Delhi District Court
State vs . Rajeev @ Raju @ Kala on 29 November, 2014
FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 219/14 Unique Case ID No. 02404R0244792009 State Vs. Rajeev @ Raju @ Kala S/o Sh. Mahabir R/o H. No. 21/7, Near Post Office, Auchandi Road, Village Bawana, Delhi110039. FIR No. : 187/09 Police Station : Bawana Under Sections : 302/201/120B/34 IPC Date of committal to Sessions Court: 25.07.2011 Date on which judgment was reserved: 14.11.2014 Date on which Judgment pronounced: 29.11.2014 JUDGMENT
The facts and circumstances as bone out from the record are as under:
1. There was some quarrel between Niyaz Ahmed (since deceased) and the accused Rajeev @ Raju @ Kala prior to 27.09.2009. On 27.09.2009 at about 11/12 noon, Shiraj Ahmed (PW7) had seen said accused having taken his brother Niyaz Ahmed (since deceased) on Pulsar motorcycle of red colour. It is alleged that Shiraj Ahmed asked Niyaz Ahmed (since deceased) not to visit with the accused but the said accused assured that he would bring back his brother in some time but he did not return home. State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 1 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014
2. On 27.09.2009 at about 8:15/8:30 pm, Mukhtar Ahmed (PW2) was coming to his house after purchasing some articles from Bawana main chowk bus stand. On aforesaid date and time, when Mukhtar Ahmed entered Dak Khane Wali Gali, he saw his brother Niyaz Ahmed (since deceased) talking to one boy of tall height near Idol of God. Mukhtar Ahmed asked his brother Niyaz Ahmed (since deceased) to come to the house but he replied that he would come later on which Mukhtar Ahmed went to his house but Niyaz Ahmed (since deceased) did not return to the house during night time.
3. On 28.09.2009, Shiraj Ahmed (PW7) went for the search of his brother and when he reached in the next gali of his house, the dead body of his brother Niyaz Ahmed was lying facing towards the ground. In the morning of 28.09.2009, when Mukhtar Ahmed (PW2) woke up, he also heard some noise in front of his house and when he went to the spot at a distance of about 250300 paces from his house, he found dead body of his brother Niyaz Ahmed.
4. It is mentioned in the charge sheet that on receipt of intimation in PS Bawana vide DD no. 8A (Ex PW13/A) on 28.09.09, SI Mahender Pratap(PW13) alongwith HC Raj Kumar(PW32) and ASI Karan Singh reached the place of information and found one dead body of one male person aged about 2829 years lying there. One big blood stained stone was also found lying near the dead body besides one empty cartridge and blood was also lying at the said place near the dead body. Concerned SHO and other staff also reached there. Crime team was also called at the spot. The dead State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 2 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 body was identified to be that of Niyaz Ahmed by his brother Shiraj Ahmed(PW7) and by one public person namely Dinesh(PW10).
5. It is claimed that SI Mahender Pratap prepared rukka(Ex.PW13/B) and got the FIR in respect of offence U/s 302 IPC registered through HC Raj Kumar.
6. It is further claimed that investigation was entrusted to Inspector Rajesh Kumar(PW43) who alongwith other staff reached the spot where he was handed over crime team report (Ex PW29/A) by SI Sanjay Gade( PW29).
7. IO namely Inspector Rajesh Kumar lifted the relevant exhibits i.e blood stained earth, earth control, stone having blood stains and empty cartridge from the said place and took them into possession after preparing their pullandas.
8. It is alleged that dead body of deceased Niyaz Ahmed was sent to Mortuary of BJRM Hospital and after completing necessary formalities and carrying out inquest proceedings, postmortem examination of dead body of deceased was got conducted through Dr. V.K Jha(PW27) and dead body was handed over to relatives of deceased.
9. It is further case of prosecution that on 23.10.09, accused Ravinder Dahiya(already acquitted vide judgment dt. 27.03.11) was arrested by IO Inspector Rajesh Kumar on the basis of secret information and said accused made disclosure statement (Ex PW26/C) wherein he disclosed the name of accused herein to be also involved in the commission of murder of deceased Niyaz Ahmed.
10. It is further alleged that on 09.05.10, raiding team consisting of State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 3 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 SI Ritesh Kumar(PW35), ASI Dharambir Singh(PW40), HC Krishan Bhardwaj, HC Ved Parkash and HC Hari Ram of Special Team Crime Branch apprehended accused namely Rajeev @ Kala alongwith his associates namely Monu @ Badshah, Jyoti Parkash and Harvinder on the basis of secret information and one revolver containing four live cartridges were allegedly recovered from said Monu @ Badshah. Accordingly, FIR no. 68/10 U/s 25 Arms Act and Section 411/34 IPC was got registered at PS Crime Branch and further investigation was carried out by SI Praveen(PW44). The said revolver alongwith live cartridges were sent to FSL Rohini and after examination thereof, FSL result was received by IO of the said case.
11. It is further alleged that on 17.08.10, the present accused was arrested in case FIR no. 165/10 U/s 186/353/307/34 IPC and U/s 25/27 Arms Act of PS Shahbad Diary and one pistol, three live cartridges and one empty cartridge were recovered from his possession and after registration of said FIR, investigation was carried by SI Mahender Pratap(PW13).
12. It is further case of prosecution that on 20.08.10, accused herein was produced in Rohini Court and IO Inspector Rajesh Kumar(PW43) arrested him after his interrogation and carried out the relevant proceedings including recording his disclosure statement ( Ex PW11/B), etc.
13. It is further case of prosecution that IO Inspector Rajesh Kumar collected relevant calls details record of mobile phone numbers 9910446700, 9654516526 and 9911043056 as well as the relevant documents from concerned service providers and also recorded statements of relevant witnesses.
State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 4 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014
14. After completion of investigation, chargesheet had been filed before the Court.
15. After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
16. After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charge u/s 302/34 IPC against the present accused vide order dated 06.09.11 to which he pleaded not guilty and claimed trial.
17. In support of its case, prosecution has examined 45 witnesses namely PW1 HC Brijesh, PW2 Sh Mukhtar Ahmed, PW3 Sh. R. Suresh, PW4 HC Brahampal, PW5 Sukhbir Singh, PW6 Sh Balraj, PW7 Sh Shiraj Ahmed, PW8 Sh. Rohit Pawar, PW9 Sh. Krishan Bhardwaj, PW10 Sh. Dinesh, PW11 Ct. Suresh Kumar, PW12 HC Pramod Kumar, PW13 SI Mahender Pratap, PW14 HC Rohtash, PW15 HC Surender Dahiya, PW16 Sh. Yashvir Singh, PW17 Sh. Jitender, PW18 SI Deepak Malik, PW19 SI Mahesh Kumar, PW20 Sh. Vihsal Gaurav, PW21 HC Sukhbir Singh, PW22 Ct. Sayarmal, PW23 Sh. Israr Babu, PW24 Sh. Amar Nath Singh, PW25 HC Satish, PW26 HC Harphool Singh, PW27 Dr. V.K Jha, PW28 HC Sukhbir Singh, PW29 Inspector Sanjay Gade, PW30 HC Raj Kumar, PW31 WHC Vedvati, PW32 Ct. Raman Kumar, PW33 HC Kailash Chand, PW34 ASI Garib Dass, PW35 SI Ritesh Kumar, PW36 SI Anwar Khan, PW37 ASI Ashok Kumar, PW38 Sh. Puneet Puri, PW39 Sh. M.A Rizvi, PW40 SI Dharambir Singh, PW41 HC Suresh Kumar, PW42 Ct Ranjan Prasad, PW43 Inspector Rajesh Kumar, PW44 SI Parveen Kumar and PW45 HC Jag State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 5 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 Narayan during trial.
