Delhi District Court
State vs . Rohit Sehrawat & Anr. 1 on 7 June, 2013
IN THE COURT OF MR. UMED SINGH GREWAL
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS)
NORTH DISTRICT:ROHINI COURTS:DELHI
SC No.54/2008
FIR No.363/2008
PS Sultan Puri
u/s 302/120B/201 IPC &
u/s 25/27 Arms Act
State
Vs.
1. Rohit Sehrawat,
S/o Mahender Singh,
R/o PU24, Pitam Pura,
Delhi.
2. Mahender Singh,
S/o Surajman,
R/o PU24, Pitam Pura,
Delhi.
Date of institution:25.09.2008
Date when arguments concluded:30.04.2013
Date when Judgment pronounced:07.06.2013
State vs. Rohit Sehrawat & Anr. 1
Appearances: Ms. Purnima Gupta, APP for the State.
Mr. I.U. Khan, Counsel for both accused.
JUDGMENT
1. Both accused have been forwarded by the police to face trial u/s 302/120B/201 IPC and u/s 27 of Arms Act.
2. Facts of the case are that one Sujit Khatri purchased two acres of land in Panchkula, Haryana through both accused on their assurance that land would soon come within residential zone and would fetch double the price within a period of six months. Out of one acre of land purchased by Sujit Khatri, there was a verbal partnership of Rs.10 lacs between him and deceased Bhagatraj. Agreement/understanding with respect to doubling of amount within six months was verbal. There was another verbal understanding between accused on one side and Sujit Khatri and Bhagatraj on another side that after conversion of land in residential zone and doubling of the price, Sujit Khatri and Bhagatraj were to give 30% of the profit to accused and accused had also assured that in case, the land did not come under residential zone, they would compensate Bhagatraj and Sujit Khatri by offering another piece of land. The land could not be converted State vs. Rohit Sehrawat & Anr. 2 into residential zone and so, the price also could not be shoot up. The accused neither handed over the papers nor offered any other piece of land as per verbal agreement. On 29.05.2008, Bhagatraj had gone to accused persons to demand papers and agreement, accused Mahender told him blatantly to forget about the land and threatened that he would lose life if he tried to stir up the matter. Accused Rohit Sehrawat called him at his office on 30.05.2008 in connection with a dispute. On that day, Bhagatraj went to his cousin brother Suraj Bhan at 12.00 P.M. and he was looking disturbed and on inquiry, he told him that accused Mahender Singh was not giving him the papers of the land which was purchased through him despite making of the whole payment. Suraj Bhan accompanied Bhagatraj to the office of accused Rohit in Sector24, Rohini, Delhi in his car. After parking the car outside the office, Bhagatraj moved towards the office of accused Rohit Sehrawat which was in plot No.271, Pocket8, Sector24, Rohini and Suraj Bhan was following him. Rohit fired three bullets at Bhagatraj as soon as he entered the office. One of the bullet pierced the chest and Bhagarraj fell on the floor. Accused took to his heels. Bhagatraj was taken to Bhim Rao Ambedkar hospital and State vs. Rohit Sehrawat & Anr. 3 from there, he was taken to Saroj hospital where he breathed his last at 3.00 P.M. FIR was registered on the statement of Suraj Bhan u/s 307 IPC.
2.1. Initially, the investigation was done by SI Deepak Malik. After invoking of section 302 IPC on the same day, further investigation was picked up by SHO Mahender Singh who inspected the spot and lifted the exhibits from the scene of crime. Accused Rohit was arrested on 01.06.2008 and disclosed that he used his licensed weapon in the commission of crime. That weapon could not be recovered. Investigation was handed over to AntiHomicide Section, Crime Branch, Delhi on 05.06.2008 and till the end, it was done by Insp. K.G. Tyagi. Mr. Randhir Singh, the father of the deceased submitted a written complaint on 06.06.2008 that accused Mahender Singh had conspired with his son Rohit to murder his son Bhagatraj. In this way, Section 120B IPC was invoked. Accused Rohit got recovered .30 caliber Spring Field rifle and two live cartridges having marks on bottom as S & B SPRG 3006 ALM. Two other cartridges of 7.65 KF were also seized from his house. He pointed out the place near drain near village Bhalaswa Dairy where he had thrown his mobile phone and the State vs. Rohit Sehrawat & Anr. 4 same was recovered in pursuance to that disclosure statement. Accused Mahender was arrested on 11.06.2008 and he got recovered .32 bore revolver, arms licence, Nokia phone No.981122626.
2.2. During investigation, police came to know that accused Rohit Sehrawat had got the arms licence from the office of District Magistrate, Jhajjar, Haryana on his address of Bahadurgarh though he was a permanent resident of PU24, Pitam Pura, Delhi. Despite expiry of thirty days, he did not inform the concerned DCP(Licensing), Delhi. Despite receipt of notice of D.M. Office, Jhajjar for production of .32 pistol and its licence, the accused did not submit those articles before the office.
3. Charge u/s 302/120B IPC was framed against father and son duo on 20.07.2009. Additional charge against accused Rohit Sehrawat is u/s 27 Arms Act and u/s 201 IPC. Both accused claimed trial.
4. In order to establish the charge, prosecution examined forty two witnesses. Only two witnesses were examined by the accused in defence.
5. PW1 R.K. Singh, Nodal Officer, Bharti Airtel proved the State vs. Rohit Sehrawat & Anr. 5 record of mobile phone No.9871381017. He deposed that initially, the said connection was activated on 03.02.2005 in the name of Mr. Marut Prasad but on 21.02.2005, it was transferred in the name of one Mr. Deen Dayal. Connection was transferred on the joint application of Deen Dayal and Marut Prasad. Customer Application Form is Ex.PW1/X, request letter of Deen Dayal is Ex.PW1/Y and request letter of Marut Prasad is Ex.PW1/Z. Scanned copy of photograph of Deen Dayal is Ex.PW1/C and his voter Icard Ex.PW1/D. Call detail record of the said mobile phone from 29.05.2008 to 01.06.2008 running into seven pages is Ex.PW1/G. PW26 Raj Kumar, Nodal Officer of Reliance Communication, proved the record of mobile phone No.9350281171 which was in the name of Manohar Lal. Customer Application Form is Ex.PW26/B, voter Icard of Manohar Lal is Ex.PW26/B and call detail record from 25.05.2008 to 30.05.2008 is Ex.PW26/C. This witness also proved the record of mobile phone No.9313541661 in the name of Suraj Bhan. Its Customer Application Form is Ex.PW26/D. Photocopy of D.L. of Suraj Bhan is Ex.PW26/E and call detail record from 25.05.2008 to 30.05.2008 is Ex.PW26/F. PW27 Mr. Anuj Bhatia is the Nodal State vs. Rohit Sehrawat & Anr. 6 Officer of Vodafone Mobile Services and he deposed that as per their record, mobile phone No.9811500024 was in the name of accused Rohit Sehrawat. He proved the Customer Application Form as Ex.PW27/A, photocopy of D.L. of accused Rohit Sehrawat as Ex.PW27/B and the call detail record from 30.05.2008 to 11.08.2008 as Ex.PW27/C. This witness also brought the record of telephone No.9811122626 of accused Mahender Singh. Customer Application Form is Ex.PW27/D and photocopies of MTNL bill and voter Icard of accused Mahender Singh as collectively Ex.PW27/E. Call detail record of the said phone from 30.05.2008 to 11.08.2008 are Ex.PW27/F.
6. PW3 Ajit Singh is the cousin brother of deceased Bhagatraj and he identified the dead body. PW5 Randhir Singh is the father of the deceased and he identified the dead body in the mortuary of SGM hospital.
6.1. PW7 HC Rajesh Kumar was MHCM in PS Sultan Puri on 30.05.2008. On that day, SHO Mahender Singh deposited ten sealed pullandas with him - one pullanda was having seal of Saroj hospital, six pullandas had seals of MS, two pullandas had seals of SGMH Mortuary, Mangol Puri and one pullanda had seal of KGT.
State vs. Rohit Sehrawat & Anr. 7He made entry No.11393 in register No.19. On the same day, SHO deposited with PW7 video cassette and he made entry No.11394. Vide entry No.11395, same day, SHO deposited one fired bullet lead and blood gauze piece of deceased. On the same day, SI Deepak Malik deposited one cloth pullanda with him and PW7 made entry NO.11396. Same day, a blood sample pullnada having seal of MS and one pullanda of fired cartridge sealed with the same seal were deposited by SHO and he made entry No.11397 and 11398. A pullanda containing clothes of accused Rohit and having seal of MS was deposited with him by Insp. Mahender Singh on 01.06.2008 and he made entry No.11405. Vide entry No.11407 dated 02.06.2008, vehicle No.DL4CAJ2041 was deposited in the malkhana by SHO Mahender Singh. One blood sample taken from car No.HR26H3071 was deposited with him by the same SHO on 03.06.2008 and he made entry No.11410. Insp. K.G. Tyagi deposited the bill book and arms and ammunition register with him on 10.06.2008 and he made entry No.11428. On the same day, pullandas containing mobile phone, rifle and two live cartridges having seal of KGT were deposited with him. Personal search articles of accused Mahender Singh were deposited with him by State vs. Rohit Sehrawat & Anr. 8 Insp. K.G. Tyagi and he made entry No.11431. Mobile phone of accused Mahender Singh was deposited on 12.06.2008 and he made entry No.11433. The PW7 further deposed that as per the direction of Insp. K.G. Tyagi, he handed over ten sealed pullandas on 02.07.2008 to SI Sanjeev Kumar vide RC No.108/21/08 for deposit in FSL. Six, out of all these pullandas, had seals of MS, two had seals of Saroj hospital and two pullandas were having seal of SGMH hospital Mortuary, Mangol Puri. Three sample seals were also handed over to SI Sanjeev Kumar. On 12.02.2009, HC Balender Singh brought three pullandas from FSL having seals of FSL and deposited with PW7 for which he made entry No.11394. One pullanda from them was given to Insp. Anand Singh. He proved the relevant entries in register No.19 as collectively Ex.PW7/A, RC as Ex.PW7/B and acknowledgment receipt given by FSL as Ex.PW7/C. PW8 HC Ramesh Kumar was MHCM on 20.08.2008. On that day, he handed over two pullandas having seal of MCG and one sample seal to ASI Rajbir Singhfor depositing the same with FSL. He proved the RC as Ex.PW8/A and receipt acknowledgment as Ex.PW8/B. PW9 Abdul Sattar was requisitioned by Delhi police to search the weapon of offence which State vs. Rohit Sehrawat & Anr. 9 was allegedly thrown in the Gang Nahar by accused Rohit Sehrawat. He deposed that on 09.06.2008, he accompanied Delhi police officials to Gang Nahar, Murad Nagar, U.P. Accused Rohit Sehrawat was also with the police officials. He further deposed that accused Rohit threw a stone in the canal to indicate the place where he had thrown the pistol. He along with his two associates searched for the pistol but could not find. He was paid Rs.1,000/ for his labour. PW10 deposed that Tuscon car No.DL4AG2041 belonged to his fatherinlaw Daljit Singh Chawla who had expired before his marriage on 26.01.2008. After marriage, PW10 came to know that the said car was sold fraudulently by a lady who was like mistress to his fatherinlaw. He identified the signatures of his wife Gurmeet Kaur Chawla on application dated 10.01.2008 Mark PW10/A and another application dated 27.11.2007 Ex.PW10/B addressed to SHO, PS Rajouri Garden. PW14 ASI Paitu Oraon got registered case FIR Ex.PW14/A through computer operator at 3.00 P.M. on receipt of rukka brought by Ct. Raman and sent by SI Deepak Malik. After FIR, he recorded DD No.23 Ex.PW14/C. He handed over original rukka and copy of FIR to Ct. Raman. PW15 Rajender Singh is L.D.C. in the office of Dy. Commissioner, State vs. Rohit Sehrawat & Anr. 10 Sonepat, Haryana and he deposed that licence No.982/DN/SNP/96 was issued from his office in the name of accused Mahender Singh and it was valid upto 17.03.1999. As per the record of that office, .32 bore revolver No.D81994 was entered against the said licence on 13.06.1997. The licence was suspended on 09.07.2008, PW16 Mr. Vinod Kumar is the Record Keeper of Passport and Licence in Dy. Commissioner Office, Jhajjar, Haryana. He deposed that as per report maintained by his office, arm licence No.159/VIII/DN/JJR/06 dated 10.08.2006 was issued in the name of accused Rohit Sehrawat on the address house No.27A/9, Dharam Vihar, Bahadurgarh, District Jhajjar. One NPB .32 bore pistol No.9196 and one NPB .30 rifle No.869091 were registered against that licence which was valid upto 09.08.2009. He further deposed that on 30.06.2008, a show cause notice was issued to the accused Rohit Sehrawat to surrender the weapon and licence but he preferred not to respond and so, reminder was sent to him on 19.08.2008 vide letter No.2059/PLB but till the day of his examination, no response was filed from Rohit Sehrawat. Copy of show cause notice is Ex.PW16/A. PW17 Ravi Raj Chhillar is the arms and ammunition dealer from where accused Rohit Sehrawat State vs. Rohit Sehrawat & Anr. 11 had purchased the pistol and cartridges. He is running Chhillar Gun House at B22, Shamji Complex, Main Street, Rohtak Road, Bahadurgarh. He deposed that some police officials came to him on 02.06.2006 and asked him to show the documents vide which an arm was sold to Rohit Sehrawat. After checking the record, he told them that a pistol and a rifle had been sold to Rohit. He was summoned to PS Sultan Puri and he accordingly went there on 04.06.2008 along with original record. He again went to PS on 10.06.2008 and the record was seized by the police vide seizure memo Ex.PW17/A. During his evidence, the counsel for accused conceded that he was not insisting for the production of original register and bills as the factum of purchase of rifle and pistol by accused Rohit from PW17 was not disputed. Still, as a matter of caution, relevant bills and register were exhibited as Ex.PW17/B. PW18 SI Gyanender Singh lifted four chance prints from the glass top of the table lying in the premises of accused Rohit popularly known as M/s Rohit Associates, plot No.271, Pocket No.8, Sector 24, Rohini. He prepared the crime scene report Ex.PW18/A. PW19 Ishwar Singh is Food and Supply Inspector at Bahadurgarh, Haryana. His office had issued ration card No.026287 in the name State vs. Rohit Sehrawat & Anr. 12 of accused Mahender Singh on the address house No.27A, Ward No.9, Dharam Vihar, Bahadurgarh, Haryana. It is pertinent to mention that the said ration card was used by accused Rohit to take arms licence from Jhajjar.
