34.In The Judgment Reported As Kishore ... vs State Of Himachal on 27 July, 2016

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Delhi District Court

34.In The Judgment Reported As Kishore ... vs State Of Himachal on 27 July, 2016

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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
SPECIAL JUDGE (NDPS) NORTH WEST,
ADDITIONAL SESSIONS JUDGE, ROHINI COURTS, DELHI

New Sessions Case Number : 52472/2016.
Old Sessions Case Number : 46 of 2014.
Unique ID Number : 02404R0129602014

State
Versus

Mr.Shakti Solanki
Son of Mr. Satya Narayan
Resident of House No. A Budh Vihar,
Phase I, Main Kanjhawala Road, Delhi.

First Information Report Number : 70/2014
Police Station : Vijay Vihar
Under section 302 of the Indian Penal Code
and Under section 24/27/54/59 Arms Act.

Date of filing of the charge sheet before : 05.05.2014.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 15.05.2014.
Arguments concluded on : 27.07.2016.
Date of judgment : 27.07.2016.

Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State.
Accused Mr.Shakti Solanki on bail with counsel,
Mr. Rajbir Malik.
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New Sessions Case Number : 52472/2016.
Old Sessions Case Number : 46 of 2014.
Unique ID Number : 02404R0129602014
FIR No.70/14 , Police Station Vijay Vihar
Under section 302 of the Indian Penal Code and under sections 24/27/54/59 Arms Act
State v. Shakti Solanki -:: Page 1 of 49 ::-
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JUDGMENT

"For a deadly blow let him pay with a deadly blow; it is for him who has done a deed to suffer"....Aeschylus, The Libation Bearers.

1. This is a case where unfortunately a human life has been lost and the life of the accused can be taken away in case of conviction. Mr. Shakti Solanki, the accused, has been charge sheeted by Police Station Vijay Vihar for the offences under section 302 of the Indian Penal Code (hereinafter referred to as the IPC) and under section 24/27/54/59 Arms Act on the allegations that on 20.01.2014 at unknown time at near Sanjay Band, A 51, Budh Vihar, Phase 1 Main Kanjhawala Road, Delhi, he intended to kill Mr.Sumit Giri and armed with prohibited arm and ammunition, i.e an improvised pistol 7.65 mm bore, as reflected in the sketch of the said pistol filed with the chargesheet, with live cartridge, he fired bullets on the person of Mr.Sumit Giri causing injuries by firing bullets from the pistol on chest and right side of occipital region of Sumit Giri causing his death and he committed murder of Mr.Sumit Giri. Further, Mr.Shakit Solanki, accused, was armed with improvised pistol along with live cartridges and used the said pistol and cartridges for causing injuries and consequent death of Mr.Sumit Giri. He also got recovered the improvised pistol on 06.02.2014 during police custody from a drain in an empty plot in Pocket 4, Sector 23, Rohini and the said arm and ammunition is a prohibited New Sessions Case Number : 52472/2016.

Old Sessions Case Number : 46 of 2014.

Unique ID Number : 02404R0129602014 FIR No.70/14 , Police Station Vijay Vihar Under section 302 of the Indian Penal Code and under sections 24/27/54/59 Arms Act State v. Shakti Solanki -:: Page 2 of 49 ::-

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arm and ammunition within the definition of section 7 read with section 2(b) & (c) of the Arms Act, 1959. By possessing and using the said arm and ammunition, he committed murder of Mr.Sumit Giri.

CHARGE SHEET AND COMMITTAL

2. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 05.05.2014 and after its committal, the case was assigned to the learned predecessor of this Court for 15.05.2014.

CHARGE

3. After hearing arguments, charge for offences under section 302 IPC and under section 25 and section 27 (2) of Arms Act, 1959 was framed against accused Mr. Shakti Solanki vide order dated 18.11.2014 by the learned predecessor of this Court to which Mr. Shakti Solanki, accused, pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE

4. In order to prove its case, the prosecution has examined as many as 29 witnesses i.e. Ct.Vikram Singh, who had deposited the exhibits of the case at FSL and taken the accused for the DNA test, as PW1; Dr. Mukesh Kumar, SR, Forensic Medicine, BSA Hospital, who conducted the post mortem on the body of Mr.Sumit Giri, as PW2; ASI Ajit Singh, who was Incharge of the Crime Team and gave his report, as PW3; Ct.Sandeep, photographer of New Sessions Case Number : 52472/2016.

Old Sessions Case Number : 46 of 2014.

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the Crime Team, as PW4, HC Shiv Om, Finger Print Expert of the Crime Team, as PW5; Ct. Heera Ram, a witness of investigation who remained with the Investigation Officer Inspector Ajay Kumar, as PW6; Mr. M.L Meena, Senior Scientific Officer (Chemistry), FSL, Rohini who gave the FSL report, as PW7; SI Sonu Ram, a witness of investigation who remained with the Investigation Officer, as PW8; Ct.Vinod, who collected the exhibits of case and deposited in the FSL, as PW 9; Ct.Satender, who delivered the copies of the FIR to the different authorities, as PW 10; ASI Jai Parkash, the Duty Officer who had recorded the DD No.37A about a quarrel and subsequently the FIR of the case, as PW11; Mr.Sushil Giri, brother of the deceased Mr.Sumit Giri, who identified his dead body, as PW12; Mr.Vikas Giri, who informed the police about the shutter of a band shop being broken and blood lying inside the shop, as PW13; Mr.Ajeet, nephew of Mr.Satish in whose shop, the body of deceased Mr.Sumit Giri was found, as PW14; SI G.R Tanwar, the first Investigation Officer who went to the spot on receipt of DD No.37A, as PW15; Mr.V.R Anand, Assistant Director Ballistic, FSL, Rohini, who examined the arm and ammunition of the case, as PW 16; Mr.Satish, in whose shop the body of the deceased was found, as PW17; Ms.Sunita Gupta, Senior Scientific Officer (Biology), as PW18; Mr. Jitender Kumar, Senior Scientific Officer (Chemistry), as PW19; Inspector Manohar Lal, Draftsman who prepared the site plan of the crime scene, as PW20; Ct. Munish, who accompanied SI G.R.Tanwar, to the spot, as PW21;

New Sessions Case Number : 52472/2016.

Old Sessions Case Number : 46 of 2014.

Unique ID Number : 02404R0129602014 FIR No.70/14 , Police Station Vijay Vihar Under section 302 of the Indian Penal Code and under sections 24/27/54/59 Arms Act State v. Shakti Solanki -:: Page 4 of 49 ::-

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Mr. Mukesh Kushwaha, photographer who videographed the proceedings of recovery of the pistol, as PW22; Mr.Ajay Giri, brother of deceased Sumit Giri, who identified his body, as PW23; Inspector Kanchan Lal, who was assigned further investigation of this case, as PW24; Ct. Ombir, who recorded the information in the CPCR, PHQ, as PW25; SI Gajender, a witness of investigation who remained with the Investigation Officer Inspector Ajay Kumar, as PW26; Inspector Ajay Kumar Singh, Investigation Officer, as PW27; Ms.Shweta Chauhan, DCP (Traffic), who gave sanction under section 39 of the Arms Act, as PW28; and Ms. Imrana, Senior Scientific Officer (Biology), FSL, Rohini, as PW 29.

5. The accused have preferred not to cross examine PWs 1, 7, 9, 10, 11, 12, 16, 18, 19, 20, 22, 25 and 29 due to which their evidence remains uncontroverted and unrebutted and can be presumed to have been admitted as correct by the accused.