18. Thereafter, statement U/s 313 Cr.P.C. of accused was recorded during which all the incriminating evidence were put to him. However, he denied the same and claimed that he is innocent and has been falsely implicated in this case. His defence is of general denial. Accused did not opt to lead any evidence towards his defence.
19. I have already heard Sh. Pankaj Bhatia, Ld. Additional Public Prosecutor on behalf of State and ld. Counsel Sh. Sanjeev Kumar, Adv. on behalf of accused Rajeev @ Kala. I have also gene through the material available, on record.
20. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The said testimonies are detailed as under: PUBLIC WITNESSES
21. PW2 Mukhtar Ahmed: This witness is the brother of deceased Niyaz Ahmed. He deposed that on 27.09.09 at about 8.15/8.30 P.M when he was coming to his house after purchasing some articles from Bawana, Main Chowk Bus Stand and entered Dak Khanewali gali, he saw his brother Niyaz Ahmed talking to one boy having tall height near the idol of god. He was not knowing the name of said boy. When he asked his brother to come to the house, Niyaz Ahmed replied that he would come later on, on which he went to the house.
State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 6 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 He further deposed that in the next morning of 28.09.09 when he woke up, he heard some noise in front of his house on which he went to the spot situated at a distance of 250300 paces from the house and found dead body of his brother Niyaz Ahmed lying there. PCR call at 100 number was made on which police reached the spot and conducted the relevant proceedings. Dead body of his brother was taken to BJRM Hospital, Jahangir Puri, Delhi.
After postmortem examination, dead body of his deceased brother Niyaz Ahmed was handed over to them vide receipt Ex. PW10/A. He further deposed that police had lifted blood stained earth and earth control from the spot and seized the same vide memo Ex. PW10/D. He also deposed that police had lifted blood sample from the spot and after sealing the same, it was seized vide memo Ex. PW10/B. Not only this, one big stone lying at the spot was also seized vide memo Ex. PW10/C. This witness was cross examined by Ld. Additional PP as he was not supporting the case of prosecution on material point relating to identity of accused Rajeev @ Kala, etc. During such cross examination, PW2 deposed that his brother namely Shiraj Ahmed had made PCR call at 100 number from his mobile number 9213846928. Attention of this witness was drawn towards accused Rajeev @ Kala but even after seeing him, he deposed that he was not knowing the said accused. He denied that his brother Niyaz Ahmed (deceased) used to roam together with accused Rajeev @ Kala on his red colour Pulsar Motorcycle. He also denied the suggestions that he had seen Niyaz Ahmed in the company of accused Rajeev @ Kala and accused State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 7 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 Ravinder Dahiya in the intervening night of 27/280909 or that some altercation had taken place between them or that he had stated about these facts to his brother Shiraj Ahmed.
However, PW2 admitted that he had made statement before the Court on 22.02.2011 during which he had stated that he had seen accused Rajeev @ Kala with his brother at about 8.30 P.M and when he intervened in the quarrel and asked his brother Niyaz Ahmed to come to the house, accused Rajeev @ Kala had told him that there was some pretty issue and he will drop his brother Niyaz Ahmed at the house on his motorcycle. He also admitted to have told the Court in his testimony recorded on 22.02.11 that one empty fired cartridge was recovered from the spot and after taking measurements thereof, its sketch was prepared vide memo Ex.PW10/F. However, he denied that pullanda of said empty fired cartridge was prepared in his presence or it was seized by the police. He also denied to have identified accused Ravinder @ Dahiya and accused Rajeev @ Kala before the police.
During cross examination on behalf of accused, he testified that they were four brothers out of which Raju had also died on account of his murder and he was one of the witnesses in the murder case of his younger brother Raju. He had visited the place of incident at about 7.00/7.30 A.M on 28.09.09 and he remained there for about one hour. He had accompanied dead body of his brother Niyaz Ahmed to the hospital. He denied the relevant suggestions that he was not present at the house either on 27.09.09 or on 28.09.09 or that he was tutored by IO to depose in particular manner before the Court on 22.02.11.
State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 8 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014
22. PW7 Shiraj Ahmed: This witness is another brother of deceased Niyaz Ahmed. He deposed that on 27.09.09 at about 11.00/12.00 noon, his brother Niyaz Ahmed was taken by Rajeev on red colour pulsar motorcycle. There was some quarrel between them on which he asked Niyaz Ahmed not to visit Rajeev but Rajeev assured him that he would bring back his brother but his brother did not return home. On the next day i.e 28.09.09 when he went for search of his brother Niyaz Ahmed and reached in the next gali to his house, dead body of his brother was lying facing towards ground. One of his friends namely Jitender having his plot near the said place, also reached there. Accordingly, police was informed and police reached the spot. Thereafter, he alongwith police went to the house of accused Rajeev but he was found absconding from the house. Dead body was shifted to Mortuary and he identified dead body of his brother vide identification statement Ex.PW7/A. Dead body after postmortem examination, was handed over to them vide receipt Ex.PW7/B and thereafter, dead body was cremated.
He further deposed that after 2/3 days prior to the incident, his brother Mukhtyar Ahmed (PW2) had told him that deceased Niyaz Ahmed was quarreling with Rajeev and 23 other boys near idol of one Ishwar counselor situated at Auchandi Road. He also deposed that police had seized clothes of his brother vide seizure memo Ex.PW7/C. During cross examination on behalf of accused, he admitted that his another brother namely Riyaz was also murdered and case was registered in this regard. He claimed to have deposed before the Court at the time of State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 9 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 giving statement qua accused Ravinder Dahiya as PW4 in the present case that he had seen accused Rajeev and accused Ravinder Dahiya visiting with his brother Niyaz Ahmed and also that his brother Mukhtyar Ahmed had pacified them. However, this witness was confronted with portionA to A of his statement recorded before the Court on 21.02.11 as PW4 wherein it was found that this witness had denied the suggestion given by Ld. Additional PP on behalf of State that his brother Mukhtyar Ahmed had told him that he had seen Niyaz Ahmed with accused Rajeev @ Kale and Ravinder Dahiya and same altercation had taken place between them and his brother Mukhtyar Ahmed had pacified them. Likewise, he also claimed to have told the police that on 27.09.09, his brother Niyaz Ahmed was taken by accused Rajeev on red colour pulsar motorcycle but when he was confronted with police statement Ex.PW7/DA, it was not found so recorded. Instead, it was found recorded therein that his brother used to move around with accused Rajeev @ Kale on red colour pulsar motorcycle of said accused most of the time and his brother used to come back late night at home. Similarly, he also claimed to have told the police that after calling PCR, police had come to the spot on which he told the police that his brother Niyaz Ahmed was taken on 27.09.09 and thereafter, he alongwith police had gone to the house of accused Rajeev but he was found absconding from the house but on being confronted with police statement Ex.PW7/DA, these facts were also not found so recorded.
He further deposed that he was not called by IO in PS or at any other place to identify accused Rajeev @ Kale. He had accompanied with dead body of his brother to the hospital. His brother Mukhtiar Ahmed (PW2) State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 10 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 was not present with him when they had gone to the hospital. His brother Mukhtiar Ahmed had met him in the hospital at about 1.00/1.30 P.M.
