Delhi District Court
State vs Ghanshyam on 7 September, 2007
-:1:-
IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE FAST TRACK COURTS
ROHINI DELHI
SC No. 87/02 dated 20/12/2006
Date of Decision: 07th of September, 2007
State
Versus
1. Ghanshyam
S/o Sh. Gaje Singh,
R/o Haider Nagar,
Jalalpur, Mujaffar Nagar, U.P.
2. Gulbir alias Gullu
S/o Sh.Yogender
R/o Village Haider Nagar,
Jalapur, District Mujaffar Nagar (U.P.)
3. Gurpreet Singh alias Sonu
S/o Sh. Tara Singh
R/o House No. 283/278,
Vishnu Garden, Delhi.
4. Rakesh Kumar alias Kala
S/o Mange Ram
R/o Village Haider Nagar,
District Mujaffar Nagar (U.P.)
5. Devender Singh alias Kaka
S/o Sh.Partap Singh
R/o House No.A-843/44,
DDA Colony, Khyala, Delhi.
6. Kukka (not yet arrested)
S/o Pawan @ Sethi
R/o Village Haider Nagar,
District Mujaffar Nagar (U.P.)
-:2:-
7. Amar Singh (not yet arrested)
S/o Sh. Chet Singh
R/o 120-08-95 Ave Richmond Hill
NY. 11419 U.S.A.
8. Rishi Pal @ Rich Pal (not yet arrested)
S/o Sh. Gokal Singh
R/o 120-08-95 Ave Richmond Hill
NY. 11419 U.S.A.
FIR No. 521/2002
PS Tilak Nagar
U/s. 302 IPC and 302 read with Sec.120 B IPC;
27 of Arms Act.
JUDGMENT
First the Facts This is a double murder case. Hoshiar Singh alias Ishwar Singh and Narvesh Bahadur were killed on 09/07/2002 at about 11:15 p.m, in front of a sweets shop, in Chand Nagar, Khayala, within the jurisdiction of Police Station Tilak Nagar.
As per prosecution version, Ghanshyam, Gurpreet Singh, Devender alias Kaka, Rakesh Kumar, Gulbir Singh alias Gullu alongwith three others namely Kaka S/o Pawan R/o Muzaffar Nagar (UP), Amar Singh S/o Chet Singh -:3:- and Rishipal Singh alias Richpal S/o Gokul Singh, both residents of U.S.A., entered into criminal conspiracy to commit murder of Hoshiar Singh alias Ishwar Singh and thereafter on 09/07/2002 at about 11:15 p.m., Ghanshyam, Rakesh and Gulbir alias Gullu reached in front of the sweets shop of Raju Confectioner in Chand Nagar and one out of them fired shots at Hoshhiyar Singh alias Ishwar Singh as a result whereof he fell down. Narvesh Bahadur, a watchman, also suffered bullet injuries and he too fell down. Both of them when removed to hospital were declared brought dead.
Occurrence is alleged to have been witnessed by Gurcharan Singh, brother of Hoshiar Singh alias Ishwar Singh (since deceased) and Raj Kumar alias Raju, the confectioner.
Case of prosecution is that after the occurrence Ghanshyam, Rakesh, Gulbir alias Gullu ran away from the spot towards Lal Building School. Raj Kumar alias Raju, the confectioner, reached the place where Narvesh Bahadur and Hoshiar Singh alias Ishwar Singh were lying injured. Gurcharan Singh immediately went to his house, called his brother Harvender Singh and then returned to the spot. It was thereafter that Hoshiar Singh alias Ishwar Singh and -:4:- Narvesh Bahadur were removed to DDU Hospital where they were declared brought dead.
Case is Registered At 11.22 p.m, Head constable Siksha of PCR received call that two persons had been shot in plot no. 20, Chand Nagar. She passed on this information to the concerned police station where DD No. 28 was recorded. SI Jarnail Singh accompanied by Head constable Satyawan, constables - Brij Kishore and Robin Singh, reached the spot and found blood lying at places. Chappals and a pagri (turban) were also found lying there. The Sub Inspector deputed Head Constable Satyawan at the spot and himself reached Deen Dayal Upadhyay Hospital in the company of the two constables. There they came to know that injured had been declared brought dead. Their MLCs were collected. Gurcharan Singh made statement before Sub Inspector Jarnail Singh and that is how present case was registered. Special reports were got delivered. SI Jarnail Singh deputed constable Robin Singh to guard the dead bodies and himself left for the spot.
From the hospital, in addition to the MLC, Sub Inspector Jarnail Singh collected a parcel sealed with the seal -:5:- of C.M.O., and a sample seal purported to contain lead of a bullet which was stated to have been recovered from dead body of Hoshiar Singh alias Ishwar Singh.
On reaching the spot, the Sub Inspector produced the MLC and the sealed parcles and the sample seal before Inspector Rameshwar Khatri found present there. At the time of spot inspection, Inspector Rameshwar Khatri picked up blood stained earth, sample of blood, sample soil, turban (pagri), a pair of chappal, and a fellow of another chappal, all of which were turned into parcels, sealed and seized. Crime team was also pressed into service. Rough site plan of the place of occurrence was prepared.
It is also case of prosecution that inquest proceedings were carried out in respect of dead bodies and both the dead bodies were then got subjected to autopsy. Thereafter, the dead bodies were delivered to the relatives. Constable Robin Singh collected two sealed parcels containing clothes and sample of blood of the deceased, three sealed parcels containing clothes, sample of blood, piece of bullet and a sample seal. All these parcels and sample seal were produced before Inspector Rameshwar Khatri who seized them vide recovery memos. The Inspector -:6:- deposited the sealed parcels with the MHC (M). Ghanshyam accused is arrested first of all.
On 11/08/2002, Inspector Rameshwar Singh, SI Jarnail Singh and others were present in the area of Police Station Tilak Nagar. They received secret information that Ghanshyam accused was likely to visit A-843, J. J. Colony, Khyala. Picket was held and Ghanshyam was apprehended at the pointing out of secret informer. Ghanshyam accused was found in possession of a country made pistol and two live cartridges. The firearm and ammunition were turned into parcel, sealed and then seized. On return to the Police Station these were deposited with the MHC (M). Rakesh accused is arrested It was on 04/09/2002 that Rakesh accused was arrested by Inspector Rameshwar Khatri. On 14/09/2002 Rakesh accused made disclosure statement before the police. It was on 05.09.2002, SI Neeraj Kumar accompanied by HC Ashwani Kumar reached Hardev Nagar, Distt. Muzzafarnagar (UP) in the company of Rakesh accused and other members of the police. Rakesh accused took the police party to his house in the aforesaid village and got recovered .315 bore pistol from a trunk lying there. On -:7:- unloading the pistol, one bullet was recovered from it. Sketch of the pistol and the bullet was prepared. The firearm and the ammunition were turned into a parcel, sealed and then seized. The case property was deposited with the MHC(M). Ghanshyam and Rakesh opt to refuse to participate in Test Identification Proceedings.
Ghanshyam and Rakesh when produced before judicial officer in connection with test identification parade, refused to participate in test identification parade. Gulbir alias Gullu is also arrested.
On 16/07/2003, SI Jarnail Singh received secret information regarding presence of Gulbir alias Gullu at NSIT College, Dwarka with some illicit weapons. The SI accompanied by constable Dharambir and Ramesh reached the disclosed place and apprehended Gulbir alias Gullu accused. At that time from his possession a knife was recovered. In this respect, a separate case was got registered at Police Station Uttam Nagar. Police of Police Station Tilak Nagar was informed about this fact. Arrest of Devender alias Kaka and Gupreet alias Sonu Devender alias Kaka and Gurpreet Singh alias Sonu accused were also arrested by the police. Both of them -:8:- made disclosure statements and then led the police party to Surya Hotel. From that hotel, police seized a register regarding stay of Devender alias Kaka and Gurpreet Singh alias Sonu in that hotel. Devender alias Kaka accused was also found in possession of a passport. The passport was seized by the police.
