Delhi District Court
State vs . Jitender @ Kalle on 1 July, 2013
IN THE COURT OF Dr. KAMINI LAU, ADDITIONAL SESSSION
JUDGEII: (NORTHWEST): ROHINI COURTS: DELHI
Session Case No.: 1135/2009
Unique Case ID No. 02404R0027742008
State Vs. Jitender @ Kalle
S/o Sh. Samay Singh
R/o WP 444, Village Wazir Pur,
Ashok Vihar, Delhi.
(Convicted)
FIR No.: 67/1999
Police Station: Keshav Puram
Under Section: 302/34 Indian Penal Code
Date of committal to sessions court: 27.5.2000
Date of remand from High Court: 8.11.2012
Date on which orders were reserved: 7.6.2013
Date on which judgment pronounced: 1.7.2013
JUDGMENT:
(1) As per the allegations on 10.3.1999 at about 11:00 PM at Community Center A1 Block Keshav Puram, Delhi the accused Jitender @ Kalle committed murder of Anil Badana by intentionally causing his death by firearm injury. It has also been alleged that the accused also caused gun shot injuries to Madan Lal Sharma with such intention or knowledge and under such circumstances that if by his act St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 1 he would have cause the death of Madan Lal Sharma he would have been guilty of murder.
CASE OF THE PROSECUTION/ BRIEF FACTS:
(2) The case of the prosecution is that on 10.3.1999 the marriage reception party of one Vijay Sharma was being held at A1, Block, Community Center, Keshav Puram, Delhi wherein his number of friends from Satyawati College (where Vijay Sharma also used to study) had come to attend the said function. Inside the main 'pandal' a DJ was being played and hence some of his friends went outside the pandal and stood near the space where the food was being prepared by the 'halwais'.
Some of the boys so present were Anil Badana (since deceased), Narender Badana, Raj Kumar Bhati, Sumit Nayyar etc. Suddenly at around 11:00 PM accused Jitender @ Kalle came over there and started staring at Anil Badana on which Anil Badana asked accused Jitender as to why he was staring at him and they have no relation with each other so, he should go away. However, accused Jitender all of a sudden took out a pistol from the pocket his pant and fired twice in the air and stated "Pahle to tu bach gaya tha, ab nahi bachega" and while coming forward towards Anil Badana fired at him which bullet hit on his chest as a result of which Anil fell down. Accused Jitender @ Kalle thereafter started fleeing away and the other friends of Anil, who were present nearby started chasing him and even threw stones towards him. While fleeing St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 2 outside through the main pandal accused Jitender again stopped and fired at the persons who were chasing him and in the process another bullet hit Sh. Madan Lal the father of the bridegroom Vijay Sharma, on his leg. The accused Jitender managed to flee away from over there. Friends of Anil Badana returned back and saw that there two other friends namely Inder and Sanjay Sharma were removing Anil Badana in the car of Inder to the hospital. The other friends namely Raj Kumar Bhati, Janesh, Narender and Sumit Nayyar followed them in the car of Anil Badana whose keys were already with Sumit Nayyar. Sumit in the meantime had also rung up the police at No.100 from the mobile phone of Anil Badana bearing No. 9811162283. In fact three successive calls were made at no.100 after the interval of two minutes each through the same cell phone as probably the phone was getting disconnected. The doctors at Sunderlal Jain Hospital where Anil Badana was taken by his friends declared him to be 'brought dead'. Sh. Madan Lal Sharma, the other injured in the meantime was taken by his other relatives to a nearby 'Garg Nursing Home' where he was provided necessary medical treatment.
(3) Information about the incident was received at Police Station Kesahv Puram vide DD No.15A and SI Om Prakash along with Ct. Surender Singh went to the spot where they came to know that the injured has been removed to the hospital on which they both reached the hospital where they found the injured Anil Badana having been declared St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 3 by the doctors to be 'brought dead'. In the meantime SHO Police Station Keshav Puram Inspector Pradeep Kumar also reached the hospital and collected the MLC of deceased Anil Badana. Statement of Raj Kumar Bhati, an eye witness of the incident, was recorded by the Investigating Officer, on the basis of which the rukka was prepared that the FIR was got registered. Thereafter Inspector Pradeep Kumar along with Raj Kumar Bhati and other police officials came back to the spot where they found three empty cartridges of 7.65 mm at the spot. The spot was also got inspected from the Crime Team and was also got photographed. The photographer Harpreet Singh who was covering the function was asked to show the Video Cassette prepared by him till that time and statement of other friends of Anil Badana, who were also present at the time of incident and were eye witness of the same were also recorded. (4) On the next day the dead body was sent to mortuary for postmortem examination and in the postmortem examination one bullet was found embedded in the body of Anil Badana which was collected by the Autopsy Surgeon. After postmortem examination, the dead body was handed over to the relatives of Anil Badana for last rites. Efforts were made to trace out the accused but the same proved futile. Later on 26th March, 1999 one Maruti Zen car bearing no. DL8CA9383 belonging to accused in which he had allegedly fled away from the spot was found lying abandoned in St. Stephen's Hospital parking. Copies of some documents and a statement of Anil Badana was also recovered St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 4 from inside the car which in fact pertained to one earlier case registered against accused Jitender on the complaint of Anil Badana. The investigation of the present case in the meantime was transferred to Crime Branch, Homicide Section and SI Ram Avtar (PW23) took over the same.
(5) Thereafter on 23.1.2000 on the basis of a secret information accused Jitender @ Kalle was apprehended by SI Ram Avatar, ASI Vijender, Ct. Surender and Ct. Praveen from bus stand Nraina after he alighted over there from a bus. Accused Jitender allegedly made a disclosure statement which was reduced into writing wherein he disclosed that the weapon of offence used by him in the commission of the present crime was purchased by him from Bahadurgarh Gun House. Accordingly on 2nd February, 2000 copies of sale documents of the pistol and cartridges were seized from the owner of Bahadurgarh Gun House. The accused also disclosed that after commission of the present crime he had run away to Nepal and had sold the said pistol to a person in Bihar. However, on 4.2.2000 he again made a disclosure statement that the said weapon of offence has been hidden by him under a tree in a DDA park in Haiderpur, Delhi pursuant to which SI Ram Avtar led a police party to over there and one Daljit Singh, a public person present at bus stand Haiderpur was asked to join the proceedings and who acceded to their request. The accused thereafter led the police party to the DDA park and from beneath the earth under a tree got recovered a St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 5 pistol of 7.65 mm bore wrapped in a polythene bag. From inside the magazine of the pistol six live cartridges were also recovered. Same were taken into possession after preparing their sketch. Later on the empty cartridges recovered from the place of incident along with the bullet recovered from inside the body of deceased Anil Badana and the pistol and six live cartridges so recovered at the instance of the accused were sent for comparison to CFSL, Delhi. After completion of investigations a challan was prepared and was filed in the court for trial. (6) I may mention that on the same night of incident when the murder of Anil Badana took place the accused Jitender @ Kalle allegedly went to the house of Sumit Nayyar (an eye witness of the present case) and murdered his father namely Sh. Kimti Lal Nayyar outside his house at around 12:30 AM. Pursuant to the said incident a case vide FIR No. 68/1999 was registered at police station Mukherjee Nagar. Though the trial of the said case was carried out along with the present case but the present FIR (i.e. FIR No. 67/1999) is being decided on the basis of evidence led by the prosecution in the present case only. CHARGE:
(7) Charge for the offence under Section 302/307 Indian Penal Code was settled against the accused by the Ld. Predecessor of this court to which the accused pleaded not guilty and claimed trial. St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 6 (8) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
Prosecution witnesses:
Sr. PW No. Name of the witness Details
No.
1. PW 1 Madan Lal Public witness/ Injured in firing incident
and father of Vijay Sharma / bridegroom
2. PW 2 Harpreet Singh Public Witness/ Videographer who was
carrying out the videography of the
reception ceremony
3. PW 3 Raj Kumar Bhati Public / eye witness to incident where
accused had fired at deceased Anil
Badana
4. PW 4 Sumit Nayyar Public / eye witness to incident where
accused had fired at deceased Anil
Badana
5. PW 5 Narender Kumar Public / eye witness to incident where
accused had fired at deceased Anil
Badana
6. PW 6 Janesh Public / eye witness to incident where
accused had fired at deceased Anil
Badana
7. PW 7 SI Manohar Lal Police witness / Draftsman
8. PW 8 Inder Raj Public / eye witness to incident where
accused had fired at deceased Anil
Badana
9. PW 9 Daljit Singh Public witness to recovery of weapon of
offence
10. PW 10 HC Ram Pal Police witness / Duty Officer
11. PW11 HC Raj Singh Police witness/ Duty Officer
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 7
12. PW12 Dr. Bhupender Doctor at Garg Nursing Home who had
Aggarwal examined the injured Madan Lal
13. PW 13 ASI Manohar Lal Police witness/ Draftsman (inadvertently
reexamined as PW13)
14. PW 14 L/HC Santra Police / PCR Official
15. PW 15 Dr. K. Goel Autopsy Surgeon who has proved the
postmortem report of deceased Anil
Badana
16. PW 16 HC Harminder Singh Duty Officer of Police Station Model
Town
17. PW 17 Sh. M.C. Gupta The then Ld. MM/ Official witness who
had recorded the statement of Sumit
Nayyar under Section 164 Cr.P.C.
18. PW 18 Surender Singh Senior Assistant, office of DM, Jammu
who has proved the arm license dated
4.4.2000 bearing No.131/JDM/2000
issued to the accused
19. PW 19 Paramjit Singh Partner of M/s. Bahadurgarh Gun House
proving the sale of pistol No. 621251
make Czechoslovakia to the accused
20. PW 20 Ct. Surender Singh Police witness
21. PW 21 ASI Virender Tyagi Police witness
22. PW 22 SI Om Prakash Police witness
23. PW 23 SI Dharma Pal Police witness
24. PW 24 SI Ram Sunder Police witness
25. PW 25 SI Ram Avtar Police witness
26. PW 26 Ct. Surender Singh Police witness
27. PW 27 Ct. Yogesh Police witness
28. PW28 Vijay Shankar Singh Record Clerk from Sunder Lal Jain
Hospital
29. PW29 HC Ram Diya Police witness / MHCM
30. PW30 Insp. Pradeep Kumar Police witness / Investigating Officer
31. PW31 Anuranjan Kumar Public witness / attendant of car parking
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 8
32. PW32 HC Kanwar Singh Police witness / MHCM
33. PW33 Sh. A.R. Arora FSL (Ballistic) Expert
34. PW34 Sanjay Kumar LDC from Record Room (Sessions), Tis
Hazari Courts
List of documents:
Sr. Exhibit No. Details of documents Proved by
No.
1. PW1/DA Statement of Madan Lal u/s. 161 Madan Lal Sharma
Cr.P.C.
2. PW3/A Statement of Raj Kumar Bhati on the Raj Kumar Bhati
basis of which FIR was registered
3. PW3/DX Photocopy of the Icard of Raj Kumar
Bhati of Satyawati College
4. PW4/DA Statement of Sumit Nayyar u/s. 161 Sumit Nayyar
Cr.P.C.
5. PW5/DA Statement of Narender Kumar u/s. 161 Narender Kumar
Cr.P.C.
6. PW5/DB Statement of Narender Kumar u/s. 161
Cr.P.C.
7. PW8/A Rough sketch Inder Raj
8. PW9/A Seizure memo of pistol Daljit Singh
9. PW7/A Scaled site plan SI Manohar Lal
10. PW10/A Copy of FIR HC Ram Pal
11. PW10/B Copy of DD No. 7A
12. Copy of special report
13. PW11/A Copy of DD No. 15A HC Raj Singh
14. PW12/A Examination slip in respect of injured Dr. Bhupender
Madan Lal Aggarwal
15. PW14/A PCR Form Lady HC Santra
16. PW15/A Postmortem Report Dr. K. Goel
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 9
17. PW16/A Copy of FIR No.125/96 HC Harminder Singh
18. PW17/A Application for recording the statement Sh. M.C. Gupta
u/s. 164 Cr.P.C.
19. PW17/B Statement of Sumit Nayyar u/s. 164
Cr.P.C.
20. PW17/C Certificate
21. PW17/D Order
22. PW18/D Letter dated 4.4.2000 bearing No. Surender Singh
131/JDM/2000 issued by ADM Jammu
23. PW19/A Seizure memo of document pertaining Paramjit Singh
to purchase of pistol
24. PW20/A Disclosure statement of the accused Ct. Surender Singh
25. PW20/B Personal search memo of the accused
26. PW21/A Disclosure statement of the accused ASI Virender Tyagi
27. PW22/A Seizure memo of sealed parcel from SI Om Prakash
Sunder Lal Jain Hospital
28. PW22/B Seizure memo of empty cartridges
from the spot
29. PW22/C Seizure memo of pullanda containing
the bullets recovered from the dead
body, blood sample of the deceased
and sample seal
30. PW23/A Seizure memo of car bearing No. SI Dharampal
DL8CA9383
31. PW23/B Seizure memo of documents recovered
from the car
32. PW25/A Sketch of the pistol as well as the SI Ram Avtar
cartridges
33. PW25/B CFSL Result
34. PW25/C Report of Ballistic Expert
35. PW28/A MLC of Anil Badana Vijay Shankar Singh
36. PW30/A Endorsement on the statement of Raj Inspector Pradeep
Kumar Bhati Kumar
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 10
37. PW30/B Rough site plan
38. PW30/C1 Form 25.35
39. PW30/C2 Brief Facts
40. PW30/C3 Autopsy Form
41. PW30/C4 Application for conducting postmortem
42. PW30/C5 Statement regarding identification of
dead body
43. PW30/C6 Statement regarding identification of
dead body
44. PW30/D Dead body handing over memo
45. PW30/E Seizure memo of video cassette
46. PW30/F Document / statement of Anil Badana
related to some other case against the
accused Jitender
47. PW32/A1 Copy of RC No. 14/21 HC Kanwar Singh
48. PW32/A2 Copies of the entries in Register No.19
49. PW33/DA & Photographs of the grooves Sh. B.R. Arora
PW33/DB
50. PW34/A Copy of the judgment in FIR No. Sanjay Kumar
125/1996
51. P1 Video Cassette of reception function where incident took place
52. PXX Pistol No. No. 621251 make Czechoslovakia got recovered by
the accused
53. PXX1 Magazine of the above pistol
54. PXX2 to 4 Three live cartridges of 7.65 mm
55. PXX5 to 7 Three fired cartridges of 7.65 mm
EVIDENCE:
(9) In order to prove its case the prosecution has examined as
many as Thirty Four witnesses as under:
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 11
Public witnesses/ eye witnesses:
(10) PW1 Madan Lal is the injured father of bridegroom Vijay
Sharma in whose reception party the present incident took place. He has deposed that his son was married on 10.3.99 which marriage was performed in a park near Keshav Puram Police Station and it was reception party. According to him, the function had started at about 7:00 PM and at about 11:00 PM while he was attending upon the quests, he heard a gun shot which was coming from outside the pandal. The witness has deposed that he had also received a gun shot in his left leg.
According to him, one of the friends of his son had also received a gun shot but he does not remember his name nor did he see who had given the gun shots.
(11) The witness was found resiling from his previous statement and in his crossexamination by the Ld. Addl. PP for the State the witness has deposed that a number of friends of his son Vijay had come in the marriage reception party and Anil Badana was one of them. He has admitted that police had made inquiries from him in respect of this incident. He has denied the suggestion that at about 11:00 PM somebody informed him that a quarrel had taken place behind the Pandal on which he had gone there and he had seen the accused Jitender there. According to the witness, he knew the accused as a friend of his son and has voluntary stated that he had met him once or twice.
He has further stated that he had seen a pistol in the hand of the St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 12 accused which the accused was holding but had not fired with the same. He has denied the suggestion that the accused had fired after taking an aim at Anil Badana or that since he had tried to intervene the accused also fired on him which bullet him on his left leg. He has admitted that a video cassette of the party was prepared by one Harpreet and he had handed over the same to the police. (12) In his cross examination by the Ld. Defence Counsel the witness has deposed that there were about 500 persons attending the party and drinks were served outside the pandal. According to him, about tentwenty persons were running outside the pandal, when gun shots were heard but he had not gone outside the pandal as he was busy attending to the quest inside the pandal. He has further deposed that there was darkness outside and illumination inside the pandal. He has also deposed that the function continued upto 11:00 PM and had met the accused at his place whom he met for two/three minutes. The witness has testified that he had not met the accused during the function and therefore he is unable to tell say whether he had attended the same or not. He does not remember whether he had seen revolvers in the hand of anybody in the function or not and has stated that they may be revolvers with one, two or more persons. He has admitted that two video cassettes were prepared which cassettes were shown to him and played on TV by the SHO. He does not remember whether he had told the police that he had seen a pistol in the hand of the accused. However, St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 13 when confronted with his statement Ex.PW1/DA the said fact was found so recorded.
(13) PW2 Harpreet Singh is the photographer, who on the date of the incident was covering the reception party of Vijay Sharma, where the alleged incident took place. He has deposed that about two years ago he was doing video filming of a reception of one Vijay Kumar at Community Centre, Lawrence Road where he had reached there at about 6:00/6:30 PM. According to the witness, he started his work at about 7:00/7:15 PM and started covering the function at about 7:15 PM which recording continued upto 11:00/12:00 AM. He has also deposed that at about 11:30/11:45 PM there was an incident of firing. He has proved having handed over the cassette to the police which cassette he has identified in the Court as Ex.P1.
(14) Here, I may mention that the video cassette Ex.P1 was duly played in the Court and it was specifically observed by the Ld. Predecessor of this Court that the presence of the accused Jitender @ Kalle is shown on the stage along with the bride and the bridegroom. (CD of this Video Cassette has been got prepared on the directions of this Court and the presence of the accused as observed by the Ld. Predecessor stands confirmed and towards the end the voice of two shots are also heard) .
