Delhi District Court
State vs Somdutt @ Somi on 31 October, 2023
IN THE COURT OF SHRI VIPIN KHARB:
ADDL. SESSIONS JUDGE-04: SOUTH-WEST DISTRICT,
DWARKA COURTS: NEW DELHI
SC No. 440560/2016
CNR No. DLSW01-000636-2014
State Vs. (1) Somdutt @ Somi
S/o Sh. Azad Singh
R/o H. No. 218, Pachha Panna, Nangli
Sakrawati, Najafgarh, Delhi.
(2) Sushil Dagar
S/o Sh. Azad Singh
C/o House of Sulli, Near Chopal,
R/o RZ-22, Hanuman Mandir Road
Matiala, Delhi
(3) Anil Kumar
S/o Sh. Mahavir Parshad
R/o 47-A, Lokesh Park Extension,
Bahadurgarh Road, Najafgarh, Delhi.
FIR No. : 787/14
Police Station : Najafgarh
Under Sections : 302/177/34 IPC & 27 Arms Act
Date of committal to Sessions Court : 08.12.14
Date on which judgment was reserved : 31.10.23
Date on which Judgment pronounced : 31.10.23
FIR No. 787/14 State Vs. Somdutt & Ors Page 1 of49
JUDGMENT
BRIEF FACTS OF THE CASE:
1. On receiving information at 10:53 p.m. at PS Najafgarh vide DD No.74B dated 04.09.2014 that one person has shot himself, SI Ashok along-
with Ct. Amarpal and Ct. Sandeep reached at the spot i.e. Plot No.9, Ranaji Enclave, Nangli Sakrawati, Najafgarh, New Delhi where on one side of the plot, there is office of Shree Sai Properties and on the other side there is lawn type vacant space. Dead body of Vikrant Kumar Garg @ vicky was lying on the grass in the lawn and blood was coming out from the head. There was a table and four chairs near the body and a bottle of liquor and soda was lying under the table. A revolver was lying at some distance from the body and there was blood at two different places on the grass. On cursory examination of the body, wound marks were found on both sides of the head. Crime team was called at the spot and the spot was inspected and photographs were taken. Plot owner Somdutt @ Somi told that revolver no. T2929 lying in the grass is his licensed revolver. On checking, it was found containing 1 live and 2 empty cartridges, and K.F32SBWL was written on it. No eye-witness was found there. Ct. Anil was left at the spot to protect the scene of crime and Ct. Sandeep Kumar took the dead body to RTRM hospital, where doctor declared him brought dead vide MLC No. 4871/14. On the basis of DD No. 74B and MLC, FIR was registered through Ct. Sandeep and investigation was marked to Insp. Sanjay Kumar.
FIR No. 787/14 State Vs. Somdutt & Ors Page 2 of49
2. During investigation, site plan of crime scene was prepared. The weapon of offence i.e. revolver bearing no. T2929, two used empty cartridges, one live cartridge, blood soaked earth & earth control, used glasses, wine and soda bottles etc which were found at the spot were seized. Witnesses were examined and it revealed that four persons namely deceased Vikrant Kumar Garg @ Vicky, accused Somdutt @ Somi, accused Sushil and accused Anil were consuming liquor while sitting in the lawn of Shri Sai Properties and Karan Singh (servant of Somdutt) was in the kitchen. Karan Singh on listening the sound of two gun shots came out of the kitchen and saw Vikrant Kumar Garg lying in the lawn in the pool of blood and the revolver was in the hand of Somdutt. Then Somdutt after having discussion with Sushil Dagar and Anil Kumar made PCR call from his mobile no.9818421407 that a person has shot himself. Deceased Vikrant Kumar Garg was the partner with the accused Somdutt in the property business and there was some dispute between them regarding transaction of money. Weapon of offence i.e. revolver is the licensed revolver of accused Somdutt @ Somi and arms license of the same has been taken into police possession. After interrogation, accused Somdutt @ Somi, Sushil Dagar and Anil Kumar were arrested on 05.09.2014.
3. All three accused disclosed that when they were consuming liquor and an altercation took place between deceased Vikrant Kumar Garg and Somdutt @ Somi regarding some property transaction and accused persons FIR No. 787/14 State Vs. Somdutt & Ors Page 3 of49 Sushil Dagar and Anil Kumar caught hold of the deceased and accused Somdutt fired two bullets on the body of deceased from his licensed revolver. It was light raining at the spot when police reached there on the receipt of PCR call but the fired bullets / lead could not be recovered from the spot. Hand swabs of both the accused Somdutt and deceased Vikrant Kumar Garg @ vicky were taken. Post mortem of deceased Vikrant Kumar Garg @ Vicky was conducted at RTRM hospital vide PMR No. 226/14 on 06.09.2014 and cause of death was opined due to "cranio-cerebral damage, consequent to the injuries. All the injuries are ante mortem and ecentand caused by ammunition discharge from a firearm. Injury no.1 is sufficient to cause death in ordinary course of nature". As per subsequent opinion, the autopsy surgeon opined that, "that bullet is fired from close range and injuries were caused by ammunition discharge from a rifled firearm". The scaled site plan of Scene of Crime was prepared. The exhibits of the case have been deposited in FSL, Rohini, Delhi and CFSL, Chandigarh for examination and expert opinion. The Arms License No. SWNG/7/2013/4 of the accused Somdutt was verified from Licensing Unit, Delhi and Sec.27 Arms Act and Sec.177 IPC was also added as accused Somdutt has furnished false information of suicide by deceased to PCR and after investigation charge-sheet was filed in the court.
4. After filing of chargesheet, complete set of documents were supplied to the accused persons and case was committed to the sessions court.
FIR No. 787/14 State Vs. Somdutt & Ors Page 4 of49
5. After hearing arguments, charge was framed against accused persons Somdutt @ Somi, Sushil Dagar and Anil Kumar under Section 302/34 IPC and 177/34 IPC and separate charge u/s. 30 Arms Act was framed against accused Somdutt to which all accused persons pleaded "Not Guilty" and claimed trial. Accordingly, the case was fixed for prosecution evidence.
6. To prove its case prosecution examined as many as 26 witnesses.
7. PW-1 Karan Singh deposed that on 04.09.2014 he joined his duty in the office of Somi and his salary was Rs.5500/- per month. There were four persons but he does not know their names and could not identify them as it was the first day of his duty. They were eating and drinking while talking to each other.
8. After seeking permission from court, PW-1 was cross-examined by Ld. Addl. PP for the State as he resiled from his statement recorded u/s. 161 Cr.PC. In cross-examination, he stated that Police made inquiries from him and recorded his statement. He admits that at about 8.30 PM on 4.9.2014 Som Dutt alongwith his partner Vicky was consuming liquor in the garden of Sai Properties and he served glass and eatables to them. Thereafter two other persons joined them, whose name he does not know and he served glasses to them also. He was cleaning utensils outside the kitchen and heard sound of only one fire and saw Vicky falling down when he was standing outside the kitchen. At that time Somi @ Somdutt was inside the kitchen FIR No. 787/14 State Vs. Somdutt & Ors Page 5 of49 when Vicky shot himself. He denied the suggestion that he heard sound of two fire and failed to identify accused Sushil Dagar and Anil Kumar in the court and denied all the suggestions given to him by Ld. Addl. PP for State.
9. In cross-examination by ld counsel for accused Som Dutt, he stated that before going to the toilet Somi Babuji first gone to his office and then from his office to toilet. When Somi Babuji had gone to the toilet at that time Vicky went inside the office and came out from the office of Somdutt carrying a weapon in his hand from which he shot himself in the garden of office. The other two persons were standing near the gate, which is at a dis- tance from the place where Vicky shot himself. When Vicky came out from the office of Som Dutt he was badly drunk and while carrying weapon in his hand he was saying he will demonstrate how to make a shot from the weapon and thereafter after aiming towards his head he fired a shot, which hit on his head near his right side ear. After hearing the noise of firearm Somi Babuji immediately came out of the toilet while tieing knot of his pa- jama and other two persons also rushed towards Vicky from main gate. Af- ter coming out from the toilet, after finding Vicky lying on the ground in the pool of blood Somi Babuji called the police as well as informed some per- sons on telephone. Prior to making calls at 100 number Somi came near Vicky and touched him and checked his body to ascertain condition of Vicky and thereafter immediately called the police. Police came at the spot and took him to the police station and recorded his statement. He told the FIR No. 787/14 State Vs. Somdutt & Ors Page 6 of49 above said facts to the police at that time when he was interrogated but he was subjected to beatings by the police.
