Delhi District Court
State vs Jitender Sharma on 2 April, 2012
1
IN THE COURT OF SH. SANJEEV KUMAR
ADDL. SESSIONS JUDGEI(OUTER): ROHINI COURTS: DELHI
SC No: 64/2011
FIR No:100/11
PS:Narela
U/s: 302 IPC & 25/27 Arms Act
STATE
Versus
JITENDER SHARMA
S/o Sh.Tejpal Sharma
R/o Vill. Khatkhad, Distt.Sonipat,
PS Kundli, Haryana.
Date of Institution :4.7.2011
Date of Arguments: 14.3.2012
Date of Judgment :2.4.2012
JUDGMENT
1. Brief facts of the prosecution case are that complainant Hari Parkash stated that on 7.9.11 at about 6.15 am when he gone for walk he found his cousin Surender lying dead in his plot at village Bankner with bullet injury on his right temple. On the basis of said statement, FIR no.100/11 was registered u/s 302 IPC in PS Narela. During investigation Investigating Officer Inspector Satish Dahiya State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 1 of 54 2 checked the call details and found that last call was made to the deceased from the mobile number of Jitender Sharma i.e the accused and further found some witnesses who had last seen the deceased with him. Accused Jitender was arrested on 9.3.11. IO seized the weapon of offence i.e pistol of the accused by which accused has fired upon deceased causing his death. After completion of investigation chargesheet was filed u/s 302 IPC and 25/27 Arms Act, 1959.
2. Ld. MM after compliance of the provisions of Section 207 Cr.P.C. referred the case to the court of sessions, which was later on assigned to this court.
3. The charge u/s 302 IPC and u/s 27/54/59 Arms Act were framed vide order dated 2.8.2011.
4. In support of its case, the prosecution has examined as many as 26 witnesses.
PW1 HC Shambhu Singh is the Duty Officer. He deposed that he recorded the FIR no.100/11 ExPW1/A and made the endorsement on rukka which is ExPW1/V. He also proved the DD no.8A as ExPW1/C. He was not cross examined on behalf of accused.
State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 2 of 54 3 PW2 Hari Parkash is the complainant. He deposed that on 7.3.11, at about 6.15 am he reached at the plot of his uncle Suraj Bhan, where he found large crowd and saw his cousin Surender lying dead and blood was oozing out. He made a call to the police at 100 number and police recorded his statement ExPW2/A. In cross examination he stated that his statement was recorded by the police at about 10/11 am. There is a residential house of Dalel Singh adjacent to the plot where deceased was found dead and in front of said plot there are houses of Sahab Singh, Jagat Ram and Harpal Singh and house of Balwan Singh is situated behind the said plot and on the opposite of said plot there is residential houses of Satpal.
PW3 Virender deposed that he was working as Supervisor in V.K. Motors, Main GTK Road, Kundli and deceased was the owner of said V.K. Motors. On 6.3.11 at about 6 pm when he left the office, deceased was present and on next day morning, he was informed by Anil that deceased is lying dead at his home. He was declared hostile by the Ld. APP and was cross examined. In cross examination he admitted that deceased was having motor cycle bearing no.DL8SNC5508. However he denied the suggestion State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 3 of 54 4 that the deceased told him that he would take dinner at Sardar Punjabi Dhaba at Singhu Border. He admitted the suggestion that he saw the motorcycle parked at HP Petrol Pump. However, he denied the suggestion that same was seized by the police at his instance. He was also cross examined by the Ld. Defence counsel and he stated that the deceased used to go to Panipat and Chandigarh with regard to his business after parking his motorcycle at bus stand Singhu Border and due to this reason he thought to search the motorcycle at Singhu Border. He further stated that he cannot tell at what time deceased left and for what place. Thus this witness is of no help to the prosecution as he did not prove that deceased told him he would take dinner with accused.
PW4 Satpal deposed that he is running a Punjabi Dhaba at main GT Karnal Road near Singhu Border besides this he do not know anything. He was declared hostile. In cross examination by Ld. APP he stated that he do not know the deceased. He was shown the photograph of the deceased by the Ld. APP but he denied that he has seen any such person. He also denied the suggestion that the deceased visited his dhaba frequently. He also stated that he did not know the accused Jitender State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 4 of 54 5 Sharma. He stated that he did not know if on 6.3.11 at about 8/8.30 pm one red colour Scoda Car having antenna on its roof came to his dhaba in which accused was sitting and after some time one motorcycle no.DL8SNC550 also came there which was driving by the accused. Thereafter the deceased boarded the Scoda car from his dhaba after asking him to look after his motorcycle.
Thus this witness is also of no help to prosecution case, as he has not deposed that he saw the accused and deceased going together on the evening of the incident.
PW5 Dharambir Singh deposed that on 6.3.11 at about 9/9.15 pm he had gone for natural call to the gher in village Bankner and he entered in the latrine/toilet of Surender made by the side of road to ease himself and kept open the door of the latrine when he was easing himself. He saw one red colour car having antenna in the middle of its top came there and two persons got down from the car and entered in the plot of Surender. When he came out from the latrine he saw both the persons talking with each other. He recognized the voice of his brother Surender but he could not recognized the voice of other person. Thereafter he came back to his house. In the morning he came to know through his wife that the State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 5 of 54 6 dead body of Surender was lying in the plot. PW5 was also declared hostile by Ld.APP as he has not identified the accused as the second person with whom the deceased was talking.
In cross examination by Ld. APP he has admitted that his statement was recorded by the police but he further stated that same was not read over to him, which means that he do not know what was written in his statement. He denied the suggestion that other person who was talking with his cousin brother was accused Jitender of village Khakar, District Sonepat, Haryana. He also denied the suggestion that accused was the person whom, he has seen with his cousin brother on 6.3.11 between 9 to 10 pm and they had got down from red colour Skoda car. He voluntarily stated that he has seen the accused first time in the court. He was not cross examined by defence counsel.
Thus PW5 has also not supported the prosecution case that on the day of incident he saw the accused and deceased together at the plot of deceased.
PW6 Anil Kumar deposed that on 7.3.11 he identified the dead body of his brother and he further stated that except this he do not know anything. He was also declared hostile and cross State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 6 of 54 7 examined by the APP for the State.
In his cross examination by Ld. APP, he admitted that he has stated to the police that mobile no.9312662020 was in his name which he has given the same to his brother for use and on 6.3.11 same was with his brother Surender.