Motive As regards motive in commission of the crime, case of prosecution is that Hoshiar Singh alias Ishwar Singh (since deceased) was residing in U.S.A. Amar Singh accused (since absconding) also used to reside there. Hoshiar Singh alias Ishwar Singh (since deceased) got insured himself for 10 thousand dollars, and in the insurance policy, he made said Amar Singh (not yet arrested), his friend, as his nominee. In the insurance policy, Amar Singh was referred to cousin of Hoshiar Singh alias Ishwar Singh (since deceased) although he was in no way related to him.
Hoshiar Singh alias Ishwar Singh (since deceased) told his wife that Amar Singh used to put pressure on him to get the insurance policy.
In February 2002, Amar Singh visited India. He then reached the house of Hoshiar Singh alias Ishwar Singh -:9:- (since deceased), took him along outside the house, and returned after sometime. At that time, Hoshiar Singh alias Ishwar Singh (since deceased) was found in perplexed state of mind. He is stated to have told his wife that Amar Singh accused was asking him to get a false death certificate prepared so that amount of the insurance policy could be taken, but Hoshiar Singh alias Ishwar Singh (since deceased) declined this suggestion of Amar Singh.
During investigation, copy of insurance policy of Hoshiar Singh alias Ishwar Singh (since deceased) was seized by the police, when produced by Tejinder Kaur, wife of Hoshiar Singh alias Ishwar Singh (since deceased) in addition to photocopies of other documents.
It is also case of prosecution that on 09.07.2002, PW Teg Singh visited the house of Pratap Singh, father of Devender alias Kaka accused, to see him, after having learnt that Pratap Singh had returned from U.S.A. At about noon time, when Teg Singh reached the house of Pratap Singh, he found Devender alias Kaka, who had also returned from U.S. A., present there. Teg Singh found Rishi Pal accused, brother in law of Amar Singh accused, handing over a plastic bag to Devender alias Kaka accused and telling him that he -:10:- should accept it and the rest would be paid after the job was over. Case of prosecution is that Rishi Pal accused handed over currency notes to Devender alias Kaka accused in the plastic bag.
Twenty samples were deposited at Forensic Science Laboratory, Malviya Nagar, for analysis. Reports were collected from the laboratory.
Challan is put in Court On completion of investigation, challan was put in court depicting names of Ghanshyam, Devender alias Kaka, Gurpreet Singh alias Sonu and Rakesh Kumar in column No. 3 and 4 whereas names of Gulbir alias Gullu, Kukka, Amar Singh and Rishi Pal were shown in column No.2 of the report, as noticed above.
Copies of documents relied upon by the prosecution were supplied to the accused persons by learned Metropolitan Magistrate, in compliance with provisions of section 207 Cr.P.C. It was thereafter that case came to be committed to Hon'ble Court of Session.
Substance of accusation Prima facie case having been made out, charge for offences U/s. 120-B and 302 read with Section 120-B IPC -:11:- was framed against Ghanshyam, Gurpreet Singh alias Sonu, Devender alias Kaka and Rakesh Kumar accused, on 16.08.2003; and against Gulbir alias Gullu on 20.12.2003. Since the accused persons pleaded not guilty and claimed trial, prosecution examined following 29 witnesses. Prosecution Evidence PW1 Smt. Tejinder Kaur is wife, PW5 Harminder Singh and PW6 Gurcharan Singh are brothers and PW7 Tej Singh son Sardar Baldev Singh is father whereas PW16 Teg Singh is uncle of Hoshiar Singh alias Ishwar Singh (since deceased).
PW13 Raj Kumar alias Raju Confectioner is the confectioner, in front of whose shop, the occurrence took place on 09.07.2002 at about11/11.15 p.m. PW9 Rahul is the photographer, who reached the spot on the night intervening 9/10.07.2002, as directed by the police, and took photographs.
PW14 ASI Dharamvir Singh has been examined to prove recording of FIR Ex. PW14/A on the basis of ruqqa received from Constable Brij Kishore and sent by ASI Jarnail Singh.
PW15 Charan Lal runs a cloth merchant shop at -:12:- 5A/47, Khyala. He has been examined to prove factum of installation of PCO telephone No. 25921865 at his shop and that on enquiry by the police, he replied that this telephone was in working order, on 09.07.2002. He also deposed about installation of one STD telephone having No. 25106901 in the PCO.
Medical evidence is available in the statements of PW17 Dr. Nishu Dhawan and PW23 Dr. Uday Kumar Singh.
PW18 Naresh Singh has been examined to prove that he took on rent a shop in plot No. 20, Shyam Nagar, Khyala, from Hoshiar Singh alias Ishwar Singh, in the year 2001, and remained in its occupation for about one and half year, while he used to live at J.J. Colony, Khyala, for about 7/8 years. He also deposed that he knew Devender alias Kaka and Gurpreet alias Sonu accused.
PW20 HC Shiksha has been examined to prove receipt of call on 09.07.2002 at 11.22 p.m., in the PCR, that two persons had been shot at plot No. 20, Chand Nagar, Khyala, and that she passed on the information to concerned police station.
PW21 Tirath Raj Singh is the Draughtsman, who reached the place of occurrence, took rough notes at the -:13:- instance of Gurcharan Singh, and then prepared scaled site plan Ex. PW21/A. PW25 Ms. Sukhwinder Kaur, learned Judicial Officer, has been examined to prove that Ghanshyam and Rakesh alias Kala accused refused to participate in test identification parade despite the fact that they were explained the purpose of test identification parade, the manner in which the same was to be conducted and the implication in their non-joining in the test identification parade.
PW2 Constable Robin Singh, PW19 Constable Subodh, PW22 HC Ashwani Kumar, PW24 HC Balbir Singh, PW26 SI Jarnail Singh, PW27 Constable Samunder Singh, PW28 SI Neeraj Kumar and PW29 Inspector Rameshwar Singh have deposed about investigation part of the prosecution story.
Defence plea:
When examined U/s. 313 Cr.PC, the accused denied all the incriminating circumstances appearing in evidence against them and pleaded false implication. Ghanshyam accused pleaded in the manner as:
In defence, only Devender alias Kaka accused examined DW1 Richpal Singh and DW2 Padam Singh to -:14:- prove the plea of alibi that from 08.07.2002 to 10.07.2002, he was at the house of his close relative Preeti in village Lohara (Haryana) as her son was unwell and that he returned from there on 11.07.2002 to H.No. A-843-844, J.J. Colony, Khyala, where he was putting up during those days.
Arguments heard. File perused.
Medical Evidence:
In this case, medical evidence is available in the statements of PW12 Dr. Vinit Gupta, PW17 Dr. Nishu Dhawan and PW23 Dr. Uday Kumar Singh.
PW12 Dr. Vinit Gupta has proved MLC Ex. PW12/A in respect of Naresh, who was brought to DDU hospital, on 09.07.2002 at 11.55 p.m. PW17 Dr. Nishu Dhawan has proved MLC Ex.PW17/A in respect of Ishwar Singh son of Tej Singh, brought to DDU hospital on 09.07.2002 at 11.55 p.m. According to PW12 and PW17, Narvesh Bahadur and Ishwar Singh were declared brought dead.
PW23 Dr. Uday Kumar Singh has been examined to prove autopsy reports Ex. PW23/A and Ex. PW23/B given after autopsy on the dead bodies Hoshiar Singh son of Tej Singh and Narvesh @ Nar Bahadur. As per autopsy report -:15:- Ex. PW23/A, Dr. M.M. Narnaware observed following four injuries on the dead body of Hoshiar Singh:
1) Penetrating wound on left side of chest (lateral aspect) located at 7 c.m. from left nipple and v c.m. from left anterior auxiliary fold. Size 7 c.m.x3 c.m.x cavity deep. The margins were abraded blackened and tattooed and inverted.