23. PW5 Sukhbir Singh: This witness has not supported the case of prosecution at all as he deposed in the beginning itself that he was not aware about the facts of the present case. This witness was cross examined at length by Ld. Additional PP during which all the relevant suggestions on the lines of prosecution were given to him but he denied the same Ex.cept the fact that he was having plot no. 178 at village Mungeshpur. However, he deposed that accused Rajeev @ Kala as well as deceased Niyaz Ahmed were not known to him. He categorically denied the suggestion that accused Rajeev @ Kala alongwith Krishan @ Twinkle, Ravinder Dahiya, Rohit Panwar and Balraj @ Pappay Pehalwan used to visit his aforesaid plot and used to play cards or that deceased Niyaz Ahmed also used to visit the said plot alongwith the said persons.
This witness has not been cross examined by accused despite grant of opportunity.
24. PW6 Balraj: This witness also did not support the case of prosecution at all. He was also put to cross examination by Ld. Additional PP who put all the relevant suggestions on the lines of prosecution story which he denied. This witness has not been cross examined by accused despite grant of opportunity.
25. PW8 Rohit Panwar: This witness also deposed that he had no knowledge about the murder of Niyaz Ahmed. He was also cross examined State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 11 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 by Ld. Additional PP on behalf of State. Although, he admitted during such cross examination that Krishan Bhardwaj @ Twinkle was his friend and he was knowing accused Rajeev but he claimed ignorance about the fact that accused Rajiv alongwith Niyaz Ahmed had visited the plot or that he was knowing Niyaz Ahmed prior to the incident or that he alongwith accused Rajeev @Kala, Ravinder Dahiya etc. had enjoyed together at about 4.30 P.M on 27.09.09 or that accused Rajeev had met him at Auchandi Border on 29.09.09 and told him that he alongwith Ravinder Dahiya had committed murder of Niyaz Ahmed by firing upon him.
This witness has not been cross examined by accused despite grant of opportunity.
26. PW9 Sh. Krishan Bhardwaj: This witness also claimed that he had no knowledge about the murder of Niyaz Ahmed and he was knowing accused Rajeev @ Kala as said accused was son of his mausi.
During cross examination on behalf of State, all the relevant suggestions on the lines of prosecution story were put to this witness but same were denied by him.
This witness has not been cross examined by accused despite grant of opportunity.
27. PW10 Sh. Dinesh: According to the prosecution story, this witness accompanied Shiraj Ahmed (PW7) to the place of occurrence and identified the dead body of Niyaz Ahmed in Mortuary vide his statement Ex. PW10/A. State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 12 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 This witness has not been cross examined by accused despite grant of opportunity.
28. PW16 Sh. Yashvir Singh: This witness deposed that on 28.09.09 at about 7.00/7.30 A.M, when he had gone to his plot situated at Gram Sabha Colony near Ramesh Nagar Colony, Bawana, he found dead body of one male person lying at the corner of Ramesh Nagar Gali. Said dead body was found to be of Niyaz Ahmed who was resident of Ramesh Nagar Colony. Accordingly, he made PCR call at 100 number from his mobile no. 01120478188.
This witness has not been cross examined by accused despite grant of opportunity.
29. PW17 Jitender: This witness is also formal witness being caller at 100 number from his mobile phone no. 9213846928.
This witness has not been cross examined by accused despite grant of opportunity.
POLICE WITNESSES
30. PW1 HC Brijesh : He is the Duty Officer who proved factum regarding registration of FIR No.187/09, U/s 302/201/120B/34 IPC in PS Bawana. He proved copy of said FIR as Ex.PW1/A and his endorsement Ex.PW1/B made on the rukka.
During cross examination, he explained that time of about 2025 minutes was taken in recording the said FIR. He admitted that there is a gap State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 13 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 of two hours in recording DD no. 4A and 5A on 18.08.10.
31. PW4 HC Brahampal: He is the MHC(M) of PS Bawana who has proved factum regarding deposition of case property of this case in Malkhana on various dates.
He deposed that IO Inspector Rajesh Kumar had deposited five sealed pullandas sealed with the seal of RK and two pullandas sealed with the seal of BJRM alongwith sample seal on 28.09.09 vide entry no. 176 made in register no. 19 and proved copy thereof as Ex PW4/A. He further deposed that IO Inspector Rajesh Kumar had deposited one pullanda sealed with the seal of FSL PIP on 11.5.10 vide entry no. 114 made in register no. 19 and proved copy thereof as Ex PW4/B. He further deposed that IO Inspector Rajesh Kumar had deposited one pullanda sealed with the seal of NPW FSL on 04.12.10 vide entry no. 409 made in register no. 19 and proved copy thereof as Ex PW4/C. On 27.09.11, he had handed over six pullandas alongwith two sample seals to HC Sayer Mal for being deposited in FSL, Rohini vide RC no. 126/21 and proved copy of said RC as Ex PW4/D and receipt issued by FSL Authority as Ex PW4/E. He further deposed that on 18.01.09, he had deposited one pullanda in sealed condition alongwith FSL Form to FSL Rohini through Ct. Sayer Mal vide RC no. 147/21/10 and proved copies of said RC as Ex PW4/F1 and Ex PW4/G1.
He further deposed that on 26.11.09, pullanda of stone was sent State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 14 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 to BJRM Hospital vide RC no. 123/21/09 and proved copy of said RC as Ex PW4/F. He also deposed that on 20.01.11, two sealed pullandas alongwith FSL Form were sent to FSL Rohini through Ct. Sandeep vide RC no. 6/21/11 and proved copy of said RC as Ex PW4/G(also Ex PW4/K) and receipt Ex. PW4/H(also Ex. PW4/L).
He further deposed that FSL result was received from Ct. Devanand on 08.02.12.
During cross examination, he denied the suggestion that the aforesaid entires of register no. 19 were manipulated entries or that same were incorporated in the said register subsequently at the instance of IO of the case.
32. PW11 Ct. Suresh Kumar: This witness had joined investigation of this case on 20.08.10 with IO Inspector Rajesh Kumar (PW43). He deposed that he had accompanied IO to Rohini Court ComplEx. where accused Rajeev @ Kala was arrested after his interrogation vide memo Ex.PW11/A. He deposed that said accused had made disclosure statement Ex. PW11/B before him and had also pointed out the place of occurrence, vide pointing out memo Ex. PW11/C in his presence.
During cross examination, he deposed that Ct. Baljit was also present when accused had pointed out the place of occurrence. He had not visited the place of occurrence prior to 20.08.10 and they had gone to the place of occurrence in private vehicle. The place of occurrence was surrounded by residential houses and despite request made by IO to public State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 15 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 persons for joining the raiding party, none agreed.
33. PW12 HC Parmod Kumar: This witness joined investigation on 21.08.10 with IO Inspector Rajesh Kumar. He deposed that accused Rajeev @ Kala had made disclosure statement Ex.PW12/A in his presence.
During cross examination, he clarified that IO had recorded disclosure statement of said accused on the way to Sector1, Crime Branch Office and Ct. Satbir alongwith one more constable were also present at that time.
34. PW13 SI Mahender Pratap, PW30 HC Raj Kumar and PW32 Ct. Raman Kumar: All these witnesses had visited the place of occurrence on receipt of copy of DD No. 8A Ex.PW13/A on 28.09.2009. They deposed that when they reached the spot, one dead body of male person, aged around 2829 years was lying there. One big blood stained stone was also lying near the dead body. The deceased was wearing one sky blue Tshirt, blue lower and black sandle. SHO and local staff also reached the spot. Crime team also came to the spot and after carrying out inspection of the spot, photographer also took the photographs. Two persons namely Shiraj Ahmed and Mukhtiar Ahmed identified the dead body to be of their brother Niyaz Ahmed. On inspection of dead body, there was a wound in between the chest and abdomen and another wound on left side below arm pit besides two injuries on his head. The left side of the dead body was crushed.