In his cross examination conducted by Ld.counsel for the accused witness stated that he do not remember whether his brother has any mobile connection in his name and sometimes the said phone was used by him and sometimes by his brother.
PW7 Joginder Khatri and PW8 Vijender identified the dead body of the deceased Surender. They were not cross examined by the defence counsel.
PW9 Ct. Harish deposed that on 7.3.11 he was posted as photographer with Mobile Crime Team and on that day he along with Crime Team reached at the spot i.e plot no.33/7, Village Bankner where he took 11 photographs which he proved as ExPW9/1 to ExPW9/11 and their negatives as ExPW9/12 to ExPW9/22. He was also not cross examined by the defence counsel.
PW10 L/Ct. Preeti deposed that on 7.3.11 posted as State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 7 of 54 8 Computer Operator in PS Narela and on that day HC Shambhu, duty officer handed over one rukka and on the basis of said rukka she recorded the FIR no. 100/11 and proved the computerized copy of FIR as ExPW10/A. She was also not cross examined.
PW11 SI Manohar Lal deposed that he prepared the site plan at the instance of IO Inspector Satish Kumar of the spot i.e plot no.33/7 village Bakner and proved the same as ExPW11/A. He was also not cross examined.
PW12 Ct. Kuldeep Kumar deposed that on 7.3.11 he was posted at PS Narela and on that day duty officer handed over him envelopes containing the copies of FIR and he delivered the same to concerned MM and Senior Officers. He was also not cross examined.
PW13 Dr. Bhim Singh conducted the post mortem on the dead body of the deceased. He deposed that on 7.3.11 he conducted the post mortem on the dead body of deceased Surender and found following injuries:
1. Fire arm entry wound, oval shaped 1cm X 0.8 cm X cavity deep, over right temporal area situated 3 cm above and medial to right ear and 5 cm from outer canthus of right eye, marginsinverted, with State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 8 of 54 9 surrounding abrasion collar around the wound, there was presence of burning, singing of hairs, blackening and tattooing around the wound.
2. Fire arm exit wound, stellet shaped left temporal area, 1.5 cm X 0.7 cm X cavity deep situated 2.8 cm from left ear and 7 cm from outer canthus of left eye.
Further he has opined that the deceased died due to combined effect of cranio cerebral damage and hemorrhage shock consequent upon fire arm injury via injury no.1 and 2.
In cross examination he stated that he is MBBS and MD Forensic Medicine and he used to opine whether the inflicted wound is from close range or distant range after examining the wounds. He opined that in a case of hand guns i.e pistol or revolver, the close range is about 23 inch and in case of rifles, it is 36 inches. He further stated that he gave opinion that bulled fired from close range i.e about 36 inches distant by assuming the type of weapon as a rifle. He further stated that if bullet is fired from contact range then the symptoms of wounds are that would would be larger in size due to gas effect and burning and burning of hairs due to flames could also be present around the wound i.e residue of gun power and same symptoms were present in injury no.1 i.e entry wound. He State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 9 of 54 10 further admitted that in most of suicidal cases by gun shot, if a right handed person commits suicide by gun shot, the target would be right temporal region by close or contact range. In suicidal cases generally the abrasion collar remained regular and in homicidal cases, the abrasion collar direction may differ and changed and it may be irregular. Further it is stated that in case in hand, the abrasion collar was present around the wound and it was regular. He further stated that IO did not ask his final opinion by producing the FSL report regarding whether the case was of suicide or homicide. Thereafter he was shown the FSL reports which is lying in the files. He stated that since there is presence of gun shot residues (GSR) particles in swab taken from the entry wound, therefore in his opinion it lead to the conclusion that it may indicate towards suicidal death. IO had asked him for his opinion after seeing the FSL report and he had given his opinion as suicidal death. He further stated that firing pin mark and breach face mark are not unique and can be matched by many weapons and rifling mark is the unique mark which is found only on the bullet/lead.
PW14 SI Vishesh Kumar deposed that on 7.3.11 he was posted as Incharge Crime Team and on that day he along with State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 10 of 54 11 Ct. Harish reached at the spot i.e plot of Surender where one dead body was found lying. He inspected the site and prepared the crime team report ExPW14/A. He was not cross examined.
PW15 Shri R. Suresh, SSO Ballistic, FSL Rohini deposed that on 20.4.11 five sealed parcels received from the FSL office which was marked to him for examination and on examination he gave his detailed report as ExPW15/A. On on 8.3.2911 three parcels received at FSL through Ct. Manoj Kumar which were marked to him for examination and he gave his detailed report as ExPW15/B. In cross examination, he admitted that GSR particles were detected in the swab mark S1 but he did not mentioned compound and contents of ExS1. He admitted the suggestion that if the GSL compound found with the entry wound and traces of said particles remained found in the barrel of gun subject to the condition that if same is not cleaned. He admitted that he has not mentioned in his report that kind of traces of GSR particles found in the barrel of gun was not checked by him as same the query of this aspect was not made from him. He admitted that in most of the suicidal cases, the site selection of a person is easily accessible part i.e right side State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 11 of 54 12 temporal region if the person is right handed and left side temporal region if the person is left handed. He admitted that no bullet was produced for examination.
PW16 HC Pawan Kumar deposed that on 17.3.11 he was working as MHC(M). On that day, seven sealed parcels out of which two were having the seal of SK and five were having the seal of BJRM Hospital and one motorcycle bearing registration no.DL8SNC5508 were deposited by the SHO about which he made entry at Sr.No.113 in Register no.19 and proved the same as ExPW16/A. On 9.3.11 one sealed parcel sealed with the seal of SK was deposited by the Inspector Satish and on 10.3.11 one another sealed parcel containing pistol and one arm licence sealed with the seal of SK along with one Skoda Car bearing registration no.DL8CL2918 and he made entry in this regard at Sr. no.116 and on 11.3.11 one sealed parcel containing clothes of the accused were deposited by the IO with the seal of SK and he made the entry in at Sr.No.118 as ExPW16/C. On 8.3.11 three parcels were sent to FSL through Ct. Manoj vide RC no.40/21/11 ExPW16/D and the copy of receipt as ExPW16/E. On 8.4.11 one sealed wooden box was sent to FSL through Ct. Gunwant vide RC no.61/21/11 as ExPW16/F and State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 12 of 54 13 the receipt as ExPW16/G. On 15.4.11 five exhibits were sent to FSL through Ct.Rakesh vide RC no.66/21/11 as ExPW16/H and receipt as ExPW16/I. On 20.4.11 six exhibits along with sample seals were sent to FSL through Ct. Rakesh vide RC no.71/21/11 as ExjPW16/J and receipt as ExPW16/K. In cross examination he stated that he has not mentioned the time in his register regarding deposit of case property. He also stated that IO handed over to him certain seizure memos and he simply copied the contents of the copy of seizure memo in Register no.19.