2) One penetrating wound was seen on right side of back located at 17 c.m. of posterior mid line and 14 c.m. from right posterior auxiliary fold, size 1 c.m. x 1 cm. x cavity deep.
Margins were everted.
3) One penetrating wound measuring 1.5 c.m.x 1.5 c.m. x cavity deep was seen on the left side of back located at 18 c.m. from posterior mid line and 21 c.m. form nape of neck. Margins were abraded and inverted.
4) One penetrating wound was seen on mid sternal line 10.5 c.m. from left nippe and 11.5 c.m. from right nipple. Size 1 c.m. x 1 c.m. x cavity deep. Margins were abraded and inverted.
In the opinion of the doctor, injury No.1 was an entry wound whereas injury No. 2 was exit wound of one projectile. Injury No. 3 was entry would whereas injury no. 4 was exit wound of another projectile. Death was due to -:16:- firearm injury. Probable duration that elapsed between death and autopsy was 13 to 15 hours.
On autopsy on the dead body of Narvesh Bahadur, one penetrating wound measuring 3 c.m. x 1 c.m. x cavity deep was observed on the left side of the chest below medial and of lateral clevicle located at 3 c.m. from mid sternal line and 14 c.m. from left nipple. Margins were blackened.
From the medical evidence factum of death of Hoshiar Singh and Narvesh Bahadur due to firearm injuries at about 10 or 10.30 p.m on 9.7.2002 stands established. Now it is to be seen as to who caused death of Hoshiar Singh @ Ishwar Singh and Narvesh Bahadur?
Learned Additional Public Prosecutor has referred to statement Ex.PW6/A of Gurcharan Singh, brother of Hoshiar Singh alias Ishwar Singh (since deceased), and the statement made by him in court as PW6, and argued that it stands established that on 09.07.2002 at about 11 p.m., Rakesh, Gulbir and Ghanshyam accused, while present in front of the shop of Raju Confectioner opened fire at Hoshiar Singh alias Ishwar Singh, resulting in injuries on his person and on the person of Narvesh, a watchman, who was also -:17:- present near the said shop, resulting in their death.
On the other hand, learned defence counsel have argued that prosecution has failed to establish presence of PW6 Gurcharan Singh on the given date, time and place of occurrence, and as such, no reliance can be placed on the version of the prosecution that anyone out of Rakesh, Gulbir and Ghanshyam accused opened fire at Hoshiar Singh alias Ishwar Singh. Learned defence counsel have further contended that even the other evidence led by the prosecution has failed to establish involvement of any of the accused in commission of the present crime.
Occurrence is alleged to have taken place on 09/07/2002 at about 11:15 p.m., in Plot No.20, in front of Confectionery Shop of PW13 Raj Kumar alias Raju Chand Nagar, Khyala, in the area of Tilak Nagar. Present case was registered on the statement of Gurcharan Singh alias Goldy (PW-6) Ex.PW-6/A, brother of Hoshiar Singh alias Ishwar Singh who met the police at DDU Hospital. It is in the cross examination of PW-26 SI Jarnail Singh that DD No. 28 was handed over to him at about 11:25 p.m. whereupon he accompanied by Head Constable Satyawan and Ct. Brij Kishore and Robin reached the spot. PW-20 Head Constable -:18:- Siksha of PCR, while on duty on 09/07/2002, at about 11:22 p.m. received a call that two persons has been shot. Statement of PW-20 has gone unchallenged. PW-11 Constable Sher Singh has deposed about receipt of information on wireless on 09/07/2002 at 11:25 p.m. that someone had hit two persons with bullets, in plot no. 20, Chand Nagar, Khyala. PW-11 was posted as duty writer at police post Khyala. He recorded DD No. 28/A Ex.PW-11/A and the same was handed over to SI Jarnail Singh. Statement of PW-11 has also gone unchallenged. In his cross examination PW 26 SI Jarnail Singh admitted to have reached the hospital at about 11:45 p.m. after staying at the spot for about 5/6 minutes, having learnt that Hoshiar Singh alias Ishwar Singh and Narvesh had been removed from the spot to DDU Hospital. It is in the cross examination of PW- 26 that MLCs collected from the hospital revealed that Hoshiar Singh alias Ishwar Singh had been brought to the hospital by Harvinder. He further admitted that Gurcharan met him in the hospital and made statement and that is how on the statement of Gurcharan alias Goldy, PW-26 appended endorsement Ex.PW-26/A and got registered this case. PW-2 Constable Robin Singh has deposed in line with the -:19:- statement of PW-26. Statement of PW-2 Constable Robin Singh has not been subjected to any searching cross examination. Similarly, PW-4 Constable Brij Kishore deposed in consonance with the version narrated by PW-26. PW-4 further deposed that he took ruqqa from the hospital to the police station and got this case registered. Statement of PW- 4 has also not been subjected to any searching cross examination. PW-14 ASI Dharamvir Singh is the concerned duty officer who recorded FIR Ex.PW-14/A on the basis of ruqqa received at the police station through constable Brij Kishore. PW-27 Constable Samundar Singh deposed about delivery of special reports to the senior police officers and also at the residence of learned Metropolitan Magistrate in Malviya Nagar after having left the police station at about 3 a.m. But it is significant to note that prosecution has not placed on record special report delivered by PW-14 at the residence of Learned Magistrate. So although time of recording of time of FIR Ex.PW-14/A is about 01:40 a.m, there is no evidence as to at what time the same reached the concerned Magistrate. Absence of time about delivery of special report to the concerned Magistrate puts the Court to scrutinize statement of Gurcharan Singh complainant, on -:20:- whose statement present case was registered.
As noticed above, present case was registered on the statement made by PW6 Gurcharan Singh. That statement is Ex.PW6/A. In Ex. PW6/A, Gurcharan Singh did not name any of the culprit. No doubt, he offered to identify the culprits when produced before him. In Ex. PW6/A, Gurcharan Singh stated before the police that after the occurrence, he, Harminder Singh (PW5) and Raju (PW13), removed Hoshiar Singh alias Ishwar Singh and Narvesh Bahadur in a car to DDU hospital.
As and when a close relative brings the patient to hospital, his or her name is recorded in the relevant column meant for the person or relative accompanying the patient. In this case, Hoshiar Singh alias Ishwar Singh and Narvesh Bahadur were brought to DDU hospital on 09.07.2002 at 11.55 p.m. In the MLC Ex.PW17/A and Ex. PW12/A, pertaining to Hoshiar Singh alias Ishwar Singh and Narvesh Bahadur respectively, name of only Harminder Singh stands recorded in the relevant column meant for the person or relative accompanying the patient. Name of Gurcharan Singh does not stand find mentioned therein. There is nothing in the MLCs to depict that PW6 Gurcharan Singh also accompanied -:21:- the two injured to the hospital.
PW5 Harminder Singh, the eldest brother of Hoshiar Singh alias Ishwar Singh and Gurcharan Singh, deposed in court that he with the help of his brother Goldy (PW6) and another, whose name he did not know, shifted Hoshiar Singh alias Ishwar Singh and Narvesh Bahadur to DDU hospital. PW5 did not depose that PW13 Raj Kumar alias Raju, confectioner, helped in removing Hoshiar Singh alias Ishwar Singh and Narvesh Bahadur to a car so as to take them to DDU hospital or that Raju, the confectioner, also accompanied them upto DDU hospital. PW13 Raj Kumar alias Raju, the confectioner, deposed that many persons including the family members of Hoshiar Singh alias Ishwar Singh gathered at the spot and that Hoshiar Singh alias Ishwar Singh and Narvesh Bahadur were taken to hospital by the persons who gathered there. PW13 Raj Kumar did not specifically state that PW6 Gurcharan Singh was in the car in which Hoshiar Singh alias Ishwar Singh and Narvesh Bahadur were removed to DDU hospital. There is nothing on record to explain as to why PW5 Harminder Singh could not tell the name of Raj Kumar (PW13), the confectioner, as the person, who helped them in removing Hoshiar Singh alias -:22:- Ishwar Singh and Navesh Bahadur from the spot to hospital. Had Gurcharan Singh accompanied Hoshiar Singh alias Ishwar Singh and Narvesh Bahadur to DDU hospital, PW13 would not have omitted to name him as their companion.