10. PW-2 Mukesh Kumar is the brother of deceased Vicky @ Vikrant Kumar Garg and he deposed that his brother was having a shop of iron and also used to do business of property with accused Som Dutt @ Somi for the last 5-6 years and huge amount was invested by his brother in the business with accused Som Dutt. In the morning of 04.09.2014, his brother informed him that he will go to the office of Som Dutt in connection with property business and in the night, he came to know through his brother that Vicky had expired. He do not know who is responsible for the death of Vicky.
11. PW-2 was cross-examined by Ld. Addl. PP for the State as he resiled from his previous statement and in his cross-examination by Ld. Addl. PP for State, he denied all the suggestions given to him.
12. In his cross-examination by counsel for accused Somdutt, he admit- ted that his deceased brother had cordial and family relations with accused Somdutt and he has no grievance or grudge against accused Somdutt.
13. PW-3 Sevanti Pal is the brother of deceased Vicky @ Vikrant Kumar Garg and he deposed that his brother was having a shop of iron and also used to do business of property with accused Som Dutt @ Somi for the last 5-6 years and huge amount was invested by his brother in the business with FIR No. 787/14 State Vs. Somdutt & Ors Page 7 of49 accused Som Dutt. On 4.9.2014 at about 11-11.15 PM, he came to know through his maternal uncle that incident had occurred at the office of Somi and he went to the office of Somi and found body of his brother lying in the pool of blood and police persons were doing their proceedings. Som Dutt @Somi along with Sushil Dagar and Anil Kumar were present there. All three were in the custody of police. Police inquired from him about his brother. Dead body of his brother was shifted to hospital. Other public per- sons were also present there. In the mortuary of RTRM Hospital he identi- fied the dead body of his brother and proved identification memo as Ex.PW-3/A and after postmortem dead body was handed over to him vide handing over memo Ex.PW-3/B. Accused Som Dutt were having cordial re- lations with deceased Vicky.
14. PW-3 was cross-examined by Ld. APP for the state as he resiled from his previous statement. In cross-examination by ld. Addl. PP for State, he denied all the suggestions given to him.
15. In his cross-examination by counsel for accused Somdutt, he admit- ted that his deceased brother had cordial and family relations with accused Somdutt and he has no grievance or grudge against accused Somdutt.
16. PW-4 Constable Sandeep deposed that on 4.9.2014 on receipt of DD no 74-B, he along with SI Ashok Kumar reached at Sai Properties, Ranaji Enclave, where a dead body was lying in the lawn and caller Somi was also FIR No. 787/14 State Vs. Somdutt & Ors Page 8 of49 present there. IO SI Ashok Kumar called the crime team who inspected the spot and photographs were taken. Thereafter SI Ashok Kumar took the search of cloths worn by the deceased and seized the same vide seizure memo EX PW4/A. IO also seized Rs.10250/-, one silver colour wrist watch make casio, one golden colour chain having green stone locket, two golden colour ring, one mobile black colour screen broken and one white colour mobile. Thereafter he along with SI Ashok Kumar reached RTRM Hospital with dead body of deceased Vikrant where doctor declared him brought dead. SI Ashok Kumar prepared rukka for registration of the case and handed over the same to him and he got registered the case and returned to the spot and handed over copy of the FIR and rukka to the IO. Thereafter on the directions of IO, he searched for the bullet at the spot but could not be found the same. IO recorded his statement.
17. In cross-examination by Ld counsel for accused Somdutt, he stated that Police persons from PCR had already reached at the spot and he did not try to ascertain at what time those police persons reached at the spot and 4- 5 persons from public were also present there. He do not remember whether the statement of any of public persons or any other police persons was recorded by the IO. When they left the spot, crime team had already reached there. When they initially left the spot along with dead body, Senior officers and SHO Rajbir Malik had already reached there. He denied all the suggestions given to him by the counsel for accused.
FIR No. 787/14 State Vs. Somdutt & Ors Page 9 of49
18. PW-5 HC Rakesh Chandra was the duty officer who proved FIR as Ex.PW-5/A and endorsement made on it as Ex.PW-5/B.
19. PW-6 SI Khazan Singh was Incharge of Crime Team, South-West District and deposed that on 9.4.2014 he received a message from control room at 11.10 PM regarding the incident of firing at RZ-9 Nangli Sakranti and he along with his team reached there at about 11.40 PM. SI Ashok Ku- mar was present there and a dead body of Vikrant @ Vicky was found lying in lawn. HC Ashok, photographer of crime team, took photographs at his in- stance. He inspected the spot of incident minutely and prepared my report Ex PW 6/A. He submitted his report to SI Ashok Kumar. ASI Jitender tried to lift the fingerprints at the spot but in vain as due to raining he could not lift the fingerprints from the spot. IO recorded his statement.
20. In cross-examination by Ld counsel for accused, he stated that when he reached at the spot, IO, SHO, PCR staff, ACP and other police officials about 25 in number were present there and 4-5 Public persons were also there. Blood stains were lying at two places. Accused was having entry wound on the right side and exist wound on the left side. In his presence IO did not record statement of any witness. He denied all the suggestions given to him.
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21. PW-7 HC Ashok Kumar was member of crime team and took the photographs of the spot and proved them as Ex.PW-7/P1 to Ex.PW-7/P20 and their negatives as Ex.PW-7/N1 to Ex.PW-7/N20.
22. PW-8 Sh. Ram Chander was the uncle of deceased Vicky who identi- fied the dead body in the mortuary vide identification memo Ex.PW-8/A.
23. In his cross-examination by counsel for accused Somdutt @ Somi, PW-8 deposed that deceased did not disclose about any dispute between him and accused Somi and relation between them were cordial.
24. PW-9 Sh. Surender was the photographer who conducted the videog- raphy of postmortem examination at mortuary of RTRM hospital and proved it as Ex.PW-9/A.
25. PW-10 Dr. Arunima from RTRM hospital proved the MLC of de- ceased as Ex.PW-10/A and MLC of accused Som Dutt as Ex.PW-10/B. She also deposed that during medical examination hand swabs, blood samples and clothes of the accused Somdutt were sealed and handed over to SI Ashok Kumar.
26. PW-11 W/Ct. Parmita deposed that on the intervening night of 04/05.09.2014, she was posted in CPCR at PHQ and was on duty from 8:00 p.m. to 8:00 a.m. being Channel Operator at Channel No.116 of Central Po-
FIR No. 787/14 State Vs. Somdutt & Ors Page 11 of49 lice Control Room. On 04.09.2014 at about 10:50 PM, she received a call from one Som Dutt from mobile no. 9818421407, who informed that one person had inflicted himself a bullet injury at Nangli Sakrawati. Thereupon, the said PCR call was forwarded to the concerned Console Operator for necessary action. On 09.09.2014, Insp. Sanjay Kumar from PS Najafgarh examined her and recorded her statement in this regard. She proved the con- cerned computer generated PCR form pertaining to the said information as Ex.PW-11/A
27. In cross-examination by counsels for accused persons, she admitted that the contents vide portion X-1 to X-2 mentioned in Ex.PW-11/A were given by the police officials who went at the spot after receiving the infor- mation and the same are recorded by the concerned Console Operator.
28. PW-12 Dr. Parvinder Singh, Specialist Forensic Medicine, RTRM hospital proved the application for conducting postmortem examination of deceased Vikrant Kumar Garg @ Vicky as Ex.PW-12/A. He conducted the postmortem examination on the dead body and proved postmortem report as Ex.PW-12/B. He deposed that death is caused due to cranio-cerebral dam- age consequent to the injuries described in aforesaid PM report and caused by ammunition discharge from a fire arm. During postmortem examination viscera, blood sample, clothes, blood sample, swap from entry wound and control site, hand swap for gun powder residue were taken and all the ex- hibits were separately sealed with the seal of RTRM hospital and handed FIR No. 787/14 State Vs. Somdutt & Ors Page 12 of49 over to IO with his endorsement on the application Ex.PW-12/A. On 14.10.2014, an application moved by Insp. Sanjay Kumar seeking opinion about the range of fire and type of weapon from which range bullet was fired and same is Ex.PW-12/C and he gave his subsequent opinion which is Ex.PW-12/D.