PW17 Tejpal Sharma who is the father of accused, deposed that the car bearing no.DL8CL2918 is registered in his name and said car was taken on superdari by him on 19.5.11 vide superdginama ExPW17/A. In his cross examination he stated that his son Jitender Sharma i.e accused has having his own car. He further stated that the Skoda car was always remained under his possession and control and accused Jitender never took the same for use. Ld. APP for the State reexamined the witness and the witness denied the suggestion that on 7.3.11 accused had taken the said car from him. State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 13 of 54 14 PW18 Ms. Kavita Goyal, SSO, FSL Rohini deposed that on 8.4.11 one sealed wooden box, through Ct. Gunwant, containing the viscera of the deceased was received and she examined the same and prepared the report ExPW18/A. In cross examination she admitted that as per her report the person whose blood was examined by her was having ethyl alcohol in the quantity of 98.1 mg per 100 ml of blood.
PW19 Ved Parkash, Asst. Nodal Officer, Reliance Communication Ltd. Deposed that the phone no.9312662020 was issued in the name of Anil S/o Suraj Bhan. He proved the original application form as ExPW19/A. He also proved the call detail record of the said mobile from 6.6.11 to 7.3.11 as ExPW9/C. The certificate u/s 65B of the Indian Evidence Act as ExPW19/D. In cross examination, he stated that he did not know whether IO had filed the application for supplying of call details. He was shown application ExPW19/DA and he stated that said application bears the stamp of the office and bears the signature of S.S. Yadav, Deputy Manager at point A. PW10 Shri Ravinder deposed that on 6.3.11 he was posted as Sub Inspector at PS Narela and on that day at about 6.30 State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 14 of 54 15 am on receiving DD no.8A regarding murder of a person at village Bankner he along with Ct. Satyawan reached at the spot and found one dead body of a male person aged about 35 yrs. One person namely Hari Prakash identified the dead body as of his cousin brother Surender. He recorded his statement ExPW2/A and prepared a rukka ExPW20/A and sent Ct. Satyawan along with rukka to PS for registration of FIR. Thereafter at about 9.30 am SHO Inspector Satish Kumar Dahiya along with Ct. Satyawan, SI Yashpal and other police staff reached at spot and took over the investigation. Crime team officials and photographer also reached at the spot. Crime team officials conducted the proceedings and took the photographs of the spot and also inspected the spot. One empty cartridge was recovered from the spot near the dead body. Sketch of the same was prepared by Inspector Satish Kumar and he kept the same in plastic container and sealed with the seal of SK. Inspector Satish Kumar also lifted blood earth and earth control and kept the same in plastic container and sealed with the seal of SK. One Ballistic Expert from FSL also reached at the spot and inspected the spot as well as dead body and thereafter the dead body was sent to BJRM Hospital. He identified the empty cartridge State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 15 of 54 16 as ExPW20/1.
In cross examination, he stated that he reached at the spot at about 7/7.10 am. Some of the family members were present at the spot when he reached there. Father of the deceased was also present. He sent the rukka to the Police Station at about 7.50am and handed over the remaining documents to SHO at about 9.30 am. Seizure memo of empty cartridge was prepared by the IO at about 9.50 am and left the spot at about 10.30 am alone. He further stated that no statement of any witnesses except the statement of Hari Parkash was recorded. He further stated that he interrogated the younger brother of the deceased and in his presence no other person was interrogated by the SHO. He further stated that empty cartridge was recovered at a distance of about 10 feet from the dead body towards the gate/banyan tree side. He further stated that SHO/IO had seen the empty cartridge and lifted the same in his presence. He further stated that he cannot say if the photograph of the place where the empty cartridge was found was taken or not. He further stated that seal was handed over to him by the SHO by 9.50 am and he retained the seal till next morning. He denied the suggestion that empty cartridge was not recovered in his presence State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 16 of 54 17 or no seizure memo of empty cartridge was prepared in his presence and due to this reason, seizure memo does not bear his signature.
PW21 Israr Babu deposed that he is working as Alternate Nodal Officer. He has deposed that phone no.9811599573 was allotted to Jitender Sharma S/o Tejpal Sharma and proved the photocopy of the customer agreement as ExPW21/A and tariff plan as ExPW21/B. He has also proved the call details record from 6.3.11 to 7.3.11 as ExPW21/F and certificate u/s 65 Evidence Act as ExPW21/G. He further stated that Anuj Bhatia, Nodal Officer had already provided certificate, call details and customer agreement form of Jitender Sharma to investigating officer and documents as ExPW21/H1 to ExPW21/H8 bear the signature of Anuj Bhatia at point A. In cross examination the witness proved the authority letter to depose in the court as ExPW21/DA. He admitted that in the said authority letter nothing is mentioned about producing the documents pertaining to this case in the court. He denied the suggestion that he was not authorised by the company to file the certificate u/s 65B of the I.T. Act in this case. He admitted that the proforma of certificate u/s 65B was saved in his computer. He State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 17 of 54 18 further stated that main server of the company is situated in Pune. He did not know the name of the officer who operated the main server. He further stated that he cannot tell the numbers of tower installed.
PW22 Ct. Manoj Kumar stated that on 8.3.11 he took three sealed pulundas from the malkhana to FSL vide RC no. 14/21/11 and deposited the same in the FSL, Rohini, Delhi. He was not cross examined.
PW23 Ct. Gunwant deposed that on 8.4.11 he took one wooden box in sealed condition to FSL Rohini vide RC no.61/21. He was not cross examined.