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 14 (15) In his cross examination by the Ld. Defence Counsel the witness has deposed that he remained at the venue of the function from 6:30 PM to 12:30 AM and more than 300 persons might have attended the function. According to him, they had two video cameras besides a still camera covering the function besides as screen, while one camera was on the stage the other video camera was covering the dinner, D.J. and the entries etc. He has testified that liquor was not being served in the open but was being served at a place behind the Shamiyana and fireworks were also being done and crackers were being burst. He has denied the suggestion that whether the noise was due to bursting of crackers or by fire arms. According to the witness, he had seen revolvers in the hands of five or six persons. He has testified that he had gone to Sunder Lal Jain Hospital in order to see the person who had received bullet injuries after which he had met the police at about 1:30 AM and had played the original cassette to the police which continued right upto 6:00/6:30 AM. He has testified that he had handed over copies of both the cassettes to the police. He deposed that one of the copies is present in the court but the other is not there and the other copy contains most of the shots taken at the place of D.J. The witness has further deposed that the original cassettes had been handed over to Pawan Sharma by him who had booked him for the function. He has denied the suggestion that he had deleted some portions of the cassettes which showed persons firing at the function. St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 15 (16) PW3 Raj Kumar Bhati has deposed that on 10.3.1999 he along with Anil Badana and Narender Bhadana had gone to Keshav Puram A1Block Community Centre in order to attend the reception party of the marriage of his friend Vijay Sharma. He has testified that he had gone along with Anil Badana and Narender Badana both sons of his maternal uncle, Sumit Nayyar, Sanjay Sharma and they all reached there at 8.30 PM. The witness has also deposed that there was a programme of music besides the other party and snacks & refreshment was being served. According to the witness, he found that one of his friend Fariyad had not come by then and hence at about 9:00 PM, he along with his friend Sumit Nayyar went to Ashok Vihar in order to fetch Fariyad and came back to the reception venue at about 10:00 PM along with Fariyad and Sumit Nayyar. He has further deposed that Sumit and Fariyad had gone inside in order to take some cold drink and was looking for his cousin Anil Bhadana. Thereafter he went inside the pandal meant for the cooks behind the main pandal. According to him, at about 10:45 PM, he along with Anil Bhadana again came to the tent meant for the cook behind the main pandal and Sumit Nayyar had also reached there where Janesh, Sanjay Sharma, Narender Bhadana were also present. The witness has testified that he along with Anil Bhadana (deceased) and Narender were talking amongst themselves when in the meanwhile at about 11:00 PM Jitender @ Kalle also came there and started staring at them on which Anil told him to go St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 16 away. He has also deposed that accused Jitender @ Kalle went about ten steps away and after going there he took out a pistol from the pocket of his pant and came towards Anil and fired two rounds in the air. He has further deposed that accused had stated "Pahle to tu bach gaya tha, ab nahi bachega" (you has escaped earlier but you cannot escape now). According to him, thereafter accused Jitender @ Kalle aimed and fired at Anil Bhadana which bullet hit the chest of Anil Bhadana who fell down on receiving the injury. He has testified that the accused Jitender @ Kalle ran away from the tent while firing at them and they started following. He has further deposed that while the accused was leaving the tent one of the bullets hit the father of his friend Vijay Sharma namely Madan Lal on which he threw three stones on accused Jitender @ Kalle but he escaped into a park where it was totally dark. The witness has further deposed that he came back to the spot where Inder and Sanjay Sharma were taking away Anil Bhadana to a hospital after which he along with Sumit Nayyar, Janesh & Narender had followed them in the car of Anil. According to him, at the hospital the doctors declared Anil Bhadana as dead. The witness has explained that Jitender @ Kalle had a grouse against Anil Badana who had sustained knife injuries in an incident and was a witness against accused Jitender @ Kalle in St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 17 the said case. He has also stated that Anil Badana had to appear in the Court against the accused after threefour days. He has proved that police had recorded his statement which is Ex.PW3/A. (17) In his cross examination by the Ld. Defence Counsel the witness has deposed that belongs to village Salempur, Distt. Gautam Budh Nagar and is a graduate from Meerut University. According to the witness he had studied in a college at Dadri in 1998 and in March 1998 he had taken admission in Satywati College (Evening shift) and attended the classes regularly for seven/eight months. The witness has placed on record the Icard of Satyawati College photocopy of which is Ex.PW3/DX. He has testified that he took admission in Satyawati College in Delhi perhaps in September, 1998 with History Honours as his main subject and at that time he used to reside with his maternal uncle in Wazirpur Village. According to him, he remained in Delhi regularly after taking admission in College till June/July, 1999 but no roll number was allotted to him as he had not taken the annual examination of the university. The witness has testified that he knew Vijay from the days of admission in the college who was studying in the morning shift of the college. He is however not aware where Vijay was residing. He has further deposed that the class in the college used to start at about 3:00 PM and used to last upto 6:00 PM and he used to meet Vijay almost daily. He has denied the suggestion that he never met Vijay nor he had studied in the college. According to the witness, Vijay St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 18 had given him the invitation card at the house of Anil Bhadana and at that time, he along with Anil were present. He has further denied the suggest that neither Vijay gave him an invitation card nor he attended reception party. According to him, they all collected at about 8:15 PM opposite a market of Satyawati College and from there they all had gone to the reception party in the car of Anil and had reached there at about 8:30 PM. He has further deposed that he Anil, Narender, Badana, Sumit Nayyar and Sanjay Sharma had collected there. According to him, one or two persons were already present at the place where they had collected whereas the others were called and Sanjay was given a telephone call. He has further deposed that when they reached the reception venue there were 40/50 persons present there and there might be 150/200 persons present in the main pandal and about 10/15 persons in the pandal meant for the cooks where the incident took place. The witness has also deposed that he might have taken part in the dance intermittently for sometime and Anil Bhadana was also dancing with him along with others. He has further deposed that a video film of the reception party was prepared and photographs were also being taken of the persons coming to the stage but he is unable to tell whether his photograph was taken or not. He has also deposed that he did not notice whether any member of the teaching staff from Satyawati College had attended the party. The witness has testified that the dinner was being served in the community hall which community hall was nearby the St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 19 pandal at a distance of about eight/ten steps. According to him while he was taking snacks along with Sumit Nayyar at about 8:30 PM, Anil Bhadana, Narender and Sanjay were going towards the DJ. The witness has further deposed that nobody had fired in the air in his presence at the reception venue except accused. He has denied the suggestion that ten/fifteen persons were firing in the air and that Anil Bhadana had received a bullet injury from the firing being done by one of these persons. He has denied the suggestion that accused Jitender @ Kalle was not present in the small tent and that accused Jitender Kalle had left the reception party after attending it for about five minutes only and further that he did not return in the party again. The witness has also deposed that while the accused running away and while he was firing, people had got aside. According to him, the accused had run from the main path which was meant for the pandal and there were two/four persons around that path who had got aside. He has testified that he had followed the accused even outside the tent and he might have chased the accused to a distance of 30/40 paces outside the pandal. The witness has further deposed that he along with Sumit Nayyar were following him and behind them there were two/three other friends but he had not noticed them clearly. According to him, father of Vijay had received bullet injury when he was present inside the pandal and was hit when he was only seven/eight yards away from the accused and he St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 20 (father of Vijay) sat down as soon as he received the bullet injury. He has denied the suggestion that no bullet injury was received by the father of Vijay from the accused or that ten/fifteen persons were running away while firing in the air and that father of Vijay had received bullet injury from one of these persons. According to the witness, the accused was at a distance of tentwelve paces from them but accused had fired at Anil Badana when he was only at a distance of sixseven paces. He has also deposed that on his right side Anil was standing whereas on the left Narender was standing and Sumit, Janesh and Sanjay were standing on his left at a distance of twofour paces. According to him, there was nobody along with accused Jitender @ Kalle who was wearing a royal blue coloured shirt. He has also deposed that the accused did not load the pistol in his presence. The witness has further deposed that Anil might have remained lying on the ground for about ten minutes because they had followed the accused and chased him outside the pandal while he was firing upon them after which they had come back to the spot. He has also deposed that the accused might have fired three/four times while running when they were chasing and was at a distance of fifteen paces ahead of him. According to the witness, the accused was firing after stopping for some moments and he (witness) remained at a distance of 15 paces from the accused at the time of firing. He has further deposed that he did not notice the number of persons present at the spot when he returned there whereas Inder and St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 21 Sanjay had removed Anil in the Maruti car of Inder. The witness has also deposed that when he reached there Anil had been put in the car and it was about to start. He has further testified that Anil had driven his Maruti Esteem car from Ashok Vihar to the reception party which car was parked at a distance of twenty paces from the spot. He has further deposed that fifteen/ twenty other cars were also parked there. According to him, Sanjay and Inder had taken out Anil from the car along with the hospital staff but he is unable to tell whether the clothes of Inder and Sanjay were stained with blood or not. He has also deposed that he remained in the hospital for about 30/45 minutes and that he did not enter the room where the doctor was examining Anil. The witness has further deposed that after 20/25 minutes the doctor had declared Anil to be dead and that the police had arrived perhaps at the time Anil was declared dead by the doctor. According to him, he remained there for 30/45 minutes after the arrival of the police and recorded his statement. The witness has also deposed that one Inspector, one Sub Inspector and two/three other police personnels had reached the hospital. He has testified that the name of the SHO was Pradeep Kumar.
(18) According to the witness Raj Kumar Bhati, he had told the police in statement that while had, Anil and Narender were talking, Sumit, Sanjay and Janesh were also present. However, when present with his statement Ex.PW3/A the said fact was not found so recorded. St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 22 He has also deposed that in his presence statement of no other witness was recorded even though Sumit had shown his willingness to make a statement. According to him, he (witness) remained in the hospital for twofour minutes after his statement had been recorded after which he was taken to the spot by the police and nobody else had gone with them. He has further deposed that they remained at the spot for about thirty minutes and no blood was lying on the ground at the spot. He has testified that he knew Jitender @ Kalle for the last fourfive years who was residing in Wazirpur village. He has further deposed that Anil had told him about the case against Jitender @ Kalle and he had come to the Court with Anil on one or two occasions in connection with the said case. He has denied the suggestion that Anil was not to appear in the Court as a witness against the accused or that Anil had told him that it was the accused Jitender @ Kall who had shifted him to hospital in the earlier incident wherein he had received stab injuries. He has denied the suggestion that he was not present at the spot and had not seen the incident or that the accused Jitender @ Kalle was not present at the spot nor he had fired upon Anil or Madan Lal.
(19) PW4 Sumit Nayyar has deposed that on 10.3.1999 it was a reception party of his friend Vijay who had been newly married which party was at A1 Block Community Centre, Keshav Puram. According to him, at about 8:15 PM, he along with Anil Bhadana, Raj Kumar Bhati, Narender and Snajy had gone to the said place in the car St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 23 belonging to Anil Bhadana where they had reached at about 8:30 PM. He has testified that some of their other friends were also present in the said party and he took some snacks with his friends. The witness has also deposed that one of their friends, namely Fariyad had not come to the party on which he along with Raj Kumar had gone to fetch him from his shop and they reached the reception venue at about 10:00 PM along with Fariyad. He has further deposed that as they entered the tent, he and Fariyad stayed there whereas Raj Kumar went inside where Anil was present. The witness has testified that Anil and Raj Kumar went to the DJ stage and he along with Fariyad came out of the Pandal. He has further deposed that they stayed for about thirty minutes outside near the car of Anil and when they came inside again, he saw these persons dancing on the DJ stage after which he went inside in order to take meals. He has also deposed that after about 15 minutes he came out after taking meals and after five/seven minutes accused Jitender @ Kalle, who was a student of Satyawati College when Anil Bhadana was President of the College Student Union at that time, also came there. He has further deposed that it was about 11:00 PM when the accused had arrived at the said place. According to the witness, accused started staring at Anil Bhadana on which Anil told him that there was nothing between them and he should not stare at him and should leave the place but in the meanwhile, accused Jitender @ Kalle took out a pistol from the pocket of his pant and fired twice in the air and St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 24 stated that "Pehle to tu bach gaya tha, ab nahin bachega". He has testified that stating so the accused aimed the pistol at Anil Bhadana and fired at him which bullet hit on the chest of Anil on which he fell down on the ground. The witness has also deposed that he cried Pakro - Pakro and accused started firing again and entered the main pandal where he again fired and one of the bullets hit the father of their friend Vijay. He has testified that at the place where the accused had fired at Anil Bhadana, he (witness) along with Raj Kumar, Junesh, Narender and Sanjay were present. According to him, the accused escaped out after firing and they chased the accused but the accused hid himself inside the the park where it was total darkness and therefore they did not venture inside the same. The witness has also deposed that they returned and saw Inder and Sanjay taking Anil Bhadana in a car on which he had given a call to the police at 100. He has also deposed that he had given three / four calls to the police and thereafter he along with Raj Kumar and Narender followed the car in which Anil Bhadana was taken to the hospital and went to Sunder Lal Jain Hospital where Anil Bhadana was 'declared dead' after sometime. The witness has also deposed that in the telephone call made to the police, he had stated that Jitender @ Kalle who has a meat shop in Ashok Vihar had fired at his friend Anil Bhadana. He has testified that the police had arrived at the hospital after sometime of their St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 25 reaching there and he told the police that he was present at the time of occurrence and had seen the same. According to him, there were fifteen/thirty persons present at the hospital. He has proved having made a statement under Section 164 Cr.P.C. before the Ld. MM during the course of investigation.
(20) In his cross examination by the Ld. Defence Counsel the witness has deposed that his statement was recorded by the SHO on the spot on the same night at about 3:00/3:30 AM and he remained there upto 4:15 AM. According to the witness he had come to the spot from the hospital with the police in a police gypsy and father of Anil Bhadana present at the hospital, when he had left for the spot with the police. He has testified that he had reached the hospital at about 11:25 PM and at that time he along with Inder, Sanjay, Raj Kumar and Narender were present. According to him, when the statement of Raj Kumar was recorded by the police he (witness) was present there and at that time father of Anil Badana and his brother Sunil were also present there but in his presence police did not record the statement of anybody else. (21) He further deposed that his statement was recorded by the police in the case only once which has not signed. Witness has also deposed that he had told the police that he along with Anil Badana, Narender, Sanjay and Raj Kumar Bhati had gone to the reception place in a car belong to Anil Bhadana; that he had gone to fetch Fariyad; that when they entered again he saw these persons dancing on the DJ stage; St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 26 that he had gone to take his meals; that Anil had told the accused not to stare at him as there was nothing in between the two of them; that the accused had taken out a pistol and had fired twice in the air where after taking aim at Anil Bhadnana accused had stated "pehle to too bach gaya tha ab nahi bachega"; that the accused had entered the main pandal and had again fired; that the accused had entered a park and that accused had hidden himself there and further that there was complete darkness inside the park and also that they did venture inside. However, when confronted with his statement Ex.PW4/DA the aforesaid facts were not found so recorded.
(22) He has further deposed that he had come to the market opposite Satyawati College from where they had all gone to the reception venue. According to him, Anil Badana was a student of the college and was the President of the college union. He has also deposed that it was decided in the morning that they would start at about 8:00 PM fro the place opposite Satyawati College. He has admitted that there were two shifts of study in Satyawati College, the second shift starts at around 1:00 O'Clock and they all were residing in the second shift. He has testified that he had no simultaneous class with Raj Kumar since he was doing a difference course from him. The witness has further deposed that Raj Kumar used to meet him daily in the college and he had come to know of Raj Kumar from 1998.
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 27 (23) He has also deposed that at the time they reached the pandal there were about 40/50 persons present there and they might have remained in the pandal for about 30 minutes before he went to fetch Fariyad. According to the witness, he did not meet Anil inside the pandal after returning with Fariyad but had met him in the tent behind the main pandal. The witness has further deposed that he had met Anil for one or two minutes inside the said tent when accused Jitender came there and the incident took place. He has testified that when the incident took place there were about 100 to 150 persons in the main pandal and outside the pandal liquor was being served where there were more than fifty persons. According to the witness, he did not hear noise of crackers inside or outside the pandal nor did he see anybody firing in the air at the reception venue. He has denied the suggestion that accused Jitender @ Kalle was not present on the spot or that accused had not fired at Anil. The witness has also deposed that he was present at a distance of three/four yards from Anil when accused fired at him and Raj Kumar and Narender were standing besides Anil and were talking to each other. According to the witness, he was standing with Sanjay and Janesh but Inder was not present there. He has further testified that the accused was at a distance of seven/eight yards from Anil when he had fired at him (witness) after which he came forward and then fired at Anil from a distance of seveneight yards. He has also deposed that Anil and others were not having revolvers with them. The St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 28 witness has further deposed that when accused fired in air, Anil did not pounce on him nor ran backwards. According to him, he was at a distance of ten - twelve paces when the accused had fired in the air. He has also deposed that the accused had uttered words "Pehle to tu bach gaya tha ab nahin bachega" while firing in the air twice and thereafter had aimed at Anil. The witness has further deposed that nobody from the main pandal had entered the tent when they had raised the noise Pakro Pakro. He has testified that the accused had run away from inside the main pandal because he could not have run towards the other side where they were standing. He has further deposed that the accused might have fired three/four times after entering the main pandal and the park in which the accused entered was about 20/25 paces from the main pandal. He has also deposed that at the time the accused was running away from the pandal there were about 100/125 persons present there. The witness has testified that they were at a distance of 10/15 yards and the main pandal had no roof over it and was open. According to him, it might have taken eightten minutes to come back after chasing the accused after the incident of firing. The witness has also deposed that he stayed in the hospital for two - two and a half hours and police might have reached the hospital after about fifteen minutes. (24) According to the witness Sumit Nayyar he had gone to the stage in order to wish the couple but he is unable to tell whether their photographs were taken or not. He has testified that when he reached St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 29 his house he came to know that his father had been killed. The witness has denied the suggestion that his statement was not recorded by the police on the night of the alleged occurrence. He has also deposed that he was receiving threats to his life and in that connection he had met the Commissioner of Police who directed SI Ram Avtar to bring him to the Court for recording his statement under Section 164 Cr.P.C. The witness has further deposed that he had not filed any complaint with the SHO but straight away gone to the Commissioner of Police. He has denied the suggestion that he has been tutored to make a statement under Section 164 Cr.P.C.
(25) PW5 Narender Kumar has deposed that on 10.3.1999 he along with Sumit, Raj Kumar, Anil and Sanjay had gone to Community Hall, Keshav Puram in order to attend the reception party of the marriage of his friend Vijay. According to the witness they had started from a place opposite Satywati College at about 8:15 PM in the car of Anil and reached there at about 8:30 PM where they took some snacks and cold drinks etc. and also met some friends. He has further deposed that at about 9:00/9:15 PM, they noticed that their friend Fariyad had not come to the party on which Anil asked Raj Kumar and Sumit to go and fetch Fariyad. According to him, at about 10:45 PM, Anil told them that there was much noise there and they should go out and talk after which he along with Raj Kumar, Anil went out to the tent meant for St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 30 cooks where Sanjay, Janesh and Sumit had also joined them. He has testified that after about five minutes of their reaching the said place, accused came there who started staring at Anil on which Anil stated that he should not stare at them and that he has nothing to do with them. He has further deposed that accused took two three steps backwards and took out a pistol from his pocket and fired twice in the air and stated "pahle to too bach gaya tha, ab nahi bachega" and thereafter fired a third time after taking an aim on Anil which bullet hit Anil on his chest. He has testified that Sumit and Raj Kumar ran after the accused by raising the noise 'PakroPakro' and he (witness) also chased along with Sumit and Raj followed by Janesh. According to the witness the accused ran towards the main gate of the pandal and since Raj Kumar and Sumit were chasing the accused the accused fired once at them also. The witness has further deposed that he chased the accused upto a temple whereas Raj Kumar and Sumit, however had chased the accused further. According to him, when he returned to the spot, he saw that Sanjay and Inder putting Anil in a car which car was of Inder and in the meanwhile Sumit and Raj Kumar had also arrived. He has also deposed that the car carrying Anil had sped away and he along with Raj Kumar, Sumit and Janesh followed the said car in the car of Anil. The witness has also deposed that they had gone to Sunder Lal Jain Hospital where Anil had also been taken where they might have St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 31 reached at about 11:15/11:20 PM and after about half an hour the doctor had declared Anil dead. According to him, police had recorded his statement on 11.3.1999 at about 4:30 AM.
(26) In his cross examination by the Ld. Defence Counsel the witness has deposed that the deceased Anil Badana is the son of his uncle / chacha and they have separate houses. According to him, Inder is his brother and Raj Kumar is his cousin (son of Bua) whereas Sanjay is his friend. He has further stated that he had told the police in his statement that they had reached at about 8:30 PM and had met their friends and had also taken some snacks and cold drinks; that at about 10:45 PM Anil had stated that there was much noise and they should go out and talk; that accused Jitender @ Kalle had reached there within five minutes of their reaching; that after taking out the pistol the accused had come twothree yards forward; that the accused had run towards the main gate of the pandal. However, when confronted with his statement Ex.PW5/DA the said facts were found so recorded.
(27) According to the witness, there were two pandals i.e. one of DJ and the other where food was being served. According to the witness, the main road was tenfifteen yards away from the main gate of the pandal and there was only one way of entering the pandal which was through the main gate. He has also deposed that the car was parked at a distance of 10/15 yards from the main gate and at the time they had reached the pandal, there were only two/three cars. According to him, St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 32 there is a temple which was just behind the pandal and was adjacent to it and the entry to the temple is from the road and the temple is on the right side when they come out of the main gate of the pandal. He has also deposed that there is a Community Hall Building near the temple and one has to cross the temple in order to go to the community hall building. The witness has further deposed that the community hall building is inside and not on the main road and the building is at a distance of 20/25 yards from the temple. According to the witness, he had prepared a sketch showing way to the community hall, the place where the temple is situated and the place where the park is situated which site plan is Ex.PW5/DB. He has testified that there is a Gurudwara nearby which is at a distance of 15/20 yards from the main gate of the pandal. The witness has also deposed that Vijay had invited him for the reception and had given an invitation card to Anil and Anil had given that card to him about two/three days before the reception party. According to the witness, he had come all alone to the place opposite Satyawati College where he had reached at about 7:55 PM and Sumit had met him there first of all. He has also deposed that after one or two minutes Anil and Raj Kumar had also arrived in Anil's car which was being driven by Anil. He has testified that they had rung up Sanjay and after he had arrived, they had started from there. According to him, about 30/40 persons were present in the pandal when they reached there and there was a video camera and a still camera working. He has St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 33 deposed that he did not go to the stage in order to wish the bride and bridegroom and most of the time he remained with Anil but for some time he might have also gone with other friends. The witness has also deposed that he had met Janesh, Sanjay Bhati, Karan Singh of Jor Bagh and some friends of Anil whom he knew by face and not by name. He has further deposed that he had seen accused only in the tent where they had gone. The witness has testified that the accused Jitender was wearing a blue coloured shirt and had taken out the pistol from his right pocket of the pant worn by him. According to him, the accused might have stopped there for one or two minutes where after the incident took place. He has also deposed that there were about tentwelve persons in all present in that tent and only fivesix persons were present in the tent when they went there. He has denied the suggestion that people were firing in the air after taking liquor and that one of the bullet had hit Anil from his pistol. He has further deposed that accused Jitender was at a distance of about fifteen paces from him when he regained his composure. The witness has also deposed that the accused was still in the pandal at that time and Sumit & Raj Kumar were ahead of him (witness) at a distance of eightten paces. He has further testified that the accused had fired at Sumit and Raj Kumar in the tent where the incident had taken place. According to him, the accused had fired from the passage and had not entered the DJ Pandal etc. He has also deposed that there were persons present in the gallery from where the accused St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 34 was effecting his escape which was an open gallery which had Kannats on both sides. The witness has further deposed that he (witness) had seen Sumit Nayyar and Raj Kumar at a distance of 25 paces from him ahead. He has further deposed that they had not gone to the spot where the occurrence had taken place because Inder and Sanjay had brought Anil outside and were putting him in a white coloured Maruti car. According to the witness, blood was not coming out of the injury of Anil. He has further deposed that police had reached the hospital after tenfifteen minutes of their reaching the hospital. The witness has testified that he (witness) had gone to the spot from the hospital along with Praveen, his nephew, on his two wheeler scooter and he stayed there for about half an hour. He has denied the suggestion that being a relative of the deceased he has deposed falsely.
(28) PW6 Janesh has deposed that on 10.3.1999 he had gone to Keshav Puram in order to attend the reception party of the marriage of his friend Vijay which was being held in AI Block, Keshavpuram where his friends Anil, Sumit, Raj Kumar, Sanjay and Narender were also present apart from some relatives of Vijay. He has testified that at about 10:45 PM when he along with Sanjay, Anil, Raj Kumar, Narender and Sumit were talking to each other in a tent adjoining the Pandal, the accused Jitender @ Kalle came there who fired at Anil after which he escaped while firing in the air in his car. St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 35 According to him, Inder and Sanjay had removed Anil to Sunder Lal Jain Hospital and he along with Sumit, Raj Kumar and Narender had followed their car to the hospital where the doctor declared Anil to be dead.
(29) In his cross examination the witness has deposed that Anil was his covillager and accused Jitender had studied in Satyawati College but had not studied with him. He has further deposed that his statement was recorded by the police at about 22:30 PM in the police station on 12.3.1999. According to the witness, he had gone to the party on his scooter all alone where he reached at about 88:15 PM but when he reached accused Jitender Kalle was not present there. He has also deposed that his statement was recorded by Inspector Pradeep Kumar. The witness has testified that he had returned from the hospital after 12:00 AM and Anil was declared dead at 11:45 PM. He has also deposed that about thirtyforty persons of the village had come and from the hospital he had gone to his house. The witness has further deposed that he left the Police Station at 2:302:45 PM after his statement was recorded but he did not sign any papers. He has testified that the car of the accused was parked at a distance of ten paces from the main gate and was at a distance of teneleven yards when accused Jitender sat in his car. According to him, accused was all alone and the number of his car was 9383. He has also deposed that since they were abut to remove Anil to the hospital, accused came from behind and got into his car St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 36 which was on the other side of the road. The witness has further deposed that Anil was at a distance of 30/40 paces from the main gate when he was hit Sanjay and Inder had put him in his car. According to the witness, he along with Sumit, Raj Kumar and Narender had gone in the car of Anil and they did not chase the car of accused and had followed the car in which Anil was taken to the hospital. He has denied the suggestion that the liquor was being served in a separate tent or that some boys were firing in the air. The witness has also denied that accused was not present on the spot and Anil had received a bullet injury from the boys who were firing in the air and the voluntarily explained that Anil was fired at by the accused who had stated "Pehle to tu bach gaya tha, ab nahin bachega".