STATEMENT OF ACCUSED UNDER SECTION 313 OF THE CR.P.C. AND DEFENCE EVIDENCE

6. In his statement under section 313 of the Cr.P.C., the accused has controverted and rebutted the entire evidence against him and submitted that he is innocent and has been falsely implicated in the present case and has not committed any offence. Accused Mr.Shakti Solanki has preferred not to lead evidence in his defence.

ARGUMENTS

7. I have heard arguments at length. I have also given my conscious New Sessions Case Number : 52472/2016.

Old Sessions Case Number : 46 of 2014.

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thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. I have also carefully perused the written synopsis filed on behalf of the accused.

8. The Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offences under section 302 of the IPC and under section 25 and under section 27 (2) of Arms Act, 1959, submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are consistent, corroborative and reliable.

9. The counsel for the accused has requested for his acquittal submitting that there is no direct or circumstantial evidence against him. Nothing incriminating has been recovered from the possession of the accused or at his instance. The pistol was already lying at the spot where the body was recovered and could not have been recovered at the instance of the accused from the drain. The pistol was carried by the Investigation Officer, put in the drain and the accused was made to take it out and the entire proceedings were got video graphed in order to falsely implicate the accused. The finger prints were also not lifted from the weapon of offence nor examined. No independent witnesses including the owner of the plot from where the recovery of the pistol was effected have been examined. There is no eye witness of the alleged incident. New Sessions Case Number : 52472/2016.

Old Sessions Case Number : 46 of 2014.

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DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS

10.The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concertized. It would depend upon the evidence of each case New Sessions Case Number : 52472/2016.

Old Sessions Case Number : 46 of 2014.

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including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.

11.Under this sphere, I now proceed to test the submissions of both the sides.

CASE OF THE PROSECUTION, ALLEGATIONS AND PROVED DOCUMENTS

12.The prosecution story unveils on 20.01.2014 with Ct. Ombir (PW25) receiving information from the mobile no. 8059130233 regarding quarrel at near Laxmi Dairy. Ct Ombir (PW25) filled up the PCR form (Ex.PW25/A) and sent this information to Console for onward transmission. On receipt of information ASI Jai Parkash (PW11) recorded DD No. 37 A (Ex.PW11/A) and attested copy and true copy of same (Ex.PW11/B and Ex.PW11/C) and the call was assigned to SI G.R.Tanwar (PW15). On 20.01.2014 at about 03:00-03:30 pm after putting the shutter of shop down, Mr. Satish (PW17) along with entire band party went to Sect-21 Rohini in a marriage function. After finishing the work, he returned to the shop at 11:00 pm along with party Mr.Ajeet (PW14), Mr. Vikas Giri (PW13) and others. Mr.Ajeet (PW14) and Mr. Vikas Giri (PW13) went to the shop prior to Mr.Satish (PW17). Then Mr. Ajeet New Sessions Case Number : 52472/2016.

Old Sessions Case Number : 46 of 2014.

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(PW14) telephonically called him and told that the shutter of his shop was broken. Mr. Satish instructed Mr.Ajeet to immediately call the police. On 20.01.2014 at about 11.05 pm on receipt of DD No. 37A (Ex.PW11/A) regarding quarrel, SI G.R.Tanwar (PW15) along with Ct. Munish (PW21) reached the place of incident at premises no. A-51, First floor, Main Kanjhawala Road, which was the shop of Sanjay Band. IO SI G.R.Tanwar (PW15) found that half shutter of shop was lying opened. They entered the shop and found blood was scattered inside the shop. One live cartridge and one cartridge (Khol) were lying at the spot. They also found two plastic glasses and one empty half bottle of liquor of Brand Imperial Blue Whisky and dead body of one male aged about 20-22 years. There was a wound of bullet on the chest of the body A bunch of hair (balon ki lat) and a Voter ID were also lying near the body. From the Voter ID, it revealed the identity of that person as Sumit Giri. In the meantime, Addl. SHO Insp. Ajay (PW27) along with staff reached the spot. The Crime Team Incharge ASI Ajit Singh(PW3) along with HC Shiv Om, Fingerprint Expert (PW5) and Ct. Sandeep, Photographer (PW4) reached at the spot. ASI Ajit Singh (PW3) inspected the crime scene at the spot and prepared report (Ex.PW3/A). Ct.Sandeep (PW4) obtained the photographs (Ex.PW4/A-1 to Ex.PW4/A-22) of the crime scene from different angles with the negatives (Ex.PW4/B-1 to Ex.PW4/B-22). HC Shiv Om (PW5) lifted finger prints/chance prints from the two New Sessions Case Number : 52472/2016.

Old Sessions Case Number : 46 of 2014.

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plastic glasses found at the crime scene. IO SI G.R.Tanwar (PW15) lifted blood, bunch of hairs, live cartridges, empty cartridge, the pieces of floor, pieces of blood stained floor, voter ID Card of deceased, two plastic glasses and empty half bottle of liquor and prepared separate parcels of said articles and seized vide seizure memo (Ex.PW15/A). IO SI G.R.Tanwar (PW15) found no eye witness at the spot. He made endorsement (Ex.PW15/B) on the copy of DD No. 37A (Ex.PW11/A) for registration of FIR under section 302 IPC and 25/27 Arms Act and handed over to Rukka (Ex.PW15/B) to Ct. Munish (PW21) and sent for registration of FIR. On the basis of rukka (Ex.PW15/B), ASI Jai Parkash, Duty Officer, (PW11) registered the FIR No. 70/2014 (Ex.PW11/D) and made endorsement on the rukka (Ex.PW11/E). The certificate under section 65 B Indian Evidence Act (Ex.PW11/F) was issued by him. ASI Jai Parkash, Duty Officer (PW11) also made entry DD No. 2A and 3A collectively (Ex.PW11/G) regarding commencement of registration of FIR and copies of the FIR sent to the concerned learned Metropolitan Magistrate and to the senior police officers through Ct. Satender (PW10). Further investigation was assigned to Insp. Ajay Kumar (PW27). SI G.R.Tanwar (PW15) handed over the seizure memo (Ex.PW15/A) and all the exhibits to second IO Insp. Ajay Kumar (PW27). Ct. Munish (PW21) handed over the FIR (Ex.PW11/D) and original rukka (Ex.PW15/B) to Insp. Ajay Kumar (PW27). IO Insp. Ajay Kumar (PW27) inspected the spot as well as the dead body with SI G.R.Tanwar (PW15). IO Insp. Ajay Kumar (PW27) prepared site plan (Ex.PW27/A).

IO Insp Ajay Kumar (PW27) sent the dead body to the mortuary of BSA Hospital through Ct. Munesh (PW21) and SI G.R.Tanwar (PW15) and New Sessions Case Number : 52472/2016.

Old Sessions Case Number : 46 of 2014.