PW24 Inspector Yashpal Singh deposed that on 7.3.11 at about 6.30 am he along with Inspector Satish Dahiya, SHO of PS Narela reached at Bakner where he found SI Ravinder and other public persons. One dead body of male person was found which was identified as of Surender. Crime team reached at the spot and they took photographs. The dead body was removed to BJRM Hospital. Inspector Satish Kumar seized one bullet lead from the spot and sketch of the same was prepared by him as ExPW24/A. He was shown the seizure memo ExPW24/A and then he admitted State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 18 of 54 19 that it was not the bullet lead but fired cartridge case. He further stated that crime team officials lifted blood stained earth from the spot which was kept by the IO in a plastic container and sealed the same with the seal of SK and seized the same vide seizure memo ExPW24/C and thereafter they went to BJRM Hospital where dead body was identified. He further stated that doctor handed over the clothes and shoes of the deceased in sealed condition which were seized vide seizure memo ExPW24/F. Dr. Bhim Singh handed over blood sample in gauze in sealed condition which was seized vide seizure memo ExPW24/G. Doctor also handed over one wooden box containing viscera of the deceased sealed with the seal of BJRM along with swab from the entry and exit wound which was seized by the IO vide seizure memo ExPW24/H to J. The dead body was handed over to the relatives. Thereafter he along with Inspector Satish and other police officials reached at Singhu Border where one person met who informed that the deceased went away from there on his own motorcycle. Thereafter they reached at the dhaba of Satpal where one motorcycle was seized by Inspector Satish vide seizure memo ExPW24/K. The brother of the deceased had identified the motorcycle as of deceased. The brother of the State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 19 of 54 20 deceased also gave mobile number of the deceased to Inspector Satish and on checking details it was found that the last call was made to Jitender Sharma resident of Pitampura. The call was made on said number but hte phone was found switched off. On 9.3.2011, he along with the SHO, one constable and secret informer reached at Saraswati Vihar Bus Stand and at about 8.45 pm at the instance of secret informer, Jitender Sharma was arrested by Inspector Satish vide arrest memo ExPW24/L and his personal search was taken vide ExPW24/M and his disclosure statement was recorded by Inspector Satish in detail vide ExPW24/N. Thereafter accused took them to Village Kharkhar, Distt. Sonepat, Haryana where accused got recovered one pistol and one white colour cover from the drawer of the double bed of his house. The sketch of the pistol was prepared by Inspector Satish as ExPW24/O. Thereafter pistol and its cover was kept in cloth and sealed with the seal of SK and Inspector Satish seized the same vide seizure memo ExPW24/P. The accused also handed over one licence of the pistol which was seized by the IO vide seizure memo ExPW24/Q. Thereafter accused got recovered one Skoda car from the firni area of the village Kharkhar and same was taken into possession by State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 20 of 54 21 Inspector Satish vide seizure memo ExPW24/R. On 11.3.11 at the instance of accused one jeans pant of blue colour and one white shirt were recovered from his house which were kept in a polythene and thereafter same were kept in a cloth pulunda and sealed with the seal of SK and Inspector Satish seized the same vide seizure memo ExPW24/S. On 10.3.2011, accused got recovered one mobile phone. Same was kept in a cloth pulunda and sealed by the IO with the seal of SK and seized vide seizure memo ExPW24/U. He identified the recovered articles in his presence i.e pistol and its cover as ExPW24/Article 2, one empty cartridge case as ExPW20/1, one blue colour jeans pant as ExPW24/ Article 3, shirt as ExPW24/Article 4, one mobile phone make Nokia bearing IMEI No. 356910/03/826960/1 as ExPW24/ Article 5.
In cross examination witness has stated that he reached at the spot along with SHO at about 8.10/8.15 am. At that time mother and father of the deceased were not present and the crime team reached at about 8.30 am. The empty cartridge was found lying a mud/dirt under the trunk of the tree. He did not remember at that time whether any public person was present near the plot when the said empty cartridge was found by SI Vishesh and State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 21 of 54 22 was shown to him. He further stated that first time they came to know about the phone number of accused Jitender on next day when SHO obtained the call details of mobile phone of deceased. The other phone numbers mentioned in call detail were not contacted except the phone number of the accused. He denied the suggestion that accused was not arrested from the place and in the manner as deposed by him. He also denied the suggestion that accused was not asked to produce his licensee pistol along with the arms license and he was forced to sign some documents which were later on converted into arrest memo, disclosure statement, personal search, pointing out memo, seizure memos and other incriminating memos in order to falsely implicate him in this case.
PW25 Ct. Satyawan deposed that on 7.3.2011 at about 6.30 am he along with SI Ravinder reached at village Bakner and found one dead body of male person. Many public persons were gathered there. SI Ravinder recorded statement of Hari Parkash and prepared the rukka. Thereafter he went to PS Narela along with rukka for registration of FIR and he got the FIR registered. He handed over copy of FIR no.100/11 and original rukka to Inspector Satish SHO of PS for further investigation. Thereafter he along with State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 22 of 54 23 Inspector Satish and SI Yashpal reached at the spot. Crime team officials and photographer reached at the spot and conducted the proceedings. One empty cartridge case was recovered from the spot and Inspector Satish prepared the sketch of cartridge case and kept the same in a plastic container and sealed the same with the seal of SK and seized the same. Inspector Satish also lifted blood earth, earth control from the spot in a separate plastic container and sealed the same with the seal of SK and seized the same. Thereafter he took the dead body of deceased to BJRM Hospital Mortuary where Inspector Satish and SI Yaspal also reached and prepared the inquest papers. After the post mortem, the dead body was handed over to the relatives of the deceased. He also identified the empty cartridge case as ExPW20/1.