(30) PW8 Inder Raj has deposed that on 10.3.1999 he had gone to attend the reception party of Vijay Kumar who was a friend of his brother and had been visited their house. According to the witness, he reached the party at about 10:15 PM where a DJ programme was going on and after taken meals he came out of the pandal. The witness has testified that he heard a noise of "PakroPakro" and he saw accused Jitender @ Kalle who was a resident of his village, running away while firing. According to the witness, he ran after the accused who ran towards the temple and when he returned Sanjay met him. He has further deposed that Sanjay told him that accused Jitender @ Kalle St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 37 had shot Anil on which they ran to the place where Anil was lying on the ground near the Tandoor after which he (witness) and Sanjay took Anil in a Maruti car to Sunder Lal Jain Hospital where the doctors after examining Anil declared him dead.
(31) In his cross examination the witness has deposed that the Tandoor had been installed outside the pandal at a distance of twenty twenty five yards from the stage he has prepared a sketch Ex.PW8/A which shows the different places such as the community hall and the place where the tandoor had been fixed. The witness has also deposed that he had seen Anil at the DJ prior to taking meals and it might be 10:1510:20 PM at that time. According to the witness, he had only seen Anil and Sanjay and no body met him outside the pandal for fiveseven minutes while he was waiting there. He has also deposed that the noise PakroPakro had come from inside the pandal. The witness has further deposed that he had seen accused Jitender @ Kalle from the distance of twentytwenty five paces. He has testified that he did not try to catch hold of accused at that time even though he had passed by his side. According to the witness, his statement was recorded by the police on 11.3.1999 on the spot at about 6:00 AM and after his statement was recorded, he came back to his house. He has also deposed that the distance of the place where he was waiting outside the pandal and where Anil was lying might be around 25/30 paces. The witness has further deposed that his clothes were not stained with blood when he shifted St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 38 Anil to the car nor had he seen the blood lying on the spot. The witness has testified that the car in which they took Anil was at a distance of ten twelve paces from the main gate which car belongs to Bharat, his friend. According to him, Sanjay had kept hold of Anil by his hands and he was kept in a standing posture. The witness has also deposed that from the place where Anil was lying, they had lifted him to the main gate. He has denied the suggestion that he had not seen the accused Jitender @ Kalle running from inside the pandal while firing or that Sanjay did not tell him that Jitender had shot Anil.
(32) PW9 Daljit Singh is an independent witness of recovery who has deposed that about two years ago he had taken a bus to Haiderpur, which was plying on route no. 220 when police had met him in Haiderpur and asked him to accompany them and told him that they would show him something. The witness has testified that he had accompanied the police up to the petrol pump and police had returned after about ten minutes and showed him something which was wrapped in a handkerchief and the police obtained his signature on a paper. (33) The witness has found resiling from his previous statement on which he was cross examined by Ld. Addl. PP wherein he has admitted his signatures on the memo Ex.PW9/A. He has deposed that the date of the said incident might be 4.2.2000. He is unable to tell if the accused had also accompanied the police. He has admitted that on the asking of the police had had joined the investigation of this case and St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 39 that there is a DDA park behind the petrol pump having a boundary wall. According to the witness, he had not gone with the police to the said park. He has denied the suggestion that in his presence accused had led the police party to the wall of the park where there was a Beri tree as well or that in his presence the accused had dug into the earth and got recovered a polythene bag containing a pistol having six live cartridges in the Magazine. He is unable to tell whether on interrogation the accused had told the police party that he had concealed this pistol at that place immediately after coming from Nepal on 23.1.2000 and has voluntarily explained that there was some talk of Nepal going on but he is not sure as to what exactly it was. He has admitted that a parcel was prepared on the spot and it was sealed but he is unable to tell whether it was the pistol which was sealed on the spot. The witness is unable to identify the pistol and cartridges but has identified the the polythene bag which is Ex.P1. He has denied the suggestion that the accused had got recovered the pistol as well as six live cartridges which were contained in the magazine. He has however stated that the accused might have accompanied the police party at the time of the occurrence and there were several others also. This witness has not been crossexamined by the Ld. Defence Counsel.
(34) PW31 Anuranjan Kumar was an attendant of the car parking lot at St. Stephen's Hospital from where the car of accused St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 40 Jitender was allegedly seized by Investigating Officer Inspector Pradeep Kumar. He has deposed that in the year 1999, he was working as a cashier in the parking lot of St. Stephen Hospital, Delhi and police had seized a Maruti Car. According to him, an inspection of the said car was got done by the police before its seizure. He is unable to tell when this Maruti Car was received in the parking lot of the hospital and states that it was however seized on 26.3.99 as is mentioned in the seizure memo. He has further deposed that whenever a vehicle is received in the parking lot, a ticket is issued to the owner/driver and a counter foil is kept by the cashier on which the number of the vehicle is recorded. He has also further deposed that in 1999 M/s. Meraj Security were the contractors at St. Stephen Hospital. He was unable to brought the counter foil of the parking tickets which were maintained by the then Contractor.
(35) The witness has crossexamined by the Ld. Addl. PP. for the State wherein he has admitted that on 26.3.99 a car bearing no. DL 8CA 9383 was seized by police from his parking lodge which car was also inspected by the police. He has further deposed that the number of the car and its make are mentioned on the papers prepared by police at the relevant time. He does not remember orally whether it was Maruti Zen or Maruti 800 car. He has also deposed that he is working in the personal department of M/s Shivalik Global Ltd. 10/6 Mathura Road, Faridabad. He has testified that on 26.3.99 SHO of the concerned area St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 41 inquired from him about the details of the parking of the said vehicle in the parking. According to him, he had not disclosed to the police that this car was parked in his parking on 11.3.1999 and he never used to issue parking slip as the said slips were issued to the parking attendant. The witness has testified that his duty was in the parking cabin erected near the parking gate and was to collect cash only. He has also deposed that the guard used to give him cash in the evening only and not on departure of every vehicle. He has further deposed that police had not enquired the fact that whether he used to be an attendant in the parking or he used to sit in the cabin for collecting cash from the guards. He has also deposed that he did not come to know that the vehicle involved was standing in the parking lounge since 11.3.99 and he used to return to his house after his duties of eight hours. He has denied the suggestion that he disclosed to the police that Maruti Zen came at the parking lounge on 11.3.99. He has denied his statement Mark PW31/X regarding the arrival of the car on 11.3.1999. According to him, he had not disclosed that the said car was in the parking from 11.3.99 till 26.3.99. Witnesses of medical record:
(36) PW12 Dr. Bhupender Aggarwal has proved having medically examined injured Madan Lal Sharma at Garg Nursing Home, Tri Nagar vide examination slip Ex.PW12/A on 11.3.1999 at 12:05 AM.
According to the witness there was a gun shot injury over the left leg St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 42 lateral aspect at junction of upper 2/3 and lower 1/3 about one hour earlier and on local examination he found wound of entry and exit present on the left leg, lower 1/3 with subcutaneous track, part clear and trape, track laid open and derided washed and repaired under L.A. He has also deposed that the patient was discharged after local aid and prescribing medicines.
(37) In his cross examination by Ld. Defence Counsel the witness has deposed that he did not find any tatooning or blackening around the area and the wound was a ragged one.
(38) PW15 Dr. K. Goel is the Autopsy Surgeon who had carried out the postmortem examination on 11.3.1999 on the dead body of deceased Anil Badana, aged 26 years with the alleged history of sustained gun shot injury and declared 'brought dead' in S. L. Jain Hospital on 10.3.99 at about 11:15 PM. He has further deposed that clothes on the body were pant and underwear found intact. According to the witness on external examination there was a punctured laceration oval shape 1.5 x 1.1 cm over chest just at mid line and at the level of horizontal line connecting both nipples, Margins were inverted and left margin showed contused collar and slightly shelved margin. He has also deposed that the height of the wound from right heel was about 133 cm and distance of wound from skull top was about 43 cm, there was no burning or tattooing around the wound, and no other external St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 43 injury was seen on the body.
(39) He has also proved that on internal examination the injury showed the following injury track - pierced the sternum at about middle at the level of fourth intercostal space, perforated the pericardium, entered right ventrical and came out from the lateral most part of right atrium and then penetrated into upper lob of right lung. According to him, one bullet was recovered from the right lung mas in upper lob, chest cavity was full of blood and clots, the direction and plain of the injury track was slightly left to right, upwards and backwards obliquely. The witness has proved that the the cause of death was hemothorax, haemorrhagic shock and element of asphyxia consequence to injuries to the heart and right lung as a result of fire arm injury which was antemortem in nature. He has also proved that the fire arm was rifled and range was beyond the blast effect and the solitary fire arm injury was sufficient to cause death in the ordinary course of nature, time since death was about 12 hours. He has further deposed that the clothes, blood sample and the bullet recovered from the body were sealed and handed over to the police and the detailed postmortem report is Ex.PW15/A. (40) In his cross examination the witness has deposed that a bullet was recovered embedded in the chest of the deceased and case of bullet injuries the size of the entry would can be smaller or even bigger St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 44 than the size of the foreign body whereas in certain cases only than the size of the foreign body. He has clarified that when a firearm is used from a distant range the entry wound is likely to be smaller than the side of the foreign body and the size of the wound may be bigger where the bullet loses its maximum velocity at the point of entry. According to the witness, only a ballistic expert can tell the distance from which the bullet had been fired in this case. He further deposed that when a bullet strikes perpendicular to the body there are more chances of the wound being circular in nature. According to him, the bullet had entered from left and had gone towards the right.
(41) PW28 Sh. Vijay Shankar Singh is the Record Clerk of Sunder Lal Jain Hospital, who has proved the MLC Ex.PW28/A of injured Anil Badana. He has deposed that the patient Anil Kumar was brought to the hospital by his cousin Inder on 10.3.99 at 11:15 PM with the alleged history of gun shot injury and the patient was examined by Dr. Paramjit Singh who had declared him 'Brought Dead' after examination. According to the witness, Dr. Paramjit Singh had left the services of the hospital and he has identified the handwriting and signatures of Dr. Paramjit Singh on MLC Ex.PW28/A. He has been crossexamined by the Ld. Defence Counsel but nothing much has come out of the same.
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 45 FSL Expert:
(42) PW33 Sh. A. R. Arora is the ballistic expert, who examined the impugned weapon of offence recovered at the instance of accused Jitender visavis the empty cartridges recovered from the spot and the bullet taken out from the dead body of deceased Anil Badana by the Autopsy Surgeon. He has deposed that on 25.2.2000 he received six sealed parcels from Police Station Keshav Puram the Parcel nos. 1 and 2 had the seal of ISS whereas parcel no.3 was sealed with the seal of PK, Parcel nos. 4 and 6 were sealed with the seal of KS and parcel no. 5 bear the seal of SLJH which seals on the parcels were intact and were tallying with the specimen seals received in the office. According to him, Parcel no.1 contained one 7.65 mm pistol bearing serial no. 621251 along with an empty magazine and he marked the pistol and magazine as W/1. He has testified that Parcel no.2 contained six 7.65 mm cartridges which were marked by him as C/1 to C/6; Parcel no.3 contained three 7.65 mm fired cartridges cases marked by him as C/7 to C/9 and Parcel no.4 contained one 7.65 mm deformed/fired bullet marked by him as DC/1. The witness has further deposed that parcel nos. 4, 5 and 6 were first examined in the Biological/Serology Division of CFSL and thereafter parcel no.4 was examined in the Ballistic Division. He has proved that three 7.65 mm cartridges marked by him as C/1 to C/3, contained in parcel no.2 were test fired by him from 7.65 mm pistol marked W/1, contained in parcel no.1. The witness has also St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 46 deposed that the fired cartridge cases were then kept by him along with the bullets in the same parcels. He has proved the result of examination that:
1. 7.65 mm pistol marked W1 contained in parcel no.1 is a firearm as defined under the Arms Act and has been fired through and was in working condition.
2. Six 7.65 mm cartridges marked C/1 to C/6 contained in parcel no.
2 are ammunition as defined under the Arms Act and were live.
3. Three 7.65 mm cartridges cases contained in parcel no.3 marked as C/7 to C/9 have been fired from 7.65 mm pistol marked W/1 by him.
4. 7.65 mm fired bullet marked DC/1 contained in parcel no.4 has been fired from 7.65 mm pistol marked W/1.
5. Sign of tampering of the parts (such as firing pin and trigger etc.) of 7.65 mm pistol marked W/1 contained in the parcel no.1 could not be detected.
6. 7.65 mm pistol marked W/1 contained in parcel no.1 could be dismantled and reassembled by any user having knowledge / training of the firearm.
(43) He has proved his detailed report of examination which is Ex.PW25/C. (44) In his cross examination by the Ld. Defence Counsel he has deposed that he had taken the photographs of the cartridges and the St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 47 bullet for comparison and in all two photographs one of the cartridge case and one of the bullet were taken. He has further deposed that striations were generally found on country made pistol but since this was a standard weapon striations are found between the two lands and groups. He has testified that he had tallied the striation marks found between land and groups and no striation marks are found on the cartridge case in the case of such a weapon. He has denied the suggestion that striation marks appear on the cartridge case as well due to the impact of the firing. The witness has further deposed that no photograph was taken as there was no mark on the body of the empty shell except the percussion cap and he had taken one photograph of the percussion cap. According to him, two marks i.e. one firing pin impression and the other ejector mark were found on the percussion cap. The witness has also deposed that he had not taken magnified print in order to measure the distance between the two marks nor he measured the depth of the impression of the firing pin. He has further deposed that he has not measured the firing pin from the edge of the cap as regard the distance. The witness has testified that all standard weapons contained 6/6 land and groove RHS and LHS. According to him, he had not measured the land and breadth and height of the grooves but he had conducted microscope examination of the grooves. He has proved the photographs of the grooves which were taken by him which photographs are Ex.PW33/DA & Ex.PW33/DB of bullet and percussion cap St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 48 respectively. He has testified that are more than ten striation marks between two grooves and one land in photograph Ex.PW33/DA. He has denied the suggestion that he has not properly examined the bullet / cartridges and the pistol in question.
Police / Official witnesses:
(45) PW7 SI Manohar Lal is a formal witness being the Draftsman, who has proved having prepared the scaled site plan Ex.PW7/A of the place of incident on 4.6.1999 and after preparation of the site plan he had destroyed the rough notes. He has been cross examined by the Ld. Defence Counsel but nothing has come out of the same. This witness was inadvertently again reexamined as PW13 and has deposed on similar lines.
(46) PW10 HC Ram Pal is a formal witness being the Duty Officer of Police Station Keshav Puram on the night intervening 10th and 11th March, 1999 from 1:00 AM to 9:00 AM. He has proved that on 11 th March 1999 at 1:30 AM Ct. Surender brought a rukka which was sent by Inspector Pradeep Kumar on the basis of which rukka, he recorded FIR copy of which is Ex.PW10/A. He has also proved the copy of DD No. 17A which is Ex.PW10/B and copy of special report which is Ex.PW10/C. (47) In his cross examination, the witness has deposed that he had not recorded the name of the accused in DD No. 17A and the rukka St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 49 had been sent from Sunder Lal Jain Hospital. According to him, it took about one hour in recording the FIR. He has further deposed that the special report was sent in an envelope after pasting it and had sent four copies of FIR through Ct. Yogesh.
(48) PW11 HC Raj Singh was the duty officer police station Keshav Puram, New Delhi on the night intervening 10th and 11th March, 1999 from 5:00 PM till 1:00 AM, who had received the initial information about the incident at about 11:25 PM and recorded it vide DD No. 15 A, copy of which is Ex.PW11/A. He has proved having forwarded it to SI Om Prakash for further necessary action. (49) In his cross examination the witness has deposed that at the time of recording DD no.15A, the SHO was not present in the Police Station and was on patrolling duty. He is unable to tell if the SHO had returned to the police station till he was working as duty officer upto 1:00 AM. The witness has further deposed that according to the Roznamcha the SHO had not returned to the Police Station till 1:00 AM.
He has denied the suggestion that this DD entry was made at the asking of the senior officer of the PS later on.
(50) PW14 L/HC Santra has deposed on 10.3.99, she was posted in PCR and at about 23:15 hours she received a message from telephone no. 9811162283 that a firing incident had taken place near Shiv Mandir Lawrence Road which firing had been done by one Kallu and perhaps it had hit one person. She has proved having filled up PCR St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 50 form which is Ex.PW14/A and handed it over for onward transmission. (51) In her cross examination by the Ld. Defence Counsel she has deposed that it might have taken twothree minutes in receiving the information and filling up the PCR form. She further deposed that the number of the phone is listed in the computer and she had not handed over the sheet from the computer in order to show it to the Investigating Officer and has voluntarily explained that the sheet is not taken out from the computer and the number of the telephone is noted down by them. (52) PW16 HC Harminder Singh was the Duty Officer of Police Station Model Town on the night intervening 8th and 9th March, 1996, who had recorded FIR No. 125/1996 in which Anil Badana had sustained injuries. He has further deposed that on that day information was received from Sunder Lal Jain Hospital about the admission of one Anil Kumar in an injured condition in the hospital on which DD No. 28 A was recorded and was entrusted to SI Ram Sunder. He has also proved proved that at 4:15 AM he received a rukka through Ct. Joginder which had been sent by SI Ram Sunder, on the basis of which rukka, he recorded FIR No. 125/96, under Section 279/337/307 IPC and 25 & 27 of Arms Act, copy of which FIR is Ex.PW16/A. (53) In his crossexamination by the Ld. Defence Counsel the witness has admitted that the accused Jitender @ Kalle had been acquitted by the Court on 13.2.2001.
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 51 (54) PW17 Sh. M. C. Gupta the then Ld. Metropolitan Magistrate has deposed that on an application for recording statement which is Ex.PW17/A, he had recorded the statement of Sumit Nayyar under Section 164 Cr.P.C. vide Ex.PW17/B. He has proved his certificate to this effect which is Ex.PW17/C and Ex.PW17/D. He has not been crossexamined by the Ld. Defence Counsel. (55) PW18 Surender Singh Senior Assistant Judicial Record, Office of District Magistrate, Jammu has proved a letter issued by ADM Jammu vide letter dated 4.4.2000 bearing No. 131/JDM/2000 issued by the Addl. DM which letter is Ex.PW18/A. According to him, the original record regarding the issuance of gun license pertaining to the year 1991 to 1995 besides other record was seized by the Addl. Superintendent of Police, Crime and Railway in FIR No. 8/99, u/s. 420/467/468/120B/161/155A IPC as per the copy of seizure memo Mark X. He has not been crossexamined by the Ld. Defence Counsel despite opportunity given.
(56) PW19 Paramjit Singh is the partner of M/s. Bahadurgarh Gun House, Jhajjar Road, Delhi who has deposed that the police had seized photocopies of license no. 555/JDM/94 in respect of Jitender Kumar i.e photocopy of sale register page no. 39 dated 31.7.96 and (3) photocopy of sale register page no. 12 dated 22.4.98 from him and had taken these documents into their possession vide memo Ex.PW19/A. St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 52 He has identified the photocopy of license which is Ex.X1; copy of sale register dated 31.7.96 which is Ex.X2 and copy of sale register dated 22.4.98 which is Ex.X3. According to the witness, he had also handed over a cash memo (photocopy) dated 22.4.98 Ex.X4 vide which a pistol ring no. 621251 make Czechoslovakia was sold to accused Jitender @ Kalle along with 50 cartridges of .32 bore. He has identified the pistol Ex.PXX bearing no. 621251 to be the same which was sold by him to accused Jitender @ Kalle. He further deposed that when the pistol was shown to him it was accompanied by a magazine. He has also identified the magazine which is Ex.PXX1 and three live cartridges which are Ex. PX1, X2 to PX4 with three used cartridges which are Ex.PXX5 to Ex.PXX7.
(57) In his cross examination the witness has deposed that the police might have come to him after five days when this case was reported in the paper. He is unable to tell if on their first visit the police had brought the aforesaid pistol to him or not. The witness has deposed that he had checked up the record after the pistol was shown to him. (58) He was accordingly declared hostile by Ld. Addl. PP and in his cross examination he has deposed that he had checked up his record after the pistol was shown to him. He has denied the suggestion that on 2.2.2000 pistol Ex.PXX was not shown to him as it had not been recovered by then. He does not remember if the police had recorded his St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 53 statement on the day memo Ex.PW19/A was prepared nor is he aware is he had stated that pistol Ex.PXX and the magazine were shown to him. However, when confronted with his statement Ex.PW19/B the said fact was found recorded.
