Delhi District Court
Kulesh Mandal vs State Of West Bengal, Wherein It Has on 11 November, 2009
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IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 52/1
Date of institution of the case: 12/10/2000
Arguments heard on: 29/09/2009
Date of Decision: 06/11/2009
State
Versus
1) Sanjay
Son of Sh. Ram Kishore
R/o Village Jogiya Math,
PS Tajpur,
District-Samastipur, Bihar.
2) Sunil
Son of Sh.Sobit Giri
R/o Village Jogiya Math,
PS Tajpur,
District-Samastipur, Bihar.
3) Pramod Kumar
Son of Sh. Satya Narayan
R/o Village Jogiya Math,
PS Tajpur,
District-Samastipur, Bihar.
FIR No. 383/2000
PS : Jahangirpuri
U/s. 302/201/34 of IPC &
25,27/54/59 of Arms Act.
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Judgment
This case was registered on the statement of Smt.
Anita, who has stated that she is residing at Jhuggi No.80, A
Market behind Mother Dairy Booth, Mangal Bazaar Road,
Jahangirpuri, Delhi, and does household work. Surender son
of Vedanand Bharti and his 2-3 companions, who are
residents of Bihar, live in a small jhuggi adjacent to her jhuggi,
and one boy,namely, Ashok, who makes holders of three
wheeler scooters in A-1 Market, Jahagirpuri, used to visit to
them.
She has further stated therein that 5/6 months
before, one boy named Sanjay son of Ram Kishore, who was
co-villager of Ashok, also used to come with Ashok in the
jhuggi of Surender and others. He was also doing the work of
making holders with Ashok. She has further stated that due to
quarrel between Sanjay and Ashok regarding money
transaction, Sanjay left the company of Ashok and had gone
to somewhere else. She came to know about this fact from
Surender. Even after that, Sanjay visited her jhuggi 3-4 times
to make inquiries. On her asking, he told that he had to take
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money from Ashok. Ashok is disabled/handicapped. She has
further stated that near about 2/3 days before, Sanjay had
visited her jhuggi asking Ashok about the money.
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She has further stated that on 19/07/2000 at
about 10 p.m., while she was present in her jhuggi, she heard
the noise of quarrel going on between Sanjay and Ashok
outside her jhuggi. During quarrel, Sanjay was abusing Ashok
in loud voice for returning his money. During the quarrel
between Sanjay and Ashok, she also heard a sound of fire
outside her jhuggi. On hearing this, she at once came out of
her jhuggi and saw Sanjay running with a revolver like
weapon in his right hand towards Mangal Bazaar. While he
was running, one of the slipper of Sanjay left out and he ran
away towards Mangal Bazaar with one slipper in his foot.
Ashok was lying in front of her jhuggi and blood was oozing
out of his head. In the meantime, her husband Srikant also
came at the jhuggi and informed the police at 100 number.
After sometime, police van came at the spot and took Ashok
to the hospital. She has further stated that Ashok had been
murdered by Sanjay son of Ram Kishore, R/o Samastipur,
Bihar, to whom she knew earlier, on the issue of money
transaction, by firing at him.
On receipt of DD No. 77B, Inspector Satyavrat
alongwith Motorcycle Rider/Constable Banarsi Dass reached
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at the spot in motorcycle No. DL-1SL-3030, where Inspector
Pramjeet Singh alongwith Constable Raj Kumar met him. At
the spot i.e. in front of Jhuggi No.80, A-1 Market,
Jahangirpuri, Delhi, blood was lying scattered. A black colour
slipper of right foot was also lying. On inquiry, he came to
know that injured Ashok had been removed to BJRM hospital
on sustaining gun shot injury in his head. He left SI
Paramjeet and Constable Raj kumar at the spot to protect it
and himself alongwith motorcycle rider reached BJRM
hospital,Jahangirpuri, Delhi. There doctor conducted medical
examination on the body of Ashok Kumar in his presence and
handed over the MLC to him. He also inspected the dead
body of the deceased, who was wearing a coca-colour pant,
white, black and green colour check type shirt and green
colour vest. He was having deformity in his both legs. He
noticed that on the left temple and above the right eye of the
deceased, there were two holes, out of which blood was
found coming.
Since he did not find any eye witness at the
hospital, he alongwith the motorcycle rider came back at the
spot, where on inquiry, he met eye witness Anita wife of
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Srikant Tiwari, R/o Jhuggi No.80-A1 Market, Jahangirpuri,
Delhi, who got recorded her statement. From her statement
and from the MLC and inspection of dead body, offence U/s.
302 of IPC was found to be committed. So, he prepared a
ruqqa and got registered a case through Constable Banarsi
Dass by sending him to the PS. Copy of FIR was directed to
be circulated to senior officers. He also got conducted further
investigation of the case. He prepared site plan at the
instance of complainant. Dead body of Ashok was sent to
mortuary of Subzi Mandi for preservation through Constable
Raj Kumar. During investigation, the spot was also got
photographed. Crime team also reached at the spot and
inspected the same. Dog squad was also called. Investigating
officer also picked up blood, blood sample and earth control
from the spot and seized the same. One black colour slipper
of right foot was also taken into possession.
During investigation, Investigating officer received
secret information that accused Sanjay, wanted in this case,
was seen at Old Delhi Railway Station. Investigating officer
prepared a raiding party including public witness Mainuddin
and apprehended accused Sanjay from in front of Company
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Bagh, Old Delhi Railway Station. His personal search was
conducted. The accused also made a disclosure statement
regarding his involvement in this case disclosing that
deceased Ashok Kumar had borrowed a sum of Rs.1600/-
from him, but despite repeated demands, he did not return the
same, and as such, on 19/07/2000 at about 10.15 p.m. due
to issue of money transaction, he committed murder of Ashok
by firing on his head with a country made pistol, and also
disclosed about the involvement of his co-accused Sunil to
whom he had handed over the weapon of offence.
His one day PC remand was obtained from the
concerned court. At the instance of accused Sanjay, accused
Sunil was also arrested in this case. His personal search was
conducted. He also made a disclosure statement regarding
his involvement in this case disclosing that on 19/07/2000 at
about 11 p.m., at Sarai Peepal Thala bus stand, accused
Sanjay handed over a country made pistol with empty
cartridge to him to dispose it and to screen the evidence, he
had thrown the empty cartridge in the ganda nallah in front of
Bhalswa Chowk, and he sold the country made pistol to his
co-accused Pramod for a sum of Rs. 200/-. In pursuance to
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his disclosure statement, accused Sunil also offered to get
recovered the empty cartridge from the spot where he had
thrown it, but despite search, it was not traceable.
During investigation, at the instance of accused
Sanjay, from inside the park, situated in front of B Block, 500
wali gali, Mangal Bazaar Road, a black colour slipper of left
foot was got recovered. It was sealed and seized. Accused
Sanjay also pointed out the place of incident and at his
instance, pointing out memo was prepared.
During investigation, at the instance of accused
Sunil, accused Pramod was also arrested in this case. His
personal search was conducted and a sum of Rs. 100/- was
recovered, which was seized. He also made a disclosure
statement disclosing that he had purchased the country made
pistol for a sum of Rs. 200/-, which was used by Sanjay in
committing murder of Ashok, and when he came to know
about the apprehension of accused Sanjay, he had kept
concealed the country made pistol, under the mud at right
side corner, in front of country made liquor vend, Mahendera
Park, and that he could get recover the same.
At the instance of accused Pramod, the country
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made pistol used in the commission of murder of deceased
Ashok was got recovered from the right side corner of the big
park, situated in front of country made liquor vend,
Jahangirpuri, Delhi. Its sketch was prepared. The country
made pistol was sealed in a pulland and was seized.