The above discussed evidence also puts the court on guard to carefully evaluate the prosecution version regarding presence of PW6 Gurcharan Singh on the given date, time and place and that the occurrence was witnessed by him.
Gurcharan Singh deposed that on 09.07.2002 at about 11 p.m, he was having a stroll after dinner, outside his house. According to the witness, while walking, he was coming towards the shop of Raju Confectioner via Lal Building School. At that time, he noticed three boys standing in front of shop of Raju Confectioner, while his brother Hoshiar Singh alias Ishwar Singh was sitting on a takhat outside the said shop of Raju, Confectioner.
As regards the manner in which the occurrence took place, PW6 deposed that out of the aforesaid three boys present in front of the shop of the confectioner, one raised his hand and pointed out towards Hoshiar Singh alias Ishwar Singh ; one of the boys fired at his brother Hoshiar Singh -:23:- alias Ishwar Singh and the bullet hit his brother; that Narvesh, the watchman of their locality, also suffered bullet injury, while standing near the said shop of the confectioner; that Hoshiar Singh alias Ishwar Singh fell down; that one of the three boys stated that work had been done and they should run away and that thereafter all the three young boys ran away towards Lal Building School.
From the above deposition of PW6, it appears to be his version that he witnessed the occurrence while coming from the side of Lal Building School and that the three assailants were present in front of the shop of Raju Confectioner, while Hoshiar Singh alias Ishwar Singh was sitting on a takhat and Narvesh Bahadur was standing near the confectioner's shop.
So far as the place of occurrence is concerned, Shop of Raju, confectioner, is a corner shop with its counter towards the main road but one side of this shop opens in the lane and across the lane, there is a park. Hoshiar Singh was sitting on the takhat, lying in the lane, touching the wall of said park. The lane in between the park and the said shop is about 8/9 feet in width. The park is quite a big park. All this stands admitted by PW6.
-:24:-
Lal Building School is at a distance of half kilometre from the confectioner's shop. It is in the cross examination of PW6 that there was an electric pole on the road. There was no electric pole inside the park adjoining the lane. PW6 further admitted that at the time of occurrence, he was at a distance of 20 paces from the confectioner's shop. According to PW6, he was coming from the front side of the shop. According to PW6, electricity supply was available in the locality including street light, at the time of occurrence. Thus, PW6 wants the court to believe that he witnessed the occurrence, while he was at a distance of 20 paces from the confectioner's shop and when there was electric light.
At this stage, when we advert to the statement of PW13 Raju, the confectioner, it would transpire that he has not supported statement of PW6 Gurcharan Singh on material aspects.
According to PW13, On 09.07.2002 at about 11/11.15 p.m., he was present at his shop being run under the name and style "Shimla Sweet Shop", Plot No. 20, Chand Nagar, near Tilak Nagar, Delhi. He further deposed that he was looking for a candle as light was not available in the shop. It is not that there was no supply of electricity only at -:25:- the shop of PW13 Raj Kumar. In his cross examination, he categorically stated that on that date, he was looking for the candle when electricity supply was not available in the area around his shop. Thus, PW13 has given a fatal blow to the version narrated by PW6 on material aspect.
There is nothing in the statement of PW13 Raj Kumar that he saw PW6 Gurcharan Singh near his shop on the given date and time of occurrence. PW13 also did not state that three persons were present in front of his shop and that out of them, one opened fire at Hoshiar Singh alias Ishwar Singh.
As regards the occurrence, PW13 deposed that while he was looking for the candle, he heard a customer calling him to give him sweets. When he came to the counter and bent to take out sweets so as to give it to the customer, he suddenly heard a sound of bullet being fired and then tried to see as to what had happened. PW13 deposed that then he found that Narvesh Bahadur, watchman of the area, was lying outside his shop and at a distance Hoshiar Singh alias Ishwar Singh was also lying. Had any person fired from in front of the shop of PW13, he would not have omitted to state so. The fact remains that PW13 nowhere deposed that he -:26:- witnessed anyone opening fire at Hoshiar Singh alias Ishwar Singh or Narvesh Bahadur, while present in front of his shop.
PW6 Gurcharan Singh deposed that after the occurrence, he went to his house and called his brother Harminder and then came to the spot. In this regard, when we advert to the statement of PW5 Harminder Singh, brother of PW6, it would transpire that he has not supported the statement of PW6.
PW5 Harminder Singh deposed that on 09.07.2002 at about 11/11.30 p.m., he was watching telecast, while present at his house. On hearing sound of shot being fired, he ran towards the shop of Raju Confectioner. On reaching there, he found his brother Hoshiar Singh alias Ishwar Singh lying on the ground. He also found Narvesh Bahadur lying nearby. PW5 further deposed that his brother Gurcharan Singh Goldy was also present at the site and he met him there. He further deposed that his brother told him that three persons had fired shot at his brother and thereafter run towards Lal Building School. PW5 nowhere stated that Gurcharan Singh had come to the house, called him and it was thereupon that he came out of the house and reached the spot. Therefore, on this aspect, statements of PW5 and 6 -:27:- are in contradiction with each other and the material contradiction creates doubt in the version of prosecution about presence of PW6 Gurcharan Singh on the given date, time and place of occurrence.
As per prosecution version, occurrence took place at 11 p.m. near the shop of Confectioner (PW-13). According to PW13 Raj Kumar alias Raju, the confectioner, many persons had gathered at the spot. Even according to PW-26 SI Jarnail Singh, on reaching the spot he learnt that Hoshiar Singh alias Ishwar Singh and Narvesh, who suffered bullet injuries, had been removed to DDU Hospital. He admitted to have learnt from someone present in the crowd about removal of injured from the spot. However, he did not enquire from him as to how he knew that the persons who had already left for the hospital, were the eye witnesses. He also did not enquire from that person if he himself was an eye witness to the occurrence. The explanation put forth by PW-26 in this respect is that he did not so enquire from them as he was having paucity of time. Even if he did not record statement of anyone present at the spot at that time, he could note down their names and particulars and examine them on his return from the hospital. But the fact remains that he did -:28:- not examine anyone other than Raju Confectioner to verify the version narrated by PW-6 Gurcharan Singh.
PW26 also did not inspect the car in which the two injured are stated to have been removed from the spot to DDU Hospital. The witness further admitted to have not recorded particulars of the car in any of the documents. He even could not tell if there were any blood stains or blood on the clothes of PW-6 Gurcharan Singh or PW-5 Harvinder Singh. Had Gurcharan Singh also removed the injured from the spot, his clothes must have got stained with blood. However, PW-6 did not remember either to have noticed any blood stains or blood on the clothes of Harvinder Singh or Gurcharan Singh or to have seized any of their clothes.
In view of the above discussion , presence of Gurcharan Singh PW6 on the given date, time and place of occurrence becomes doubtful. As a result, the version narrated by him before the police and in Court that he had witnessed the occurrence becomes highly doubtful.
This brings us to the next point: as to whether any of the accused present in the dock was having any motive to commit the crime?