(59) PW20 Ct. Surender Singh had remained associated with PW25 SI Ram Avtar and ASI Virender Tyagi at the time of arrest of accused and also when the weapon of offence was recovered at the instance of accused. He has deposed that on 23.1.2000 he alongwith SI Ram Avatar and ASI Virender Tyagi Ct. Praveen were present in their office when an information was received by SI Ram Avatar that an accused wanted in case FIR No. 67/99, PS Keshav Puram would come to Narayan Bus Stop at about 4:00 PM in Mudrika in order to meet his sister on which SI Ram Avtar formed a raiding party and reached that place. According to him, SI Ram Avtar had asked a number of persons to join the raid but they all refused and at about 4:00 PM, a bus Mudrika under DTC operation came at the bus stop. He has further deposed that accused Jitender @ Kalle was apprehended by them at the pointing out of the informer after which the accused made a disclosure statement which is Ex.PW20/A, his personal search was conducted vide memo Ex.PW20/B after which they brought the accused to office. According to the witness, the accused was taken on police remand during which on 4.2.2000 the accused led them to Haiderpur behind a petrol pump from St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 54 where accused had got recovered a pistol from underneath the earth near a Beri tree. He has testified that the pistol was wrapped in a polythene bag which pistol was .32 bore and the polythene bag also contained a magazine which had six live cartridges. According to him, the earth was dug upto about teneleven inches and then the polythene bag containing the pistol and the magazine/live cartridges were recovered. He has testified that SI Ram Avtar dug the earth with a Khurpi and words Czechoslovakia were engraved on the pistol. He has testified that the pistol was sealed into a parcel with the seal of I.S.S. vide recovery memo Ex.PW9/A. He has identified the pistol which is Ex.PXX; magazine which is Ex.PXX1, three live cartridges which are Ex.PXX2 to Ex.PXX4 and three fired cartridges which are Ex.PXX5 to Ex.PXX7. He has also deposed that on 25.2.2000, he had taken five sealed parcels out of which one was sealed with the seal of RK, one with the seal of PK, one with the seal of ISS, one was blood sample and the fifth was sample seal from P.S. Keshav Puram and had taken them to CGO Complex Lodhi Road, where they were deposited vide an R.C. He has also deposed that during the course of police custody remand the accused had taken them to Bahadurgarh Gun House, Jhajjar Road, Bahadur Garh from where SI Ram Avatar had seized photocopies of the sales register vide memo Ex.PW19/A. According to him, the sketch of the pistol and the cartridges was also prepared before it was sealed. St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 55 (60) In his cross examination the witness has deposed that the information was received at abut 1112 noon and the informer had come to SI Ram Avatr in their presence and had given the information in the presence of all of them. According to the witness the Investigating Officer had recorded the said information. He has testified that they had started from office after one/one and a half hour by the official Gypsy which Gypsy was parked about 200 yards prior to the bus stop. According to him, there is no traffic light nearby the bus stop and there is a police booth near a red light which is 300400 yards prior to the bus stop. He has testified that had waited at the bus stop for two to two and a half hour. He has further deposed that about 5 to 7 persons might have got down from the bus in which the accused was travelling. He has also deposed that all the police officials had apprehended the accused together and statement Ex.PW20/A of the accused was recorded at the bus stop. He has further deposed that they remained there upto 6 to 6:30 PM and statement of all the official witnesses were recorded by SI Ram Avtar. According to the witness, on 4.4.2000 they had reached the place of recovery at about 3 PM. He has admitted that they remained at the place of recovery for about two hours and has deposed that the writing work was done while sitting on the patri nearby the place of the recovery. The witness has further deposed that it was a patri of the wall of the petrol pump and that the statement of accused was recorded in his presence on 23.1.2000 at the time of arrest of accused and then on St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 56 2.2.2000 at Police Station Adarsh Nagar and on 4.2.2000 at the place of recovery. He has denied the suggestion that the accused had not led them to the alleged place of recovery nor any recovery was effected at his instance.
(61) PW21 ASI Virender Tyagi had remained associated with PW25 SI Ram Avtar and Ct. Surender Singh at the time of arrest of accused and also when the weapon of offence was recovered at the instance of accused. He has deposed that on 23.1.2000 he had joined the investigation with SI Ram Avatar in case FIR No. 67/99, PS Keshav Puram and SI Ram Avatar had received an information that accused Jitender @ Kalle would visit Narayana and would come to Bus Stop Narayan by a bus. According to the witness, he along with SI Ram Avtar, Ct. Pawan Kumar, Ct. Surender and driver Naresh Kumar besides the informer reached bus stop Narayan and at about 4:00 PM accused Jitender @ Kalle came there. He has proved that the accused was apprehended on the pointing out of the informer after which the accused was interrogated and made disclosure statement Ex.PW21/A. He has further deposed that accused had disclosed that he had purchased a pistol from a gun shop in Bahadurgarh after which the accused led them to Bahadurgarh Gun House on 2.2.2000. The witness has further proved that on 4.2.2000 the owner of the Gun House had come the office in Adarsh Nagar where accused was shown to him on which the owner stated that the accused had purchased a pistol from him and had St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 57 obtained a gun license. He has testified that on 4.2.2000 the accused had made another disclosure statement pursuant to which he then led them to a petrol pump in Haiderpur and got recovered a pistol with a magazine containing six live cartridges placed in a polythene bag. The witness has also deposed that the polythene bag containing pistol was dug up from underneath the earth near a Beri tree which was situated near the wall of the petrol pump. According to him the pistol was got taken out from underneath the earth by SI Ram Avtar by digging about teneleven inches. He has proved the disclosure statement made by the accused on 4.2.2000 which is Ex.PW21/A. The witness has also proved that the sketch of the pistol along with the cartridges were prepared after which the pistol and the cartridges were sealed into parcels with the seal of ISS and were taken into police possession vide memo Ex.PW19/A. He has correctly identified the pistol Ex.PXX, magazine Ex.PXX1, live cartridges Ex.PXX2 to 4 and used cartridges Ex.PXX4 to 6 which were recovered at the instance of the accused and at the time of the recovery there were six live cartridges out of which three have been test fired. He has further deposed on 2.2.2000 they had got photocopies of the documents of sale from the owner of the gun house.
(62) In his cross examination by the Ld. Defence Counsel the witness has deposed that they had started from Police Station Adarsh St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 58 Nagar at about 11/12 noon for the purpose of recovery and the disclosure statement Ex.PW21/A was recorded at about 10:30 AM. According to him, SI Ram Avtar had scribed the disclosure statement in his room. He has also deposed that Paramjit Singh was present at that time and his statement under Section 161 CrPC was recorded by SI Ram Avtar. The witness has further deposed that the accused was in handcuffs at the time when his disclosure statement was recorded and it took about 10/15 minutes in recording the statement. According to the witness, accused had taken them to Haiderpur directly and had parked their vehicle at the corner of the park. He has also deposed that the recovery was effected from a distance of 50 yards from the place where they had parked vehicle. The witness has further deposed that 15/20 persons had collected at the place of recovery and were watching the proceedings. According to him, SI Ram Avtar was having a Khurpi with him with which he had dug the earth and statements of all the witnesses of recovery were recorded on the spot. The witness has also deposed that writing work was done while sitting on the bench and the entire writing work was done by SI Ram Avatar apart from doing the sealing work. He has denied the suggestion that he had not joined the investigations in this case nor had gone to the alleged place of recovery or that the accused had not made any disclosure statement nor had got recovered pistol and live cartridges.
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 59 (63) PW22 SI Om Prakash has deposed that on 10.3.99 he was posted in Police Station Keshav Puram and was on emergency duty from 1:00 PM to 8:00 AM and at about 11:35 PM, he was present at road no. 37 along with Ct. Surender when DD No.15A was brought to him by Ct. Puran Bahadur on which he went to Community CentreA1 Block, Keshav Puram where he came to know that the injured had been removed to Sunder Lal Jain Hospital. The witness has also deposed that he went to Sunder Lal Jain Hospital along with Ct. Surender where SHO Pradeep Kumar met him and he (witness) handed over DD no. 15A to Insp. Pradeep Kumar. According to the witness, Insp. Pradeep Kumar had received a sealed parcel containing the clothes of the deceased from Sunder Lal Jain Hospital and took it into his possession the same vide memo Ex.PW22/A. The witness has testified that he had accompanied Insp. Pradeep Kumar to the spot where three empty cartridges of 7.65 bore were found. He has proved that the said empty cartridges were put in a plastic container and were sealed with the seal of PK and were taken into possession vide memo Ex.PW22/B. He has identified the said three empty cartridges three empties which are Ex.PXY1 to PXY3 which were recovered from the spot. The witness has also deposed that the postmortem on the dead body was conducted at Subzi Mandi Mortuary and the Autopsy Surgeon had given to Insp. Pradeep Kumar a parcel containing bullet recovered from the dead body, blood sample of the deceased and sample seal which were taken into possession by Insp. St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 60 Pradeep Kumar vide memo Ex.PW22/C. (64) In his cross examination by the Ld. Defence Counsel the witness has deposed that he had gone to the community centre and not the Shiv Mandir. According to him, the persons who were present in the community centre had told about the occurrence and the party was still going on when he reached there. He has testified that he had not talked to the bridegroom or his father. According to the witness, he had inspected the spot and he might have remained on the spot for about threefour minutes. The witness has also deposed that he did not do any writing work there and there was less light at that place and he had not noticed any blood there. He has further deposed that he reached Sunder Lal Jain Hospital on his two wheeler scooter within five minutes and Ct. Surender had accompanied him. He has testified that he had remained in the hospital for tenfifteen minutes only and the pullanda containing the clothes of the deceased was received in his presence. According to him, the memo was prepared in his presence and nobody else had signed the memo in his presence. The witness has further deposed that he had accompanied Insp. Pradeep Kumar to the spot with Ct. Surender and they remained on the spot for one and half hour at that time. He has also deposed that the photographer had taken photographs of the spot when the empty cartridges were lying there.
(65) PW23 SI Dharampal has deposed that on 26.3.1999 he has joined the investigation with Insp. Pradeep Kumar and had gone St. St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 61 Stephen Hospital where Car No. DL8CA9383 Maruti was found parked in the parking lot of the hospital. According to the witness, crime team was summoned after which the car was taken into possession by Insp. Pradeep Kumar vide memo Ex.PW23/A. He has further deposed that from inside the car a photocopy of some statements were recovered and were also taken into possession vide memo Ex.PW23/B. He has not been crossexamined by the Ld. Defence Counsel despite opportunity.
(66) PW24 SI Ram Sunder was the Investigating Officer of the case FIR No. 125/1996 registered at Police Station Model Town. He deposed that on 9.3.96 he received DD No. 28 A on which he had gone to Sunder Lal Hospital where injured Anil was admitted and declared unfit for statement with the history of R.T.A. brought by Jitender. According to the witness he had got a case registered under Section 279/337 IPC vide FIR No. 125/96, Model Town and on the next morning Anil was declared fit for statement by the doctor. He has proved having recorded the statement of Anil wherein Anil had alleged that he was stabbed by Manjit, Manpreet and Surender and was got admitted in the hospital by Jitender as having been involved in a road accident. (67) In his cross examination by the Ld. Defence Counsel the witness has admitted that accused Jitender has been acquitted in the said case. He is unable to tell that if Anil was conscious at the time of his admission in the hospital and had himself told the doctor that he had St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 62 met with an accident.
(68) PW25 SI Ram Avtar had in fact arrested the accused and effected recovery of the impugned pistol and six live cartridges at his instance. He has deposed that on 9.8.1999 he was posted in the Anti Homicide Section Crime Branch at Adarsh Nagar and case No. 67/99, PS Keshav Puram was assigned for investigation. The witness has testified that the accused Jitender @ Kalle had been declared a Proclaimed Offender by the Court and a reward of Rs.25,000/ had been announced for his arrest. He has also deposed that on 23.1.2000 he along with Ct. Surender, Praveen and ASI Vijender Singh was present in the police station in connection with the investigation of this case when they received a secret information that accused Jitender @ Kalle would come to Narayana in order to meet his sister. According to him, they then went to bus stop Narayana and conducted a Nakabandi. He has testified that at about the accused came there in a bus at about 2:00 PM after which the accused was apprehended on the pointing out of the informer and interrogated him. He has proved that the accused made a disclosure statement vide Ex.PW20/A wherein the accused disclosed that he had purchased the pistol from Bahadur Gun House, Bahadurgarh. According to him, on 2.2.2000 the owner of Bahadurgarh Gun House came in their office and had produced the photostate copy of the gun license and entries made in the relevant register of purchase from his firm on which he (witness) had taken all these papers into his St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 63 possession vide memo Ex.PW19/A which papers are Ex.X1, X2, X3 and X4. The witness has further testified that on 4.2.2000 accused made another disclosure statement vide Ex.PW21/A pursuant to which the accused led the police party consisted of himself, Ct. Narender, Ct. Praveen & ASI Vijender to a place near petrol Pump Haiderpur. According to him, they went on their official vehicle and parked the same near the petrol pump and one Daljit joined the investigation. He has also deposed that accused took them to a place in the DDA park, where there was a Beri Tree outside the wall of the DDA Park who pointed out a place near the Beri Tree and told him that the pistol was lying buried there. He has proved that he dug up the said place with the help of a Khurpi and took out a white coloured polythene bag which contained a pistol 7.65 bore and on checking, he found that it was loaded with six bullets in its magazine and the pistol was of Czechoslovakia. According to him, he had noted down the number engraved on the pistol in the recovery memo and prior to that he had prepared a sketch of the pistol as well as the cartridges vide Ex.PW25/A. According to the witness, he had sealed the pistol and the recovered cartridges into a cloth with the seal of ISS and prepared recovery memo vide Ex.PW9/A in this regard. He identified the pistol Ex.PXX and magazine Ex.PXX1. The witness has also deposed that he had prepared a separate parcel of the six live cartridges recovered St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 64 from the magazine. He has also identified live cartridges Ex.PXX2 to Ex.PXX4 and fired cartridges are Ex.PXX5 to Ex.PXX7 to be the same which were recovered at the instance of the accused. He has testified that the pistol was contained in a white polythene bag Ex.PXX8 and he gave information about the recovery of pistol and cartridges to Police Station Mukherjee Nagar. This witness has also deposed that on 25.2.2000, he sent the recovered pistol and the live cartridges to CFSL along with the other sealed parcels prepared in this case through Ct. Surender and obtained the CFSL result which is Ex.PW25/B and also obtained the report of ballistic expert of CFSL which is Ex.PW25/C. (69) In his cross examination by the Ld. Defence Counsel the witness has deposed that he remained posted in Police Station Ashok Vihar from 1990 to 1993. He is not known to Hari Ram the father of the deceased Anil Badana. According to the witness, Sanjay Sharma is his son but he is not aware if Anil Badana was his friend. The witness has testified that his son was studying in Satyawati College and had attended the party in which the present incident had taken place. He has also deposed that at that time he was posted in the Anti Homicide Squad and at that time Insp. P. C. Maan, Anil Yadav and Ranbir Singh were working as Inspectors in the squad. According to him, he was on duty on that day on the night and had gone to the spot after making a departure entry. He has admitted that his son Sanjay Sharma has been cited in case FIR No.67/99 but states that he did not interrogate him St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 65 during the course of investigation. He has also admitted that his sons are doing the business the molding machines and has voluntarily explained that they were doing business at B68/2, WPI which premises belong to Balbir Prasad Gupta. The witness has testified that neither he nor his sons ever remained tenants under Hari Ram. He has denied he suggestion that he had purchased a car bearing No. UP78E4523 Maruti Esteem of Blue Colour from the family of Anuj. According to the witness, he knew Suresh brother of accused Jitender as he was having a shop in the area of Ashok Vihar who was a BC (Bad Character) of Police Station.
(70) The witness has testified that he had gone to the spot on the day of incident at about 4:00 AM after message had been received from the Crime Branch. The witness has further deposed that he remained there for 10 to 15 minutes when he found one police constable present there. According to the witness, the spot was on the North East side and he had seen marks on the ground where empty cartridges had been found by the police and states that no articles were lying there as the police had already seized them. The witness has testified that he did not notice any blood nearby the spot and from the spot he came back to his office. The witness has further deposed that from that day onwards he did not take part in the investigation of this case till the investigations were officially made over to him. He has further deposed that his son had told him that accused Jitender was having strained relations with St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 66 deceased Anil and that the accused had ran away from the spot after firing upon the deceased.
(71) He has also deposed that they had received information about the accused at about 1111:30 AM in the office and recorded this information in the case diary and reached Naraina Bus Stop at about 12:30 Noon and had waited for one and a half hour. According to him, they had parked their Gypsy at a distance of 30/40 yards prior to the bus stop away from the main road and 20/25 buses might have come before the bus in which the accused came. The witness has testified that he was present at a distance of 10/12 yards from the bus stop and states that the informer was with him. According to him, he interrogated the accused nearby the bus stop and recorded his disclosure statement by sitting on a bench which was brought by some person from a nearby shop. He has testified that the entire writing work was done while sitting on the bench and it took about threefour hours there. The witness has further deposed that he had given information about the arrest of the accused to his senior officers by telephone from a Naraina STD booth which was at a distance of about 20 yards from that place. According to him, he did not handcuff the accused and had taken his personal search. He has further deposed that a sum of Rs.400/ something and a Nepal currency note was recovered from the personal search of the accused. The witness has testified that he had reached office in Adarsh Nagar at about 8:00 PM where senior officers were St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 67 present and he produced the accused to them. According to the witness, accused had made three disclosure statements before him. (72) He has also testified that on 25.8.99 they had gone to Meerut as well as Mujaffar Nagar and had gone to Bahadurgarh on 25.8.1999. The witness has further deposed the accused remained in police custody from 24.8.99 to 5.9.99 and during this period they had not gone to any other place. He has also deposed that the last disclosure statement was recorded by him at about 11:00 AM on 5.9.1999 in his office in his room in the presence of ASI Vijender Tyagi, Ct. Surender and Parveen were present there but no public persons was present. He has denied the suggestion that the seal does not belong to him or that he sealed the pistol in the police station and had used a seal of police official of the police station. He has further denied the suggestion that accused Jitender did not make any disclosure statement nor got recovered any pistol or cartridges or that pistol and cartridges were already in possession of the police. The witness has also denied the suggestion that the police had been waiting for the arrest of the accused and that they had later on sent the cartridges/pistol and the bullet recovered from the dead body in CFSL for comparison. He has further denied that the bullet recovered from the dead body was tampered with at the police station and thereafter was sent to the CFSL along with these cartridges. (73) According to SI Ram Avtar (PW25) they had reached the petrol pump at about 2:00 PM and Daljit Singh was present near the St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 68 petrol pump and had told them that he had come to take diesel. He has further deposed that the place from where the recovery was effected was not visible from the place where they parked the Gypsy. The witness has also deposed that the wall of the park was at a distance of 20 yards from the main road and the wall was of the height of four to four & a half inch. He has testified that he had asked the petrol pump attendants to join investigation but they had refused. According to him, the accused was in handcuffs and had taken them to the Beri Tree and had then pointed out to the place where he had buried the pistol. He has testified that he had dug about ten inches into the ground before making the recovery. According to him, the writing work was done at that place while sitting on a cemented platform near the place of recovery and had recorded statements of ASI Vijender Tyagi, Ct. Praveen, Surender and Daljit Singh after which they went to Police Station Keshavpuram and deposited the sealed parcels with the Malkhana Moharar. He has denied the suggestion that since the deceased Anil Badana was a friend of his son, he himself taken up the investigations of this case due to which reason he had not done a fair investigations in this case. (74) PW26 Ct. Surender Singh has deposed that on the night intervening 10th & 11th March, 1999 he was posted at Police Station Keshav Puram and was present along with SI Om Prakash on Road No. 37 when Ct. Puram Bahadur brought a DD No.15A at 11:35 PM. The witness has deposed that he along with SI Om Prakash and Ct. Puram St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 69 Bahadur had gone to the spot near A1, Community Center, Lawrence Road where they came to know that the injured had been removed to Sunder Lal Jain Hospital on which he along with SI Om Prakash went to Sunder Lal Jain Hospital. He has testified that the SHO of Police Station Keshav Puram along with the other staff had already reached there and the SHO gave rukka to this witness. The witness has also deposed that he took the same to the police station and got a case registered after which he returned back to the spot along with the copy of the FIR and Asal Tehrir and had handed over the same to the SHO. (75) In his cross examination by the Ld. Defence Counsel the witness has deposed that they had reached the Community Centre from Road no.37 within seven/eight minutes and at Shiv Mandir they learnt that the incident had taken place in the Community Centre. According to the witness, there were about 100 persons present the Community Centre but party had finished at that time. He is unable to tell who had told SI Om Prakash that the incident had taken place in the Community Centre. According to the witness, he did not notice any blood lying on the spot. He has also deposed that they stayed at the Community Centre for about 15/20 minutes on their first visit and had taken a lift upto Sunder Lal Jain Hospital and had reached there in about 10/15 minutes. He has testified that he had left with the rukka at about 1:00 AM and SI Om Prakash was still in the hospital. He has also deposed that he had not noticed whether the DCP or ACP had arrived in the hospital or not. St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 70 According to him, when he reached the spot along with the copy of the FIR some public persons were present with the police. He has further deposed that he might have left the spot alongwith SI Om Prakash after about fifteen minutes. His statement was recorded on 1.4.2000 by the Crime Branch people.
(76) PW27 Ct. Yogesh Kumar is a formal witness being a Special Messenger who has deposed that on the night intervening 10th and 11th March 1999, he was posted at Police Station Keshav Puram. He has proved that he had taken the special report from the Duty Officer and delivered the same at the addresses written on the envelopes including the Elakka Magistrate. According to him, he had left the Police Station at about 2:30 AM and had returned in the police station. He has been crossexamined by the Ld. Defence Counsel but nothing much has come out of the same.
(77) PW29 HC Ram Diya was the MHC(M) of Police Station Ashok Vihar in the year 1997 to 2001 and has deposed that he used to maintain the record regarding the arms and ammunition including license which are issued to the residents of the police station. He has brought the register no.17 according to which there is no entry in this register regarding the fact that an arm license had been issued in the name of Jitender @ Jite S/o Samay Singh, R/o WP444, Wazirpur Village, Delhi. He has been crossexamined by the Ld. Defence Counsel but nothing much has come out of the same.
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 71 (78) PW30 Inspector Pradeep Kumar is the Investigating Officer of the present case who deposed that on 10.3.99 DD No. 15A was received by SI Om Prakash and he (witness) was informed about this DD on his wireless set on which he reached the spot, Community Centre, A1 Block, Lawrence Road where he came to know that the injured had been taken to Sunder Lal Jain Hospital on which he went there and obtained the MLC of Anil Badana, who had been declared brought dead by the doctor. According to the witness, SI Om Prakash and Ct. Surender were present in the hospital and had met him apart from many persons from the public. He has further deposed that one Raj Kumar Bhati had witnessed the occurrence and he got his statement recorded through SI Om Prakash which is Ex.PW30/A on which he made endorsement on the said statement and sent Ct. Surender to the Police Station and got this case registered after which he went to the spot along with Raj Kumar Bhati and others. He has testified that he found three fired bullet lying on the spot and he encircled one of the three places and the other two bullets were lying on loose earth. The witness has proved having seized these bullets and had prepared a parcel with the seal of PK and had taken it into his possession vide Ex.PW22/B. He has proved having prepared the site plan which Ex.PW30/B at the pointing out of Raj Kumar Bhati and has deposed that in the meanwhile Ct. Surender had brought the copy of the FIR and Asal Tehrir which were handed over to him by Ct. Surender. The St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 72 witness has also deposed that he took over the investigation and constituted different teams for the purpose of the search of the accused. He has further deposed that he sent the dead body to mortuary Subzi Mandi through Ct. Ranbir Singh and Surender after which he conducted the inquest proceedings and prepared Form 25.35 which is Ex.PW30/C1, memo of brief facts which is Ex.PW30/C2, autopsy form which is Ex.PW30/C3, application form for conducting postmortem which is Ex.PW30C4, identification statements which are Ex.PW30/C5 and C6. According to him, after postmortem the dead body was handed over to the relatives of the deceased Ex.PW30/D. He has proved that the autopsy surgeon had given parcels containing blood sample and fired bullet recovered from the dead body including sample seal which were taken into police possession vide memo Ex.PW22/C and deposited the sealed parcels in the Malkhana. He has correctly identified the three fired bullets Ex.PXY/1 to 3 to be the same which were seized from the spot and a lead bullet Ex.PXZ to be the same which he had received in a sealed condition from the autopsy surgeon. He has further deposed that a video cassette of the marriage function was taken into possession from Vijay and Madan Lal vide memo Ex.PW30/E which video cassette Ex.P1.