On 22/07/2000, the Investigating officer got
conducted postmortem on the dead body of deceased Ashok
from mortuary of Subzi Mandi and after the postmortem, the
dead body was handed over to his father. He also seized an
envelope sealed with the seal of KLS, blood sample, one vial
sealed with the seal of KLS, containing the cartridge
recovered from the head of the deceased, one green colour
polythene containing the clothes of the deceased with sample
seal of KLS. At the instance of complainant Anita, he got the
scaled site plan prepared through Inspector Devender Singh.
He collected postmortem report.
On 27/07/2000, pullandas were sent to FSL
through Constable Shailender but the clerk of FSL asked for
three .315 bore live cartridges for testing the country made
pistol. Accordingly, he took permission for the same and got
three .315 bore live cartridges for testing and on 01/09/2000,
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he got deposited sealed parcels alongwith sample seal at
FSL, Malviya Nagar, for obtaining the result, through
Constable Narender Pal. Investigating officer also collected
photographs of the spot and its negatives. He also obtained
permission U/s. 39 of the Arms Act. Since the offences, U/s.
201 of IPC and 25, 27/54/59 of Arms Act were also found to
be committed, he filed the challan before the court U/s.
302/201/34of IPC & 25, 27/54/59 Arms Act.
After compliance of the provisions of Section 207 Cr.PC, case was committed to Court of Session vide order dated 23/10/2000 for 31/10/2000.
Prima facie case having been made out, charge for offences U/s. 25 of Arms Act and 201 of IPC was framed against accused Sunil and Parmod Kumar, whereas charge for offences U/s. 302 of IPC and 27 of Arms Act was framed against accused Sanjay only on 25/11/2000 to which they pleaded not guilty and claimed trial.
To prove its case, prosecution has examined 29 witness in total.
PW1 is Constable Mahavir Sharan. He is a witness of taking of PC remand of accused Sanjay; his -:11:- medical examination; apprehension of accused Sunil at the instance of accused Sanjay; making of disclosure statement by accused Sunil Ex. PW1/A ; receiving of secret information about accused Parmod Kumar; apprehension of accused Pramod and his making disclosure statement Ex. PW1/B; recovery of country made pistol by accused Pramod; preparing of sketch of knife and seizure memo Ex. PW1/C; recovery of one black chappal effected by accused Sanjay and preparing of pointing out memo Ex. PW1/D. PW2 is Smt. Anita. She is the eye witness of the incident.
PW3 is Head Constable Om Parkash. He has recorded FIR of this case, copy of which has been proved by him as Ex. PW3/A. He has also recorded DD No.4A and DD No.5A, copies of which have been proved as Ex. PW3/B and Ex. PW3/C. PW4 is Head Constable Veer Singh. He was the MHC(M) at that time and sealed parcels were deposited with him. He also sent the sealed parcels to FSL. He has proved entries Ex. PW4/A in this regard.
PW5 is Mainuddin. He is the public witness who -:12:- joined the raiding party and he has deposed about the investigation part conducted by the Investigating officer. In addition to other documents, he has also proved disclosure statement of accused Sanjay Ex. PW5/A; sketch of country made pistol Ex. PW5/B; arrest memos of accused persons Ex.PW5/D, Ex. PW5/E and Ex. PW5/F. He has also identified country made pistol Ex. P1 and chappal Ex. P2 before the court.
PW6 is Rameshwar Giri. He has identified the dead body of the deceased, who was his brother in law. He was declared hostile and was cross examined by Ld. Addl. PP but nothing incriminating deposed by him. He has proved seizure memo Ex. PW6/A. PW7 is Uday Giri. He has also identified the dead body of his son Ashok and has proved receipt Ex. PW7/A. PW8 is Kanti Sagar. He was declared hostile and was cross examined by Ld. Addl. PP, but he did not support the case of prosecution.
PW9 is Anil Sharma. He is the private photographer. At the instance of the Investigating officer, he took photographs of the spot and also of one chappal of right -:13:- foot. He has proved the negatives of the photographs as Ex. PW9/1 to 16 and photographs as Ex. PW9/B1 to B16.
PW10 is Jai Kishan. He has identified accused Sanjay in court, being a labour in his shop. He was also declared hostile and was cross examined by Ld. Addl. PP,wherein he admitted that deceased Ashok was working as a labour in his shop and accused Sanjay was having friendly relations with Ashok but after sometime, quarrels used to take place between them on the issue of money transaction.
PW11 is Shrikant Tiwari. He saw the deceased lying on the floor. He inquired about it from his wife , who told that accused Sanjay had opened fire on the person of Ashok Kumar Giri and then he had run away. He notice that blood was coming out from the head of the deceased. He informed the police at 100 number.
PW12 is Constable Naresh. He has delivered special report to the concerned Magistrate and senior police officers.
PW13 is Constable Pradeep Kumar. On 20/07/2000, he was posted in crime branch in dog squad, Model Town, Delhi. On receipt of information through -:14:- Constable Ramesh, he went to the spot i.e. Jhuggi No.80, A1 Market, Jahangirpuri, Delhi, alongwith dog Prince and inspected the spot. He got sniffed one black colour chappal to the dog. The dog went upto the Mangal Bazaar road but could not proceed further despite 2-3 attempts because of rain.
PW14 is Constable Dharampal. He has recorded DD No. 77 and has proved copy of the same as Ex. PW14/A. PW15 is ASI Jai Singh. He was posted in PCR and on receipt of information regarding receiving of gun shot injury by a person, he went to the spot and removed the injured to BJRM hospital, who was declared as brought dead.
PW16 is Inspector Devender Singh. He has prepared scaled site plan of the spot and has proved the same as Ex. PW16/A. PW17 is Constable Rachpal. He has purchased three .315 bore cartridges for Rs. 108/- from Oriental Arms and Ammunition Company, Connaught Circus, on the instructions of the SHO and handed over the same to the SHO alongwith the slip.
PW18 Constable Raj Kumar, PW19 Constable -:15:- Rohtash Kumar and PW20 Constable Praveen Kumar are witnesses to the investigation.
PW21 is Dr. K. Goyal. He has conducted postmortem on the body of the deceased and has proved his report Ex. PW21/A. PW22 is Constable Banarsi. He has initially joined the investigation of this case with the Investigating officer and has deposed about the same.
PW23 is Sh. J.P. S. Kochar. He has proved the fact that on 31/08/2000, he sold .315 bore cartridges to Constable Richpal after seeing the special permit and authority letter in this behalf.
PW24 is SI Siraj Singh. He is the finger print expert. He has visited the spot, but no chance prints could be lifted from the place of occurrence. He has proved his report Ex. PW24/A. PW25 is Dr. Sanjay Kumar. He has proved the MLC of deceased Ashok Kumar Ex. PW25/A, prepared by Dr. Nirpal Singh.
PW25 ( whereas it should be PW26) is ASI R.S. Bhardwaj. He was posted in Police Control Room. He -:16:- received information about the fact that a person has been shot behind A-1/116, Mother Dairy, Mangal Bazaar Road, Jahangirpuri, Delhi. He filled up PCR form and has proved the same as Ex. PW25/A. PW26 is SI Paramjeet Singh. He has joined the part investigation of the case.
PW27 is Sh. Satish Golcha. He has accorded sanction U/s. 39 of the Arms Act for prosecution of accused Sanjay, Sunil and Pramod Kumar U/s. 25/27 of the Arms Act and has proved the sanction as Ex. PW27/A. PW28 is Surender. He has supported the case of prosecution only to the extent that while he was preparing food, he heard a sound of bursting of cracker and came out from the jhuggi, and saw a crowd of people at a distance of about ten meters from his jhuggi. He saw dead body of Ashok lying at the place where the people had gathered. He was declared hostile and was cross examined by Ld. Addl. PP. However, he did not support the case of prosecution and has denied to have made statement Mark PW28/A. PW29 is Retired ACP Satyavrat Yadav. He is the Investigating officer of the case.