PW13 further deposed that he prepared rukka Ex.PW13/B and State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 16 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 got the FIR registered through PW30 HC Raj Kumar. He further deposed that at about 11 am, Inspector Rajesh Kumar (PW43) alongwith HC Raj Kumar (PW30) came at the spot as further investigation was handed over to PW43. One empty cartridge was also found lying near the wall of plot of Jai Bhagwan. After preparing rough sketch, said empty cartridge was measured by the IO. The empty cartridges was put into match box and its pullanda was prepared and same was seized vide memo Ex.PW13/D. PW13 further deposed that Inspector Rajesh Kumar lifted blood stained earth, earth control, blood lying on the spot, blood stained big stone, etc. from the spot and seized the same after preparing their separate pullandas. IO also prepared site plan at his instance and dead body was sent to Mortuary of BJRM Hospital through Ct. Raman.
PW13 also deposed that he alongwith Inspector Rajesh Kumar, ASI Karan Singh and HC Raj Kumar (PW30) reached the Mortuary of BJRM Hospital where IO prepared the inquest papers and got the postmortem examination on the dead body of deceased conducted. He further deposed that after postmortem, doctor handed over blood sample and clothes of deceased alongwith sample seal to the IO, who seized the same vide memo Ex.PW7/C. PW13 further deposed that on 18.08.2010, he had arrested accused Rajeev @ Kala in case FIR No. 165/10 withi PS Shahbad Dairy wherein he made disclosure statement Ex.PW13/H regarding the present case.
During cross examination, PW13 deposed that house of deceased Niyaz Ahmed was situated at a distance of 100 meters from the spot where State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 17 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 dead body was lying. The place of recovery of dead body was residential area. Shiraj Ahmed, brother of deceased, met him at the spot and remained with them till 5 pm. He denied the suggestions given to him on behalf of accused Rajiv @ Kala.
During his cross examination, PW30 HC Raj Kumar deposed that distance between the house of deceased and place of recovery of dead body was about 100150 meters and said place was thoroughfare. He could not disclose the distance between the place from where empty cartridge was found and the place of recovery of dead body. However, he deposed that lot of people had gathered at the spot and despite request made by IO Inspector Rajesh Kumar, no public person joined in the investigation.
During cross examination, PW32 Ct. Raman Kumar denied the relevant suggestions put to him on behalf of accused.
35. PW14 HC Rohtash: This witness was second IO of case FIR no. 342/09 U/s 25 Arms Act of PS Vijay Vihar. He deposed that on 22.10.09 when after registration of said FIR, he had reached the spot, custody of accused Ravinder Dahiya alongwith all the relevant papers and sealed pullandas were handed over to him by HC Surender. Thereafter, he arrested accused Ravinder Dahiya who made disclosure statement Ex. PW14/A wherein he confessed his involvement in case FIR no. 187/09 with PS Bawana i.e the present case.
During cross examination, he denied suggestion that no such disclosure statement was made by accused Ravinder Dahiya or that his State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 18 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 signatures were obtained on blank papers.
36. PW15 HC Surender Dahiya: This witness deposed that on 22.10.09, he alongwith HC Narender, HC Bal Kishan and HC Sukhpal had apprehended accused Ravinder Dahiya (already acquitted vide judgment dt. 27.03.11 in the present case) from Sector 5 near Rihtala Metro Station and one pistol alongwith two live cartridges were recovered from his possession on which case FIR no. 342/09 U/s 25 Arms Act was got registered at PS Vijay Vihar and further investigation was handed over to HC Rohtash (PW14).
This witness has not been cross examined by accused despite grant of opportunity.
37. PW18 SI Deepak Malik: He deposed that on 17.08.10, he alongwith Ct. Praveen and Ct. Krishan had apprehended accused Rajeev @ Kala at about 10.45 P.M near CNG Pump, DSIDC Sector 4, Bawana and one pistol, three live cartridges and one empty cartridge were recovered from his possession on which he got FIR no. 165/10 U/s 186/353/307/34 IPC registered at PS Shahbad Diary and further investigation was handed over to SI Mahender Pratap(PW13).
This witness has not been cross examined by accused despite grant of opportunity.
38. PW19 SI Mahesh Kumar: This witness deposed that on 16.12.09, he alongwith IO Inspector Rajesh Kumar visited the place of incident where he took rough notes and measurements of the spot at the instance of the IO and prepared scaled site plan Ex. PW19/A. After State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 19 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 preparation of site plan, rough notes were destroyed.
During cross examination, he claimed that no DD register is maintained at the office of Crime Branch and no departure or arrival entry is made in the office of Crime Branch and arrival entry is made only at concerned PS whenever they are requested to visit the PS but he did not make any arrival entry on that day at PS Bawana.
39. PW21 HC Sukhbir Singh: He is the MHC(M) of PS Vijay Vihar who has proved relevant entry regarding deposit of one pullanda by HC Surender in Malkhana. He produced relevant entry at serial no. 337 of register no. 19. He proved copy of said entry as Ex.PW21/A. He further deposed that said pullanda was handed over by him to Ct. Raghav vide RC no. 131/21/10. He proved copy of said R.C. as Ex. PW21/D. During cross examination, he denied the suggestion that the relevant entries of register no. 19 and 21 were manipulated by him subsequently at the instance of IO of the case.
40. PW22 Ct. Sayarmal: He is the formal witness who had delivered copies of FIR in question, to Illaka Magistrate and Senior police officers on 28.09.09.
This witness also deposited sealed pullanda on 18.01.10 in the office of FSL, Rohini vide RC no. 147/21/10. This witness has not been cross examined by accused despite grant of opportunity.
41. PW25 HC Satish: This witness deposed that on 27.11.09. he had deposited sealed pullanda vide RC no. 126/21/09 in FSL, Rohini. State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 20 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 During cross examination, he denied the suggestion that seal on the pullanda was tampered, during the period of its custody.
42. PW26 HC Harphool Singh: This witness joined investigation of this case with IO Inspector Rajesh Kumar and HC Ram Phool on 23.10.09. He deposed that accused Ravinder Dahiya (already acquitted vide judgment dt. 27.03.11 in the present case) was arrested in his presence vide memo Ex. PW26/A and his personal search was also conducted vide memo Ex. PW26/B. He further deposed that accused Ravinder Dahiya made disclosure statement Ex.PW26/C and also pointed out the place of occurrence of the present case vide pointing out memo Ex.PW26/D. During cross examination, he deposed that place of occurrence is residential area and they had gone to the spot in government vehicle i.e Tata 407 but he was not aware in case any arrival entry was made or not.
43. PW28 HC Sukhbir Singh: He is the MHC(M) of PS Bawana who has proved relevant entry regarding deposit of one sealed pullanda by HC Surender in Malkhana. He produced relevant entry at serial no. 337/09 of register no. 19. He proved copy of said entry as Ex.PW28/A. He further deposed that said pullanda was handed over by him to Ct. Rajan Raghu vide RC no. 85/21/09. He proved copy of register no. 21 as Ex. PW28/B and PW28/C. During cross examination, he denied the suggestion that the relevant entries of register no. 19 and 21 were manipulated by him State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 21 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 subsequently at the instance of IO of the case.
44. PW29 Inspector Sanjay Gade: The said witness was the In charge of Mobile Crime Team which had reached the spot and had carried out inspection. He proved crime team report as Ex.PW29/A. During cross examination, he deposed that he had reached the spot at about 9.00 AM in the morning and remained there for about one hour. The brothers of deceased were also present when he reached there. He denied the suggestion that he had prepared false and fabricated report in favour of the prosecution.