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recorded the statements of Crime Team officials. IO Insp. Ajay Kumar (PW27) made enquiry regarding ownership of shop in which dead body was found. On enquiry, it revealed that shop was in the joint names of two brothers namely Shakti Solanki (accused) and Amit Solanki and situated at the first floor of premises no A-51, Budh Vihar, Phase-I, Main Kanjhawala road, Delhi. Accused Mr.Shakti Solanki and Amit Solanki were residing at the ground floor of the same premises. IO made enquiries from the mother of the accused, who informed that he and Amit Solanki were not present in the house. Thereafter IO Insp. Ajay Kumar Singh (PW27) along with SI G.R.Tanwar (PW15) went to Mortuary of BSA Hospital. IO Insp.Ajay Kumar Singh (PW27) conducted the inquest proceedings and prepared form no. 25.35 (Ex.PW27/B) and prepared PM request form and brief facts (Ex.PW27/C and Ex.PW27/D). There the relatives of the deceased namely Mr. Ajay Giri (PW23) and Mr.Sushil Giri (PW12) identified the dead body of Mr.Sumit Giri. IO Insp Ajay Kumar Singh (PW27) recorded the statements of Mr. Sushil Giri (Ex.PW12/A) and Mr. Ajay Giri (Ex.PW23/A) regarding identification of dead body of Mr.Sumit Giri. IO got conducted the postmortem examination and the post mortem examination was got videographed by a private photographer. Dr.Mukesh Kumar (PW2) conducted the post mortem of Mr.Sumit Giri and prepared post mortem report (Ex.PW2/A).

After the post mortem, the dead body of Mr.Sumit Giri handed over to the relatives of deceased. After the post mortem, the doctor handed over some sealed parcels along with sample seal which were seized by IO vide seizure memo (Ex.PW15/C). Thereafter IO Insp. Ajay Kumar Singh (PW27) along with SI New Sessions Case Number : 52472/2016.

Old Sessions Case Number : 46 of 2014.

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G.R.Tanwar (PW15) again went to the spot for search of the accused and Amit Solanki. However the accused and Amit Solanki could not found present in the house. IO called the Insp. Manohar Lal, Draftsman (PW20) at the spot. Insp. Manohar Lal, Draftsman (PW20) inspected the crime spot of the present case and prepared notes and took measurements of the crime scene for preparation of scaled site plan (Ex.PW20/A) and handed over the same to IO Insp. Ajay Kumar Singh. Thereafter, the IO Insp. Ajay Kumar Singh (PW27) deposited the exhibits in the Malkhana. Thereafter, the IO made efforts for search of you and Amit Solanki but you could not be traced. Thereafter, IO Insp. Ajay Kumar Singh deposited the exhibits in the Malkhana through Ct. Vikram (PW1) and Ct. Vinod (PW9). On 05.02.2014, IO Insp. Ajay Kumar Singh (PW27) along with SI Sonu Ram (PW8) and Ct.Heera Ram (PW6) reached at Budh Vihar Phase-I. One secret informer informed them that Mr.Shakti Solanki, accused, was seen at Shukkr Bazar (Friday market) road near Mange Ram Park. IO Insp. Ajay Kumar Singh with the help of staff nabbed the accused and interrogated him. Accused Mr.Shakti Solanki was arrested vide arrest memo (Ex.PW6/A). His personal search was conducted vide personal search memo (Ex.PW6/B). He was interrogated and his disclosure was recorded vide disclosure statement (Ex.PW6/C).

Thereafter, he was taken to the crime spot and he pointed the crime spot. IO prepared the pointing out memo (Ex.PW6/D) at his instance. Accused Mr.Shakti Solanki was produced in the Court and one day's PC remand was obtained. Thereafter, he was taken to Village Savda, near Ghevra and IO made search for the burnt clothes but same could not be recovered. Thereafter, he was taken to Lova Mazra, Bahadurgarh as he had disclosed New Sessions Case Number : 52472/2016.

Old Sessions Case Number : 46 of 2014.

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that he had hidden the pistol in barren land. IO made search for the pistol but no pistol could be recovered. Thereafter he was brought to the Police Station. On 06.02.2014, accused Mr.Shakti Solanki was again interrogated and he made supplementary disclosure statement (Ex.PW26/A). He disclosed that he can get recovered the pistol from a plot situated in Sector 23, Rohini. During that time Mr. Ajay Giri, brother of deceased (PW23) came to Police Station. Considering the possibility of recovery, Mr.Mukesh Kushwaha, photographer (PW22) was also called in the Police Station. Thereafter, IO Insp. Ajay Kumar Singh (PW27) along accused Mr.Shakti Solanki, his staff, Mr. Ajay Giri (PW23) and Mr.Mukesh Kushwaha, photographer (PW22) reached at vacant plot, situated in Pocket 4, Sect-23, Rohini. Accused Mr.Shakti Solanki led the police party towards a drain in that vacant plot and got recovered one pistol from the drain. The recovery of pistol was got videographed. Mr.Mukesh Kushwaha, photographer (PW22) prepared the CD (Ex.PW22/B) in his office and took out nine still photographs (Ex.PW22/A1 to Ex.PW22/A9) from the video film and handed over to the IO. Thereafter, IO prepared the sketch of the recovery pistol (Ex.PW26/B). IO Insp. Ajay Kumar Singh (PW27) prepared a cloth parcel of the pistol and sealed with the seal of AKS and seized vide seizure memo (Ex.PW26/C). IO also prepared the site plan of the place of recovery (Ex.PW26/D). Thereafter, IO sent accused Mr.Shakti Solanki along with SI Gajender (PW26) for producing him in the Court. SI Gajender (PW26) returned to Police Station from the Court and informed that the accused was sent to JC and returned the case file to IO.

Thereafter, IO Insp. Ajay Kumar Singh (PW27) got deposited the exhibits New Sessions Case Number : 52472/2016.

Old Sessions Case Number : 46 of 2014.

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in the FSL through Ct. Vikram (PW1). Thereafter IO was transferred from PS Vijay Vihar and deposited the case file with MHCR. The further investigation assigned to Insp.Kanchan Lal (PW24). IO Insp. Kanchan Lal (PW24) moved an application (Ex.PW24/A) for obtaining the production warrant of the accused from the Court for taking him to hospital for obtaining his blood samples. IO Insp. Kanchan Lal (PW24) took the accused to BSA Hospital and got him medically examined. After medical examination, the doctor handed over the samples pertaining to the accused, which were seized by IO vide seizure memo (Ex.PW1/A). Thereafter, IO deposited all the exhibits in the FSL. IO Insp. Kanchan Lal (PW24) recorded the statements of witnesses and after completing the investigation, filed the charge sheet. IO Insp. Kanchan Lal also collected the FSL results prepared by Mr. M.L.Meena, Sr. Scientific Officer (Chemistry) (PW7) vide his report (Ex.PW7/A), Mr. V.R.Anand, Asstt Director Ballastic, FSL (PW16) vide his report (Ex.PW16/A), Ms. Sunita Gupta, Senior Scientific Officer (Biology) FSL Rohini (PW18) vide her reports (Ex.PW18/A and Ex.PW18/B), Mr. Jitender Kumar, Senior Scientific Officer (Chemistry), FSL Rohini vide his report (Ex.PW19/A) and Ms. Imrana, Senior Scientific Officer (Biology), FSL Rohini (PW29) vide her reports (Ex.PW29/A and Ex.PW29/B). On 09.10.2014, the file comprising of draft charge sheet, FSL results, statements of the witnesses and seizure memo and sketch of pistol recovered from accused Mr.Shakti Solanki were placed before Ms. Shweta Chauhan, DCP (Traffic) (PW28).

After perusing the file, Ms. Shweta Chauhan, DCP (Traffic) (PW28) gave sanction under section 39 Arms Act vide Sanction order (Ex.PW28/A) for the prosecution of the accused for the offences under section 25 Arms Act New Sessions Case Number : 52472/2016.