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On completion of prosecution evidence, statements of accused persons were recorded U/s. 313 CrPC. They have denied the case of prosecution. Accused Sanjay has stated that he is innocent and has been falsely implicated at the instance of Anita. He has further submitted that Anita is also resident of his native Village Samastipur, Bihar, and there both the families are having inimical relations over some agricultural land.
Accused Pramod has stated that he is innocent and has been falsely implicated. He further stated that Sunil never handed over to him any katta and he did not get recovered any katta.
Accused Sunil has also stated that he has been falsely implicated in this case. He has further submitted that neither Sanjay handed over any katta to him nor he handed over any katta to Pramod.
However, the accused persons did not lead any evidence in defence.
I have heard Ld APP for State and Ld defence counsel for accused persons.
This case was registered on the statement of one -:18:- Anita who has been examined by prosecution as PW2. She has stated that about 2½ years ago, in sawan, she was residing at Jugghi no. 80/A-1 market, behind Mother dairy, Mangal Bazar road, Jahangirpuri, Delhi. One Surender, with 3-4 more persons who were resident of Bihar was residing in the jugghi adjacent to her jugghi. In that jugghi, accused Sanjay and the deceased Ashok used to visit. She heard the voice of exchange of hot words. Accused came to the jhuggi of Surinder to enquire about the whereabouts of Ashok i.e. deceased. PW2 has further stated that she was preparing food at that time and as soon as she heard the loud noise, she immediately came running out of her house and saw that accused Sanjay was running. Her statement was recorded by the police as Ex.PW2/A. The witness has been cross examined by Ld APP and in the cross examination she has stated that accused Sanjay was working alongwith deceased Ashok as helper. She has further stated that a quarrel erupted between the accused Sanjay and the deceased on some money transaction. She has further stated that deceased Ashok was handicapped from feet. She has admitted that on 19/07/2000 at about 10.00 p.m she was present in her -:19:- jhugghi, when she heard the noise of hot words between Sanjay and Ashok, outside the jhuggi, and in that quarrel accused Sanjay was asking deceased Ashok to return his money and was abusing him. She has further admitted that she heard a sound of fire outside the jhuggi and on this, she came out of the jhuggi and saw accused Sanjay running with a revolver type weapon in his right hand, towards Mangal Bazar. She has further admitted that one of the chappal of accused Sanjay was left out and only with one chappal, he ran from there. She has further admitted that she had seen deceased Ashok lying in front of her jhuggi and blood was oozing out from his head. She has further admitted that meanwhile her husband Shrikant also came to the jhuggi and informed police on 100 number. She has further admitted that due to lapse of time she could not narrate the facts in her examination in chief which now she has stated. She has further admitted that on 20/07/2000, Investigating officer had seized the blood stained earth, blood stained cotton and earth control and prepared the parcels of the same and sealed with the seal of 'SPY' and seized the same vide memo Ex. PW2/B. She has further stated that Investigating officer also -:20:- took in possession one chappal and sealed the same with the seal of 'SVY' and seized the same vide memo Ex. PW2/C. She has identified the chappal as Ex. P1 before the court.
In the cross examination conducted by Ld defence counsel, PW2 has stated that she knew accused Sanjay prior to this incident as they were having visiting terms. She has further stated that jhugghi of Surender is about 10 feet distance from her jhuggi and the door of her jhuggi is just in front of jhuggi Surender. She has further stated that she recognised the accused through his voice. She heard the voice of accused while talking to third person. Again she stated that she does not remember the date, month and year as sufficient time has been passed. Again she stated that as soon as she heard sound of fire at once she came out of the house and saw the accused running at the distance of 10 steps and accused run away in front of her and she saw him face to face. She had denied the suggestion that she had not seen the face of the accused and is deposing falsely. She has further stated that she had seen the accused having some article in his hand and she had not seen such type of article prior to the day of incident. She has further stated that -:21:- police had told her the article, which the accused was having, was katta. She has further stated that accused was having that article in his right hand . She had denied the suggestion that she had not seen the accused Sanjay at the place of occurrence on the day of incident.
Ld defence counsel has contended that PW2 cannot be believed as she has not supported the case of the prosecution. He has further contended that even in the cross examination, she has stated that it was told by Surinder that accused Sanjay was talking with deceased Ashok outside the jhuggi, as public persons used to tell that accused Sanjay was to take money from deceased Ashok, hence she came to know about this fact.
From the deposition of PW2, it is clear that on the day of the incident, she was present in her jhuggi. Accused Sanjay was known to her prior to the day of incident, so identity of accused Sanjay is not disputed. Even on the day of the incident, she has seen accused Sanjay running from the spot having katta in his hands, when she came out from her jhuggi, on hearing the loud voice. Even in Ex. PW2/A, she has nowhere stated that accused Sanjay had fired from gun at -:22:- Ashok in her presence. So from the examination and cross examination by Ld APP and Ld defence counsel, it is clear from the deposition of PW2 that she heard the noise between accused Sanjay and deceased Ashok outside the jhuggi and that accused Sanjay was asking deceased Ashok Singh to return his money and was abusing him. thereafter she came and saw accused running away from the spot having katta in his right hand. So the minor contradictions as pointed by Ld defence counsel are not affecting the trustworthiness and creditability of witness PW2 in any manner.
PW10 Jai Kishan has stated that accused Sanjay and Mangal were working as labourer under contract. He has not supported the case of the prosecution and has been cross examined by Ld APP, wherein he has admitted that he is referring about the incident of year 2000. He further admitted that one Ashok Kumar Giri was handicapped by feet and was resident of Samastipur, Bihar and was working as labour in his shop. He has further admitted that about 6 years prior to that, contractor Sanjeev had given the contract of his shop to said Ashok Kumar Giri and along with him accused Sanjay and Mangal also started working in his shop. He has further -:23:- stated that earlier Ashok Kumar Giri and Sanjay were having friendly terms, but thereafter, after some time the quarrel used to erupt about money between Ashok and Sanjay. He has further admitted that accused Sanjay had left the job, but deceased Ashok Kumar Giri continued working in his shop and used to reside in his shop. He has further admitted that due to lapse of time he could not state these facts.
So from the deposition of PW10, it has been proved that accused Sanjay was working with deceased Ashok Kumar as labourer and there was a quarrel over money between accused Sanjay and deceased Ashok Kr Giri.
PW11 is Shri Kant Tiwari. He has stated that on 19/07/2000 at about 10.15 pm, when he reached at his jhuggi, he saw the deceased Ashok Kr lying on the floor, who was handicapped and at that time, Anita was present there near deceased Ashok Kumar. He asked Anita as to what was the matter and his wife told him that accused Sanjay had fired on Ashok Kumar Giri and then he ran away. Blood had come out from the head of the deceased and some whitish type material had also come out. He informed the police at number 100.
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In the cross examination conducted by Ld defence counsel, this witness has stated that there was enough electricity light at the spot. He has denied the suggestion that he has deposed falsely because of enmity with accused Sanjay being the resident of same village. Ld defence counsel has contended that PW11 has admitted that they were not on speaking terms with the father of the accused. But it is not of much help to the accused Sanjay because PW2 had already stated that she knew the accused Sanjay prior to the incident as they were having visiting terms. So PW11 has corroborated PW2 and there is nothing to disbelieve his testimony in any manner. He has also testified that there was electricity light at the spot, so accused Sanjay was identifiable by PW2, while he was running from the spot with katta in his right hand on the day of incident.