45. PW31 WHC Vedvati: She is the Duty Officer who proved factum regarding recording of FIR No.187/09 U/s 302 IPC in PS Bawana. He proved copy of FIR as Ex.PW31/A and her endorsement Ex.PW31/B made on the rukka.
Nothing material has come on record during cross examination of this witness.
46. PW33 HC Kailash Chand:He is the Duty Officer who proved factum regarding recording of FIR No.342/09 U/s 25 Arms Act in PS Vijay Vihar. He proved copy of said FIR as Ex.PW33/A. Nothing material has come on record during cross examination of this witness.
47. PW34 ASI Garib Dass: This witness was working as Incharge of PCR Van Libra61 during the intervening night of 27.09.09 and 28.09.09. He deposed that on 28.09.09 at about 7.30 AM, on receipt of call from Control Room that one unknown dead body was lying in Ramesh Nagar, State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 22 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 Bawana, he reached the place of information and found one dead body lying over there. At about 8.00 AM, local police also reached there. Mother of deceased also reached and identified dead body to be that of Mohd. Niyaz. He informed about the said facts in the Control Room and left the spot.
During cross examination, he admitted that in his statement U/s 161 Cr.PC Ex. PW34/DA, he did not disclose that mother of deceased had also reached at the spot.
48. PW35 SI Ritesh Kumar and PW40 SI Dharambir Singh: According to the case of prosecution, these two witnesses were part of the raiding team, consisting of Inspector Bhagwati Prasad, SI Ramesh Dabas, HC Ved Prakash, HC Krishan and Ct. Hari Ram, besides them which had apprehended three persons namely Monu, Jai Prakash Pahalwan @ JP and Rajesh @ Kala on 09.05.2010 from Safari car bearing No. HR10J5483 and one 9 mm country made pistol was recovered from the possession of Monu.
These witnesses deposed about the relevant writing work carried out by them with regard to recovery of aforesaid arm and ammunition from Monu at the spot as also about the registration of FIR No. 68/10 U/s 25 Arms Act and section 411/34 IPC at PS Crime Branch.
During cross examination, they deposed that none of the members of raiding party received any injuries nor any firing took place during said period. Inspector Bhagwati Prasad requested 45 public persons to join the raiding party but none agreed.
PW35 deposed that IO did not write down their names, parentage State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 23 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 and addresses nor initiated any legal action against them. He further deposed that in his presence, IO did not verify the names, parentage and addresses of accused persons by visiting their respective houses and from their neighbourhood.
PW35 further deposed that they had no information with regard to apprehension of accused in case FIR No. 68/10. He did not make any enquiry to ascertain the authenticity of disclosure statement made by accused Monu regarding handing over of pistol to him by accused Raju @ Kala nor IO of case FIR No. 68/10 made any such enquiry in his presence.
49. PW36 SI Anwar Khan: This witness was IO of case FIR no. 68/10 with PS Crime Branch. He deposed about the relevant investigation carried out by him in the said case and proved copy of FIR No. 68/10 supra as Ex.PW36/A, disclosure statement of accused Monu as Ex.PW36/B, supplementary disclosure statement of accused Monu as Ex.PW36/C, arrest memo and personal search memo of accused Monu as Ex.PW36/D and Ex.PW36/E respectively.
During cross examination, he admitted that proceedings of case FIR No. 68/10 were not carried out in his presence and he had no personal knowledge about the facts of the said case. He did not record statement of any neighbour or any family members of accused Rajiv @ Kala to confirm the name and alias of said accused. He also did not collect identity proof of said accused. He also gave similar reply with regard to enquiry with respect to accused Monu in case FIR No. 68/10.
State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 24 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 He also admitted that he had not made any enquiry from any witness of case FIR No. 187/09 i.e. the present case, in order to ascertain the name and alias of accused Rajiv @ Kala. He denied the suggestion that he introduced false, fabricated and fictitious name to the name of accused Rajiv to falsely implicate him in the present case.
50. PW37 ASI Ashok Kumar: This witness remained IO of case FIR no. 68/10 for few days. He deposed that on 20.05.2010, he deposited exhibits of said case in FSL, Rohini and filed the challan before the concerned Court. He also collected FSL result and sanction U/s 39 Arms Act against the accused persons and filed the same in the concerned Court.
During cross examination, he deposed that he had not interrogated any of the accused involved in case FIR No. 68/10 supra. The Sanctioning Authority had not granted sanction U/s 39 Arms Act in his presence.
51. PW39 Sh. M.A. Rizvi: This witness had accorded sanction U/s 39 Arms Act to prosecute accused Rajeev @ Rohit @ Raju @ Kala for offence U/s 25 Arms Act and proved the sanction order as Ex.PW39/A. During cross examination, he admitted that no document was placed before him in order to show that accused Rajeev @ Raju @ Kala was also known by the name of Rohit and he himself personally did not make any effort to verify the said fact.
52. PW41 HC Suresh Kumar: This witness has proved factum regarding registration of FIR No. 68/10 in PS Crime Branch on 09.05.2010. State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 25 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 He proved copy of said FIR as Ex.PW36/A and his endorsement Ex.PW41/A made on the rukka.
During cross examination, he denied the suggestion that said FIR was falsely registered on false and fabricated facts.
53. PW42 Ct. Ranjan Prasad: This witness was working as photographer in Mobile Crime Team. He deposed that on 28.09.2009, he alongwith Mobile Crime Team headed by SI Sanjay Gade, had visited the place of information where one dead body of male person was lying. He took photographs of the dead body from different angles. He proved the said photographs as Ex.PW1/1 to Ex.PW1/8 and their negatives as Ex.PW1/9 to Ex.PW1/15.
During cross examination, he deposed that except the dead body, he did not take photographs of the surroundings of the place where dead body was lying. The photographs were taken by camera of the photographer who was posted in Crime Branch.
54. PW43 Inspector Rajesh Kumar: This witness remained IO in this case. He deposed about entire investigation carried out in this case. He deposed that he had lifted various exhibits including blood stained earth, earth control, big blood stained stone, empty cartridge, etc. found lying at the spot; preservation of dead body of deceased Niyaz Ahmed at Mortuary of BJRM Hospital through Ct. Raman; seizure of various pullandas vide memos Ex.PW43/A to Ex.PW43/D; recording dead body identification statements of Shiraj Ahmed and Mukhtiar Ahmed and preparation of rough site plan State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 26 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 Ex.PW43/E at the instance of SI Mahender Pratap after getting the postmortem of dead body of deceased Niyaz Ahmed conducted vide postmortem report Ex.PW27/A. He further deposed that he had obtained subsequent opinion Ex.PW43/F from Dr. V.K. Jha. He also deposed that relevant exhibits were sent to FSL, Rohini after which he collected FSL results Ex.PW43/G1 and Ex.PW43/G2.
He also deposed that he had arrested accused Rajiv @ Raju @ Kala in Rohini Court on 20.08.2010 vide arrest memo Ex.PW11/A and also recorded his disclosure statement Ex.PW11/B. During his cross examination, he testified that he came to know about the involvement of accused Rajiv @ Kala on the basis of statement made by PW Shiraj Ahmed and Mukhtiar Ahmed. He had visited the house of accused Rajiv @ Kala on 28.09.2009 but PWs Shiraj Ahmed and Mukhtiar Ahmed did not accompany him. He further deposed that he did not collect any documentary evidence to show that Monu was also known by the name of Badshah. Likewise, he did not collect any documentary evidence to show that accused Rajiv @ Kala was also known by the name of Rohit. He also did not collect any document to show that accused Rajiv @ Kala was resident of Village Bawana. He denied the relevant suggestions including the suggestion that he got proceedings U/s 82/83 Cr.P.C. initiated against accused Rajiv @ Kala on the basis of false reports that he was absconding.