29. In cross-examination by ld counsels for accused persons, he stated that he cannot say with certainty whether bullet injury was self inflicted or not. He denied the suggestion that the bullet injury was self inflicted and he deliberately, on the instructions of the IO, did not mention the same.
30. PW-13 ASI Jitender Prakash was the member of crime team and is Finger Print Proficient who deposed that on 04.09.2014, he inspected the spot and found one revolver, whisky bottle, four glasses and a soda bottle. He tried to find out the chance prints on the same but due to dazzling, no chance-prints could be detected and proved his report as Ex.PW-13/A.
31. PW-14 Ct. Naveen is the Draftsman who deposed that on 20.09.2014 he along-with IO went to Plot No.9, Ranaji Enclave, Nangli Sakrawati, Najafgarh, Delhi. He prepared rough notes of the spot and later on, on the basis of rough notes, he prepared scaled site plan and proved it as Ex.PW-
14/A.
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32. PW-15 Ct. Kuldeep collected the viscera of deceased vide RC No.184/27/14 and deposited it in FSL, Rohini vide receipt FSL No. 2014/CHE/7164 and handed over the acknowledgement to the MHC(M).
33. PW-16 Ms. Sweety Gupta is the wife of the deceased and deposed that on 11.10.2014 she got the car bearing registration no. DL-4CAV-7518 and other articles released on superdari and proved the superdarinama as Ex.PW-16/A, car as Ex.C1 and other articles as Ex.C2(colly).
34. PW-17 HC Dharamvir deposed that on 19.10.2014, he received two sealed parcels from MHC(M) and deposited them at CFSL Chandigarh on 20.10.2014 vide RC no. 206/21/14 and received the receipt of acknowl- edgement.
35. PW-18 HC Devender Kumar deposed that on 15.10.2014, he had re- ceived eight sealed parcels along-with forwarding letter and other requisite documents from MHC(M) and got them deposited at FSL, Rohini vide RC no. 203/21/14 and received the receipt of acknowledgement from the FSL.
36. PW-19 ASI Shiv Ram deposed that on 13.10.2014, he received sealed parcels from MHC(M) vide RC No.199/14 and got them deposited in FSL Rohini and handed over the copy of acknowledgement to the IO.
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37. PW-20 SI Ashok deposed that on 05.09.2014, he received a request for verification of armed license No. SWNG/7/2013/4 and revolver no.32929. He proved the request letter as Ex.PW-20/A and verification re- port as Ex.PW-20/B. Armed license was issued to Sh. Somdutt S/o Sh. Azad Singh. Notice was received from the local police for cancellation of the said licence.
38. PW-21 HC Sunil is the MHC(M) who deposed that on 05.09.2014 Insp. Sanjay Kumar deposited 11 sealed pullandas, out of which 10 pullan- das were sealed with the seal of SK and one pullanda was sealed with the seal of AKY, in the malkhana vide entry No.4002 of register No.19 and proved the same as Ex.PW-21/A. On 06.09.2014, Insp. Sanjay Kumar de- posited one pullanda containing viscera sealed with the seal of RTRM and our sealed pullandas sealed with the seal of RTRM along-with their sample seal in the malkhana vide entry no. 4002 of register no.19 and proved the same as Ex.PW-21/B. On 16.09.2014, Insp. Sanjay Kumar deposited sealed pullanda containing DVC in the malkhana vide entry no.4038 of register no.19 and proved the same as Ex.PW-21C running into 2 pages. On 07.10.2014, Ct. Rajender Prasad brought four live cartridges of .32 bore from OPL for test firing / ballistic opinion in FSL and deposited in the malkhana vide entry no.4099 of register no.19 and proved the same as Ex.PW-21/D. On 23.09.2014, one sealed viscera sealed with the seal of RTRM along-with sample seal was sent to FSL through Ct. Kuldeep vide FIR No. 787/14 State Vs. Somdutt & Ors Page 15 of49 RC No. 184/21/2014 and proved the RC as Ex.PW-21/E and acknowledge- ment of receipt handed over by Ct. Kuldeep as Ex.PW-21/F. On 13.10.2014, 10 sealed parcels and four live cartridges of .34 bore along-with sample seal were sent to FSL through HC Shiv Ram vide RC No.199/21/2014 and proved the same as Ex.PW-21/G and acknowledgement receipt as Ex.PW- 21/H. On 15.10.2014, 8 sealed parcels along-with sample seal were sent to FSL through Ct. Devender for depositing it in FSL vide RC No.203/21/2014 and proved the same as Ex.PW-21/J and acknowledgement receipt as Ex.PW-21/K. On 19.10.2014, 2 sealed parcels sealed with the seal of RTRM along-with sample seal were sent to CFSL, Chandigarh through Ct. Dharamvir vide RC No. 206/21/14 and proved the same as Ex.PW-21/L. Ct. Dharamvir handed over the copy of the RC endorsed by the CFSL offi- cial Ex.PW-21/L.
39. PW-22 Insp. Ashok Kumar who was the first IO of the case and he deposed that on 04.09.2014 on receipt of DD no.74B, he along-with Ct. Sandeep reached the spot and found accused Somdutt and other persons and one deadbody there and revolver was also lying near the deadbody. Insp. Sanjay Kundu, SHO and other police staff also reached at spot and crime team was called. The revolver was found to contain one live cartridge and two empty cartridges. He left Ct. Anoop at the spot for the safe custody of the spot and they went to RTRM hospital with dead body. He deposed about investigation conducted by him and proved rukka as PW-22/A, sketch of re- volver as Ex.PW-22/B, seizure memo of revolver as Ex.PW-22/C, seizure FIR No. 787/14 State Vs. Somdutt & Ors Page 16 of49 memo of earth control and blood stained earth control as Ex.PW-22/D, seizure memo of bottles of whisky, soda and empty glasses as Ex.PW-22/E, seizure memo of the Nisan Micra car no. DL-4CAV-7518 along-with RC and DL as Ex.PW-22/F, seizure memo of handwash of accused Somdutt and his clothes and blood samples as Ex.PW-22/G, arrest memos of accused Somdutt, Anil and Sushil as Ex.PW-22/H1, H2 and H3 respectively and per- sonal search memos of accused Somdutt, Anil and Sushil as Ex.PW-22/J1, J2, J3 respectively and disclosure statements of accused Somdutt, Anil and Sushil as Ex.PW-22/K1, K2, K3 respectively and seizure memo of armed li- cense as Ex.PW-22/L. He also proved seizure memo of viscera of deceased as Ex.PW-22/M and seizure memo of 7 sealed plastic containers along-with two seals given by surgeon of RTRM hospital as Ex.PW-22/N. He identi- fied armed license as Ex.PW-22/Article 1, empty bottles of whisky, soda and empty glasses as Ex.PW-22/ Article 2 (colly), revolver as Ex.PW- 22/Article 3, two empty cartridges as Ex.PW-22/Article 4 (colly), one live cartridge as Ex.PW-22/Article 5, car no. DL-4CAV-7518 as Ex.PW-22/Arti- cle 6.
40. In his cross-examination by counsel for the accused Sushil Dagar, he admitted that when he reached at the spot there were already 15-20 persons present including police officials. In his cross-examination by counsel for the accused Somdutt, he admitted that he has not recorded statement of any of those persons present at the spot. He cannot say whether the police per- sons who were already present at the spot were from mobile police van / FIR No. 787/14 State Vs. Somdutt & Ors Page 17 of49 PCR and he did not notice any PCR van there. He cannot tell the name or designation of the police officials who were already present there before his arrival and he did not inquire from them regarding for how long they are present at the spot. He cannot admit or deny if MPV ZVR - 77 and TGR - 47 were present at the spot at 22:55 i.e. 20 minutes before his arrival at the spot. He admitted that it is the duty of the PCR officers to report back to Central Control Room after reaching the spot with regard to the information received and in this case also PCR officials must have communicated to the control room. He is not aware that officials from MPV (PCR) informed that at the spot the caller Somdutt @ Somi is present and also bravo sahib and SI Ashok were present at the spot an the revolver was in the hand of Vicky, which was handed over to the crime team.