Old Sessions Case Number : 46 of 2014.

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vide concerning which FIR No. 70/2014 (Ex.PW11/D) was registered in the PS Vijay Vihar qua murder of a person and from the crime scene one empty cartridge and one live round were recovered. IO after obtaining permission under section 39 Arms Act from DCP Ms. Shweta Chauhan (PW28) for the prosecution of the accused under section 25 Arms Act filed the supplementary charge sheet along with FSL results and permission sanction under section 39 of Arms Act (Ex.PW28/A).

13.The allegations against accused Mr.Shakti Solanki are that 20.01.2014 at unknown time at near Sanjay Band, A 51, Budh Vihar, Phase 1 Main Kanjhawala Road, Delhi, he killed Mr.Sumit Giri with prohibited arm and ammunition, i.e an improvised pistol 7.65 mm bore by firing bullets from the pistol on chest and right side of occipital region of Mr.Sumit Giri causing his death. He also got recovered the improvised pistol on 06.02.2014 during police custody from a drain in an empty plot in Pocket 4, Sector 23, Rohini.

IMPORTANT ISSUES

14.The important issues and the points in dispute are being discussed hereinafter.

MEDICAL AND FORENSIC EVIDENCE

15.PW2 Dr.Mukesh Kumar had conducted the post mortem on the body of Mr.Sumit Giri vide the post mortem report (Ex.PW2/A). He has opined that death is due to combined effect of cranio New Sessions Case Number : 52472/2016.

Old Sessions Case Number : 46 of 2014.

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cerebral damage and hemorrhagic shock consequent upon penetrating injury to the head and chest. All injuries are ante mortem, fresh in nature. Injury no. 5 and 7 are caused by a projectile discharged from some firearm and sufficient to cause death in the ordinary course of nature. Other external injuries could be caused by blunt force. In his cross examination on behalf of the accused, he has admitted that there was no singeing and tattooing around injury numbers 5 and 7, as is in case of gun shot fire. He has also admitted that he has mentioned the weight, size, length and dimension of bullet recovered from injury no.5 in the post mortem report and has not mentioned the weight, size, length and dimension of bullet recovered from injury no. 7. He has admitted that there may be use of two different firearms/weapons for causing injury no. 5 and 7. He has also admitted that both the entry wounds were caused from two different distances with different dimensions.

16.It is clear from the post mortem report of deceased Mr.Sumit Giri (Ex.PW2/A) that his death is due to combined effect of cranio cerebral damage and hemorrhagic shock consequent upon penetrating injury to the head and chest. There is use of firearms to shoot him with which he has received injury numbers 5 and 7. The use of two firearms also cannot be ruled out.

17.In the present case, only one improvised pistol has been recovered, allegedly at the instance of the accused, from a drain where he had New Sessions Case Number : 52472/2016.

Old Sessions Case Number : 46 of 2014.

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thrown it to hide it.

18.There are four FSL experts who have been examined by the prosecution.

19.PW7, Mr.M.L.Meena, Senior Scientific Officer (Chemistry), FSL, has furnished his FSL report (Ex.PW7/A). He has examined the two plastic glasses and a half bottle ('1A' and '1B') and '1B' was found to contain 'Ethyl Alcohol'.

20.PW16, Mr.V.R.Anand, Assistant Director (Ballistics), FSL, has furnished his FSL report (Ex.PW16/A). He has examined one improvised pistol 7.65 mm bore ('F1'), two 7.65 mm bullets ('EB1' and 'EB2') and one 7.65 mm cartridge case ('EC1') and one 7.65 mm cartridge ('A1'). He opined that 'F1', 'A1' 'EC1', 'EB1' and 'EB2' are firearm/ammunition as defined in the Arms Act, 1959. 'EB1' and 'EB2' have been discharged from through the improvised pistol 'F1'. 'EC1' has not been fired through the improvised pistol 'F1'.

21.PW19, Mr.Jitendra Kumar, Senior Scientific Officer (Chemistry), FSL, has furnished his FSL report (Ex.PW19/A). He has examined the viscera of the deceased Mr.Sumit Giri (Parcel-1) and it was found to contain 'Ethyl Alcohol'.

New Sessions Case Number : 52472/2016.

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22.PW29, Ms.Imrana, Senior Scientific Officer (Biology), FSL has furnished her FSL reports (Ex.PW29/A and Ex.PW29/B). She has examined the blood in gauze (exhibit '1'), strands of hair (exhibit '2') and strands of hair (exhibit '3'). DNA could not be isolated from exhibit '2' and '3' and exhibit '1' had human blood of 'B' group.

23.It is clear from the FSL reports that Mr.Sumit Giri, the deceased, had not died due to the use of and firing by the improvised pistol, allegedly recovered at the instance of the accused from a drain, as 'EC1' i.e. one 7.65 mm cartridge case has not been fired through 'F1' i.e. the improvised pistol.

24.It is clear that there is no forensic or medical evidence against the accused to connect the improvised pistol, arms and ammunition recovered in the present case to connect him with the murder of deceased Mr.Sumit Giri.

ARREST OF ACCUSED

25.The prosecution story is regarding a blind murder of Mr.Sumit Giri.

The police was informed vide DD No.37A dated 20.01.2014 (Ex.PW11/B and Ex.PW11/C) at 10:55 pm through mobile number 8059130233 by Mr.Vikas Giri (PW13) using the phone of Mr.Ajay Giri (PW23) about a quarrel on which SI G.R.Kanwar (PW15) went to the spot along with Ct.Munish (PW21). They New Sessions Case Number : 52472/2016.

Old Sessions Case Number : 46 of 2014.

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reached at premises No.A-51, First Floor, Main Kanjhawala Road which was the shop of Sanjay Band and found the shutter half open. They entered the said shop after lifting the shutter and found blood was scattered inside the shop. One live cartridge and one empty cartridge (khol) were lying at the spot. The words K.F 7.65 were engraved on the live cartridge as well as empty cartridge. There was a table inside the shop on which two plastic glasses and one empty half bottle of liquor of brand Imperial Blue Whisky was kept on the table. A chair was also lying near the table. There was a cabin inside the shop and checked the cabin and found a dead body of one male aged about 20-22 years was lying with its face and front side towards the ground. There was a wound of bullet on the chest of body. A bunch of hairs (balon ki lat) was lying near the dead body. A voter ID card was also lying in the cabin which revealed the identity of that person as Sumit Giri.

26.Apparently the culprit was not present at the spot when the police reached there to find the dead body of Mr.Sumit Giri. There was no eye witness also.

27.Thereafter, Inspector Ajay Kumar Singh (PW27) took over the investigation. He made enquiry regarding the ownership of the shop in which the dead body was found and on enquiry it was revealed that shop was in the joint name of two brothers namely Shakti Solanki and Amit Solanki. The shop was situated at the first floor of premises no.A-51, Budh Vihar, Phase-I, Main Kanjhawala New Sessions Case Number : 52472/2016.

