Delhi District Court
State vs Pradeep Mittal @ Chhotu @ Anuj Etc. 1 on 22 December, 2023
IN THE COURT OF MS. AMBIKA SINGH
:ASJ-02:WEST DISTRICT:TIS HAZARI COURT: DELHI:
STATE Vs. PRADEEP MITTAL @ CHOTU @ ANUJ & ORS
Sessions Case No. 56832/2016
FIR No. 18/2013
Police Station Nangloi
Date Of Committal 23.09.2013
Name of the Complainant State represented by Ms. Parul
Singh, Ld. Addl. PP for the
State.
Name of the Accused/s Pradeep Mittal & Puran @
Sumit
Offence Complained Of U/S 302/392/IPC and
25/27 Arms Act
Plea Of The Accused Pleaded Not Guilty
Arguments Heard/Order Reserved on 19.12.2023
Final Order Acquitted u/s 302/392/IPC and
25/27 Arms Act
Date Of Such Order 22.12.2023
J U D G M E N T :-
FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 1 of 83
1. Briefly stated, it is the case of the prosecution that on 12.01.2013, an information was received vide DD No. 44A and thereafter, the present case FIR was registered regarding an unidentified assailant, whilst armed with an unlicensed countrymade-pistol with a bullet committed by robbers carrying away the cash kept in cash box and also shooting in the chest and caused the death of Sh. Naresh Kumar owner of Ganesh Trading Company and thus, he committed the offence u/s 302/392 IPC and 25/27 Arms Act
2. On 08.01.2014 charge was framed against the accused Pradeep Mittal @ Chottu @ Anuj for the offence u/s 302/392 IPC and 25/27 Arms Act to which he pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution has examined 28 witnesses in total :-
4. PW 1 HC Ram Sahay No.539W PS Nangloi, Delhi. The witness HC Ram Sahay deposed as under:
"It was 12.01.2013 and I was posted as the Duty Officer from 05:00 PM to 01:00 AM at PS Nangloi. HC Lal Singh came with the Rukka at 10:55 PM and I recorded the DD entry and registered the FIR No. 18/13. I have brought the original FIR and the same bears my signatures thereon. The computerized copy of the same bears my signatures also at point A on Ex. PW I/A. I handed over the copy of the FIR in the rukka to Constable Lal Singh No. 233W. I also recorded DD No. 44A at the time of registration of the FIR and I made mention thereof FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 2 of 83 on the FIR. The certificate under Section 65 B of the evidence Act bears my signatures at point A on Ex. PW 1/B."
No Cross Examination by Ld. Chirag Mudgal for the accused, despite being given the opportunity.
5. PW 2 Shri Mahesh Kumar Sharma S/o Sh. Om Prakash Sharma. The witness Mahesh Kumar Sharma deposed as under:
"Naresh Kumar the deceased was my real elder brother. I had seen the corpse of my brother on the night of 12.01.2013 at the mortuary at the Balaji Hospital. I identification proceedings bears my signatures at point A on Ex. PW 2/A. I had identified the corpse of my brother on 13.05.2013 at the Sanjay Gandhi Hospital as well.
No Cross Examination by Ld. Counsel for the accused, despite being given the opportunity.
6. PW-3 Shri Rajender Kumar Sharma S/o Sh. Om Prakash Sharma, The witness deposed as under:
"Naresh Kumar was my real elder brother. I was at my shop.My elder brother Naresh had been fired at Kamruddin Nagar Mode, Yadav Park. I had identified the corpse of my brother at the Sanjay Gandhi Hospital. Vol., before taking my brother to the Sanjay Gandhi Hospital I had taken my brother to the Balaji Hospital on 12.01.2013. I went to the Sanjay Gandhi Hospital on the next day on 13.01.2013. There the doctor had stated that my brother was dead. I do not recall whether I signed at point A on Mark PW 3/A."
FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 3 of 83 No cross Examination by Ld. Counsel for the accused. despite being given the opportunity.
7. PW-4 Satish deposed S/o Net Ram. The witness deposed as under:
"I reside at Delhi i.e. I have a shop at Delhi at Nangloi bearing No. A-1. Yadav Park. I run my shop by the name of Satish Stores. It was 12.01.2013 around 7:45PM. I was working in my shop. बबहर आवबज आई जज सस पटबखस बजतस हह । I heard the sound of Rajender my Mosi's son कक गगलल मबर दल भबई नरस श कग Naresh is also my Mosi's son. When I came out of my shop I found that Naresh was not on the seat of his shop (my shop and the shop of Naresh are different shops - in reply to a specific Court query). I also saw Naresh lying at the back in the shop और खख न मम लथपथ थस and was bleeding from his chest. Rajender and Vimal took Naresh in a vehicle to the hospital. I went on my motorcycle. We went to the Balaji Hospital. The doctors at the hospital declared Naresh dead. Thereafter, proceedings were conducted by the police. The next day the corpse of the deceased was given by the police."
In the cross examination PW-4 deposed as under:
"I sit on my shop from 10.00 AM to 08.00 PM There is a distance of about 3-4 kilometers from the shop of Naresh to the Balaji Hospital. Vol. However, I have not measured the kilometers. It must have taken me about 30/45 minutes to reach the Balaji Hospital. I had left after Rajinder and Vimal had left with Naresh. Naresh had been declared dead before I reached FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 4 of 83 the hospital. Vol. Our family members were already present at the hospital. It is incorrect to suggest that the police took any signatures of mine on any blank papers at the hospital. It is incorrect to suggest that I gave no statement to the police and It is incorrect to suggest that I have been planted as a witness. Rather, the police had made enquiries from me."
8. PW-5 Shri Vimal Lochab s/o Sh. Sriniwas Lochab. The witness Vimal Lochab deposed as under:
"I was working with Ganesh Trading, a trading company at Yadav Park, Nangloi, Delhi. Mr. Naresh Vashisht was the owner of this Ganesh Trading. I used to do part time work as Salesman, Accountant and other petty work with Ganesh Trading. My working hours were from 03.00 PM till 04.00 PM / 7-8 PM It was 12.01.2013 and it was between 7.30 PM to 08.00 PM I had a pain in my neck at that time and I was taking a medicine. I heard a noise from the back. I could not understand what that noise was because the Television was also on. I turned back and I do not know who but someone injured me on my forehead at the top near my head and then I felt giddy as I had been assaulted very severely. Naresh was sitting on the chair. When I regained conciousness I found that he was lying on the floor and that he was shouting ( कचललब रहस थस ) at that time Rajender the younger brother of Naresh was also standing at the gate and he was crying and he was shouting that someone should telephone the ambulance. I then telephoned at No. 100 for the ambulance. We did not wait for the ambulance I then brought a Swift Car belonging to Naresh which was FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 5 of 83 parked in front of the shop. Mr. Rajender, the पललस दबर who used to work there and I took Naresh to the Balaji Hospital. The doctors at the hospital declared Naresh dead. The police then brought me to the police station and made inquiries from me about the incident and about the assaulter. I had told the police what had happened and had informed the police that I could not declared who was the assaulter. The police had detained me at the police station for 10 days for inquiries. I do not recall anything else. It is incorrect to suggest that I informed the police that I could identify the assaulters."
He was cross-examined by the Ld. Addl. PP as he was not revealing the complete facts and resiled from the previous statement and he deposed as under:
"It is wrong to suggest that I stated to the police that I had seen two boys aged 20/25 years approximately who were asking Uncle Naresh to take out the money soon and that Uncle Naresh had then asked them as to what money they were asking. The witness is confronted with porions X to X-1 of Mark PW-5/DA on which I identify my signatures at point A. It is incorrect to suggest that I made this statement portions X-1 to X-2 to the effect that one of those boys was standing at the main gate with a gun and that one of them had put the gun on the chest of uncle Naresh and was demanding the money. The witness is confronted with portions X to X-1 of Mark PW-5/A wherein it is so recorded. Vol. Rather I had become unconscious on being assaulted on my head. Though I had been assaulted on the head, I do not know who assaulted me and FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 6 of 83 with what I was assaulted and I did not make the statement portions X-2 to X- 3 of Mark PW-5/A. It is incorrect to suggest that I make the statement portions X-3 to X-4 of Mark Pw-5/A to the police to the effect that one of those boys had fired the gun on the chest of Naresh. Rather I have already stated that I was unconscious at that time. I do not know whether those boys had taken out the money from the cash box of Naresh and had run away. I did not see those boys running towards the lane after taking the money from the cash box of Naresh as mentioned in portions X-4 to X-5 of Mark Pw-5/A. However, I had so heard that they had run away. When I had regained consciousness I found Mr. Naresh having fallen down after लड खढबतस हखए. It is incorrect to suggest that I had given the description of those two boys as mentioned at portions X-6 to X-7 of mark PW 5/A to the police. However, it is correct that I was not medically examined. It is incorrect to suggest that I stated to the police that I could identify of those two boys. The police had come to me to make inquiries about the site plan. The police may have made the site plan. But I do not know witness is confronted with mark PW 5/B the allegedly recorded statement dated 13.01.2013. It is incorrect to suggest that I made the statement dated 26.07.2013 mark PW 5/C to the police. I cannot identify the accused present today in Court as being the accused Pradeep Mittal as mentioned as Mark PW 5/C. I do not recall whether the site plan was prepared on
09.08.2013 after measurements in my presence. Witness is confronted with Mark PW 5/D. It is incorrect to suggest that I FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 7 of 83 have delibrately not identified the accused present today in Court as being one of the assaulters at the time of the incident and it is incorrect to suggest that I have testified falsely. It is incorrect to suggest that I had not been detained for 8/10 days at the police station by the police. Vol. Rather the entire staff of Ganesh Trading have been detailed by the police at the police station for 8/10 days. No complaint was made against the police for detention at the police station for 8/10 days. My parents had come to the police station they were informed by the police that I had been detained for inquiries and they would be no harm cause to me. It is incorrect to suggest that I have testified falsely in connivance with the accused present today in Court rather I do not even know the accused."
9. PW-6 HC Lal Singh No. 233, West PS Nangloi. The witness HC Lal Singh deposed as under:
"On 12.01.2013, I was posted at PS Nangloi and I was on petrolling duty at night around 8.00 PM. I received a message on the wireless set and I reached the spot at A-1 A-2 Yadav Park. ASI Rajbir Ct. Shiv Kumar and the SHO Nangloi were already present when I reached there. Along with the SHO Nangloi and ASI Rajbir I went in the SHO Gypsy to the Balaji hospital. Ct. Shiv Kumar had been left at the spot. At the Balaji hospital the SHO obtained the MLC of Naresh on which the doctor had declared him brought dead. SHO sent ASI rajbir with the dead body to the Sanjay Gandhi hospital to the mortuary. The SHO recorded the statement of Vimal Lochab the complainant at the Balaji hospital in my presence in reply.
FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 8 of 83 The SHO made an endorsement on the statement of the complainant and had given the same to me which I took to the PS for registration of FIR and I had left the hospital for registration of FIR at 10.40 PM. I reached the duty officer of the PS at 10.55 PM and got the FIR registered. The duty officer after registration of FIR gave me a copy of FIR which I took along with original rukka to the spot and handed over the same to the SHO. Thereafter, my statement was recorded at the PS on 13.01.2013 by the SHO."
In the Cross Examination by ld. counsel for the accused. The witness deposed as under:
"I reached the spot within five minutes of the receipt of the message on wireless set. ASI Rajbir, Ct. Shiv Kumar, the SHO and some members of public were present there when I reached there. There was a chair in the shop and there was a counter there. We left the spot around 8.45 PM for the hospital. The MLC was already prepared before we reached the hospital and the deceased had already been declared dead before we reached the hospital. It is wrong to suggest that the SHO recorded the statements at the PS. Rather the SHO recorded the statement at the Balaji hospital i.e. the statement of Vimal Lochab only was recorded at the Balaji hospital. My statement was recorded at 6/7 AM on 13.01.2013 at the police station. It is wrong to suggest that I had not accompanied the SHO and it is wrong to suggest that I have testified falsely."
FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 9 of 83
10. PW-7 Ct. Rajesh, No. 3229, West, PS Nangloi. The Witness Ct. Rajesh deposed as under:
"It was 13.01.2013 and I was on night patrolling duty from 01.00 AM to 05.00 AM The SHO informed me that there was a case of murder and shot had been fired near Kanishka Garden and the SHO handed over to me the Dak in sealed covers to be handed over to the senior officers. I then went with the Dak to the resident of Ilaqa Magistrate and to the resident of the Joint CP and to the residence of all the three DCPs and to the resident of ACP with the Dak and I then returned to the police station and informed about the same to the SHO."
No Cross Examination by the learned counsel for the accused despite being given the opportunity.
11. PW-8 SI Sunil Kumar, Police Line, Rohtak, Haryana. The witness deposed as under:
"On 12.06.2013 I was posted as duty officer at PS Sampla and telephonic information was received at the PS that at Ismyala Village there had been a firing and on receipt of this information I reached at the spot. I recorded the statement of Jagbir, the complainant, the brother of the deceased and made my endorsement thereon and sent the rukka to the police station for registration of the FIR No. 198 dated 12.06.2013 under Section 302/397/34 IPC and Section 25 of the Arms Act, 1959. During the course of investigation, on 20 June, 2013, I arrested the accused Pradeep Mittal @ Chhotu, Kuldeep @ Lambu and Surender @ Kala in this case i.e. in FIR No. 198/13 PS Sampla.
FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 10 of 83 All the said three accused made their disclosure statements and pursuant to their disclosure statements, the said three accused got recovered a motorcycle of the make Bajaj Pulsar bearing No. DL9SAE 4874, which was then deposited into the police station. The accused Pradeep Mittal also made a disclosure statement in relation to a murder behind Jain Sweets at Nangloi Delhi, which had been recorded by me on which the accused and witnesses signed. The photocopy of the disclosure statement made by the accused Anuj @ Pradeep @ Mittal @ Chhotu recorded by me in my handwriting bearing my signatures as visible at point A on Mark PW-8/A. The photocopy of the seizure memo in relation to the motorcycle bears my signatures as visible at point A on Mark PW-8/B. I have seen disclosure statement of accused Anuj @ Pradeep recorded by me in case FIR no. 198/13 PS Sampla, Rohtak, Haryana and seizure memo of motorcycle seized by me, from the judicial file which is already Ex. PW14/A (colly). Seizure memo of motorcycle bears my signature at point X2. HC Subhash signed the same at point B and HC Paramjeet signed the same at point C. Disclosure statement of accused bears my signature at point X2. HC Subhash signed the same at point B and HC Paramjeet signed the same at point C. Accused Anuj @ Pradeep @ Mittal @ Chotu @ Sonu is present in the court today (correctly identified by the witness)."
12. PW-9 HC Sudesh Kumar No. 478/West PS Mundka. The witness HC Sudesh Kumar deposed as under:
FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 11 of 83 "On 07.06.2013 I was posted at PS Nangloi and along-with the Investigating Officer Inspector Subhash Chand I was present during the investigation of FIR No. 18/13 PS Nangloi. On that day the Investigating Officer had taken out the accused Puran @ Sumit, who was in the lock-up of PS Nangloi and had interrogated him and arrested him and recorded his disclosure statement and pursuant thereto the said Puran @Sumit had also pointed out to the place of occurrence and the pointing out memo had been prepared at the spot. The said accused Puran @ Sumit was produced before the Court and remanded to five days police custody. My statement was thereafter, recorded on our return by the IO at the police station. On 25.07.2013 I had again joined the investigation of this case and I appeared in the Tis Hazari Courts and the accused Pradeep Mittal had been produced by the Haryana Police before the learned Court of Shri Harvinder Singh, MM. The Investigation Officer took the permission of the Court and interrogated accused Pradeep Mittal and recorded his disclosure statement and produced the accused in a muffled face for conducting of TIP proceedings but the accused refused to participate in the TIP proceedings and two days police custody remand of the accused Pradeep Mittal was taken. The medical examination of the accused Pradeep Mittal was conducted and thereafter, he was locked up in the lock up at the police station and the Investigating Officer recorded my statement at the police station. On 26.07.2013 along-with HC Bhavnesh, I joined the investigation of the case with the IO. On that day the accused Pradeep Mittal was taken FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 12 of 83 out from the lock up at the police station and interrogated by the Investigating Officer and the accused made a disclosure statement in relation to the weapon of offence, which was recorded. Thereafter, HC Bhavnesh and I accompanied the Investigating Officer to the house of the accused Pradeep Mittal, present today in Court, whom I recognize (The witness has pointed out the accused Pradeep Mittal present today in the Court). The accused from a room on the 2 floor of his house, from a box of the pillows within the bed, took out a pistol and on checking the magzine of the same, the Investigating Officer found two live cartridges, which cartridges were taken out and the magazine closed and a sketch of the pistol was made on a blank white sheet by the IO and same was thereafter, sealed in a pullanda and the same was sealed with the seal of 'SC' and seized vide a seizure memo. The accused also pointed out to the place of occurrence and the pointing out memo was prepared.
On return to the police station, the case property was deposited in the malkhana and my statement was recorded. The arrest memo of the accused Puran @ Sumit bears my signatures at point A on Ex.PW-9/A. The arrest memo of the accused Pradeep Mittal bears my signatures at point A on Ex.PW-9/B. The personal search of accused Puran @ Sumit was conducted and same bears my signatures at point A on Ex.PW-9/C. Vol. The personal search of the accused Pradeep Mittal had not been conducted, as he had been produced in judicial custody in Court. The disclosure statement of accused Puran @ Sumit bears my signatures at point Ex.PW-9/D. The disclosure FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 13 of 83 statement of the accused Pradeep Mittal dated 25.07.2013 bears my signatures at point A on Ex.PW-9/E. The disclosure statement of the accused Pradeep Mittal dated 26.07.2013 bears my signatures at point A on Ex.PW-9/F. The pointing out memo prepared at the pointing out of accused Puran Sumit bears my signatures at point A on Ex. PW-9/G. The pointing out memo of the place of occurrence at the pointing out of accused Pradeep Mittal bears my signatures at point A on Ex. PW-9/H. The seizure memo in relation to the seizure of the pistol and two live cartridges bears my signatures thereon at point A on Ex.Pw-9/1. The sketch of the pistol bears my signatures at point A on Ex.PW-9/K. The site plan of the spot from where the pistol was recovered was prepared by the IO and the same bears my signatures at point A on Ex.PW-9/L."
The witness HC Sudesh Kumar further deposed as under:
"I identify Ex. P-1 as being the countrymade pistol recovered from the accused Pradeep Mittal present today in Court. (Ex. P- 1 is directed to be resealed with the Court seal). At this stage another sealed envelope sealed with the Court seal has been produced by Constable Vikram which is directed to be unsealed. From within which has been produced another small envelope sealed with the Court seal bearing on it on the Ex. P-2 Colly exhibited on 25.09.2014 which is directed to be unsealed. From within which have been produced one live cartridge and one fired cartridge). I identify the two cartridges produced as being the two cartridges recovered from within the countrymade pistol EX. P1. At the time of recovery both the cartridges were live.
FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 14 of 83 The said cartridges have already been exhibited as Ex. P-2 Colly and are directed to be put back into the envelope in a sealed condition) (At this stage another cloth bearing on it No. 18/2013 and seals, which had been previously exhibited as Ex. P-3) I identify Ex. P-3 as being the cloth in which the countrymade pistol and the cartridges have been sealed. (The cloth is directed to be put back with the case property and is directed to be put in a sealed condition sealed with the Court seal)."
13. PW 10: Constable Shiv Kumar No. 3128 (West) PS Nangloi Delhi. The witness Constable Shiv Kumar deposed as under:
"It was 13.01.2013. I was posted at PS Nangloi. A call was received by ASI Rajbir Singh that at A-1, A-2 Amar Colony somebody had been shot at ककसल कग गगलल मबर दल गई then I and ASI Rajbir Singh went to the spot. Before we reached the spot the person who had been fired at had been taken away by the ambulance personnel to the Balaji Hospital. There was blood stains on the floor of the room of A-1/A-2 Amar Colony Delhi and there was a live cartridge, and a fired cartridge in that room. Then the SHO came, then the portion of the floor which was blood stained and another portion of the floor were both broken and separately sealed with the seal of DS. There was blood stains also on a chair in that room and the seat cover with beads seat cover with blood stains was seized and it was also sealed with the seal of DS. The live cartridges and the fired cartridges sealed and seized separately. This is all that took place in my presence. The seizure memo of the seizure of the wooden beads FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 15 of 83 seat bears my signatures at point A on Ex. PW 10/A. The sketch of the live cartridge and the fired cartridge prepared in my presence bears my signatures at point A on Ex. PW 10/B. My signatures at there at point A on the seizure memo of the blood guaze Ex. PW 10/C taken from the seat of the deceased. The seizure memo in relation to the seizure of the blood stained potion at of the floor and the other potion of floor bears my signatures at point A on Ex. PW 10/D. Inspector Dharender Sharma recorded the statement one witness namely Vimal Lochav. All the pulandas were sealed with the seal of DS. I was left at the spot in order to safeguard it and ASI Rajbir, Inspector Dharender Sharma alongwith other staff proceeded to the Balaji Action Hospital. When I was safeguarding the spot, crime team had arrived. Incharge of the said crime team was SI Arminder. Crime team took photographs of the spot and lifted change finger prints but no finger prints could be found. My statement was recorded by Inspector Dharender Sharma after having gone to PS on 12.01.2013. I can identify the case property if shown to me." At this stage MHC (M) produced one sealed envelope sealed with the seal of FSL. It is is opened up (Parcel No.1) and one wooden bead sheet is taken out having blood stain is shown to the witness to which the witness identifies as having been seized by the IO vide seizure memo Ex PW10/A. It is Ex P-4. At this stage MHC (M) produced another sealed envelope sealed with the seal of FSI. It is opened up (Parcel No.2) and one plastic dibi is taken out. Lid of said plastic dibi is unscrewed and two pieces of stones having blood stain is shown FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 16 of 83 to which the witness identifies as having been seized by the IO vide seizure memo Ex PW10/D. It is now collectively Ex P-5. At this stage MHC (M) produced another sealed envelope sealed with the seal of FSL. It is opened up (Parcel No.4) and one plastic dibbi is taken out. Lid of said plastic dibbi is unscrewed and two pieces of stones as earth control is shown to the witness to which the witness identifies as having been seized by the 10 vide seizure memo Ex PW10/D. It is now collectively Ex P-6. At this stage MHC (M) produced another sealed envelope sealed with the seal of FSL. It is opened up (Parcel No.5) and one blood gauge cloth piece contained in an envelope having FSL particulars as Ex No.4, DNA No.969/13 is shown to the witness to which the witness identifies as having been seized by the 10 vide seizure memo already Ex PW10/C. It is now Ex P-7. At that stage MHC (M) produced another sealed envelope sealed with the seal of FSL. On the envelope it is written "NBB Crime Parcel No.2 CFSL-2013/F-1364" It is opened up (Parcel No. 6) and one plastic dibbi is taken out. It is unscrewed and one live cartridge on the bottom of which it is written KF 7.65 and one cartridge shell on the bottom of which it is written KF 7.65 are taken out and shown to the witness to which the witness identifies as having been seized by the 10 from the spot vide seizure memo already Ex PW17/C. It said two articles (cartridge and cartridge shell) are now Ex P-8 and Ex P-9.
At this stage, Ld. Addl. PP requested to cross-examine the witness as he was not revealing the complete facts. The said FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 17 of 83 request was allowed. In the Cross Examination By Addl. PP for State, the witness deposed as under:
"It is correct that in pursuance to DD No.40A dt 12.1.2013 I went to the spot ie A-1/A-2 Yadav Park, Nangloi, Delhi alongwith ASI Rajbir Singh. It is correct that on reaching at the spot we came to know that one Naresh Kumar who was running provisional store in the name of Ganesh Trading Company had been shot at around 7.45 PM by two boys on account of not giving the money as demanded by them. It is correct that when SHO Dharender Sharma arrived back at the spot from the Balaji Action hospital he has relieved the crime team. It is correct that in my presence Vimal Lochav got prepared the rough site plan. It is correct that I could not deposed about the said facts earlier as due to lapse of time I had forgotten the same and now after being suggested I am able to recall."
In the cross examination By Ld Counsel for accused, the witness deposed as under:
I firstly got posted at PS Nangloi in Sept 2011. I am conscious of my official position and the consequence of giving false testimony before the Court. The date of incident is 12.01.2013. Today I am deposing about the correct date of incident and earlier I have mentioned 13.01.2013 which is wrong. It is wrong to suggest on the last date I falsely mentioned the date of incident as 13.01.2013. (Vol I did not remember the date on the last date i e 19.07.2014.) I was on emergency duty on 12.01.2013 and I was present in the P.S when I was taken by FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 18 of 83 ASI Rajbir. The call was received at about 8.15 PM. ASI Rajbir had received the call. It took 10 minutes to reach at the spot at about 8.30 PM. We reached at the spot on a private motor cycle of ASI Rajbir."
PW-10 in his cross examination by the Ld. Counsel for accused Pradeep Mittal, the witness deosed as under:
"I along with IO ASI Rajbir left the police station at 08:05 PM on motorcycle owned by IO and reached the spot within 10 minutes. We had gone to the spot towards Bahardurgarh side from the police station. It was situated little away from the main road towards left. It was hardly 20 paces away from the main road. There were no public persons present on the spot. There were shops and houses near the spot. The spot was situated on the left sides of the lane we take left turn from the main road. I do not know about the nature of the building situated near the spot whether it was a residential house or a shop. There was a shop of furniture on the right side of the spot. I cannot tell the name of that shop. I do not remember whether there were public persons inside that shop or not. The workers working in the Ganesh Trading company informed the IO about the removal of the injured to the hospital. I do not remember the name of that worker who informed the IO about this fact. I cannot even tell the description or appearance of that person. Ganesh Trading company was located in a building but I cannot tell its size. The gate of godown was built of iron. But I cannot tell its size. There were only two rooms in that building whereof one was office in front and the remaining portion of this building was FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 19 of 83 used as godown. There were jute bags lying inside the godown but I cannot tell as to what was contained therein. I cannot even tell the round about number of those jute bags. After about 15- 20 minutes of our reaching the spot, IO left me on the spot for guarding the scene of crime. I was only guarding the office of this godown and was not allowing anybody to go inside that godown. After I started guarding the spot a crowd of people collected there. SHO Dhirender Nath arrived on the spot after about 10 minutes of leaving of the IO from the place. He was accompanied by his driver and operator. There was no body else except these two persons with the SHO. Only operator came inside the office of the Godown and driver did not come there. On 12.01.2013, I stayed at the spot for about one and half or two hours. IO ASI Rajbir reached the spot and he stayed at the spot for about 15 minutes on the spot. He left the spot leaving me there for guarding the spot. He came to the spot after about one hour there. Crime team stayed at the spot for about a hour and 30 minutes. After about half of an hour of the arrival of ASI Rajbir Singh, Crime team left the spot. Again said, inspector Dharender Sharma came also with the IO. Inspector Dharender Sharma remained at the spot for half an hour. During this time he recorded the statements of the members of crime team. I cannot say if after the recording of the statement of witnesses, all the member of police exam left the spot or some of them stayed thereon. I left the spot at about 10.30 PM. Crime team lifted the blood stained earth from the spot with the help of Chaini and hammer, but I do not remember who arranged the FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 20 of 83 same. I do not remember as to how much space was blood stained from where blood stained earth was taken by IO. Only one chair was lying inside the room, however, I cannot say whether it was made of wood, iron or it was revolving. I cannot tell the direction in which the chair was lying. Almost entire chair was having blood. The entire wooden beads seat was recovered by the IO from there. It was of the size 15×15 inches. I cannot tell the width of the wooden beads seat. Entire wooden beads seat was blood stained. Except on the chair and the places from there blood stained earth was lifted, no blood stained was lying on any other place in the room. There was one table and iron almirah lying inside the room. Crime team only inspected the room and has not inspected the other place. I cannot tell whether the public persons were present outside the room or not. It is wrong to suggest that I had not visited the place of occurrence. It is wrong to suggest that no proceeding was conducted in my presence on the spot. It is wrong to suggest that nothing was recovered, lifted or seized in my presence from the spot. It is wrong to suggest that I am deposing falsely at the instance of the IO."