41. He further deposed in his cross-examination that seizure memo of re- volver was not prepared before he left for the hospital and same was pre- pared after he came back to the spot from the hospital. When he returned from the hospital at that time revolver was lying at the same place where it was lying earlier and he came back to the spot after 2 ½ hours. He remained at the spot for about 1 hour 15 minutes before leaving for the hospital. The sketch of the weapon was prepared in his presence by keeping the weapon on paper and then drawing was made. He has not put any polythene cover on the revolver and he cannot say whether the weapon was wiped before putting it on paper before making the sketch. In reply to the court question regarding whether there was any rain or droplets on the weapon or the paper FIR No. 787/14 State Vs. Somdutt & Ors Page 18 of49 at the time of making sketch, he stated that both weapon and papers on which sketch was prepared were dry and no water / drop fell on weapon or paper. He did not examine Ct. Anoop and IO also did not examine Ct. Anoop in his presence.
42. In his cross-examination, he denied the suggestion that during the in- quiry made from Karan Singh on that day only he came to know that Som- dutt had initially gone to his office and from there gone to the toilet and at that time Vicky went inside the office and came out from the office of Som- dutt carrying weapon in his hand and that deceased was not in his senses and was saying that he will demonstrate how to fire a shot from firearm and after aiming towards his head he fired a shot and after hearing the noise of firearm Somdutt came out from the toilet and found Vicky lying on ground in the pool of blood and after that Somdutt called at 100 number and some other person. He also denied the suggestion that Karan Singh was present at the spot when the first time he reached there and Karan Singh narrated the abovesaid facts to him to him as well as to Insp. Sanjay Kumar but no state- ment of Karan Singh was recorded at the first instance and after that Karan Singh was subjected to third degree method and after detaining him in po- lice station fabricated statement U/s. 161 Cr.PC of Karan Singh was recorded. He denied all the suggestion given to him.
43. PW-23 Insp. Sanjay Kumar was the second IO of the case who de- posed that on 04.09.2014 on receiving DD No.74B, he reached the spot FIR No. 787/14 State Vs. Somdutt & Ors Page 19 of49 where SI Ashok Kumar along-with two constables were already present there. One of the constable was Ct. Sandeep and name of other constable he did not remember. No eye witness was found at the spot. He deposed on the same lines as PW-22 / first IO Insp. Ashok Kumar. He proved rough site plan as Ex.PW-23/A. He prepared sketch of the revolver and recovered live and fired rounds recovered from the revolver. He specifically deposed that on 05.09.2014, he met with Karan, servant of the accused Somdutt @ Somi who was present at the spot when the incident happened. He recorded state- ment of Karan u/s. 161 Cr.PC.
44. In cross-examination by ld counsel for accused Somdutt, PW-23 stated that when he reached the spot, 20-25 persons were present there. Be- sides SI Ashok Kumar, few more police officials from PS Najafgarh were present there but he could not recollect their names except Ct. Sandeep and Ct. Anoop. The police officials from mobile police van / PCR were also present there. He noticed the PCR van but did not make any inquiry from the police officials of PCR / mobile police van and did not examine them nor recorded their statement u/s. 161 Cr.PC. He did not make any inquiry from them to ascertain since how long they were present at the spot. He cannot admit or deny if MPVZVR-77 and TGR reached at the spot at 22:55 i.e. 10:55 p.m. He has also annexed the copy of PCR form already Ex.PW- 11/A. He admits that as per the PCR Form Ex.PW-11/A, MPVZVR-77 reached at the spot at 22:55:01 on 04.09.2014 and TGR-47 reached at the spot at 22:55:05 on 04.09.2014. He admitted that it is the duty of PCR offi-
FIR No. 787/14 State Vs. Somdutt & Ors Page 20 of49 cials to report back to Central Control Room after reaching at the spot with regard to the information received and the factual position of the spot. He did not examine any police official from PCR department regarding the in- formation mentioned from point X to X in PCR Form Ex.PW-11/A. He was not aware that if the police officials of MPVZVR-77 & TGR-47 after reach- ing at the spot had flashed the message to the Central Control Room that Somdutt @ Somi i.e. the caller, Bravo Sahib and SI Ashok are present at the spot and revolver was in the hand of Vicky which was handed over to Crime Branch. He denied the suggestion that these facts were in his knowl- edge and when he reached the spot, revolver was in the hands of deceased Vicky. Mobile Crime Team reached to the spot after about 20-25 minutes of his arrival. Neither he nor any police officials including SI Ashok had lifted or inspected the weapon before arrival of Crime Team. He denied the sug- gestion that when he reached at the spot, the weapon was in the hands of de- ceased Vicky or that he in connivance with SI Ashok had tampered the scene of crime. He denied the suggestion that SI Ashok took the pistol from the hands of Vicky and put the same at some distance. The pistol was seized after the formal registration of FIR. He seized the pistol within one hour of receipt of copy of FIR. He remained throughout at the spot till the time pis- tol was seized by him. It was drizzling at that time, the crime team informed him that the possibility of having finger print on pistol is remote. The sketch of pistol was prepared after putting the same on a piece of paper and then drawing was drawn. He had not wiped or cleaned the weapon before putting the same on the piece of papers at the time of making its sketch. The pistol FIR No. 787/14 State Vs. Somdutt & Ors Page 21 of49 was seized by him after about four hours of his reaching at spot. He stated that he had not seized the weapon for four hours despite the fact that it was drizzling at that time as he was waiting for registration of the case. The body was shifted to the vehicle by Ct. Sandeep and Ct. Anoop. He denied the suggestion that Somdutt has also helped in lifting the dead body and re- moving to the vehicle. When he reached reached the spot, Somdutt was present there. He had noticed the blood stains on the clothes of accused Somdutt. Subsequently, he came to know that one Karan Singh was work- ing at the place of incident and on that day he was present and had wit- nessed the incident. He had not noticed Karan Singh at the spot when he visited the spot for first time. He met Karan Singh for the first time when he visited the spot for the second time on 05.09.2014. The premises was not sealed though police staff i.e. Ct. Anoop and others were present there. He had not examined Ct. Anoop u/s. 161 Cr.PC. In reply to the question that at every state of his investigation he is referring to Ct. Anoop but why he did not examine him to which he stated that he did not examine Ct. Anoop as he assisted him in securing the spot. He cannot admit or deny if Karan Singh was present at the spot at the time of his first visit. Immediately after coming out from the toilet in order to render assistance, Somdutt touched and checked the body of Vicky to ascertain his physical condition and si- multaneously called the police at 100 number. The PCR staff was already present before his arrival. He admits that as per Ex.PW-11/C, the MPV po- lice officials have reported that at the time of their visit, the revolver was in the hand of Vicky which was handed over to crime team in intact condi-
FIR No. 787/14 State Vs. Somdutt & Ors Page 22 of49 tion. He voluntarily stated that it is also written in the PCR form "ek hi goli chali hai", whereas after inspecting the weapon, two empty cartridges were found in the revolver. They did not seize any fired bullet from the spot de- spite the fact that assistance of FSL team was also taken. He denied the sug- gestion that he converted a case of accidental death / suicidal death in a case of murder.
45. PW-23 Dr. Garima Chaudhary is Senior Forensic / Chemical Exam- iner (Bio/DNA), FSL and proved her detailed report along-with allelic data as Ex.PW-24/A.
46. PW-24 Ms. Pankaj Verma is Scientist-B, Ballistics, CFSL Chandigarh and identified the signatures of Late Sh. S. S. Basoia who prepared the re- port dated 29.10.2014 as Ex.PW-22/A.
47. PW-25 Dr. Kanak Lata Verma, Assistant Director, Chemistry Region, FSL proved the Viscera report dated 16.01.2015 as Ex.PW-25/1.
48. PW-26 Dr. Puneet Puri, Assistant Director, Ballistics, FSL, Rohini de- posed that the revolver was in working order and fired empty cartridges were fired through the revolver 0.32 inch caliber and gunshot residue parti- cles were detected on the swab marked Ex.GS and proved his detailed re-
port as Ex.PW-26/A
FIR No. 787/14 State Vs. Somdutt & Ors Page 23 of49
49. After examining all the witnesses, prosecution evidence was closed and matter was fixed for recording statement of accused.