In cross examination the witness stated that the statement of Hari Parkash was recorded by SI Ravinder before the arrival of SHO Inspector Satish and SI Yashpal. SHO and SI Yashpal came at the spot at about 9 am but he do not know the exact time when the crime team officials reached at the spot. When he reached at the spot along with SHO and SI Yashpal the crime team officials were already present there. SHO Satish had informed State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 23 of 54 24 him about the recovery of empty cartridge from the spot. He do not know who had searched and found the empty cartridge. He denied the suggestion that no empty cartridge was found or that he did not take the rukka to the PS or that the FIR was lodged ante time or that all the proceedings were done at the PS. PW26 Inspector Satish Dahiya is the investigating officer of the case. He deposed that on 7.3.11 he along with SI Yashpal, Ct. Satyawan reached at village Bakner. There SI Ravinder, Crime Team, photographer and some public persons were present. Crime team officials inspected the site and photographer took the photographs. The dead body of one male person was found which was identified as of Surender. The dead body was removed to BJRM Hospital through Ct. Satyawan. He seized one fired empty cartridge case from the spot and sketch of the same was prepared as ExPW24/A and was kept in a small plastic container and sealed with the seal of SK and seized vide seizure memo ExPW24/B. He lifted blood stained earth from the spot and same was kept in a plastic container and sealed with the seal of SK and seized vide seizure memo ExPW24/C. He lifted earth control from the spot and kept the same in a plastic container, sealed with the State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 24 of 54 25 seal of SK and seized vide seizure memo ExPW24/D. He prepared the rough site plan ExPW26/A, examined Hari Parkash and Dharamvir and recorded the statement of Dharamvir. Thereafter they went to BJRM Hospital, prepared the inquest documents and filled the inquest form ExPW26/B and prepared the brief facts vide ExPW26/C. He made request for the post mortem vide ExPW26/D and recorded the statement of Vijender and Jogender vide ExPW8/A and ExPW9/A who identified the dead body. FSL team was also called at the Mortuary, BJRM hospital and inspected the dead body of the deceased and thereafter handed over right and left hands swab and control to him in separate envelopes. He sealed the same with the seal of SK and thereafter seized vide seizure memo ExPW24/E. Doctor handed over the clothes and shoes of the deceased in sealed condition with the seal of FMT BJRM Hospital Delhi and he seized the same vide seizure memo ExPW24/F. Dr. Bhim Singh handed over him blood sample in gauze in sealed condition with the seal of BJRM FMT and he seized the same vide ExPW24/G. Doctor also handed over one wooden box containing viscera of deceased in sealed condition with the seal of BJRM Hospital, NCT Delhi, Jahangirpuri along with sample seal to him and State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 25 of 54 26 he seized the same vide seizure memo ExPW24/H. Dr. Bhim Singh also handed over swab from the entry and exit wound of the deceased in sealed condition with the seal of BJRM Hospital FMT with sample seal and he seized the same vide ExPW24/J. After post mortem the dead body was handed over to the relatives of the deceased. Thereafter he along with SI Yashpal and staff reached at the shop of deceased at Kundli, Dahiya Apartments, Sonepat where Virender, Manager met them and he informed that deceased had gone on his motorcycle on last evening and deceased also told that he would go to his house after taking dinner from the hotel of a Sardar at petrol pump Singhu Border. Thereafter they reached at Singhu Border at the dhaba of Satpal Sardar and they found one motorcycle bearing no.DL8SNC5508 and seized the same vide seizure memo ExPW24/K. The brother of the deceased gave mobile number 9312662020 belonging to the deceased to him. He obtained the call details and came to know that the call had been made from the mobile of deceased to mobile no.9811599573 on the day of incident as last call. He came to know that said mobile phone was registered in the name of Jitender Sharma R/o Pitampura. They reached at the shop of Pitampura but the shop was found locked. State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 26 of 54 27 Thereafter he came to know that Jitender was residing in village Khatkar, Distt. Sonepat. On 9.3.2011, he sent one constable to vill. Khatkar to call the Jitender but he was found absent. On the same day at the evening time at the instance of secret informer he reached at Saraswati Vihar Bus Stand and at about 9 pm at the instance of secret informer, Jitender Sharma was apprehended and after interrogation, he confessed that he committed the murder of Surender. He seized one mobile phone from the possession of accused vide seizure memo ExPW24/U and also mentioned the IMEI number of the Sim. He arrested the accused vide arrest memo ExPW24/L and took his personal search vide ExPW24/M and interrogated the accused and recorded the disclosure statement vide ExPW24/N. The accused took them to Khatkar, Distt. Sonepat, Haryana and got recovered one pistol with white colour cover from the drawer of the double bed of his house. The sketch of the pistol was prepared vide ExPW24/O. All the particulars and description of the pistol were mentioned in the sketch. The pistol was kept in a cloth pulunda and sealed with the seal of SK and seized vide seizure memo ExPW24/P. Accused also produced one arms licence of the pistol which was seized vide seizure memo ExPW24/Q. The arm State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 27 of 54 28 license is ExPW24/ Article 1 and one Skoda Car bearing no. DL8CL2918 was recovered by the accused of red colour from the field near the outskirt of village Khatkar which was seized vide seizure memo ExPW24/R. He identified the pistol, empty cartridge, car, driving lisence. He produced the accused on the same day before the court and took police custody and on 10.3.11 accused pointed out towards the place of incident and pointing out memo was prepared vide ExPW24/T. On 11.3.11, accused got recovered one jeans pant of blue colour and one white shirt from his house which were kept in a polythene and thereafter in a cloth pulunda sealed with the seal of SK and seized vide seizure memo ExPW24/S. The exhibits were sent to FSL on 8.3.11, 8.4.2011, 15.4.2011 and 20.4.2011. He collected the post mortem report, photographs, certificate u/s 65B of Evidence Act for authenticating the call details, FSL biological report ExPW26/F and serological report ExPW26/G and recorded the statements of witnesses during investigation.
In cross examination he deposed that he reached at the spot at about 9.15 am and within 1015 minutes the dead body was removed to BJRM Hospital. He further stated that crime team officials remained till 10.15 am. The empty cartridge was found at State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 28 of 54 29 the spot after long time of their reaching at the spot. But he cannot tell the exact time. The empty cartridge was recovered by either SI Ravinder or SI Yashpal. No visible particle of sand was found on the empty cartridge case. He did not tell to the crime team officials about the recovery of empty cartridge case as they were already present at the spot. The empty cartridge was found on the ground. No photograph of the empty cartridge was taken. On 7.3.11 one person namely Dharmvir had told that accused might be involved in the case. Later on he checked the call details and found the conversation between the phone of deceased and accused. On 8.3.11 he received CDR through email. He stated that accused was arrested on secret information. The informer had not told the area where the accused could be found. The public persons did not agree to join the investigation despite asking. No public person joined at the time of recovery of pistol, armed license and car despite asking. He denied the suggestion that the empty cartridge was planted in this case in order to create a false evidence against the accused or that the accused was called in the police station on 9.3.11 and was directed to bring his license pistol, arms license and his car.
State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 29 of 54 30
5. The statement of accused u/s 313 Code of Criminal Procedure, 1973 was recorded in which all the incriminating evidence put to the accused and he denied the same and stated that he was falsely implicated in the case and he is innocent. However, he stated that four calls were made between him and deceased on 6.3.11. He further stated that the deceased was known to him for last considerable time. Deceased called him on 6.3.11 on his mobile two times and sought financial help as he was in financial crisis and his family was not extending any help to him. Thereafter he (accused) made two calls to him to inform that he was not in a financial condition to help the deceased.