55. PW44 SI Praveen Kumar: This witness was IO of case FIR State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 27 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 No. 68/10 with PS Crime Branch. He deposed about the investigation carried out by him on 09.05.2010 regarding the arrest of accused Monu @ Badshah alongwith three other accused persons. He proved relevant arrest memos of said accused persons, their disclosure statements, supplementary disclosure statements, etc. recorded in FIR No. 68/10 supra.
During cross examination, he admitted that no enquiry was made by him from parents of accused Monu @ Badshah to verify his name or alias. He also did not collect any document from his parents or any school attended by accused Monu in this regard. He did not meet any person by the name of Rohit @ Kala. He could not locate the house of said Rohit @ Kala and also did not meet the parents of said Rohit. He further denied the suggestion that he could not do so as Rohit @ Kala is nonexistent person.
56. PW45 HC Jag Narayan: He is the MHC(M) of PS Crime Branch who has proved relevant entries regarding deposit of pistol and cartridge recovered from accused Monu S/o Rohtash, revolver and cartridges from accused Rajesh Kumar @ Kala, gun and cartridge from accused Harvinder @ Sona, car, uniform and bag and personal search articles from accused persons, by SI Praveen Kumar in Malkhana. He produced original entry at serial no. 155/10 of register no. 19. He proved copy of said entry as Ex.PW45/A. He further deposed that all the said articles i.e. one pistol, magazine and seven cartridges unloaded from magazine, were handed over by him to HC Udaivir Singh of PS Bawana vide RC no. 425/21/10. He proved State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 28 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 copy of said R.C. as Ex.PW45/B. During cross examination, he deposed that the entries Ex. PW45/A is in his handwriting. The seizure memo of articles was not prepared in his presence by the IO. He denied the suggestion that the relevant entries of register no. 19 were false, fabricated and manipulated by him subsequently at the instance of IO of the case. He further denied the suggestion that the pistol allegedly recovered at the instance of Monu, was planted upon him and same were tempered when it remained in his custody. MEDICAL WITNESSES
57. PW27 Dr. V.K Jha: This witness had conducted postmortem examination of dead body of deceased Niyaz Ahmed on 28.09.09 at about 1.00 P.M. He proved his detailed postmortem examination report dt. 28.09.09 as Ex. PW27/A during trial. According to said report, following Ex.ternal injuries were found on the dead body of deceased Niyaz Ahmed:
1. Fracture deformity all facial bones, face preserved from front Ex.tending to cranium, where there is communited fracture of skull bone.
2. Lacerated penetrated wound on mid axillary line in 7th intercostal space of size 1cmx0.5cm with greased collar area of 1mm present. Blackening tattooing present all around Margins are inverted(entry wound of the firearm).
3. Lacerated wound of size 1.5 cm x 1 cm present between right nipple and 1 cm lateral to the midline. Margins were everted (Ex.it wound of State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 29 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 the firearm).
This witness has not been cross examined by accused despite grant of opportunity.
SCIENTIFIC EVIDENCE
58. PW3 Sh. R. Suresh: This witness had examined parcel containing one 9mm cartridge case received as case property of present case, in Ballistic Division of FSL, Rohini on 18.01.10 and proved his detailed report as Ex. PW3/A The said empty cartridge case was proved as Ex. P2, during his testimony.
During his cross examination, he admitted that he had not mentioned description of bottom of empty cartridge Ex. P2, in his report Ex. PW3/A.
59. PW38 Sh. Puneet Puri: This witness had conducted examination of parcel containing one 9 mm cartridge case as case property of case FIR no. 187/09 with PS Bawana and another parcel containing one improvised pistol 9mm bore, four 9 mm cartridges and three 9 mm cartridge cases as case property received in case FIR no. 68/10 with PS Crime Branch in Ballistic Division of FSL, Rohini. He proved his detailed examination report in this regard as Ex. PW38/A. He deposed that individual characteristics of firing pin marks present on empty cartridge case of 9 mm of present case, were found identical with test fired cartridge cases of case FIR no. 68/10 with PS Crime Branch.
State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 30 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 During cross examination, he couLd. not disclose as to whether improvised pistol Ex. PX was rusted or not when test fire were made through said pistol. He explained that individual characteristics of any weapon remains the same and depend upon various conditions whether the same is kept or stored. There may or may not be rust present inside the barrel of rusted pistol and every cartridge fired from pistol Ex. PX, would have the same characteristics.
ELECTRONIC EVIDENCE:
60. PW20 Sh. Sh. Vishal Gaurav, Nodal Officer, Bharti Airtel Ltd.: He produced call details record of SIM number 9910446700 for the period between 27.09.09 to 30.09.09. He deposed that said number was issued to Smt. Krishna R/o House no. 10, Auchandi Road, Village Bawana, Delhi. He proved copy of Customer Application Form (CAF), copy of Customer Declaration Form and copy of ID proof as Ex.PW20/A to Ex.PW20/C, copy of call details record for the aforesaid period as Ex.PW20/D and Certificate U/s 65B of Indian Evidence Act as Ex.PW20/F. During cross, he denied the suggestion that the relevant record produced by him were manipulated at the instance of IO.
61. PW23 Sh Israr Babu, Alternate Nodal Officer, Vodafone: He produced call details record of SIM number 9654516526 for the period between 01.06.09 to 07.10.09. He deposed that said number was issued to State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 31 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 Ram Chand Dhiman R/o House no. V&PO Samalka New Delhi. He proved copy of Customer Application Form (CAF), copy of Customer Declaration Form and copy of ID proof as Ex.PW23/A to Ex.PW23/C, copy of call details record for the aforesaid period as Ex.PW23/D(running in 12 pages), Certificate U/s 65B of Indian Evidence Act as Ex.PW23/E and Cell ID Chart of Vodafone of Delhi and NCR as Ex. PW23/F. During cross examination, he denied the relevant suggestion that the relevant data in the computer was suspectable to hacking and the relevant record produced by him, had been manipulated at the instance of IO.
62. PW24 Sh. Amar Nath, Alternate Nodal Officer, Idea Cellular Ltd: He produced call details record of SIM number 9911043056 for the period between 16.09.09 to 28.09.09. He deposed that said number was issued to Sanjay S/o Sh. Radhey Shyam R/o House no. C89, Jawala PuriIV, Nangloi, New Delhi41. He proved copy of Customer Application Form (CAF), copy of Customer Declaration Form and copy of ID proof as Ex.PW24/A to Ex.PW24/B, copy of call details record for the aforesaid period as Ex.PW24/C and Certificate U/s 65B of Indian Evidence Act as Ex.PW24/H. During cross, he denied the suggestion that the relevant record produced by him are manipulated at the instance of IO.
ARGUMENTS ADVANCED & CASE LAW CITED
63. Ld Additional PP vehemently argued on behalf of State that State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 32 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 prosecution has been able to establish the charges levelled against accused beyond reasonable doubt. He fairly submitted that the entire case of prosecution is based upon circumstantial evidence but contended that ocular evidence coupled with medical evidence produced during trial, are sufficient to prove the complete chain of events leading to the guilt of accused beyond reasonable doubt. The circumstantial evidence as pointed out by Ld Additional PP can be summarized as under:
(i) Last seen evidence in the form of testimony of PW2 Mukhtar Ahmed and PW7 Shiraj Ahmed;
(ii) Recovery of dead body of deceased Niyaz Ahmed immediately in the morning of next day of 27.09.09 when deceased was lastly seen in the company of accused herein;
(iii) Recovery of big stone Ex P1 lying just near the place of recovery of dead body;
(iv) Recovery of weapon of offence i.e pistol Ex.PX from the possession of Monu @ Badshah in case FIR no. 68/10 with PS Crime Branch, which was allegedly used by present accused alongwith co accused Ravinder Dahiya while committing murder of deceased Niyaz Ahmed;
(v) Medical evidence in the form of postmortem report dt. 28.09.09 Ex PW27/A clearly proves that cause of death of deceased Niyaz Ahmed was bullet injury; and
(v) Lastly, FSL result dt. 04.06.10 Ex. PW3/A and FSL result dt. 27.01.12 Ex PW38/A as available on record.