Further to complete the chain of evidence, prosecution has examined PW28 Surender, who has been referred by PW2 Anita in her statement. He has also not supported the case of the prosecution and has been cross examined by Ld APP. In his cross examination, he has admitted that he heard the sound of cracker in the night of -:25:- 19/07/2000. On that day he returned back to his jhuggi at about 9.00 pm and was busy in preparing food. He came out of jhuggi on hearing the sound and saw the crowd of people gathered at a distance of about ten meters from his jhugghi. He saw the dead body of Ashok Kumar was lying at the place where the people had gathered. He has also admitted that both, the accused Sanjay and the deceased Ashok Kumar were resident of Bihar. He has also admitted that deceased Ashok Kumar was handicapped. So what he has corroborated with the other witnesses is that at the time of incident, he was also present in his jhuggi i.e. at the spot and was preparing food. He also heard the sound of cracker and came out from his jhuggi and saw the dead body of deceased Ashok Kumar lying on the spot.
PW8 Kanti Sagar has also stated that on 19/07/2000, at about 10.30 night, he was present in his STD booth and one person came and made phone call from his booth, but he did not know the name of that person nor does he remember as to what information was given by that person on 100 number. He has also been declared hostile by Ld APP and was cross examined by Ld APP. In his cross -:26:- examination, he has admitted that due to lapse of time, he could not recollect the statement mark X. So he has also corroborated the fact that on 19/07/2000 at about 10.30 night, police was informed at number 100.
PW14 Constable Dharmapal has stated that on 19/07/2000, he was posted at PS Jahangir Puri and was working as DD writer and on that day, wireless operator came to the PS and got recorded DD no.77B which is Ex. PW14/A. He has also proved the copy of the same. In cross examination, he has stated that wireless operator came to him at about 10.30 pm for registration of DD, which was related to PCR Call. So he has also corroborated with PW8 Kanti Sagar that at 10.30 night on 19/07/2000 police was informed at number 100.
PW25 is ASI R.S. Bhardwai. In the year 2000, he was posted at PCR, police headquarter and received a call on 19/07/2000 at 10.30 pm, from one Shirkant Tiwari from telephone no. 74111655. The call was about the fact that a person has been shot behind A-1/116, Mother Diary, Mangal Bazar Road, Jahandirpuri. He filled up the PCR form and gave the information to the concerned PCR. Photocopy of -:27:- PCR form is Ex. PW25/A. PW8 Kanti Sagar, owner of STD booth has corroborated with PW25 and has stated that his PCO number at that time was 74111655.
PW15 is ASI Jai Singh. He has stated that on 19/07/2000, he was posted in PCR and was on duty. He has further stated that at about 10.30 pm, he was informed through control room that behind mother Dairy at A1/116, someone has opened fire on one person and on this information, he immediately reached at the spot and saw one young person was lying on the spot and blood was oozing out from the right side of his right eye and blood was also lying on the floor. He has further stated that it was drizzling on that day and he removed him in the PCR and got him admitted in Babu Jagjiwan Ram hospital, where he was declared brought dead. In the cross examination, he has stated that it took about 2/3 minutes to him to reach at the spot. So there was no delay on the part of the PCR, who reached at the spot in time.
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PW11 Shrikant Tiwari has corroborated this fact who has also stated that on 19/07/2000, at about 10.15 pm, he reached at his jhugghi and at that time, it was drizzling.
PW26 SI Paramjeet Singh has stated that he was posted at PS Jahangir Puri, on 19/07/2000, DD no.77 B Ex. PW14/A, was handed over to him. He along with Ct Raj Kumar reached at spot and found blood stains on the ground and at a distance of about 2-3 steps, one chappal was lying. He came to know on inquiry that deceased was hit by a bullet in the head and was taken to BJRM hospital by a PCR Van. PW18 Constable Raj Kumar has also stated so. He has further stated that in the meanwhile the then SHO Inspector Satya Vrat Yadav also reached at the spot with PW22 Ct Banarsi Dass who was motorcycle rider and met SI Paramjeet Singh along with Ct Raj Kumar at the spot. He also noticed the blood lying scattered on the ground and one chappal was also lying there. He also come to know that one person Ashok Kumar had received bullet injuries and PCR Van took him to BJRM hospital.
SHO left the other staff at the spot and he himself along with motorcycle rider i.e. PW22 CT Banarsi Dass went -:29:- to BJRM hospital. In BJRM hospital, PW29 met with duty constable Dev Raj and he also contacted doctor and collected the MLC of Ashok Kumar, who had been declared brought dead. He inspected the dead body. Deceased was found infirm from both the legs and he was found wearing pant of coca colour, black white stripes shirt and green colour baniyan. He also noticed injury marks on the forehead of deceased. The inner portion of the head had come out and it appeared that he had received injuries. He called the staff from the PS to take care of the body.
He had sent Constable Parvesh to arrange the dog squad and photographer to reach at the spot. Crime team was informed on telephone. Thereafter, he left the hospital and reached at the place of occurrence. At the spot, PW29 met with PW2 Anita, who was living in Jhugghi no.80, A1 Market, Jahangir Puri and her statement was recorded by SI Paramjeet Ex. PW29/A. Rukka was prepared by PW26 SI Paramjeet on his dictation and he handed over the rukka to CT Banarsi Dass, who took the same to PS to get the case registered.
PW3 is HC Om Parkash. He has stated that on -:30:- 20/07/2000, he was posted as duty officer at PS Jahangir Puri and on receipt of rukka sent by PW29 Inspector Satyvrat and brought by PW22 Ct Banarasi Dass, he recorded the FIR of this case, copy of which is Ex. PW3/A. He has also recorded DD no.4A copy of which is Ex. PW3/B. He has also recorded DD no.5A and proved the copy of same as Ex. PW3/C. After recording the FIR, he handed over the rukka and copy of FIR to PW22 Banarsi Dass.
PW12 CT Naresh has stated that on 19/07/2000, he was posted at PS Janagir Puri and at about 3.25 night, duty officer handed over to him the special report which he handed over to area Magistrate, at his residence and senior police officer i.e. DCP, DIG at their residences.
PW3 has corroborated with PW12, who has stated in the cross examination that he handed over the
rukka and copy of FIR to Constable Banarsi Dass at about 3.25 am.
According to the deposition of PW29, Inspector Satyavrat, dog squad, crime team and photographer arrived at the spot. Dog squad inspected the spot and the dog led the squad only upto Mangal Bazar as it was raining at that -:31:- time. SI Raj Kumar of crime team inspected the spot and prepared the report and handed over the same to him. Photographer also took the photographs of the place of crime.
PW9 Anil Sharma has corroborated with the PW29 and has stated that, he was the owner of Nutan Photo Studio and on 20/07/09 on the call of Investigation officer, he reached at A1 Market, Jahangir Puri and took photographs of the blood lying on the spot and one chappal of right foot and also photographs of the spot. He has proved the negatives of photographs as Ex. PW9/1 to 16 and developed photographs are Ex. PW9/B1 to B16. Nothing came out from cross examination of this witness to disbelieve his testimony.
PW13 Ct Pardeep Kumar has stated that on 20/07/2000, he was posted in crime branch in dog squad, Model Town, Delhi and he received information from Constable Parmesh, he reached at the spot with his dog Prince at jhuggi no.80, A1 market Jahangirpuri, Delhi and inspected the spot. One black colour chappal was lying on the spot, which he got sniffed to the dog and dog went upto the Mangal Bazar road, but could not proceeded further despite 2/3 attempts because of rain. In the cross -:32:- examination, he has corroborated with the other witnesses and has stated that chappal which was lying at the spot was of right foot. This witness has also corroborated with the other witnesses that it was raining at that time. Nothing came out from his cross examination to disbelieve his testimony.
PW24 SI Siraj Singh, Finger Print Expert has stated that on 20/07/2000, he visited the place of occurrence i.e. A1/116, on the back side of the Mother Diary,Mangal Bazar Road, Jahangir Puri, i.e. place of occurrence and gave his detailed report Ex. PW24/A. According to the report, no chance print could be lifted or developed from the place of occurrence.