7. PW21 HC Mahender Singh deposed that he visited the spot with crime team on 30.05.2008 and saw blood near the door of the office and near the table inside the office. Two empty cartridges were lying on two sofas and a lead of cartridge was lying nearby. A pair of black shoes, seemingly gents one, were also lying near the main gate. He took ten photographs Ex.PW21/1 to Ex.PW21/10 of the spot. The negatives are collectively Ex.PW21/11. PW22 SI Satpal was the Incharge of mobile crime team on 30.05.2008. On the receipt of message on that day from control room, he along with his team visited the spot. He proved his report as Ex.PW22/A.
8. PW23 Dr. Bhavna Jain deposed that injured Bhagatraj was brought to BSA hospital on 30.05.2008 at 12.35 P.M. with the history of gun shot injuries. She prepared MLC Ex.PW20/DA and referred the patient to Senior Resident Surgery and anesthesia for management and opinion. PW28 Dr. Anil Kumar Rawat, State vs. Rohit Sehrawat & Anr. 13 Consultant Surgeon, Saroj hospital deposed that Bhagatraj was referred to his hospital on 30.05.2008 from Amebdkar hospital and he examined the injured. His condition was very serious and pulse was not palpable. B.P. had gone so low and it was not recordable. The patient was operated by a team of doctors including PW28 but he could not be saved and was declared dead at 3.30 P.M. He proved the death summary as Ex.PW28/A. PW25 Dr. V.K. Jha conducted postmortem on 30.05.2008 vide PMR Ex.PW25/A. He found following external injuries: I. Lacerated/penetrating wound on front of chest, 1cm x 1cm into cavity deep, placed 5cm obliquely medially below left nipple. Direction of the fire arm injury was from left to right and plain was above downward. Tattooing was present in area of 3cm x 2cm around the lacerated wound. (The entry wound was of firearm).
II. Lacerated punctured wound on right dorsum of hand 1cm x 1cm at metacrpo phalangeal joint of ring finger. No burning, singing, tattooing present. III.Lacerated perforated wound on palmar aspect at the State vs. Rohit Sehrawat & Anr. 14 base of little finger 1.3cm x 1cm. Margins were everted. Exit wound of injury No.2.
IV.Lacerated punctured wound of size 1cm x 1cm on anterior aspect of leg, 7cm below right knee joint. Tattooing present. No burning, singing present. (Entry wound of the firearm).
V. Lacerated perforated wound just opposite to the injury No.4, 1.5cm x 1.5cm in posterior aspect of right leg. Margins were everted. (Exit wound of injury No.4).
VI.Sutured wound on left side of front of chest extending from midline to left posterior axillary line.
VII.Sutured wound extending from epigastrium to just below umbilicus.
On internal examination, after exploring the injury No.1, he found that bullet had entered into the chest cavity rupturing the right pleura and right diaphragm. and thereafter, entered the right lobe of lever and got lodged between L1 and L2 vertebra.The doctor opined the cause of death as combined effect State vs. Rohit Sehrawat & Anr. 15 of asphyxia and hemorrhagic shock due to firearm injury No.1. All injuries were antimortem in nature and caused by firearm. Weapon used has been opined as rifle. Injury No.1 was sufficient to cause death in the ordinary course of nature. After sealing the blood gauze piece and bullet in a jar, the same was handed over to the IO. PW29 Naresh Kumar, Sr. Scientific Assistant, FSL, Rohini visited PS Sultan Puri on 03.06.2008 where he examined Hyundai Tuscon car No. DL4AG2041 and Maruti Sen car No. HR26H 3071. On examination, PW29 and his associates Ms. Monika Chakraborty found blood on the rear seat of Maruti Zen car. He proved his report as Ex.PW29/A. PW30 SI Mahesh Kumar prepared scaled site plan Ex.PW30/A on 17.08.2008 at the pointing out of Suraj Bhan.
9. PW32 SI Deepak Malik and PW34 Ct. Raman were the officials who first reached the place of firing on receipt of DD No.20. They came to know that injured had been taken to the BSA hospital. In the meantime, some police officials like HC Sukhbir and Ct. Naresh had also come there. HC Sukhbir was left at the spot and both officials went to BSA hospital and obtained the MLC of the injured. From there, they came to know that injured was State vs. Rohit Sehrawat & Anr. 16 shifted to Saroj hospital for better treatment by his family members, and hence, they also reached Saroj hospital where Bhagatraj was found admitted in ICU. PW32 found eye witness Suraj Bhan there who was the cousin of the injured. He recorded his statement Ex.PW2/A, prepared rukka Ex.PW32/A and handed over the same to Ct. Raman for registration of FIR. In the meantime, SHO Mahender Singh also reached the said hospital. Clothes of he injured Bhagatraj were handed over by the doctors of the Saroj hospital to PW32 and he took them into possession vide memo Ex.PW6/F. PW2 came to know in hospital itself that Bhagatraj had died and so, further investigation was handed over to SHO Mahender Singh. PW2 Suraj Bhan and other police staff accompanied SHO Mahender Singh to the spot i.e. M/s Rohit Associates. Crime team was also present there who inspected the spot and took snaps. IO lifted blood from the floor near the main door and also lifted blood stained piece of floor after breaking it. These were put into a container and were sealed with the seal of MS. Blood was also lifted from the floor lying near the main table of the office and it was kept in a plastic container and sealed with the seal of MS. Plain piece of floor from near the main gate of the State vs. Rohit Sehrawat & Anr. 17 office was also seized after breaking the floor, it was kept in a plastic container and seal of MS was affixed. All three plastic containers were seized vide memo Ex.PW2/B. One empty shell of 7.65mm lying on the sofa kept adjacent to the North wall of the office, another empty shell of 7.65mm lying on sofa kept adjacent to the South wall and one lead lying between table and door of the office were lifted and kept in a plastic container which was sealed with the seal of MS. The container was seized vide memo Ex.PW2/C. A pair of black shoes lying inside the office and identified by Suraj Bhan to be of Bhagatraj were seized vide memo Ex.PW2/D. Seal after use was handed over by SHO Mahender Singh to PW32. The office of accused Rohit was locked and all left to SGM hospital for postmortem and P.M. proceedings were recorded by a videographer, cassette of which was seized vide memo Ex.PW32/B. After postmortem, the doctor handed over an envelope sealed with the seal of SGMH mortuary, Mangol Puri, Delhi stated to be containing blood gauze piece of deceased Bhagatraj and one transparent plastic container with the same seal containing lead stained with blood. These articles were seized vide memo Ex.PW32/C. PW32 again joined investigation on 09.06.2008 State vs. Rohit Sehrawat & Anr. 18 with SHO Mahender Singh. These police officials along with accused and a team of divers including Abdul Sattar reached Gang Nahar, Murad Nagar. He further deposed that on the pointing out of accused Rohit, the divers searched the pistol and the licence in the canal but nothing could be recovered, and hence, nonrecovery memo Ex.PW32/D was prepared. On the way, the accused Rohit Sehrawat got recovered his Hyundai Tuscon car from Karkardooma Institutional Area which was seized vide memo Ex.PW32/E. He identified the pair of shoes of the deceased as Ex.P1, blood stained broken pieces of floor as Ex.P3, blood stained cotton wool lifted from inside the office as Ex.P4, floor pieces lifted from inside the office of accused Rohit as Ex.P5, empty shells and lead recovered from the shot as Ex.P6, Ex.P7 and Ex.P8, lead handed over to the police by the P.M. doctor as Ex.PW32/P1. Hyundai Tuscon car No.DL4CAG2041 was not produced during the evidence of PW32 as its identity was not disputed by the defence. PW32 deposed lastly that accused Rohit was arrested on 01.06.2008 from a place outside Jaipur Golden hospital.
9.1. PW34 Ct. Raman had accompanied PW32 to the spot and he deposed that rukka was handed over to him by SI Deepak State vs. Rohit Sehrawat & Anr. 19 Malik in Saroj hospital. After getting registered the FIR in PS Sultan Puri, he returned to Saroj hospital and handed over copy of FIR and original rukka to PW32.
10. PW33 SI Gulshan Gupta deposed that he along with SI Deepak Malik and Ct. Mahesh joined investigation with SHO Mahender Singh and reached Jaipur Golden hospital on 01.06.2008. A person, namely, Narvir met them and introduced himself as an Advocate and he produced Rohit before the SHO saying that he was the same person who was wanted by the police. After interrogation, he was arrested vide arrest and personal search memos Ex.PW33/A and Ex.PW33/B. His disclosure statement Ex.PW33/C was recorded in PS. The clothes worn by the accused were seized vide memo Ex.PW33/D. Thereafter, the accused led police party to the place of occurrence i.e. plot No.271, Pocket8, Sector24, Rohini and pointed out it as the place where firing had taken place. Pointing out memo is Ex.PW33/E. He identified the white shirt and shoes of the accused as Ex.PW33/F and Ex.PW33/G respectively.