14. PW 11: HC Bhavnesh Kumar No. 121 (West) Special Staff (West), Delhi. The witness deposed as under:
"On 06.06.2013 SI Balbir Singh HC Sudesh and I had arrested Puran Sumit in FIR No. 164/2013 PS Nangloi. He made a disclosure statement in FIR No. 18/2013 PS Nangloi. On 26.07.2013 the accused present before the Court i.e. Pradeep Mittal present today in Court whom I identify was taken on FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 21 of 83 Police Custody remaind in FIR 18/2013 PS Nangloi. The Investigating Officer Inspector Subhash Chand interrogated the accused in my presence and he made the disclosure statement in the instant case on which I signed at point B on Ex. PW 9/F. Thereafter, the accused led us i.e. the Investigating Officer Inspector Subhash Chand, myself and HC Sudesh to his residence at C-62. Extention II. Nangloi to the second floor and got recovered a pistol from the back of his bed. The said pistol was emptied and it was found to contain two live cartridges in the magazine. A sketch of the pistol was prepared. The pistol and the two live cartridges were seized vide a seizure memo and were put into a pullanda. The pointing out memo of the spot of occurrence was also prepared at the pointing out of the accused. I have signed the same the said pointing out memo at point B on Ex. PW 9/H on 26.07.2013. Ex. PW 9/G which bears my signatures at point B is the pointing out memo prepared at the pointing out of the co-accused Puran. Thereafter, we returned in the police station and the case property deposited in the malkhana. The seizure memo of the pistol and two live catridges bears my signatures at point B on Ex. PW 9/J. The sketch of the pistol and live cartridges bears my signatures at point B on Ex. PW 9/K. The site plan of the spot of recovery bears my signatures at point B on Ex. PW 9/L." (At this stage Constable Kulbir Singh No. 2972 (West) PS Nangloi was present and had produced a sealed envelope bearing on it seals of NRB. Bearing on it CFSL No. as CFSL -2013/F-1364 FIR No. 18/2013 PS Nangloi with crime NRB parcel No. 1 FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 22 of 83 mentioned on the same which envelope is directed to be unsealed from which has been produced a pistol which the witness identifies two recovered from the accused which is thus directed to be exhibited as Ex. P-1 within the envelope which has been unsealed has been produced a smaller envelope on which it is mentioned 7.6 mm test fired bullet from within which has been containing within it one live cartridge and one fired cartridges the same is exhibited as Ex. P-2 collectively and directed to be put back to the envelope. From within the envelope has also been produced a cloth bearing on it FIR No. 18/2013 PS Nangloi with the name of SHO PS Nangloi Inspector Subhash Chand mentioned with four seals of SC on the same which remnant cloth is identified by the witness as been the cloth in which the weapon was put with the cartridges is exhibited as Ex. P-3.
In Cross Examination By Ld. counsel for accused Pradeep Mittal, the witness deposed as under:
"I joined the investigation of the present case FIR on 26/07/2013 when accused was already on PC. It is wrong to suggest that I did not join the investigation of the present case earlier. Inspector Subhash Chand and HC Sudesh were the other officials with whom I joined the investigation on 26/07/2013. I was present at PS Nangloi on 26/07/2013, when I joined the investigation. I joined investigation in the room of the SHO as the accused had already been brought from the lockup to the SHO room. We all three persons together took him out from lockup and made him sit in the SHO room. We made him sit in FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 23 of 83 front of the seat of the SHO. I do not remember where I was standing or sitting during the Interrogation done by the SHO. I do not recollect the period/time taken by the SHO to interrogate the accused. The Interrogation was done by the SHO at 10.00 AM and it continued for 1½ hours. All of us made enquiries from the accused. I do not recollect whether any other person entered the room of the SHO during the time when interrogations were being done. I do not recollect whether during the said time any emergency call was received by me or the SHO. I do not recollect whether SHO concerned asked any public person to join the investigation. On 26/07/2013 at about 12.00-12.15 PM, the accused took us to C-62, Extension II, Nangloi, Delhi at his residence i.e. on the same We went there in government vehicle. SHO made entry in roznamcha Register before leaving the PS. However, I do not recollect the DD number now. We were five staff members excluding the accused. I do not remember the name of the driver and when we reached at the address of the accused, his mother and sister-in- law were present there. No male member was present. No person from the nearby houses was asked to join the investigation. I do not remember who knocked the gate of house of accused firstly on reaching there. The white wash of the house of accused from outside was darkish pink in colour at that time. The house was situated in the gali of 'Vimal Band' and as we have entered from the side of Rohtak Road, the house of the accused fell on our left hand side. It was 2 and a 1/2 storeyed built up house. We all have entered the house of the accused FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 24 of 83 alongwith the accused except the operator and the driver. As we entered the house and after crossing the gallery, the staircase was going upwards towards the right hand side and we took the same to the first floor. I cannot say what was the total built up area of the house. I do not recollect what was the colour of the whitewash inside the house. The front portion of the house was consisting of one main gate and one shop having iron shutter. I do not recollect whether there is window in front of the house. Perhaps, there is no window in the front portion of the house. The recovery was effected from the room at the second floor of the house where bed was lying and from the head side portion of the bed, the recovery was effected. It is wrong to suggest that I stated in my examination-in-chief on 25/09/2014 that the recovery was effected from the backside of the bed. Now, I explain that the recovery of the pistol was effected from the backside or headside box of the bed i.e the side of bed which is a bit elevated and which is used generally for resting of head. The sketch of the pistol was prepared in the said room where the recovery was effected by the IO. The seizure memo and pullanda were also prepared in the room itself by siting on the bed. I do not remember whether myself, HC Sudesh and the accused were ring or standing in the room. SHO took approximately 2 hours to complete all the proceedings. IO was carrying the IO kit containing pen, paper and pencil, which were used for the preparation of the site plan. Thereafter, we went to the place of occurrence. I do not recollect the other things lying in the room of house of accused. I do not remember the white FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 25 of 83 wash colour of the room from where the recovery was effected. It is correct that in the site plan of the spot from where the pistol was recovered, which is already ExPW9/L, it is nowhere mentioned that from where we had entered in the street and where the gypsy was parked. It is correct that in the said site plan, no details or numbers of the adjacent houses are mentioned. It is correct that no shutter or main gate are earmarked in the site plan. At about 2.15 PM, we reached at the place of occurrence. SHO concerned enquired from Vimal Lochab after accused had pointed out the place of occurrence and after he having been prepared the pointing out memo. The accused had not pointed out where he was standing. Several public persons had also gathered at the place of occurrence when the accused took us there and pointed out the same. Vimai Lochab was present in the shop ie. Ganesh Trading Company. I do not collect where any other person was present at the said shop at that time or not. The said shop was open at that time. I do not recollect whether the other shops adjacent in the said shop were in the open condition or not. The SHO enquired Vimal Lochab in the shop and recorded his statement u/s 161 Cr.P.C. there. I do not remember how many persons of the team were present with SHO at the time of Enquiry in the shop. I was standing at the gate of the shop. I do not Remember whether the driver and the operator were either in the gypsy or outside the gypsy. There are shops adjacent to the Ganesh Trading Company. I only remember that there was the counter in the shop."
FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 26 of 83 In the further cross examination by ld. counsel for the accused Pradeep, the witness deposed as under:
"I cannot define particularly the goods or things which were lying in the shop. I cannot tell about the other shops surrounded by the Ganesh Trading Company. I do not remember whether the SHO asked from any other neighbour or passerby to join the investigation. The accused Pradeep Mittal was in my custody. HC Sudesh was keeping the over all vigil. I was standing at the gate of the shop and HC Sudesh was standing with me at the gate of the shop. Vimal Lochab whom I know was standing inside the shop. While deposing in the examination in chief, I had not deposed regarding the Driver and the Operator. Now, I am counting the Driver and Operator along and that is why the number has risen to Five. Driver and Operator never participated in the investigation and that is why I said that three of us went for the investigation. It is wrong to suggest that I did not join the investigation and that is why I am not telling the said fact that whether the SHO asked any other public person nor not to join the investigation. SHO remained at the place of occurrence for about 30 to 45 minutes. I do not remember whether SHO made enquiries from any other public person. It is wrong to suggest that I did not join the investigation and that is why I am not telling the said fact. There was one godown in front of the said shop. I do not have any knowledge about the godown i.e. what kinds of goods are stored. There was wall of the godown in front of the said shop. It is wrong to suggest that no recovery was effected from the accused or that I did not join the investigation FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 27 of 83 or that I never visited the house of the accused or the place of occurrence. It is further wrong to suggest that no disclosure statement of the accused was made in my presence or that accused has not pointed out any place of occurrence in my presence. It is wrong to suggest that no recovery was effected from the house C-62, Extension-II, Nangloi. It is wrong to suggest that accused has no concern with the present case as the accused was arrested on the disclosure statement of co- accused namely Puran who has already been discharged. It is wrong to suggest that Pistol was recovered from the spot and the accused persons have no concern with the alleged weapon and crime. It is wrong to suggest that all paper works were done in the PS. It is wrong to suggest that I am deposing falsely."
15. PW12: SI Amrender Kumar, PIS NO.16960131, Special Branch, North-West District, Delhi deposed that:
"It was 12.01.2013 and I was posted as Crime Team Incharge of the West District. I received a call from the PCR Wireless at 8.10 PM that I should reach at A1/A2, Yadav Nagar, Nangloi. I, thus, went to the spot along with my Crime Team ie, along with Ct. Jagat, the Photographer and the Driver. At the spot. I met Ct. Shiv Kumar. I learnt that there had been firing of shots at the spot i.e. the shop at A1/A2. Yadav Nagar, Nangloi and there in the shop, there was a chair on which there was blood. There were blood stains on the floor also. There was an empty cartridge in the shop. Outside the shop, there was a live cartridge. I inspected the spot and got the same photographed. This is all I had done. I prepared the Crime Team Report. My FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 28 of 83 report in relation thereto which is in my handwriting bears my signatures thereon at point A Ex.PW12/A." On a perusal of the statement u/s 161 Cr.P.C.
The witness was cross-examined by the Ld. Chief Prosecutor for the State as he was not revealing the complete facts, the witness deposed as under:
"It is correct that my statement Ex. PW12/B was recorded by the investigating officer on 13.01.2013. It is correct that the spot was at A1/A2. Yadav Park. Nangloi and not at A1/A2, Yadav Nagar, Nangloi. It is correct that the name of Photographer who accompanied me that day was Ct. Satpal and not Ct. Jagat. Inspector Dhirender Sharma, the Investigating Officer, reached the spot after I reached and it is correct that I had given instructions to him also for further inspection of the spot. It is correct that Ct. Satpal had taken photographs of the spot."
Court Question was asked to the witness that:
"You have stated earlier that "It was 12.01.2013 and I was posted as Crime Team Incharge of the West District. I received a call from the PCR Wireless at 8.10 PM that I should reach at A1/A2. Yadav Nagar. Nangloi". As per your statement u/s 161 Cr.P.C. i.e. Ex.PW12/B, you reached the spot in relation to an incident of firing of shots. Kindly explain.' The witness replied ,"I had information only to the effect that I should reach A1/A2. Yadav Park, Nangloi."
In the cross examination by Ld. counsel for the accused, the witness deposed as under:
FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 29 of 83 "I, at once, left the PS Janak Puri on receipt of the call at 8.10 PM. I reached the spot within half an hour. I had gone to the spot in the Crime Team Bus. I had made an entry in the Rojnamcha of the Crime Team before leaving the Crime Team Office at PS Janak Puri. I reached the spot at about 8.30 PM. I saw only what was related to the Crime Team at the spot. I cannot give the direction towards which the gate of the shop opens. I was at the spot till beyond 11.00 PM as the case was being investigated by very senior officers. Inspector Dhirender reached the spot around 10.00/10.15 PM. I saw only Inspector Dhirender, his driver may have been with the vehicle. I did not take any finger prints from the spot as it was not likely that there were any finger prints on the surface at the spot. (it was a rough surface- in reply to a specific Court query) I gave my statement to the IO at the spot around 11.00/11.30 PM." The witness denied the suggestion that he did not take the finger prints from the spot as he did not go to the spot.