(79) The witness has proved that on 26.3.99 he seized a Maruti Zen bearing no. DL8CA9383 belong to the accused from the parking St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 73 of St. Stephen Hospital vide memo Ex.PW23/A and between the upper top and upholstery some documents were recovered which document was statement of one Anil Badana, deceased related to some other case against the accused Jitender wherein Anil Badana was a witness. The witness has also proved that he seized the said document, which was taken into possession vide memo Ex.PW23/B which document/ statement of Anil Badana is Ex.PW30/F. According to him, after completion of formalities, the car brought to the Police Station and deposited in the Malkhana. He has testified that NBWs against the accused also obtained from the court of Ld. M.M. and later on the accused was got declared proclaimed offender. He has further deposed that later on the case was transferred to crime branch. (80) In his cross examination by the Ld. Defence Counsel the witness has has deposed that the doctor of hospital/mortuary had given him sealed parcel containing fire lead but he had not seen the fired lead at that time as it was in a sealed parcel. He has denied the suggestion that he had opened the sealed parcel given to him by the doctor or that he fired a shot at the Crime Branch Office in collusion with crime branch official and later on sealed the said parcel. He has testified that the doctor also handed over to him sample seal when the sealed parcel of fired lead was given to him. According to the witness, he reached the hospital at about 11:45 PM or 12 midnight along with staff including driver, operator and he was in his official Gypsy. The witness has St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 74 further deposed that in the hospital Raj Kumar Bhati (PW2), Sumit Nayyar and many other persons were present and in fact, Sumit accompanied him when he left the hospital. He has also deposed that Ct. Surender and SI Om Parkash were in the hospital when he reached there and SI Om Parkash informed about the incident and also that the patient had been declared dead. According to him, first he received MLC from doctor available in the hospital. He does not remember whether he signed the register of the hospital while receiving the MLC. The witness has further testified that the doctor gave him sealed parcel after he recorded the statement of Raj Kumar. He has also deposed that he stayed at the hospital for about an hour. According to the witness, he did not see the blood on the clothes and hands of Raj Kumar or any other persons present in the hospital. The witness has further deposed that Raj Kumar Bhati accompanied him at the Police Station in his vehicle and SI Om Parkash accompanied him at the place of incident in his own two wheeler scooter. He has further deposed that he took the assistance of SI Om Parkash in recording statement of Raj Kumar. He has also deposed that at the time of recording of statement he, SI Om Parkash and Raj Kumar Bhati were present. He has denied the suggestion that Raj Kumar Bhati was called at the Police Station or that his statement was recorded in morning hours or that FIR is antetimed. He has also denied the suggestion that all the night he was watching the video cassette in presence of 40 persons and thereafter in morning hours St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 75 he got registered the present case. He has further testified that when he reached the spot from the hospital, some workers of tent house were packing their material and outside the community hall twothree persons were present. The witness has also deposed that he did not record the statement of either workers of tent house or the persons standing outside the community hall at that time. According to him, Sanjay Sharma was interrogated by him later on but not at community centre. He is not aware whether Sanjay Sharma is son of SI Ram Avtar Sharma, who is an Investigating Officer in case FIR No. 68/99, PS Mukherji Nagar. He has also deposed that this witness recorded the statement of Sumit Nayyar at the spot and found three bullets at the community centre and seized after sealing the same. He has further deposed that he identified the cartridges as there was a mark of 7.62 engraved on the cap of said cartridges. The witness has testified that he went to the house of accused in morning of 11.3.1999 and met the father of accused. According to him, he had not taken into possession pistol or cartridges. He has denied the suggest that he, in the presence of sisterinlaw and father of the accused, had taken into possession the licensed pistol and cartridges belonging to accused or that he took father and brother of accused in illegal custody or he threatened them to implicate them in a murder case if they report against police. The witness has testified that investigation was going on till June 1999 and he had not sent the parcels to CFSL. He has denied the suggestion that he had not sent the parcels St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 76 to CFSL deliberately or that he has recovered a pistol and cartridges or that he deliberately did not send them to FSL as he was waiting the arrest of accused and to misuse the seal of doctor after alleged firing from the pistol. According to him, he took photographs from his own camera of the place of incident and had asked the staff to bring camera from the Police Station. He has testified that he had telephoned Duty Officer to send more staff to control the crowd. He has stated that there was no public person at the time when he left the spot. He has also deposed that SI Ram Avtar Sharma from Crime Branch did not visit the spot till he was there and Raj Kumar Bhati left the spot of his own. The witness has further deposed that Sumit Nayyar was taken to his home by the staff in his own Gypsy. He has also deposed that after inspecting the spot he called for camera and had not seized the camera with which the spot was photographed. The witness has further deposed that after completion of formalities at the spot, he recorded the statement of Sumit Nayyar and stayed for 3045 minutes and came back at the Police Station on foot. He has also deposed that he received the intimation about this case from SI Om Prakash when he was on the way to his house at Shalimar Bagh and immediately on receipt of information he returned to the spot in 10/15 minutes. The witness has testified that when he reached the spot SI Om Parkash and Ct. Surender had left the spot and there was crowd at the spot which on his arrival informed that the police official had gone to the hospital and he immediately left for St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 77 hospital. He has denied the suggestion that he had tempered with the seal of doctor or had refixed the same on the parcel in collusion with crime branch officials.
(81) PW32 HC Kanwar Singh was the MHC(M) of Police Station Keshav Puram, New Delhi and has deposed that on 10.3.1999 Insp. Pradeep Kumar, SHO, PS Keshav Puram had deposited three sealed parcels sealed with the seal of PK & SLJH and he made entry in register no.19 at serial no. 1013. He further deposed that on 26.3.99 Insp. Pradeep Kumar had again deposited one sealed parcel with the seal of PK containing a video cassette besides a car baring no. DL8CA9383 vide entry at serial no. 1027. According to him, on 4.2.2000 SI Ram Avtar of the Crime Branch had deposited two sealed parcels with the seal of JSS vide entry at serial no. 1087. He has testified that on 25.2.2000 parcels mentioned at serial no. 1087 were sent to CFSL Lodhi Colony vide RC No. 14/21. He proved the RC No. 14/21, six parcels and a sample seal, which were sent to CFSL Lodhi Colony through Ct. Surender Kumar, copy of which RC No. 14/21 is Ex.PW32/A1. He proved the relevant entries of register no.19, copy of which are Ex.PW32/A2.
(82) In his cross examination the witness has deposed that Insp. Pradeep Kumar had not deposited the seal with him on 10.3.99 or on 26.3.99. He is unable to tell the time of deposit of the sealed parcels. According to him, SI Ram Avtar had also not deposited any seal on St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 78 4.2.2000. He is unable to tell whether the deposits were made in the morning or in the evening nor is he able to tell the time when Ct. Surender had taken the parcels to CFSL Lodhi Colony but states that he had gone in the morning.
(83) PW34 Sanjay Kumar is the LDC from Record Room (Sessions), Tis Hazari Courts who has proved the record pertaining to the case FIR No.125/1996, under Section 307/201/34 IPC, PS Model Town titled as State Vs. Manjeet Singh etc. which case was tried by the Court of Sh. Satnam Singh, the then Ld. ASJ, Delhi and gave his judgment dated 13.2.2001 and order on sentence was passed on 15.2.2001 in which four persons were tried namely Manjeet Singh @ Banti, Manpreet Singh @ Chintu, Jitender S/o Samay Singh and Surender Pal Singh and out of the four persons, who were facing trial, three were convicted namely Manpreet, Manjeet and Surender Pal Singh whereas accused Jitender was acquitted. He has placed on record the photocopy of the judgment which is Ex.PW34/A. (84) In his crossexamination the witness has deposed that he has no personal knowledge of the case FIR No. 125/96, PS Model Town. STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:
(85) After completion of prosecution evidence the statement of the accused Jitender @ Kalle has been recorded wherein all the incriminating evidence was put to him which he has denied. According St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 79 to him, he is innocent and has been falsely implicated in this case with the connivance of police at the instance of alleged witnesses namely Yogesh Bhati and Janesh Badana etc. The accused Jitender @ Kalle has examined six witnesses in support of his defence. (86) DW1 Ms Babita is the sister in law (Bhabhi) of accused Jitender who has deposed that on 11.3.99 seveneight policemen came at their house and inquired about the room of Jitender @ Kalle on which they took them to the room of Jitender. According to her, the police men searched the said room and after a through search they opened the locker of an almirah and took out a revolver, some cartridges and a license under the Arms Act belonging to accused Jitender @ Kalle and took them away. She has testified that police officials took her, her father in law Samai Singh, her brother in law namely Suresh and his wife to Police Station Ashok Vihar, Delhi and told them that accused is involved in a murder case. The witness has testified that thereafter the ladies were let off but her father in law Samay Singh and her brother in law Suresh were released after twothree days. (87) In her cross examination by the Ld. Addl. PP for the State the witness has deposed that her husband had not visited the Police Station as he was looking after her mother in law, who was admitted in Khosla Nursing Home, Shalimar Bagh, Delhi three four days prior to 11.3.99 and was discharged after about sixseven days. She has denied the suggestion that the police had not taken away the pistol, cartridges St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 80 and license of accused from their house. The witness has further deposed that she did not complaint to senior police officials regarding the lifting of the articles by police as the police had threatened that if they complained to any authority their names shall also be included in the offence due to which reason, they also did not filed any complaint in the court.
(88) DW2 ASI Ram Bhau has produced the record pertaining to case FIR No. 559/2003 under Section 307/34 IPC, PS Ashok Vihar which was recorded on 6th October, 2003. He has placed on record the copy of FIR which is Ex.DW2/A. He has not been crossexamined by the Ld. Addl. PP for the State.
(89) DW3 Vijay Sharma was cited as a prosecution witness in the charge sheet but has been examined by the accused in his defence. He has deposed that his reception was fixed on 10.3.1999 and there was a DJ programme and also eatables. According to him, at the rear side of the tent, there was the arrangement for drinks (liquor) and he had not seen anything as he was on the stage. He has also deposed that some guests were taking liquor at the rear of the tent and they were enjoying by dancing and signing. The witness has further deposed that though he heard some voice but he is unable to tell what type of voice it was. According to the witness, there was some stampede in his marriage but he did not see anything. He has testified that he had heard some sound of firing by someone but he is unable to tell who was firing. He has St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 81 further deposed that accused Kalle came towards him at about 9 PM and told that his mother was ill and he has to go. He has also deposed that thereafter he did not see accused Kalle as there were other guests also in the marriage.
(90) In his cross examination by the Ld. Addl. PP for the State the witness has deposed that his statement was recorded by police. He is not aware whether he told to police that accused Kalle came to him at 9:00 PM or that accused told him that his mother was ill. (91) DW4 SI Naresh Kumar has deposed that he was the initial Investigating Officer in the case FIR No. 509/2002, under Section 308/34 IPC, PS Ashok Vihar, Delhi and investigation of the said case was finally completed by SI Shish Pal. He has further deposed that as per record of the case Yogesh and one Janesh were the witnesses and Sudesh & Manish, both brother of Janesh, were the injured in the said case. He has not been crossexamined by the Ld. Addl. PP for the State despite opportunity.
(92) DW5 HC Dharam Singh has produced the summoned log book of vehicle no. DL1CF4282 of dated 4.2.2000 and had deposed that as per the log book, the vehicle had gone from Police Post Adarsh Nagar to Police Station Keshav Puram and again to Police Post Adarsh Nagar. He proved the photocopy of the relevant entries vide Ex.DW5/A. St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 82 (93) In his cross examination by the Ld. Addl. PP for the State he has deposed that the entires are in his handwriting but he is unable to tell who had made entries in the log book since the log book does not remain in his custody.
(94) DW6 HC Raj Kapoor produced the record of FIR No. 292/99, under Section 341/323/147/149/34 IPC, PS Keshav Puram, Delhi wherein Janesh, Yogesh and Sanjay were the accused. He has placed on record the photocopy of the FIR which is Ex.DW6/A. (95) In his cross examination the witness has deposed the details regarding the names of the accused persons, as mentioned in the back side of the FIR, are not in his hand writing. He has further deposed that FIR no. 293/99 is in his hand writing and there is no list of accused persons mentioned in FIR No. 293/99.
FINDINGS:
(96) Pursuant to the remand of case by the Delhi High Court I have heard the arguments afresh. I have also gone through the testimonies of the various witnesses examined by the prosecution, accused and the written memorandum of arguments. My findings are as under:
Promptness in registration of FIR:
(97) It is a settled law that the promptness in lodging report justifies the inference in the circumstance of the case that the report was St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 83 not a concocted story. Prompt lodging of FIR is supposed to be true version without any addition, embellishment and concoction. The chances of missing links, outside influence, after thought and additions are removed where memory is fresh and information is given without any loss of time. Where soon after occurrence FIR is lodged, it is difficult to believe that false story was cooked up (Ref.: Bhag Singh Vs. State of Punjab reported in 1971 Cri. LJ 903). In the present case immediately after the incident PCR calls were made to the police. From the testimony of Sumit Nayyar (PW7) it has come on record that he had made repeated calls to PCR on 100 number wherein the information regarding the firing incident by the accused (i.e. Kallu owner of a meat shop) finds a specific mention (Ex.PW14/A). It is evident that the incident had taken place at around 11:00 PM and the assailant was known to the caller. Pursuant to the PCR call the information was given to Police Station Keshav Puram vide DD No. 15A at 11:25 PM after which the local police first reached the spot and thereafter in Hospital.
Thereafter the statement of Raj Kumar Bhati was recorded and the rukka was prepared on the basis of his statement Ex.PW3/A at about 1:00 AM which was sent to Police Station through Ct. Surender Singh (PW26) for registration of FIR. At about 1:30 AM the Duty Officer received the rukka on the basis of which he recorded the FIR of the present case wherein the accused has been specifically named. Further, the Special Messenger Ct. Yogesh Kumar (PW27) had left the Police St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 84 Station at about 2:30 AM along with the special report for delivering the same to the Ld. Illaka Magistrate and the senior officers. Therefore, I hereby hold that keeping in view the prompt registration of FIR wherein the accused Jitender @ Kalle had been specifically named being identified lends credence to the story put forward by the prosecution and rules out the possibility of the same being cooked up later as an afterthought.
Motive of the crime:
(98) The case of the prosecution is that the accused Jitender @ Kalle had a grouse against the deceased Anil Badana since he (Anil Badana) had sustained a knife injury in an incident and was a witness against the accused Jitender @ Kalle in the said case i.e. FIR No. 125/1996, Police Station Model Town. On the other case the Ld. Defence counsel has argued that the accused Jitender @ Kalle has been acquitted in the said case and hence the prosecution has failed to prove the motive which could have prompted the accused to commit the murder of Anil Badana.
(99) I have considered the rival contentions and I may observe that motive has to be gathered from the surrounding circumstances and such evidence should form one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 85 any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is best known to the perpetrator of the crime and not to others. Motives of men are often subjective, submerged and unamenable 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.
(100) Regarding the motive of crime, it may be observed that in a case based on circumstantial 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 circumstantial 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. (101) Existence of motive for committing a crime is not an absolute requirement of law but it is always relevant fact, which will be taken into consideration by Courts as it will render assistance to Courts while analysing prosecution evidence and determining guilt of accused.
[Ref.: IV (2012) SLT 257].
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 86 (102) Applying the settled principles of law to the facts of the present case, I may note that Raj Kumar Bhati (PW3) has in his testimony categorically explained that the accused Jitender @ Kalle had a grouse against Anil Badana who had sustained knife injuries in an incident and was a witness against accused Jitender @ Kalle in the said case and Anil Badana had to appear in the Court against the accused after threefour days. Further, the factum of earlier case bearing FIR No. 125/1996, Police Station Model Town under Sections 307/343/201/34 IPC has been established from the testimonies of HC Harminder Singh (PW16), SI Ram Sunder (PW24) and Sanjay Kumar (PW34). This is not disputed by the accused Jitender @ Kalle who claims that he has been acquitted in the said case though the other three accused have been convicted. This is not disputed by the prosecution but I may observe that this case was decided much after the death of Anil Badana i.e. in the year 2001 and no benefit can be given to the accused in this regard. The judgment in the said case was passed by Sh. Satnam Singh, the then Ld. ASJ on 13.2.2001 (much after the death of Anil Badana who could not be examined) and hence under the given circumstances on the date of incident i.e. on 10.3.1999 the aforesaid case (FIR No. 125/1996) was still pending trial wherein the deceased Anil Badana was a witness against the accused Jitender @ Kalle and was to appear in the said case as a witness after fourfive days. Therefore, in this background the argument of the Ld. Defence Counsel that the St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 87 accused did not entertain any motive on account of his acquittal is devoid of merits, the matter being pending a on date of the incident. Further, the words spoken by the accused before shooting the deceased Anil Badana at a close range i.e "Pehle to tu bach gaya tha, ab nahin bachega" reflects the intent of the accused Jitender @ Kalle and confirms the fact that the accused had come prepared to finish the deceased or else there was no reason why he would have carried his licensed pistol with him when he was going to attend the marriage of his friend. It is this which is indicative of a prior intent, premeditation and preparation confirming and establishing the motive of the accused Jitender @ Kalle to commit the murder of the deceased Anil Badana. Medical Evidence:
(103) Dr. Bhupender Aggarwal (PW12) has proved having medically examined injured Madan Lal Sharma at Garg Nursing Home, Tri Nagar vide examination slip Ex.PW12/A on 11.3.1999 at 12:05 AM. He has proved that there was a gun shot injury over the left leg lateral aspect at junction of upper 2/3 and lower 1/3 and on local examination he found wound of entry and exit present on the left leg, lower 1/3 with subcutaneous track, part clear and trape, track laid open and derided washed and repaired under L.A. (104) Sh. Vijay Shankar Singh (PW28) is the Record Clerk of Sunder Lal Jain Hospital, who has proved the MLC of injured Anil St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 88 Badana which is Ex.PW28/A according to which the patient Anil Kumar was brought to the hospital by his cousin Inder on 10.3.99 at 11:15 PM with the alleged history of gun shot injury and the patient was examined by Dr. Paramjit Singh who had declared him brought dead after examination.
(105) Dr. K. Goel (PW15) has proved the postmortem report of the deceased Anil Badana which is Ex.PW15/A according to which on external examination there was a punctured laceration oval shape 1.5 x 1.1 cm over chest just at mid line and at the level of horizontal line connecting both nipples, Margins were inverted and left margin showed contused collar and slightly shelved margin. He has proved that the height of the wound from right heel was about 133 cm and distance of wound from skull top was about 43 cm, there was no burning or tattooing around the wound, and no other external injury was seen on the body. According to him, on internal examination the injury showed the following injury track - pierced the sternum at about middle at the level of fourth intercostal space, perforated the pericardium, entered right ventrical and came out from the lateral most part of right atrium and then penetrated into upper lob of right lung. He has proved that one bullet was recovered from the right lung mas in upper lob, chest cavity was full of blood and clots, the direction and plain of the injury track was slightly left to right, St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 89 upwards and backwards obliquely. The witness has proved that the cause of death was hemothorax, haemorrhagic shock and element of asphyxia consequence to injuries to the heart and right lung as a result of fire arm injury which was antemortem in nature. He has also proved that the fire arm was rifled and range was beyond the blast effect and the solitary fire arm injury was sufficient to cause death in the ordinary course of nature, time since death was about 12 hours.
(106) In view of the above, I hereby hold that the medical evidence on record is compatible to the prosecution case that the death of the deceased Anil Badana was caused on account of firearm injury which was sufficient to cause death in the ordinary course of nature. Forensic Evidence (Ballistic Report):
(107) The Ballistic Report Sh. A. R. Arora (PW33) has proved having examined the impugned weapon of offence recovered at the instance of accused Jitender visavis the empty cartridges recovered from the spot and the bullet taken out from the dead body of deceased Anil Badana by the Autopsy Surgeon. He has proved his report which is Ex.PW33/A according to which:
1. 7.65 mm pistol marked W1 contained in parcel no.1 is a firearm as defined under the Arms Act and has been fired through and was in working condition.St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 90
2. Six 7.65 mm cartridges marked C/1 to C/6 contained in parcel no.
2 are ammunition as defined under the Arms Act and were live.
3. Three 7.65 mm cartridges cases contained in parcel no.3 marked as C/7 to C/9 have been fired from 7.65 mm pistol marked W/1 by him.
4. 7.65 mm fired bullet marked DC/1 contained in parcel no.4 has been fired from 7.65 mm pistol marked W/1.
5. Sign of tampering of the parts (such as firing pin and trigger etc.) of 7.65 mm pistol marked W/1 contained in the parcel no.1 could not be detected.
6. 7.65 mm pistol marked W/1 contained in parcel no.1 could be dismantled and reassembled by any user having knowledge / training of the firearm.