Motive:
-:29:-
Case of prosecution is that Hoshiar Singh alias Ishwar Singh, while in U.S.A., got his life insured for ten thousand dollars and Amar Singh was nominated as the nominee but Amar Singh got mentioned in the insurance policy that he was cousin of Hoshiar Singh alias Ishwar Singh, although he was actually not so related to him. It is also case of prosecution that thereafter Amar Singh asked Hoshiar Singh alias Ishwar Singh to get a false death certificate issued so that the amount of the insurance policy could be collected.
In this respect, prosecution has relied on the statement of PW1 Smt. Tejinder Kaur, widow of Hoshiar Singh alias Ishwar Singh. According to PW1, her husband returned to India from U.S.A. in the year 2001 and thereafter did not visit U.S.A. She further deposed that Amar Singh returned to India about 4/5 months prior to the present occurrence. In the next breath, she stated that Amar Singh returned to India in February 2002 and met her husband in the company of his wife. It is also in her statement that prior to the present occurrence, telephone calls used to be received at their house from Amar Singh and because of the telephone calls, her husband used to remain quite perplexed. She further -:30:- deposed that when Amar Singh visited their house, sometimes prior to the present occurrence, Amar Singh took her husband out of the house. 15/20 minutes thereafter when both of them returned and Amar Singh was leaving the house, he told her husband that he should remember as to what he had told him. At that time, her husband was quite perplexed. She enquired from him as to what was the matter. At that time, her husband told her that Amar Singh was saying him to get a false certificate of his death ( of Hoshiar Singh alias Ishwar Singh ) prepared so that amount of the insurance policy could be taken.
The witness also deposed about seizure of photostate copies of the insurance policy which are Ex. PW1/1 to Ex. PW1/28. These were seized by the police vide memo Ex. PW1/A. It is also in her statement that her husband declined the suggestion of Amar Singh to get his false death certificate prepared.
In order to prove insurance policy, prosecution could take steps to examine any of the official of the insurance company or the authorized agent. However, there is nothing on record to suggest that at any point of time, the investigating officer took any step for joining any official or agent in respect -:31:- of the insurance policy so as to lend corroboration to the statement of PW1 that her husband got his life insured in ten thousand dollars or that Amar Singh was the nominee and that it was Amar Singh who got his relationship as a cousin of Hoshiar Singh alias Ishwar Singh recorded in the insurance policy.
It may be mentioned here that only photostate copies of the insurance policy have been placed on record. Original insurance policy has not been place on record for the reasons best known to the prosecution. In absence of original insurance policy, no reliance can be placed on the photostate copies Ex. PW1/1 to Ex. PW1/28, the same being inadmissible in evidence. It is also significant to note that PW1 Smt. Tejinder Kaur did not support the case of prosecution on material aspects, and as such, she was put leading questions by learned Additional Public Prosecutor after seeking permission from the court. When so examined by putting leading questions, the witness denied that her husband had come to India from U.S.A., about 6/7 months prior to the present occurrence. She further denied that on return to India, her husband informed her that while he was leaving U.S.A. , Amar Singh had told him that his enemy (her -:32:- husband) should get prepared his death certificate and it should be sent to him (Amar Singh) and that he would do the needful. The witness further denied to have stated before the police that at the time Amar Singh was leaving her house, Amar Singh told her husband that in case he did not send him his death certificate, he would get him finished and obtain the genuine death certificate, it being only a matter of Rs. 5000/-. It was suggested to the witness by learned Additional Public Prosecutor that because of passage of time, she had forgotten significant aspects of the talks between her husband and Amar Singh, but the witness denied this suggestion.
Present occurrence is alleged to have taken place on 09.07.2002. PW1 admitted in her cross examination that she was very much available at the house after the death of her husband. But police met her for the first time on 15.07.2002. When the witness was available at her house, her statement should have been recorded without delay.
However, no explanation has been furnished by the police for non-recording of her statement prior to 15.07.2002. This goes to show that the investigating officer recorded statement of this witness lateron to introduce certain facts through her testimony.
-:33:-
Furthermore, had Amar Singh so visited the house of the complainant party or so threatened him with regard to collecting of amount of Insurance Policy of Hoshiar Singh alias Ishwar Singh on the basis of false death certificate, Hoshiar Singh or his wife must have apprised other family members of the same. But there is nothing on record to suggest that either Hoshiar Singh or his wife at any point of time told that he was extended any such threat or that Amar Singh had got mentioned in the Insurance Policy that he was cousin of the former.
None of the other relatives of Hoshiar Singh in this case has deposed that he ever told them of any such fact or threat extended to him. PW6 admitted in his cross- examination that widow of Hoshiar Singh used to live at their house after the occurrence, but she did not tell him anything relating to the death of her husband. PW7 Tej Singh, father of Hoshiar Singh, displayed ignorance as to why his son suffered bullet injury. He denied to have told the police anything about the cause of death of his son.
As noticed above, during investigation none of the officials or officers of the concerned Insurance Policy has been examined or joined in investigation to verify the version -:34:- narrated by PW1. Even otherwise, at no point of time Hoshiar Singh ever wrote any complaint from February, 2002 onwards or at any time prior to the present occurrence intimating any such threat extended to him by the nominee or that Amar Singh had got wrongly mentioned in the policy that he was his cousin or that the policy needed rectification or cancellation on this ground. There is nothing on record to suggest as to why Hoshiar Singh did not take any such step. There is nothing on record to suggest that anything prevented Hoshiar Singh from taking steps in this direction. No evidence has been led if Hoshiar Singh ever reported the matter to the police against Amar Singh. Even otherwise, there is nothing on record to suggest that during investigation at any point of time Amar Singh was joined for interrogation with regard to the allegations leveled against him by PW1-wife of Hoshiar Singh. What to say of joining Amar Singh in the investigation, no step appears to have been taken for his arrest. In the report under Section 173 Cr.PC the only ground put forth for not arresting Amar Singh is that he is resident of U.S.A. Law did not create any hindrance from seeking help of Interpol or other agencies of India to bring Amar Singh to India for interrogation, arrest or trial. But evidence does not reveal that -:35:- any such step was taken at any point of time. Conspiracy between accused Devender Singh alias Kaka; and Rishi Pal and Amar Singh (both not yet arrested) Case of prosecution is that Devender Singh alias Kaka accused and his father Partap Singh had also gone to U.S.A. One Rishi Pal, resident of some area of Distt. Dehradun -brother in law of aforesaid Amar Singh- is also one of the accused shown in column No.2 of the report under Sec.173 Cr.PC. Rishi Pal is also alleged to have gone to U.S.A. Prosecution has alleged conspiracy between Amar Singh, Rishi Pal and Devender Singh alias Kaka to get Hoshiar Singh murdered. In this respect, prosecution has relied on the statement of PW16-Teg Singh-uncle of Hoshiar Singh (since deceased) and brother of PW7 Tej Singh.
PW16 himself was away to U.S.A during the period from 1990-95. According to him, on 9.7.2002 at about noon time, he visited house of Partap Singh of Khyala, Delhi to see him having come to know about his return from USA. At that time, Partap Singh was not found present at the house, but his son Devender Singh alias Kaka (accused) was present there and he met him. Further, according to him, one Rishi Pal resident of an area of Distt.Dehradun, who had also -:36:- come from U.S.A, entered the house of Partap Singh. PW16 further deposed that in his presence Rishi Pal handed over one packet of plastic to Devinder Singh alias Kaka and told him that he should take the hand bag and that rest would be paid after the job was over. PW16 felt that in the plastic packet there were currency notes. It was thereafter at about 11/11.15 p.m, that he learnt about murder of Hoshiar Singh.