16. PW13: ASI Rajbir Singh, PS Nangloi, Delhi. The witness deposed as under:
"On 12.01.2013. I was posted on Emergency Duty from 8.00 PM to 8.00 AM at PS Nangloi. I received a call from the police station at 8.02 PM that there was firing going on behind Kamruddin Nagar, Corporation Bank. Thus, along with Ct. Shiv Kumar, I reached the spot at A1/2A, a shop in which there was trading of rice. I saw blood stains within the shop. I also saw a fired empty cartridge within the shop and I saw a live cartridge outside the shop. This information had also been given to the FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 30 of 83 SHO and the SHO who was on patrolling also reached the spot. It was learnt at the spot that the injured had been taken to Balaji Action Hospital, Paschim Vihar. The Crime Team who had been informed also reached the spot. Ct. Shiv Kumar was left at the spot for protection of the same. Along with the SHO, I reached the hospital. At the hospital, the SHO himself received the MLC of the injured who was declared to be dead. The SHO received the dead body. I was sent with the dead body to Sanjay Gandhi Memorial Hospital for preservation of the corpse. After preservation of the body. the next day, along with the SHO. I went to the hospital for getting the postmortem conducted. All documents in relation to the postmortem were prepared and statements of identification of the corpse were recorded. The SHO had handed over the blood gauze and exhibits which were seized as seizure memos were prepared by the SHO on which I signed. After the postmortem was conducted, the dead body of the deceased was handed over to his relatives. The seizure memo in relation to the clothes of the deceased and blood gauze bears my signatures at point A on Ex.PW13/A. The seizure memo in relation to the seizure of the bullet seized after postmortem bears my signatures at point A on Ex.PW 13/B. The statement of Mahesh Kumar Ex.PW2/A bears my signatures at point B. The statement of Sh. Rajender Sharma Ex.PW3/A bears my signatures at point B. The carbon copy of the receipt of handing over of the dead body with original signatures of the recipient bears my signatures at point A on Ex. PW 13/C."
FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 31 of 83 In the cross examination by Ld. counsel for the accused, the witness stated that:
"The call was received at No. 100 The call had been received from the eye witness i.e. the employee of the deceased. His name was perhaps Vimal Lochab. The police station was at a distance of 1 or 1 and a 1/2 kilometers approximately from the spot. The dimensions of that shop would approximately be of 8/10 ft. The shop in question is on the back side gali of Rohtak Road. The door of that shop would be towards the South. There are shops near this shop. The blood stains were near the chair in the shop on the floor. I had seen the fired empty cartridge lying on the floor of the shop. I informed the SHO within 5 minutes of reaching the spot. I do not recall whether I informed the SHO on wireless or through my mobile phone. The SHO reached the spot within 2/3 minutes of my reaching the same. I do not recall the staff who were accompanied the SHO. At the spot enquiries were made both by me and by the SHO but there was no eye witness found at the spot. I do not recall whether a crowed had collected were I and the SHO were at the spot. Vol. It was night time. I reached the spot within 5/7 minutes of the call received at 08/02 PM. I do not recall whether the shops in the area were open or closed at that time. The SHO had made inquiries at the spot first in relation to any eye witness and then sent a message on the wireless for calling the crime team to the spot. I do not recall from whom the SHO made inquiries. The crime team had reached the spot after I and SHO had left from the hospital. I do not recall who informed me that the deceased had been taken to FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 32 of 83 the hospital. I do not recall the time when I left for the hospital from the spot. Vol., however, I left the spot for the hospital within 15/20 minutes of the call. I cannot give the time when I reached the hospital. The SHO and I and other staff in the Govt. Vehicle had gone to the hospital from the spot. We went in the Govt. jeep of the SHO to the hospital. I do not recall the names of the other personnel of the staff who accompanied me and the SHO to the hospital. I do not recall the names of the person who was driving the vehicle. Before I reach the hospital the injured had already been declared dead. The SHO had received the body of the deceased and I had been sent for getting the body preserved. I do not recall the names of the person who were accompanied me to the Sanjay Gandhi Memorial Hospital the next day. The Visra was given in a plastic yellow box by the doctor to me. I do not recall the name of that doctor. The seizure memo were prepared at the Sanjay Gandhi Memorial Hospital. I do not recall whether the SHO attempted to join any members of the public at the time of preparation of the seizure memo at the hospital. I signed the seizure memo at the hospital. The dead body of the deceased was handed over to the relatives of the deceased after the postmortem was conducted, but I do not recall the time of the handing over. I do not recall when I signed on the statement Ex. PW 2/A and Ex. PW 3/A of Mahesh Kumar and Rajender Sharma respectively. Vol., I now recall that I had signed on the statements of Mahesh Kumar and Rajender Sharma before the postmortem was conducted at the time of identification of the body. I do not recall who else was present FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 33 of 83 at the time. At the time of recording of statements of Mahesh Kumar and Rajesh Sharma. I do not recall where my statement recorded by SHO. His Both the banks i.e. the Corporation Bank and Dena Bank are there at Kamruddin Nagar. The call that had been received was in relation to firing going on behind Kamruddin Nagar Dena Bank. As both the Corporation Bank and Dena bank are there at Kamruddin Nagar due to confusion I would have stated in my statement on 07.11.2014 that the firing was going on behind Kamruddin Nagar Corporation Bank. It is incorrect to suggest that I received no call and it is incorrect to suggest that I did not go to the spot. It is incorrect to suggest that I have not been able to recall whether members of the public had been joined into the investigation as I had not gone to the spot rather I had gone to the spot. It is incorrect to suggest that I have stated that I do not recall when my statement was recorded as I had not gone to the spot. It is incorrect to suggest that I have not signed any seizure memos and It is incorrect to suggest that my signatures were taken by the SHO on blank papers. Rather, the seizure memos were prepared in my presence. It is incorrect to suggest that all proceeding were conducted by the SHO at PS and thus no members of the public were joined."
17. PW 14: Shri Happy Arora S/o Shri Shyam Sunder, Criminal Ahlmad Court of Shri Naresh Kumar Singhal, Additional Sessions Judge, Rohtak. The witness deposed as under after supplying the copy of summoned record by him:
"Photocopies of documents as per the judicial record in relation to FIR No. 198/13 PS Sampla bearing my signatures thereon at FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 34 of 83 point X on each of them are collectively taken on record as PW- 14/A (Colly.) In the cross examination by the leaned counsel for the accused, the witness deposed as under:
"It is correct that I have no personal knowledge of case FIR No. 198/13 PS Sampla and it is correct that I have only brought the original summoned record."
18. PW15: Ct. Satpal No.6859/DAP, 3rd Battalion, Delhi. The witness deposed as under:
"On 12.01.2013, I was posted in the Mobile Crime Team (West). On receipt of a call from the Control Room, along with the Incharge. Crime Team, SI Amrender Kumar, I reached the spot at A-1/A- 2. Yadav Park, Rohtak Road, Nangloi, at 8.45 PM. On the directions of the Crime Team Incharge.I took 19 photographs of the spot from different angles. There were police personnel from the police station Nangloi at the spot. I have brought the negatives of the photographs that I had taken from the Crime Team, West District, PS Janak Puri. The said 19 negatives are taken on record as Ex.PW15/1 (1-19). There are 11 developed photographs of these negatives on the records of SC NO.17/13 which are placed at pages 209 to 229 of the judicial record and collectively exhibited as Ex. PW15/2 (1-11). All the 19 negatives Ex.PW15/1 (1-19) are complete and none of them are washed out.
In the cross examination by ld. Counsel for the accused, the witness deposed as under:
FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 35 of 83 "HC Udham, proficient Finger Print Expert, Crime Team had accompanied the Incharge Crime Team and me to the spot. I did not see members of the public at the spot. I do not know whether there was any member of public at the spot. It is incorrect to suggest that I did not go to the spot."
19. PW16: HC Krishan Kumar No.2342/West, PS Mianwali Nagar, Delhi. The witness deposed as under:
"On 12.01.2013, I was posted as MHC(M) PS Nangloi. On that day, Inspector Dhirender Sharma, SHO PS Nangloi had deposited six pullandas and a seal of 'DS' and the same were deposited vide serial entry no.4660 in relation to FIR NO.18/13 PS Nangloi. The entry in relation thereto made by me. On 26.07.2013, Inspector Subhash Chand, SHO PS Nangloi had deposited two live cartridges and a pistol qua which I recorded serial entary No. 4853/13 in relation to FIR NO.18/13 PS Nangloi, in register 19. On 13.09.2013. I sent six sealed pulandas vide RC No.153/21/13 through Ct. Jagdish Meena No.3317/West to FSL., Rohini. Ct. Jagdish Meena returned the receipt of the Road Certificate along with the receipt issued by the FSL. and I have brought the original receipt and original RC. The original RC NO.153/21/13 is in my handwriting, copy of which is Ex. PW16/A (OSR). I have brought the original receipt issued by the FSL, copy of which is Ex.PW16/B (OSR). RC No.155/21/13 has been prepared by me dated 16.09.2013 and the details of articles mentioned therein are of articles sent through Ct. Rajesh to the CBI, CFSL, Lodhi Road. The photocopy of the said Road Certificate is Ex.PW16/C (OSR).
FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 36 of 83 Ct. Rajesh had returned the receipt to me in relation to the articles deposited with the CBI, CFSL, Lodhi Road, photocopy of which is Ex.PW16/D (OSR). On 13.01.2013, Inspector Dhirender Sharma had deposited the case property as detailed vide serial entry no.4661 in the malkhana. The said entry is in my handwriting. The photocopies of serial entries no.4660, 4661 and 4853 are Ex.PW16/E, F & G respectively (Original register no.19 brought by the witness is seen and returned). All these entries are in my handwriting.) There were four articles deposited on 12.01.2013 and two articles deposited on 13.01.2013 and thus, I stated that six pullandas and a seal of 'DS' had been deposited in the malkhana and six pullandas had been sent to FSL., Rohini and two pullandas had been sent to CBI, CFSL, Lodhi Road. Delhi."
In the cross examination by ld. counsel for the accused Pradeep. The witness deposed as under:
"I do not remember whether someone is with the SHO at the time of depositing the pulandhas. I cannot tell the time when the pulandhas were deposited. It is correct that the entries in the register do not have the signatures of the IO/SHO. I do not have any knowledge about the signatures dated 07.04.2014 on point "A" on Ex.PW16/F. It is correct that the entries at serial No. 4853 is not made by me. Vol. The said Entries were made by the Munshi (Malkhana). It is correct that the signature of SHO is not appended on any of the entries in the register. It is also correct that even the signature of mine is not on the entries of receiving the FSL report. Vol. However, the entries no. 4660 and 4661 is FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 37 of 83 in my handwriting. It is wrong to suggest that all the entires in the register are false and fabricated and afterthought."
20. PW-17 Inspector Dharender Nath SHO Nabi Karim, Delhi The witness Inspector Dharender Nath deposed as under:
"On 12.01.13 I was posted as Inspector, SHO Nangloi. On that day I received a call regarding firing behind Dena Bank, Yadav Park, Nangloi. I rushed to the spot in Govt vehicle alongwith staff, where ASI Rajbir alongwith Constable Shiv Kumar were already present. Inquiries were made at the spot and I came to know that injured had already been shifted by the brothers namely Rajender and Satish to Balaji Hospital. Thereafter, I alongwith staff, i.e ASI Rajbir alongwith Constable Shiv Kumar reached at Balaji hospital. I collected the MLC of the injured. On the said MLC the Doctor had written" being shot by fire arm, patient / deceased expired". I met one employee Vimal Lohchab who claimed himself to the eye witness. I recorded his statement. Thereafter, I made my endorsement on the statement and wrote Tehrir Ex PW17/A, having my signature at point A and sent HC Lal Singh who was one of the members of the staff to the PS for registration of FIR. He got the case FIR registered and came back at the spot with the copy of FIR and ruqqa. He handed over me the copy of FIR and ruqqa. Vimal Lohchab was with me at the spot and I prepared the rough site plan at his instance, which is Ex PW17/B, having my signature at point A. Thereafter, I called the Crime team at the spot. First of all I collected the live cartridge lying near the FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 38 of 83 shutter of the shop. I collected one empty cartridge lying - inside the shop. I prepared the sketch of both the said cartridges by putting them on a white piece of paper and the said sketch is already Ex PW10/B, having my signature at point B. Thereafter, I converted the said cartridges into pulanda and sealed it with the seal of DS by first putting them into a plastic dibby. The said plastic dibby was seized vide seizure memo Ex PW17/C, having my signature at point A. On the bottom of each of said cartridges it was written "KP 7.65mm" and the length of both the said cartridges were 1.7 cm. Thereafter, I collected the blood gauze of the blood lying at the spot vide seizure memo already Ex PW10/C, having my signature at point B. The said blood gauze was put in an envelope and seal of DS was put on it. It was thereafter, seized vide the said seizure memo. Thereafter, I collected blood stained earth/ stone etc. in two separate plastic dibbies. Thereafter, both were sealed with the seal of DS and seized vide seizure memo already Ex PW10/D having my signatures at point B. I seized the wooden bedrest 16 x16 inches stained with blood and sealed the same with the seal of DS. It was seized vide seizure memo already Ex PW10/A, having my signature at point B. All the said seized pulandas were deposited in the Malkhana. In the first half of 13.01.2013 I conducted PM examination of the deceased at SGM hospital Mangol Puri. Before post mortem of deceased I recorded identification statement of Rajender and Mahesh. The Doctor who conducted the PM on the body of deceased Naresh handed over me to Pulanda again said ASI Rajbir Singh who in FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 39 of 83 turn handed over it to me, which I seized vide seizure memo already Ex PW13/A, having my signature at point B. The doctor concerned handed over one bullet having been taken out from the body of the deceased during post mortem. It was given to ASI Rajbir Singh who in turn handed over it to me which was sealed with the seal of SGM Hospital and it was seized vide seizure memo already Ex13/B, having my signature at point B. The dead body of deceased was handed over to the relatives of deceased after post mortem vidze handing over memo already Ex PW13/C, having my signature at point B. Thereafter, I recorded statement of the witnesses. I searched for the accused persons but could not find them. Thereafter, I was transferred and handed over the file to MHC(R). I can identify the case property if shown to me."