50. The statement of all three accused persons under Section 313 Cr.P.C. was recorded with the assistance of counsel for accused persons. Accused Somdutt stated that eye witness Karan Singh and close family members of the deceased including his brothers and wife supported his innocence and highlighted the malafide of the investigating agency. He was having cordial relations with Vicky and his family members. The investigating officer has falsely implicated him in this case and converted the accidental / suicidal case into a murder case and in the gross misuse of the power had gone to the extent of tampering with the spot to create false evidence against him. He was asked by the police to remove the body of deceased by lifting from the spot and thereafter he was being put under duress by the police and his signatures were obtained on number of blank papers which were subse- quently misused to create false evidence against him. The police withheld the material evidence and statement of witnesses which were not favouring the case of the prosecution and highlighting his innocence. Accused Sushil Dagar and accused Anil stated that they have been falsely implicated in the present case. They did not lead defence evidence, therefore, matter was fixed for final arguments.
51. I have heard the arguments advanced by the Ld. Addl. PP for the State and Ld. Counsels for the accused persons and have perused the record.
FIR No. 787/14 State Vs. Somdutt & Ors Page 24 of49
52. During arguments Ld. Addl. PP submits that weapon of offence i.e. pistol, which belongs to the accused Somdutt, is recovered from the spot i.e. lawn of the office of the accused Somdutt. It is proved that all three accused were having drinks with the deceased at the spot and during which argument took place and accused Somdutt with the help of other co-accused fired upon deceased Vicky due to which he expired. Lead Residue were found on the hands of the accused Somdutt in FSL result. The motive to commit murder is also present as the accused Somdutt had dispute regarding huge monetary transaction with the deceased Vicky with whom he was doing property business. Therefore, accused persons are liable to be convicted for the offence u/s. 302/34 IPC and 177 IPC.
53. On the other hand, as per the counsels for the accused persons, prosecution has miserably failed to prove their case as the eye-witness Karan Singh has stated that deceased Vicky went inside the office of Somdutt and came out carrying weapon in his hand and at that time Vicky was not in his senses and was saying that he will demonstrate how to fire a shot from firearm and after aiming towards his head he fired a shot and after hearing the noise of firearm Somdutt came out from the toilet and found Vicky lying on ground in pool of blood and after that Somdutt called at 100 number and some other person. So, eyewitness has not supported the case of prosecution and as per him deceased has fired upon himself and not the accused persons. Also, gunshot residue was found on the palms of deceased FIR No. 787/14 State Vs. Somdutt & Ors Page 25 of49 Vicky which shows that he fired the bullet and no gunshot residue was found on the palms of accused Somdutt. Further, the PCR Form clearly mentions that deceased Vicky was having revolver in his hand which de- molishes the case of the prosecution. Also, prosecution has not even sited and examined any PCR official who were first to reach at the spot or Ct. Anoop, who was left at the spot to safeguard it, which shows that investiga- tion done by the police is not fair. The prosecution has cooked up a false story and falsely implicated the accused persons. The accused persons are liable to be acquitted from the charges leveled against them.
APPRECIATION OF EVIDENCE Eye-witness Evidence
54. As per the case of the prosecution, PW-1 Karan Singh was the eye- witness of the murder and all the accused persons also admitted in their statement u/s. 313 Cr.PC and during arguments in the court that PW-1 Karan Singh was the office help of the accused Somdutt and was present at the spot when the incident took place. Perusal of testimony of PW-1 shows that he did not support the case of prosecution and deposed that deceased Vicky took out the pistol from the office of accused Somdutt and after putting it on his right temple fired upon himself due to which he died. PW-1 gave clean chit to all the accused persons and also stated that police gave him beating and after that made him sign wrong statement.
FIR No. 787/14 State Vs. Somdutt & Ors Page 26 of49
55. Court cannot overlook the fact that PW-1 Karan Singh was the office help of the accused Somdutt @ Somi and as such can be easily influenced by the accused persons and there can be reasons for him to not to support the case of prosecution and turn hostile. Except Karan Singh, prosecution has not cited any other person as eye-witness of the incident. It is well established legal principle that a witness may lie, but not the circumstances. It is not necessary to have an eye witness/ direct evidence in every case to prove who committed the crime. Circumstantial evidences can be used to prove a person's guilt. During investigation of the present case, apart from the eye-witness PW-1, police also collected certain circumstantial material against accused persons, which are as follows :
- Dead body was found in the premises belonging to accused Somdutt @ Somi.
- Presence of all the accused persons at the scene of crime when police reached there.
- Death caused by bullet injury and presence of revolver belonging to accused Somdutt / Somi near the dead body.
- Motive
- Presence of blood on the clothes of accused Somdutt @ Somi.
- Presence of Lead on the hand of accused Somdutt @ Somi.
FIR No. 787/14 State Vs. Somdutt & Ors Page 27 of49
Circumstantial Evidence
Dead body was found in the premises belonging to accused Somdutt @ Somi.
56. As per the prosecution case, the dead body was found at plot no.9, Ranaji Enclave, Nangli Sakrawati, Main Najafgarh Road, Najafgarh, New Delhi and this plot belongs to the accused Somdutt @ Somi. It is proved by public witnesses PW-2, PW-3 and PW-8, who were relatives of deceased Vicky that deceased Vicky was doing property business with accused Somdutt @ Somi for last 5 years and they were having cordial relations, therefore, the presence of Vicky, before his death, in the plot of Somdutt @ Somi and having drinks with him during late night is normal and not a circumstance which is beyond explanation. So, the court has come to the conclusion that presence of dead body of Vicky in the plot of accused Somdutt @ Somi is proved beyond doubt but it is not a circumstance, which is inculpatory of the accused persons.
Presence of all the accused persons at the scene of crime when police reached there.
57. As per the prosecution case when police reached at the spot they found dead body of Vicky and all the three accused persons there. The presence of accused persons is proved by arrest memo Ex.PW-22/H1, Ex.PW-22/H2 and Ex.PW-22/H3. Further, their presence at the spot during FIR No. 787/14 State Vs. Somdutt & Ors Page 28 of49 the incident is also not disputed by any of the accused persons. So, presence of accused persons at the scene of crime during the incident is proved beyond doubt.
Death caused by bullet injury and presence of revolver belonging to accused Somdutt / Somi near the dead body.
58. As per the PM report Ex.PW12/B, death is due to cranio-cerebral damage consequent to the injuries described in aforesaid PM report and caused by ammunition discharge from a fire arm and injuries is sufficient to cause death in ordinary course of nature. The injury at point 5 of PM report Ex.PW-12/B is described and reproduced as "firearm entry wound of size, 0.9 x 0.8 cms situated over right temporal region of skull, surrounded by a collar of abrasion, measuring 0.5 x 0.3 cms, margins invertal, 5 cms above right cartilage and 5 cms from lateral aspect of right eyebrow. Blackening present around the wound. Seinging of hair and tattooing absent. Active bleeding from would present".
59. So, nature of injury and cause of death as described in PM report i.e. Ex.PW-12/B proves that death of the deceased Vicky was caused by the bullet injury. Near the dead body one revolver i.e. Ex.PW-22/Article 3 was found and Ex.PW-20/B i.e. Arms license verification report of it shows that the revolver belongs to the accused Somdutt @ Somi. It is also not disputed by the accused persons that the weapon of offence i.e. revolver Ex.PW-
FIR No. 787/14 State Vs. Somdutt & Ors Page 29 of49 22/Article 3 belongs to the accused Somdutt @ Somi and bullet was fired from it because of which death of the deceased Vicky has occurred.
Motive
60. As per the case of prosecution, there was some monetary dispute between accused Somdutt @ Somi and deceased Vicky and while having drinks altercation took place between them regarding monetary dispute and accused Somdutt @ Somi along-with co-accused fired upon deceased Vicky, so, accused persons had a motive to kill deceased Vicky i.e. monetary dispute. Now let us see whether prosecution has been successful in proving the motive for committing the murder.