PW29 Inspector Satyavrat has further stated that he prepared Site plan at the instance of PW Anita, which is Ex. PW29/B bearing his signature at point A. He also lifted blood with the help of cotton, earth control and earth stained with blood and separate parcels were prepared and were given serial no. 1 to 3 and same were sealed with the seal of 'SVY' and were taken in possession vide memo Ex. PW2/B which bears his signature at point A. The rubber chappal was also taken from the spot and was kept in parcel and sealed -:33:- with the seal of 'SVY' and was seized vide memo Ex. PW2/C. SI Jai Singh of PCR, who had taken dead body of Ashok Kumar to hospital, was called at the spot and his statement was recorded. He also directed Ct Raj Kumar to preserve the dead body of Ashok Kumar in the mortuary of Subzi Mandi.
PW18 Ct Raj Kumar has corroborated this fact and has stated that he took the dead body of Ashok Kumar for preservation from BJRM hospital to Subzi Mandi mortuary.
PW20 Constable Pervesh Kumar has corroborated these facts and has stated that he summoned the dog squad from Model Town on the spot and also crime team. Ct Raj Kumar took the dead body of deceased Ashok Kumar to mortuary, Subji Mandi. Investigation officer took the photographs of spot and also seized one black colour rubber chappal and blood sample, blood stained earth and earth control and prepared the parcels of the same and sealed with the seal of 'SVY' and the said articles were seized vide memo Ex. PW2/B and PW2/C. PW29 has further stated that thereafter they tried to search the accused persons and when they reached at T -:34:- point GT Karnal Road, one secret informer informed that the person who killed Ashok could be caught hold from Old Delhi Railway station. He organised a raiding party comprising of SI Paramjeet, Ct Parvesh, Public witness Moinuddin and left in private Sumo which was arranged from Rana Travel, Jahangirpuri. They reached at Railway station at about 2.30 p.m on 20/07/2000, and on the pointing out of informer, accused Sanjay was apprehended from the company Bagh in front of Old Delhi Railway station. He interrogated accused Sanjay, who made disclosure statement, which was recorded by SI Paramjeet Ex. PW5/A. Accused Sanjay also disclosed about the weapon of offence i.e. country made pistol which he handed over to Sunil, who met him at bus stop, Sarai Peepal, Azadpur and had asked him to dispose of weapon and ammunition i.e. empty cartridge.
Accused Sanjay has also disclosed that he had thrown his chappal of left leg in the Ramlila ground in front of B block, opposite gali no.500 wali, Jahangir puri. Accused Sanjay was arrested by PW29 on 20/07/2000, at 2.40 pm, vide memo Ex. PW5/D. Accused was brought to police station. The parcels of the case property were deposited in -:35:- malkhana of PS and accused Sanjay was locked up.
PW29 has further stated that on 21/07/2000, accused Sanjay was produced before the court of the then concerned MM and one day police remand of accused was granted. The accused was brought from the court and was sent to hospital for medical examination. After medical examination, when they came out from the hospital, public witness Moinuddin met them and he joined the investigation.
PW1 Constable Mahavir Sharan has also corroborated and has stated that on that day, he along with Ct Rohtash went to Tis Hazari Court for producing the accused Sanjay and there police custody of accused was taken and thereafter accused was sent for medical examination at BJRM hospital. Thereafter in the hospital, Moinuddin met them and he joined them at 3.30 p.m. PW29 has also stated so, that Moinuddin met them and he joined the raiding party.
PW5 Moinuddin has stated that on 20/07/2000, he was going to Azad pur Mandi at about 12.00 noon and when he reached at Punjbai Dhaba, Indira Park, Jahangir Puri, he found 4/5 police persons there and one person in the -:36:- white dress was also with them. He joined the police party voluntarily and at about 2.30 pm they all reached at Company Bagh in front of Delhi Junction. In the park accused Sanjay was apprehended by the police at the instance of the person wearing a white dress. Accused Sanjay made a disclosure statement Ex. PW5/A. Thereafter, they all of them along with accused Sanjay, returned back in the same vehicle to Jahangirpuri. PW5 has further stated that they searched for accused Sunil, but they could not find him, thereafter police went to Police station and he went to his house.
PW20 Constable Pervesh has also stated that at about 11 am, a secret informer informed the investigation officer that accused Sanjay wanted in this case has been seen at Railway Station. Raiding party was formed by investigation officer. Some public persons were asked to join the raiding party and out of them, one public person Moinuddin joined the raiding party and they all along with public person and secret informer reached at Delhi Railway station. Accused Sanjay was apprehended at the instance of secret informer, who was present in company Bagh, in front of the railway station. Accused Sanjay made a disclosure -:37:- statement that he could get recover the country made pistol from co-accused Sunil.
PW29 has further stated that accused Sanjay took them to village Bhalswa and while they were going to that village, near multi-storeyed flats, Jahangir Puri, accused Sanjay pointed out towards accused Sunil. Thereupon, they apprehended and arrested accused Sunil vide memo Ex. PW5/A which bears his signature at point A. Accused Sunil made disclosure statement which was recorded by Constable Pervesh Ex. PW1/A . Accused Sunil disclosed that he had thrown the empty cartridge in the bada nallah, Bhalswa Village. He further disclosed that the country made pistol had been sold by him to one Parmod for Rs.200/-. Accused Sunil also disclosed that Parmod could be apprehended from liquor shop in front of Subzi Mandi, Azadpur. Thereafter, they along with accused reached near liquor shop, Azadpur Mandi, where accused Sunil pointed out towards one person going into the street and stated that he was Parmod to whom he had sold country made pistol and thereafter accused Parmod was apprehended and arrested vide Ex. PW5/F. He further interrogated accused Parmod, who made disclosure -:38:- statement Ex. PW1/B, which was recorded by Constable Parvesh. Accused Parmod led the police party consisting of PW20 Constable Parvesh, PW19 Constable Rohtash, PW1 Mahavir and public witness PW5 Moinuddin to Mahendra Park in front of Subji Mandi, Azadpur and inside the park, from the right side corner, accused Pramod dug earth and brought out a country made pistol and handed over the same. PW29 Inspector Satyavrat took the same, which was found empty. He prepared the sketch of the same Ex. PW5/B and it was kept in a parcel and was sealed with the seal of 'SVY', which was taken into possession vide memo Ex. PW5/C. PW1 Constable Mahavir Sharan has stated that public witness PW5 Moinuddin met them and joined them at about 3.30 pm. They all reached at MIG flat, ITI, Jhuggi and on the pointing out of accused Sanjay, accused Sunil was apprehended. He was interrogated. He made disclosure statement, which is Ex. PW1/A. Thereafter, they reached near the ganda nala but empty cartridge could not be traced and thereafter they reached near T point, where secret informer informed to Investigating officer that accused Parmod Kumar wanted in this case has been seen in Mahindra Park. -:39:- Thereafter, at the instance of accused Sanjay and Sunil, accused Parmod Kumar was apprehended and his disclosure statement was recorded Ex. PW1/B. He disclosed that he could get recover one country made pistol and thereafter accused led them to the park and got recovered one country made pistol after digging the earth of the right corner. On checking, it was found empty. Investigating officer measured the pistol and prepared a sketch of the same and thereafter prepared the parcel and sealed the same with the seal of SVY and seized the same vide memo Ex. PW1/C. PW5 has stated that on 20/07/2000, he had gone to BJRM hospital for taking the medicine. Near the LIG flats, some police person were sitting in the vehicle and accused Sanjay was also sitting there and at the instance of accused Sanjay, accused Sunil was apprehended. Accused Sunil made disclosure statement Ex. PW1/A and disclosed that he had sold out the katta to one Parmod. Accused Parmod was also apprehended from near Mahindra Park and he also made disclosure statement and got recovered one country made pistol. Investigating officer prepared the sketch of the katta Ex. PW5/B after its measurement. Investigating officer -:40:- prepared a parcel and affixed a seal and seized it vide memo Ex. PW1/C. PW19 Constable Rohtash Kumar has stated that in the hospital, one person Moinuddin met them and joined the police party at about 3.30 pm. They all reached at MIG flat, ITI, Jhuggi and on the pointing out of accused Sanjay, accused Sunil was apprehended. He was interrogated. He made disclosure statement which is Ex. PW1/A. He disclosed that he could get recover one katta and one shell . He also disclosed that he had sold that katta to co-accused Parmod for Rs.200/- and had thrown away the shell in ganda nala, Bhalswa chowk. In the mean time, PW20 Constable Parvesh also reached there and joined them and they all tried to search out shell but could not recover the same. Thereafter they reached near T point, red light, where secret informer informed the Investigating officer that accused Parmod Kumar wanted in this case has been seen at country liquour shop, GTK road, and thereafter, they all reached there. At the instance of secret informer and Sunil, accused Parmod Kumar was overpowered and was formally arrested in this case. He made disclosure statement Ex. PW1/B in which he -:41:- disclosed that he could get recover one country made pistol and thereafter accused led them to the Mahindra park and got recovered one country made pistol after digging the earth of the right corner. On checking, it was found empty. Investigating officer measured the pistol and prepared a sketch of the same and thereafter prepared the parcel and sealed the same with the seal of SVY and seized the same vide memo Ex. PW1/C. PW20 Constable Parvesh has also deposed the same facts as deposed by other witnesses. He has stated that accused Sanjay was arrested vide ex. PW5/D, accused Sunil was arrested vide memo Ex. PW5/E and accused Parmod vide memo Ex. PW5/F. Their personal searches were conducted vide memo Ex. PW20/A, Ex.20/B and Ex.20/C. PW29 has further stated that after the recovery of pistol, accused Sanjay led the police party to Ram Lila ground, Jahangir Puri and after covering 15-20 paces, the accused lifted one rubber chappal of black colour, make SEIKO of left foot and handed over the same to PW29 and the same was kept in a parcel and sealed with the seal of 'SVY'. It was seized vide memo Ex.PW5/C. Seal after use -:42:- was handed over to public witness Moinuddin.