6. I have heard the Ld. APP for the State and Shri Pradeep Rana, Advocate for accused and perused the record. Ld. APP for the State has argued that the deceased was murdered by the accused by firing from his pistol. Further the recovery of empty cartridge from the spot proved that accused has murdered the deceased Surender. He further argued that the call details and evidence of other witnesses proved that the accused was in contact with the deceased on the day of incident. Though witnesses who had seen the deceased with the accused have turned hostile. But the State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 30 of 54 31 circumstances suggest that they have been won over by the accused. Hence accused cannot be given benefit of their statements. Therefore, offence against the accused is proved beyond reasonable doubt.
On the other hand, Ld. Defence counsel has argued that prosecution has failed to prove the guilt of the accused beyond reasonable doubt as the PWs who allegedly seen the deceased with the accused have not supported the case of the prosecution. Further from the testimonies of police officials it is proved that same is full of contradictions. Recovery of empty cartridge is doubtful which is the only evidence against the accused. Hence he is entitled to be acquitted.
7. Section 300 IPC deals with murder. It reads as under :
300. Murder : Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death; or 2ndly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly--If it is done with the intention of causing State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 31 of 54 32 bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1....
Exception 2....
Exception 3....
Exception 4....
Exception 5....
In section 300 IPC, the definition of culpable homicide appears in an expanded form. Each of the four clauses requires that the act which causes death should be done intentionally, or with the knowledge or means of knowing that death is a natural consequence of the act. An offence cannot amount to murder unless it falls within the definition of culpable homicide; for this section merely points out the cases in which culpable homicide is murder. Putting it shortly, all acts of killing done:
i) with the intention to kill, or
ii) to inflict bodily injury likely to cause death, or State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 32 of 54 33
iii)with the knowledge that death must be the most probable result, are prima facie murder, while those committed with the knowledge that death will be a likely result are culpable homicide not amounting to murder.
8. Section 302 IPC deals with punishment for murder. It reads as under :
302. Punishment for Murder : Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.
9. From the evidence as discussed above it is evident that the case of the prosecution is not based on direct evidence of eye witnesses but based on the circumstantial evidence.
Whether the death is suicidal or homicidal
10. It is the case of the prosecution that deceased is murdered by the accused by firing upon him. In order to prove the same prosecution has relied upon the PM Report ExPW13/A which proved that death of deceased was caused with bullet injury on his temple. On the other hand Ld. Defence counsel has argued that from the evidence led by the prosecution it is apparent that it is the State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 33 of 54 34 case of suicide than murder. Ld. Counsel for accused has drawn my attention towards the testimony of PW13 Dr. Bhim Singh who conducted the post mortem of the deceased. On perusal of the post mortem report ExPW13/A, I found following injuries:
1. Fire arm entry wound, oval shaped 1 cm X 0.8 cmXcavity deep, over right temporal area, situated 3 cm above and medial to right ear and 5 cm from outer canthus of right eye, margins inverted, with surrounding abrasion collar around the wound, there was presence of burning, singing of hairs, blackening and tattooing around the wound.
2. Fire arm exit wound, stellet shaped left temporal area, 1.5 cm X 0.7 cm X cavity deep situated 2.8 cm from left ear and 7 cm from outer canthus of left eye.
PW13 has opined that the death is due to combined effect of craniocerebral damage and hemorrhagic shock upon fire arm injury via injury no.1 and 2. thus it is not disputed fact that death of the deceased has been caused by the fire arm. Ld. Defence counsel submitted that forensic report ExPW15/A proved that GSR particles are found in ExS1 i.e swab taken from the entry side of the wound and finding of GSR particles proved that the deceased has State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 34 of 54 35 been fired from contact range or close range which is possible in a case of suicide. Further he has drawn my attention to the testimony of PW13 who has stated in his cross examination that in a case of suicidal firing by gun shot the right handed person commits suicide by gun shot, the target would be right temporal region by close or contact range. The presence of abrasion collar around wound remained regular as in the present case. He further argued that Dr. Bhim Singh has stated in his cross examination that the presence of abrasion collar around wound was regular and if IO had asked his opinion after FSL Report he would have given opinion as suicidal death. Hence testimony of PW13 proved that death was not homicidal but suicidal.
I have considered the arguments and gone through the record. The dead body of deceased was found in his plot which is a secluded place and far away from his office or residence. As evident from the testimony of PW3 Virender the deceased was alone in his office till 6 pm when he left the office. Further the testimony of PW5 Dharambir Singh proved that till 9.00 pm the deceased was with some other person on his plot. Thereafter something has happened and he was found dead on next morning. No weapon has been State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 35 of 54 36 recovered from the site where dead body of the deceased was recovered. If the deceased has committed suicide then the weapon used in suicide would have been found at the spot.
In Edition, Parikh's Textbook of Medical Jurisprudence and Toxicology, 1998 Edition on page no.301 symptoms of suicides/homicide by bullet has been given as under : Suicide Homicide/Accident
1.Victim Generally adult male Any
2.Site Side of temple, centre of the Any part of the body forehead, roof of mouth, under the chin, and front and left side of chest and occasionally epigastrium
3.Distance Contact or close shot Usually distinct shot but occasionally close.
4.Direction Consistent with self firing Any
5.Number Generally one. Hesitation Any of shots shots may have been fired at random State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 36 of 54 37
6.Cadaveric Weapon may be firmly Weapon may be missing grasped by cadaveric spasm, or not found, and no which is difficult to be simulated Cadavric spasm by a murderer to give an impression suicide.
7.Scene No evidence of disorder Evidence of disorder and
of crime generally struggle may be there.
11. Thus from the perusal of the evidence, may be injuries of the deceased suggest that injury has been caused from close range firing and could be possible in a suicide case but merely on the basis of death by close range or contact range firing it cannot be said that it was the case of suicide, in homicidal case also death can be caused from contact range or close range. The missing of weapon of offence is a strong circumstance which ruled out suicide.
12. If the offence has taken at a lonely place and at that time when eye witnesses are not possible to be found in such State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 37 of 54 38 circumstances it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence is insisted upon by the courts. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. It is settled law that conviction can be based solely on the circumstantial evidence but where a case rest squarely on the circumstantial evidence, it is the duty of the prosecution to lead such evidence that inference of guilty can be justified and circumstances found to be incompatible with the innocence of the accused or guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be closely connected with the principal fact sought to be inferred from those circumstances. Where the case depends upon the conclusions drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
In Sharad Birdhichand Sards V State of Maharashtra, AIR 1984 SC 1622. It was held by the Hon'ble State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 38 of 54 39 Supreme Court that while dealing with circumstantial evidence onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are :
i) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must' or 'should' and not 'may be' established;
ii) the facts so established should be consistent 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;
iii)the circumstances should be of a conclusive nature and tendency;
iv)they should exclude every possible hypothesis except the one to be proved; and
v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
13. From the perusal of prosecution case, it is evident that it State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 39 of 54 40 is based upon the following circumstances :
1. Ocular statement/evidence of the witnesses who has last seen the accused with the deceased.
2. The call details record of mobile phone nos. 9811599573 and 93122662020 of the accused as well as of deceased to prove that last time deceased had conversation with the accused.