(108) The Ballistic Report Ex.PW33/A confirms that the bullet recovered from the body of the deceased matches with those of the licensed gun belonging to the accused Jitender @ Kalle. It has been vehemently argued by the Ld. Defence Counsel that the weapon of offence which was allegedly recovered at the instance of the accused Jitender was of 7.65 mm, whereas according to Inspector Pradeep Kumar (PW30) he was not sure as to whether the empty cartridges recovered were of 7.25 mm or 7.62 mm. She has argued that a person of the rank of Inspector should / ought to have knowledge about the difference between 7.65 mm, 7.25 mm or 7.62 mm still he was not St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 91 confirmed, which only goes to show that the empty cartridges has been planted upon the accused. She has also pointed out that Daljeet Singh (PW9) clearly disowned the prosecution story of recovery of the alleged weapon from alleged place i.e. DDA Park, Haiderpur, Delhi. It is argued that even Paramjit Singh (PW19) the owner of Bahadurgarh Gun House also discredited the prosecution story by stating that accused Jitender was present along with police party on the date even prior to the one as stated in the charge sheet.
(109) On the other hand the Ld. Addl. PP for the State has vehemently argued that as regards Paramjit Singh (PW19), the owner of Bahadurgarh Gun House the factum of the impugned gun being registered in the name of accused Jitender was never in dispute. It is argued that that the presence of various friends of Anil Badana at the reception party of the marriage of Vijay was not only natural and has not been disputed by the accused. It is also argued that the fact that they were eyewitnesses of the incident was a natural phenomenon. (110) I have considered the rival contentions and I may mention that it has nowhere been disputed by the accused that the impugned pistol Ex.P1 did not belong to him. In fact, in his statement under Section 313 Cr.P.C. accused merely stated that the ownership of the pistol was a matter of record. Therefore, the deposition of Paramjit Singh (PW19), the owner of Bahadurgarh Gun House ceases to have any significance at all. This fact gains material importance in view of the St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 92 report of Ballistic Expert who found that the empty cartridges recovered from the spot and the bullet found embedded in the dead body of deceased Anil Badana were fired from the said licensed pistol of accused Jitender @ Kalle. Accused also could not point out anything which could suggest that the cartridges so recovered from the spot or the bullet so taken out from the dead body of Anil Badana by the Autopsy Surgeon were tampered with in any manner.
(111) Therefore, under these circumstances, the burden squarely shifts upon the accused under Section 106 Indian Evidence Act, 1872 to explain the facts which are especially to his knowledge i.e. as to how the said bullet which was recovered from inside the dead body of Anil Badana or the empty cartridges recovered from the spot came to be fired from his licensed pistol. No doubt, in a criminal trial the burden of proving its case rests squarely upon the prosecution so as to prove the guilt of accused beyond shadows of all reasonable doubts but Section 106 Indian Evidence Act, 1872 is an exception to the said general rule. It applies to all those facts which are exclusively to the knowledge of accused, for it will be extremely difficult for the prosecution to prove those facts. No doubt, accused is not supposed to prove his innocence beyond all reasonable doubts but what is required of him is to bring out a preponderance of probability.
(112) The accused is the best person who could have offered an explanation with regard to the same without any difficulty and the onus St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 93 under these circumstances would not shift upon the prosecution. Since the facts relating to the same being especially within the exclusive knowledge of the accused, the legislature engrafted a special rule in Section 106 of the Evidence Act to meet exceptional cases in which not only it would be impossible to disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience. (113) Applying these principles to the facts of the present case I may mention that accused Jitender has not given even a single iota of explanation in this regard. He merely stated in his statement under Section 313 Cr.P.C. that the bullet recovered from inside the dead body of Anil Badana was tampered with or that the cartridges were fired by the police in their office from his pistol. However, this mere bald statement cannot discredit the entire prosecution story. Accused Jitender has been completely unable to show as to when, how and by whom the bullet so recovered from inside the dead body of Anil Badana by the Autopsy Surgeon was tampered with. Therefore, in the absence of there being no explanation on the part of accused as to how the cartridges recovered from the spot or the bullet found from inside the dead body of Anil Badana came to be fired from his licensed pistol, I have neither any doubt nor any reason to disbelieve the prosecution story. In fact, besides making a bald statement that the Exhibits so sent to CFSL were already St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 94 tampered with by the police officials the report of the Ballistic Expert has also not been challenged in any manner. Even in the cross examination of Sh. A.R. Arora (PW33) nothing much has come out which could discredit his report.
(114) In so far as the argument of the Ld. Defence Counsel that Inspector Pardeep Kumar (PW30) in his crossexamination stated that the empty cartridges recovered from the spot were 7.25mm or 7.62mm clearly goes to show that the cartridges so recovered were tampered with as the one sent to CFSL were of 7.65mm, I may mention that the aforesaid statement by Inspector Pradeep Kumar (PW30) is a wrong statement made by him and is contrary to the documentary record. In fact, the veracity of seizure memo Ex.PW22/B which talks of the seizure of three 7.65mm empty cartridges from the spot has not been at all disputed. Hence, no inference can be drawn merely from such an answer given by the witness so as to discard away his entire evidence. No question or suggestion disputing the seizure memo of said three empty cartridges of 7.65mm was even put to SI Om Prakash (PW22) who has also deposed about the seizure of the said empty cartridges from the spot and was also a signatory to the seizure memo Ex.PW22/B. (115) In view of my aforesaid discussion I am of the considered opinion that the prosecution case stands cogently and convincingly proved not only from the deposition of various eye witnesses of the St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 95 incident namely Raj Kumar Bhati (PW3), Sumit Nayyar (PW4), Narender Kumar (PW4), Janesh (PW6) and Inder Raj (PW8) but even otherwise from the Ballistic Expert's report that Anil Badana died on account of a bullet fired by accused Jitender @ Kalle from his licensed pistol.
(116) This being the background, I hereby hold that the report of the Ballistic Expert coupled with the medical evidence on record confirms that the bullet recovered from the body of the deceased and the cartridges recovered from the spot, had been fired from the licensed pistol of the accused Jitender @ Kalle which conclusively connects the accused with the offence.
Ocular Evidence:
(117) Ocular evidence/ eye witness count is the best evidence in any case. The entire case of the prosecution rests upon the testimonies of the witnesses Madan Lal (PW1), Raj Kumar Bhati (PW3), Sumit Nayyar (PW4), Narender Kumar (PW5), Janesh (PW6) and Inder Raj (PW8). Madan Lal (PW1) is the father of the bridegroom Vijay Sharma in whose reception party the incident took place and who himself had received a gun shot injury in the incident. He has turned hostile on the incident and did not support the prosecution version and understandably so the accused being a close friend of his son.
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 96 (118) Coming first to the testimony of Raj Kumar Bhati (PW3) he has not only identified the accused but has also proved the incident and the statement made by him to the police vide Ex.PW3/A on the basis of which the FIR was promptly registered without any delay. The relevant portion of the same is as under:
"........ On 19th march 1999 I had gone to Keshav Puram A1 Block community Centre in order to attend the reception party of the marriage of my friend Vijay Sharma I had gone along with Anil Bhadana and Narender Bhadana both sons of my maternal uncle Sumit Nayyer, Sanjay. We had reached the said Place at 8.30 p.m. There was a programme of music besides the other party. Where snacks and refreshment was being served. We took snacks etc I found that one of my friend Fariyad had not come by then. At about 9.00 p.m. I along with my friend Sumit Nayyar went to Ashok Vihar in order to fetch Fariyad our friend. We had to stay there for sometime as there was rush at his shop. We come back to the reception at venue at about 10.00 p.m. along with Fariyad and Sumit Nayyar. Sumit and Fariyad had gone inside in order to take some cold drink. I was looking for my cousin Anil Bhadana. I therefore went inside the Pandal meant for the cooks behind the main Pandal. At bout 10.45 p.m. I along with Anil Bhadana again came to the tent meant for the cook behind the main pandal. Sumit Nayyar had also reached there Janesh Sanjay Sharma Narender Bhadane were also present. I along with Anil Bhadana and Narender were talking amongst St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 97 ourselves. Sumit Sanjay and Janesh were Standing besides up.
In the meanwhile at about 11.00p.m.
Jitender @ Kalla also came there. He started staring at us. Anil told him to go away. Jitender @ Kalla went about ten steps away and after going there he took out a pistol from the pocket of his pant. He came towards Anil and fired two rounds in the air. He stated PAHLE TO TU BACHG GAYA THA AB NAHI BACHEGA (You had escaped earlier but you cannot escape now).
Thereafter Jitender @ Kalla took an aim and fired at Anil Bhadana. The bullet hit Anil Bhadana on his chest. He fell down on receiving the blow. Jitender @ Kalla ran away from the tenant while firing at us. We were following him. While he was leaving the tent one of bullet struck the father of my friend Vijay Shgarma namely Madan Lal. I threw stones on Jitender @ Kalla He escaped into a park where it was darkness I came back to the spot Inder and Sanjay Sharma were taking away Anil bhadana to a Hospital I Sumit Nayar Janesh Narender had followed them in the car of Anil. At the hospital the doctors declared Anil Bhadan as dead.
Jitender @ Kalla had a grouse against Anil Bhadan. Anil Bhadana had sustained knife injuries in an incident and he was a witness against accused Jitender @ Kalla in the said case. He was to appear against the accused in evidence after three/four days of the said day.
Police had reached Sunder Lal Jain Hospital and had recorded my statement Ex.PW3/A which St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 98 is signed by me at Point A....."
(119) He has been subjected to a sustained crossexamination but he is very categorical on the presence of the accused Jitender @ Kalle at the spot of the incident. He has admitted that the video film of the reception party was prepared and photographs were also being taken but he is unable to tell whether his photograph was taken or not. Here, I may observe that Harpreet Sigh (PW2) who was the photographer and covering the reception party has proved that he had prepared a video cassette which he had handed over to the police which video cassette is Ex.P1 showing the presence of the accused at the spot along with the newly married couple on the stage, as specifically observed by the Ld. Predecessor of this Court after seeing the said Video Cassette while recording the testimony of the witness Harpreet Singh (PW2) and also seen by me after getting the same copied on a CD which confirms his presence.
(120) Coming next to Sumit Nayyar (PW4), he has also corroborated the testimony of Raj Kumar Bhati (PW3) and has established the presence of the accused at the time of the incident and the fact that at about 11:00 PM the accused arrived at the place where he along with the Anil Badana were standing and started staring at Anil Badana on which Anil told him that there was nothing between them. According to him, in the meanwhile the accused Jitender @ Kalle took St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 99 out a pistol from the pocket of his pant and fired twice in the air and stated " Pehle to tu bach gaya tha, ab nahin bachega" and fired at Anil which bullet hit on the chest of Anil who fell down on the ground on which he (Sumit Nayyar) raised an alarm but the accused again started firing and entered the main pandal where he again fired and one of the bullets hit the father of their friends Vijay. He has further proved that he gave a call at 100 number and he had called the police threefour times after which he along with Raj Kumar and Narender followed the car in which Anil Badana was taken to the hospital. Here, I may observe that this Sumit Nayyar is the son of the deceased Kimti Lal Nayyar in FIR bearing No. 68/1999, PS Mukherjee Nagar. After Sumit Nayyar had made calls to PCR, the accused Jitender @ Kalle had allegedly gone to the house of Sumit Nayyar to search for him and when the father of Sumit Nayyar opened the door and informed him (accused Jitender @ Kalle) that Sumit was not at home and being annoyed he (Jitender) allegedly fired upon his father Kimti Lal Nayyar thereby killing him (in respect of which FIR bearing No. 68/1999, PS Mukherjee Nagar has been registered). In the PCR call this Sumit Nayyar (PW4) had informed the police that it was Kalu who had a meat shop in Ashok Vihar who had fired his friend Anil Badana. It has been vehemently argued by the Ld. Defence Counsel that the perusal of the PCR Form show that the actual person involved in the incident was one Kallu Meat Wala and even the caller was not sure about the incident since he merely St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 100 stated that the bullet has probably hit someone. However, I may observe that Sumit Nayyar (PW4) has specifically proved that he had made this call to the police and has offered an explanation that it is the accused Jitender @ Kalle who had fired upon Anil Badana and there is no question of any doubt with regard to the identity of the accused Jitender @ Kalle. I may observe that this Sumit Nayyar (PW4) has been subjected to a sustained crossexamination and has supported the case of the prosecution in material particulars and there is no reason to disbelieve his testimony.
(121) Narender Kumar (PW5) who is also one of the friend of Vijay Sharma and had gone to attend the reception party, has again corroborated and confirmed the count given by Raj Kumar Bhati (PW3) and Sumit Nayyar (PW4). Similarly Janesh (PW6) has also confirmed that on the date of the incident he had gone to attend the reception party of his friend Vijay and at about 10:45 PM he along with Sanjay, Anil, Raj Kumar, Narender and Sumit were talking to each other in a tent adjoining the pandal where Tahndoor was installed, when the accused Jitender @ Kalle fired at Anil Badana and escaped while firing in the air. Similarly Inder Raj (PW8) has corroborated and confirmed the testimonies of all the above eye witnesses ie. Raj Kumar Bhati (PW3), Sumit Nayyar (PW4), Narender Kumar (PW5), Janesh (PW6) and Inder Raj (PW8) in toto on the aspect of the incident i.e. on seeing the accused Jitender @ Kalle having fired at the deceased Anil Badana at the St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 101 reception party of Vijay Sharma which caused his death. (122) It is writ large that all the above eye witnesses have categorically identified the accused Jitender @ Kalle as the person who had come to attend the reception party of Vijay Sharma and had fired upon Anil Badana. The presence of the accused Jitender @ Kalle also stands established from the Video Cassette of the function which is Ex.P1. The witness Harpreet Singh (PW2) has proved that he had reached the venue at about 6:006:30 PM and started covering the function at about 7:007:15 PM which recording continued upto 11:0012:00 PM and at about 11:30/ 11:45 PM there was an incident of firing. He has confirmed that the Video Cassette Ex.P1 is the same which he had handed over to the police. Here, I may mention that on the directions of this Court the video cassette has been converted into a CD and I have seen the visuals of the same. The perusal of the CD establishes the presence of the accused Jitender @ Kalle at the stage along with the Bride and Bridegroom. In his crossexamination the witness Harpreet Singh has confirmed that the incident had taken place at about 11:30 PM and he had seen revolvers in the hands of five or six persons and about 3040 persons ran here and there. He has also confirmed that he had gone to Sunder Lal Jain Hospital in order to see the person who had received bullet injuries and met the police at about 1:30 AM. The witness has further confirmed that he had gone to Police Station Keshav Puram where he had played the original cassette which St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 102 continued upto 6:006:30 AM on the basis of which assailant could be identified.
(123) Ld. Defence Counsel has raised a number of arguments to demolish the case of the prosecution. She has vehemently argued that the various eye witnesses examined by the prosecution are either the relatives of the deceased Anil Badana or the son of Kimti Lal Nayyar the deceased in other case bearing FIR No. 68/1999, PS Mukherjee Nagar; that despite the presence of hundreds of persons in the reception party no independent public witness was examined by the prosecution; that the name of accused Jitender was later on incorporated due to enmity and if his name and identity is not disputed initially then there was no question for the police to see the video cassette prepared by Harpreet Singh on the night of the incident; that Madan Lal Sharma (PW1) has not supported the prosecution story and has clearly stated that he was not hit by the accused and that there were many persons who were having revolver / pistol and he had not seen the person to fired at him; that the prosecution has failed to prove the fact that the accused and main witnesses were studying in Satyawati College at the same time and were having any enmity from the time of college; that no witness from the college as a witness has been produced by the prosecution to prove the enmity; that the prosecution has not inquired / interrogated any person having pistol / revolver or present in the marriage, which shows a clear false implication. The Ld. Defence Counsel has placed her St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 103 reliance on the testimonies of the Smt. Babita (DW1), ASI Ram Bahu (DW2), Vijay Sharma (DW3), SI Naresh Kumar (DW4), HC Dharam Singh (DW5) and HC Raj Kapoor (DW6) and also on the judgment of the Ld. ASJ Sh. Satnam Singh in FIR No. 126/2006 dated 13.2.2001 Police Station Model Town wherein the accused Jitender @ Kalle has been acquitted.
(124) I have considered the rival contentions. From the depositions of all the above eye witnesses i.e. Raj Kumar Bhati (PW3), Sumit Nayyar (PW4), Narender Kumar (PW5), Janesh (PW6) and Inder Raj (PW8) it is evident that they have corroborated each other on material particulars. They have deposed in a cogent and convincing manner not only on the aspect of identity of the accused Jitender @ Kalle who was known to them previously but also on the manner in which the incident took place and all that transpired thereafter. Vijay Sharma (DW3) and his father Madan Lal Sharma (PW1) are the hosts, having good / friendly relations with the accused Jitender @ Kalle and it is this which explains the reason why they have not supported their earlier versions despite Madan Lal having sustained a gun shot injury. (125) In so far as the various discrepancies / contradictions which have been pointed out by the Ld. Defence Counsel in the testimonies of prosecution witnesses are concerned, I may mention that in the case of State of H.P. Vs. Lekhraj and another reported in JT 1999 (9) SC 43 it was observed by the Hon'ble Supreme Court that: St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 104 "In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.........
.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial."
(126) Further, in the case of Surender Singh Vs. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under : ".......It is wellestablished principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity...."
(127) As far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish v.State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has held that when the discrepancies are comparatively of minor character and did not go to St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 105 the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also, in the case of State of Rajasthan Vs. Kalki, reported in (1981)2 SCC 752 it has been held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
(128) Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally nondiscrepant. Courts have to bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. Too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
(129) The Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. The observations St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 106 made in the case of Tehsildar Singh Vs. State of UP reported in AIR 1959 SC 1012 were later on reaffirmed by the Hon'ble Suprme Court in the cases of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1) and Leela Ram Vs. State of Haryana reported in AIR 19997 SC 3717, wherein the Hon'ble Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses:
(a) While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
(b) If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 107 infirmities in the matter of trivial details.
(c) When eye witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
(d) Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
(e) Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
(f) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(g) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 108
(h) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(i) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(j) In regard to exact time of an incident or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation and one cannot expect people to make very precise or reliable estimates in such matters. Again it depends on the timesense of individuals which varies from person to person.
(k) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(l) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 109 witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
(m) A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contraction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
(130) It should be remembered that human behaviour varies from person to person and different people react and behaved differently in a different situation. How person can behave in a particular situation cannot be predicted. (Ref.: State of UP Vs. Devender Singh reported in AIR 2009 SC 3690).
(131) Applying the settled principles of law to the facts and circumstances of the present, I find the deposition of Raj Kumar Bhati (PW3) Sumit Nayyar (PW4), Narender Kumar (PW5), Janesh (PW6) and Inder Raj (PW8) to be cogent, convincing and reliance. In fact, all these witnesses have successfully withstand the long arduous cross examination carried out by the Ld. defence counsel. Nothing substantial could come out in their crossexamination which could favour the accused or lead me to disbelieve their deposition. There is no reason as to why all these witnesses would lie to falsely implicate accused Jitender St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 110 @ Kalle in this case if accused Jitender was not the person who had fired upon Anil Badana. Moreover, if there was no previous enmity between accused Jitender and Anil Badana and other friends, as claimed by the accused himself and assuming what he submits as correct, then there was no reason for them to falsely implicate the accused Jitender in this case while at the same time letting go the actual assailant scot free.
It is this which leads to me to conclude that there is no reason to disbelieve the said witnesses.
(132) Further, coming to the argument advanced by the Ld. Defence Counsel that the initial information sent to PCR also mentions the name of 'Kallu' which is in fact some other person. I may observe that in fact there are three PCR Forms on record wherein information about the present incident, received after a gap of every two minutes, has been found recorded and it has been mentioned in one of the said PCR Form that the phone call got disconnected. A reading of all the three PCR Forms which mentions the same telephone number of the informant, it is clear that the phone call was getting disconnected repeatedly and complete information could not be given at one go and it was the same information which was being completed in the repeated calls made at No.100 by the caller. No doubt, the first PCR Form i.e. Ex.PW14/A has only been proved and I am also not placing any reliance on the other two PCR Forms but it is clear from the overall facts and circumstances of the case that nothing is mentioned in PCR Form St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 111 Ex.PW14/A which discredit the prosecution story in any manner. Even if the other two PCR Forms, which though have not been proved are considered from the point of view of accused then also nothing is mentioned in them which could favour the accused. This finds due corroboration the testimony of Sumit Nayyar (PW4) who had stated that he had made threefour calls to PCR from his mobile number and he had told the police that Jitender @ Kalle who had a meat shop at Ashok Vihar, had fired on his friend and in the Court he has identified this Kalu as the accused Jitender @ Kalle. There is no reason to disbelieve the same since the defence witness produced by the accused i.e. Smt. Babita (DW1) who is the sister in law of the accused, has herself confirmed that the alternative name of the accused Jitender is Kallu. The PCR Form Ex.PW14/A which containing the first information sent to the police at about 23:15 hours shows the name of the person who had fired the bullet as 'Kallu'. Hence, there is nothing to read against the prosecution case in this information so recorded by the PCR official to infer that by referring to the name of Kallu in the information the informant meant someone else or that accused Jitender simply on account of a coincidence being referred to as Kallu came to be involved in this case.
(133) Further, the fact that the accused Jitender @ Kalle fled away from the spot finds a mention in the testimonies of all the eye witnesses. Rather, Inder Raj (PW8) in his crossexamination has stated St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 112 that accused had sped away from the spot in his Maruti Zen car bearing No. DL8CA9383.
(134) As per the provisions of Section 8 of the Indian Evidence Act, 1872 any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. (135) The conduct of any party, or of any agent to any party, to any suit or proceedings, in reference to such suit or proceedings, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. (136) It is hardly said that there any action without a motive. Conduct of a person to proceedings in reference to any fact in issue or relevant fact is relevant. As per the provisions of Section 8 the conduct whether previous or subsequent an offence against whom is the subject of inquiry is relevant if the conduct influences or influenced by any fact in issue or a relevant fact as it throws light upon a person's motive, intention, goodfaith etc. Subsequent act of a person which is indicative of desire to avoid or stifle judicial inquiry into an offence of which the party doing the act is accused or suspected is relevant. The conduct of a person immediately after the offence is relevant under these circumstances and in the absence of any explanation for such act the presumption would be against such person.