61. Prosecution has examined PW-2 and PW-3 who are real brother of deceased Vicky, PW-8 who is uncle of deceased Vicky and PW-16 who is wife of deceased Vicky. None of these witnesses deposed anything about the monetary dispute between the deceased Vicky and accused Somdutt @ Somi. But contrary to the case of prosecution PW-2, 3 and 8 specifically stated that deceased never disclosed about any dispute with accused Somdutt @ Somi or dispute regarding payment of any commission between them. They also deposed that relation between deceased Vicky and Somdutt @ Somi were very cordial and there were family relations between them. So, all the public witnesses who were examined by the prosecution to prove the motive of the accused persons to fire upon deceased Vicky deposed FIR No. 787/14 State Vs. Somdutt & Ors Page 30 of49 contrary to the case of the prosecution and prosecution failed to prove on record the motive of the accused Somdutt @ Somi to kill the deceased.
62. As per the prosecution case, accused Anil and accused Sushil Dagar were going in the taxi of accused Sushil Dagar when they saw the Micra car bearing registration no. DL-4CAV-7518 belonging to deceased Vicky and they called Vicky on mobile phone, on which Vicky asked them to come inside the premises and have liquor with them. This shows that accused Anil and Sushil Dagar were known to deceased Vicky and were his good friends. The motive assigned to both the accused Anil and Sushil Dagar was that when altercation took place between deceased Vicky and accused Somdutt @ Somi regarding commission amount received from selling a plot, they took the side of accused Somdutt @ Somi as his arguments were sounding genuine. Because of this both accused Anil and Sushil Dagar caught hold of one hand each of Vicky and accused Somdutt @ Somi fired upon him. Merely because altercation took place between accused Somdutt @ Somi and deceased Vicky regarding money transaction and both accused Anil and Sushil Dagar found the arguments of Somdutt @ Somi to be more genuine, they helped Somdutt @ Somi in killing their friend i.e. deceased Vicky, appears to be a far fetched and too weak a motive. Further, court cannot fathom any reason why accused Anil and Sushil Dagar will help a third person i.e. accused Somdutt @ Somi in killing their friend deceased Vicky when they have no stakes in the monetary dispute. In the considered opinion of the court, prosecution failed to prove on record the motive of FIR No. 787/14 State Vs. Somdutt & Ors Page 31 of49 the accused persons Anil and Sushil Dagar in helping accused Somdutt @ Somi in killing their friend Vicky.
Presence of blood on the clothes of accused Somdutt @ Somi.
63. During the investigation, the clothes worn by the accused Somdutt @ Somi i.e. white colour kurta pyjama, found to be blood stained and same were seized and as per the FSL DNA report i.e. Ex.PW-24/A, both pajama i.e. Ex.5a and Kurta Ex.5b were found to have blood of the deceased. FSL DNA report i.e. Ex.PW-24/A proves that on the clothes of the accused Somdutt @ Somi, blood of deceased was present.
64. As per the prosecution case, both accused Anil Kumar and Sushil Dagar caught hold of deceased Vicky and accused Somdutt @ Somi fired from the close range and killed Vicky and during this incident blood of the deceased Vicky got spattered on the clothes of accused Somdutt @ Somi. If at the time of incident, remaining both accused Anil Kumar and Sushil Dagar were also standing close to the deceased and holding his hands then some amount of blood of deceased should have also spattered on them. But interestingly no clothes worn by the accused Anil Kumar and Sushil Dagar were seized and send for DNA examination. Further, nowhere in the charge- sheet it is mentioned that blood was found or seen on the clothes of accused Anil Kumar and Sushil Dagar. So, it points to the fact that at the time when deceased suffered bullet injury both accused Anil Kumar and Sushil Dagar FIR No. 787/14 State Vs. Somdutt & Ors Page 32 of49 were not standing close to the deceased and it goes against the case of the prosecution.
65. Further, PW-1 / Karan Singh is the eye-witness of the incident and he has specifically deposed in the court that after hearing noise of firearm, accused Somdutt @ Somi immediately came out of the toilet and rushed towards Vicky, who was lying in pool of blood and examined him and after that called 100 number. So, accused Somdutt @Somi was not near the deceased Vicky when bullet was fired. But later on he examined the dead body and it might be the reason that blood of the deceased came on his clothes.
Presence of Lead
66. Ex.PW-24/A is the CFSL, Chandigarh examination report of the chemical examination of the swab taken from the right hand of the accused Somdutt @ Somi and from his right and left ring fingers. As per the report on chemical examination only the lead residues were detected on the cotton swab stated to be of right hand of the accused Somdutt @ Somi. It is also written in the report that it could not be possible to form any definite opinion regarding the presence of the firing discharge residues on the cotton swab under reference as no other residues could be detected on it.
FIR No. 787/14 State Vs. Somdutt & Ors Page 33 of49
67. So, as per the report Ex.PW-24/A, only lead residue were detected on the right hand of the accused Somdutt @ Somi. The lead residue can be there due to handling of any of the object made of the lead which includes the bullet. As accused Somdutt @ Somi was having licensed revolver in his possession, so, it is possible that he might have handled the bullets sometime before the incident because of which lead residue was detected on his hand. But presence of lead residue does not proves that he has fired the bullet. If a bullet is fired by a person then on his hands Gunshot Residue Particles (GSR) would definitely be found.
68. Gunshot Residue (GSR) is common trace evidence material referring to the inorganic and organic constituents expelled from a firearm upon discharge. During firing, a plume of residues is ejected from the firearm and a rapid cooling process produces metallic particles known as primer gunshot residue (pGSR a.k.a. IGSR). These spherical particles are typical 0.5-10um in size and most commonly contain the inorganic elements lead, barium and antimony, the three constituents of compounds responsible for the ignition of a primer cap. These elements are characteristic of pGSR and are uncommonly found in the general population or environment. Another major component of gunshot residues resides in the vaporous cloud produced from the deflagration of smokeless gunpowder and is referred to as organic gunshot residue (OGSR).
FIR No. 787/14 State Vs. Somdutt & Ors Page 34 of49
69. Gunshot residues can be transferred in different ways; direct transfer (primary) or indirect transfer (i.e. secondary, tertiary or quaternary). A pri- mary transfer occurs after the initial discharge of the firearm, and when the GSR are deposited on the shooter's hands, clothing or face. A secondary transfer ensues when a clean surface encounters a surface con- taining GSR from a primary transfer. There are several ways for this type of transfer to occur, such as handling a firearm that was previously fired, shak- ing hands with an individual who fired a gun, or touching surfaces sur- rounding the discharged firearm that had residues deposited on them.
70. So, GSR component are uncommon and not found commonly in the general population or environment and is only found after Gunshot i.e. bullet is fired. It is found only on person who fired bullet or other persons, who came in contact with person who has fired the bullet or who were standing within close range when bullet was fired. In Ex.PW-24/A it is clearly mentioned that no opinion regarding presence of firing discharge residue can be given as no other residue could be detected. So, scientific evidence i.e. Ex.PW-24/A shows that no Gunshot Residue Particle (GSR) was found on the accused Somdutt @ Somi.
71. Ex.PW-24/A is also corroborated by another scientific evidence i.e. Ex.PW-26/A i.e. FSL report of ballistic division, FSL Rohini. During the medical examination of the accused Somdutt @ Somi and deceased Vicky, their hand swabs were taken and same were sent to the FSL Rohini for FIR No. 787/14 State Vs. Somdutt & Ors Page 35 of49 examination of Gunshot Residue Particles (GSR) and the detailed report of FSL examination is Ex.PW-26/A.
72. As per point(6) of the Ex.PW-26/A, when swabs 'S1 to S4' of the accused Somdutt @ Somi along-with control swab 'C' were analyzed for the detection of GSR on atomic absorption spectrophotometer (AAS) but no opinion could be given due to insufficient data. So, no Gunshot Residue was found on hands of the accused Somdutt @ Somi.
73. But as per point (7) of Ex.PW-26/A, when the swab 'GS' of the deceased along-with control swab 'C1' were analyzed for the detection of GSR on atomic absorption spectrophotometer (AAS), GSR particle were detected on swab Ex.GS, which proves that Gunshot Residue Particles were found on the palms of the deceased Vicky.
74. The case of the prosecution that accused Somdutt @ Somi fired upon the deceased is totally demolished by the scientific evidence i.e. Ex.PW- 24/A and Ex.PW-26/A i.e. FSL reports given by CFSL, Chandigarh and FSL Rohini.
75. Further, not only scientific evidences goes against the case of prose- cution but the occular evidence i.e. eye-witness PW-1/ Karan Singh also de- molish the case of prosecution as his testimony is corroborated by Ex.PW-
FIR No. 787/14 State Vs. Somdutt & Ors Page 36 of49 24/A and Ex.PW-26/A as he has specifically deposed that he saw deceased Vicky firing upon himself and getting killed.