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road, Delhi. Shakti Solanki and Amit Solanki were residing at the ground floor of the same premises and he made enquiries from the mother of Shakti Solanki who informed that her both sons Shakti Solanki and Amit Solanki were not present in the house at that time. He alongwith SI G.R. Tanwar again went to the spot to search the suspect Amit Solanki and Shakti Solanki, however they were not found present in their house. He further deposed that he made search for the suspects on 21.01.2014 and also on 22.01.2014 but they could not be traced. On 05.02.2014, he alongwith SI Sonu Ram and Ct. Heera left Police Station at about 10:00 am for investigation of this case and reached Budh Vihar, Phase-1. At about 12:45 pm, one secret informer came and informed that Shakti Solanki was seen at Shukkr Bazar (Friday Market) Road, near Mange Ram Park. On receipt of this information, he requested some passers-by to join the investigation but none joined and went away without disclosing their identity. Thereafter, they alongwith secret informer reached at Shukkr Bazar (Friday Market) Road, near Mange Ram Park at about 01:10 pm. Secret informer pointed towards one person who was present on the road and identified him as Shakti Solanki. Thereafter, the secret informer left the spot. He with the help of his staff nabbed Shakti Solanki and interrogated him and was arrested in the present case.

28.It is clear that the prosecution has failed to show as to how the police had connected the accused with the murder of Mr.Sumit Giri. There was no eye witness available. There was nothing New Sessions Case Number : 52472/2016.

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belonging to the accused recovered at the spot which could show the role of the accused at spot. He is only a joint owner of the premises where the murder was committed.

29.As regards the secret information given to Inspector Ajay Kumar Singh (PW27) by the secret informer, the prosecutiuon has not shown on record as to what was the information; whether this secret information was that the accused had committed the murder of Mr.Sumit Giri or what his role was in the murder of Mr.Sumit Giri or that he was coming to the spot from where he was arrested.

30.SI Sonu Ram (PW8) who was with the Investigation Officer Inspector Ajay Kumar (PW27) and Ct.Heera Ram (PW6) has deposed that "Secret information was not reduced in writing by the IO."

31.Neither the secret information has been reduced in writing nor the secret informer has been examined by the prosecution. In the judgment reported as Karan Singh v. State (NCT of Delhi), 130 (2006) DLT 114, the hon'ble High of Delhi has observed that the secret information is inadmissible unless and until and provider of such information is examined in Court.

32.Merely on the basis of secret information, the accused has been arrested in the present case. This secret information is inadmissible New Sessions Case Number : 52472/2016.

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as neither it is reduced in writing nor the provider of this secret information has been examined. Till the arrest of the accused, the police and the prosecution did not have any incriminating evidence against him. It appears that the accused has been wrongly arrested and prosecuted in the present case.

NO DIRECT, INDIRECT OR CIRCUMSTANTIAL EVIDENCE

33.It is clear from the above discussion that the prosecution has failed to show that the accused has committed the murder of Mr.Sumit Giri by using an improvised pistol, allegedly recovered at his instance. There is neither any direct nor indirect nor circumstantial evidence against the accused.

34.In the judgment reported as Kishore Chand Vs State of Himachal Pradesh AIR 1990, Supreme Court 2140 it has been observed that all circumstances from which conclusion of guilt is to be drawn must be fully established. Facts so established must be consistent with hypothesis of guilt of accused. In a case of circumstantial evidence, all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of conclusive nature and define tendency, unerringly pointing towards the guilt of the accused. They should be such as to exclude every hypothesis but the one proposed to be proved. The circumstance must be satisfactorily established and the New Sessions Case Number : 52472/2016.

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proved circumstance must bring home the offences to the accused beyond all reasonable doubt. It is not necessary that each circumstance by itself be conclusive but cumulatively must form unbroken chain of events leading to the proof of the guilt of the accused. If those circumstances of some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of hypothesis. In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words when there is no direct witness to the commission of murder and the case rests entirely on circumstantial evidence, the circumstances relied on must be fully established. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. If any of the circumstances proved in a case are consistent with the innocence of the accused. If any of the circumstances proved in case are consistent with the innocence of the accused of the chain of the continuity of the circumstances is broken, the accused is entitled to the benefit of doubt. In assessing the evidence to find these principles, it is necessary to distinguish between facts which may be called primary or basic facts on one hand and inference of facts to be drawn from them, on the other. In regard to the proof of basic or primary facts, the Court has to Judge the evidence in the ordinary way and in appreciation of the evidence in proof of those basic facts or primary facts, there is no scope for the application of the doctrine of benefit of doubt. The New Sessions Case Number : 52472/2016.

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Unique ID Number : 02404R0129602014 FIR No.70/14 , Police Station Vijay Vihar Under section 302 of the Indian Penal Code and under sections 24/27/54/59 Arms Act State v. Shakti Solanki -:: Page 23 of 49 ::-

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Court has to consider the evidence and decide whether the evidence proves a particular fact or not. Whether that fact leads to the inference of the guilt of the accused or not is another aspect and in dealing with this aspect of problem, the doctrine of benefit would apply and an inference of guilt can be drawn only if the proved facts are inconsistent with the innocence of the accused and are consistent only with his guilt. There is long distance between may be true and must be true. The prosecution has to travel all the way to establish fully all the chain of events which should be consistent only with the hypothesis of the guilt of the accused and those circumstances should be of conclusive nature and tendency and they should be such as to exclude all hypothesis but the one proposed to be proved by the prosecution. In other words, there must be a chain of evidence so far consistent and complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all probability the act must have been done by the accused and the accused alone.

35.In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words when there is no direct witness to the commission of the murder and the case rests entirely on circumstantial evidence, the circumstances relied on must be fully established. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with New Sessions Case Number : 52472/2016.

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the innocence of the accused. If any of the circumstances proved in a case are consistent with the innocence of the accused of the chain of the continuity of the circumstances is broken, the accused is entitled to the benefit of the doubt.

36.Before accusing an innocent person of the commission of a grave crime like the one punishable under S.302 IPC an honest, sincere and dispassionate investigation has to be made and to feel sure that the person suspected of the crime alone was responsible to commit the offence. Indulging in free fabrication of the record is a deplorable conduct on the part of an investigating officer which undermines the public confidence reposed in the investigating agency. Therefore, greater care and circumspection are needed by the investigating agency in this regard. It is time that the investigating agencies evolve new and scientific investigating methods, taking aid of rapid scientific development in the field of investigation. It is also the duty of the State i.e Central or State Governments to organise periodical refresher courses for the investigating officers to keep them abreast of the latest scientific development in the art of investigation and the march of law so that the real offender would be brought to book and the innocent would not be exposed to prosecution.

37.In the judgment reported as Vijay Thakur Vs State of Himachal Pardesh, 2014 X AD (S.C) 89, it has been observed that "It is to be emphasized at this stage that except the so-called recoveries, New Sessions Case Number : 52472/2016.

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there is no other circumstances worth the name which has been proved against these two appellants. It is a case of blind murder. There are no eyewitnesses. Conviction is based on the circumstantial evidence. In such a case, complete chain of events has to be established pointing out the culpability of the accused person."

38.It is clear from the record of the present case that the prosecution has not been able to assign any criminal role to the accused, as discussed above. How and why he had been arrested in the present case has not been disclosed. Merely on the basis of some secret information, which is also not proved, the accused was apprehended, his fundamental rights violated and he has been made to undergo the rigours of a criminal trial. There is no direct or indirect or circumstantial evidence against him. It is also clear that the recovery of the pistol at the instance of the accused is also stage managed.

RECOVERY OF WEAPON OF OFFENCE

39.As per the prosecution version, the weapon of offence i.e. an improvised pistol was recovered at the instance of the accused after he made a supplementary disclosure statement (Ex.PW26/A).