3. To prove the motive the prosecution has alleged that the deceased has borrowed the money from the accused which he failed to pay and due to which the accused committed the murder.
4. The recovery of empty cartridge from the spot which has alleged fired from the liscence pistol of the accused.
Last seen Evidence
14. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any other person than the accused being the author of the crime becomes impossible. It was held in the case of State of U.P. V Satish, AIR 2005 SC 1000(1) as under:
The last seen theory comes into play where the State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 40 of 54 41 timegap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.
15. In the PM Report ExPW13/A nothing has been mentioned about the time of death but it is mentioned that injury is fresh in duration. Hence it can be said that there was not much time between the death and post mortem. The prosecution has based its case on the last seen evidence to prove the guilt of the accused and examined PW3 Virender, PW4 Satpal and PW5 Dharambir Singh to prove that accused was with the deceased prior to his death.
PW3 Virender who was the employee of the shop of the deceased had stated that on 6.3.11 at about 6 pm he left the office State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 41 of 54 42 and the deceased was present at that time in the office. He had not supported the case of the prosecution that deceased had told him that he would take dinner at Sardar dhaba after closing the office despite cross examination by Ld. APP. Though he admitted that he saw the motorcycle of Surender parked at petrol pump but he denied the suggestion that same was seized by the police in his presence at his instance. Hence this witness only proved that the deceased was in his office at Kundli till 6 pm on 6.3.11.
PW4 Satpal, owner of Punjabi Dhaba at GT Karnal Road near Singhu Border has also not supported the case of the prosecution and was declared hostile but despite this nothing has come out in favour of prosecution as he stated that he did not know deceased Surender. He was also shown the photograph of deceased but he denied the suggestion that the deceased used to visit his dhaba frequently and on 6.3.11 at about 8/8.30 pm one red colour Skoda Car having antena on its roof came at his dhaba in which accused was sitting and after some time one motorcycle DL8SNC5508 driven by the deceased came and thereafter deceased boarded the Skoda car saying that he would come soon and asked him to see his motorcycle. Thus this witness had not State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 42 of 54 43 supported the case of the prosecution at all.
16. Third witness of last seen was PW5 Dharambir Singh who as per the prosecution allegedly seen the accused and the deceased at the spot at about 9/9.15 pm on 6.3.11. PW5 stated that on that day he had gone for natural call at his gher and entered in the latrine/toilet to ease himself which was made by deceased Surender by the side of road. He kept the door of latrine open and was easing himself. One red colour car having antenna came there and two persons got down and entered in the plot of Surender. But he can recognize only the voice of Surender and could not recognized the voice of other person with him. Therefore he was also declared hostile. In cross examination he admitted that his statement was recorded by the police but stated that same was not read over to him. He denied the suggestion that other person with his cousin brother Surender was the accused Jitender. He also denied the suggestion that he had seen the accused earlier also. He also denied the suggestion that accused was the other person to whom he has seen on 6.3.11. Thus this witness is also of no help to the prosecution as he do not prove that accused and deceased were together on the day of incident. I do not found force in the State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 43 of 54 44 contention of Ld. APP that since witness has deposed that deceased had come in red colour Skoda car and accused also have red colour car, therefore, it is proved that accused had come with the deceased. There may be hundreds of red colour Skoda cars. Hence I am of the opinion that the prosecution has failed to prove that the deceased was with the accused on the day of incident at about 9 pm or 9.15 pm. Call Details
17. The prosecution has also relied upon the call details record of accused and the deceased to prove that both accused and deceased were in contact and last time accused had made call to the deceased. It is not disputed by the Ld. Counsel for accused that mobile phone no.9312662620 was used by the deceased and mobile no.9811599573 is used by the accused. Neither he has disputed that accused had not talk with the deceased from his mobile phone. From the call details ExPW19/C of the mobile phone of deceased it is evident that the deceased had made first call to the mobile phone of accused at about 2.26.19 pm and thereafter he made second call at about 6.27.58 pm, the third call made by the accused to the deceased at about 7.33.41 and the fourth call at about 7.43.46 pm. State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 44 of 54 45 Further on perusal of call details, it is evident that during that period mobile phone of deceased was on roaming and was in the area of Kundli. The prosecution has not produced the cell ID of Tower of accused phone to prove the location of the accused. From the call details it is proved that accused had conversation with the deceased but it is not proved that both were present at the same site rather call details ExPW19/C of deceased phone proved that deceased was on roaming at Kundli (Haryana) and accused was not on roaming which means that the accused was present in Delhi Circle as his phone is registered in Delhi Circle which is proved from customer agreement ExPW21/A of accused in which his address has been shown as 44/1 ground floor, Shivaji Market, Pitampura. Hence in my view nothing is proved from the call details against the accused except that the deceased and accused had conversation with each other.
Recovery of empty cartridge
18. Ld. APP for the State has strongly relied upon the recovery of empty cartridge from the spot. He has argued that the FSL Report ExPW15/A proved that said empty cartridge was fired from the licensed pistol of the accused. Hence it is proved beyond State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 45 of 54 46 reasonable doubt that death of deceased was caused from the cartridge fired from the pistol of accused. On the other hand Ld. Defence counsel argued that similarity of firing pin marks is not the conclusive test to prove that test firing cartridge and recovered cartridge has been fired from the same pistol. He has drawn my attention towards the testimony of PW13 Dr. Bhim Singh who has conducted the post mortem on the dead body of the deceased. In cross examination PW5 opined that firing pin mark and breach face mark are not unique and can be matched by many weapons and rifling mark is the unique mark which is found only on the bullet/lead. But I am not agree with the said finding. Dr. Bhim Singh though may have studied M.D. Forensic Medicine and was teaching wound ballistic to the students but he is not a ballistic expert. PW15 R.Suresh is Ballistic Expert. No suggestion has been given to PW15 R.Suresh SSO (Ballistic) that firing pin marks are not unique, similar mark can be caused on cartridge by various weapons. Therefore I have no ground to disbelieve the testimony of PW15 that empty cartridge Ex20/1 was fired from the pistol ExPW24/Article 2 licensee pistol of accused.