76. The findings on the various facts in issue recorded thus far in the judgment may be summarized as under:
(i) Prosecution proved that dead body found in premises of accused Somdutt @ Somi
(ii) Prosecution proved that all three accused were present at scene of crime when police arrived.
(iii) Prosecution proved that dead occurred due to bullet injury fired from revolver of accused Somdutt @ Somi.
(iv) Prosecution failed to prove alleged motive of the accused persons.
(v) Prosecution proved blood of deceased found on accused Somdutt @ Somi
(vi) Gunshot residue not found on the hands of accused Somdutt @ Somi but was found on the palm of deceased Vicky.
77. In para 12 of "Hanumant Vs. The State of Madhya Pradesh" AIR 1952 SC 343 it has been held by Hon'ble Supreme Court of India that :
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused.
FIR No. 787/14 State Vs. Somdutt & Ors Page 37 of49 Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. .........................."
78. After doing close analysis of Hanumant (supra), the Hon'ble Supreme Court of India in "Sharad Birdhi Chand Sarda Vs State of Maharashtra" 1984 AIR 1622 gave five golden principles which constitutes the panchsheel of the proof of a case based upon circumstantial evidence as follows :
(i) The circumstances from which the conclusion of guilt is to be drawn should be fully 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 FIR No. 787/14 State Vs. Somdutt & Ors Page 38 of49 with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
79. In the present case there is no ocular evidence as sole eye-witness PW-1 has turned hostile. Only circumstance which prosecution is able to prove is that dead body was found in the property of the accused Somdutt @ Somi and all the accused persons were present at the spot at the time of the incident and death of the deceased has occurred with the bullet injury which was fired from the licensed revolver of the accused Somdutt @ Somi. Except this no other circumstantial evidence was proved against the accused persons. The position of the law is that circumstantial evidence must be commensurate with no interpretation other than the guilt of the accused and all links in such circumstantial evidence ought to be proved beyond reasonable doubt. However, in the present spectrum of evidence, the circumstances suffer critical omissions/loop holes which operate in favour of the accused persons. There is no cogent evidence on record to prove that accused Somdutt @ Somi fired upon the deceased Vicky, infact the scientific evidence collected during investigation proves that deceased Vicky fired upon himself as gunshot residue was found on the palm of the deceased Vicky and prosecution also failed to prove the motive of the accused persons to kill deceased Vicky.
FIR No. 787/14 State Vs. Somdutt & Ors Page 39 of49
Lacunas in the investigation
80. Before parting with the judgment court will like to point out serious lacunae in the investigation. As per the case of prosecution, first information regarding the incident was received by DD No. 74B at 10:50 p.m. After receiving the information PW-22/IO Insp. Ashok Kumar along- with two constables i.e. Ct. Sandeep and Ct. Anoop reached the spot. During his cross-examination, it was admitted by Insp. Ashok Kumar that before he reached the spot there were around 15-20 persons which includes same police officials. PW-23/Insp. Sanjay, who was the second IO, has also deposed that when he reached the spot PCR police personnels were present there.
81. In normal course, after receiving the information from the police control room, PCR Van is the first to reach the place of incident and it informs the police control room regarding the situation at the spot and after arrival of the local police from the area police station, PCR officials leave the spot and at time of leaving the spot, they again inform the police control room about the situation at the spot. In the present case also, as per Ex.PW- 11/A Form-I, shows that two PCRs MPV ZVR-77 and PGR-47 reached the spot at 10:59 p.m. and they remained at the spot till 11:37 p.m. As per PW- 22 i.e. first IO he reached the spot at around 11:15 p.m. So, two PCRs MPV ZVR-77 and PGR-47 reached at the spot around 16 minutes before FIR No. 787/14 State Vs. Somdutt & Ors Page 40 of49 the arrival of first IO/PW-22 Insp. Ashok.
82. The police officials of PCR work independent of the local police station and they informed about the current situation at the spot to the police control room. The officials of these two PCRs i.e. MPV ZVR-77 and PGR- 47reached first at the spot and so, they must be aware about the situation at the spot but none of them were made prosecution witnesses by the IO. The police officials who could have given the first information about the scene of crime are not made the prosecution witness and this casts a serious doubt over the investigation done by the IO.
83. Secondly, Ct. Anoop along-with first IO / PW-22 and PW-4 Ct. Sandeep was the first one to reach at the spot. He was the police official who was left at the spot to secure the scene of crime, when the PW-22 along-with PW-4 took the dead body to the hospital. He must also be aware about the situation at the spot but interestingly he was also not made prosecution witness.
84. Thirdly, as discussed above, PCR officials of PCRs MPV ZVR-77 and PGR-47, are the police officials who reached first at the spot and they must have informed about the situation to the police control room. Their information was recorded in Form No.1 i.e. Ex.PW-11/A. The relevant extract of the Form-I Ex.PW-11/A is reproduced hereinbelow :
FIR No. 787/14 State Vs. Somdutt & Ors Page 41 of49 Report received from MPV: 197 04.09.2014, 23:11:04 received 4 minutes call is true : Ek ladke ne khud ko sir me kanpatti pe goli mar rakhi hai, lekar hospital ja rahe hai, halath ke liye wait. Date 04.09.2014, 23:20:29 W32 CAT Moka par uprukt ko dead declare kiya hai isliye hospital nahi ja rahe. Firse halath ke liye wait.
04.09.2014, 23:20:48 from 147A 04.09.2014, 23:39:58 Vicky S/o Pata nahi age 38 VE Somdutt ke alawa is aadmi ne milkar Sai property ke name se property dealing ka kaam karta hai. Caller Somdutt ne batlaya hai aaj Vicky ne apni revolver se dahine kan- pati pe khud ko goli mara hai jo moka per dead hai. Karan ka pata nahi chal paya hai. Tabhi goli chali hai moka per Somdutt caller mila hai. Bravo sahab VE SI Ashok Mauka per.
04.09.2014 23:43:53 Vicky ka address Mohalla Y-38, Arya Samaj road, Uttam Nagar ke rehne wale hai. Revolver vicky k hath me hi tha jo crime team ke hawale kiya hai.
85. Perusal of Ex.PW-11/A shows that PCR officials have informed the police control room that PCR call is true and one boy has committed suicide by firing at his right temple. It is also written in the Form-I i.e. Ex.PW-11/A that caller Somdutt along-with bravo sahib i.e. Insp. Sanjay and SI Ashok were at the spot and when they left the spot at that time revolver was in the hand of the deceased Vicky, which was handed over to crime team. But all the photographs taken by the crime team of the scene of crime i.e. Ex.PW- 7/P1 to Ex.PW-7/P20 shows that pistol is lying at some distance from the dead body and in no photograph pistol can be seen in the hand of the deceased. So, either the PCR officials have given wrong information to the police control room which was recorded in Ex.PW-11/A or crime scene has been manipulated by the IO with the crime team, whereby pistol which was in the hand of the deceased was removed and placed at a distance from the dead body so as to show that murder has took place instead of suicide. This FIR No. 787/14 State Vs. Somdutt & Ors Page 42 of49 appears to be a reason for non citing and non examination of PCR personnels of MPV ZVR-77 and PGR-47 by the IO as prosecution witnesses, as they would have deposed against the case of prosecution.
86. Fourthly, as per PW-13 ASI Jitender Prakash who was the member of crime team and was a Finger Print Proficient, he tried to find out the chance prints on the pistol but due to drizzling, no chance-prints could be detected on pistol and his report is Ex.PW-13/A. As per the case of the prosecution first IO / PW-22 Insp. Ashok reached at the spot at 11:15 p.m. After arrival of second IO / PW-23 Insp. Sanjay, the first IO / PW-22 along- with PW-4 Ct. Sandeep took the dead body to the RTRM hospital, where PW-22 prepared rukka and handed over to PW-4 for registration of FIR. From hospital PW-22 reached the spot and PW-4 went to the police station and after getting the FIR registered returned to the spot. Only after receiving of the FIR, second IO PW-23 seized the pistol.