40.The evidence of Inspector Ajay Kumar Singh (PW27), Ct.Munish (PW21) and SI Gajender (PW26) as well as Mr.Mukesh Khushwaha (PW22) photographer and Mr.Ajay Giri (PW23) New Sessions Case Number : 52472/2016.

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brother of deceased Mr.Sumit Giri is very relevant here.

41.SI Gajender (PW26) has deposed that he alsong with Inspector Ajay Kumar (PW27), Mr.Ajay Giri (PW23)-brother of deceased, his friend, Mr.Mukesh private photographer (PW22), Ct. Wazir (not examined) and the accused went to Sector-23, Pocket-4, Rohini. Accused led the police party towards a drain in the vacant plot and took out a pistol from the drain by stating that this pistol was used by him at the time of commission of offence. Inspector Ajay checked the pistol and there was no cartridge in that pistol.

42.Inspector Ajay Kumar Singh (PW27) has deposed that on 06.02.2014, the accused was again interrogated and he made supplementary disclosure statement (Ex.PW26/A). The accused had disclosed that he could get recovered the pistol from a plot situated in Sector-23, Rohini. During that time, Ajay Giri, brother of deceased, came to police station. Considering the possibility of recovery, the photographer Mukesh Kushwaha was also called in the police station and thereafter, he alongwith his staff, accused, Ajay Giri and photographer left police station at about 10.45 AM and they reached at a vacant plot, situated in Pocket-4, Sector-23, Rohini. Some public persons present there were also requested to join the proceeding but none joined. Accused led the police party towards a drain in that vacant plot and got recovered one pistol from the drain. The recovery of pistol was got videographed and he prepared the sketch of the recovered pistol (Ex. PW26/B). New Sessions Case Number : 52472/2016.

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43.Ct.Munish (PW21) has deposed that "It is correct that a bunch of hair, blood, bullet, empty cartridge case and pistol were lying at the spot. Again said, pistol was not lying at the spot."

44.Mr.Ajay Giri (PW23) has deposed that after 21.04.2014 when he identified the body of Mr.Sumit Giri in the shop, he did not join the investigation. In his cross examination, he has categorically deposed that on 06.02.2014, he did not go to Police Station Vijay Vihar. He did not know any person with the name of Shakti Solanki. He did not accompany police and accused Shakti Solanki to a vacant plot, Pocket-4, Sector-23, Rohini. Accused Shakti Solanki did not get recovered any pistol from the drain before police in his presence. Police obtained his signatures on several blank papers in mortuary at the time of conducting the inquest proceedings. The sketch of the pistol, recovery memo of pistol and site plan were not prepared by the police in his presence. On 20.01.2014, he went inside the shop of Sanjay Band and there were one bottle of liquor, two glasses, one empty cartridge case, one live cartridge and one pistol lying at the spot.

45.Mr.Mukesh Kushwaha (PW22), who is the photographer, has deposed that on 06.02.2014, he accompanied police to a vacant place at Pocket-04, Sector-23, Rohini, Delhi. Police officials had the custody of one offender and asked him to videograph the proceedings. A pistol was lying at the vacant plot and police had New Sessions Case Number : 52472/2016.

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shown him the pistol and asked him to take the photographs and prepare a video film and he prepared a video film of the proceedings and thereafter, he prepared the CD in his office and took out nine still photographs from the video film and handed over the CD (Ex.PW22/B) as well as photographs (Ex.PW22/A1 to A9) to the police. The Additional Public Prosecutor for State had asked the following leading question to clarify about the pistol lying at the spot as stated by the witness what was allowed by the Court.

Question: When you along with police officials and accused went to the vacant plot Pocket-4, Sector-23 Rohini, whether the pistol was lying at the plot or was recovered by police at the instance of accused.

Answer: Police officials were carrying the pistol from the PS with them, they placed the pistol in the drain and asked the accused to take out the pistol from the drain and I was directed to shoot the video of the proceedings.

46.In his cross examination by the Additional Public Prosecutor, Mr.Mukesh Kushwaha (PW22) has deposed that there was no public person with the police when they left the Police Station. He has denied the suggestion that the accused got recovered the pistol in his presence from the drain.

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47.All the above elaborated evidence indicates that the police has falsely implicated the accused in the present case. Not only the recovery of pistol at the instance of the accused been manipulated but the documents of recovery have also been fabricated and witnesses have been planted to allegedly witness the recovery.

48.If the pistol was lying at the spot i.e the premises of Sanjay Band at A-51, Budh Vihar, Phase-I, Main Kanjhawala Road, Delhi where the body was found (as per Mr.Ajay Giri-PW23), then how its recovery was made at the instance of the accused from the drain in a vacant plot in Plot-4, sector-23, Rohini (as per PWs 6, 8, 26 and

27) has not been explained by the prosecution.

49.The evidence of Mr.Mukesh Kushwaha (PW22) makes it crystal clear that the recovery has been manipulated from the spot as he has answered the leading question saying that "Police officials were carrying the pistol from the PS with them, they placed the pistol in the drain and asked the accused to take out the pistol from the drain and I was directed to shoot the video of the proceedings". His evidence shows the fabrications and manipulations made by the police in order to work out a blind murder case by implicating an innocent man.

50.It is also clear from the evidence of Mr.Ajay Giri (PW23) that he had neither accompanied the police on 06.02.2014 nor the recovery New Sessions Case Number : 52472/2016.

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of the pistol at the instance of the accused was effected in his presence. In fact, he has deposed that on 20.01.2014, he had seen the pistol lying at the spot where the dead body was found along with one bottle of liquor, two glasses, one empty cartridge case and one live cartridge. If the police had already seen the pistol on 20.01.2014 at the spot where the body was found, then it could not have been recovered from a drain on 06.02.2014 at the instance of the accused. Mr.Ajay Giri (PW23) was made to sign on the blank papers earlier and it appears that the same papers have been converted into the documents of seizure of the pistol. Mr.Ajay Giri (PW23) is the brother of deceased Mr.Sumit Giri. His evidence indicates that the pistol has been planted on the accused, who is innocent, in order to work out a blind murder case.

51.The recovery at the instance of the accused is of no help to the prosecution in view of the evidence discussed above. Reliance can be placed upon the judgment reported as Deva Singh v. State of Rajasthan, 1999 Crl.L.J. 265 where the hon'ble Supreme Court observed that merely because a knife is alleged to have been recovered at the instance of the accused would not lead to a conclusion that the accused was the perpetrator of the crime of murder.

52.It may also be mentioned here that the present FIR has been registered in Police Station Vijay Vihar and the alleged recovery of the pistol has been made in the jurisdiction of Police Station New Sessions Case Number : 52472/2016.

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Begumpur. It is also clear that when the police of Police Station went with the accused to the vacant plot in Plot-4, sector-23, Rohini, they did not inform in Police Station Begumpur about their arrival and also did not inform there after the alleged recovery of the pistol was made which was made in the jurisdiction of a different Police Station i.e. Begumpur. No FIR under the Arms Act was registered in Police Station Begumpur. The investigating Officer also has not complied with the provisions of section 166 of the Cr.P.C. It is an admitted fact that the recovery of the pistol has been made within the jurisdiction of a different police station. It has been made by an officer who does not belong to the police station where the recovery was allegedly effected. In law Investigating Officer was bound to report the matter of seizure to the concerned police station. It has failed to make a record of the search in the books of that police station and has failed to inform the Magistrate about it. In the circumstance of this case since the search was conducted within the jurisdiction of a police station different than the one in which the case was registered and was conducted by a police officer of the station where registration was done, the provisions of section 166 of the Cr.P.C. had to be followed. Non compliance of this provision also renders the investigating as suspect. The provision of section 166 of the Cr.P.C. has been violated by the police. Reliance can be placed upon the judgment reported as Chaman Lal v. The State, 1987 (1) RCR 308.