64. On the other hand, Ld defence counsel vehemently argued that State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 33 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 prosecution has utterly failed to establish its case against accused Rajeev @ Kala beyond reasonable doubt. While placing reliance upon the judgment of Division Bench of our own High Court in the matter titled as " Jaffar @Raju Vs. State" reported at 2013(2) JCC 1175, he submitted that the prosecution has failed to prove the complete chain of evidence leading to the conclusion that it was the accused and accused alone who had committed murder of deceased Niyaz Ahmed. In order to buttress the said submission, he also referred to the testimonies of prosecution witnesses as available on record. He urged that the testimony of PW7 Shiraj Ahmed does not inspire confidence as he has vastly improved his statement during trial qua this accused visavis his testimony recorded during trial qua co accused Ravinder Dahiya who has already been acquitted on 27.03.11 by Ld predecessor of this Court.
65. Ld defence counsel further assailed the testimony of PW7 Shiraj Ahmed by referring to the relevant portions of his testimony recorded on 21.1.11 during trial qua accused Ravinder Dahiya visavis his testimony recorded on 30.03.12 during trial qua this accused.
66. Ld defence counsel pointed out that the weapon of offence i.e pistol allegedly recovered from accused Ravinder Dahiya in case FIR no. 342/09 of PS Vijay Vihar could not be connected with the empty cartridge allegedly recovered from the place of recovery of dead body of deceased Niyaz Ahmed in the present case. He also pointed out that pistol allegedly recovered from accused Monu @ Badshah in case FIR no. 68/10 with PS State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 34 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 Crime Branch, also could not be connected with this accused.
67. Hon'ble Apex Court in the matter titled as "Sharad Birdhichand Sarda Vs. State of Maharashtra"reported at (1984) 4 SCC 116, has laid down the following five golden principles constituting the panchsheel of the proof of a case based on circumstantial evidence:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this Court in ShivajiSahebraoBobade Vs. State of Maharashtra, 1973 CriLJ 1783 where the following observations were made:
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) The circumstances should be of a conclusive nature and tendency. State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 35 of 44
FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
68. Before discussing the rival submissions made on behalf of both the sides, it is relevant to note that initially, accused Ravinder Dahiya had been arrested in this case and this accused was claimed to be absconding. After being charge sheeted, co accused Ravinder Dahiya faced trial in this case and he was ultimately acquitted on 27.03.11 by Ld predecessor of this Court. The present accused namely Rajeev @ Kala is claimed to have been arrested on 27.08.10 and after completion of investigation qua him, he was chargesheeted by way of supplementary charge sheet filed before Ld predecessor of the Court.
69. In order to establish the charge levelled against this accused, prosecution produced four independent public witnesses namely PW5 Sh. Sukhbir Singh, PW6 Sh Balraj, PW8 Sh Rohit Pawar and PW9 Sh. Krishan Bhardwaj besides two more public witnesses namely PW2 Mukhtar Ahmed and PW7 Sh. Shiraj Ahmed who are noneelse but real brothers of deceased Niyaz Ahmed.
70. It may be noted here that the prosecution story claimed that State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 36 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 deceased Niyaz Ahmed used to enjoy the company of aforesaid four public witnesses as well as that of accused Rajeev @ Kala and co accused Ravinder Dahiya and on the fateful day of incident, all of them had assembled together at the plot of PW5 Sukhbir Singh and had consumed liquor and also played card. However, all the aforesaid four public witnesses completely denied the said story by claiming that nothing of that sort happened on that day.
71. As already discussed above, all the aforesaid four independent public witnesses have not supported the case of prosecution on any material point whatsoever. All four of them have deposed that they had no knowledge about the facts of the present case and denied to have made any statement before the police during investigation of the case. Not only this, all four of them testified during trial that they were not knowing accused herein and ruled out the story of prosecution as mentioned in the charge sheet, in toto.
72. Ld Additional PP heavily relied upon the testimony of PW2 Mukhtar Ahmed and that of PW7 Shiraj Ahmed, in order to bring home his point that PW2 is last seen evidence to prove the fact that deceased Niyaz Ahmed was lastly seen in the company of this accused and therefore, it is one of the most important piece of circumstantial evidence available on record to convict the said accused. However, I am afraid if the said argument of Ld Additional PP can be accepted by the Court. The reason is quite obvious. PW2 Mukhtar Ahmed has not supported the case of prosecution qua this accused during trial. He simply claimed to have seen his deceased brother talking to one boy of tall height but stated that he was not knowing the name of said tall boy. Even during his cross examination on behalf of State, he re State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 37 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 iterated the same fact and added that accused Rajeev @ Kala was not known to him despite the fact that said accused was pointed out to him in the Court. He also denied the suggestion of Ld Additional PP that his deceased brother used to roam with this accused on his red colour pulsar motorcycle.
73. As regards the reliance placed by Ld Additional PP on testimony of PW7 Sh. Shiraj Ahmed, it is important to note that said witness claimed to have seen his deceased brother Niyaz Ahmed in the company of this accused at around 11.00/12.00 noon on 27.09.09. The said part of his testimony is somewhat contrary to the case of prosecution as mentioned in the charge sheet which provides that PW7 had lastly seen deceased in the company of this accused somewhere at around 8.15/8.30 P.M on 27.09.09.
74. Be that as it may, the testimony of PW7 as recorded during trial of this accused, does not inspire confidence as the said witness has made lot of improvements in his testimony recorded qua this accused on 30.03.12 vis avis his previous testimony recorded on 21.01.11 qua co accused Ravinder Dahiya in as much as the same witness who appeared as PW4 during trial qua co accused Ravinder @ Dahiya, nowhere deposed at that time that he had seen accused Rajeev @ Kala and co accused Ravinder Dahiya quarreling with his brother Niyaz Ahmed or that his brother Mukhtiar Ahmed had pacified them. Rather, he denied the suggestion put to him on behalf of State in his previous testimony recorded on 21.01.11 that his brother Niyaz Ahmed had told him that he had seen deceased Niyaz Ahmed in the company of accused Rajeev @ Kala and accused Ravinder Dahyia and there was some altercation between them and his brother Mukhtar Ahmed had pacified them. However, State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 38 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 he took completely U turn in his subsequent testimony recorded on 30.03.12 qua this accused wherein he claimed to have seen deceased in the company of accused Rajeev @ Kala on 27.09.09.
75. Likewise, PW Sh Shiraj Ahmed testified as PW7 on 30.03.12 that his brother Mukhtar Ahmed had told him about 2/3 days prior to incident that deceased was quarreling with accused Rajeev and 2/3 other boys at Auchandi Road whereas said Mukhtar Ahmed as PW2 nowhere uttered even a single word on this aspect during his entire testimony recorded qua this accused.
76. Not only this, PW7 Sh. Shiraj Ahmed is also shown to have improved his statement made during trial qua this accused as compared to his police statement Ex PW7/DA made before IO during the course of investigation. Although, he claimed to have told the police in his police statement Ex PW7/DA that his deceased brother was taken by accused Rajeev on 27.09.09 on red colour motorcycle. Similarly, he also claimed to have told the police in his police statement that he had accompanied the police to the house of accused Rajeev on 27.09.09 but he was found absconding from his house but when he was confronted with his police statement Ex PW7/DA, said facts were not found mentioned therein.