In further examination in chief. The witness Inspector Dharender Nath deposed as under:
At this stage, the wooden bed rest seized vide seizure memo Ex PW10/A is already Ex P-4. The live and empty cartridges seized vide seizure memo Ex PW17/C. The sketch of both them is Ex PW10/B, the said two articles are Ex P-8 and P-9 respectively. The blood gauze that had been taken from the wooden bedrest and seized vide seizure memo Ex PW10/C is Ix P-7. The blood stained earth and the earth control so taken in the respective plastic dibbi and seized vide seizure memo already Ex PW10/D are Ex P-5 and P-6 respectively. The Doctor concerned has handed over to ASI Rajbir one viscera sample box and one sealed envelope containing the blood FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 40 of 83 gauze alongwith the sample seal of SGM Mortuary seized vide seizure memo already Ex PW13/D. At this stage MHC(M) produces one sealed parcel, sealed with the seal of FSL, having case particulars and it is written on it as Parcel No.6. It is opened up and one blood gauze contained in an envelope duly sealed and having particulars FSL. NO. 2013/8-7161 Bio/DNA No/ 969/13 is taken out which was seized vide seizure memo already Ex PW13/A, as stated by the witness. It is given Ex P-
10. At this stage MHC(M) produces one sealed parcel, Sealed with the seal of FSL having case particulars. (It contained one 7.65 mm fired bullet mark BC/1) It is opened up and one top of the fred bullet is taken out which was seized vide seizure memo already Ex PW13/B as stated by the witness. The same is now Ex P-11. At this stage MHC (M) submits that Parcel No.5 which was seized vide seizure memo already Ex PW 13/A (viscera sample box containing the clothes of the deceased and examined as Ex 5a to 5f as mentioned in the Biology report No. 2013/B-7161 dt 1.1.2015) have not been received from the Ballistics Division. At this stage Ld. Addl PP sought the liberty to exhibit the said case property as and when received. Request was allowed.
In the cross examination by ld. Counsel for accused Pardeep. The witness deposed as under:
"I received a wireless call in the evening when I was on patrolling duty. It was about 7:00PM to 7.30 PM. I took 2 minutes to reach at the spot. At that time I was accompanied with one Driver and one operator but I cannot tell their names. I FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 41 of 83 do not remember with whom I inquired firstly after reaching the spot. At that time there were about 4-5 public persons gathered and 4 to 5 from police staff. We were only three people while in patrolling duty. The public person informed me about the injured being shifted to Balaji Action hospital. I did not note down the particular of that person. I cannot tell the actual time of when I had inquired about the incident from the public person. I alongwith Driver and operator went to the hospital.I met with One Rajinder Sharma, Satish and Mr Lochab, whose full name I do not remember. ASI Rajbir and ACP Raj Kumar Bhardwa were also present at the hospital. We called upon HC Lal Singh, ATO Ram Phal. The injured written as brought dead in the MLC. I did not record any statement of the family member of the deceased person in the hospital, however, the inquiries were made regarding the incident. The statement of Lochab was recorded near the Reception of the hospital. At the time of recording the statement of Mr Lochab one SI Balbir was also present with me. There were no public person and family member were present at the time of recording statement of Mr Lochab. There is no witness on the statement of Mr Lochab. It is wrong to suggest that I did not record the statement of Mr Lochab that is why I do not remember his full name and no witness on the statement was made. It is wrong to suggest that Mr Lochab had not given any statement and the alleged statement was prepared in P.S by me to implicate the accused falsely in the present matter. We called HC Lal Singh immediately after reaching the hospital. At about FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 42 of 83 10.40 PM, I sent HC Lal Singh for registration of FIR and he went to PS by Auto. I remain present in the hospital till the dead body was sent for preservation in the mortuary of SGM Hospital. I do not remember the exact time when I again went to the spot alongwith my staff. I accompanied only with police Staff and the brothers of deceased person alongwith Mr Lochab directly reached on the spot through their own vehicle. I informed the Crime Team through wireless set. The crime team has already present there but I do not remember from where I passed message to Crime Team. The street was closed from one side but one passage is there which leads to Nangloi. There were three staff members of Crime team were present on the spot. SI Amrender and Ct Satyapal of crime team were present. The Crime team reached on the spot in a govt vehicle. The crime team remained present at the spot for one and half hour. I do not remember the exact time when I prepared the site plan but the same prepared during investigation. It is correct that the site plan Ex PW17/B does not reflect Dena Bank. It is correct that site plan also does not reflect/mentioned Yadav Park. It is correct that the site plan do not reflects the particular of adjacent shop. It is correct the site plan does not reflect or mentioned the sitting position of Mr Lochab. It is correct that site plan do not have any signature of a witness. It is wrong to suggest that the site plan was prepared in the P.S and the same was not prepared at the instance of Mr Lochab. There were some chairs and some other things rice samples were also there but I cannot tell the exact things / articles lying in the shop. It is FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 43 of 83 correct that it is not shown the site plan as the street is closed and there is any street/passage in between the street. The all seizure memos do not have any signatures of any public person nor signed by the complainant. The pullandas were prepared as the IO kit contains the material and cloth. It is correct that no finger prints expert accompanied the Crime Team."
In cross examination by ld. Counsel for accused. The witness deposed as under:
"When I received the information regarding the present case I was present in the area of PS Nangloi while patrolling. However, I do not remember the exact place of my presence in the area. I was present on NH-10. I reached at the spot within 5 minutes. I remained at the spot for another 10-15 minutes for the first time. When I left for the hospital I left ct. Shiv Kumar at the spot. At that time I did not inspect the scene of Crime thoroughly. Again said, I inspected the spot in cursory manner. When I visited first at the spot I found one empty case inside the shop, blood on chair, blood on floor and one live cartridge outsider the shop near shutter. I mentioned these facts in my case diary. Live cartridge was lying adjoining the shutter of the shop. I have no idea about the size of the shutter. Vol. I have not measured the same. The chair in the shop was lying towards right when we enter the shop near counter. I have no idea about the size of the counter but it was a small one. When I left the spot I cordened the area and left Ct. Shiv Kumar to guard the same. I corden of only the shop and the area on which cartridge was lying near the shutter with plastic tape. I FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 44 of 83 do not remember at the time when Crime team arrived the area has been already cordened of or not. Crime team was already present when I returned to the spot. I inquired from one Satish having shop in the adjoining shop. He was brother of the deceased. I seized all the articles lying on the spot after coming back from the hospital. Moslty the blood was lying on the chair and some blood spots were there on the floor. I have no idea as to in how many space the blood spots were lying. The chair was wooden with cotton rest filled therein. It is wrong to suggest that I am deposing falsely. It is wrong to suggest that I have not fairly and properly investigated this case. It is wrong to suggest that nothing was recovered from the spot by me as stated by me in my examination in chief. It is wrong to suggest that I have not even visited the scene of crime."
21. PW-18 Inspector Subhash Chand, No. D-854, DIU West Distt. The witness Inspector Subhash Chand deposed as under:
"On 07.06.2013, one accused Puran @ Sumit who was arrested in case FIR No.164/13, U/s 392/397/34 IPC, PS Nangloi by SI Balbir Singh made disclosure in the said case that he is also involved in the case FIR no. 18/13, U/s 397/392/34 IPC, PS Nangloi along with Co- accused Pradeep Mittal @ Chottu and Vikas @ Sonu. I discussed the case with the IO SI Balbir Singh and interrogated the accused Puran @ Sumit regarding the present case FIR. He disclosed before me that he was involved in the case FIR no. 18/13 regarding his involvement along with Pradeep Mittal @ Chottu & Vikas Sonu around 5 months back. The disclosure statement of the accused is already Ex. PW7/D FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 45 of 83 having my signatures as point B. Thereafter, he was arrested vide arrest memo already Ex. PW 9/A Having my signatures at point B and his personal search was caried out already Ex. PW 9/C bearing my signatures at point B. His relatives were informed about his arrest. Thereafter, he was produced before the Court and his five days PC remand was given by the Court. On the next day, at the instance of the accused Puran @ Sumit pointing out memo of place of occurrence was got prepared vide pointing out memo already Ex. PW9/G. He was again interrogated and raid was conducted at the possible hide outs of the accused Pradeep Mittal @ Chottu but he could not be found. After the expiry of PC remand of the accused Puran he was produced before the Court and he was sent to JC. Thereafter, accused Pradeep Mittal @ Chottu was produced on production warrant in the Court as he was running in custody in some case at Sampla police station. I had moved the application as I received the information that he was so running in some case at Sapla. He was produced before the concerned Court on 25.07.2013. Application for arrest and interrogation of accused Pradeep Mittal Chottu was moved which was allowed and he was interrogated. He made disclosure which was recorded by me vide EXPW9E bearing my signatures at point and thereafter, I arrested the accused vide arrest memo already Ex. PW9/B bearing my signatures at point B. The accused Pradeep Mital @ Chotu was produced before the Magistrate on production warrants in muffled face and all the said proceedings were conducted while he continued to remain in FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 46 of 83 muffled face. Thereafter, I moved the application for the judicial TIP of the accused. He was produced before the Link M. M. where the accused refused to participate in the TIP and his refusal was recorded to the said effect. Thereafter, he was produced before the concerned court. His two days PC remand was taken for recovery of case property and collecting evidence. He was interrogated and he made the disclosure vide memo already Ex. PW9/F bearing my signatures at point B. Thereafter, accused Pradeep Mittal led us to his house i.e. 2nd Floor, C-62, Nangloi Extn. And from inside the bed he got recovered one pistol and two live cartridges which I seized vide seizure memo Ex. PW9/J bearing my signatures at point B. Prior to seizing the same and converting it into a pullanda I prepared the sketch of the same vide memo Ex. PW9/K bearing my signatures at point C. The pistol was of black colour and total length of the pistol Mats 138 cm. On the bottom of two live cartridges it was writen 765 * KF and length of each cartridge was 2.5 cm. I prepared the site plan of the place recover vide Ex. PW9/L bearing my signatures at point C. Thereafter, accused Pradeep Mittal led us to the place of occurrence and I prepared pointing out memo at his instance vide Ex. PW9/H having my signatures at point C. I recorded the statement of the witnesses. Exhibits were sent to the FSL. Accused Pradeep Mittal was present in the Court (correctly identified.). I can identify the case property if shown to me. At this stage MHC(M) submits that Parcel no. 5 which was seized vide seizure memo already Ex. PW13/A (Viscera sample box FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 47 of 83 containing the clothes of the deceased and examined as Ex. 5a to 5f as mentioned in the Biology report No. 2013/B-7161 dated 1.1.2015) have not been received from the Ballistics Division."
"At this stage, MHC(M) produced the parcel no.1 sealed with the seal of Court i.e, "NKM". The seals are broken and one pistol is taken out from the envelope. On seeing the same, the witness identified the same by saying that this is the same pistol which was recovered at the instance of the accused. The same is exhibited as Ex.P-18. Another sealed envelope sealed with the seal of the court, i.e, "NKM" is produced by MHC(M). The seals are broken and two cartridges are taken out. Out of these, one is used and another is Live cartridge. The same are exhibited as Ex.p-18A and Ex.P-18B respectively. I got the scaled site plan already Ex.PW-19/A. I recorded the statements of the witnesses. I prepared the charge-sheet and filed the same in the court".