53.It is very clear from the evidence of the prosecution witnesses that New Sessions Case Number : 52472/2016.

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the recovery of the pistol has been planted upon the accused and all the proceedings of recovery of the pistol are manipulated by the police. An already recovered pistol on 20.01.2014 has been projected to have been recovered on 06.02.2014 at the instance of the accused. The evidence of the prosecution regarding the recovery of the pistol at the instance of the accused is tainted.

NO PUBLIC OR INDEPENDENT WITNESS ASSOCIATED

54.It is clear from all the witnesses of investigation that no public or independent witness has been associated in the investigation of the case, at the time of arrest of the accused and at the time of recovery of the alleged weapon of offence. The police witnesses of investigation have admitted the same.

55.Ct.Heera Ram (PW6) has deposed that "At that time, public was also passing from there. No public person was joined at the time when information was received and at the time when we left pursuant to the secret information. It is correct that place of arrest is a public place and public persons were passing from there. No one was called from the public by the IO to join the proceedings."

56.SI Sonu Ram (PW8) has deposed that "Public persons were passing from the place of arrest. IO asked passers by to join the investigation but no one agreed. I cannot tell the names of those public persons who refused to join the investigation. No notice New Sessions Case Number : 52472/2016.

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was given to them by the IO and no action was taken against them."

57.SI G.R.Tanwar (PW15) has deposed that "No public persons met us at the spot when I along with Ct.Munish reached there."

58.Ct.Munish (PW21) who had gone on 20.01.2014 with SI G.R.Tanwar (PW15) has deposed that "There were public persons on the ground floor. I do not know the name of any person who was present at the spot. ... I do not remember if IO called any person at the spot at the time of lifting the articles from the spot."

59.SI Gajender (PW26) has deposed that "The public persons were passing through the road leading towards PS from spot. The passers by were requested to join the investigation but none joined. No notice could be served on those passers by due to paucity of time.....Neither myself nor IO made any effort to know the name of the owner of the plot."

60.Inspector Ajay Kumar Singh (PW27), Investigation Officer has deposed that "I made efforts to join the public persons at the time of recording disclosure statement of accused but none joined. I cannot tell the tell, address or physical description of those persons who were requested to join the proceedings. No notice was served upon those public persons who refused to join the New Sessions Case Number : 52472/2016.

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proceeding."

61.It is clear from the evidence of the prosecution witnesses that the independent public persons were available at the time of recovery of articles lying near the body of Mr.Sumit Giri, the receipt of secret information, arrest of accused, recovery of pistol etc. It is also clear that they were neither joined in the investigation nor any action was taken in case of their refusal to join the investigation. It is apparent that the police has failed to comply with the mandatory provisions of section 100 (4) of the Cr.P.C. Reliance can be placed upon the judgments reported as State of Madhya Pradesh Vs Ramparkash & ors., 1989 Criminal L.J 1585; Pawan Kumar v. Delhi Administration, 1988 (2) RCR 421. The discovery in the presence of subordinate police officials from an open place is of no importance. Reliance can be placed upon the judgment reported as Harish Chander @ Billa, 1995 (2) CC Cases 503.

INVESTIGATION

62.It is clear on perusal of the record that there are several discrepancies and violations made by the police in the investigation. Apparently an innocent man has been falsely implicated in the present case, as discussed above. Prosecution witnesses namely Mr.Satish (PW17), Mr.Mukesh Kushwaha (PW22) and Mr.Ajay Giri (PW23) whose evidence was very material to the prosecution case have retracted from their earlier statements and were declared hostile by the prosecution. They have New Sessions Case Number : 52472/2016.

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not supported the prosecution version.

63.Inspector Ajay Kumar Singh (PW27) has admitted in his evidence that he did not make any enquiry regarding mobile number 8059130233 and did not obtain its call detail record. He did not call any official from FSL, Ballistic expert and Dog Squad at the spot. He did not serve any notice on the persons who refused to join the investigation. He did not give any information at Police Station Vijay Vihar through wireless after the arrest of the accused. He did not inform Police Station Begumpur regarding the recovery of the pistol nor got any FIR under the Arms Act registered in Police Station Begumpur. He did not offer his search or the search of his car to the accused before searching him and before recovery of the pistol. He did not get the finger prints lifted from the weapon of offence. He did not make any enquiry regarding the owner of plot from where the pistol was recovered nor associated him in the investigation. No independent witnesses including the owner of the plot from where the recovery of the pistol was effected have been examined. It also clear that no foot prints etc were lifted form the spot where the body of Mr.Sumit Giri was found.

64.The prosecution has failed to examine some very material witnesses and this lapse gives a severe blow to the prosecution case.

65.The Investigation Officers have failed to associate in the New Sessions Case Number : 52472/2016.

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investigation the public and independent witnesses who were available at the time of recovery of the body of Mr.Sumit Giri, receipt of secret information, arrest of the accused, recovery of the weapon of offence etc. As per SI Gajender (PW26), Mr.Ajay Giri (PW23) and his friend came to the Police Station and then went with the police team and accused for recovery of the weapon of offence. However, this friend of Mr.Ajay Giri has also not been joined in the investigation. These very material witnesses have neither been cited as witnesses nor produced nor examined by the prosecution. Their evidence could have facilitated the Court in adjudicating the matter.

66.By not citing, producing and examining the above named persons, the prosecution has left out some very material evidence which may have been of some help to the prosecution in this case against the accused.

67.As already discussed above, the recovery of the pistol is clearly manipulated and planted upon the accused by the police. Undoubtedly, henious crimes are committed under great secrecy and that investigation of a crime is a difficult and tedious task. However, from the facts and circumstances of this case, it appears that the Investigating Officer has taken the accused for ride and trampled upon his fundamental personal liberty and lugged him in the capital offence punishable under section 302 of the IPC by freely fabricating evidence against the innocent. The liberty of a New Sessions Case Number : 52472/2016.

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citizen is preciousand its deprivation shall be only in accordance with law. Before accusing an innocent person of the commission of a grave crime like the one punishable under S.302 IPC an honest, sincere and dispassionate investigation has to be made and to feel sure that the person suspected of the crime alone was responsible to commit the offence. Indulging in free fabrication of the record is a deplorable conduct on the part of an investigating officer which undermines the public confidence reposed in the investigating agency. Therefore, greater care and circumspection are needed by the investigating agency in this regard. It is time that the investigating agencies evolve new and scientific investigating methods, taking aid of rapid scientific development in the field of investigation. It is also the duty of the State i.e Central or State Governments to organise periodical refresher courses for the investigating officers to keep them abreast of the latest scientific development in the art of investigation and the march of law so that the real offender would be brought to book and the innocent would not be exposed to prosecution. (Reliance can be placed upon the judgment reported as Kishore Chand v. State of H.P., AIR 1990 SC 2140).

68.The investigation conducted in the present case has been deposed by police witnesses. The documents have been proved by their authors and signatories to the same. However, there is nothing on the record which could show that the investigation has been conducted properly, fairly and impartially. New Sessions Case Number : 52472/2016.