11. PW31 SI Girish Chander deposed that he along with SHO Mahender Singh and other staff members searched accused State vs. Rohit Sehrawat & Anr. 20 Mahender on 03.06.2008 but in vain. They reached to the house of the deceased where his father Randhir Singh showed them a car bearing registration No.HR26H3071 stating that Bhagatraj was shifted to the hospitals in that car and it was of the deceased. That car was seized vide memo Ex.PW31/A. He further deposed that cars of the accused Rohit and of the deceased were inspected in PS by crime team and FSL expert. During inspection, the FSL expert cut one piece of seat cover of the car of the deceased as it was having blood stains and handed it over to SHO Mahender Singh who seized it vide memo Ex.PW31/B. On the same day, PW31 accompanied the police party and accused to Dehradoon. Accused Rohit Sehrawat pointed out a place in a jungle about 1 km. away from Dehradoon where he had concealed the weapon of offence but the same could not be recovered, and hence, nonseizure memo was prepared. Thereafter, accused led them to house No.24, Old Mussoorie Road, Dehradoon where his servant was found present. Despite thorough search of the house, weapon of offence could not be recovered. He identified the car No.HR26H3071 as Ex.P9. He identified the piece of seat cover of car of deceased as Ex.P31/1.
12. PW36 SI Sanjeev Kumar deposed that accused Rohit State vs. Rohit Sehrawat & Anr. 21 Sehrawat made disclosure statement Ex.PW36/A on 06.06.2008 in PS Crime Branch in his and IO Insp. K.G. Tyagi's presence. On 10.06.2008, second IO K.G. Tyagi seized bill book pertaining to the sale of gun and cartridges and register from Ravi Chhillar. They were turned into a cloth parcel and sealed with the seal of KGT and were taken into possession vide memo Ex.PW36/B. He identified both bill books as Ex.PW36/1 and Ex.PW36/2 and both registers as as Ex.PW36/3 and Ex.PW36/4. He further deposed that on the same day, accused Rohit Sehrawat led police party to his house No.PU24, Pitam Pura, Delhi and got recovered a rifle and two live cartridges after lifting the same from double bed which were seized vide memo Ex.PW36/C. He identified the rifle as Ex.PW36/5 and both live cartridges as Ex.PW36/6 (collectively). Thereafter, accused took out two live cartridges from the drawer of the almirah on which words "KF 7.65" were mentioned. These were put into a match box which was sealed with the seal of KGT and were taken into possession vide memo Ex.PW36/D. Base of both cartridges were having colour. He further deposed that if these cartridges are fired, the colour would spread on the base and these cannot be used again. He identified both live cartridges as State vs. Rohit Sehrawat & Anr. 22 Ex.PW36/7(collectively). On the same day, thereafter, the accused Rohit led police party to a place near the red light of Bhalaswa village. The place was also near to a pavement adjoining the drain(ganda nalah). The accused Rohit Sehrawat took out mobile phone wrapped in paper which was lying under a stone. It was found containing a SIM of Hutch company. Mobile as well as SIM were sealed with the seal of KGT and were taken into possession vide memo Ex.PW36/E bearing his signatures at point A. When the mobile was produced in the Court, it was found having IMEI number 356974015651371 and number of SIM of Hutch company was 00058101750. He identified the mobile and SIM as Ex.PW36/8 collectively. Next day, i.e. on 11.06.2008, IO prepared a raiding team comprising of SI Mukesh Kumar, ASI Jai Singh, HC Omender Kumar, HC Sanjay and PW36 as he had some secret information that accused Mahender Singh would come at Sector7, Rohini. All police officials reached near Punjabi Rasoi, Sector7. IO and asked 45 passersby to join th raiding party but all refused. The secret informer pointed out towards a person at 11.30 A.M. saying that he was Mahender Singh. Mahender Singh was apprehended, brought to the office of Crime Branch, Rohini and his State vs. Rohit Sehrawat & Anr. 23 disclosure statement Ex.PW36/F was recorded after interrogation. He was arrested vide arrest and personal search memos Ex.PW36/G and Ex.PW36/H. On that day itself, original documents produced by Hem Chander @ Guddu were seized by the IO vide seizure memo Ex.PW12/A. He identified those documents as Ex.PW12/B running into seven pages. The documents produced by Sujit Khatri were seized vide memo Ex.PW4/B and have been identified by PW36 as Ex.P10 running into fourteen pages. He further deposed that he again joined investigation on 12.06.2008 and on that day, accused Mahender Singh got recovered one revolver of Webley Scot Company from his room. It was sealed with the seal of KGT and was taken into possession vide memo Ex.PW36/I. Licence was seized vide memo Ex.PW36/J. This witness identified the arms licence in the name of accused Mahender Singh as Ex.PW36/8 and recovered revolver as Ex.PW37/9. He further deposed that Nokia mobile phone 1110U along with SIM of Vodafone company was taken into possession vide memo Ex.PW36/A and identified the said phone bearing IMEI No.3548410191013335 and telephone No.9811122626 as Ex.PW36/10. PW36 collected ten sealed parcels from MHCM of PS State vs. Rohit Sehrawat & Anr. 24 Sultan Puri on 02.07.2010 vide RC No.108/21 Ex.PW7/B and deposited with the FSL and after deposit, handed over receipt acknowledgment to the MHCM.
12.1. PW37 SI Mahesh Kumar deposed the facts of the investigation dated 06.06.2008, 10.06.2008 and 11.06.2008. These facts have already been discussed in the testimony of PW36. Additional facts deposed by him are that on 07.06.2008, as per the direction of IO K.G. Tyagi, he along with ASI Jai Singh, HC Omender etc. and accused Rohit went to Panchkula to make inquiry of a person, namely, Deen Mohd. who was the mediator in property dealings. After recording his statement u/s 161 Cr.pC, Deen Mohd. was discharged and then, the police team headed to Dehradoon and reached there on 08.06.2008. The accused led the team to his house in Dehradoon but nothing incriminating was recovered, and hence, nonrecovery memo Ex.PW37/A was prepared. PW37 along with other police officials, accused Rohit and three divers went to Murad Nagar on 09.06.2008 On the pointing out of a place, the divers searched the weapon of offence in the Gang Nahar but it could not be recovered. He further deposed that he moved an application on 14.07.2008 before the State vs. Rohit Sehrawat & Anr. 25 Court for taking the specimen signatures of accused Rohit. The application was allowed and signatures of the accused were obtained on fifteen blank sheets, each sheet was containing twelve signatures. He identified the two cartridges KF 7.65 got recovered by accused Rohit as Ex.PW36/7, other two live cartridges (also got recovered by accused Rohit) as Ex.PW36/6 and rifle as Ex.PW36/5. He identified mobile phone of accused Rohit as Ex.PW36/8 and fifteen specimen signature sheets as 37/1.
13. PW38 Ms. Deepa Sharma is the Scientific Director Documents in FSL Rohini, Delhi. 15 signatures sheets of accused Rohit Sehrawat and four volumes of documents two registers and two bill books issued by M/s Chhillar Gun House were assigned to her for examination. The specimen signature sheets were marked as S1 to S15. Three entries in the two register of Daily Sales Register of Arms & Ammunition of M/s Chhillar Gun House were marked Q1 to Q3 and three entries in two bill books of the same Gun House were marked as Q4 to Q6. She opined that the person who wrote the signatures on S1 to S15 also wrote the signatures on Q1, Q2, Q4, Q5 and Q6. It was not possible for her to express any opinion on rest of the item. Her report is Ex. PW38/A, bearing her State vs. Rohit Sehrawat & Anr. 26 signature at point A. 13.1. PW39 Mr. K. C. Varshney is Assistant Director, Ballistic Division, FSL Rohini. He deposed that parcel numbers 5,6 and 10 were assigned to him for examination and opinion. After examination he opined that cartridges marked A1 and A2 contained in parcel No.10 were live and could be fired through 7.65 mm caliber fire arm. 7.65 mm cartridge cases marked EC1 and EC2 (fired empty cartridges) contained in parcel No.5 have been opined to have been fired through the same fire arm i.e. through 7.65 mm caliber fire arm. He opined that the deformed bullet marked Ex.EB1 and EB2 contained in parcel No.6 corresponded to the bullet of 7.65 mm and had been discharged through improvised fire arm. Lastly he opined that Mark A1 to Mark A2, EC1 and EC2 and EB1 and EB2 were ammunition/part of ammunition as defined in Arms Act. He proved his report dated 06022009 as Ex. PW39/A bearing his signature at point A.
14. PW41 ASI Rajbir Singh deposed that on 1282008 he visited the office of Dy. Commissioner, Jhajjar and inquired about the licence of accused Rohit Sehrawat. He found it to have been issued from that office and hence recorded statement of Jitender State vs. Rohit Sehrawat & Anr. 27 Kumar, who was concerned official in that office. He also verified the ration card of accused Mahender Singh and his driving licence, both issued from Bahadurgarh. On 2082008, as per the instructions of IO, he went to PS Sultanpuri and handed over an envelope and FSL form to HC Ramesh vide RC No.133/21/08. 14.1. PW42 Manohar Lal deposed that he had purchased a mobile phone No.9350281179 in 2005 and sold it to Bhagatraj in March, 2005 for Rs. 4000/ he identified his signatures on CAF Ex.PW26/A. 14.2. PW35 ACP Mahender Singh is the crucial IO. The facts deposed by this witness have already been discussed in the testimony of other witnesses. Additional facts are that he conducted inquest and prepared report Ex.PW35/A. He made request Ex.PW35/B to the CMO to conduct postmortem on the body of Bhagatraj. His request Ex.PW35/C was handed over to the CMO to preserve the dead body for 24 hours. He wrote a letter Ex. PW35/D to District Magistrate, Jhajjar to verify if any weapon licence had been issued to accused Rohit Sehrawat and the reply came in affirmative. He further deposed that duty officer handed him over driving licence and ration card of accused Rohit on 0506 State vs. Rohit Sehrawat & Anr. 28 08, saying that the same were delivered by one Mr. Narvir Singh, Advocate. He seized these documents vide memo Ex. PW35/E. He identified the ration card as Ex.PW19/A and DL as Ex.PW35/F.
15. PW40 Inspt. K. G. Tyagi concluded the investigation and filed chargesheet. He deposed that investigation of the case was entrusted to him on 05608. Randhir Singh, father of deceased came to his office on 06620087 and handed over complaint Ex. PW40/A consequent to which section 120 B was invoked. On 1162008, he paid Rs.1000/ to divers Abdul Sattar and his Associates and took into possession receipt Ex.PW40/B. He further deposed that Mr. Ravi Raj Chhillar came to his office on 12 62008 and produced the photocopy of application Ex. PW40/C regarding sale and transfer of Arms and ammunition of .32 bore pistol No.9196 made in USA. He also produced a carbon copy of sale register regarding entry No.1948 qua Rohit Sehrawat vide which .30 bore rifle was entered. That photocopy is Ex. PW40/D. Bill Ex. PW40/E regarding purchase of said rifle was also produced. All these documents were seized vide memo Ex.PW40/F. On 136 08, he moved an application Ex.PW40/G before DCP of Crime & Railways regarding arrest of accused Mahender, seizure of Arms State vs. Rohit Sehrawat & Anr. 29 Licence and Arms, requesting the DCP to send a report to DM Sonepat which was the issuing authority of the said licence. In response, the said DCP moved an application Ex.PW40/H on 206 08 to DM Sonepat. He moved another application Ex.PW40/J dated 130608 to the said DCP to take action against accused Rohit Sehrawat because he, being a permanent resident of Delhi, got issued Arms Licence from Jhajjar, Haryana. In response the said DCP sent a letter Ex.PW40/K to DM Jhajjar. DM Sonepat suspended the licence of accused Mahender and copy Ex.PW40/L was sent to DCP. This Suspension Order was served on Mahender on 110808. IO further deposed that he moved an application Ex.PW40/M on 21708 to DM Jhajjar in order to know whether accused Rohit Sehrawat had sold or transferred his licensed weapons. He also got issued wireless messages to all DCPs, SSPs, SHOs in Delhi and rest of India to give information if the weapons owned by accused Rohit Sehrawat were deposited with any arms dealer located in their jurisdiction. That wireless massage is Ex.PW40/N. He came to know from MLO Janak Puri that Hyundai Tuscon car No.DL4CAG2041 was owned by one Mr. Daljeet Singh. He moved two other applications Ex.PW40/Q and State vs. Rohit Sehrawat & Anr. 30 Ex.PW40/Q1 before DM Jhajjar on 12808 to know if any reply was filed by accused Rohit Sehrawat in response to notice of that office.
