pistol recovered at the instance of accused Ravi and the FSL official found that the striking feature made by the pistol on the test fire cartridge and the empty fired cartridge matched with each other meaning thereby the person, who had fired upon the deceased in the incident, who got recovered the pistol and this evidence clearly concludes that it was Ravi, who caused death of deceased Bhim Singh.
46. PW39 Dr. Asit Kumar Sikary proved the postmortem report no. 1329/10 of Bhim Singh Nagar Ex PW39/A which was conducted by Dr. Ashish Jain on 25.12.2010. He deposed that Dr. Ashish Jain had observed nine injuries on the person of deceased. The doctor has opined that time since death was about one day and cause of death was haemorrhagic shock caused by multiple SC No. 47/14 Pg. 42 of 48 fire arms injuries. He further opined that injury no. 1 to 6 are individually and all the injuries are collectively sufficient to cause death in the ordinary course of nature and all the injuries were antemortem in nature. In his cross examination, PW39 Dr. Asit Kumar Sikary admitted that injuries mentioned in the PM report at no. 1, 3, 5 and 7 are entry wounds while injury no. 2 is the exit wound corresponding to the fire arm entry wound of injury no. 1. Two metal bullets were found inside the body of deceased. He admitted that lacerated wound could be caused by a blunt object and incised wound could be caused by a sharp object.
47. PW42 Sh. V.R. Anand, Ballistic Expert examined the exhibits of the case and after his detailed examination gave his report Ex PW42/A. Sh. V.R. Anand in his cross examination admitted that there was no complete country made pistol and there was two parts of the country made pistol. He fairly admitted that he had not conducted test fire from this katta as the same was in two parts. He admitted that two parts of country made pistol cannot be used as fire arm unless and until joined together. He further admitted that any magazine of 7.65 mm may be inserted in the improvised pistol examined by him.
48. The ballistic expert could not express his opinion on three led / bullets found at the spot and two bullets found in the SC No. 47/14 Pg. 43 of 48 dead body of deceased. Thus, from the testimony of PW42 Sh. V.R. Anand, it is seen that he had not test fired from the katta and he could not tell whether the katta was in working condition or not. He also admitted that the recovered magazine can be inserted in any instrument / pistol of 7.65 mm.
49. Moreover, in para no. 43 of the judgment, this court has already come to the conclusion that recovery of katta and pistol i.e. the weapon of offence used in the commission of offence, at the instance of accused Ravi is doubtful. Therefore, the FSL report Ex PW42/A is not of much help to prove the case of the prosecution and to inculpate accused Ravi in the commission of offence in the case.
50. The clothes worn by accused Ravi at the time of commission of offence were also seized by the investigating officer during the course of investigation in the case. The same were also sent alongwith the blood of deceased to FSL for examination. The blood detected on the clothes of accused Ravi has not matched with the blood of deceased as is clear from report Ex. PW34/B prepared by PW34 Dr. Sunita Suman Gupta.
Call detail records of the mobile phones allegedly used by accused persons
51. As per the case of the prosecution, the accused persons hatched conspiracy to commit murder of deceased Bhim Singh SC No. 47/14 Pg. 44 of 48 Nagar and they were in constant touch with each other through mobile phones soon before and after the incident. PW12 Rocky examined by the prosecution to prove that accused Ravi and Pradhan had taken the mobile phone of his father to make a call and thereafter, promised to return the same after some time, could not prove the same. PW12 Rocky has not supported the case of the prosecution. He was declared hostile. This witness was cross examined by learned Addl. PP for State at length but nothing has come in his cross examination to support the prosecution case. He also failed to identify accused Kamlesh and Ravi in the court.
52. PW38 Ajay Kumar, Nodal Officer, Bharti Airtel Ltd. brought the summoned record of mobile phone no. 9971849226 in the name of Hari Raj Singh. The call detail record of this mobile phone has not been proved by PW28 Ajay Kumar. He also could not verify the documents Mark 28/X1 in respect of mobile no. 9971849226 by stating that it was not in the proper format.