In the cross examination by ld. Counsel for accused. The witness deposed as under:
"At the time of the arrest of the accused, Pooran, he disclosed about the whereabouts of accused Pradeep Mittal. He did not specify any particular place but disclosed that he can tell some places where he can be found. I specifically inquired from him about those places and then he answered that one place is situated in loharheri, bahadurgarh, vikas nagar and some other place which I do not remember but he did not disclose any FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 48 of 83 address or place of these localities. I searched all those places which were told by accused Pooran to me in his disclosure statement regarding my visits to those places, I have mentioned in my case diary and I cannot tell right now as to which place were visited by me at what point of time. Around 20-25 places were raided by us to search accused Pradeep Mittal. However, we had gone with accused Pooran after his arrest to only 5-6 places in search of account Pradeep Mittal. I have visited alongwith accused Pooran to vikas nagar, loharheri, bahadurgarh and to other places which I do not remember right now. I do not remember about the location of those places where accused Pooran has takes us in search of accused Pradeep Mittal. I inquired from some public persons of all those localities where accused Pooran has led us about accused Pradeep Mittal but I did not record their statements. I did not show the photograph of accused Pradeep Mittal which was available with me to any of the public persons found present there. The photograph of accused Pradeep Mittal was furnished to me by IO of another case SI Balbir Singh. The photograph of accused Pradeep Mittal was that is passport size. However, I do not remember whether I have placed that photograph in the case file or not. I also did not prepare any seizure memo regarding the handling over od that photograph by me. I do not remember the date when it was given to me. However, it was given in the month of July, 2013. Accused Pooran also have the address of accused Pradeep Mittal in his disclosure statement. After coming to know about the address of house of accused FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 49 of 83 Pradeep Mittal in the disclosure statement of accused Pooran, I did not visit his house, but I only sent some police officials to the house of accused Pradeep Mittal. In fact, the family members of the accused Pradeep Mittal were summoned in the police station for inquiry. They were required to come in the police station through beat officer and no notice u/s 160 Crpc was given to them. They were asked to come in the PS on two occasions. Since their statements were not useful, this, the same were not recorded.Since there was no reason for conducting search in the house of the Pradeep Mittal, so we did not conduct any search there. Vol. From local verification, it was revealed that accused Pradeep Mittal is not coming to this house for the last some time. I had not recorded the statement of the person who verified the said fact. This information regarding the non coming of accused Pradeep Mittal was in fact furnished to me by my staff. When the verification is conducted through staff of police it means the same is conducted by me. It is correct that verification regarding the absence of accused Pradeep Mittal from his house was last some time done by our police staff and not personally by me, infact my police staff did not even tell me about the names of those persons form whom they have verified this fact. I had mentioned in the case diary regarding the aforesaid verification. Accused Pradeep Mittal was arrested by me in the court in the month of July, 2013. The disclosure statement of accused Pradeep Mittal was recorded by me outside the court. There were public persons present there. I requested 2-3 public persons to join the investigation FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 50 of 83 but none agreed. After recording the disclosure statement of accused Pradeep Mittal, I obtained his signatures and other witnesses present with me. On that day, I did not see the disclosure statement made by the accused Pradeep Mittal in the case pertaining to PS Sampla, haryana. However, copy of that disclosure statement was obtained by me before the recovery being effected of pistol at the instance of accused Pradeep Mittal. I had gone through the contents of that disclosure statement relating to our case. He has not disclosed about the keeping of pistol in his house in that disclosure statement. The said fact was only disclosed in the disclosure statement recorded by me and accused Pradeep Mittal. Accused Pradeep Mittal was involved in some other cases and was also in custody in those cases. Accused Pradeep Mittal had not disclosed about the availability of the pistol at his house in either of those cases. Perhaps, on 26.07.2013 at about 8:00 PM to 9:00 PM accused led us to his house at Nangloi. Public persons met us on the road, near his house, but we did not ask any of them to join the investigation. The house of accused Pradeep Mittal was built on a plot measuring 100-125 sq. Yards. There was a road 40-50 feed wide in front of the house of accused Pradeep Mittal. The house was built up to second floor. Perhaps, some portion was also built up on the third floor. The staircase which was leading to the second floor of the house was starting from one room inside the house. Again said, staircase was front side of the house. The front gate of the house of the accused Pradeep Mittal was of the size do this FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 51 of 83 Court door. After about 10 steps from the gate, the staircase is started in the house of the accused Pradeep Mittal. When we reached in the house of the accused Pradeep Mittal, his family members, i.e, his mother and his brother were present at the ground floor. No inquiry was made from them nor their statements was recorded. There were three rooms on the ground floor of the house of accused Pradeep Mittal. There was only one room on the first floor. Remaining part of the first floor was lying empty at that time. That room should be by the size of 10×12. The recovery was effected at the instance of accused Pradeep Mittal from this room. This room was not locked and was only shut. The mother and the brother of the accused Pradeep Mittal did not come with us at the time of effecting the recovery. The room was cemented and it was painted with light color. I didn't notice if anything was lying on the open terrace or not. However, inside their room, there was a single bed, one chair, one small table of plastic was there. We stayed there for about 35-40 minutes. All the writing work was done inside that room. The bed was lying in the left side of the room when we entered into it. The chair and table were lying along with that bed. The bed was of wooden colour. That bed was covered by a bed sheet of dark colour, but I do not remember whether it was black or blue. The pistol was produced by accused Pradeep Mittal from inside that deewan/bed. The pistol was recovered from the side of the bed which was nearing the wall towards the left side of the room when we entered that room. The deewan/bed was of the height of 2.5/3 feet. When the pistol FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 52 of 83 was produced by accused Pradeep Mittal, I was witnessing this. There were some cloths, mattresses etc. Lying inside the deewan, when the pistol was recovered. The deewan was filled with these clothes about more than of its size. The accused Pradeep Mittal had taken the pistol from the cloths lying in the bed. I do not remember whether it was mat, suit or bed sheet from which, the accused Pradeep Mittal had taken out the pistol. The site plan of this room was prepared by me but I had not shown the things lying in the Said room. I do not remember whether the dimensions as well as the location of door, windows and things lying in the room has been shown or not. Whatever has been disclosed by the accused Pradeep Mittal, I had recorded the same. I do not know whether I had asked the accused Pradeep Mittal regarding his mobile phone being used by him at the time of his arrest or making disclosure statement. I had inquired from the co-accused (though discharged) regarding mobile phone being used by accused Pooran as well as by accused mittal. The accused Pooran had told that he did not remember the phone number of accused Pradeep Mittal. However, he has disclosed his own mobile phone number. I do not remember whether CDRs of Mobil phone of accused Pooran was obtained from the service provider or not. It is incorrect to suggest that I am deposing falsely or that I have falsely implicated Accused Pradeep Mittal or pooran in this case. It is further incorrect to suggest that no disclosure statement was made by accused Pradeep Mittal or pooran. It is further incorrect to suggest that accused Pradeep Mittal did not FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 53 of 83 point out the place of occurrence of that I had obtained the signatures of accused Pradeep Mittal prepared by me under threat. It is further incorrect to suggest that I have not properly or fairly investigated this case."
22. PW-19. Statement of PW-19 Inspector Mahesh Kumar, No.D-460, Draftsman, Crime branch, PHQ, New Delhi. The witness deposed as under:
"On 09.09.2013, I was posted as inspector Draftsman at crime branch, PHQ , New Delhi. On that day at the request of inspector Subash Chand reached at PS Nangloi and from there, I alongwith inspector Subash Chand with staff reached at the spot i.e, Ganesh trading company, A-1,A-2 yadav park, Nangloi where PW Vimal lohchab met us at the spot. I took rough notes and measurements at the instance of PW Vimal lohchab and inspector subash chand. On 19.08.2013, on the basis of those rough notes and measurements, I prepared scaled site plan and handed over the same to IO. I destroyed the rough notes after the preparation of the scaled site plan. The scaled site plan is exhibited as Ex.PW-19/A which bears my signature at point A. In cross examination by ld. Counsel for accused, The witness deposed as under:
"It is correct that I have prepared the Ex.PW19/A on computer. It is incorrect to suggest that I am deposing falsely."
23. PW -20: Sh. Ved prakash Surya, Addl. DCP shadhara, Delhi.
The witness deposed as under:
FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 54 of 83 "On 12.05.2014, I was working as Additional Deputy Commissioner of Police, West District, New Delhi. On that day, after going through the file in my office, being produced by the IO, I granted sanction u/s 39 of Arms act. The sanction is now Ex.PW20/A which bears my signature at point A"
In cross examination by ld counsel for the accused, the witness deposed as under:
"It is wrong to suggest that I have not granted sanction after going the through file on 12.05.2014 or I had given the sanction in mechanical manner. I recieved the case file between 11.30 AM to 05.00 PM during my working hours. The file was received by me between 12.00 noon to 1.00 PM. I gave the sanction report after going through the FSL report submitted by IO. I do not know the exact time when I had accorded the sanction u/s 39 Arms Act".
24. PW-21 ASI Shri Bhagwan, No.631, MHC(M), PS Sampla District Rohtak, haryana. The witness deposed as under:
"Today I have bought the original register no. 19 pertaining to entry no. 951, dated 24.06.2013. On that day IO PSI Sunil Kumar handed over to me the case property i.e. motor cycle pulsar bearing no. DL9SAE, 4874 to deposit in malkhana. I deposited the same and made entry in the said register at S. No. 951, the photocopy of the said entry is Ex. PW21/A (OSR)"
In cross examination by ld counsel for the Accused, the witness deposed as under:
FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 55 of 83 "It is wrong to suggest that I am deposing falsely. It is wrong to suggest that I had not made entries at the time and on the date mentioned at the relevant entry in the register no. 19. It is wrong to suggest that I had made the entries subsequent thereto at the instance of IO of the case."
25. PW-22 Dr. Naresh Kumar, Sr. Scientific officer, biology at FSL Rohini, Delhi. The witness deposed as under:
"On 13.09.2013, six sealed parcels were received in the office of FSL Rohini in the present case. Same were marked to me for examination. Before opening the parcela seals on the parcels were tallied with the specimen seals and found it correct. Parcels were opened and exhibits were taken out and which were marked as Ex.1 ,2 , 3, 4 ,5 a to 5f and 6. On biological examination blood was detected on all the exhibits except Ex. 3 and 5f. I also examined the exhibits serologically. On serological examination blood group 'O was found on exhibits 4, 5c, 5e and 6. Rest of the exhibits gave no reaction. My detailed report is Ex. PW22/A and Ex. PW22/B. Which bears my signature at point A on each page."
In cross examination by ld counsel for the Accused. The witness deposed as under:
"I did not notice as to when the exhibits were lifted by the IO in this case. No particular environmental condition is required if the exhibits are dried in a porus container or open room. It is wrong to suggest that I have not prepared the report by FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 56 of 83 following the stands scientific procedure or that I had prepared the same at the instance of IO of the case."
26. PW-23 Statement of Dr. Virendra Kumar, CMO, Shri Balaji Action Institute, Delhi. The witness deposed as under:
"Today I have been deputed by MS, Shri Balaji Action Institute, Paschim Vihar, Delhi to identify signatures and handwriting of Dr. Rajesh on MIC No. 3768/13 of patient Naresh S/o Om Prakash Sharma. I have gone through the original MLC from the judicial file today. As per MLC, patient was brought to hospital on 12.01.2013 at 08.20 PM with alleged history of being shot using a fire arm. Patient was examined by Dr.Rajesh and was declared as dead. As Dr.Rajesh has left the services from the hospital and is present address is not available, however, I am identifying his handwriting and signatures on MLC Ex.PW-23/A bears the signatures of Dr. Rajesh at point A, as I had seen him writing and signing during the course of our official duty."
27. PW-24 Statement of Sh. N.B. Bardhan, Director, CFSL (CBI), New Delhi. The witness deposed as under:
"On 16.09.2013, I as posted as Principal Scientific Officer (Ballistics), CFSL (CBI), CGO Complex, New Delhi. Exhibits pertaining to the present case were received in the CFSL, Lodhi Road on 16.09.2013 and the same was marked to me for examination. I had opened the three sealed parcels. Out of these three parcels, parcel no. 1 was having 5 intact seals of SC, parcel no. 2 was having 2 intact seals of DS and parcel no. 3 FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 57 of 83 was having 1 intact seal of SGMH MORTUARY MANGOL PURI DELHI. The seals were intact and were found tallied with the specimen seals received in the office with the parcels mentioned above. Parcel no. 1 was opened and it was found to containing one 7.65 mm country made pistol (mark W/1 by me) with its empty magazine, two 7.65 mm cartridges (mark C/1 and C/2 by me). Parcel no. 2 was opened by me and was found to contained one 7.65 mm cartridges (mark C/3 by me) and one 7.6 mm cartridges case (mark C/4 by me). Parcel no. 3 was opened and it was found to contained one 7.6 mm bullet (mark BC/I by me) After examining the above mentioned exhibits, I gave my opinion. At this stage, attested copy of CFSL report from the judicial shown to the witness and after seeing the same witness identified his signature point A and same is Ex. PW-24/A. Office copy of Ex. PW-24/A is seen and contained. As per my opinion in Ex. PW-24/A that the 7.65 mm cartridges case (mark C/4) contained in parcel no. 2 and the 7.65 mm bullet (mark BC/1) contained in parcel no. 3 had been fired from the 7.65 mm country made pistol (mark W/1) contained in parcel no. 1 in question. The details of my examination are mentioned in my report mentioned above. After examination the above mentioned parcels resealed with the seals of NBB, PSO (BALL) CFSL CBI NEW DELHI. I can identify the above mentioned exhibits if shown to me. At this stage, MHC (M) produced one sealed parcel sealed with the seal of court and the same is opened and it was found containing one country made pistol, taken out from the pulanda and shown to the witness, FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 58 of 83 witness correctly identified the same pistol which was examined by him. Country made pistol is already Ex. P-18."
MHC (M) also produced one sealed parcel sealed with the seal of court and the same is opened and it was found containing one used and one live cartridge, taken out from the pulanda and shown to the witness, witness correctly identified the same which was examined by him. The used cartridge is already Ex. P-18/A and live cartridge is already Ex. P-18/B. Witness further submits that already Ex. P-18/A was live cartridge at the time of examination and same was test fired in the CFSL laboratory. MHC (M) also produced one sealed parcel sealed with the seal of court and the same is opened and it was found containing one empty and one live cartridge, taken out from the pulanda and shown to the witness witness correctly identified the same which was examined by him. The same are already collectively Ex. P-2. MHC (M) also produced one sealed parcel sealed with the seal of court and the same is opened and it was found containing one fired bullet kept in plastic container, taken out from the pulanda and shown to the witness, witness correctly identified the same which was examined by him. The same is already Ex. P-11.
In cross examination by Ld. Counsel for accused Pradeep Mittal. The witness deposed as under:
"It is wrong to suggest that I am deposing falsely at the instance of IO of the case or that I have prepared my report at the instance of the IO."
FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 59 of 83
28. PW:25 Statement of Dr. Anurag Thapar, Senior Resident, Department of Forensic Medicine, SGM Hospital, Delhi. The witness deposed as under:
"Today I am deputed by MS, SGM Hospital, Mangol Puri, Delhi to identify handwriting and signature of late Dr. Manoj Dhingra on PM Report no. 35/13 dated 13.01.2013 pertaining to deceased Naresh, son of Sh. Om Prakash Sharma. I have gone through the PM report from the file. As per PM report post mortem of the body of the deceased were conducted by two doctors i.e. late Dr. Manoj Dhingra and Dr. Vivek Rawat in SGMH mortuary on 13.01.2013. As per PM report the cause of death was opined by both the doctors that the death was due to hemorrhage and shock as a result of entry of spent missile from a country made rifled fire arm weapon. Since Dr. Manoj Dhingra has expired and Dr. Vivek Rawat had left the service from the hospital and his present whereabout are not known as per the hospital record, however, I am identifying the signature of late Dr. Manoj Dhingra on the PM report Ex.PW-25/A which bears the signature of late Dr. Manoj Dhingra point A as I had seen him signing and writing during the course of our official duty as I had worked with him in the same department in the said hospital. (objected to by Ld. Defence Counsel on the mode of proving the said document)."
In cross examination by Ld. Counsel for acused Pradeep Mittal. The witness deposed as under:
FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 60 of 83 "Post mortem on the body of deceased was not conducted in my presence nor Ex. PW-25/A was prepared in my presence. It is correct that whatever I have stated in my statement have been stated by me as per the contents of PM report."