77. There is another reason which makes the testimonies of PW2 Mukhtar Ahmed and PW7 Sh. Shiraj Ahmed shakey and unreliable. PW2 Sh Mukhtar Ahmed claimed to have accompanied the dead body of deceased Niyaz Ahmed to BJRM Hospital after its removal from the spot on 27.09.09 but PW7 Sh. Shiraj Ahmed testified during trial that it was he who had State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 39 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 accompanied with the dead body of deceased to the hospital and his brother Mukhtar Ahmed was not present with them at that time. Instead, he claimed that PW Mukhtar Ahmed had met him in the hospital at about 1.00/1.30 P.M.
78. The next bone of contention of Ld Additional PP is that there is recovery of pistol from the possession of co accused Ravinder Dahiya in case FIR no. 342/09 of PS Vijay Vihar as also the recovery of pistol from possession of one Monu @ Badshah in case FIR no. 68/10 with PS Crime Branch and said weapons had been used in the commission of murder of deceased Niyaz Ahmed. However, the said contention does not carry any force and is liable to be rejected for the simple reason that nothing has been brought on record to show that the pistol allegedly recovered from co accused Ravinder Dahiya in case FIR no. 342/09 of PS Vijay Vihar was connected with empty cartridge recovered from the scene of crime. In this regard, it was essential for the prosecution to place on record FSL result given by Ballistic Expert after examining the pistol involved in case FIR no. 342/09 supra and also to produce the said pistol during trial of this case. This is more so when co accused Ravinder Dahiya has already been acquitted in this case.
79. As regards the recovery of pistol from accused Monu @ Badshah in case FIR no. 68/10 of PS Crime Branch, it would be sufficient to note that investigating agency failed to collect any cogent piece of evidence during investigation and the prosecution failed to lead any admissible piece of evidence during trial which may show any connection between Monu @ Badshah and this accused namely Rajeev @ Kala in any manner whatsoever.
80. According to the case of prosecution, accused Monu @ Badshah State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 40 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 was arrested in case FIR no. 68/10 with PS Crime Branch made disclosure statement Ex PW36/B that said pistol recovered from him, was handed over to him by one Rohit @ Kale whereas the actual name of accused herein is Rajeev and not Rohit @ Kale.
81. As rightly pointed out by Ld defence counsel, all the relevant witnesses who remained associated during investigation of case FIR no. 68/10 of PS Crime Branch as also the relevant police witnesses examined during trial of this case and remained associated during arrest of accused herein, admitted during their respective cross examination that they did not come across any evidence, oral or documentary, which may show that accused Monu of case FIR no. 68/10 supra was also known by the name of Badshah. Rather, the relevant prosecution witnesses of case FIR no. 68/10 of PS Crime Branch i.e PWs 35 SI Ritesh Kumar, PW 37 ASI Ashok Kumar, PW40 SI Dharambir Singh and PW44 SI Parveen Kumar admitted during their respective cross examination that no effort was made by any of them either to visit the house of accused Monu or to make any enquiry to verify the fact that he was also known as Badshah.
82. Same is the case with accused herein as all the relevant witnesses examined during trial in this case, have admitted during their respective cross examination that no enquiry whatsoever was made by any of them in order to verify that this accused is also known as Kale or Rohit. In this backdrop, it cannot be accepted by any stretch of imagination that pistol allegedly recovered from aforesaid Monu, was handed over to him by accused herein or that accused herein had any sort of connection with said Monu. Except their State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 41 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 disclosure statements, the prosecution has failed to place on record any piece of evidence on record. It goes without saying that those disclosure statements are in admissible in evidence being hit by Section 25 of Indian Evidence Act.
83. Above all, it is relevant to highlight here that PW13 SI Mahender Partap was initial IO of this case as he had reached the place of occurrence at the first instance after receipt of copy of DD no. 8A Ex PW13/A on 28.09.09. It has come on record during testimony of this witness that he was also the IO of case FIR no. 165/10 registered at PS Sahabad Diary and had arrested accused Rajeev in the said other case on 18.08.10. It was only after arrest of accused herein in case FIR no. 165/10 supra, accused Rajeev @ Kala was also arrested in this case on the basis of his disclosure statement Ex PW13/H recorded by PW13. In this backdrop, the possibility of manipulating the disclosure statements of accused as per the convenience of investigating agency, cannot be ruled out.
84. There are several questions which remained unanswered by the prosecution witnesses during the course of trial. Some of them may be mentioned as under:
(a) The prosecution has claimed that one SIM no. 9910446700 was allegedly used by accused Rajeev. The perusal of CAF Ex PW20/A in respect of said SIM, would show that said number was issued in the name of one Smt. Krishna W/o Sh. Mahender but investigating officer failed to explain as to why he did not examine said Smt. Krishna during investigation and as to why, the said witness was not produced during trial;
(b) The prosecution has claimed that SIM No. 9654516226 allegedly State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 42 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 used by co accused Ravinder Dahiya was issued in the name of Sh Ram Chand Dheeman S/o Sh P.K Dheeman as per CAF Ex. PW23/A but investigating officer failed to explain as to why he did not examine said Sh. Ram Chand Dheeman during investigation and as to why, the said witness was not produced during trial;
(c) The prosecution claimed that PW2 Mukhtar Ahmed had lastly seen deceased Niyaz Ahmed in the company of this accused at about 8.15/8.30 P.M on 27.09.09 meaning thereby that deceased was still alive atleast till 8.30 PM of 27.09.09. However, postmortem report dt. 28.09.09 Ex PW27/A would show that postmortem examined of dead body of deceased Niyaz Ahmed was conducted by PW27 Dr. V.K Jha on 28.09.09 at 1.00 P.M and time since death as mentioned therein, is shown to be 17.00 hours. In this manner, the time of death of deceased Niyaz Ahmed comes out to be somewhere around 8.00 P.M on 27.09.09. This discrepancy is again not explained by the relevant prosecution witnesses during the course of trial.
(d) Although, it is claimed that empty cartridge was found recovered near the place of recovery of dead body of deceased on 28.09.09 but the crime team report Ex PW29/A which is claimed to have been prepared after carrying out thorough inspection of the said property, is totally silent about recovery of any empty cartridge.
(e) Although, it is claimed by PW 42 namely Ct. Ranjan Parsad who had taken photographs of the place of recovery of dead body on 28.09.09 that he had taken photographs of the said place from different angles but it is quite strange that he did not take photograph of empty cartridge claimed to be State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 43 of 44 FIR No. 187/09; U/s 302/201/120B/34 IPC; P.S. Bawana D.O.D. : 29.11.2014 found lying at the said place.
85. In the light of aforesaid discussion, I am of the considered opinion that prosecution has failed to establish the complete chain of circumstances which could link the accused Rajeev @ Kala with the offence charged against him. In other words, the prosecution has miserably failed to establish that it was the accused Rajeev who had committed murder of deceased Niyaz Ahmed. Consequently, he is hereby acquitted of the charges levelled against him by giving him benefit of doubt. However, case property be confiscated to the State after expiry of period of appeal or subject to decision of appeal in case any appeal is preferred by State against the judgment passed by this Court, as per rules. File be consigned to Record Room after compliance of Section 437A Cr.P.C, as per the rules.
Announced in open Court today
On 29.11.2014 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts/Delhi
State V/s Rajeev @ Raju @ Kala ("Acquitted") Page 44 of 44