16. PW12 Hem Chander deposed that about four years ago Mahender opened a Real Estate Office in the name and style of M/s Rohit Associates at plot No.271, Pocket8, Sector24, Rohini where Sujit Khatri, Gaurav and Vikas also used to sit. Some times Bhagatraj also used to visit the said place. PW12 was also a frequent visitor. He further deposed that about 1½ years before the incident, both accused had asked him and other persons to invest money in the land at Panchkula which was soon coming under RZone. So, PW12 also purchased one acre of land. Both accused had promised them that the value of the land would become double within six months and in turn, they would charge 30% of the profit from them. Bhagatraj and Sujit Khatri were bosom friends and so Bhagatraj (deceased) asked Sujit to purchase land in Panchkula and on his asking PW4 Sujit Khatri purchased four acres of land through both accused. When the land changed ownership names, PW12 was present in the office of SubRegistrar and he had also signed papers. He further stated on oath that the State vs. Rohit Sehrawat & Anr. 31 said land did not come in RZone despite elapse of one year and so there were frequent altercations between accused Mahender and Bhagatraj. After these altercations, a written agreement was prepared between accused Rohit Sehrawat and deceased Bhagatraj that invested money would be double within six months and that Rohit Sehrawat would charge 30% of the profit. He was away from Delhi and returned in the early morning of 3052008. He received a call at 11.00 AM on that day from accused Rohit when he was going towards Gurgaon and was at Mahipalpur Chowk. Rohit Sehrawat was asking him to come for settlement of accounts but PW12 expressed inability as he had some urgent work. He received a call from accused Mahender after 1½ hours who told that there was a quarrel between Bhagatraj and Rohit Sehrawat and Bhagatraj was admitted in BSA hospital. Mahender asked him to go there to inquire facts. After some time of that call, PW12 received a phone call from Vikas that Rohit Sehrawat had fired at Bhagatraj and Bhagatraj was admitted in Saroj Hospital. Statement of this witness was recorded on 11608 in the police station. Crossexamination of PW12 was ultimately conducted on 070710. He backtracked his previous testimony and hence he was declared State vs. Rohit Sehrawat & Anr. 32 hospital and APP was permitted to reexamine him. 16.1. PW 16 Sudhir Nandal is one of the acquaintance of PW4 Sujit Khatri. He had accompanied Sujit Khatri to Panchkula about 12 years before his deposition as Sujit Khatri wanted to purchase land there. A local property dealer namely Deen Mohd. was also with them as Deen Mohd. had 45 acres of land. He further deposed that Sujit Khatri purchased four acres of land from Deen Mohd and paid him commission at the rate of 1%. He was also present at the time of registration of property papers as a witness. This witness was also declared hostile. He was extensively crossexamined by APP.
16.2. PW11 Deen Mohd is again a property dealer located at Panchkula. He deposed that his friend Bhag Singh was having some property in village Bhanu, Panchkula and that property was sold to a person namely Sudhir. He is not aware of the registered purchaser but he deposed that it was sold by his friend to Sudhir. This witness was also declared hostile.
16.3. PW4 Sujit Khatri is a crucial witness on motive. Like accused and deceased, he is also in property business. Both were known to him. On 30508 when he reached his office at Sector State vs. Rohit Sehrawat & Anr. 33 24, Rohini, he came to know that firing had taken place in the office of accused Rohit. He went there but by that time no one was found there. He did not come to know who was the target but it was learnt to him that injured had been taken to BSA hospital where he also reached. There he came to know that injured was Bhagatraj. Thereafter, Bhagatraj was taken to Saroj Hospital and he also accompanied him. In a specific Court question, he replied that he was not aware of any property dealing between him, Bhagatraj and Rohit. In answer to another question he replied that Bhagatraj did not tell him anything on the way to Saroj hospital as he was in separate vehicle. This witness was produced in order to prove motive and dying declaration but he did not support the prosecution on any aspect.
17. PW13 Narender Singh is the real brother of deceased Bhagatraj. He deposed that on 30508 he received a call from his house that Bhagatraj had been gunned down and so he immediately reached Ambedkar Hospital. By that time, Vikas and Sujit had also come there. There Bhagatraj told him that he was shot by accused Rohit Sehrawat. The same fact was told him by PW2 also. Bhagatraj was in a position to move and came down State vs. Rohit Sehrawat & Anr. 34 himself in the lift and also sat in the ambulance himself. In ambulance also, he told PW13 he was fired at by accused Rohit. About motive he deposed that Bhagatraj had told him on 295 2008 that he had asked for some papers from both accused but they refused threatening " jayada pharfraega to jaan se jayaga". These papers related to some agreement qua piece of land situated at Panchukla. He called the PCR after reaching Saroj Hospital. In crossexamination, he claimed that PCR and police officials had questioned him at Saroj Hospital but he is not aware if his statement was recorded by them or not.
18. Star witness is PW2 Suraj Bhan. He is the cousin brother of deceased Bhagatraj. He runs a fodder shop at plot No.633, Gramsabha, Pooth Kalan. It was scorching noon of 305 2008 when Bhagatraj came to his shop at 12 and on inquiry, he told that he had purchased some land at Panchkula from both accused and they were not giving him papers of the said land despite receipt of full payment. At that very moment Bhagatraj received a phone call from accused. He told PW2 that accused Rohit had invited to his office to settle the dispute and so he also accompanied the cousin brother leaving behind his mobile. The State vs. Rohit Sehrawat & Anr. 35 car was parked in front of the office of accused Rohit and Bhagatraj started moving towards the office. PW2 also started following him after locking the car. When Bhagatraj entered the office, PW2 was only 2025 feet away from him. Accused Rohit fired three shots on Bhagatraj. One bullet hit him on right hand, second on right leg and third one pierced the left chest. He fell down and accused Rohit took to his heels with the weapon. PW2 could not apprehend him as Rohit was armed. Bhagatraj was taken to the hospital by PW2 in the car of the deceased and was admitted in emergency ward. In the meantime he informed the relatives and they also came to BSA hospital. In order to provide better treatment, PW2 deposed, Bhagatraj was taken to Saroj Hospital in ambulance. Police reached Saroj hospital and by that time Bhagatraj was alive but he expired at 3.00 PM. Statement Ex.PW2/A of Suraj Bhan was recorded. Thereafter he accompanied the police officials to the place of murder and exhibits were lifted from there. Then he narrated the incident of 2952008 which Bhagatraj had told him on 30508 in his shop that he had gone to him (Rohit) on 29508 where both accused met him, the subject of conversation was nothing else than the papers, but accused State vs. Rohit Sehrawat & Anr. 36 Mahender flatly refused to deliver the papers threatening if he insisted for papers, he would be eliminated from the face of the world. Scaled site plan was also prepared in his presence. He identified the black shoes of Bhagatraj as Ex. P1, his clothes seized by the doctor as Ex. P2 and exhibits lifted from the spot as Exs.P3, P4,P5,P6, P7 and P8.
18.1. PW20 Vikas Dabbas also claimed himself as eye witness though in crossexamination. He deposed that when he reached the office of accused Rohit Sehrawat on 30508 at 1212.15 noon, he saw a big crowd already assembled there and found Bhagatraj lying in injured condition near the gate. He further deposed that he called two persons from the crowd and with their help put Bhagatraj in his own car and took him to BSA hospital. Those two persons also accompanied him to the hospital and remained till the admission of Bhagatraj. He tried to inquire from injured about the events but he was not in a position to tell anything. They remained in the hospital for 45 minutes. When Bhagatraj started gasping, it was decided that he be taken to Saroj hospital for better treatment. He further deposed that he had mentioned in MLC, on the asking of the attending doctor, that they were taking Bhagatraj to the Saroj State vs. Rohit Sehrawat & Anr. 37 Hospital on their responsibility and in this regard his signature on MLC Ex. PW20/DA were also taken. Bhagatraj was unable to communicate. No relative of Bhagatraj met them till their arrival in Saroj Hospital. He was straightway taken to operation theatre and thereafter, his relatives reached there. Deposition of this witness is in huge contradiction to the testimony of PW2.
19. DW1 Rajdhan is the Medical Record Clerk of BSA hospital. He deposed that as per hospital record, MLC No.2758 dated 30.05.2008 of injured Bhagatraj was handed over to SI Alok Kumar Raj of PS Sultan Puri and receiving was taken at point Ex.DW1/A on MLC Ex.PW20/DA. DW2 HC Satbir Singh deposed that his office had received request letter from SHO PS Sultan Puri to issue priority letter to get conducted biological as well as ballistic test of eight exhibits in case FIR. That letter was received in his office on 30.05.2008 and thereafter, priority letter was issued on 01.07.2008. Request letter of SHO of PS Sultan Puri is Ex.PW35/DA.
20. Counsel for complainant and Special Public Prosecutor argued that case is as clear as crystal. There is an eye witness in the form of PW2. They further submitted that dying declaration has State vs. Rohit Sehrawat & Anr. 38 been proved by PW13. Motive has also been proved through the mouths of PW2, PW4, PW6, PW11, PW12 and PW13. They termed PW20 Vikas as liar because it was not he who took Bhagatraj to the hospital as he was taken to the hospital by PW2. They contended that despite repeated requests and reminders by DM Jhajjar accused Rohit Sehrawat did not produce his licence and weapon. It is pertinent to mention that police case is that murder was committed with .32 bore licenced pistol which was in the name of accused Rohit. They fairly admitted that weapon of offence could not be recovered by the police despite best efforts and explanation furnished is that accused Rohit destroyed it by throwing in Gang Nehar and so adverse inference be taken against him.
20.1. On the other hand ld. defence Mr. I. U. Khan submits that Mr. Prejudice and Ms. Sympathy are the names of two witnesses whose statements are never recorded in any court of law and yet their unrecorded statements tend to influence the results in the court. The judge is not to be swayed by the sentiments and emotions emanating from the heinousness of the crime. He referred to AIR 1991 SC 917 to argue that fouler the crime, higher State vs. Rohit Sehrawat & Anr. 39 the proof. He contended that onus of proving the criminal case beyond reasonable doubt is on the prosecution and accused is not to prove his innocence. In criminal cases, burden is not of preponderance of probability but of absolute proof. He relied upon Ashish Batham vs. State of MP 2002 SCC (criminal) 1718 and argued that fundamental and basis presumption in the administration of criminal law and justice system is innocence of accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing accused does not arise. Mere suspicion, however, strong or probable it may be, is not effective substitute for the legal proof required to substantiate the charge of commission of crime. He took help of Kailash Gaur & Ors. vs. State of Assam AIR 2012 SC 786, to say that it is one of the fundamental principle of criminal jurisprudence that accused is presumed innocent till he is proved guilty. He referred to Bhagirath vs. State of MP AIR 1976 SC 975, to contend that prosecution must stand on its own legs. It cannot take advantage of the weakness of the defence. Nor can the court, on its own, make out a new case for the prosecution and convict the accused State vs. Rohit Sehrawat & Anr. 40 on that basis. On the facts of the case in hand, defence counsel argued that evidence of PW2 cannot be believed because he, being the close relative of the deceased, has been planted by the prosecution though he had not witnessed any shot being fired at Bhagatraj. Regarding PW13, counsel argued that he is also unreliable witness because at the time of said dying declaration Bhagatraj was not in a fit state of mind and his condition was deteriorating second by second. Motive has also been argued to have remained short of proof. Regarding nonrecovery of weapon of offence, counsel contended that it was seized by the police from Rohit on 3052008 and when it did not match with the bullet found on the spot and recovered from the dead body, it was police who destroyed it. Lastly, he submitted that it was not PW2 who was the eye witness but it was PW20 Vikas as he took Bhagatraj to the BSA hospital and then to Saroj Hospital.