29. PW-26 Statement of Sh. S.S. Lamba, presently posted as ACI/CCJ/ARC, North, Rohini, Delhi, the then Ld. MM, Tis Hazari Courts, Delhi. The witness deposed as under:
"On 25.07.2013, I was posted as MM-01, NI Act, District West, Tis Hazari Courts, Delhi and was working as first Link MM of Sh. Harvinder Singh, Ld. MM, West District, Tis Hazari Courts, Delhi. An application moved by Inspector Subhash Chand for conducting the TIP proceedings of accused Pradeep Mittal @ Chottu @ Anuj was maked to me by Ld. Link MM - Sh. Harvinder Singh. On 25.07.2013 Inspector Subhash Chand appeared in the court before me, accused Pradeep Mittal, @ Chottu @ Anuj was also produced from JC in a muffled face. The accused was duly identified by the IO. I explained the meaning as well as the procedure of TIP to accused, however, accused refused to join TIP proceedings on the pretext that the witness has seen him during his appearance on date of hearing in the court. At this stage, one envelope sealed with the seal of SSL is taken out from the judicial file, opened which found containing two original applications moved by the IO ie, one for conducting TIP another of obtaining copy thereof and original TIP proceedings conducted by the witness duly signed. All the three documents shown to the witness, witness identified the same and states that TIP proceedings (containing FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 61 of 83 02 pages) Ex. PW-26/A bearing my signature at points A1 to A3 and I allowed the application for obtaining copy of TIP proceedings vide my endorsement at point A. Same is Ex. PW- 26/B bearing my signature at point A."
30. PW-27 Statement of Inspector Balbir Singh, No. D-1/410, Rastriyapati Bhawan, New Delhi. The witness deposed as under:
"On 29.05.2013 I was posted as SI at PS Nangloi. FIR no. 164/13 had already been assigned to me for investigation. During the course of investigation of that case on 06.06.2013, I arrested accused Puran @ Sumit. On interrogation he disclosed about his involvement in FIR 18/2013 alongwith his associates Pradeep Mittal @ Chhotu and Vikas @ Sonu. The copy of arrest memo of accused Puran @ Sumit is Ex. PW-27/A which bears my signatures at point A. Copy of arrest memo is Ex. PW-27/B which bears my signatures at point A. The copy of disclosure statement of accused is Ex. PW-27/C which bears my signatures at point A. At this stage, original case file of FIR no. 164/13 is produced by Ahlmad. Abovesaid documents are compared with original one (OSR). I handed over copy of FIR no. 164/13 of PS Nangloi alongwith above said documents to IO of FIR no. 18/2013 namely Inspector Subhash. Accused is present in the court (correctly identified).
In cross examination by Ld. Counsel for the accused. The witness deposed as under:
"I am not aware whether accused in FIR no. 164/13 have been acquitted by the court of Ms. Himani Malhotra, the then ASJ, FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 62 of 83 West, Delhi vide order dated 29.03.2022. It is wrong to suggest that accused Puran was not arrested in the manner as stated by me in FIR no. 164/13 PS Nangloi or that accused was lifted from his house. It is wrong to suggest that accused did not make any disclosure statement in that case or that nothing was recovered from his possession or at his instance in that case. It is wrong to suggest that I am deposing falsely at the instance of the IO of this case."
31. PW-28 Statement of Insp. Shiv Narayan, SHO Vaishali Nagar, Jaipur West Rajasthan.The witness deposed as under:
"Case FIR No. 145/2013 of PS Shahjahan Pur, District, Alwar was registered on 13.06.2013. I had prepared rukka on my statement and got registered FIR. Investigation was also assigned to ASI Shiv Lal. In this case, I had arrested accused Pardeep Mittal @ Chotu is present in the Court today and correctly identified. On 13.06.2013, I was posted at PS Shahjahan Pur as SHO. On that day, at about 3:50 PM, I received information that assailant after committing crime in the area of Baval, District Rewari are coming towards Rajasthan by two swift dezire car. On this information, I constituted the team and put barricade at Shahjahanpur Toll plaza at about 4:00 PM. In the meantime, two swift dezire car was noticed coming from the side of Baval. I tried to stop them with the help of barricade, immediately driver of the said vehicles took turned back side. In the meantime, three assailants got down from those vehicles and they ran away firing towards us. They run towards field. We chased them and FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 63 of 83 overpowered three assailants near village Jonayachakalan. I recovered weapons from them and their name into notice as one of the Pardeep Mittal @ Chotu and 8 live cartridges and one pistol was recovered from the possession of accused Pardeep Mittal and he was arrested in the case FIR No. 145/2013. I completed necessary formalities regarding arrest and recovery, I prepared rukka and further investigation was assigned to ASI Lal. During course of investigation, accused Pardeep had disclosed his involvement in the incident of present case beside other involvement. So we informed to SHO of the present case. Later on in pursuance of written request of IO of the present case, photocopy of charge sheet and FIR no. 145/2013 were delivered to Delhi Police Official on the request of IO which is Ex. PW28/A. Copy of charge sheet including seizure and arrest of case FIR no. 145/2013 is Ex. PW28/B (Colly) (running into 11 pages). Seizure and arrest of accused are in my hand and rest of papers in the handwriting of some other IO. FIR is not on the charge sheet. However, copy of FIR of the case FIR NO. 145/2013 is on police file and same is taken out which is Ex. PW28/C (Colly) and now same is tendered in judicial record."
In cross examination by Ld. Counsel for accused. The witness deposed as under:
"I formed the raiding party of 5 police official after getting the secret information at about 4:00 PM. We reached at the place of nakabandi within 10 minutes. Apart from raiding team official, toll officer was also present there. I requested about 10-12 toll FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 64 of 83 officials but they did not join the investigation. After about 5-7 minutes of our reaching at the toll plaza, both swift dezire cars arrived there. Apart from these two vehicles, several other vehicle were arrived on the road. We all were standing prior to tall plaza and on the side of which both these vehicles were coming. We were standing exactly on the toll plaza. There were about 8 gates on the toll plaza on passing of the vehicle. We all five police official standing towards our left on the last lane of the toll plaza. In the secret information, it was not informed to us that these accused persons would pass through the last lane of the plaza, when we reached the toll plaza, other lanes were closed except the last lane where we were standing. There was no such vehicle on the road or vehicle were moving comfortably. When these two vehicle arrived, both these vehicles were followed by some other vehicles. We could identify those vehicles when these vehicles reached at the gate of the toll plaza. When we tried to intervene, both vehicles crossed the toll plaza by breaking the barriers of the toll plaza. Our vehicles were parked in a separate place adjoining the toll plaza gate. Infact when both these vehicles crossed the toll gates, they were stopped by two constables standing away from 200-250 meters from the toll plaza. Infact at this place only single lane was there. Both the police official stopped this vehicle were having dandas in their hands and worn in police uniform. It is wrong to suggest that I am deposing falsely or that accused Pardeep was not arrested by me in the case mentioned by me above. It is wrong to suggest that no pistol FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 65 of 83 was recovered by the possession of accused. It is wrong to suggest that accused Pardeep has not made any disclosure statement. It is wrong to suggest that accused Pardeep was also falsely implicated in the case of PS Shahjahanpur in connivance of police official in Delhi."
32. No other PW was examined and PE was then closed and the matter was fixed for recording of Statement of the accused. Statement of the accused under Section 313 Cr.P.C was recorded wherein the accused has denied his involvement in the commission of the offences. The accused has stated that he would not lead evidence in his defence.
33. Ld. counsel for the accused has strenuously argued that there is no evidence to show that the accused fired on the deceased and that there are no eye-witnesses to the incident who has deposed on the lines of the prosecutions case and the depositions of the witnesses are all nothing but hearsay. Further it is stated that the accused is liable to be acquitted as the prosecution has not been able to prove its case against the accused Pradeep Mittal.
34. Per contra, Ms. Parul Singh, Ld. Addl. PP for the State has duly opposed the submissions made on behalf of the accused with reference to the evidence on record, it is submitted by the Ld. Addl. PP that the depositions of the witnesses, particularly those of recovery witnesses and expert witnesses along with Vimal and PW-4 Satish and other prosecution witnesses establish beyond doubt that the accused fired from his recovered country-made pistol with intention to rob and kill the deceased Naresh Kumar. Hence, FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 66 of 83 according to the Ld. Addl. PP for the state accused be convicted for the offence under Section 302/392 IPC and 25/27 Arms Act.
35. To bring home the gulit of th accused Pradeep Mittal, the prosecution has examined PW-4 Satish, PW-5 Vimal Lochav as main eye witnesses.
36. PW-4 Satish has deposed that on 12.01.2023 at around 07:45 PM, when he was working in his shop, he heard a sound like bursting of cracker. He heard the sound of Rajender son of his mausi that "Goli Mar di Bhai Naresh ko".(Naresh has been hit by bullet). When he came out of his shop, he was not on the seat and he saw Naresh lying at the back of the shop and he was covered with blood. Rajender and Vimal took deceased Naresh in a vehicle to hospital. He went on a Motorcycle. In his cross-examination he deposed that his family members were present at the hospital and deceased Naresh was declared dead before he reached at the hospital and he denied the suggestion that he is a planted witness.
37. PW-5 Vimal Lochav has deposed that he was working with Ganesh Trading and Mr. Naresh Vashisht was the owner. On the date of the incident i.e. 12.01.2013 and it was between 07:30 PM to 08:00 PM, he was having pain in the neck and he was taking medicine. He heard a noise from his back. He could not undertand what the noise was because the TV was on. He turned back and someone hit him on his forehead. He felt giddy as he was hit very severely. He do not know as to who has hit him, when he regained conciousness he found that Naresh was lying on the floor and he was shouting. At that time Rajender i.e. youger brother of Naresh was FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 67 of 83 also standing on the gate and he was crying. He then called 100 no. He did not wait for ambulance and he brought a Swift car belonging to Naresh. The Doctors declared him dead as he retracted from his He was further cross-examined by the Ld. Addl. PP for the State, and the witness denied the suggestion that he had stated to the police that he had seen two boys aged 20/25 years who were asking deceased Naresh to take out the money soon and that Naresh had then asked them as to why money they were asking. The witnes was then confronted with portionx X to X-1 of Mark PW-5/DA on which he identify his signatures at point A and denied the suggestion that made that statement portions X-1 to X-2 to the effect that one of those boys was standing at the main gate with a gun and that one of them had put the gun on the chest of uncle Naresh and was demanding the money. The witness was confronted with portions X to X-1 of Mark PW-5/A wherein it is so recorded. He voluntarily stated that rather he had become unconscious on being assaulted on his head and though he had been assaulted on the head, he did not know who assaulted him and with what he was assaulted and he did not make the statement portions X-2 to X- 3 of Mark PW-5/A. He denied the suggestion that he made the statement portions X-3 to X- 4 of Mark Pw-5/A to the police to the effect that one of those boys had fired the gun on the chest of Naresh. Rather he have already stated that he was unconscious at that time. He did not know whether those boys had taken out the money from the cash box of Naresh and had run away. He did not see those boys running towards the lane after taking the money from the cash box of Naresh as mentioned in portions X-4 to X-5 of Mark PW-5/A. However, he FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 68 of 83 had so heard that they had run away. When he had regained consciousness he found Mr. Naresh having fallen down after. He denied the suggestion that he had given the description of those two boys as mentioned at portions X-6 to X-7 of mark PW5/A the police. However, he denied that he was not medically examined.He denied the suggestion that he stated to the police that he could identify of those two boys. The police had come to him to make inquires about the site plan. The police may have made the site plan. But he did not know, witness was then confronted with mark PW 5/B the allegedly recorded statement dated 13.01.2013. He denied the suggestion that he made the statement dated 26.07.2013 mark PW 5/C to the police. He could not identify the accused present that day in Court as being the accused Pradeep Mittal, He did not recall whether the site plan was prepared on 09.08.2013 after measurements in his presence. Witness was confronted with Mark PW 5/D. He denied the suggestion that he had deliberately not identified the accused present in Court that day and he denied the suggestion that he has been deposing falsely. He voluntarily stated that the entire staff of Ganesh Trading was detained by the police at the police station for 8/10 days. No complaint was made against the police for detention at the police station for 8/10 days. His parents had come to the police station they were informed by the police that he had been detained for inquiries and they would be no harm cause to him.
38. As the main eye witnesses to the present case has retracted from their statements as made before the police. Therefore, the present court has to now see if their is some circumtantial evidence which points to the unequivocal guilt of the accused as both the FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 69 of 83 witnesses in front of whom the crime has been committed turned hostile, the present court has to weigh the case of the prosecution on scales of circumstantial evidence.
CIRCUMSTANTIALEVIDENCE:
39. In case like death/murder generally there is hardly any eye witness or sometimes the witness turn hostile and law postulates in a criminal trial, two kinds of evidence adduced before the Court, one is the ocular evidence or the eye witness account which is basically taken to be a direct evidence and is based on the deposition of eye witness(es) on the basis of his/her observation made at the time of commission of crime. The other kind of evidence is circumstantial evidence which is basically known to be an indirect evidence, deducted from the existing facts and is an inference drawn from proved facts. Now this kind of evidence is also an admissible evidence in a criminal trial but this kind of evidence has to be treated with a lot of caution and circumspection by the criminal Court because of the inherent subjectivity in drawing the conclusions by the Court concerned. The law regarding the nature and character of proof of circumstantial evidence has been settled by several authorities of Hon'ble Supreme Court and the Hon'ble High Courts in India. The locus classicus of the decision was rendered by Hon'ble Justice Mahajan of the Hon'ble Apex Court in Hanumant v. State of Madhya Pradesh 1953 Crl.L.J 129 who expounded the concomitants of the proof of a case based on circumstantial evidence by holding: of "The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 70 of 83 but the one proposed to be proved. it must be such as to show that within all human probability the act must have been done by the accused."