However I am agree with the contention of the Ld. State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 46 of 54 47 Counsel for the accused that recovery of empty fired cartridge ExPW20/1 is doubtful. There are as many versions of the witnesses regarding the recovery of empty cartridge as there are number of witnesses in whose presence alleged cartridge was recovered. PW20 then SI Ravinder stated that empty cartridge was recovered at a distance of about 10 feet from the dead body towards the banyan tree side and SHO/IO had first seen the cartridge and lifted the same in his presence. Whereas PW26 Inspector Satish Dahiya SHO/IO stated that empty cartridge was searched by SI Ravinder or SI Yashpal. Whereas PW24 SI Yaspal, in his cross examination, has stated that empty cartridge was found by SI Vishesh, whereas PW14 SI Vishesh Kumar who is member of crime team, has not stated in his examination that he has found any empty cartridge at the spot which he had shown to SI Yashpal or IO Inspector Satish Kumar. In crime team report ExPW14/A also nothing is mentioned about the recovery of empty cartridge. There is contradiction regarding the timing of recovery of empty cartridge. Ct. Satyawan stated that he removed the dead body at about 9.05/9.10 am and cartridge was recovered in his presence. It means as per his version that cartridge was recovered prior to 9.05/9.10 am. Whereas as per State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 47 of 54 48 PW26 Inspector Satish he did not know the exact time of recovery of cartridge but same was found after long time. He has reached at the spot at about 9 am and body was removed at 9.05 am i.e immediately within five minutes. That five minutes cannot be considered as long time. PW14 SI Vishesh Kumar, Crime Team Incharge who remained at spot till 10.15 as per the version of IO did not state in his testimony that empty cartridge was recovered at the spot. Neither in his report he mentioned about the recovery of empty cartridge nor in any of the photograph taken at the spot empty cartridge has been shown. These contradictions are material contradictions and cannot set aside merely by saying that contradictions are bound to happened. Recovery of empty cartridge is very important piece of evidence. Recovery witness who are police officials of the rank of Inspector or Sub Inspector are not layman. They do not know who had recovered the empty cartridge. The contradictions in their statements cannot be ignored as same are material. Therefore, I am of the view that there are enough doubts about the recovery of empty cartridge at the spot. It cannot be ruled out that same has been planted to strengthen the case of the prosecution and due to said reason they are not able to explain State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 48 of 54 49 by whom or at what time the cartridge has been recovered.
MOTIVE
19. In the case of murder motive has very vital role to play.
As people do not act wholly without motive. The failure to discover the motive of an offence does not signify its nonexistence. The existence of motive assumes 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.
In case State of U.P. V Babu Ram, 2000 (11) AD 285 it was observed as under : Motive is a relevant factor in all criminal cases whether based on the testimony of eye witnesses or circumstantial evidence. The question in this regard is whether a prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. No doubt, if the prosecution proves the existence of a motive it would be well and good for it, particularly in a case depending on circumstantial evidence, for, such motive could then State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 49 of 54 50 be counted as one of the circumstances. However, it cannot be forgotten that it is generally a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the Investigating Officer would have succeeded in knowing it through interrogation that cannot be put in evidence by them due to the ban imposed by law.
No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental imposition of an offender towards the person whom he offered.
As per prosecution case, the motive of the murder of the deceased by accused was that the deceased had borrowed some money from the accused which the deceased had not paid to the State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 50 of 54 51 accused. On perusal of disclosure statement ExPW24/N it is reflected that the deceased had borrowed Rs.5 lacs from the accused as deceased had suffered considerable loss in his business. On 6.3.11 i.e on the day of incident the deceased called him from his phone to reach at Sardar ka dhaba near HP Petrol Pump and thereafter he (accused) also made a call to the deceased and asked when he would give the money and on this there was altercation and deceased abused him. Thereafter he loaded his license pistol and reached at Sardar ka dhaba at petrol pump GTK Road, Singhu Border where deceased came on his motorcycle. Thereafter both went in a car after leaving the motorcycle at the said dhaba and reached at the plot of deceased where he demanded money from the deceased but deceased stated which money and what proof he has that he had given money to him. Thereafter he fired on deceased which caused the death of the deceased. There is no other evidence against the accused except the said disclosure statement. As per Section 27 of the Indian Evidence Act only part of confession statement can be used against the accused which lead to discovery of any fact. Section 27 reproduce as under : S.27 How much of information received from State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 51 of 54 52 accused may be proved:--
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.
The scope of the Section 27 was explained by the Privy Council in Pulukuri Kottaya V Emperor, AIR 1947 PC 67. My Lordship has observed that "Section 27 which is not artistically worded provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 52 of 54 53 given in evidence. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as, a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is accused."
In view of aforesaid facts, the disclosure statement ExPW24/N of the accused cannot be read against the accused. As stated above no witness has deposed that any money was borrowed by deceased from the accused. In such circumstances, I am of the view that the prosecution has failed to prove that the deceased had borrowed the money from the accused. Hence prosecution has failed to prove the motive of the crime.
20. In view of aforesaid facts and circumstances, I held that the prosecution has neither able to prove the last seen theory nor motive behind the murder. The recovery of empty cartridge is also doubtful, therefore benefit of doubt goes to the accused. Merely from the fact that the deceased had last time talk to the accused on the phone does not prove that the accused had committed the murder of the deceased. Hence prosecution has failed to prove complete chain of circumstantial evidence which could lead to State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 53 of 54 54 conclusion that it is only the accused and no other person has committed the murder of deceased. Hence, I give the benefit of doubt to the accused and acquit him from the charge u/s 302 IPC.
21. As far as offence u/s 27 Arms Act is concerned, as stated above, it is not proved that the empty cartridge was recovered from the spot. There is no other evidence which proved that accused had misused his license gun. Hence the offence u/s 27 Arms Act is also not proved against the accused. Hence I acquit the accused for the offence u/s 27 Arms Act. The accused is in Judicial Custody, he be released forthwith, if not required in any other case. The articles which were seized during his personal search, be released to him. However, the accused is directed to furnish personal bond in the sum of Rs.25,000/ in compliance of provisions of Section 437 (A) Code of Criminal Procedure, 1973. with one surety of like amount within seven days from today. File be consigned to record room.
Announced in the open court (SANJEEV KUMAR) On 2.04.2012 ASJ01, Outer, Rohini, Delhi. State V Jitender Sharma FIR No.100/11 PS:Narela Page No. 54 of 54