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 113 (137) Applying the above principles to the facts of the present case it is writ large that the presence of the accused Jitender @ Kalle at the spot is not only confirmed from the oral testimonies of the above witnesses but also from the Video Cassette of the marriage Ex.P1 soon after which shots were fired two of which shots are even heard in the above Video Cassette (Ex.P1). This act of the accused Jitender @ Kalle in fleeing from the spot in his car No. DL8CA9383 coupled with the fact that the said car was found abandoned in the parking of St. Stephens Hospital and the accused being unable to explain its presence in the St. Stephens Hospital parking is highly suspicious. It is this car which was later on seized by Inspector Pradeep Kumar (PW30) and SI Dharam Pal (PW23) from the parking lot of St. Stephen Hospital. The deposition of SI Dharam Pal (PW23) has not at all controverted in this regard and the same remained completely unimpeached at the altar of cross examination. In fact, the factum of seizure of this car by Investigating Officer Inspector Pradeep Kumar (PW30) was also not disputed even in his cross examination. At the same time accused also did not dispute the fact that the said car DL8C A 9383 did not belong to him. SI Dharam Pal (PW23) also stated that the car was removed with the help of a crane. Further, Anuranjan Kumar (PW34), the parking lot attendant also deposed about the seizure of the Maruti Zen car from the parking lot by the police on 26th March, 1999. No doubt, he claimed ignorance as to when the said car was parked in the parking lot but it St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 114 stands clear from his deposition that the said Maruti Zen car was indeed seized by the police from the parking lot of St. Stephen's Hospital on 26th March 1999. His deposition also remained completely unimpeached at the altar of cross examination. Thus, in these circumstances it was incumbent upon the accused to explain as to under what circumstances his car came to be parked at St. Stephen's Hospital or was seized by the police from the parking lot of St. Stephen's Hospital. Moreover, I may also state that the seizure of car of accused Jitender by police from the parking lot of St. Stephen's Hospital has got absolutely no relevance either to the case of the prosecution in proving the guilt of accused Jitender or to the accused in proving himself to be innocent. Thus, once again irrespective of the fact that the said car belongs to accused Jitender or not or whether it was seized from St. Stephen's Hospital parking lot or not, it is clear as stated by Inder Raj (PW18) in his cross examination that accused Jitender fled away from the place of incident in the said car and it is this act and conduct of the accused which is a relevant fact which the prosecution has proved beyond doubt. (138) In view of my above discussion I hereby hold that the ocular evidence so adduced by the prosecution not only conclusively confirms the presence of the accused Jitender @ Kalle at the spot but also the fact that he is the one who had fired at the deceased Anil Badana from his licensed firearm resulting into his death which fact finds sufficient corroboration from independent sources. St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 115 Arrest of the accused and recovery of the pistol:
(139) The case of the prosecution that on the basis of a secret information on 23.1.2000 the accused Jitender @ Kalle was apprehended from the bus stop Naraina and on interrogation the accused admitted his involved in the present case but did not disclose about the place where he had hidden the weapon of offence. On 4.2.2000 the accused again made a disclosure statement pursuant to which he led the police party to DDA Park Haiderpur from where he got recovered a pistol of 7.65 mm bore wrapped in a polythene bag from under a tree.
The pistol was checked and from inside the magazine of the pistol six live cartridges were also recovered which were were taken into possession after preparing their sketch.
(140) The Ld. Defence Counsel has vehemently argued that the said recovery has been planted upon the accused only to connect him with the present case and in his regard she has placed her reliance upon the testimony of Daljeet Singh (PW9) an independent public witness who has turned hostile and has argued that not much credence can be placed on the recovery. On the other hand the Ld. Addl. PP for the State has vehemently argued that though the public witness Daljeet Singh has turned hostile yet the other police witnesses have proved the recovery of firearm and cartridges and there is no reason to doubt the recovery of the same.
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 116 (141) I have considered the rival contentions. Before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.
(142) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:
1. Anything, state of things, or relation of things, or capable of being perceived by the senses,
2. Any mental condition of which any person is conscious.
(143) It further provides five illustrations as to what would constitute a fact which are as under:
1. That there are certain objects arranged in a certain order in a certain place, is a fact
2. That a man heard or saw something, is a fact.
3. That a man said certain words, is a fact.
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 117
4. That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
5. That a man has a certain reputation, is a fact.
(144) A cojoint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles".
(145) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)"
and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 118 that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. King Emperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under: "Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......"
".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S. 27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information. . . .. ...... as St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 119 relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."
"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.
This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"
(146) After considering the settled principles the Hon'ble Apex Court observed as under:
"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 120 discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 121 a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence.
(147) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must establish the information given by St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 122 the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.
The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence.
(148) In the said case the Hon'ble Supreme Court further went to explain that "..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 123 the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"
(149) In the recent past the Hon'ble Supreme Court has in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 reinforced the above view when it observed that "discovery of fact"
should be read with the definition of "fact" as contained in Section 3 of the Evidence Act which defines the "fact" as meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be confirmatory in character guaranteeing the truth of the information given to which facts the police officer had no access earlier which also includes recovery of material object. The Hon'ble Court further observed that so much of the information as relates distinctly to the fact thereby discovered is admissible. (150) Applying the settled principles of law to the facts of the present case, I may observe that in so far as the arrest of the accused is St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 124 concerned, SI Ram Avtar (PW25), ASI Virender Tyagi (PW21) and Ct.
Surender Singh (PW20) have all deposed about the arrest of accused Jitender from bus stand Naraina on the basis of a secret information on 23.1.2000 and also about his making a disclosure statement and getting the impugned weapon of offence recovered from a DDA park in Haiderpur. They all have been consistent in their deposition and even the deposition of Daljit Singh (PW9), who allegedly was a public independent witness of the recovery of pistol at the instance of accused is also not sufficient to discredit their deposition. No doubt Daljit Singh (PW9) has disowned the prosecution story to the effect that after a request was made to him to join the proceedings he did not accompany the police officials to the DDA park from where the weapon of offence was recovered. However, what is important to note is that Daljit Singh (PW9) did state that on that day he was present at Haiderpur bus stand and police officials did meet him. He has also stated that they had told him that they would show him something and thereafter he accompanied the police party up to the patrol pump. He further stated that thereafter police officials had gone from the petrol pump and returned back in ten minutes and were carrying something in an handkerchief. Though stated that he has not seen as to what was inside the handkerchief but stated that a parcel was indeed prepared at the spot itself. He further stated that it may be possible that accused was accompanying the police party at that time.
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 125 (151) In Khuji Vs. State of M.P. reported in AIR 1991 SC 1853 it was observed by Hon'ble Supreme Court of India that even if a witness has turned hostile, part of his deposition which inspires confidence and has a ring of truth around it can still be relied upon. His evidence cannot be treated as effaced or washed off the record altogether. Thus, coming back to the deposition of Daljit Singh (PW9) it will be worthwhile to mention that his deposition remained completely unimpeached at the altar of cross examination.
(152) A careful perusal of his deposition goes to show that the entire story of police of accused having led the police party to Haiderpur was not at all a concocted one. Police party on that day had thus indeed gone to Haiderpur. They asked public persons to join the proceedings. One public independent person i.e. Daljit Singh (PW9) accompanied them up to patrol pump and from there police party went ahead and came back after ten minutes carrying something in an handkerchief. A pullanda was also prepared over there and signatures of the public witness were obtained on some papers. Hence, there can be only two aspects to his deposition i.e. either this witness has deliberately deviated away from the remaining part of the prosecution story or in fact the proceedings were conducted in the manner in which he has deposed. Certainly there is no reason to conclude that this witness has deliberately deviated away from the later part of the prosecution story. However, as regards the second aspect is concerned that the proceedings St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 126 were in fact conducted in the same manner as stated by him, I may state that once again from this highhanded manner of carrying out the proceedings by the police officials the prosecution case cannot be made to suffer. It can only by the sheer negligence and carelessness of the police officers in not taking along with them the public witness to the actual place of recovery of weapon of offence.
(153) In this regard the Hon'ble Apex Court has in the case of State of U. P. Vs. Jagdeo & Others., reported in (2003) 1 Supreme Court Cases 456 and in the case of Rabinder Kumar Pal @ Dara Singh Vs. Republic of India reported in AIR 2011 SC 1436, observed that:
"...... Mere faulty investigations cannot be a ground for acquittal of the accused. For the fault of the prosecution the perpetrators of a ghastly crime cannot be allowed to go scotfree.
(154) Earlier in the case of Ram Bali v. State of Uttar Pradesh reported in (2004) 10 SCC 598, the judgment in Karnel Singh v. State of M.P. reported in (1995) 5 SCC 518 was reiterated and the Hon'ble Apex Court observed that:
"......In case of defective investigation the court has to be circumspect while evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigation officer if the investigation is designedly St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 127 defective....."
(155) It is writ large from the aforesaid that with the passage of time, the law also developed and the dictum of the Court emphasized that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general.
(156) Recently the Hon'ble Apex Court (Hon'ble Mr. Justice Swatantra Kumar) in the case of Dayal Singh & Ors. Vs State Of Uttaranchal in Criminal Appeal No.529 of 2010 decided on 3.8.2012 reaffirmed the above principle while placing its reliance on the case of National Human Rights Commission Vs. State of Gujarat reported in (2009) 6 SCC 767 wherein it was observed that:
"......The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of Justice often referred to as the duty to vindicate and uphold the majesty of the law. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 128 criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators...".
(157) Reliance was also placed on the case of State of Karnataka Vs. K. Yarappa Reddy reported in 2000 SCC (Crl.) 61 wherein the Hon'ble Apex Court occasioned to consider the similar question of defective investigation as to whether any manipulation in the station house diary by the Investigating Officer could be put against the prosecution case and observed in Paragraph 19 that:
".........19. But can the above finding (that the station house diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable, should the Court be influenced by the machinations demonstrated by the Investigating Officer in conducting investigation or in preparing the records so unscrupulously? It can be a guiding St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 129 principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. It is well nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and preeminence in criminal trials over the action taken by the investigation officers. Criminal Justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case. (158) In the case of Dayal Singh Vs. State of Uttranchal (Supra) it was observed by Hon'ble Mr. Justice Swatantra Kumar that where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The Courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 130 a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subserved. For truly attaining this object of a fair trial, the Court should leave no stone unturned to do justice and protect the interest of the society as well. (159) It will be worthwhile to mention again that the deposition of Daljit Singh (PW9) remained completely unimpeached at the altar of cross examination on the part of accused. Therefore, it is clear that on 4.1.2000 police officials indeed went to DDA Park, Haiderpur and brought out something which they sealed in a pullanda. Thus, I may once again reiterate that there was no necessity for the police officials to create such a scene if at all the pistol was not recovered from the said place at Haiderpur on that day. It has also not been suggested to Daijit Singh (PW9) by the Ld. Defence counsel that he was a stock witness of the police or that he was a planted witness.
(160) Therefore, under these circumstances, there is no reason to doubt the deposition of SI Ram Avtar (PW25), Ct. Surender Singh (PW20) and ASI Virender Tyagi (PW21) that on 4.2.2000 accused Jitender led the police party to Haiderpur and got recovered the impugned pistol along with six cartridges from beneath a tree inside the DDA Park, Haiderpur. In fact, no substantial contradictions could be pointed out even in the deposition of these police officials by the Ld. St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 131 Defence counsel which could show that they were deposing falsely in any manner.
(161) I may also observe that the place where the accused Jitender had hidden the pistol was not within the knowledge of the police. What turns on the fact that accused Jitender @ Kalle pointed out the place i.e. DDA Park under a tree where he had hidden the pistol was not in the knowledge of the police. Thereafter the accused led the police to the said place from where he got recovered his licensed pistol along with the magazine, which place was not in the knowledge of the police previously, which is a strong pointer towards the guilt of accused Jitender @ Kalle.
(162) In view of the aforesaid, I hereby hold that the prosecution has been able to prove the arrest of the accused Jitender @ Kalle and the subsequent recovery of licensed pistol in his name.
Accused Jitender @ Kalle was the licensed owner of the offending weapon/ pistol:
(163) Surender Singh (PW18) Senior Assistant Judicial Record, Office of District Magistrate, Jammu has proved a letter issued by ADM Jammu vide letter dated 4.4.2000 bearing No. 131/JDM/2000 issued by the Addl. DM which letter is Ex.PW18/A. Further, Paramjit Singh (PW19) the partner of M/s. Bahadurgarh Gun House, Jhajjar Road, Bahadurgarh has proved that the police had seized photocopies of St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 132 license no. 555/JDM/94 in respect of Jitender Kumar i.e photocopy of sale register page no. 39 dated 31.7.96 and (3) photocopy of sale register page no. 12 dated 22.4.98 from him and had taken these documents into their possession vide memo Ex.PW19/A. He has also proved having handed over a cash memo (photocopy) dated 22.4.98 Ex.X4 vide which a pistol ring no. 621251 make Czechoslovakia was sold to accused Jitender @ Kalle along with 50 cartridges of .32 bore. He has duly identified the pistol Ex.P1 bearing no. 621251 to be the same which was sold by him to accused Jitender @ Kalle; the magazine which is Ex.PXX1 and three live cartridges which are Ex. PX1, X2 to PX4 with three used cartridges which are Ex.PXX5 to Ex.PXX7 which evidence has gone uncontroverted and establishes that the accused was the owner of the licensed firearm with which the offence had been committed.
Charge under Section 307 IPC/ Attempt to Murder:
(164) The case of the prosecution is that after firing on Anil Badana the accused Jitender @ Kalle tried to flee from the spot through the main pandal when the friends of the deceased Anil Badana were following him and started throwing stones on the accused. In order to escape the accused Jitender @ Kalle started firing indiscriminately at the persons chasing him in which process one bullet hit on the left leg of Madan Lal the father of bridegroom Vijay Sharma who had to be rushed to the hospital for treatment.
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 133 (165) In this regard I may observe that in so far as Madan Lal (PW1) is concerned he has turned hostile and so has his son Vijay Sharma in whose marriage reception the incident had taken place and understandably so. They were the hosts of the function in which the incident had take place. They have also admitted their good relations with the accused Jitender @ Kalle and his family and this explains why despite being cited as a witness of the prosecution, Vijay Sharma as appeared as witness for the accused. The MLC of Madan Lal Sharma Ex.PW12/A which has been duly proved by Dr. Bhupender Aggarwal (PW12) speaks for itself. Dr. Bhupender Aggarwal has proved that there was a gun shot injury over the left leg lateral aspect at junction of upper 2/3 and lower 1/3 about one hour earlier and on local examination he found wound of entry and exit present on the left leg, lower 1/3 with subcutaneous track, part clear and trape, track laid open and derided washed and repaired under L.A. Madan Lal does not satisfactorily explain how he received this injury, whereas the other eye witnesses i.e. Raj Kumar Bhati, Sumit Nayyar, Narender etc. do. They have specifically explained that Madan Lal received these injuries when he was hit by a bullet fired by the accused Jitender @ Kalle when he was firing indiscriminately at the public persons in order to prevent them from chasing him in order escape from the spot.
(166) I may mentioned that as per the provisions of Section 307 Indian Penal Code whoever does any act with such intention or St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 134 knowledge and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
(167) To constitute an offence under Section 307 IPC, it is sufficient if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances and may even in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between the act of the accused and its result, if any.
The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some over act in execution thereof [Ref.: Vipin Bihari Vs. State of MP reported in 2006 (8) SCC 799; Bappa @ Bapu Vs. State of Maharastra reported in 2004 (6) SCC 485; State of Maharastra Vs. Kashi Rao & Ors. reported in 2003 (10) SCC 434; Hari Mohan Mandal Vs. State of Jharkhand reported in 2004 (12) SCC 220 and Surender Kumar Sharma Vs. State reported in 2010 (III) AD (Delhi) St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 135 198]. This being the legal position, intention can be deduced not only from the nature of injuries caused but also from other circumstances. (168) Applying the settled principles of law to the facts of the present case the intention of the accused Jitender @ Kalle is established from the fact that he had fired indiscriminately at public persons when he was trying to run away and escape from the pandal after firing at Anil Badana since the friends of Anil were chasing him and also throwing stones at him. It is in this process that the bullet hit the left leg of Madan Lal Sharma. The medical evidence on record shows that the bullet passed through the left leg of the injured Madan Lal thereby explaining the reason why no bullet / led could not be found in the body of Madan Lal. This act of the accused is so dangerous that in case if the death of Madan Lal or anybody else (since he had fired while aiming at public persons following him) would have occurred, the accused would have been guilty of murder and therefore, I hereby held the accused Jitender @ Kalle guilty of the offence under Section 307 Indian Penal Code.
FINAL CONCLUSIONS:
(169) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 136
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable 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.
(170) Applying the above principles of law to the present case it is evident that in order to bring home the guilt of the accused Jitender @ Kalle the circumstances which were required to be proved by the prosecution besides the deposition of the eye witnesses to the incident are Firstly the presence of Anil Badana (since deceased) at the reception party of Vijay Sharma besides that of accused Jitender @ Kalle armed with his loaded licensed pistol; Secondly the firing of shots in the air followed by one towards Anil Badana by accused Jitender resulting in the immediate death of Anil Badana; Thirdly subsequent St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 137 fleeing away of accused Jitender from the marriage reception party and in the process again firing towards the persons chasing him and one bullet hitting Madan Lal Sharma on his leg; Fourthly the recovery of an empty bullet from inside the body of Anil Badana by the Autopsy Surgeon besides the recovery of three empty cartridges from the place of incident by the Investigating Officer; Fifthly the recovery of abandoned car of accused from the parking lot of St. Stephen's Hospital in which he had fled away from the spot after the incident; Sixthly the arrest of accused Jitender from the bus stand Naraina followed by his disclosure statement which led to the recovery of weapon of offence along with live cartridges and Lastly the report of CFSL expert Sh. A.R. Arora who found that the empty cartridges recovered from the spot and bullet found from inside the body of the deceased were fired from the licensed pistol of accused Jitender.
(171) From the investigations conducted, documents prepared and substantially proved by the police witnesses including the first and the second investigating officers, the testimonies of the eye witnesses and other evidence on record the prosecution has been able to conclusively establish the following aspects:
➢ That on 10.3.1999 the marriage reception party of one Vijay Sharma was being held at A1, Block, Community Center, Keshav Puram, Delhi wherein his various friends from Satyawati College where Vijay Sharma also used to study had come to St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 138 attend the said function.
➢ That Anil Badana (since deceased), Narender Badana, Raj Kumar Bhati, Sumit Nayyar etc. were also present in the reception party and so was the accused Jitender @ Kalle all of them being friends of Vijay Sharma.
➢ That at around 11:00 PM accused Jitender @ Kalle came over there and started staring at Anil Badana on which Anil Badana asked accused Jitender as to why he was staring at him and they have no relation with each other so, he should go away. ➢ That accused Jitender all of a sudden took out a pistol from the pocket his pant and fired twice in the air and stated "Pahle to tu bach gaya tha, ab nahi bachega" and while coming forward towards Anil Badana fired at him which bullet hit on his chest as a result of which Anil fell down.
➢ That accused Jitender @ Kalle thereafter started fleeing away and the other friends of Anil, who were present nearby started chasing him and even threw stones towards him.
➢ That while fleeing outside through the main pandal accused Jitender again stopped and fired indiscriminately at the persons who were chasing him and in that process another bullet hit Madan Lal the father of the bridegroom Vijay Sharma, on his leg. ➢ That the accused Jitender managed to flee away from over there. St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 139 ➢ That Inder and Sanjay Sharma removed Anil Badana to Sunder Lal Jain hospital in the car of Inder and the other friends namely Raj Kumar Bhati, Janesh, Narender and Sumit Nayyar followed them in the car of Anil Badana.
➢ That in the meantime Sumit Nayyar had also rung up the police at 100 number from the mobile phone of Anil Badana bearing No. 9811162283.
➢ That in fact three successive calls were made at no.100 after the interval of two minutes each through the same cell phone as the phone was got disconnected.
➢ That Anil Badana was declared as 'brought dead' by the doctors at Sunderlal Jain Hospital.
➢ That Sh. Madan Lal Sharma, the other injured in the meantime was taken by his other relatives to a nearby 'Garg Nursing Home' where he was provided necessary medical treatment. ➢ That information about the incident was received at Police Station Kesahv Puram vide DD No.15A and SI Om Prakash along with Ct. Surender Singh went to the spot after which they both reached the hospital where they found the injured Anil Badana having been declared by the doctors to be 'brought dead'.
➢ That SHO Police Station Keshav Puram Inspector Pradeep Kumar also reached the hospital and collected the MLC of deceased Anil Badana.
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 140 ➢ That on the basis of statement of Raj Kumar Bhati an eye witness of the incident, the rukka was prepared and the FIR was got registered.
➢ That Inspector Pradeep Kumar along with Raj Kumar Bhati and other police officials came back to the spot where they found three empty cartridges of 7.65 mm at the spot.
➢ That the photographer Harpreet Singh who was covering the function was asked to show the Video Cassette prepared by him. ➢ That the said video cassette showed the presence of accused Jitender @ Kalle in the function and also of Anil Badana and sounds of two shots can also be heard thereby corroborating the oral testimonies of these witnesses with regard to firing indiscriminately.
➢ That on the next day postmortem examination on the dead body was got conducted and one bullet was found embedded in the body of Anil Badana which was collected by the Autopsy Surgeon.
➢ That efforts were made to trace out the accused but the same proved futile.
➢ That on 26.3.1999 one Maruti Zen car bearing no. DL8CA9383 belonging to accused in which he had allegedly fled away from the spot was found lying abandoned in St. Stephen's Hospital parking.
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 141 ➢ That the investigation of the present case in the meantime was transferred to Crime Branch, Homicide Section.
➢ That on 23.1.2000 on the basis of a secret information accused Jitender @ Kalle was apprehended by SI Ram Avatar, ASI Vijender, Ct. Surender and Ct. Praveen from bus stand Naraina after he alighted over there from a bus.
➢ That accused Jitender made a disclosure statement wherein he disclosed that the weapon of offence used by him in the commission of the present crime was purchased by him from Bahadurgarh Gun House.
➢ That on 2.2.2000 copies of sale documents of the pistol and cartridges were seized from the owner of Bahadurgarh Gun House.