PW1 Constable Mahavir Sharan, PW5 Moinuddin, PW19 Rohtash have also stated the same facts regarding the recovery of chappal on the pointing out of accused Sanjay, who led the police party to Ramlila ground. All these witnesses have identified the katta as Ex.P1 and Chappal as Ex.P2. They have also identified all the three accused persons before the court.
Ld defence counsel has contended that witnesses cannot be believed regarding recovery of country made katta and chappal as it is clear from the cross examination of PW5 that he is a stock witness. He has further contended that katta was recovered from the park which was public place and chappal was also recovered from public place. No public person was joined in the investigation. He has further contended that no public person joined the proceedings as per the deposition of PW19. He has further contended that according to the deposition of PW29, he took private sumo from Rama Travel, Jahangir Puri, but none has been examined from Rana Travels to prove this fact that any such Sumo was given by them to PW29. He has further contended -:43:- that all accused persons have been falsely implicated in this case. He has further contended that offence u/s 201 IPC is not proved against the accused Pramod as according to the deposition of witness, accused Sanjay handed over the katta to accused Sunil and Sunil had sold the katta to accused Parmod. He has further contended that PW1 and PW29 have contradicted each other on the material facts. He has further contended that PW19 and PW20 have not identified accused Parmod and have contradicted each other about the place of arrest of accused Parmod and have also contradicted on material points with public witness Moinuddin.
PW21 is Dr. K Goel. He has stated that on 22/07/2000, he conducted the postmortem on the body of Ashok Kumar S/o Udav Giri, which was sent by Inspector Satyavrat, PS Jahangir Puri with alleged history of sustained fire arm injury and was declared brought dead in BJRM hospital on 20/07/2000. He found certain injuries on external examination. He has proved his postmortem report as Ex. PW21/A. According to him, cause of death was cranio cerebral injuries consequent upon fire arm injury. Injuries were antemortem in nature caused by fire arm. The clothes, -:44:- blood sample and bullet recovered from the body were sealed and handed over to the police. In the cross examination, PW21 has stated that there could be no other cause of death as per his opinion except explained by him in his postmortem report as Ex. P W21/A. PW25 is Dr Sanjay Kumar, CMO BJRM Hospital. He has appeared in place of Dr. Nirpal Singh as he has left the services of the hospital and his present whereabouts were not known. He has seen Dr. Nirpakl Singh writing and signing during the course of his official duties. He has proved the MLC of deceased Ashok Kumar Giri as Ex. PW25/A, who was brought by Head Constable Jai Singh and was declared brought dead. This witness has not been cross examined by Ld defence counsel in any manner. Both PW21 and PW25 have corroborated each other and from the deposition of PW21, prosecution has been able to prove that deceased Ashok Kumar Giri died due to fire arm injuries.
PW6 is Rameshwar Giri. He has stated that dead body of deceased was handed over to father of deceased. He has been cross examined by Ld APP, wherein he has admitted that he had identified the dead body of his brother in -:45:- law on 22/07/2000. He has further admitted that after the postmortem, Constable Raj Kumar had handed over to the Investigating officer, one sealed parcel sealed and sample seal of 'KLS', which were seized by the Investigating officer vide memo Ex. PW6/A. PW7 is Uday Giri. He has stated that on 22/07/00, he had identified the dead body of his son and, after the postmortem, he received the dead body vide memo Ex.PW7/A. Both the witnesses have not been cross examined by Ld defence counsel. Accordingly, prosecution has been able to prove the identity of the dead body and also that after the postmortem, it was handed over to the relatives of the deceased. It is also proved that PW21 Dr. K. Goel, after postmortem had handed over sealed parcel and sample seal to Constable Raj Kumar, who further handed over the same to Investigating officer which seized vide memo Ex. PW6/A. PW16 Inspector Devender Singh has stated that on 10/08/2000, on the instructions of the Investigating officer, he visited the place of occurrence, took rough notes and on pointing out of PW2 Anita. On the basis of those rough notes, he prepared scaled site plan Ex. PW16/A. Only suggestion -:46:- has been given to this witness by Ld defence counsel that he did not go to spot and had not prepared the site plan which has been denied by the witness.
PW4 is Head Constable Veer Singh. He has stated that on 20/07/2000, he was posted as MHC(M) of PS Jahangir Puri, and on that day, PW29, Inspector Satya Vrat deposited with him three sealed parcels sealed with the seal of 'SVY'. He has further stated that on the same day, one more sealed parcel sealed with the seal of 'SVY' was deposited by PW29, Inspector Satyvrat. On 21/07/2000, PW29, Inspector Satya Vrat again deposited with him two sealed parcels with the seal of 'SVY' and again on 22/07/2000, he deposited three sealed parcels with the seal of 'KLS' and the sample seal.
He has further stated that on 01/09/2000, the case property was sent to FSL, Malviya Nagar, through Constable Narinder vide Rc no. 178/21/2000. He has further stated that on 09/10/2001, the result from FSL were received through Constable Anoop. He made entries in this regard at serial no. 2876,2877,2881 and 2882 in register no.19. He has proved the photocopies of the entries as Ex.PW4/A. He has -:47:- also stated that so far as case property remained in his custody, none tampered with the same. Nothing came out from the cross examination of this witness to disbelieve his testimony. He has corroborated PW29 that the sealed parcels were deposited with him from time to time by PW29.
To prove the fact that recovered katta was in working condition, PW17 Constable Rich Pal has stated that on 31/08/2001, he was directed by the SHO and accordingly he went to shop no. M18, Connaught circus in front of fire brigade at Oriental arms and ammunition company and from there, he purchased cartridges of .315 bore for Rs.108 and handed over the slip and cartridges to the SHO.