As noticed above, prosecution has failed to establish from any cogent, convincing and reliable evidence that Hoshiar Singh got his life insured in U.S.A and that Amar Singh was his nominee for this Policy. PW5 and 6 brothers and PW7 Tej Singh. father, of Hoshiar Singh have not leveled any allegation against Amar Singh for getting Hoshiar Singh murdered or that Amar Singh was hand in gloves with Rishi Pal or Devender Singh alias Kaka, accused.
So far as version narrated by PW16 is concerned, firstly, he nowhere deposed that Amar Singh played any fraud with Hoshiar Singh or with the Insurance Company in getting his name entered therein as a cousin of Hoshiar Singh. In case of any such misconduct on behalf of Amar Singh with Hoshiar Singh, PW1 wife of Hoshiar Singh must have apprised her father in law -PW16 of the same. But there is -:37:- nothing in the statement of PW16 that PW1 ever brought any such fact to his notice.
Herein, PW16 wants the Court to believe that Rishi Pal delivered a packet to Devender Singh alias Kaka in his presence and assured that rest would be paid when the job is complete. The story put forth by PW16 is highly unbelievable. No culprit would even think of delivery of money to his companion for the murder of a person particularly when close relative of the victim, like PW16 is present there in the same room. Secondly, PW16 did not notice any currency notes being delivered by Rishi Pal to Devender Singh alias Kaka. He simply deposed to have felt on seeing the packet being delivered to Devender Singh alias Kaka that there were currency notes in it. It is not believable that when a packet is delivered by one person to the other, the packet must be containing money. Furthermore, in his deposition in Court, PW16 did not attribute any motive to Amar Singh or Rishi Pal or Devender Singh alias Kaka accused.
It was only when leading questions were put to the witness by learned Addl. Public Prosecutor that he admitted that Partap Singh and his son Devender alias Kaka, accused, had returned to India from U.S.A in the month of -:38:- May, 2002.
Had PW16 ever so observed delivery of money by Rishi Pal to Devender Singh alias Kaka at the house of Partap Singh, he would have specifically apprised the police and his other relatives of this fact, atleast after the occurrence. In his cross-examination, PW16 denied to have made any statement before the police in connection with investigation of this case. He denied to have even orally told the aforesaid facts to the police. There is nothing in his statement to suggest that after the murder of Hoshiar Singh he even apprised either PW1 or any other relative examined in this case that he had seen Rishi Pal, resident of U.S.A, delivering a packet or money to Devender Singh alias Kaka at the house of Partap Singh, who also used to visit U.S.A. All this belies the version narrated by PW16.
Testimony of PW18 Naresh Singh, a tailor, who used to run shop as a tenant of Hoshiar Singh (since deceased) Case of prosecution is that a day prior to the present occurrence i.e. on 8.7.2002 at about noon time PW18 Naresh Singh saw Devender alias Kaka, Gulbir alias Sonu son of Tara and three others standing on the road in front of the shop of PW13 Raju, and Devender and Gulbir alias Sonu -:39:- saying to three others that photograph had been provided to them and place pointed out to them and further that they had to do the job within a day and thereafter they would get payment. Thereafter, as per prosecution story, PW18 saw Devender alias Kaka alongwith other boys in an Indica car in front of his shop and they having demanded water from Hoshiar Singh to drink and that after taking water they had gone away. The prosecution story further goes that in the same evening at about 10.30 p.m, Naresh Singh saw Devender Singh alias Kaka and Gurprit alias Sonu accused present in front of the shop of Raju, Confectioner and talking to each other.
While appearing as PW18, Naresh Singh admitted that in the year 2002 he was running a tailor shop in plot No.20, Shyam Nagar, Khyala after taking it on rent from Hoshiar Singh (since deceased) and that he knew Devender alias Kaka accused. He identified Devender alias Kaka and Gulbir Singh alias Sonu accused present in Court, but did not support the case of prosecution to any other extent. He displayed ignorance about this case. He even denied to have made any statement before the police.
Leading questions were put to the witness by the -:40:- learned Addl. Public Prosecutor after seeking permission from the Court, but nothing useful to the prosecution could be elicited from him. When so examined, PW18 denied to have stated before the police that on 8.7.2002 at about noon time, he saw Devender alias Kaka, Gulbir alias Sonu son of Tara and three others standing on the road in front of the shop of Raju, and Devender and Gulbir alias Sonu saying to other three persons that photograph had been provided to them and the place also pointed out to them and further that they had to do the job within a day and thereafter they would get payment.
He admitted to have stated before the police that on 9.7.2002 at about 1 p.m, Hoshiar Singh was present at his shop but denied that Devender alias Kaka had come there in Indica car near his shop or that while sitting in the car, Devender alias Kaka feeling thirsty demanded water from Hoshiar Singh or that three other boys were sitting in the car or that Hoshiar Singh gave them water to drink or that thereafter they went away.
PW18 admitted to have closed his shop on 9.7.2002 at about 8 p.m and then went to his house. However, he denied that at about 10.45 p.m, he left Hoshiar -:41:- Singh outside his house near the shop of Raju, confectioner or that while going on foot he saw Devender alias Kaka and Gurprit alias Sonu standing at the corner of the park and talking to each other.
As noticed above, PW18 has not supported the case of prosecution to any extent. Even otherwise, Raju, Confectioner, has also not supported the case of prosecution regarding presence of any of the accused in front of his shop on 9.7.2002 at about 10.30 p.m. Ghanshyam accused is arrested on 11.08.2002 It is case of prosecution that on 11.8.2002 Ghanshyam accused was arrested from the area of Khyala on the basis of secret information and on search he was found in possession of one country made pistol of .315"bore and two live cartridges. Ghanshyam accused is maternal uncle of Devender Singh alias Kaka accused. PW29 Inspector Rameshwar Singh and PW26 SI Jarnail Singh have deposed about arrest of Ghanshyam accused and recovery of one country made pistol and two live cartridges from his possession on 11.8.2002. They further deposed that it was on the disclosure statement Ex.PW26/A1 made by Ghanshyam accused that Devender alias Kaka and Gurpreet alias Sonu -:42:- accused were arrested on the same day i.e. 11.8.2002. Ghanshyam accused is stated to have refused to participate in the test identification proceedings on 20.8.2002.
It has been argued by learned Addl. PP for State that since Ghanshyam accused refused to take part in test identification proceedings, adverse inference shall be drawn against him. On the other hand, learned defence counsel has argued that in the given facts and circumstances, no adverse inference can be drawn against the accused from his refusal to participate in test identification proceedings.
Then there is statement of PW-29 Inspector Rameshwar Singh. According to PW-29, on interrogation Devender alias Kaka accused showed his ignorance about the present case. He further deposed that it was thereafter revealed that Ghanshyam accused, maternal uncle of Devender alias Kaka, was seen at Khyala in the area of Police Station Tilak Nagar, and as such they started searching for him. PW-29 further deposed that on 11/08/2002, he apprehended Ghanshyam accused from the area of Khyala, interrogated him and recorded his disclosure statement Ex.PW-26/A1. The witness further deposed that Ghanshyam accused was found in possession of one country -:43:- made pistol and two live cartridges which he seized vide memo Ex.PW-22/G after preparing their sketch Ex.PW-26/F. As per contents of recovery memo Ex.PW-26/G, one country made pistol and two live cartridges were recovered from Ghanshyam accused on 11/08/2002, turned into a parcel and sealed with the seal bearing impression 'RS'. However, it is not clear from the contents of EX.PW- 26/G as to from where Ghanshyam accused was arrested on 11/08/2002. Arrest memo Ex.Pw-26/M in respect of Ghanshyam accused would reveal that he was arrested from near park of A-Block, J. J. Colony, Khyala on 11/08/2002 at about 04:40 p.m. PW-26 Sub Inspector Jarnail Singh stated in his cross examination that Ghanshyam accused was spotted at about 01:30 p.m. A perusal of arrest memo would reveal that there is over-writing in the time of his arrest, as intially time of arrest appears to have been written as 02:40 p.m. but after over-writing it reads as 04:40 p.m. It is noteworthy that neither PW-26 SI Jarnail Singh nor PW-29 Inspector Rameshwar Singh were acquainted with Ghanshyam accused. He is stated to have been arrested on the basis of secret information. There is nothing on record to suggest that secret informer went away -:44:- after pointing out towards Ghanshyam accused. In the given facts and circumstances, the person who is stated to have been pointed out towards Ghanshyam accused leading to his arrest, should have been made a witness. The fact remains that prosecution has relied on the statements of two police officials regarding arrest of Ghanshyam accused and recovery from him on 11/08/2002. There is nothing on record to explain non joining of witness from the public on the given date i.e. 11/08/2002 at 01:30 p.m. Pw-26 Sub Inspector Jarnail Singh admitted in his cross examination that there are several shops in the area where Ghanshyam accused was arrested but he displayed ignorance if those shops were lying opened or not. He also displayed ignorance if the investigating officer (PW-29) tried to join anyone from those shops.