21. MOTIVE 21.1. PW11 Deen Mohd. deposed that a person, namely, Sudhir purchased some property at Village Bhanu through his friend Bhag Singh. PW6 Sudhir Nandal deposed that he along with State vs. Rohit Sehrawat & Anr. 41 PW4 Sujit Khatri went to Panchkula to purchase some property and four acres of land was purchased by Sujit Khatri through dealer Deen Mohd. for which he was paid one per cent commission. He denied the suggestion that accused Rohit was interested in purchasing land at Panchkula and when he told Rohit that some land in village Shanu was recently to come under residential zone, accused Rohit also expressed inclination to purchase some land and then, he introduced him(Rohit) with some property dealers in Panchkula. PW4 Sujit Khatri did not tell Court about any property deal involving himself, deceased Bhagatraj and accused Rohit. All these witnesses of motive were declared hostile. 21.2. PW2 and PW13 deposed that deceased Bhagatraj had told them that when he went to the house of accused Mahender on 29.05.2008, he had threatened him to forget about the property papers, otherwise, he would be killed. PW12 Hem Chander deposed that deceased and PW4 were good friends and so, deceased suggested PW4 to purchase land in Panchkula and on his asking, he purchased four acres of land there. PW12 was also present at the time of registration of sale deed and he had signed the same. Even after elapse of one year, the land did not come State vs. Rohit Sehrawat & Anr. 42 under RZone, and hence, there were verbal scuffles between accused Mahender and Bhagatraj several times paving way for written agreement to the effect that invested money would become double in coming six months and 30% of the profit was to be given to accused Rohit. PW12 was examined in chief on 24.02.2010 and his cross examination was deferred which was conducted on 07.07.2010. In cross examination, he totally resiled from his statement u/s 161 Cr.PC and examinationinchief. During this period, accused Mahender was on bail and possibility of his tampering with this witness cannot be ruled out. In Khuji @ Surender Tiwari Vs. State of M.P. AIR 1991 SC 1853, the witness was examinedinchief and his cross examination was deferred which was conducted on later on date. He retracted from his examinationinchief in cross examination and Hon'ble Apex Court did not believe his cross examination. To the same effect are the facts of the present case in respect of PW12. His cross examination is ignored. Moreover, even if a witness has been declared hostile, his entire testimony is not wiped out from the record. So is the mandate of the Apex Court Ramesh Harijan Vs. State of U.P. AIR 2012 SC 1979.
State vs. Rohit Sehrawat & Anr. 4321.3. Examinationinchief of PW12 is corroborated by sale deeds Ex.PW12/A(Ex.P9) and Ex.Pw12/B(Ex.P9) in which he has signed in place of purchaser who is PW4 Sujit Khatri. Evidence of PW4 is totally disbelieved because he did not state anything about his property deals at Panchkula whereas it has been shown by Ex.PW12/A and Ex.PW12/B that he purchased some land there and PW12 had signed on his(PW4) behalf. But, PW12 proved only the fact that PW4 had purchased four acres of land through accused persons. The motive as set out in the chargesheet is that deceased was partner in one of the acres of the land purchased by PW4 which was purchased on the promise of accused that it would come under RZone and profit shall be double in coming six months. Further agreement was that 30% of the profit was to be paid to accused Rohit Sehrawat in case of sale and if land did not come under RZone, accused Rohit Sehrawat would provide a suitable alternative land. Accused Rohit Sehrawat backed out from his promise when the price could not be doubled up as the land did not come under RZone. Accused Rohit Sehrawat did not give the alternate piece of land to the deceased.
21.4. None of the prosecution witnesses deposed about the State vs. Rohit Sehrawat & Anr. 44 verbal agreement of partnership to the tune of Rs.10 lacs between PW4 and deceased. It is again said at the cost of repetition that PW4 has proved the purchase of land by PW4 through accused. As per PW12, the agreement between accused and deceased about doubling of price and 30% of profit to Rohit, was reduced into writing but that agreement has still not come on the file. 21.5. PW2 and PW11 are talking on motive point that accused were not handing over the original property papers to the deceased. Four sale deeds have been placed on record. These are public documents. Certified copies of these documents can be easily obtained from the Registrar's office. If accused were not giving deceased the original documents, he could have obtained the same from the Registrar's office. Moreover, there is nothing in these four sale deeds which may suggest that deceased was a partner with PW4 or that land was purchased through accused. There is nothing on the file by which mode Rs.10 lacs were paid by deceased to PW4 - whether by cash, cheque, Demand Draft or pay order. Moreover, motive statement of PW13 was recorded by police on 18.06.2008 whereas crime had taken place on 30.05.2008. None of the sale deed support prosecution case on State vs. Rohit Sehrawat & Anr. 45 motive. So, prosecution is able to prove through the mouth of PW12 only the fact that accused, deceased, PW4 and PW12 were property dealers who were good friends at some point of time and used to assemble in the office of accused Rohit Sehrawat. He has also been able to prove some chikchik between accused Rohit Sehrawat and deceased. It has failed to prove motive in exact terms.
22. EYE WITNESS ACCOUNT 22.1. PW2 Suraj Bhan is the cousin brother of deceased and is claiming to be the eye witness. His competition is with PW20 Vikas who is also claiming to be an eye witness and both are deposing diagonally opposite to each other. First objection of the defence counsel to the testimony of PW2 is that he is the family member, and hence, interested witness and so, his testimony be discarded. It was held by Hon'ble Supreme Court in Santosh Devi Das Bahade Vs. State of Maharashtra 2009 (3) SCALE that merely because the eye witness is a family member, his evidence, cannot perse, be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relative State vs. Rohit Sehrawat & Anr. 46 of the deceased is likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. To the same effect is the Bathula Nagamalleswar Rao & Ors. Vs. State AIR 2008 SC 3227. Even sixty years ago, the Hon'ble Supreme Court in Dalip Singh & Ors. Vs. State of Punjab AIR 1953 SC 364 held that a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true when feelings run high and there is a personal cause for enmity, there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often sure guarantee of truth. Same point has been reiterated by the Apex Court in Indira Pal Singh Vs. State of U.P. 2008 (15) SCALE; Jogender Singh Vs. State of Punjab AIR 2009 SC 2263; Seeman @ Veeranam Vs. State AIR 2005 SC 2503 and Sone Lal Vs. State of M.P. AIR 2009 SC 760. So, the law is that testimony of family member of the deceased cannot be disbelieved solely on the ground that he is related with the deceased, unless it suffers from inherent limitations.
22.2. Ld. Counsel for complainant argued that the Hon'ble State vs. Rohit Sehrawat & Anr. 47 Supreme Court held in Mahender Singh Vs. State of M.P. (2007) 4 SCR that nonseizure of chappals and blood stained clothes of eye witness is the deficiency in investigation which should not stand in the way of the Court in arriving at a finding of guilt if it is otherwise found to have been proved. The counsel contended that PW2 could not interfere in the firing because accused Rohit was armed with weapon and he feared that if he intervened, he would also be killed. He referred to Rachhpal Singh Vs. State of Punjab 2002 Crl. L.J. 3540. In the cited case, the eye witness, being son of the deceased, did not try to intervene in the fight. The Hon'ble Supreme Court held that his evidence was not less acceptable. 22.3. Above mentioned are not the only deficiencies pointed out by the counsel for complainant himself. There are various factors which make the testimony of PW2 unacceptable and the reasons are : I. PW2 claimed that deceased had told him on 30.05.2008 that accused had threatened him to kill on 29.05.2008 if he insisted for the papers. As per PW12, dispute between them was long standing one. Despite it, PW2 was nowhere in picture before State vs. Rohit Sehrawat & Anr. 48 30.05.2008.
II. In his statement Ex.PW2/A, telephone number of PW2 has been mentioned. He did not make any call to the local police or PCR. He came out with a new case that at that time, he was not having any phone as he had left it in his shop. He stated it first time in the Court that he used the mobile phone of Bhagatraj to intimate his(Bhagatraj's wife). It has been deposed by him earlier that relations between deceased and accused were so strained that Bhagatraj was threatened for life, it is indigestible that PW2 would not carry his phone when he accompanied deceased to the office of Rohit Sehrawat. Even after firing, he did not raise hue and cry.
III.Wife of deceased Bhagatraj did not appear in witness box to corroborate the testimony of PW2 regarding receipt of call from him.
IV.Mobile phone of the deceased was not seized by the police either from his body, spot or from PW2.
State vs. Rohit Sehrawat & Anr. 49Prosecution did not tell what happened of that phone.
V. As per the version of PW2, three bullets had hit deceased Bhagatraj and one of them hit in the left chest. Even a layman can say that a lot of blood would have been oozing from the body of Bhagatraj.
It was PW2 who took him to the hospital. His clothes might have been smeared with blood if he had taken the deceased to the hospital. But, such clothes were not seized by the police though clothes of the accused were seized.
VI.Generally, the doctors mention the name of the person who brings the injured to the hospital. In MLC Ex.PW20/DA, the name of the person by whom Bhagatraj was taken to hospital has been mentioned as Raj Kumar. Name of PW2 is missing. PW23 Dr. Bhawna Jain also deposed that Bhagatraj was brought to the hospital by one Raj Kumar.
VII.It may be possible that the doctor may mention the name of only one person when several persons State vs. Rohit Sehrawat & Anr. 50 accompany the injured to the hospital but if the injured is taken to some other hospital for better treatment, the doctor would allow only the close relative. In the case in hand, the words "Hum yahan par eelaj nahin karwana chahte" have been mentioned and have been signed by a person, namely, Vikas who is none else than PW20. It suggests that till the transfer of the patient to Saroj hospital, PW2 was nowhere in picture.
VIII.Even after reaching of the injured to the Saroj hospital, PW2 did not make a phone call to the local police through PCR.
IX.When PCR reached Saroj hospital on the call given by PW13, there is no mention in PCR form that PW2 was present there.
X. As per PCR form PW40/T21 dated 30.05.2008 timed 12:59:26, the injured was admitted in the Saroj hospital by one Ravinder Mathur. Had PW2 admitted Bhagatraj in Saroj hospital, name of Ravinder Mathur would not have found in the PCR State vs. Rohit Sehrawat & Anr. 51 form.