40. In the celebrated judgment of Sharad Birdhi Chand Sarda v. State of Maharashtra, AIR 1984 SC 1622, the Hon'ble Supreme Court, while examining the nature and character of proof of circumstantial evidence, reiterated its decision rendered in the aforesaid case of Hanumant's wherein the Hon'ble Court had propounded five golden principles regarding circumstantial evidence. The same are reproduced herein under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
2. The facts so established should be consistent with the hypothesis of 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.
4. They should exclude every possible hypothesis except the one to be proved.
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.
These five golden principles constitute the panchsheel of the proof of a case based on circumstantial evidence and in the absence of a corpus deliciti."
41. The Hon'ble Sarkaria J., in Ramanand & Ors., v. State of Himachal Pradesh, 1981 AIR 738 while enunciating the law relating to circumstantial evidence famously remarked that "perfect proof is seldom to be had in this imperfect world and absolute certainty is a myth".
FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 71 of 83
42. The aforesaid five cardinal principles have been reiterated by the Hon'ble Supreme Court of India in numerous judgments. Therefore, the principle, as laid down in aforesaid judicial dicta, is that in cases based on circumstantial evidence, circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. The various circumstances in the chain of events must be such so as to rule out the reasonable likelihood of innocence of accused. The missing of important link snaps the chain of circumstances and the other circumstances cannot in any manner establish guilt of accused beyond all reasonable doubts.
43. Keeping these conditions in mind and in light of the aforesaid guiding principles of law, this court shall now proceed with the case in hand and shall give findings with respect to each of the circumstance which can help us in arriving at the just decision of the case.
IDENTITY OF THE ACCUSED:
44. As far as the identity of the accused is concerned as discussed earlier, the main material witnesses PW-4 satish and PW-5 Vimal Lochav have failed to identify the accused. It is argued by the Ld. Addl. PP for the State that the accused has refused the TIP. Therefore, adverse inferance be drawn against him which is enough to establish the identity of the accused. Though it is true that adverse inferance is drawn at the refusal of TIP proceedings, however, that FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 72 of 83 is itself not sufficient to establish the identity of the accused. The prosecution has to provide a sound evidence and it must stand on its own legs. There is nothing on record to establish the identity of the accused beyond reasonable doubt as the main witnesses have turned hostile.
MEDICAL EVIDENCE
45. The post-morterm was conducted on the deceased Naresh Kumar aged about 50 years by Dr. Vivek Rawat and Dr. Manoj Dhingra.
External injuries shows that :
Firearm entry wound them 1.5cm X 1cm cavity deep, circular shaped, over right half front of chest. 5 cm lateral to moline, 9.5 cm medial & 1.5 cm above right nipple, 7 cm downt from stoclavicular joint.
No Blackening & tattooing seen around the wound margin Abraded mar around the wound with a width of 0.2 cm. Track of wound extends through space between right 4th & 5th intercostals space with a chip fracture of lower border of rib, going downward & medially piercing the mediatinum, right lung, left lobe of liver, Then the bullet gets lodged in the paravertebral space left lateral to 1.5 vertebra.
Yellow metallic bullet without percussion cap recovered & preserved & handed over to the 1.0.
Death was opined to be due to hemorrhage and shock as a result of entry of spent misssle from a country made pistol firearm weapon.
The bullet was preserved, sealed and handed over to IO and all injuries were antemortem in nature. From the perusal of the abovesaid PM report Ex. PW-25/A, it is clear that the death has FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 73 of 83 resulted due to bullet injury from country-made-riffle/fire-arm weapon which also supports the prosecutions case.
46. Now the main question before us is that whether the accused Pradeep Mittal has committed murder of deceased Naresh Kumar. As I have discussed in length in the preceeding paras that the main witnesses have turned hostile and have not supported the case of the prosecution regarding the identity of accused.
47. Be that the case as it may be, the prosecution has tried to prove its case as the fire-arm Ex.P-1 which was recovered from the possession of accused Pradeep Mittal, and the bullet found in body of deceased was infact fired from the fire armas recovered from the accused which has come in ballistic/FSL report.
RECOVERY OF CASE PROPERTY.
48. The accused Pradeep @ Anuj was arrested on 25.07.2013 and his disclosure was recorded on 25.07.2013 and the same is Ex. PW-9/E. It was deposed by PW-18 Insp. Subhash Chand that on 26.07.2013 at about 08-09:00PM, accused led him to his house in Nangloi. Public person met them on the road near his house but they did not ask any one of them to join investigation. Accused led them to his house Second Floor, C-62, nangloi Ext. And from inside the bed he got recovered one pistol and two live catridges which were seized by seizure memo vide Ex. PW-9/E. The pistol was of black color and total length of the pistol was 13.8 cm. On the bottom of two live cartridges, it was written 7.65 KF and length of each catridge was 2.5 cm. He prepared the site plan of the place recover vide Ex. Pw-9/L bearing his signature at Point C. Thereafter, FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 74 of 83 accused Pradeep led them to the place of occurence and he prepared pointing out memo at his instance vide Ex. PW-9/H having his signatures at Point C. He recorded the statement of witnesses. Exhibits were sent to the FSL.
49. As per the FSL result Ex. Ex. PW22/A and Ex. PW22/B. the cartridge that was found from the body of he deceased matched with that of weapon as recovered from the accused and it was opinied that catridge was in fact was shot from the said gun. It is argued by the Ld. Addl. PP that this is the most important peace of evidence. The Section 27, Indian Evidence Act would come into picture and knowledge on the part of the accused which led to discovery of fact would make the disclosure statement admissible in evidence.
50. As early as 1946, the Privy Council had considered the provisions of Section 27 of the Evidence Act in the case of Pulukuri Kotayya and Others v. King−Emperor. It will be relevant to refer to the following observations of the Privy Council in the said case:
"The second question, which involves the construction of s. 27 of the Indian Evidence Act, will now be considered. That section and the two preceding sections, with which it must be read, are in these terms. [His Lordship read ss. 25, 26 and 27 of the Evidence Act and continued : ] Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved."
The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and there upon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 75 of 83 evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw for the Crown, has argued that in such a case the 4 1946 SCC OnLine PC 47 "fact discovered" is the physical object produced, and that any information which relates distinctly to that object can be proved. On this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity, would all be admissible. If this be the effect of s. 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to s. 26, added by s. 27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the "fact discovered"
within the section as quivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A.", these words are inadmissible since they do FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 76 of 83 not relate to the discovery of the knife in the house of the informant." [Emphasis supplied]
51. It could thus be seen that Section 27 of the Evidence Act requires that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to the said fact. The information as to past user, or the past history, of the object produced is not related to its discovery. The said view has been consistently followed by this Court in a catena of cases.
52. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non−inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of a fact envisaged in the section.
53. Hon'ble Supreme Court of India in Subranaye V. State of Karnataka in Crl Appea. No. 242/2022 has held that:
"If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would 7 2022 SCC OnLine SC 1400 arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 77 of 83 the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes such statement before the two independent witnesses (panch−witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch−witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter."
54. Hon'ble Supreme Court in catena of judgments have elaborately considered as to how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act.
55. The recovery memo has been prepared by PW-18 Insp.
Subhash Chand which was seized vide Seizure Memo Ex. PW-9/J. It is argued by Ld. Defence Counsel that the recovery made by the prosecution is false and fabricated. There is no public witness at the time of recovery, all were police witnesses.
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56. HC Sudesh Kumar in his examination in chief stated that on 25.07.2013, he joined the investigation of the present case, the accused Pradeep Mittal was being produced by Haryana Police before Ld. MM and the IO took permission of the court to interrogate the accused and recorded his disclosure statement, however, no public person joined the investigation and thereafter, produced the accused in muffled face for conducting TIP proceeding but the accused refused. On 26.07.2013, accused led them to his house in Nangloi, Public persons met them on the road near his house, but they did not asked any of them to join the investigation. Even at his house, the family members were present, no inquiry was made not their statement were recorded.
57. HC Bhavnesh Kumar in his examination in chief stated that he along with IO and HC Sudesh Kumar went to Nangloi and got recovered a pistol from his house and stated in his cross-examination that no public person joined the investigation.
58. Insp. Subhash Chand in his cross-examination has deposed that accused Pradeep Mittal was arrested by him in the court in the month of July, 2013, the disclosure statement of accused was recorded by him outside the court. There were public persons present there. He requested two-three public persons to join but none agreed. On 26.07.2013, accused led them to his hosue in Nangloi, Public persons met them on the road near his house, but they did not asked any of them to join the investigation. Even at his house, the family members were present, no inquiry was made not their statement were recorded.
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59. Perusal of the testimony of all the above witnesses shows that the IO had the previous knowledge regarding the search is to be made in consequent of disclosure statement of accused Pradeep Mittal, however, neither he called any public person nor he did not made any public person as Panch-witness as present outside the court or near the house of accused. In the present case, the recovery has been made after a long gap of 7 months. Generally, it is nature and conduct of a criminal that after committing any crime, he could hide or throw the weapon of crime to finish the evidence against him. It is not expected that he will carry the weapon of crime which was a country made pistol for a good 7 months. In such kind of recoveries, independent witnesses are required and in absence of public witnesses, recovery of a weapon with two live catridges is not believable.
60. Neither in the disclosure statement as made before PW-4 i.e. Police official of Sapla, accused has disclosed that he has hidden the weapon of offence in his house nor in the disclosure statement as made before PW Insp. Subhash Chand, he disclosed that he could get recovered the firearm from his house. In the disclosure statement i.e. PW-9/E, the accused has disclosed that he can get the pistol recovered, however, he did not tell the place from where he can get the pistol recovered. Moreover, it mean that the IO had prior knowledge that the accused can get recover the weapon of offence which has been used in the murder approximately 7 months back, however, still the IO choose not to join any public witness for the recovery.
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61. Section 100 (4) Cr.P.C lays dow that "Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality is available or is willing to be a witness to the seach, to attend and witness the search and may issue an order in writing to them or any of them so to do." The provision under Section 100 (4) Cr.P.C is not complied with in this case by the recovery officer. Conviction on the basis of statements of two police officials alone is not sustaninable, as held in Sans Pal Singh v. State of Delhi reported in 1998 SCC Criminal 641.
62. It has been argued by the Ms Parul Singh, Ld. Addl. PP for the State that the countrymade pistol was kept and concealed in such a place that the knowledge of same counld not be attributed to any other person that accused herein. The important circumstance that as opined by expert to the effect that the said bullet could only be fired from that particular countrymade-pistol. Another important circumstance, on the basis of presumption, which connect the accused to the murder that he could not offer any satisfactory account/explanantion as to how he came to be in possession of said country-made pistol. These circumstances sufficient to bring home the guilt of accused beyond reasonable doubt. It has been argued that witness may lie, but circumstances cannot. However, the present court feels that only because the recovery of a weapon was made and the expert opined that the bullet found in the body of the deceased was fired from the weapons seized, by itself cannot be the sole premises on which a judgment of conviction u/s 302 IPC could be recorded. There is no direct evdience. The recovery has been FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 81 of 83 made after 7 months, the weapon might have changed many hands, in the absence of any other evidence connecting the accused with the crime of murder of deceased is not sufficient to complete the chain for circumstantial evidence against the accused for the offence u/s 302 IPC. Prosecution must prove its case beyond all reasonable doubt and in case like ours, the recovery of weapon could have been one of the link but not entirely enough to bring home the guilt of the accused where the recovery has been made, ignoring the statutory safeguard and because of which even the offence u/s 25/27 Arms Act is not proved against the accused beyond reasonable doubt. There is no iota of evidence against the accused u/s 392 IPC as the witnesses in front of whom the offence has taken place have turned hostile. While recording the disclosure statement, public was present in the court, however, no witness joined the investigation. Further at the time of recovery, no public person joined and in these circumstances, the link of circumstantial evidence is not complete. The circumstances are not fully established to conclude the guilt of the accused and the fact established are not consistent with the hypothesis of the guilt of the accused. It cannot be said that there is no explanation or any other hypothesis except that the accused is guilty as the circumstances are not conclusive in nature making the chain of evidence incomplete which leaves reasonable ground for the innocence of the accused and it does not show that in all human probablity the act was done by the accused. The only connecting dot between the murder of the deceased and the accused is the recovery of countrymade pistol/firearm. However, only on the basis fo sole circumstance it cannot be said that the prosecution has discharged its FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 82 of 83 burden of proving their case beyond reason doubt. As already discussed hereinabove, merely on the basis of suspicion, conviction would not be tenable. It is the duty of the prosecution to prove beyond all reasonable doubt that it is only the accused and the accused alone who has committed the crime. The present court finds that the prosecution has utterly failed to do so and in these circumstances, benefit of doubt has to be given to the accused for the offence of 302/392 IPC and 25/27 Arms act.
63. Applying the aforesaid principle of law of the facts and circumstances, of the present case, it is apparently clear that the prosecution has failed to prove its case against the accused Pradeep Mittal for the offences punishable u/s 392/302/34 IPC and 25/27 Arms Act. In view thereof, as the prosecution has failed to establish its case, accused Pradeep Mittal is acquitted for the offences punishable u/s 392/302/34 IPC and 25/27 Arms Act.
64. File be consigned to record room after compliance of Section 437 A Cr.P.C. AMBIKA Digitally signed by AMBIKA SINGH SINGH 12:37:04 +0530 Date: 2023.12.22 Announced in the (AMBIKA SINGH) Open Court on 22.12.2023 ASJ-02 West THC Delhi 22.12.2023 FIR NO. 18/2023 State Vs. Pradeep Mittal & Anr. Page No. 83 of 83