It is significant to note that whenever some incriminating material is recovered from someone, rough site plan of the place of arrest and recovery is generally prepared by the investigating officer or the arresting officer. However, in this case, no rough site plan of the place of arrest or recovery of Ghanshyam accused appears to have been prepared.
-:45:-
The parcel containing the country made pistol and the two live cartridges recovered from Ghanshyam accused is stated to have been sealed with the seal bearing impression 'RS'. In suchlike cases, in order to rule out possibility of tampering with case property, investigating officer generally hands over the seal used by him, in sealing the incriminating material, to any of the members of the party. However, in this case there is nothing in the statements of PW-26 or PW-29 or the recovery memo Ex.PW-26/G to suggest that after the use the seal was handed over by PW-29 to SI Jarnail singh, who was accompanying him or to the person who pointed out towards the accused. From this it can safely be said that prosecution has failed to rule out possibility of tampering with the case property i.e. country made pistol and the live cartridge.
Whether any such pistol was used in firing shot at the time of occurrence?
Case of prosecution is that at the time of spot inspection PW-29 Inspector Rameshwar Singh found a lead as well, turned the same into a parcel and sealed the same with his seal bearing impression 'RS'. Recovery memo Ex.PW-26/D is stated to have been prepared in this respect. -:46:- A perusal of Ex.PW-26/D would reveal that it does not contain any note that after use of seal in sealing the parcel, the seal was handed over by the Inspector to anyone else namely Gurcharan Singh or SI Jarnail Singh, the attesting witnesses. Even PW-6 and PW26 nowhere deposed that after use the seal was handed over by the Inspector to anyone of them. Therefore, it can safely be said that prosecution has failed to rule out possibility of tampering with the case property i.e. the lead stated to have been sent to FSL for analysis.
The country made pistol alleged to have been recovered from Ghanshyam accused was sent to FSL for analysis and comparison with the lead recovered from the spot and the pellets recovered by the doctors from the dead bodies.
As discussed above, prosecution has failed to rule out possibility of tampering with the country made pistol and the two live cartridges alleged to have been recovered from Ghanshyam accused. Consequently, it is not safe to place reliance on the report of FSL.
Even otherwise a perusal of report Ex.Z received from FSL would reveal that the expert witness opined that individual characteristics of striation present on two bullets -:47:- "EB1 and EB3" corresponding to bullet of 8 mm/.315" bore cartridge sent for analysis, were insufficient for comparison and opinion if these bullets 'EB1 and EB3' had been fired or not either of the two country made pistols F1 and F2. Therefore, the report Ex.PZ also does not connect Ghanshyam accused with the present crime.
In the given facts and circumstances, when prosecution has failed to establish recovery of any incriminating material from Ghanshyam accused or to rule out possibility of tampering with the case property and FSL report does not connect accused Ghanshyam with the present crime, from the single circumstance that he refused to participate in test identification proceedings, it can not be said that he was involved in commission of the present crime, particularly when PW13 Raju and PW-18 Naresh Singh have not supported the case of prosecution on the point of identity of the accused persons, as discussed above. Arrest of Rakesh @ Kala accused and recovery of country made pistol and cartridge at his instance Case of prosecution is that on 05.09.2002, PW28 SI Neeraj Kumar and PW22 HC Ashwani Kumar reached Haider Nagar, near Mujaffarnagar (U.P.) in the company of -:48:- Rakesh @ Kala accused and at that time, he got recovered one country made pistol of .315" bore loaded with one live bullet from an iron tank lying at his house. It is also case of prosecution that the country made pistol and the live cartridge recovered from Rakesh @ Kala accused were sent to FSL for analysis for comparison.
Learned Additional Public Prosecutor has argued that from the statements of PW22 and PW28, it stands established that Rakesh @ Kala accused was also involved in the present crime. On the other hand, Sh. Vijender Singh, learned counsel for Rakesh @ Kala accused argued that no such police party ever accompanied the accused to his house in Haider Nagar or recovered any such incriminating material and that these incriminating objects have been planted, and as such, no reliance can be placed on the statements of the officials witnesses particularly when there is no corroboration from independent source.
Case of prosecution is that it was on 04.09.2002 that Rakesh @ Kala accused was got produced before the courts at Delhi on production warrants, and as such, he was arrested by Inspector Rameshwar Singh. According to PW29, during interrogation, Rakesh @Kala accused made -:49:- disclosure statement Ex. PW26/A2 and in pursuance thereof got recovered a country made pistol from his house in village Haider Nagar, District Mujaffar Nagar, when SI Neeraj Kumar accompanied the accused to his house on 05.09.2002. From this testimony of PW29, it transpires that Rakesh @ Kala accused was arrested in this case consequent upon his production on issuance of production warrants. Disclosure statement Ex. PW26/A2 stated to have been made by Rakesh @ Kala accused bears attestation of PW26 SI Jarnail Singh. It may be mentioned here that while appearing in court, SI Jarnail Singh should have narrated atleast the admissible portion of the disclosure statement if any such statement was made by Rakesh @ Kala in his presence, so that Court could evaluate as to which fact was discovered in pursuance of any such disclosure statement. However, SI Jarnail Singh nowhere deposed as to what was deposed by Rakesh @ Kala accused in his disclosure statement. That is why, under the law of evidence, the disclosure statement was marked as Mark PW26/AS.
Had Rakesh @ Kala accused made any such disclosure statement in presence of SI Jarnail Singh, the SI would not have omitted to depose that Rakesh @ Kala -:50:- offered to get discovered a country made pistol from his house. No deposition of the contents of disclosure statement, atleast the admissible portion thereof, makes it doubtful if any such disclosure statement was actually made by Rakesh @ Kala accused before PW29 Inspector Rameshwar Singh in presence of SI Jarnail Singh.
PW29 Inspector Rameshwar Singh deposed that in his disclosure statement, Rakesh @ Kala accused disclosed that he could get recovered a country made pistol, used in commission of the present crime, from his house in Village Haider Nagar, District Mujaffarnagar (U.P.). It is not case of prosecution that recovery of country made pistol and the live cartridge, in pursuance of disclosure statement, was made in presence of PW26 or PW29. In respect of recovery, prosecution has placed reliance on the statements of PW22 HC Ashwani Kumar and PW28 SI Neeraj Kumar.