XI.In crime team report Ex.PW22/A, row No.5 meant for the name of the complainant is vacant. As per row No.10, inspection was done by the crime team between 4.00 and 4.30 P.M. Had PW2 been the eye witness, his name would have figured in row No.5. XII.Version of PW2 is not corroborated by rough site plan Ex.PW2/E and scaled site plan Ex.PW30/A. It is pertinent to mention that both these maps were prepared on the pointing out of PW2. As per these maps, entry point in the office is at point A, Rohit was sitting at point I on the revolving chair. Distance between both points is 5 mtrs. and 30 cms. As per PW2, three shots were fired by accused when deceased was entering the office but police recovered one empty cartridge from right side and second empty cartridge from the left of the entrance. But, the target was Bhagatraj who was entering through point A. Why the empties were found on the other sides? It suggests that weapon was not State vs. Rohit Sehrawat & Anr. 52 used in the manner stated by PW2. Lead of fired cartridge was recovered from point E which is very close to the place where Rohit Sehrawat was sitting. How, the lead reached there? No explanation! In scaled site plan Ex.PW30/A, point F has been shown as bullet like mark. That is appearing in photograph Ex.PW21/3 also. Counsel for complainant argued that it was not a bullet mark on the wall but a bullet like mark. On this issue, he is not supported by rough site plan Ex.PW2/E which was prepared at the earliest in which it is mentioned that it was a bullet mark. That mark is on the wall just behind the place where Rohit Sehrawat was sitting. If a person fires at other coming from front side, the bullet cannot go to the back wall.
XIII.As per scaled site plan, distance of weapon used is 5 mtrs. and 30 cms. But as per the examinationin chief of PW25 Dr. V.K. Jha, there was tattooing on injury No.1 and so he opined that weapon might have been used from a distance of 12 ft. to cause State vs. Rohit Sehrawat & Anr. 53 that injury.
XIV.Names of assailants are not mentioned in the MLC.
Had PW2 taken Bhagatraj to the hospital, he would have disclosed their names. In this regard, the counsel relied upon Satish Kumar Vs. State Manu/DE/0636/1995 and Kishan Pal Vs. State Manu/DE/0235/2004.
XV.Though the FIR has been shown to have been registered promptly but it reached the Magistrate at 10.00 A.M. u/s 157 Cr.PC whereas the incident had taken place on the last day at 12.00 noon. It suggests that by that time, eye witness account was not known and was brought on record during the late hours of 30.05.2008.
23. DYING DECLARATION 23.1. PW13 Narender Singh is the real brother of deceased Bhagatraj who reached BSA hospital on receipt of telephonic call from his house that Bhagatraj had been shot at. He met Bhagatraj and Suraj Bhan in the hospital. Bhagatraj told him that accused State vs. Rohit Sehrawat & Anr. 54 Rohit Sehrawat had fired at him. That fact was stated to him by Suraj Bhan also. In the way to Saroj hospital, Bhagatraj again told him that he was short at by accused Rohit Sehrawat. 23.2. Ld. Counsel for accused argued that there are several improvements in the testimony of PW13, and hence, his evidence cannot be believed. He counted following improvements : i. He received telephonic call from his house on 30.05.2008 that Bhagatraj had been fired.
ii. He received that call on the way to his office. He met Suraj Bhan in BSA hospital (this fact has not been stated in his statement Ex.PW13/A but it is stated in subsequent two statements Ex.PW13/DB and Ex.PW13/DC).
iii. Bhagatraj told him that he had been fired by Rohit (this fact is not mentioned in Ex.PW13/DA).
iv. Suraj Bhan also told him that Bhagatraj was shot by accused Rohit Sehrawat.
v. Bhagatraj was in a position to move and came down in a lift and sat in the ambulance by himself.
vi. Bhagatraj was shifted to Saroj hospital in an State vs. Rohit Sehrawat & Anr. 55 ambulance.
vii.Suraj Bhan was also with us in ambulance while taking the injured to hospital (not recorded in Ex.PW13/DA).
viii.On 29.05.2008, Bhagatraj told me that both accused threatened him saying "Jyada phadphadayega to jaan se jayega" when he(PW13) asked for property papers from them, and thereafter, he advised Bhagatraj to stay away from the accused.
23.3. On the basis of mere omissions and improvements, the witness cannot be disbelieved. On this point, the Hon'ble Supreme Court in Alamgir Vs. State (NCT of Delhi) AIR 2003 SC 282 held :
"...Admittedly, this piece of evidence was not available in the statement of witness u/s 161 Cr.PC but does it take away the nature and character of the evidence in the event, there is some omission on the part of the police official. Would that be taken recourse to as amounting to rejection of an otherwise State vs. Rohit Sehrawat & Anr. 56 creditworthy and acceptable evidence, the answer, in our view, cannot but be in the negative. In that view of the matter the evidence of PW6, thus, ought to be treated as creditworthy and acceptable and it is to be seen the effect of such an acceptability."
23.4. To the same effect are the citations : (1) Mallapa Siddappa Alakaur & Ors. Vs. State of Karnataka (2009) 14 SCC 748; (2) State of U.P. Vs. Krishna Masters & Ors. AIR 2010 SC 3071; (3) Sardool Singh Vs. State of Haryana AIR 2002 SC 3462 and (4) Jai Shri Yadav Vs. State of U.P. 2004 (3) JCC 1226. So, the mandate of the law is that the evidence of a witness cannot be discarded solely on the ground that there are some minor omissions or improvements.
23.5. Ld. Counsel for accused argued that as per MLC Ex.PW20/DA and PW23 Dr. Bhawna Jain, Bhagatraj was unconscious, and hence, unfit to make statement at the time of admission. On this issue, the counsel for complainant deposed that opinion of the doctor does not matter and referred to Vishram & Ors. Vs. State of M.P. AIR 1993 SC 250. In the cited case, the doctor, who had examined the injured, stated that ordinarily, injuries State vs. Rohit Sehrawat & Anr. 57 found on the head of injured could cause unconscious. The Hon'ble Supreme Court held that it could not be positively said that they would have caused immediate unconsciousness. In the case in hand, 1520 minutes were consumed in taking the injured to BSA hospital. The injured had suffered three shots and one of them was on the left of the chest. PW23 deposed in cross examination that patient was declared unfit for statement and that his condition was serious. So, facts of the cited case and the case in hand are differing to some extent. The counsel for complainant relied upon Prakash & Ors. Vs. State of M.P. AIR 1993 SC 65. This citation is also similar to the earlier cited law.
23.6. The dying declaration is disbelieved due to following reasons :
(a)The offence had taken place on 30.05.2008 but statement of PW13 was recorded by police on 02.06.2008. Police furnished no explanation for delay.
(b)FIR was registered on the statement of PW2 who is an eye witness and had accompanied injured to BSA hospital all the way and from there, to Saroj State vs. Rohit Sehrawat & Anr. 58 hospital. Name of PW13 is not finding mention in FIR Ex.PW14/B. Moreover, PW2 did not depose that he ever met PW13 during the vital period.
(c)Name of PW13 is not appearing in "Karyawahi police".
(d)Name of PW13 is missing in MLC Ex.PW20/DA.
(e)It was PW20 Vikas who stated to the doctor that he was taking the injured to Saroj hospital for better treatment. He was totally stranger to Bhagatraj. These remarks would have occurred in the MLC only if the family members of the injured were not available by that time.
(f) As per PCR form Ex.PW40/T21, the injured was not admitted in Saroj hospital by PW13.
(g)In Ex.PW40/T21, there is no name of the assailants.
It is pertinent to mention that PCR call was made by PW13. Had his brother told him the name of the assailant, it would have been found mentioned in PCR form.
(h)If PW13 was present in BSA hospital, he would have State vs. Rohit Sehrawat & Anr. 59 intimated the police or PCR or in the way in ambulance to Saroj hospital. But, no such call was made.
(i) The contents i.e. flash back message by the PCR in the form of PCR form Ex.PW40/T21 are vital. This message was flashed on the information given by one Ravinder Mathur to them. He stated to the PCR official that somebody had fired at Bhagatraj and he was not telling who and where he was shot at.
(j) The incident had taken place at about 12.00 noon causing three bullet injuries to Bhagatraj. He succumbed to those injuries at 3.30 P.M. in Saroj hospital. One of the bullet had hit him on the left chest. So, his condition might be deteriorating gradually. In those circumstances, he cannot be expected to have made any statement to PW13.
(k)PW4 and PW20 also deposed in cross examination that condition of Bhagatraj was serious in BSA hospital.
(l) Had PW13 accompanied injured to Saroj hospital in State vs. Rohit Sehrawat & Anr. 60 ambulance, his clothes might also have smeared with blood but police did not take into possession these clothes.
(m)When PCR officials came to Saroj hospital, PCR form Ex.PW40/T21 shows that he was not found there as flash back message was recorded on the statement of Ravinder Mathur.
(n)He has made a lot of improvements and introduced certain facts for the first time.
Above finding is based upon Johnson Vs. State Crl. Appeal No.775/2011 (Delhi High Court) and State Vs. Ashok Kumar, Manu/DE/2928/2005.
24. WITHHOLDING OF IMPORTANT WITNESESS AND MATERIAL DOCUMENTS.
24.1. (i) Raj Kumar - Presence of Raj Kumar has been witnessed in the MLC Ex.PW20/DA of the deceased. There is a column in the MLC "Patient brought by" and name of Raj Kumar is mentioned in that column. Police did not join him during investigation. He was one of the important witnesses and he might State vs. Rohit Sehrawat & Anr. 61 have disclosed in what circumstances the incident had taken place.
(ii) Ravinder Mathur - Presence of this man is established in PCR form Ex.PW40/T21. He is the first person who met PCR officials at Saroj hospital who had arrived there after receipt of information from PW13. He informed the police officials that he got admitted Bhagatraj at Saroj hospital. He further told those officials that Bhagatraj was in property business and he was shot at Sector24, Rohini and that he was not telling by whom and how he was fired. The statement made by this person to PCR officials was flashed back to the police headquarters by them. So, it can be said that Ravinder Mathur was the first person who made statement to the police about the incident but he was not examined by the police. In Johnson Vs. State Crl. Appeal No.775/2011, the Delhi High Court held that the person who had called the PCR is a crucial witness and if he is not examined, adverse inference shall be drawn against the prosecution. The defence counsel also insisted for adverse inference but his plea is untenable because call was given to PCR by PW13 and he has been examined.
(iii) PCR officials - On the receipt of call from PW13, PCR reached Saroj hospital before the arrival of the local police.
State vs. Rohit Sehrawat & Anr. 62The first IO i.e. Deepak Malik did not join these officials in the investigation though he is claiming that he recorded the statement of PW2 in Saroj hospital.
(iv) Servant of Rohit Sehrawat - PW34 Ct. Raman and PW35 SHO Mahender Singh admitted in cross examination that when they reached the spot, they found servant in the office of Rohit Sehrawat. He was interrogated but his statement u/s 161 Cr.PC is not on the file.
(v) PCR form - PW35 i.e. Second IO SHO Mahender Singh admitted in cross examination that PCR form is generally collected by the police and is annexed with the report u/s 173(2) Cr.PC. None of the three IOs annexed PCR form Ex.PW40/T21 with the chargesheet. It was summoned by the Court on the application of the accused at the initial stage. Reason of not placing on record the PCR form is palpable because it is detrimental to the prosecution story to some extent.
(vi) Priority letter - PW35 SHO Mahender Singh admitted that application for priority letter Ex.PW35/DA was written by him on 30.05.2008 itself for getting examination of the exhibits done from biological and ballistic experts. That request State vs. Rohit Sehrawat & Anr. 63 letter was not placed on record by the prosecution. When a question was asked from PW35 by the accused, initially, he denied but when he was confronted with the request letter, he admitted having written it. On this issue, DW2 deposed that request for priority letter was received in their office on 30.05.2008. On request letter Ex.PW35/DA, the contention of the defence counsel cannot be upheld because in request letter, eight exhibits have been mentioned. Six exhibits were meant for the biological and two exhibits were meant for ballistic expert. As per prosecution case, two empty shells and a piece of lead recovered from the spot were put into one container. On the same day, postmortem was conducted and one lead recovered from the body was handed over to the police by PMR doctor. So, on 30.05.2008, police had two exhibits - one in the form of two empty shells and lead recovered from the spot and one lead recovered from the body. Only two exhibits have been mentioned in the request letter Ex.PW35/DA. The defence counsel was trying to develop the story that police had seized weapon of offence from accused on 30.05.2008 itself and prepared the priority letter Ex.PW35/DA but when it did not match with the weapon of the offence recovered from accused, they State vs. Rohit Sehrawat & Anr. 64 dropped the idea of analysis of the exhibits and concealed Ex.PW35/DA.