PW23 Sh. J.P.S. Kochar has corroborated PW17 and has stated that he was sales executive with M/s Oriental Arms and Ammunition company situated at M-18, Connaught Circus and on 31/08/2000, he sold .315 cartridges which were to be used in a rifle, to Constable Richpal after seeing the special permit and authority letter in this behalf.
In the cross examination, he has stated that permit was in the name of Police station Jahangirpuri and authority letter was given by SHO. So both the witnesses -:48:- have corroborated each other that Cartridges were purchased on 31/08/2000 by PW17 from PW23.
FSL report has been tendered by Ld APP in evidence. First report is Ex. PX which is regarding the examination of one country made pistol .315 bore Ex.F1, one bullet Ex. EB1, three 8mm/.315" cartridges marked Ex. A1, A2 and A3. According to the result of examination, the country made pistol is designed to fire a standard 8mm/.315"
cartridge. It was in working order and the test fire conducted successfully. Regarding the Ex. A1, A2 and A3, these were live ones and could be fired through country made pistol examined by them. Ex. A1 and A2 were test fired through the country made pistol .315" bore marked Ex. F1 and recovered test fired bullets were marked as 'TB1' and 'TB2'. The bullet marked Ex.'EB1' corresponds to the bullet of 8mm/.315". The individual characteristics of striations on Ex. 'EB1' are insufficient to opine whether Ex. 'EB1' has been fired through exhibit 'F1' or not. It is further opined that country made pistol is firearm and Ex A1, A2 and A3 are ammunition as defined in the Arms Act 1959. So from the report of FSL Ex. PX, it is clear that no opinion has been -:49:- given that the .315" cartridge Ex. EB1, which was recovered from the body of deceased, was fired from Ex.F1 i.e. country made pistol.
Another report of FSL is Ex. PY. It is regarding examination of blood and chappal etc. Ex-2 soiled described as 'earth with blood'. Ex-3 is soil described as 'earth control'. Ex-4 is one black colour hawai chappal of right foot. . Ex.-6 is one black colour hawai chappal of left foot. After examination, the soil samples Ex.-2 and Ex.-3, it is opined that these were found to be possessing similar physical characteristics. Regarding Ex.-4 and Ex-6, it has been opined that they were found to be similar in respect of colour, size, design markings on the straps, general appearance and have similar wear and tear. Green colour spot were present under the sole of boht Ex.-4 and Ex.-6. According to the observation, it indicated that both the Hawai Chappal belong to one person.
According to the report Ex. PZ, blood was detected on Ex.1 (cotton wool) having dark brown stains. Ex.2 contains some earth material, Ex.7 is a piece of gauze cloth having dark brown stains i.e. blood of deceased, Ex.9A i.e. one full sleeved shirt having fungal growth, Ex.9b i.e. one -:50:- pant having fungal growth, Ex. 9C i.e. one banian having fungal growth and dark brown stains, Ex.9d i.e. one piece of cloth having brownish stains and Ex. 9E is one underwear.
Blood could not be deducted on Ex.3 i.e. some earth material. According to the FSL report Ex.PZ1, Ex. 2,7,9a-9e, there was human blood of A group. So the prosecution has been able to connect that blood which was found at the spot, was of deceased Ashok Kumar Giri, so also on Ex.2, earth material and was also on Ex7 gauze piece i.e. sample blood which was taken by the doctor.
PW27 Sh Satish Golcha has proved the sanction given by him. He has stated that on 30/09/2000, he was posted as Addl. Deputy Commissioner Police, North West District, Delhi. The case file of this case was submitted before him for grant of sanction u/ 39 of Arms Act for prosecution of accused Sanjay, Sunil and Parmod Kumar for committing the offence punishable u/s 25/27 of the Arms Act. On considering the material palce before him and after applying his mind, he has satisfied himself that all the three accused, in their conscious possessed country made pistol, which was recovered from accused Parmod Kumar without license, in -:51:- contravention of section 39 of Arms Act, 1959. Accordingly, he gave sanction u/s 39 of Arms Act for prosecution and proved the sanction as Ex. PW27/A. I have gone through the deposition of PW1 Constable Mahavir Saran, PW5 Moinuddin, PW19 Rohtash Kumar, PW20 Constable Parvesh Kumar, the contradictions as pointed out by Ld defence counsel which have come in their cross examination are minor in nature and are not material in any manner to disbelieve their testimonies regarding the arrest of the accused Sanjay and his disclosure statement. Consequently accused Sunil was arrested, who also made disclosure statement and accused Parmod was arrested who got recovered one country made pistol from the park.
Regarding the contentions of Ld defence counsel that PW5 Moinuddin is a stock witness, details of cases have not been put to him in his cross examination so witness was not having an opportunity to explain as to whether he was witness in other cases or not. PW29 Inspector Satyavrat has admitted that Moinuddin appeared in 2-4 murder cases which was investigated by him, but that does not mean he -:52:- was a stock witness. His deposition inspired the confidence and he is trustworthy. He is resident of Jahangirpuri and if he assisted police in 2-3 cases, it does not mean that he is a stock witness. Otherwise if none joined the investigation/ proceedings, then it is always said that no public person joined the investigation. So, in my view, PW5 Moinuddin cannot be termed as stock witness in any manner.
In this respect I rely upon 2008 CRLJ 325, Kulesh Mandal Vs State of West Bengal, wherein it has been observed by this court in State of Rajasthan Vs Smt Kalki & Anrs AIR 1981 SC 1390, that normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time. Due to mental disposition such as shock and horror at the time of occurrence and those are always there, however the honest and truthful the witness may be. Material discrepancies are those which are not normal and not expected by a normal person. Courts have to label the category to which the discrepancies may be categorized. While normal discrepancies do not corrode the creditability of a party's case major discrepancies do so.-:53:-
From the deposition of PW2 Smt Anita, PW10 Jai Kishan, PW11 Shri Kant Tiwari and PW28 Surender, who have corroborated each other and are trustworthy and have completed the chain of evidence, prosecution has been able to prove beyond reasonable doubts that on 19/07/00 at about 10.30 pm, PW2 heard the noise between Sanjay and deceased Ashok outside her jhuggi and in that quarrel accused Sanjay was asking deceased Ashok to return his money and was abusing him. PW2 has stated that she has recognized the accused through his voice. She has further stated that accused Sanjay was known to them as they were having visiting terms.
Such statement of PW2 also falsify the plea of Ld defence counsel that accused has been falsely implicated due to enmity. From the deposition of PW2, prosecution has also been able to prove beyond reasonable doubt that accused Sanjay was having a motive to kill the deceased Ashok.
PW2 has further proved that during the quarrel, she heard the sound of fire outside the jhuggi and when she came outside the jhuggi, she saw accused Sanjay was running towards Mangal Bazar with a revolver like weapon in -:54:- his right hand. She has further stated that while running, one of the chappal of accused Sanjay was left out and only with one chappal he ran from there. So the presence of accused Sanjay at the spot is proved from the deposition of PW2.
PW2 has also stated that she had also seen the body of deceased Ashok lying in front of her jhugghi and blood was oozing out from his head. Later her husband also came there and informed the police at 100 number. PW10 Jai Kishan has also proved that accused Sanjay was working as labourer with deceased Ashok and there was dispute of money between them. So he has also proved the motive for accused Sanjay to kill deceased Ashok.
PW28 Surender has also proved the motive and has stated that there was a dispute on money matters between accused Sanjay and deceased Ashok.