87. The duration between arrival of the PW-22 at the spot and seizure of pistol by PW-23 must be around 4 hours. So, for this whole duration of 4 hours, the weapon of offence i.e. pistol was lying in the open in the drizzle but neither the first IO / PW-22 nor second IO / PW-23 or the Incharge crime team / PW-6 seized and safeguarded the pistol despite being aware of the fact that if pistol is kept lying in open in drizzle then chances of extracting finger prints from pistol will become bleak.
FIR No. 787/14 State Vs. Somdutt & Ors Page 43 of49
88. No explanation has been given by either PW-6, PW-22 and PW-23 for not safeguarding or securing the weapon of offence i.e. pistol at the first instance, so that fingerprints from it could be extracted. So, only reason for not safeguarding the weapon of offence i.e. pistol appears to be an intentional act so that whatever fingerprints which were present on the pistol could not be extracted. It is admitted and proved case that the pistol belongs to the accused Somdutt @ Somi, therefore, his fingerprints will be naturally present on the pistol. But if it is the case of suicide by the deceased, as portrayed by the accused persons and supported by the scientific evidence i.e. Ex.PW-24/A and Ex.PW-26/A, then pistol must have fingerprints of deceased on it and in case after scientific examination it was found to have fingerprints of deceased Vicky, then it would have gone against the whole case of prosecution that Vicky has been murdered and has not committed suicide. This appears to be the reason for not seizing and safeguarding the revolver and allowing it to be kept lying in drizzle.
89. Additionally, as per the case of the prosecution, all three accused persons along-with deceased were having drinks before the incident but accused Anil Kumar and Sushil Dagar were not medically examined even after the arrest. No MLC of accused Anil Kumar and Sushil Dagar is present on record. As per Sec. 53 Cr.PC, after arrest accused person should be medically examined but this elementary part of investigation is not done in the present case, where a person has lost his life. This again raises doubt on the investigation done by the police as in case in medical examination, FIR No. 787/14 State Vs. Somdutt & Ors Page 44 of49 both accused Anil Kumar and Sushil Dagar were not found inebriated condition then it would have gone against the case of prosecution and would have supported the case of accused Anil Kumar and Sushil Dagar that they were standing near the gate and have just reached the spot just before the deceased fired upon himself and they have nothing to do with the incident.
90. Lastly, as per the case of prosecution at the time of the incident along-with the accused persons and deceased Vicky, the office servant of accused Somdutt @ Somi i.e. PW-1 was also present there and he had served drinks to all of them and was preparing food for them. He was the sole eye-witness of the incident and was present at the spot when the incident took place in the night of 04.09.2014. But interestingly his statement was not recorded on the same day but was recorded on the next day i.e. 05.09.2014. The explanation given by PW-23 / Insp. Sanjay for delay in recording statement of eye-witness PW-1 / Karan Singh was that he did not notice the Karan Singh at the spot when he visited for the first time and Karan Singh met him when he visited the spot second time on 05.09.2014. This casts serious doubts over the investigation done by the police as they even failed to notice the eye-witness, who is working there as office help and served liquor to accused persons and was making food for accused persons, and examine him when he was present on the crime spot. There is no way that PW-1/Karan Singh could have escaped from the crime scene and would have returned later on as the place where incident took FIR No. 787/14 State Vs. Somdutt & Ors Page 45 of49 place i.e. Plot No.9, Ranaji Enclave, Nangli Sakrawati, Najafgarh, New Delhi is a closed boundary premises as shown in site plan Ex.PW-23/A (scaled site plan Ex.PW-14/A) and one can enter only from gate and during whole time police was present on the spot. This further explains the non citing of Ct. Anoop, who came to the spot along-with the first IO and remained at the spot for securing it, by the police.
91. Before concluding court also likes to bring on record another loophole in the investigation conducted by the police. As per the prosecution case, the weapon of offence i.e. pistol was lying in the open for around 4 hours in drizzle before it was seized, so, it must be wet but the paper on which its seizure memo is prepared have no impression of any liquid, which would have been created, if a wet object is kept on the paper. Even during cross-examinations of PW-22, court question was put to him regarding any droplet on the paper or the weapon when the sketch was made, to which he stated that both paper and weapon were dry when sketch were made but no explanation was given by him regarding non presence of any droplet on weapon when it was in open ground in the drizzle. Further, PW-23 in his cross-examination specifically stated that he did not wipe or clean the weapon before putting it on paper while making sketch. No explanation has been come from the Investigating Officers regarding absence of any impression of wet object on the paper on which sketch of pistol was made, if the pistol was not wiped or cleaned, and it was in wet condition. All the above lacunas points towards the shoddy investigation FIR No. 787/14 State Vs. Somdutt & Ors Page 46 of49 done by the police.
92. This now brings us to the fag end of the judgment. After a detailed discussion of the evidence, the circumstances of the case and law on circumstantial evidence shows that the five golden principles enunciated in Hanumant case (supra) and Sharad Birdhi Chand case (supra) have not been satisfied in the present case. Appreciation of evidence shows that Prosecution is only successful in showing that dead body is found in the premises belonging to the accused Somdutt @ Somi and bullet was fired from the licensed revolver of the accused Somdutt @ Somi. Except these, no other evidence could be proved on record against the accused persons. On the other hand, scientific evidence i.e. Ex.PW-24/A and Ex.PW-26/A and documentary evidence Ex.PW-11/A i.e. Form-I of PCR proves beyond doubt that deceased Vicky fired upon himself and revolver was also found in hand hand by the PCR but later on scene of crime was manipulated.
93. In view of the discussion above, the court has come to conclusion that serious doubts have been raised over the investigation done by the police and accused Somdutt @ Somi has not fired upon the deceased Vicky and it is deceased Vicky who fired upon himself. All three accused persons are acquitted of the charge under section 302/34 IPC.
FIR No. 787/14 State Vs. Somdutt & Ors Page 47 of49
94. Accused persons were also charged for the offence u/s. 177 IPC for furnishing false information to the police. As discussed above, scientific evidence i.e. Ex.PW-24/A and Ex.PW-26/A and documentary evidence Ex.PW-11/A i.e. Form-I of PCR proves beyond doubt that deceased Vicky fired upon himself, therefore, no false information has been furnished by the accused persons to the police. Therefore, all the accused persons are acquitted of the charge under section 177/34 IPC.
95. Accused Somdutt @ Somi was charged for the offence u/s. 30 of the Arms Act, 1959 as he violated the condition of the Arms License, by using it in commission of the murder of deceased Vicky. As discussed above prosecution has failed to prove that accused Somdutt @ Somi has committed murder of deceased Vicky. In fact, it was deceased Vicky who fired upon himself. Even if, accused Somdutt @ Somi has not fired upon deceased Vicky, even then, as per condition of Arms License he should have kept the licensed Arm i.e. revolver in safe custody and should not have allowed it to be misused. Perusal of testimony of eye-witness PW-1 / Karan Singh shows that accused Somdutt @ Somi first went to his office and from there went to the toilet and after that deceased Vicky went to the office of Somdutt @ Somi and brought revolver from the office and under the influence of alcohol put revolver on his right temple and fired upon himself. As deceased Vicky was business partner of Somdutt @ Somi for the last 5 years and must be coming very frequently to the office of Somdutt @ Somi FIR No. 787/14 State Vs. Somdutt & Ors Page 48 of49 at Plot no.9, Ranaji Enclave, Nangli Sakrawati, Najafgarh, New Delhi where incident took place; so, deceased Vicky must be aware about the place where revolver used to be kept and he took it out himself. As deceased Vicky knew every nook and corner of the office of accused Somdutt @ Somi, being his business partner, and took out revolver himself without knowledge of the accused Somdutt @ Somi, therefore, it cannot be held that accused Somdutt @ Somi was negligent in handling / keeping the revolver and have violated any condition of the Arms License. Therefore, accused Somdutt @ Somi is acquitted of the charge under section 30 of the Arms Act.
96. All bonds except the bonds under Sec.437A Cr.PC are discharged.
97. File be consigned to Record Room after due compliance.
VIPIN Digitally signed
by VIPIN KHARB
KHARB Date: 2023.10.31
17:01:09 +0530
Announced in open Court today (Vipin Kharb)
on 31.10.23 Additional Sessions Judge-04
South-West, Dwarka Courts,
New Delhi
FIR No. 787/14 State Vs. Somdutt & Ors Page 49 of49