(vii) Brief Facts of the case - PW35 SHO Mahender Singh admitted that he had prepared brief facts of the case which was sent to the doctor who was to conduct postmortem. He could not give satisfactory answer why the same was not filed with the chargesheet. The defence counsel raised apprehension that those brief facts were totally different from the prosecution story and that is why that document has been withheld. This argument is nothing more than groping. There is no other material on the file to support the defence theory.
(viii) Treatment Papers of Saroj Hospital - Deceased was taken to Saroj hospital from BSA hospital. He was operated upon there but succumbed to injuries at 3.30 P.M. So, extensive paper work might have been prepared there. Only death summary Ex.PW28/A has been filed.
25. CONSPIRACY Ld. Counsel for applicant argued that there cannot be any direct evidence of conspiracy because privacy and secrecy are State vs. Rohit Sehrawat & Anr. 65 the characteristics of the conspiracy. It can be proved either by direct or circumstantial evidence. It is not always possible to give affirmative evidence about the date of formation of criminal conspiracy, about the persons who took part in its formation, about the object which the objectors set before themselves and about the manner in which object of the conspiracy was to be executed. He argued that PW2 Suraj Bhan deposed before the Court and also mentioned in the FIR that Bhagatraj told him on the day of incident itself that he had bought a piece of land in Panchkula through both accused and they were not giving him the property papers despite receipt of full payment. He further argued that PW2 has also deposed about the incident of 29.05.2008 in which the deceased was threatened by accused Mahender.
25.1. It has already been held that prosecution has failed to prove that deceased purchased any land through accused because there is no evidence or document to that effect. Four sale deeds mention the name of purchasers somebody else than Bhagatraj. It is nowhere mentioned in those sale deeds through whom the property was purchased.
25.2. Regarding the incident of 29.05.2008, it can be said State vs. Rohit Sehrawat & Anr. 66 that PW2 and PW13 came into picture only 30.05.2008. While they were not with the deceased earlier, particularly he was their cousin and real brother. There is no PCR call or FIR for that incident of threat for life to deceased. If such threat was extended on 29.05.2008, why Bhagatraj would go to the office of accused Rohit Sehrawat on 30.05.2008. So, evidence of PW2 about the incident of 29.05.2008 is not creditworthy. 25.3. The Counsel for complainant referred to the evidence of PW12 Hem Chander who deposed that both accused and deceased were engaged in the property business and deceased had purchased a piece of land at Panchkula through them. He further argued that accused Rohit Sehrawat had broken the agreement and that is why, there were scuffles between him and accused Rohit. PW12 has deposed about the scuffle between accused Rohit Sehrawat and Bhagatraj. He nowhere stated that accused Mahender was engaged in those scuffles.
25.4. Ld. Counsel for the complainant argued that after committing murder, accused Rohit talked to his father for 62 seconds at 12.16 P.M. and for 20 seconds at 12.24 P.M. Thereafter, accused Mahender Singh talked to PW12 Hem Chander State vs. Rohit Sehrawat & Anr. 67 stating that there was a fight between accused Rohit and deceased and Bhagatraj was admitted in the hospital and PW12 was asked to go to BSA hospital to inquire the facts. He argued that these frequent calls prove the conspiracy between the father and son duo. Exact time of the murder is not known. If it is presumed that it was committed before 12.15 P.M., it can be said that accused Rohit made two telephone calls to his father i.e. one at 12.16 P.M. and second at 12.24 P.M., after murder. Those two calls do not make accused Mahender guilty because he was not a stranger to accused Rohit. He is his father and it may be possible that accused Rohit might have told him that he had fired at Bhagatraj and would have asked him to save him. It is the natural conduct of the accused and nothing extraordinary can be said about it. This conclusion draws strength from the call made by accused Mahender to PW12 to go to BSA hospital to inquire the facts. It suggests that being a father, he was very much concerned about the fate of his son and that is why he was desperately trying to know the exact sequence of events.
25.5. The last argument of the counsel for the complainant on conspiracy is that Mahender Singh absconded from Delhi on State vs. Rohit Sehrawat & Anr. 68 30.05.2008 and kept on running till the day of his arrest on 11.06.2008. On this aspect, IO K.G. Tyagi deposed that investigation was handed over to him on 05.06.2008 and on 06.06.2008, PW5 Randhir Singh made him a written complaint apprehending conspiracy between both accused and only then, Section 120B IPC was invoked. So, there is no substance in the argument of the counsel for complainant that accused Mahender fled away from Delhi on 30.05.2008. Moreover, there is no remand paper, no notice u/s 160 Cr.PC or no application for issuance of warrants against accused Mahender Singh moved by the police before the Ld. M.M. on or after 06.06.2008. It suggests that either the police did not want to arrest him or he was well within their reach. So, the prosecution has failed to prove conspiracy also.
CIRCUMSTANTIAL EVIDENCE 26 Nonrecovery of Weapon of Offence 26.1. Police case is that murder was committed by accused Rohit Sehrawat by firing from his licensed pistol of .32 bore. Ownership of that pistol with accused Rohit has been proved by State vs. Rohit Sehrawat & Anr. 69 PW17. He made disclosure statement to the police that he threw it in Gang Nahar at Murad Nagar. The flow of the said Nahar was made to stop and services of divers like PW9 Abdul Sattar were taken by the police to search the weapon but it could not be recovered. Fact of the matter is that weapon of offence has not been recovered. The defence counsel argued that no adverse inference can be drawn against the accused because the licence and weapon was handed over by accused to police on 30.05.2008 itself and when it did not tally with the recovered bullets and lead recovered from the body, it was destroyed by the police. The counsel further argued that after arrest of the accused on 30.05.2008, he was kept in illegal custody and his arrest was shown in the night intervening 31.05.2008 and 01.05.2008 from the gate of Jaipur Golden hospital. The counsel went through the evidence of PW20 Vikas and PW12 Hem Chander. PW20 Vikas deposed that from SGM hospital, they went to the PS Sultan Puri on 30.05.2008 at 7.30 P.M. and at that time, accused Rohit was also there and he was being interrogated by the police. In interrogation, Rohit answered that he was having a weapon as well as licence and then, police took him for recovery at his residence.
State vs. Rohit Sehrawat & Anr. 70To the same effect is the cross examination of PW12 Hem Chander dated 07.07.2010 which has already been disbelieved as he turned turtle his examinationinchief because one of the accused Mahender was on bail during that period.
The counsel further submitted that as per PW33 Gulshan Kumar Gupta, accused Rohit was produced before police party on 01.06.2008 by an Advocate, namely, Mr. Narvir. The counsel submitted that if Narvir had produced accused Rohit before police, why his statement was not recorded and why his signatures are not appearing on the arrest and personal search memos. The counsel went through the testimony of PW17 Ravi Raj Chhillar also who deposed that when he was called in PS Sultan Puri on 04.06.2008, he was shown pistol of .32 bore by police which he had sold to Rohit vide bill No.342 dated 29.08.2006 and he identified the same. The counsel next referred to request letter Ex.PW35/DA written by PW35 to the DCP for issuance of priority letter so that biological and ballistic analysis of the exhibits may be done at the earliest.
26.2. Cross examination of PW12 has already been disbelieved. PW20 nowhere deposed that recovery of .32 bore State vs. Rohit Sehrawat & Anr. 71 pistol was effected by police from the possession of accused Rohit Sehrawat in his presence. At the most, it can be said that accused Rohit was arrested on 30.05.2008 but it does not suggest that .32 bore pistol was recovered from him on 30.05.2008. Moreover, request letter Ex.PW35/DA pertains to only two exhibits meant for ballistic expert. One of the exhibits was the container in which two fired bullets and lead recovered from the spot, were put into. The other exhibit was the other container in which the lead recovered by the doctor from the body of the deceased was put into. That request letter was issued only in respect of those two exhibits. If that request letter was pertaining to third exhibit, there would have been the mention of three exhibits in it but it is mentioned in Ex.PW35/DA that only two exhibits were meant for ballistic expert.
26.3. Moreover, as per Section 106 of Indian Evidence Act, the fact which is in the knowledge of a particular person, that particular person is to tell about that fact. In the case in hand, it is not in dispute that .32 bore pistol was purchased by the accused from the shop of Mr. Ravi Raj Chhillar PW17. It has been stated by IO Mr. K.G. Tyagi that he wrote several letters to D.M., Jhajjar to State vs. Rohit Sehrawat & Anr. 72 know the status of the licence and weapon of the accused. That office issued a letter to accused to surrender the licence and weapon but he did not. Thereafter, reminders were also issued but he did not budge. Had the licence and weapon been destroyed by the police on 30.05.2008, he would have stated so to the office of D.M., Jhajjar as he was well equipped with the battery of lawyers. So, nonproduction of weapon of offence by accused before D.M., Jhajjar is a huge circumstance against him which shall go a long way. It was held by the Apex Court in Sidharth Vashisht @ Manu Sharma Vs. State (NCT of Delhi), AIR 2010 SC 2352 that adverse inference should be drawn against the accused who does not produce the licenced weapon of offence. It was held by the Apex Court in State of West Bengal Vs. Meer Mohd. Umar, AIR 2000 SC 2988 that Section 106 of Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But, this Section should apply to cases where prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts failed to offer any explanation which might State vs. Rohit Sehrawat & Anr. 73 drive the Court to draw a different inference.
27. RECOVERY OF 7.65mm X 2.5cms S&B MARK FIRED CARTRIDGES AND LEAD FROM SPOT AND FROM DEAD BODY.
27.1. Two fired cartridges of 7.65mmX2.5cms bore bearing S&B mark and one lead were seized from the scene of crime vide memo Ex.PW2/C but cartridges recovered at the instance of accused Rohit Sehrawat from his house were of 7.65mm having KF mark. Another licensed weapon .30 bore rifle with cartridge was also seized at the instance of accused Rohit Sehrawat vide memo Ex.PW36/C. These cartridges were having S&B mark. Accused has also admitted that he purchased those cartridges. So, it can be very easily said that accused was in possession of cartridges of S&B mark and KF mark both. .32 bore pistol is of such a bore that it can fire the cartridges having S&B as well as KF mark. The cartridges recovered from the spot and at the instance of the accused were of different brands but of the same dimension i.e. 7.65mm X 2.5cms. The murder was committed at or about 12.00 noon. Accused Rohit Sehrawat made a telephonic call to PW17 Ravi Raj Chhillar at State vs. Rohit Sehrawat & Anr. 74 12.01 P.M. He is his old acquaintance. So, possibility of concealment of some facts by PW17 regarding the brands KF and S&B cannot be ruled out. Moreover, it was held by the Apex Court in Sidharth Vashisht @ Manu Sharma Vs. State(NCT of Delhi) (Supra) that difference in the brands do not make any difference. It is pertinent to mention that in the cited case fired cartridges of C mark were recovered from the spot whereas arms dealer had claimed that he had sold cartridges of Mark KF to the accused. The Hon'ble Supreme Court held the accused guilty. To the same effect are the facts of the case in hand.