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69.It must be mentioned here again that the prosecution story is unreliable and not worthy of credence, as discussed above. It would have been appropriate that these lapses were not committed considering the gravity of the case.

70.It is the actual crime which is important than the investigation.

Where the actual crime is being elaborated and proved in the evidence of the prosecution witnesses, then the investigation becomes less important.

71.There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.

72.In the present case, the investigation is bad and shoddy.

Documents have been fabricated; recovery of weapon of offence manipulated and planted; witnesses have not supported the case. The investigation, in the present case, has not been conducted fairly and properly.

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MENS REA AND DEFENCE OF ACCUSED

73.Regarding the motive of crime, it may be observed that in a case based on evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.

74.The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of evidence. The proof of motive would only strengthen the prosecution case and fortify the Court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and un- amenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.

75.In the present case, a story has been projected that the accused has murdered Mr.Sumit Giri by firing at him with an improvised New Sessions Case Number : 52472/2016.

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pistol. This version appears to be untrue as there is no reason why he would do so. No reason is shown by the prosecution as to why the accused would jeopardize his future. Admittedly there was no dispute or enmity between the accused and Mr.Sumit Giri.

76.There is nothing on the record to show that the accused has committed the offence, as alleged by the prosecution. He is a mature man and capable of understanding the implications of his acts. He has completely denied committing the offence.

77.In the present case, there is no evidence on record to show that the accused did have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

78.There does not appear to be any criminal intention and mens rea on the part of the accused.

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79.In his statement under section 313 of the Cr.P.C., the accused has stated that he is innocent and has been falsely implicated in this case. He has stated that no public witness has deposed against him. Remaining witnesses are police officials who are interested witnesses.

80.There is no medical and forensic evidence against the accused.

There is no direct, indirect or circumstantial evidence against him. The recovery of the pistol is also manipulated by the police, as discussed above. It is also clear while discussing the evidence of the prosecution, as above, that the prosecution version is neither reliable nor believable.

81.In the judgment Partap v. The State of Uttar Pardesh, AIR 1976 Supreme Court 966 has reported that the burden is on the accused to establish a plea of self defence and that on the prosecution to prove its case. The burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a mere preponderance of probability.

82.The defence of the accused although is not proved but considering the unreliable evidence of the prosecution which suffers from overwhelming contradictions and glaring inconsistencies, the New Sessions Case Number : 52472/2016.

Old Sessions Case Number : 46 of 2014.

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prosecution version is neither believable nor reliable nor trust worthy.

83.The case of the prosecution has to stand of its own legs and is required to prove all its allegations against the accused and all the ingredients of the offence alleged to have been committed by the accused.

84.Therefore, as the prosecution version is unreliable and unbelievable that the accused had murdered Mr.Sumit Giri by firing at him with an improvised pistol, the defence of the accused appears to be plausible that he has not committed any offence.

FINAL CONCLUSION

85.The prosecution has failed to furnish any explanation in respect of the numerous inconsistencies in the statements of the witnesses of the prosecution. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the witnesses of the prosecution suffer from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal New Sessions Case Number : 52472/2016.

Old Sessions Case Number : 46 of 2014.

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blow to the prosecution version. In fact what emerges from the evidence of the prosecution witnesses is that the accused has not committed the alleged offences.

86.Prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had committee dthe offences.

87.Since the evidence of the prosecution is neither reliable nor believable as there are overwhelming contradictions and inconsistencies in the statements and evidence of the prosecution witnesses, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused. The prosecution story does not inspire confidence and is not worthy of credence.

88.In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:

i. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established; ii. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; New Sessions Case Number : 52472/2016. Old Sessions Case Number : 46 of 2014. Unique ID Number : 02404R0129602014 FIR No.70/14 , Police Station Vijay Vihar Under section 302 of the Indian Penal Code and under sections 24/27/54/59 Arms Act State v. Shakti Solanki -:: Page 44 of 49 ::-

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iii. The circumstances should be of conclusive nature and tendency;

iv. They should exclude every possible hypothesis except the one to be proved; and v. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

89.Applying the above principles of law to the facts of present case, it stands established that the accused had neither murdered Mr.Sumit Giri by firing upon him with an improvised pistol nor got the improvised pistol recovered. There is no incriminating evidence against the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place.

90.Consequently, no inference can be drawn that the accused is guilty of the charged offences as the testimony of the prosecution witnesses is unreliable and unworthy of credence.

91.Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecution is found to be improbable, prosecution case becomes liable to be rejected.

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92.If the prosecution evidence is read and considered in totality of circumstances along with other material on record, in which offence is alleged to have been committed, the deposition does not inspire confidence and is unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. Prosecution has not disclosed true genesis of crime.

93.It is a case of heinous crime of murder which carries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused. The prosecution story does not inspire confidence and is not worthy of credence. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place.

94.The prosecution has failed to prove that it is accused and none else who is culprit and has murdered Mr.Sumit Giri by firing upon him with an improvised pistol and the weapon of offence i.e. the improvised pistol was recovered at his instance.

95.The prosecution has miserably failed to prove that on 20.01.2014 at New Sessions Case Number : 52472/2016.

Old Sessions Case Number : 46 of 2014.

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unknown time at near Sanjay Band, A 51, Budh Vihar, Phase-1, Main Kanjhawala Road, Delhi, he intended to kill Mr.Sumit Giri and armed with prohibited arm and ammunition, i.e an improvised pistol 7.65 mm bore, as reflected in the sketch of the said pistol filed with the chargesheet, with live cartridge, he fired bullets on the person of Mr.Sumit Giri causing injuries by firing bullets from the pistol on chest and right side of occipital region of Sumit Giri causing his death and he committed murder of Mr.Sumit Giri. Further, the prosecution has also miserably failed to prove that Mr.Shakit Solanki, accused, was armed with improvised pistol along with live cartridges and used the said pistol and cartridges for causing injuries and consequent death of Mr.Sumit Giri. The prosecution has also miserably failed to prove that the accused also got recovered the improvised pistol on 06.02.2014 during police custody from a drain in an empty plot in Pocket-4, Sector-23, Rohini and the said arm and ammunition is a prohibited arm and ammunition within the definition of section 7 read with section 2(b) & (c) of the Arms Act, 1959. The prosecution has also miserably failed to prove that by possessing and using the said arm and ammunition, the accused committed murder of Mr.Sumit Giri.

96.All the above facts indicate that there is no veracity in the prosecution case in respect of the offences of murder of Mr.Sumit Giri and unlawful possession, use and recovery of improvised pistol by accused Mr.Shakti Solanki and the accused merits to be acquitted for the offence punishable under New Sessions Case Number : 52472/2016.

Old Sessions Case Number : 46 of 2014.

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section 302 IPC and under section 25 and section 27 (2) of Arms Act, 1959.

97.Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused Mr.Shakti Solanki.

98.Accordingly, Mr.Shakti Solanki, the accused, is hereby acquitted of the charges for the offences of offences of murder of Mr.Sumit Giri and unlawful possession, use and recovery of improvised pistol punishable under section 302 IPC and under section 25 and section 27 (2) of Arms Act, 1959.

COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES

99.Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.

100. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.

101. One copy of the judgment be given to the Additional Public Prosecutor, as requested.

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102. After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room.

Announced in the open Court (NIVEDITA ANIL SHARMA) on this 27th day of July, 2016. Special Judge (NDPS) North-West, Additional Sessions Judge, Rohini Courts, Delhi.

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Old Sessions Case Number : 46 of 2014.

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