➢ That on 4.2.2000 the accused Jitender @ Kalle again made a disclosure statement that the said weapon of offence has been hidden by him under a tree in a DDA park in Haiderpur, Delhi. ➢ That pursuant to the disclosure statement the accused Jitender @ Kalle got recovered a pistol of 7.65 mm bore bearing No. 621251 make Czechoslovakia wrapped in a polythene bag in which proceedings one Daljit Singh, a public person was joined. ➢ That from inside the magazine of the pistol six live cartridges were also recovered which were taken into possession after preparing their sketch.
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 142 ➢ That later on the empty cartridges recovered from the place of incident along with the bullet recovered from inside the body of deceased Anil Badana and the pistol and six live cartridges so recovered at the instance of the accused were sent for comparison to CFSL, Delhi.
(172) The medical evidence on record shows that the cause of death was hemothorax, haemorrhagic shock and element of asphyxia consequence to injuries to the heart and right lung as a result of fire arm injury which was antemortem in nature; that the fire arm was rifled and range was beyond the blast effect and the solitary fire arm injury was sufficient to cause death in the ordinary course of nature and time since death was about 12 hours.
(173) Further, the forensic evidence i.e. the Ballistic Report conclusively connects the accused Jitender @ Kalle since it has been established that the bullet recovered from the body of the deceased and the cartridges recovered from the spot, had been fired from the licensed pistol of the accused Jitender @ Kalle which pistol had been got recovered by him pursuant to his disclosure to the police. (174) 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 has not been proved in evidence at trial, the question which St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 143 arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (175) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link. (176) In view of the above, I hereby hold that the prosecution has been able to establish and prove the necessary intent and knowledge (as contemplated under Section 300 Indian Penal Code) of the accused Jitender @ Kalle to have commit the murder of Anil Badana for which he is hereby held guilty of the offence under Section 302 Indian Penal Code. Further, it has been proved that accused Jitender also fired from his pistol towards the public persons who were trying to catch hold of him and in that process one bullet fired by him hit Madan Lal Sharma. Hence, this bullet was also fired by him with such knowledge and under St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 144 such circumstances that if death of Madan Lal Sharma would have occurred then he would have been guilty of the offence of murder and therefore, I hereby hold the accused Jitender @ Kalle guilty of the offence under Section 307 Indian Penal Code.
Announced in the open court (Dr. KAMINI LAU)
Dated: 01.7.2013 ASJII/NW(ROHINI)
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 145
IN THE COURT OF Dr. KAMINI LAU, ADDITIONAL SESSSION JUDGEII: (NORTHWEST): ROHINI COURTS: DELHI Session Case No.: 1135/2009 Unique Case ID No. 02404R0027742008 State Vs. Jitender @ Kalla S/o Sh. Samay Singh R/o WP 444, Village Wazir Pur, Ashok Vihar, Delhi.
(Convicted)
FIR No.: 67/1999
Police Station: Keshav Puram
Under Section: 302/34 Indian Penal Code
Date of conviction: 1.7.2013
Arguments heard on: 1.7.2013
Date of Sentence: 1.7.2013
APPEARANCE:
Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.
Convict Jitender @ Kalle in Judicial Custody with Ms. Neelam Singh, DLSA Counsel.
ORDER ON SENTENCE:
As per the allegations on 10.3.1999 at about 11:00 PM at Community Center A1 Block Keshav Puram, Delhi the accused St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 146 Jitender @ Kalle committed murder of Anil Badana by intentionally causing his death by firearm injury and caused gun shot injuries to Madan Lal Sharma while firing indiscriminately on public persons with such intention or knowledge and under such circumstances that if by his act he would have cause the death of Madan Lal Sharma or of others he would have been guilty of murder.
On the basis of the testimonies of the various witnesses examined by the prosecution i.e. Raj Kumar Bhati, Sumit Nayyar, Narender Kumar, Janesh and Inder Raj and also on the basis of the medical, forensic and circumstantial evidence on record, this Court vide a detail judgment of even date held the accused Jitender @ Kalle guilty of the offence under Section 302 and 307 Indian Penal Code.
Vide the above judgment this Court has observed that the prosecution has been able to conclusively establish that on 10.3.1999 the marriage reception party of one Vijay Sharma was being held at A1, Block, Community Center, Keshav Puram, Delhi wherein his various friends from Satyawati College where Vijay Sharma also used to study had come to attend the said function; that Anil Badana (since deceased), Narender Badana, Raj Kumar Bhati, Sumit Nayyar etc. were also present in the reception party and so was the accused Jitender @ Kalle all of them being friends of Vijay Sharma; that at around 11:00 PM accused Jitender @ Kalle came over there and started staring at Anil Badana on which Anil Badana asked accused Jitender as to why he was staring at St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 147 him and they have no relation with each other so, he should go away; that accused Jitender all of a sudden took out a pistol from the pocket his pant and fired twice in the air and stated "Pahle to tu bach gaya tha, ab nahi bachega" and while coming forward towards Anil Badana fired at him which bullet hit on his chest as a result of which Anil fell down; that accused Jitender @ Kalle thereafter started fleeing away and the other friends of Anil, who were present nearby started chasing him and even threw stones towards him; that while fleeing outside through the main pandal accused Jitender again stopped and fired indiscriminately at the persons who were chasing him and in that process another bullet hit Madan Lal the father of the bridegroom Vijay Sharma, on his leg; that the accused Jitender managed to flee away from over there; that Inder and Sanjay Sharma removed Anil Badana to Sunder Lal Jain hospital in the car of Inder and the other friends namely Raj Kumar Bhati, Janesh, Narender and Sumit Nayyar followed them in the car of Anil Badana; that in the meantime Sumit Nayyar had also called up the police at 100 number from the mobile phone of Anil Badana bearing No. 9811162283; that in fact three successive calls were made at no.100 after the interval of two minutes each through the same cell phone as the phone was got disconnected; that Anil Badana was declared as 'brought dead' by the doctors at Sunder Lal Jain Hospital; that Sh. Madan Lal Sharma, the other injured in the meantime was taken by his other relatives to a nearby Garg Nursing Home where he was provided necessary medical St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 148 treatment.
It has also been established that information about the incident was received at Police Station Kesahv Puram vide DD No.15A and SI Om Prakash along with Ct. Surender Singh went to the spot after which they both reached the hospital where they found the injured Anil Badana having been declared by the doctors to be 'brought dead'; that SHO Police Station Keshav Puram Inspector Pradeep Kumar also reached the hospital and collected the MLC of deceased Anil Badana; that on the basis of statement of Raj Kumar Bhati an eye witness of the incident, the rukka was prepared and the FIR was got registered; that Inspector Pradeep Kumar along with Raj Kumar Bhati and other police officials came back to the spot where they found three empty cartridges of 7.65 mm at the spot; that the photographer Harpreet Singh who was covering the function was asked to show the Video Cassette prepared by him; that the said video cassette showed the presence of accused Jitender @ Kalle in the function and also of Anil Badana and sounds of two shots can also be heard thereby confirming the oral testimonies of these eye witnesses with regard to firing indiscriminately; that on the next day postmortem examination on the dead body was got conducted and one bullet was found embedded in the body of Anil Badana which was collected by the Autopsy Surgeon; that efforts were made to trace out the accused but the same proved futile; that on 26.3.1999 one Maruti Zen car bearing no. DL8CA9383 belonging to accused in which he had St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 149 allegedly fled away from the spot was found lying abandoned in St. Stephen's Hospital parking.
It also stands established that the investigation of the present case in the meantime was transferred to Crime Branch, Homicide Section; that on 23.1.2000 on the basis of a secret information accused Jitender @ Kalle was apprehended by SI Ram Avatar, ASI Vijender, Ct. Surender and Ct. Praveen from bus stand Naraina after he alighted over there from a bus; that accused Jitender made a disclosure statement wherein he disclosed that the weapon of offence used by him in the commission of the present crime was purchased by him from Bahadurgarh Gun House; that on 2.2.2000 copies of sale documents of the pistol and cartridges were seized from the owner of Bahadurgarh Gun House; that on 4.2.2000 the accused Jitender @ Kalle again made a disclosure statement that the said weapon of offence has been hidden by him under a tree in a DDA park in Haiderpur, Delhi; that pursuant to the disclosure statement the accused Jitender @ Kalle got recovered a pistol of 7.65 mm bore bearing No.621251 make Czechoslovakia wrapped in a polythene bag in which proceedings one Daljit Singh, a public person was joined; that from inside the magazine of the pistol six live cartridges were also recovered which were taken into possession after preparing their sketch; that later on the empty cartridges recovered from the place of incident along with the bullet recovered from inside the body of deceased Anil Badana and the pistol and six live cartridges so recovered St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 150 at the instance of the accused were sent for comparison to CFSL, Delhi.
It has also been observed by this Court that the medical evidence on record established that the cause of death was hemothorax, haemorrhagic shock and element of asphyxia consequence to injuries to the heart and right lung as a result of fire arm injury which was ante mortem in nature; that the fire arm was rifled and range was beyond the blast effect and the solitary fire arm injury was sufficient to cause death in the ordinary course of nature. Further, the forensic evidence i.e. the Ballistic Report conclusively connect the accused Jitender @ Kalle since it has been established that the bullet recovered from the body of the deceased and the cartridges recovered from the spot, had been fired from the licensed pistol of the accused Jitender @ Kalle which pistol had been got recovered by him pursuant to his disclosure to the police.
In view of the above background, it has been held that the prosecution has been able to establish and prove the necessary intent and knowledge (as contemplated under Section 300 Indian Penal Code) of the accused Jitender @ Kalle to have commit the murder of Anil Badana for which he has been held guilty of the offence under Section 302 Indian Penal Code. Further, it has been established that accused Jitender also fired from his pistol towards the public persons who were trying to catch hold of him and in that process one bullet fired by him hit Madan Lal Sharma. Hence, this bullet was also fired by him with such knowledge and under such circumstances that if death of Madan St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 151 Lal Sharma would have occurred then he would have been guilty of the offence of murder and therefore, the accused Jitender @ Kalle has been held guilty of the offence under Section 307 Indian Penal Code.
I have heard the Ld. Special Prosecutor and also the Ld. Counsel for the convict. The Ld. Special Prosecutor while relying upon a number of judgments of the Hon'ble Supreme Court of India as well as Hon'ble Delhi High Court and has strongly prayed for imposition of death penalty upon the convict. He has argued that the manner in which the accused killed Anil Badana who was a witness in another FIR No. 125/96 Police Station Model Town in full public view in a marriage reception and on the way to escape from the spot, fired indiscriminately at persons chasing him and injured one Madan Lal the father of the bridegroom who had organized the function only reflects the extent of his desperation. It is contended that the convict Jitender further in order to finish off all witnesses so that none is in a position to depose against him, went to the house of eye witness Sumit Nayyar who had called the police at 100 number and on coming to know he had not reached home, killed his father. The Ld. Special Prosecutor has submitted that the gruesome act of the convict Jitender @ Kalle to kill innocent persons without any fault only reflects the depravity of exceptional nature. It is also submitted that the act of the convict reflects that he has become a menace to the society and he deserves Capital Punishment upon him. The Ld. Special Prosecutor has placed his reliance on the judgments of St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 152 Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convict Jitender @ Kalle. It is also stated that the convict has not been able to show any mitigating circumstances in his favour which could make out a case for imposition of sentence of imprisonment for life. Ld. Addl. PP has also placed before this Court the list of involvements of convict Jitender @ Kalle which are as under:
S. FIR No. Date Section of Law Name of No. Police Station 1 153/89 20.5.89 324/307/326 IPC Ashok Vihar 2 83/90 10.03.90 324/34 IPC Ashok Vihar 3 296/95 19.5.95 451/427/323/34 IPC Ashok Vihar 4 125/96 09.03.96 279/337/307 IPC & Model Town 25/27/54/59 Arms Act 5 67/99 10.03.99 302/336 IPC Keshav Puram 6 379/04 15.7.04 223/225/328/216/120B/ 34 Defence IPC Colony 7 314/04 09.08.04 186/ 353/307/34 IPC & R.M.D. 25/27/54/59 Arms Act 8 166/04 06.12.04 506 IPC Kundali (Haryana) 9 304/04 12.12.04 386/387/120B IPC Civil Line Sonepat St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 153
On the other hand Ld. counsel appearing on behalf of the convict has prayed that the convict may be awarded minimum punishment as prescribed by the law under the facts and circumstances of the case as the case of the convict does not fall within the category of "rarest of the rare cases" warranting extreme punishment of death. It is also argued that the basic principal of criminal jurisprudence is that the death sentence should be awarded in exceptional cases but the minimum sentence i.e. life imprisonment is a general rule and nothing exception is involved in this case and there is no aggravating circumstances in this case but the mitigating circumstances are involved i.e. accused is a young man and there was no preplan or motive to commit murder. Ld. Counsel for the accused has further argued that the accused is in jail for the last more than 13 years. It is also argued that it is not a preplanned, calculated and cold blooded murder since the incident took place in a marriage party and it is the case of prosecution that the accused was having pistol and fired in the air first and then he only fired one shot on the deceased despite the fact that he was having opportunity to fire further upon the deceased.
I have considered the rival contentions. At the very outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be keep in mind before awarding a death St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 154 sentence in any given case.
The law is well settled in the decision in Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], wherein it was held that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. Again it was cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the accused as also the offence. Some aggravating circumstances were also culled out, they being:
(a) Where the murder has been committed after previous planning and involves extreme brutality; or
(b) Where the murder involves exceptional depravity.
The mitigating circumstances which were mentioned in that judgment were:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance;
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;
(c) The probability that the accused would not commit criminal acts of violence as would St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 155 constitute a continuing threat to society;
(d) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) above;
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;
(f) That the accused acted under the duress or domination of another person; and
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], wherein the Hon'ble Supreme Court insisted upon the mitigating circumstances being balanced against the aggravating circumstances. The aggravating circumstances were described as under:
(a) When the murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.
(b) When the murder of a large number of persons of a particular caste, community, or locality is committed.
(c) When the murder of an innocent child, a
helpless woman is committed.
It was also observed by the Hon'ble Court that at the same time it must be kept in mind that the principle of there being a St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 156 proportion between punishment and offences ought not to be so mathematically followed so as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes.
The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is desirability to keep the offender out of circulation.
In the case of Shivaji Vs. State of Maharashtra reported in 2008 (4) AD (CR.) SC 665 the Hon'ble Apex Court considered as to whether or not circumstantial based conviction should be taken to be the mitigating factor and had observed that the plea that in case of a circumstantial evidence, death should not be awarded, is without any logic. It was also observed that if the circumstantial evidence is found to be of unimpeachable character in establishing the guilt of the accused, which forms the foundation for conviction, that have nothing to do with St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 157 the question of sentence as has been observed in various cases while awarding death sentence. The Hon'ble Court was of the view that to treat circumstantial evidence as mitigating circumstances would amount to consideration of an irrelevant aspect and in a case which falls in the Rarest of Rare category death sentence should be awarded.
However, the Hon'ble Apex Court in the case of Swami Shradhanand Vs. State of Karnataka reported in 2008 (13) SCC 767 considered an alternative option and substituted the death penalty with life imprisonment with the directions that the convict must not be released for the rest of his life.
The question now before this court is whether a punishment lesser than death would be wholly inadequate or whether the alternative option as proposed in the case of Swami Shradhanand Vs. State of Karnatka reported in 2008 (13) SCC 767 and Shree Gopal @ Mani Gopal Vs. State, Crl. Appeal No. 528/09 decided on 31.8.2009 would be adequate.
In a case pertaining to the imposition of death sentence in the case Santosh Kumar Satish Bhushan Bariyar Vs. State of Maharastra decided on 13.5.2009 reported in JT 2009 (7) SC 249 the Hon'ble Apex Court has highlighted the important facet pertaining to the sentencing procedure being the consideration of alternative options. Discussing the nature and the content of the Rarest of Rare dictum, the St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 158 Hon'ble Apex Court observed that a real and abiding concerned for the dignity of human life postulates resistance to taking a life through instrumentality of law. That ought not to be done, save in the rarest of rare cases, where the alternative option is unquestionably foreclosed. It was observed that imprisonment for life as penalty entails, is that the accused must remain in prison till his life i.e would never be set free from jail. The executive, however, has the power of remission under Section 433 Cr.P.C which is subject to the restriction imposed by section 433A Cr.P.C as per which a person sentenced to imprisonment for life or one whose sentence of death has been commuted to imprisonment for life cannot be released from prison unless he/she has served at least 14 years of imprisonment.
The alternative option considered by the Court was to pass a direction that the accused who has been held guilty would not be released from prison till a sentence more than 14 year imprisonment has been suffered by the accused who has been sentenced to undergo imprisonment for life.
Hon'ble Mr. Justice Pradeep Nandrajog in his decision as rendered in Shree Gopal @ Mani Gopal (Supra) in a case pertaining to the killing of an eye witness and injuring of his security officer in a shoot out by the accused in full public view, examined this facet pertaining to the sentencing procedure i.e of consideration of alternative options while referring to the decision of Hon'ble Supreme St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 159 Court of India as rendered in the case Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra reported in JT 2009 (7) SC 249. Hon'ble Mr. Justice Pradeep Nandrajog also considered the various alternatives available to him in the light of Section 433 Cr.P.C. and Section 433A Cr.P.C. regarding the meaning of the sentence for imprisonment for life and the power of the executive to grant remission but, not before a period of 14 years of imprisonment. He also referred to various other decisions of Hon'ble Supreme Court of India while classifying the sentence of imprisonment in two categories i.e the ordinary category whereby the court leaves the exercise of executive power at the discretion of the executive, to be so exercised after 14 years of imprisonment and grant remission; and a higher category, where the Court, in a Rare Case, but not the Rarest of the Rare, would clip the said benefit being extended to the convict by directing that the convict shall undergo an actual sentence for a higher period or even for the remainder of his life. Such kind of cases can be put in the category of Rare Cases with appropriate direction of not being entitled to the benefit of remission till a fixed term of imprisonment is undergone. Some of the decisions, noted in this regard by the Hon'ble Judge were Swami Shraddhanand Vs. State of Karnataka reported in AIR 2007 (SC) 2531 in paras 60 to 63 of the said decision i.e the decisions reported as Shri Bhagwan Vs. State of Rajasthan reported in 2001 (6) SCC 296, St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 160 Parkash Dhawal Khairnar (Patil) Vs. State of Maharashtra reported in 2002 (2) SCC 35, Ram Anoop Singh Vs. State of Bihar reported in 2002 (6) SCC 686 and Mohd. Munna Vs. Union of India reported in 2005 (7) SCC 417. The convict in the said case was thus sentenced to imprisonment for life with a direction that he will not be considered for being grant of remission till he undergoes an actual sentence of 20 years.
Now, coming to the case in hand, I would like to draw a balance sheet of aggravating and mitigating factors. The mitigating factors in the present case is that firstly the convict had committed the offence when he was hardly aged about 2526 years of age and secondly that he has remained in jail for the last more than 13 years.
The aggravating factors are firstly that the victim in the present case namely Anil Badana was none else than the witness against the convict Jitender @ Kalle in another FIR No. 125/06 under Section 307 IPC PS Model Town being the injured and the motive behind the murder of Anil Badana was of revenge between the deceased and the convict. Secondly the murder of Anil Badana a young man, has been committed in full public view at a marriage reception and on the way to escape from the spot the convict fired indiscriminately and one such bullet injured Madan Lal the father of the bridegroom who had organized the function. Thirdly after committing the murder of Anil St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 161 Badana and injured Madan Lal in the present case the convict Jitender @ Kalle rushed to the residence of Sumit Nayyar an eye witness to the incident in the present case who had made a police call on 100 number and learning that Sumit Nayyar had not reached, he shot his father Kimti Lal Nayyar an innocent person without any fault on his part. Fourthly the fact that the incident in the present FIR No. 61/99 occurred at 11:00 pm and the incident in the second case bearing FIR no. 68/99 where Kimti Lal Nayyar had been shot dead occurred at 12:30 AM, the intent was clearly to finish off the witnesses who would have deposed against him. Fifthly the present convict had also escaped from police custody and according to the prosecution had extended threats to the witnesses during this period showing that the convict did not have any remorse of ghastly killings for which he was undergoing trial. Lastly the convict Jitender @ Kalle is a habitual offender being involved in number of cases and is the BC (Bad Character of the area).
In view of my aforesaid discussion, I am of a considered opinion that this case cannot be put on the same pedestal as other ordinary murder cases. It is also true that punishment in every case does send a message to the community at large. Thus besides a number of other factors to be considered one of the relevant factor also to be kept in mind by the court while deciding or awarding any punishment to a convict for any given offence is the sentiments of the community or the message which may travel to the community at large and the fact that it St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 162 may deter similar other such like offenders. The present case can be easily classified as a 'Rare Case' which calls for the exercising of alternative options by the court. I therefore, award the convict Jitender @ Kalle the following sentence:
1. For the offence under Section 302 Indian Penal Code the convict Jitender @ Kalle is sentenced to Rigorous Imprisonment for life with the direction that he shall not be considered for grant of remission till he undergoes an actual sentence of 30 years and fine for a sum of Rs.3,00,000/ (Rs.
Three Lacs). In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of three years. Out of the total fine of Rs.3,00,000/ (Rs. Three Lacs), if recovered, a sum of Rs.1,00,000/ (Rs. One Lacs) shall be paid to the State and Rs.2,00,000/ (Rs. Two Lacs) shall be paid to the family of the deceased Anil Badana as compensation under Section 357 Cr.P.C.
2. For the offence under Section 307 Indian Penal Code the convict Jitender @ Kalle is sentenced to Rigorous Imprisonment for Ten (10) years and fine of Rs.1,00,000/ (Rs. One Lac). In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one year. St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 163
It is directed that all substantive period of sentences of imprisonment of the convict Jitender @ Kalle in the present case shall run concurrently. The convict is already in judicial custody. He is sent to custody for serving the sentence. Benefit of Section 428 Cr.P.C. shall be given to the convict for the period undergone by him during the trial as per rules.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
One copy of the judgment and order on sentence be given to the convict free of costs and one of order on sentence be attached with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 1.07.2013 ASJ (NW)II: ROHINI
St. Vs. Jitender @ Kalle, FIR No. 67/99, PS Keshav Puram Page No. 164