28. EVIDENCE OF PW39 BALLISTIC EXPERT 28.1. PW39 Mr. K.G. Varshney is Assistant Director, Ballistic Division, FSL, Rohini, Delhi. He deposed that deformed bullet and bullet mark Ex.EB1 and EB2 corresponded to the bullet of 7.65mm cartridge and had been discharged through an improvised firearm. In cross examination by the defence, he cleared that improvised weapons are those which are countrymade weapons. He further deposed that characteristics of improvised weapons and standard weapons were distinguishable. In answer to Court question, if he State vs. Rohit Sehrawat & Anr. 75 was expert in firearms also, PW39 answered that he can give opinion on firearms only after seeing/examining them.
It is an open secret that weapon of offence was not recovered. It was held by the Hon'ble Supreme Court in Sidharth Vashisht @ Manu Sharma Vs. State(NCT of Delhi) (Supra) in para No.65 that it is well settled that while giving reports after ballistic examination, the bullets, cartridges case and cartridges recovered and weapon of offence recovered are carefully examined and test firing is done at the FSL by the said weapon of offence and then, only a specific opinion is given. So, the Hon'ble Supreme Court propounded that unless the weapon of offence is examined by the FSL expert, he cannot give any opinion about it. To the same effect are the facts of the case in hand.
29. MURDER TOOK PLACE IN THE OFFICE OF ACCUSED ROHIT SEHRAWAT.
It has been proved by several witnesses that accused Mahender Sehrawat had opened an office for his son at plot No.271, Pocket8, Sector24, Rohini, Delhi about 34 years prior to incident. Accused Rohit Sehrawat was running a property dealing State vs. Rohit Sehrawat & Anr. 76 business from that premises in the name of M/s Rohit Associates. It has been proved by PW32 and Ct. Raman that blood, shells, lead and black shoes of deceased Bhagatraj were lying in that office. These were lifted from that office itself. The shoes have been identified by PW2 to be of Bhagatraj. It was mandatory for accused Rohit to explain how the blood and other articles were lying in his office. The firing had taken place in his office in which a person was killed. He did not intimate the PCR or make call to the local police. A man was killed and it was for accused Rohit to explain how the sequence of events had taken place but he is silent. Following was propounded by the Apex Court in Trimukh Maruti Kirkan Vs. State of Maharashtra, (2006) 10 SCC 681 : "The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading having regard to the facts and circumstances of the case. Here, it is necessary to keep in mind Section 106 of the State vs. Rohit Sehrawat & Anr. 77 Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads : (b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him.
Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character."
State vs. Rohit Sehrawat & Anr. 7830. PRESENCE OF ACCUSED NEAR THE SPOT Murder had taken place in Sector24. As per the CDRs proved by PW26 and PW27, location of the mobile phone of accused Rohit is also coming in Sector24. Also, he has not taken the defence that on that day, at that time, he was away from Sector24. His very presence in that very sector would have made him aware that firing had taken place in his office but he remained tight lipped.
31. RECOVERY OF MOBILE PHONE OF THE ACCUSED Pursuant to his disclosure statement, accused Rohit Sehrawat got recovered his mobile phone from a place near drain of red light of Bhalaswa Dairy on Outer Ring Road. Call detail record shows that he had started his journey from Sector24 and his mobile phone went switched off at Bhalaswa Dairy which is the same place from where his mobile was recovered.
32. FALSE ANSWERS U/S 313 Cr.PC.
32.1. Ld. Counsel for applicant argued that in answer to question No.9, the accused denied having made a telephonic call to State vs. Rohit Sehrawat & Anr. 79 the deceased on the fateful day in which he was asked to visit his office to sort out the dispute. Argument of defence counsel on this answer cannot be justified because as per PW26 Raj Kumar, Nodal Officer, Reliance Communication, mobile phone no.9350281179 was in the name of Manohar Lal. It is pertinent to mention that prosecution is claiming that number of deceased. Said Manohar Lal was examined as PW42 and he deposed that he sold his phone and SIM to deceased Bhagatraj in Rs.4,000/ in March 2005. As per prevalent practice of the society, only the handset is sold. Nobody sells his SIM card fearing that it may be misused. So, testimony of PW42 regarding selling of SIM to Bhagatraj is not accepted.
32.2. In answer to question No.23, accused denied that he knew PW4 Sujit Khatri whereas deposition of PW4 and PW12 prove that PW4 was an old acquaintance of accused Rohit. 32.3. In answer to question No.29, the accused denied having opened an office under the name & style of M/s Rohit Associates in Pocket8, Sector24, Rohini whereas the said fact has been proved by several witnesses.
32.4. In answer to question No.34, accused Rohit denied the State vs. Rohit Sehrawat & Anr. 80 factum of calls made by him to PW12 Hem Chander on 30.05.2008 at 11.00 A.M. and to his father at about 12.23 P.M. These calls have been proved by PW27.
32.5. In answer to question No.39, accused Rohit falsely claimed that he handed over weapon of offence to the police on 30.05.2008. No such reply was given by him to the office of D.M., Jhajjar.
32.6. In answer to question No.58, he denied the examination of his Hyundai Tuscon car by FSL expert whereas the same has been proved by PW29 Naresh Kumar.
32.7. On this aspect, case of the prosecution is squarely covered by (1) Sidhartha Vashisht @ Manu Sharma (Supra), (2) Anthony Desuja & Ors. Vs. State of Karnataka, AIR 2003 SC 258 & (3) Brajandra Singh Vs. State of M.P., (2012) 93 SCALE 195. In all these citations, the Hon'ble Supreme Court held that if the accused answers falsely u/s 313 Cr.PC, he cannot be prosecuted but it is an additional circumstance against him to convict him and that adverse inference should be drawn against him.
State vs. Rohit Sehrawat & Anr. 8133. CONCLUSION 33.1. Prosecution has failed to prove the eye witness account. Dying declaration has also been disbelieved. It withheld vital witnesses and documents. Theory of conspiracy has also failed. But, on the other hand, it is the act of accused Rohit Sehrawat itself which is causing problem to him. He did not account for his .32 bore pistol to the office of D.M., Jhajjar. That pistol was not produced before police also. He had access to cartridges of the mark S&B and KF. Evidence of PW39 ballistic expert is dismissed due to ruling of Sidhartha Vashisht @ Manu Sharma(Supra). Prosecution has proved that murder took place in the office of accused Rohit Sehrawat but he did not open his mouth before any police or PCR. His presence is established near his office on that day at that time. He did not account for the presence of blood, shells, lead and shoes of the deceased in his office. He gave false answers u/s 313 Cr.PC. It has been held by the Apex Court several times that defective investigation should not come in the way of the Court to hold the accused guilty. It is also true that eye witness account, dying declaration and withholding of documents and witnesses were within the control of human agency. The State vs. Rohit Sehrawat & Anr. 82 circumstances proved by prosecution were beyond the control of any human being. So, this Court is acting upon the circumstantial evidence.
33.2. Ld. defence counsel argued that prosecution could not prove the motive in exact terms and the accused cannot be held guilty in the absence of motive. It is true that motive in absolute terms has not been proved but prosecution has successfully proved that there was ire between accused Rohit Sehrawat and deceased. In Hardeep @ Sanjay & Anr. Vs. State (NCT of Delhi), 2011 (2) 499 (Delhi) Crimes, prosecution was not able to establish any motive except that there was ill feeling towards each other i.e. between the appellants on one hand and PW1 and PW2(complainant) on the other hand. The Hon'ble High Court of Delhi after relying upon Sahadevan @ Sagadevan Vs. State represented by Inspector of Police, 2002 (1) SCC 679, held if the circumstances relied upon by the prosecution are beyond doubt, then, the absence of motive would not hamper a conviction. In State of Himachal Pradesh Vs. Jeet Singh (1999) 4 SCC 307, the Apex Court held that no doubt, it is a sound principle to remember that every criminal act was done with a motive, its corollary is not that no criminal offence would have State vs. Rohit Sehrawat & Anr. 83 been committed if the prosecution has failed to prove the precise motive of the accused to commit it. In Paramjeet @ Pamma s. State of Uttarakhand, AIR 2011 SC 200, the Apex Court held that if motive is proved, that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. In Nathuni Yadav Vs. State of Bihar & Anr., 1998 (9) SCC 238, the Apex Court again commented that the mere fact that motive alleged by the prosecution is not strong enough for others to develop such a degree of grudge would not mean that the assailants had no serious reasons to do this. In the case in hand, the prosecution stopped just short of proof of motive but successfully proved ire and illwill between accused Rohit Sehrawat and deceased. As per cited case that proof is sufficient. So, the link of whole chain is complete. As prosecution has failed to prove conspiracy, accused Mahender is acquitted. Accused Rohit Sehrawat is convicted u/s 302/201 IPC and u/s 27 of Arms Act. He shall be heard on point of sentence separately.
Announced in the Open Court on 07th day of June, 2013.
(UMED SINGH GREWAL) ASJ/Special Judge (NDPS) North Distt: Rohini Courts: Delhi State vs. Rohit Sehrawat & Anr. 84 IN THE COURT OF MR. UMED SINGH GREWAL ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS) NORTH DISTRICT:ROHINI COURTS:DELHI SC No.54/2008 FIR No.363/2008 PS Sultan Puri u/s 302/120B/201 IPC & u/s 25/27 Arms Act State Vs.
1. Rohit Sehrawat, S/o Mahender Singh, R/o PU24, Pitam Pura, Delhi.
2. Mahender Singh, : Acquitted S/o Surajman, R/o PU24, Pitam Pura, Delhi.
Date of institution:25.09.2008 Date when arguments concluded:30.04.2013 Date when Judgment pronounced:07.06.2013 Date of Order on Sentence: 07.06.2013 State vs. Rohit Sehrawat & Anr. 85 ORDER ON SENTENCE 07.06.2013 Present: Ms. Purnima Gupta, Ld. APP for the State.
Mr. Sachin Dev Sharma, Counsel for convict Rohit Sehrawat.
1. Arguments on point of sentence heard.
2. Accused Rohit Sehrawat has already been held guilty u/s 302/201 IPC and u/s 27 of Arms Act vide separate judgment of even dated.
3. The counsel for convict argued that convict is a youngman and has to maintain his family and old father. He further stated that convict is the first offender.
4. The APP argued that Bhagatraj was murdered by convict by acting with cruelty and so, capital punishment be given to him.
5. There is only one murder and one accused. Three shots were fired, two shots hit on leg and hand and third one on the left of the chest. Vital shot was the third one. There is no allegation against the convict he fired another shot after third one. So, it cannot be said that he acted with cruelty. Minimum punishment State vs. Rohit Sehrawat & Anr. 86 provided for murder is life imprisonment. Taking into account all these litigating and aggravating circumstances, the convict is sentenced to undergo life imprisonment and a fine of Rs.10,000/ (Rupees ten thousand only) is imposed and in default of payment of fine, he would further undergo SI for two years for the offence punishable u/s 302 IPC. Convict is further sentenced to undergo RI for five years with fine of Rs.5,000/(Rupees five thousand only) and in default of payment of fine, he would further undergo SI for six months for the offence punishable u/s 201 IPC. Convict is also sentenced to undergo RI for three years and a fine of Rs.5,000/ (Rupees five thousand only) is imposed and in default of payment of fine, he would further undergo SI for three months for the offence punishable u/s 27 of Arms Act.
6. Benefit of section 428 Cr. PC be given to the convict.
7. All sentences shall run concurrently.
8. Fine deposited.
9. Let a copy of Judgment and Order on Sentence be given to convict.
10. File be consigned to Record Room.
Announced in the Open Court on 07th day of June, 2013.
(UMED SINGH GREWAL) ASJ/Special Judge (NDPS) North Distt: Rohini Courts: Delhi State vs. Rohit Sehrawat & Anr. 87