PW11 Shrikant Tiwari has proved that he called the police at 100 number. This fact is also proved by the prosecution beyond reasonable doubts, from the deposition of PW8 Kanti Sagar, who was the owner of STD booth that on 19/07/2000 at about 10.30 pm night, a call was made on 100 number to the police from his STD booth.-:55:-
From the deposition of Police witnesses, prosecution has been able to prove beyond reasonable doubt that after the information, PCR reached at the spot. Deceased Ashok was removed to BJRM hospital. DD no.77B was recorded in this respect. The case was got registered on the statement of PW2, blood sample, blood stained earth and earth control were seized from the spot. One right side foot chappal was also seized from the spot. During investigation, finger prints were taken from the spot. Photographs of the spot were taken and proved accordingly. Postmortem of dead body was got conducted. Blood sample, empty cartridges recovered from the head of deceased Ashok and clothes were taken into possession from doctor and were seized in this case. Cause of death was opined to be cranio cerebral injuries consequent upon fire arm injury.
From the deposition of PW21 and PW25, MLC and postmortem report of deceased have been proved. Other witnesses like duty officer, MHC(M), photographer, dog squad, site plan witnesses have completed the chain of evidence against the accused persons. After the postmortem, dead body was handed over to the relatives of the deceased. -:56:-
From the deposition of PW1 Constable Mahavir Saran, PW5 Moinuddin, PW19 Rohtash Kumar, PW20 Constable Parvesh Kumar and PW29 Inspector Satyvrat, prosecution has been able to prove beyond reasonable doubts, arrest of accused Sanjay, Sunil and Parmod in this case and regarding their disclosure statement, pointing out of place of incident, recovery of one left foot chappal on the pointing out of accused Sanjay from Mangal Bazar road. All the three accused were arrested in this case and their personal searches were also taken. On the pointing out of accused Sanjay, accused Sunil was arrested and on pointing out of secret informer accompanying with accused Sanjay and Sunil, accused Parmod was arrested. Accused Parmod got recovered one desi katta, which was sealed and seized in this case after preparing the sketch of the same. Ld defence counsel has contended that Katta has been recovered from the open place which cannot be said that it was recovered from the possession of accused. According to the seizure memo Ex. PW1/C, it was recovered from inside the MCD park after digging the soil.
All the witnesses have identified the chappal as -:57:- Ex.P1 and katta as Ex.P2. The prosecution has also been able to prove that right foot chappal was recovered from the spot and left foot chappal was got recovered by the accused Sanjay during investigation. From the report of FSL Ex. PY, it is proved that both the chappals belong to one person.
According to the FSL report, it has been opined that individual characteristics of striations on Ex. 'EB1' i.e cartridge recovered from the head of deceased, were insufficient to opine whether the said cartridge Ex. 'EB1' has been fired through the katta exhibit 'F1' or not. So, katta has not been connected with the cartridge Ex. EB1 which was recovered from the head of the deceased. So, neither the katta has been connected as the same which was handed over by accused Sanjay to accused Sunil who further sold the same to accused Parmod for Rs.200/- according to the disclosure statement of accused Parmod, nor the same could be stated to be in possession of the accused Parmod because it was recovered from public place, which was frequently visited by many people and was open and accessible to all and accused Parmod was not having any exclusive possession of the place from where the katta has -:58:- been recovered. Consequently, prosecution has not been able to prove that it was the same katta, which was handed over by accused Sanjay to Sunil and Pramod was possessing the same. Accordingly prosecution has not been able to prove offence u/s 25 of Arms Act and u/s 201 of IPC against accused Sunil and Parmod. So they both are acquitted from these offence.
From the deposition of witness as discussed above, they have corroborated each other and are trustworthy and have also completed the chain of evidence against accused Sanjay. So, prosecution has been able to prove the motive and the murder committed by accused Sanjay of deceased Ashok Kumar Giri and offence punishable u/s 302 of IPC has been proved against accused Sanjay beyond reasonable doubts for which he is held guilty and convicted for the same.
Ld defence counsel has contended that katta Ex. P2 as identified by the witnesses and as Ex. EB1 as marked by FSL officials, has not been connected with this case, hence offence u/s 27 of a Arms Act is not proved against accused Sanjay in any manner so he be acquitted. -:59:-
The recovery of weapon is not necessary. In support of same, I rely upon 2008 CRLJ 816, Umar Mohd Vs State of Rajasthan" wherein it has been held that "We also do not find any force in the submissions of the Ld counsel that the weapon of offence were not recovered. In any event, non- recovery of incriminating material from the accused cannot be a ground to exonerate them of the charges when the eye- witnesses by the prosecution are found to be trustworthy".
From the deposition of PW2, it is proved beyond reasonable doubt that, she heard the sound of fire outside her jhuggi and when she came outside the jhugghi, she saw accused Sanjay running with a weapon in his hand towards Mangal Bazar. She had also seen body of deceased lying outside the jhuggi having head injury and it has been proved from the postmortem report that cause of death was fire arm injury and cartridge was also recovered from the head of deceased Ashok, which shows that a fire arm was used to kill Ashok Giri.
In view of the above as the recovery of weapon is not necessary, prosecution has also been able to prove beyond reasonable doubts that weapon was used in -:60:- committing the murder of deceased, hence offence punishable u/s 27 Arms Act has been proved against the accused Sanjay for which he is held guilty and convicted for the same.
Announced in the open (Virender Kr. Goyal) Court on 06/11/09 Addl. District & Sessions Judge Fast Track Court: Delhi -:61:- IN THE COURT OF SH. VIRENDER KUMAR GOYAL ADDL SESSIONS JUDGE: FAST TRACK COURT ROHINI:DELHI SC No. 52/1 Date of Decision: 06/11/2009 Date of order on sentence: 11/11/2009 State Versus
1) Sanjay Son of Sh. Ram Kishore R/o Village Jogiya Math, PS Tajpur, District-Samastipur, Bihar.
FIR No. 383/2000 PS : Jahangirpuri U/s. 302 of IPC & 27 of Arms Act.
Order on sentence 11/11/2009 Present. Ld. Addl. PP for the State.
Convict Sanjay from JC with counsel Sh. D.S. Sidhu.
Learned defence counsel has contended that convict Sanjay is aged about 34 years and is married. He has one child, aged about 10 years old. He was a -:62:- rickshaw puller. Learned defence counsel further submits that convict has also to support his aged parents. His wife is also suffering from some neurological problem. He has further contended that since the day of his arrest, the convict is in J.C. He has further contended that convict was the sole bread earner of his family and the father of the convict is working as a Purohit and has no fixed source of income. The brother of the convict is already living separately from the family and the parents and the family of the convict are not getting help from the brother.
Learned defence counsel has further contended that the case does not fall withing the ambit of rarest of the rare case,hence a lenient view be taken against the convict considering the above facts and circumstances.
On the other hand, learned Addl. PP has contended that convict had committed murder of a handicapped person, who was not able to defend himself and convict has committed the murder of the deceased for just Rs. 1600/-. So, convict be dealt with strictly as per -:63:- provisions of law.
Considering the above facts and circumstances, family background and age of the convict, and also considering the facts of the case, imprisonment for life is awarded for offence punishable U/s. 302 of IPC upon convict Sanjay with fine of Rs. 2500/-( rupees two thousand and five hundred only). In default of payment of fine, he shall further undergo simple imprisonment for a period of six months.
Sentence of seven years simple imprisonment is imposed for the offence punishable U/s. 27 of the Arms act with fine of Rs. 2500/-(rupees two thousand and five hundred only) upon the convict. In default of payment of fine, he shall further undergo simple imprisonment for a period of six months.
Fine not deposited.
Both the substantive sentences of imprisonment shall run concurrently.
Convict is in J.C. since 20/07/2000 till today. Accordingly, benefit U/s. 428 of CrPC be given to convict -:64:- for the period already undergone by him in custody.
Convict is remanded to serve the sentence. A copy of this order be given to the convict free of cost.
Case property, if any be destroyed in accordance with rules on expiry of period of
appeal/revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court on 11th of November, 2009 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi -:65:-