53. PW43 Ct. Manish produced print of mail Ex PW43/A, copy of mail received from Airtel company Ex PW43/B, copy of call details Ex PW43/C in respect of mobile no. 9971849226 for the period from 20.10.2010 to 25.10.2010. He also brought the certificate Ex PW43/E regarding correctness of the record SC No. 47/14 Pg. 45 of 48 brought by him. PW43 Ct. Manish is not an authorized witness to prove the documents as brought by him before this court. He was neither cited as a witness by the prosecution nor the documents brought by him before the court form part of the charge sheet. The prosecution has failed to prove the call details record of mobile no. 9971849226 as required to be proved in terms of Section 65B of The Indian Evidence Act.
54. Accused Kamlesh is reported to have used mobile phone no. 9540200403 at the relevant time, before or after the commission of offence in the case. The relevant documents produced by PW37 Pawan Singh, Nodal Officer, Idea Cellular Ltd., shows that the phone was in the name of Urmila Devi. The said lady has not been examined to prove that the aforesaid phone was given by her to accused Kamlesh and she was using the same at the relevant time. Prosecution has miserably failed to prove on record that accused Kamlesh was using phone no. 9540200403 at the relevant time.
Relevancy of documents produced by SI Naresh in respect of inquiry conducted on the complaints of complainant/accused Kamlesh and deceased Bhim Singh Nagar against each other.
55. The documents of enquiry, conducted on the complaints of Kamlesh and Bhim Singh Nagar against each other, produced SC No. 47/14 Pg. 46 of 48 by PW30 SI Naresh is not of any help for the prosecution. The said documents i.e. Ex PW30/A1 to Ex PW30/A42 (collectively) and Ex PW30/B1 to Ex PW30/B35 do not form part of charge sheet. The said documents have also not been proved in accordance with law. They also do not convey any motive on the part of accused persons to commit the murder of deceased.
56. The prosecution has miserably failed to prove on record that accused Ravi and Kamlesh shared common intention in committing the murder of deceased. It has also failed to establish on record that the accused persons had hatched conspiracy to commit the murder of deceased and in pursuance of said conspiracy murdered the deceased. No material has been produced on record to prove that accused Kamlesh was actively or even remotely involved in conspiring for the murder of deceased Bhim Singh Nagar. Accused Kamlesh did not run away from her residence after commission of offence in the case. She was only treated as suspect by the investigating officer prior to the date of her arrest i.e. till 15.03.11. She was not called by the investigating officer for the purpose of investigation in the matter. The police reached at the place of her residence i.e. stay on 15.03.11 and arrested on the same date itself.
SC No. 47/14 Pg. 47 of 48
57. For the reasons mentioned above, this court is of the considered view that prosecution has failed to prove its case against accused Ravi and Kamlesh beyond all shadow of reasonable doubt. Therefore, benefit of doubt is given to both of them. Consequently, accused Ravi and Kamlesh are hereby acquitted for having committed the offence for which they were charged i.e. for offence under section 302/120B IPC and section 25/27 of the Arms Act. Both the accused are directed to furnish bail bond and surety bond in the sum of Rs.50,000/ with one surety in the like amount each in terms of section 437A Cr.P.C. On furnishing of bail bond by accused Ravi, he be released from custody in this case forthwith. He be released from jail, if not wanted in any other case. In case of nonfurnishing of bail bond by accused, he is to remain in custody till he furnishes the bail bond. Accused Kamlesh has also failed to furnish the bail bond as directed by this court, therefore, she be sent to custody.
Announced in open court (RAJ KUMAR TRIPATHI)
today i.e 03.02.2016 Addl. Sessions Judge02:South East
Saket Court: New Delhi
SC No. 47/14 Pg. 48 of 48