PW22 and PW28 have deposed about factum of recovery of country made pistol from an iron box lying at the house of Rakesh @ Kala accused, on 05.09.2002. They have also deposed about preparation of rough sketch Ex. PW22/A of the country made pistol and live cartridge and recovery memo Ex. PW22/B. -:51:- House of Rakesh @ Kala accused was situated in Haider Nagar, near Mujaffarnagar. SI Neeraj Kumar did not take along any independent witness, while going to the house of the accused. He could atleast take assistance of the local police before conducting search of the house of the accused. PW22 and PW28 have admitted to have visited the local police station, but surprisingly as stated by them, no member of the local police accompanied them to the house of Rakesh @ Kala accused. Even if no member of the local police accompanied or was made available to Delhi Police on 05.09.2002, SI Neeraj Kumar could take steps to join anyone from the locality before entering the house of the accused, keeping in mind the provisions of Section 100 (4) CrPC. However, in this case, there is nothing in the statement of PW28 to show that any effort was made to associate anyone from the locality. Absence of corroboration from independent source on this point of the prosecution version, puts the court on guard to scrutinize statements of police officials with more care and caution, if not to reject their testimony outrightly, solely on the ground that they are official witnesses and interested in the success of their case.
As and when some incriminating material is -:52:- recovered, the police officer, who recovers any such material, generally prepares rough site plan of the place of recovery, so as to depict that it was recovered from such and such place. However, in this case, SI Neeraj Kumar did not prepare any rough site plan of the place of recovery.
Secondly, the country made pistol and the live cartridge are stated to have been turned into a parcel and then sealed with the seal bearing impression "NK". After use of seal in sealing a parcel, investigating officer generally hands over the seal to other members of the party so as to rule out possibility of tampering with the case property. However, in this case, a perusal of recovery memo Ex. PW22/B does not reveal if SI Neeraj Kumar handed over the seal, after its use, to HC Ashwani Kumar or anyone from the public, so as to rule out possibility of tampering with the case property. Even, while appearing in court, neither PW22 nor PW28 deposed that after use, the seal was handed over by the SI to the HC. Thus, prosecution has failed to rule out possibility of tampering with the case property.
It is case of prosecution that one lead recovered from the spot at the time of spot inspection, two bullets-each recovered from the dead bodies- were sent to FSL for -:53:- analysis/comparison with the two country made pistols i.e. one stated to have been recovered from Ghanshyam accused and the other from Rakesh @ Kala accused. As discussed above, prosecution has failed to rule out possibility of tampering with the case property, when SI Neeraj Kumar failed to deliver the seal to anyone else, after its use in sealing the parcel. Secondly, a perusal of report Ex. PZ submitted by FSL would reveal that the individual characteristic of striations present on evidence bullet exhibits 'EB1 & EB3' were insufficient for comparison and opinion whether exhibits 'EB1 & EB3' had been fired through either of these country made pistols .315" bore marked exhibits 'F1 & F2' or not.
In view of the above opinion of the expert witness, it cannot be said that Rakesh @ Kala accused was involved in opening fire at Hoshiar Singh @ Ishwar Singh or Narvesh Bahadur.
It has been argued by learned Additional Public Prosecutor that Rakesh @ Kala accused refused to take part in test identification proceedings, and as such, an adverse inference shall be drawn against him. On the other hand, learned defence counsel has argued that in the given facts -:54:- and circumstances, no adverse inference can be drawn against the accused from his refusal to participate in test identification proceedings.
In the given facts and circumstances, when prosecution has failed to establish recovery of any incriminating material from the accused, to rule out possibility of tampering with the case property and the FSL report, does not connect Rakesh @ Kala accused with the present crime, from the single circumstance that he refused to participate in the test identification proceedings, it cannot be said that he was involved in commission of the present crime, particularly when PW 13 Raju and PW18 Naresh Singh have not supported the case of prosecution on the point of identity of the accused persons, as discussed above.
Evidence regarding stay of Rakesh @ Kala, Gulbir @ Gully and Kuka at Surya Hotel:
It is case of prosecution that Devender @ Kaka and Gurpreet @ Sonu accused made arrangement for stay of Rakesh @ Kala, Gulbir @ Gully accused present in dock and Kuka (not yet arrested) at Surya Hotel in the area of Rajouri Garden and upon their arrest, Devender @ Kaka and Gurpreet @ Sonu, both accused present in the dock, made -:55:- disclosure statements Ex. PW26/O and Ex. PW26/P and in pursuance thereof, got recovered a register from the aforesaid hotel.
In this respect, prosecution has relied on the statements of PW26 SI Jarnail Singh and PW29 Inspector Rameshwar Singh. Recovery memo Ex.PW26/Q is in respect of seizure of register Ex. PW26/2.
A perusal of disclosure statements Ex. PW26/O and Ex. PW26/P attributed to Devender @ Kaka and Gurpreet @ Sonu accused would reveal that they nowhere offered to get recovered any such register in pursuance of their disclosure statements. Even the name of the hotel or the area in which it was situated, do not find mentioned in the disclosure statements.
In case any of the two accused, namely, Devender @ Kaka or Gurpreet @ Sonu offered to get discovered any such register or point out any such hotel, it was duty of the investigating officer to associate a witness from the public to establish recovery thereof beyond any doubt. Memo Ex. PW26/Q would reveal that register Ex. PW26/2 was produced before PW29 in presence of PW26 SI Jarnail Singh by Sh. B.S. Pradeep, Manager of the said hotel. -:56:- Recovery memo Ex. PW26/Q does not bear attestation of Sh. B.S. Pradeep. Process issued for service upon PW B.S. Pradeep to secure his presence during trial, was received back with the report that he was not traceable at the given address. The fact remains that there is no independent corroboration to the statements of PW26 and PW29 to establish recovery of any such register from any such hotel in the area of Rajouri Garden at the instance of the aforesaid two accused.
It is case of prosecution that one of the accused made entry in register Ex. PW26/2 regarding stay of Rakesh @ Kala, Gulbir @ Gully and Kuka (not yet arrested) in Surya Hotel, Rajouri Garden. In this respect, the investigating officer was supposed to collect specimen handwriting and signatures of the accused persons so as to establish that the relevant entry was made by such and such accused, and that such and such accused stayed in the said hotel on such and such date. However, no such step appears to have been taken by the Investigating Officer so as to establish that such and such accused stayed in the aforesaid hotel soon before the occurrence, so as to connect Devender @ Kaka, Gurpreet @ Sonu, Rakesh @ Kala and Gulbir @ Gullu accused, -:57:- present in the dock.
Arrest of Gulbir alias Gully accused.
Gulbir @ Gully accused is stated to have been arrested by the police on 16.07.2003 on the basis of secret information that he was present at NSIT College, Dwarka. According to PW26 SI Jarnail Singh, he accompanied by Constables Dharambir and Ramesh reached Service lane in between the two gates of the aforesaid college, and apprehended Gulbir @ Gully and recovered from his possession one knife. Separate case under the Arms Act is stated to have been registered against Gulbir @ Gullu. It is not case of prosecution that the said knife was used in commission of the present crime. As discussed above, evidence regarding stay of Gulbir @ Gully accused in Surya Hotel soon before the presence occurrence, as discussed above, has not been established. PW18 Naresh Singh, the witness examined to prove identification of the accused persons, has also not supported the case of prosecution at all, as discussed above.
In view of the above discussion, this court comes to the conclusion that prosecution has failed to connect even Gulbir @ Gullu accused with commission of the present -:58:- crime.
Conclusion:
In view of the above findings, this court comes to the conclusion that prosecution has failed to substantiate any of the accusation levelled against any of the five accused present in the dock so as to bring home guilt for any of the offences for which they have been facing trial. Consequently, all the five accused persons present in dock namely Ghanshyam, Gulbir alias Gullu, Gurpreet Singh alias Sonu, Rakesh Kumar alias Kala and Devender Singh alias Kaka are acquitted. They be released from custody if not required to be detained in any other case.
File be consigned to record room U/s. 299 CrPC as regards the three accused who are yet to be arrested. Case property be retained.
Announced in Open Court Dated: 07th of September, 2007 [NARINDER KUMAR] Additional Sessions Judge Fast Track Court: Rohini/Delhi 07-09-2007 -:59:-